The Extraterritorial Effect of Respublica v. De Longchamps

The Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum held that the presumption against extraterritoriality applies to common law causes of action under the ATS, and that there is no evidence the First Congress had intended the ATS to confer jurisdiction over extraterritorial torts. The Court’s conclusion was based, in part, on its claim that the ATS had been specifically enacted in response to two “domestic” breaches of international law: the Marbois-Longchamps Affair and the arrest of a servant in Ambassador Van Berckel’s household:

Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois — the Secretary of the French Legion — in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longschamps [sic], 1 Dall. 111 (O. T. Phila. 1784).

The Court held that, because there are two known domestic incidents that contributed to the ATS’s enactment, when the First Congress drafted the ATS it must have only had in mind domestic causes of action:

These prominent contemporary examples — immediately before and after passage of the ATS — provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.

The Court’s claim that the First Congress was concerned primarily with these two incidents is based on assumption, not the historical record. More significantly, however, the Court’s claim that Respublica v. De Longchamps “involved conduct within the Union” is, quite simply, wrong. The Longchamps case was understood by all involved to be a case involving the extraterritorial application of the law.

Kiobel was correct that the Longchamps case involved “a French adventurer verbally and physically assaulted [Secretary] Marbois.” But the Court’s summary description of the case conflates two wholly separate charges. Longchamps, a French expat, was charged with a verbal assault and a physical assault aginst Marbois, but it was only the verbal assault that fell afoul of the laws of nation. The charge for the physical assault was not under international law, but under municipal law:

Longchamps was initially charged with two counts: (1) “unlawfully and violently threatening and menacing bodily harm and violence to the person of the honorable Francis-Barbe De Marbois, Secretary to the Legation from France, and Consul General of France to the United States of America, in the mansion-house of the Minister Plenipotentiary of France,” and (2) “for an Assault and Battery committed upon the said Secretary and Consul, in a public street in the City of Philadelphia.”

The jury had no difficulty convicting Longchamps on the second count, and the Pennsylvania Court “[t]he second offence charged in the indictment, namely the Assault and Battery, needs no observations.”

But the first count was more problematic. One of the reasons that the Marbois Affair caused so much diplomatic unease is that Longchamps’ violation of the law of nations occurred not on the street, as the assault had, but in the hotel of the minister plenipotentiary of France. There was a great deal of uncertainty among both members of the Federal Congress and the government of Pennsylvania as to whether such an extraterritorial offense was even cognizable by a Pennsylvanian court.

This was a very real foreign relations concern for the United States. Marbois himself was not that important, and it wasn’t his personal indignation that was causing the Framers’ a foreign relations headache. The true party in interest was the Chevalier de la Luzerne, the French Ambassador — and the United States cared very much about maintaining his good graces.

The offense to Luzerne occurred two days prior to battery that occurred on the Philadelphia streets, when Longchamps went to the French minister plenipotentiary’s house and gotten into a verbal altercation with Marbois. Longchamps’ insults to the secretary were quite scanadalous, at least by the contemporary standards. The specific insult Longchamps was said to have made to Secretary Marbois was, “I will dishonor you, you naughty rascal!”

And it was this insult — or rather, the location where Longchamps said the insult — that was the real point of contention. Such an act was deemed a violation of the laws of nations, and French minister Luzerne wanted recompense. Believing that it had been an insult to the French nation’s honor, Luzerne — and also his friend, Van Berckel, the Dutch minister, who would later be involved in the 1787 event also cited by Kiobel — threatened to remove their respective legations from Philadelphia if the U.S. failed to take appropriate action against Longchamps under the laws of nations.

In fact, at Longchamps’ trial in July of 1784, it initially seemed that only the assault charge under municipal law would stand, as the jury originally found Longchamps to be guilty of only that offense. After a little bit of coaxing from the judges, however, the jury finally got it right, and convicted him of violating both the law of Pennsylvania and the law of nations:

The Jury, at first, found the defendant guilty of the Assault only; but, the Court desiring them to re-consider the matter, they returned with a verdict against him on both Counts.

Longchamps’ defense attorneys contested the validity of the count chargining a violation of the law of nations, arguing that only the municipal law of Pennsylvania could apply, as that was where the offense was committed. This claim was rejected by the Pennsylvania Court, which concluded that the law of nations — and not the municipal law of Pennsylvania — properly applied to Longchamps’ offense, because the offense had been committed extraterritorially, outside of the territory of Pennsylvania, where Pennsylvania law did not apply:

It must be determined on the principles of the laws of nations, which form a part of the municipal law of Pennsylvania; and, if the offences charged in the indictment have been committed, there can be no doubt, that those laws have been violated. The words used in the Minister’s house, (which is to be considered as a Foreign Domicil, where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend) may be compared to the same words applied to the Judges, in a Court of Justice, where they sit in representation of the majesty of the People, of Pennsylvania.

The Pennsylvania Supreme Court’s decision was based on then-existing conceptions of the inviolability of the premises of a foreign minister. Although the doctrine was discarded shortly thereafter, in the 18th century, at the time that Longchamps was decided, the concept of the Franchise de l’hôtel was still in effect. Under this doctrine, a foreign minister’s dwelling (or domicile) was conceived to be “extra-territorial” to the nation where it sat. The laws of the host state did not enter upon or apply to the minister’s domicile, and the host sovereign could not exercise jurisdiction — whether civil or criminal — over acts which occurred within it, because the foreign minister’s hotel was considered to be under the jurisdiction and sovereignty of his home state.

Unsurprisingly, this doctrine lead to a great deal of abuse by ambassadors, who used their extraterritorial status to their own financial benefit, by shielding criminals and smugglers of all types. In fact, in the 16th and 17th centuries, prior to the more limited Franchise de l’hôtel, the law of nations recognized the more expansive Franchise du quartier — the right of the ambassador to claim privileged status over his entire city quarter. Under the Franchise du quartier, Ambassadors could, from their residences, grant asylum, enter into contracts, or try and execute servants for criminal violations, all under the law of the sovereign nation to which the embassy belonged.

By the late 18th century, the extent of a foreign minister’s exterritoriality had diminished from its earlier peak. The modern view — which is that foreign embassies are entitled to an extensive list of privileges and immunities, but are nevertheless within the territorial sovereignty of the nation in which they are located — was not yet fully established, however. And at the time of Longchamps’ trial, the Pennsylvanian authorities, the French legation, and the Federal government were all very much of the belief that Longchamps’ crime against the French legation had been committed on French soil, not U.S. soil. In requesting advice from Congress on how to proceed against Longchamps, the Supreme Executive Counsel of Pennsylvania specified that the offense had occurred “in the hotel of the Minister of France,” finding the location of the infraction to be of great signficance. Luzerne also made much of the location of the insul; his position was that France was entitled to exercise jurisdiction over the offense, because it had been extraterritorial to the United States, and he therefore requested that Longchamps be repatriated to France so that he could be prosecuted there.fn2

Although France’s extradition request was denied, Chief Justice McKean ultimately agreed with Pennsylvania’s Attorney General, William Bradford. Bradford argued, on behalf of the prosecution, that Longchamps’ insults were an offense against the law of nations, and that Pennsylvania’s law did not apply, because it had occurred “where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend.” Under Pennsylvania law, use of insulting language was not a crime, and he could not be convicted for calling Marbois a dirty rascal. Under international law, however, such an act was an offense. The Supreme Court of Pennsylvania agreed with Bradford that the offense had been extraterritorial, and Longchamps’ conduct was therefore a criminal offense. The Pennsylvania Court also found that, even though the offense was under international law and not Pennsylvanian law, Longchamps could still be convicted of the offense by a Pennsylvania state court. As Bradford had argued, “the law of nations, which makes part of the common law of all nations, requires no particular forms of legal proceedings, but always adopts those of the municipal laws of the different countries of where it is in force.” The Pennsylvania Court accordingly found that the Law of Nations provided the substantive law which made Longchamps’ conduct a criminal offense, and that Pennsylvania provided the forum and procedural law under which Longchamps could be charged and convicted.

Bradford, as the Attorney General for the United States, would also later reaffirm the view that a  foreign minister’s dwelling-house was extraterritorial to the jurisdiction of the state where it was located. In his Opinion of June 24, 1794, at 1 Op. 47, Bradford noted that, unlike an ambassador’s dwelling, a foreign warship in the United States’ territorial waters was subject to that state’s jurisdiction: “[t]he commander of a foreign ship-of-war . . . cannot claim that extraterritoriality which is annexed to a foreign minister and to his domicil; but is conceived to be fully within the reach of, and amenable to, the usual jurisdiction of the State where he happens to be.” This decision echoes the language used in Respublica v. Longchamps, and does not support the Supreme Court’s conclusion in Kiobel that Longchamps “involved conduct within the Union.”

-Susan

fn1. As a legal matter, the offence of assault and battery on a public street was unquestionably a crime under the municipal law, and not the source of any legal uncertainty. It is of interest to note, however, that there is reason to be skeptical of the factual basis of the charge, and there is evidence that Marbois, not Longchamps, was the initial aggressor.

fn2. Luzerne’s demand for Longchamps to be extradited caused its own political difficulties. Longchamps was not without supporters in the U.S., and his extradition would have been domestically unpopular. This is part of why the case became such a flashpoint; the U.S. officials could not extradite Longchamps without causing a domestic scandal, and could not fail to convict him for a breach of international law without causing a foreign relations disaster.

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4 thoughts on “The Extraterritorial Effect of Respublica v. De Longchamps

  1. Interesting and impressive research. I agree that the Kiobel language is a little too blunt. Again, though, I think the best and most coherent reading of all of this is to harmonize on the central issue: the demands for recompense by France and the Netherlands. Compare William Blackstone, 4 Commentaries *67-68 (“But where the individuals of any state violate this general law [of nations], it is then the interest as well as duty of the government, under which they live to animadvert upon them with becoming severity, that the peace of the world may be maintained. For in vain would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first, to demand satisfaction and justice to be done on the offender by the state to which he belongs; and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject’s crime, and draws upon his community the calamities of foreign war.” (emphasis added)), with De Longchamps, 1 Dall. at 117 (paraphrasing Blackstone, “You then have been guilty of an atrocious violation of the law of nations; you have grossly insulted gentlemen, the peculiar objects of this law (gentlemen of amiable characters, and highly esteemed by the government of this State) in a most wanton and unprovoked manner: And it is now the interest as well as duty of the government, to animadvert upon your conduct with a becoming severity, such a severity as may tend to reform yourself, to deter others from the commission of the like crime, preserve the honor of the State, and maintain peace with our great and good Ally, and the whole world.” (emphasis added)); see also Vattel, The Law of Nations, bk. II, §§ 343, 347-50; Letter from Thomas Jefferson to James Madison (May 25, 1784), reprinted in IV The Works of Thomas Jefferson 365 (Paul Leicester Ford ed.1904).

    • Yes, that’s exactly why Longchamps got specifically charged with a violation of international law, and why the court took three months after the verdict to come up with a reason justifying the conviction. The opinion in Respublica v. Longchamps was an attempt to prove that the U.S. took violations of international law seriously, even though France didn’t think the U.S. had done so at all. But by citing Blackstone, the court could at least pretend it was taking taking the offense seriously.

      But that all goes to why I think De Longchamps is not a good case to look to in understanding the ATS, and why I have a longstanding dislike of the Court’s reliance on Blackstone’s “Of Offences Against the Laws” in ATS cases. It was a wrongheaded misdirection from the start. The “Blackstone Three,” as Blackstone himself was very clear to establish, are simply the narrow class of criminal offences indictable under the common law. In contrast to criminal offences, “in civil transactions and questions of property between the subjects of different states, the law of nations has much scope and extent.” But indictments for criminal offences, under the common law, were restricted to those acts that amounted to “public wrongs,” i.e., wrongs against the Sovereign.

      But rudely saying a mild insult, as Longchamps was charged with, is not a public wrong. Nor was it indictable under the common law. So in order for an indictable offense to be alleged against Longchamps, Pennsylvania had to come up with a reason for why those mild insults were actually a crime “against the State.” It did so by (1) saying that Pennsylvania state law did not apply to the act, as Pennsylvania state law held that Longchamps’ insults were not a criminal offense, and (2) holding that mild insults to the dignity of the sovereign amounted to a public wrong, and thus indictable at common law.

      In short, Respublica v. Longchamps should never have been the model for the ATS. Because the First Congress weren’t idiots — they knew the difference between a criminal offence and a civil action for damages. And they thought it important to create both a civil jurisdiction for torts in violation of the laws of nations, and also, separately, a criminal statute prohibiting acts like those of Longchamps. The grant of civil jurisdiction for a tort was to provide a means of redress for private violation of international law — for trespasses — and to give foreigners the option to have those claims heard in a less biased forum. The Crimes Act of 1790 was to take care of the nation’s Longchamps, by taking the criminal offenses out of the common law and putting them into statute. In contrast, private wrongs, under the lex mercatoria or torts under the laws of nations, would follow the offender to wherever he could be found in personam. They could be left to the common law.

      Hence Jefferson’s lament: “If [only] the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort[.]” The Judiciary Act successfully created a remedy for the private wrong under international law, but not for the public wrong that was separately being committed in that same act.

      So that’s a long way of saying, there’s a reason why De Longchamps, as a criminal case, followed Blackstone’s language, but it doesn’t mean it applies to ATS actions. Pennsylvania was arguing for the existence of an indictable offense under the common law, via the laws of nations, which is precisely what Blackstone provided for. Moreover, citing Blackstone allowed Pennsylvania to pretend they actually were taking stern action to appease France, when really they did anything but. France didn’t stop demanding for Longchamps’ extradition after the court’s decision, and in 1797, Jefferson was still bitching about the headache Longchamps’ affairs were causing him. France thought the U.S. was way too lenient.

      Why else do you think Justice McKean found it necessary to be such a little sycophant in his opinion? Going out of his way to call Luzerne and Marbois “gentlemen of amiable characters, and highly esteemed by the government of this State”? The court talked about punishing Longchamps with “a becoming severity,” because the court knew that, in France’s eyes, it had completely failed to do just that. So McKean was trying to talk a good game, to make up for the fact Longchamps only got two years imprisonment.

      As a side note, Longchamps could easily be seen to be the true victim of the whole case, which is why there was such reluctance to punish him more harshly. Marbois was the one who refused to give Longchamps his papers in the minister’s house, and Marbois was the one who then demanded to meet Longchamps on the street. When Longchamps may have possibly touched Marbois’ cane, Marbois reacted by beating the snot out of him. (“De Longchamps’ striking Monsieur Marbois’ cane, is a sufficient justification of that gentleman’s subsequent conduct.”). But other than being a bit hot headed, it’s not clear Longchamps was horribly out of line.

      And at the time, a lot of Americans were seriously pissed off about Longchamps’ detention. He was helped to escape from custody before trial, and multiple threatening letters were written to Marbois by Americans who disagreed with Longchamps’ arrest. There’s a reason the event was such a Big Deal in 1784. But the legal dispute was always solely restricted to the question of whether a criminal indictment under the common law could be sustained, for an act that took place in a foreign sovereign’s effective territory. And my bet is that, in truth, it did not have much direct responsibility for the ATS.

  2. Oh, you’re probably right about direct responsibility–but that was very likely the historical celebrity case that people had in the back of their heads. The problem for lower courts with the Blackstonian conception and looking to the Marbois incident stems from Sosa, and I don’t really think the Court wanted to “clarify” nuanced aspects of history and 18th century international law anymore with Kiobel.

  3. Pingback: Post-Kiobel, the Lower Courts Are Only Pretending to Apply the Presumption Against Extraterritoriality in Alien Tort Statute Cases | The View From LL2

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