The Alien Tort Statute, 1789-1979

We already have seen that the U.S. Supreme Court this Term will be considering whether a corporation may be held liable under the U.S. Alien Tort Statute (ATS) that provides for a district court’s having jurisdiction over a civil action for money damages “by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”[1]


An Act to establish the Judicial Courts of the United States

The first version of the ATS was part of An Act to establish the Judicial Courts of the United States (also known as the Judiciary Act of 1789) that was adopted on September 14, 1789.[2] It was only the 20th statute ever adopted by Congress, and it established the federal courts. More specifically it established thirteen judicial districts (§ 2), the district courts (§ 3) and their jurisdiction (§ 9).[3] One of the jurisdictional provisions for the district courts, and the first version of the ATS, stated that the district courts “shall have cognizance, concurrent with the courts of the several States, or the circuit courts . . . of all cases where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”

There are no committee reports or reported debates and thus no legislative history for this statute. Many law review articles and cases that discuss this 1789 statutory provision find it difficult to come to any conclusion as to what the legislative intent was.

To place the Judiciary Act of 1789 in historical context, recall that the U.S. Constitution went into effect on June 21, 1788, after the ratification by nine states. Article III, Section 1 of the Constitution provided  that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Federal Hall, New York City
George Washington Inauguration

The First Session of the First Congress of the U.S. opened on March 4, 1789. It had 22 Senators representing the 11 states of the Union that had then ratified the Constitution and only 59 members of the House of Representatives. They met in the former City Hall of New York City at the corner of Wall and Broad Streets. The Supreme Court also met here, and the executive offices of the federal government were here too. On the balcony of that same building George Washington was inaugurated as the first President of the U.S. on April 30, 1789.[4] The population of New York City in 1789, by the way, was only 33,000 while the total U.S. population was 3.9 million.

For nearly the next 200 years, the ATS does not appear in any of the reported cases from our federal courts.[5]

In 1795, however, U.S. Attorney General William Bradford was asked whether criminal prosecution was available against Americans who had taken part in the French plunder of a British slave colony in Sierra Leone.  Bradford was uncertain on that question, but he made it clear that a federal court was open for the civil prosecution of a tort action growing out of the episode. He said,”But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a  civil suit in the courts of the United States;  jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States.”[6]

In any event, the lack of judicial precedent on the ATS changed in 1980 as we will see in a subsequent post.

[1] 28 U.S.C. § 1350; Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court (July 9, 2011); Post: U.S. Supreme court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

[2]  An Act to establish the Judicial Courts of the United States, 1 U.S. Stat. 73 (1789).

[3]  The Judiciary Act of 1789 also established the U.S. Supreme Court (§ 1) and  three judicial circuits (§ 4) and contained other provisions relating to starting a new judicial system (id. §§ 5-8, 10-35).

[4]  The site is kitty-corner today from the New York Stock Exchange and not too far from where the World Trade Center used to stand.

[5]  In 1911 and again in 1948 the ATS was enacted into positive law with modest language changes as section 1350 of Title 28 of the U.S. Code. (An Act to codify, revise and amend the laws relating to the judiciary, 36 Stat. 1087, 1093 (§ 24 (17)) (1911); An Act to revise, codify and enact into law Title 28 of the United States Code entitled “Judicial Code and Judiciary,” 62 Stat. 869 (1948).

[6]  1 Op. [U.S.] Atty. Gen. 57, 59 (1795).

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

8 thoughts on “The Alien Tort Statute, 1789-1979”

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