Hastings International and Comparative Law Review


The fourth clause of Section 9 of the Judiciary Act of 1789 grants to the federal courts jurisdiction over "a tort only in violation of the law of nations or a treaty of the United States." In the celebrated case of Filartiga v. Pena-Irala, the Second Circuit interpreted this clause as a grant of jurisdiction over any tort in violation of international law committed anywhere in the world. In reaching this conclusion, however, the court did not address the significance of the word "only" or the historical meaning of the word "tort."

This Article delves into the history, law, treaties, and politics behind the clause to determine what was meant by the words "tort only." The author determines that the word "tort" was used to identify wrongs under the branch of the law of nations known as the law of prize or under a treaty of the United States dealing with prize.

Under the law of prize, which applied when the United States was at war, all neutral merchant vessels were subject to visitation and search on the high seas by the war vessels of the United States and subject to capture if they appeared to be invested with an enemy character. The wrongs identified by the word "tort" were those committed by the captors against the captured in violation of the law of nations or a treaty of the United States. In either case, the violation gave the captured a right to sue American captors for reparation of the wrong in the courts of prize of the United States.

At the time the Judiciary Act was being drafted, the second clause in Section 9 gave the federal courts exclusive jurisdiction over all civil causes of admiralty. By the operation of war, these courts would be automatically vested with exclusive jurisdiction over all matters of prize. 'Thus the federal courts would have exclusive jurisdiction to decide the legality of a capture and the validity of an incidental claim by an alien for reparation of a wrong committed during the capture. There was a question, however, whether a state court could retain jurisdiction over such a claim if the legality of the capture was not in issue.

The fourth clause in Section 9 was drafted to strike a political compromise. On the one hand, it allowed the common law courts of the several states to retain jurisdiction over a case involving "only" the wrong (tort) and its reparation by American captors. On the other hand, it allowed the federal courts to exercise concurrent jurisdiction with the state courts over such a case.