The Forgotten History of Foreign Official Immunity

Chimène I. Keitner


In Samantar v. Yousuf, the Supreme Court held that the common law, not the Foreign Sovereign Immunities Act (FSIA), governs the immunity of current and former foreign officials from legal proceedings in U.S. courts.1 Lower courts must now identify and apply these “common law” rules. In so doing, they must determine whether, and when, individuals may be subject to legal proceedings in U.S. courts for conduct performed under color of foreign law and how much deference to give the views of the executive branch about whether such conduct is entitled to immunity in a particular case.

Determining what the common law requires often begins with an assessment of historical practices and understandings. The danger in making such assessments is that unsupported assertions about historical practice can creep into judicial opinions and assume an unwarranted aura of authority by virtue of repeated and uncritical citation.For example, the United States filed a statement of interest in Matar v. Dichter, in which it cited a 1794 opinion by Attorney General William Bradford and a 1797 opinion by Attorney General Charles Lee as “recognizing immunity for the official acts of foreign officials.”2 Professors Curtis Bradley and Jack Goldsmith subsequently published an article in which they cited Attorneys General Bradford and Lee’s opinions for the proposition that “suits against foreign officials for their official acts were considered suits against the foreign state and thus were subject to the state’s immunity.”3 The historical record does not support these assertions. Bradley and Goldsmith also speculated that the Executive’s refusal to intervene in early cases brought against foreign officials was due to federalism limits, rather than separation-of-powers concerns.4 In fact, the opposite is true.

A systematic search of Attorney General opinions, diplomatic correspondence, and available court records from the 1790s brings to light six civil suits in which defendants asserted “conduct-based” immunity; that is, immunity attached to the official nature of the defendant’s alleged conduct, as opposed to the “status-based” immunity accorded to the defendant by virtue of his or her official position at the time of the legal proceedings. By piecing together the stories of these early cases, this Article provides a more solid evidentiary basis for historical claims about foreign official immunity as understood and applied by U.S. courts.

Under the eighteenth-century law of nations, which was understood as binding on U.S. state and federal courts as part of the general common law, heads of state and diplomatic officials benefited from absolute, status-based immunity and could not be sued or prosecuted while in office. The research detailed in Part I of the Article indicates that other current or former foreign officials, by contrast, were on the same “footing” with “every other foreigner” who came within U.S. territory.5 A claim that a defendant acted in his official capacity—a claim to conduct-based immunity—did not operate as an automatic barrier to adjudication on the merits. Moreover, the Executive believed that it did not have constitutional authority to instruct a court to dismiss a private suit on conduct-based immunity grounds because of separation-of-powers—rather than federalism—concerns.

Part II details how, by the end of the nineteenth century, jurisprudence involving claims of conduct-based (or “ratione materiae”) immunity by current or former foreign officials began to merge into a separate but related line of cases involving so-called “acts of state”—that is, public acts a government performs within its own territory, insulated from judicial scrutiny by foreign courts. The continuity between ratione materiae immunity and the Act of State doctrine is significant because many consider immunity to be a defense against jurisdiction, whereas the act of state doctrine constitutes a substantive defense on the merits. Treating a claim of conduct-based immunity more like an affirmative defense would require a defendant to prove that he had acted within his “lawful powers” in order to have a case dismissed on immunity grounds.6 It would also preserve the judiciary’s role as the final arbiter of whether such a defense could succeed in specific instances.

Twenty-first century courts need not follow the practices of their eighteenth-century predecessors. However, a richer understanding of those practices can provide a more accurate starting point for evaluating alternatives as lower courts seek to identify and apply the common law rules governing immunity following the Samantar decision.

I. Eighteenth-Century Cases

Part I describes six civil suits brought against current or former foreign officials in U.S. courts in the 1790s. In each suit the defendant attempted to assert conduct-based immunity. Four of these cases were the subject of Attorney General Opinions (Waters v. Collot, Rose v. Cochrane, Parnell & Stewart v. Sinclair, and Jones v. Letombe);7 one was mentioned in diplomatic correspondence (Dunant v. Perroud);8 and two are included in the Documentary History of the U.S. Supreme Court (Yard v. Davis and Jones v. Letombe).9 These cases have not previously been examined together to discern governing principles of foreign official immunity and the separation of powers in eighteenth-century civil suits with foreign relations implications.

By way of example, Parnell & Stewart v. Sinclair illuminates prevailing understandings of conduct-based immunity, as well as the limited role of the Executive in suits against individuals who acted under color of foreign law. Although defendant Henry Sinclair was a privateer rather than a government official, he was acting under a commission from the British government, and he claimed that this official commission shielded him from the jurisdiction of U.S. courts. A letter of marque from King George III commissioned Sinclair to “cruise” against enemy ships.10 Sinclair, captain of the Swinger, captured the Atlantic, an American ship, while it was en route from a French port in the West Indies back to its home port of Baltimore, on the suspicion that it was carrying enemy property.11 John Parnell and David Stewart, the Atlantic’s owners, brought a civil suit for damages against Captain Sinclair.

Sinclair expected that, having acted under a British commission, he could not be arrested or compelled to give bail even if he entered the United States. However, because he was not a diplomatic official, this expectation proved false. On December 1, 1797, the Alexandria Advertiser reported that “Henry Sinclair, captain of the British letter of marque Swinger, now in this port, was arrested, and imprisoned in the county gaol, on suits for damages amounting to 20,000 dollars, brought against him by Stewart and Son, of Baltimore.”12 Sinclair later reported that he had been “confined in Gaole” for some time but had finally been able to give bail to guarantee his appearance in court.13

Fearing for his livelihood, Sinclair wrote a lengthy and detailed plea to Robert Liston, the British Minister to the United States. He complained to Liston that his arrest and trial would prevent him from commanding the Swinger and pursuing “his customary occupation,” thereby reducing him “to entire ruin, unless he is relieved by the Interposition of His Britannick Majetsy’s Minister Plenipotentiary.”14 On December 15, Liston transmitted Sinclair’s memorial to Secretary of State Pickering. Pickering forwarded Liston’s letter and Sinclair’s memorial to Attorney General Charles Lee and asked Lee to opine whether Sinclair was entitled to “an exemption from all responsibility in the case to the laws of any other country than his own.”15

Like his predecessor William Bradford had done in previous cases, Lee opined that Sinclair “ought to prevail” at trial before the court of law at Alexandria, because “it is as well settled in the United States as in Great Britain, that a person acting under a commission from the sovereign of a foreign nation is not amenable for what he does in pursuance of his commission, to any judiciary tribunal in the United States.”16 However, also like Bradford, Lee disclaimed any power of the Executive to intervene. He based this opinion on precedent, noting that the principle of executive nonintervention had “been settled in the case of General Collot, and I believe in some other cases.”17 This principle dictated that “the Executive cannot interpose with the judiciary proceedings between an individual and Henry Sinclair, whose controversy is entitled to a trial according to law.”18

Parnell & Stewart v. Sinclair, together with the other five suits examined in Part I, illustrates the following five principles and practices that should be taken into account in any historical assessment of common law immunity. First, the Executive believed that it did not have the constitutional authority to order a court to dismiss a civil suit brought by a private individual against a current or former foreign official on conduct-based immunity grounds. Second, foreigners who were not diplomatic officials were not personally immune from the jurisdiction of U.S. courts, and could therefore be arrested and compelled to give bail to secure their appearance in a civil suit. Third, individual foreign officials were not liable in U.S. courts for “mere irregularities” in the exercise of their lawful powers. Fourth, if the defendant could show that he or she had acted within his or her “lawful powers,” he or she would be discharged on a promise to appear. This showing required more than the mere assertion that the defendant held an official title at the time of the alleged misconduct. Finally, individuals acting as commercial agents of a foreign sovereign did not bear personal liability for debts incurred on behalf of the government; under applicable principles of agency law, the claim ran exclusively against the principal.

II. Nineteenth-Century Interpretations

Part II describes how legal actors in the nineteenth century interpreted and carried forward these original understandings of conduct-based immunity. For example, on November 5, 1893, the New York Times reported that former U.S. Consul George Underhill and his wife had filed a suit against Jose Manuel Hernandez, a Venezuelan General and Senator, and obtained an order for his arrest in New York.19 The Underhills alleged that Hernandez had imprisoned them in Ciudad Bolivar, where Underhill operated water works under a concession from the previous government, and that Hernandez had compelled Underhill to sell his plant and property “for a pittance.”20 The Circuit Court for the Eastern District of New York directed a verdict for Hernandez at the conclusion of the trial “upon the ground that because the acts of the defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefor.”21 Underhill appealed the directed verdict.

The Second Circuit affirmed. It found that the evidence presented at trial was “not sufficient to have warranted a finding by the jury that the defendant was actuated by malice, or any personal or private motive.”22 It also articulated the principle that “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers.”23 (By then, the United States had recognized the revolutionary forces commanded by General Hernandez as the legitimate government of Venezuela.) In support of its decision to affirm the directed verdict, the Second Circuit cited the Attorney General’s 1794 and 1797 letters relating to the Collot and Sinclair cases for the proposition that “[t]he law officers of the United States have uniformly advised the executive department that individuals are not answerable in foreign tribunals for acts done in their own country, in behalf of their government, by virtue of their official authority”24—even though, as detailed above, this did not mean that such individuals could avoid being arrested in the United States and compelled to respond to a suit. The Second Circuit held that, based on the trial record, “the acts of the defendant were the acts of the government of Venezuela, and, as such, are not properly the subject of adjudication in the courts of another government.”25

The Supreme Court affirmed the Second Circuit’s decision. While Chief Justice Fuller wrote for the court that “acts of legitimate warfare cannot be made the basis of individual liability,”26 his opinion is more often cited for its statement that “the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.”27

Limits on individual responsibility, judicial competence, and territorial jurisdiction thus became entwined with a broader principle of judicial nonintervention in cases involving “acts of the government of another, done within its own territory”—the affirmative defense now known as the Act of State doctrine. This principle of judicial noninterference also appears to have animated much of the questioning during oral argument in the twenty-first-century Supreme Court case Kiobel v. Royal Dutch Petroleum, which has been set for reargument on the question of the reach of U.S. prescriptive and/or adjudicatory jurisdiction over extraterritorial conduct.

The research presented in this Article contains at least two implications for the arguments on extraterritorial jurisdiction in Kiobel, which calls on the Court to interpret the Alien Tort Statute (ATS), a provision in the 1789 Judiciary Act.28 First, five of the six cases involved conduct that occurred outside of the territorial United States; of those, three involved conduct at sea (the available records do not distinguish between conduct on the high seas and conduct within a country’s territorial waters) and two involved conduct within another country’s sovereign territory (Waters v. Collot, which involved conduct in the French colony of Guadeloupe, and Dunant v. Perroud, which involved conduct in the French colony of St. Domingo). The U.S. courts in question did not view the extraterritorial reach of their civil jurisdiction as inherently problematic; rather, diplomatic protests focused on whether or not U.S. courts should adjudicate conduct performed within a foreign official’s lawful powers. Second, the diplomatic correspondence in Yard v. Davis relating to Captain Davis’s potential criminal liability illustrates that U.S. civil jurisdiction could, and did, extend farther than U.S. criminal jurisdiction in certain cases. As the Supreme Court noted in Sosa v. Alvarez-Machain, Attorney General Bradford, writing several years after the ATS was enacted, “likely . . . understood the ATS to provide jurisdiction over what must have amounted to common law causes of action” even if U.S. criminal law would not reach the same conduct because it took place in a foreign country.29 This interpretation of Bradford’s 1795 opinion about the potential civil liability of Americans who had aided and abetted a French attack on the British colony of Sierra Leone is consistent with the prevailing understandings of civil jurisdiction at the time, as reflected in the historical documents examined in this Article.


Absent further congressional action, the immunity of foreign officials not covered by applicable treaties or statutes will be determined under the “common law of official immunity,” not the FSIA.30 The “common law,” understood broadly, comprises a series of choices by authoritative decision makers from which subsequent decision makers have constructed a set of constraints that relevant actors understand as legally binding. By chronicling early choices regarding foreign official immunity, this Article builds a foundation for a more informed conversation about the shape that the “common law of official immunity” can and should take going forward. It also provides a richer historical backdrop for cases such as Kiobel by reminding twenty-first-century judges that their eighteenth- and nineteenth-century predecessors did not doubt that they had adjudicatory jurisdiction over certain conduct performed by foreign officials overseas, even though they occasionally declined to exercise that jurisdiction on prudential grounds.


Chimène I. Keitner is an Associate Professor of Law at the University of California Hastings College of the Law.

This Legal Workshop Editorial is based on the following Article: Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. (forthcoming June 2012).

Copyright © 2012 N.Y.U. Law Review.

  1. Samantar v. Yousuf, 130 S.Ct. 2278 (2010).
  2. See Statement of Interest of the United States of America at 6, Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007) (No. 05 Civ. 10270) (arguing that individual immunity is governed by the common law, not the FSIA).
  3. Curtis A. Bradley & Jack L. Goldsmith, Foreign Sovereign Immunity and Domestic Officer Suits, 13 Green Bag 137, 141–42 (2010).
  4. Id. at 142 n.21.
  5. Suits Against Foreigners, Case of Collot, 1 Op. Att'y Gen. 45 (1794); Suits Against Foreigners, Case of Cochran[e], 1 Op. Att'y Gen. 49 (1794); Actions Against Foreigners, Case of Sinclair, 1 Op. Att'y Gen. 81 (1797).
  6. The term “lawful powers” comes from a letter from Timothy Pickering to Joseph Letombe (May 29, 1797), in 10 Domestic Letters of the Department of State 51–52, available at
  7. Collot, 1 Op. Att'y Gen. 45 (1794); Cochran[e], 1 Op. Att'y Gen. 49 (1794); Sinclair, 1 Op. Att'y Gen. 81 (1797); Consular Privileges, Case of Létombe, 1 Op. Att'y Gen. 77 (1797).
  8. Letter from Timothy Pickering to Joseph Letombe (May 29, 1797), supra note 6.
  9. 6 The Documentary History of the Supreme Court of the United States, 1789–1800, at 719–27 (Maeva Marcus ed., 1998); 8 The Documentary History of the Supreme Court of the United States, 1789–1800, at 75-79 (Maeva Marcus ed., 1998).
  10. Memorial of Henry Sinclair, from Henry Sinclair to Robert Liston, Britain’s Minister to the United States (Dec. 6, 1797), microformed on M50, Roll 3 (NARA Microfilm Publ’n) (on file with the New York University Law Review).
  11. Alexandria Advertiser, Dec. 1, 1797, at 3.
  12. Id.
  13. Memorial of Henry Sinclair, supra note 10.
  14. Id.
  15. Letter from Timothy Pickering to Charles Lee, Att’y Gen. (Dec. 23, 1797), in 10 Domestic Letters, supra note 8, at 276.
  16. Sinclair, 1 Op. Att’y Gen. 81, 81 (1797).
  17. Id.
  18. Id.
  19. Bail Came Just in Time, N.Y. Times, Nov. 5, 1893, at 9.
  20. Id.
  21. Underhill v. Hernandez, 65 F. 577, 579 (2d Cir. 1895), aff’d on other grounds, 168 U.S. 250 (1897). This stands in contrast to the West Virginia Supreme Court of Appeals’s earlier decision in Hedges v. Price, 2 W. Va. 192 (1867), that a former member of the Confederate army could be held civilly liable for trespass and theft for carrying away the plaintiffs’ goods under orders from his superiors for the use of the Confederate army.
  22. Underhill, 65 F. at 579.
  23. Id.
  24. Id. at 580.
  25. Id. at 583.
  26. Underhill, 168 U.S. at 253.
  27. Id. at 252.
  28. See Chimène I. Keitner, The Reargument Order in Kiobel v. Royal Dutch Petroleum and Its Potential Implications for Transnational Human Rights Cases, ASIL Insights, Vol. 16, No. 10 (March 21, 2012),
  29. Sosa v. Alvarez-Machain, 542 U.S. 692, 721 (2004), quoting 1 Op. Att’y Gen. 57 (1795).
  30. Samantar, 130 S. Ct. at 2290.

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