A Question of Sovereignty: The History Behind Attorney General Bradford's 1795 Opinion on the Alien Tort Statute

Syracuse Journal of International Law & Commerce (Vol. 40, Issue 2, Spring 2013)

68 Pages Posted: 30 Nov 2012 Last revised: 4 Jul 2013

Ishai Mooreville

Baker & Miller PLLC

Date Written: 2013

Abstract

This article uses historical sources to analyze the 1794 attack on Sierra Leone which provided the basis for Attorney General William Bradford’s 1795 opinion on the scope of the Alien Tort Statute (“ATS”). The article first provides a detailed historical overview of the 1794 attack based on first-hand contemporaneous accounts. The historical facts are then analyzed in order to shed light on appropriate interpretations of Bradford’s Opinion.

The article then addresses three distinct questions: 1) whether Bradford believed a cause of action under the ATS was available only for acts on the high seas or also for acts in foreign territory; 2) which parties were responsible for the attack, and 3) whether Sierra Leone was in fact British sovereign territory in 1794.

On the first question, review of the 1794 Memorial filed by Zachary Macaulay and John Tilley in context indicates that Bradford probably believed that a cause of action was only available for the acts which occurred on the high seas.

On the second question, the article compiles evidence showing that American, French and British citizens all played a role in planning and executing the attack, though the British only sought to recover damages from the American perpetrators in the U.S.

On the third question, the article demonstrates that much contemporaneous evidence suggests Sierra Leone was not British sovereign territory at the time of the 1794 attack, and therefore the Bradford Opinion should not be used to support the application of the ATS in foreign sovereign territory. This is the same question recently considered by the Supreme Court in the Kiobel v. Royal Dutch Petroleum case.

Keywords: Alien Tort Statute, Kiobel, Bradford Opinion

Suggested Citation

Mooreville, Ishai, A Question of Sovereignty: The History Behind Attorney General Bradford's 1795 Opinion on the Alien Tort Statute (2013). Syracuse Journal of International Law & Commerce (Vol. 40, Issue 2, Spring 2013). Available at SSRN: https://ssrn.com/abstract=2182860

Ishai Mooreville (Contact Author)

Baker & Miller PLLC ( email )

2401 Pennsylvania Ave, NW
Suite 300
Washington, DC 20037
United States

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