Much of the foregoing historical evidence is indirect. It consists of practice, rather than affirmative assertions about what the Due Process Clause requires. Some of the evidence is ambiguous⎯Did Congress
335 Congress often indemnified by private bill federal officers held liable for trespass. James E.
Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U.L.REV. 1862, 1905–06 (2010). This included officers held liable for their conduct on the high seas. See id. at 1902 (noting that Congress indemnified Captain Little for the award against him in Little v. Barreme).
336 See, e.g., Sands v. Knox, 7 U.S. (3 Cranch) 499, 500–01 (1806) (Marshall, C.J.); Maley v.
Shattuck, 7 U.S. (3 Cranch) 458, 488–90 (1806); Little v. Barreme, 6 U.S. (2 Cranch) 170, 177–78 (1804) (Marshall, C.J.); Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 120 (1804) (Marshall, C.J.).
337 See, e.g., Sloop Active v. United States, 11 U.S. (7 Cranch) 100, 106 (1812) (finding that a ship was not legally searched under embargo law because the ship did not leave port, which is necessary for an offense under such law).
338 See, e.g., The Palmyra, 25 U.S. (12 Wheat.) 1, 17–18 (1827) (holding that the capturing officer had sufficient grounds for seizing a suspected pirate ship).
339 See, e.g., Brown v. United States, 12 U.S. (8 Cranch) 110, 128–29 (1814) (finding that the power to confiscate property during war is reserved to Congress, which had not declared a will to confiscate property when it declared war; thus, a confiscation of property under a pretense of powers to confiscate enemy property was illegitimate).
340 Little, 6 U.S. at 177–79 (1804) (holding that an executive order instructing officers to capture ships coming from French ports did not justify the capture of such a ship when the statute only authorized the capture of ships going to French ports).
341 See, e.g., Amar, supra note 328, at 774–78.
342 Hurtado v. California, 110 U.S. 516, 536 (1884); see generally supra note 151.
decline to authorize the President to destroy pirates upon capture because it believed the Fifth Amendment prohibited such a deprivation of life or for some other reason? Here I consider several other possible explanations for the evidence. It is important to note, however, that these explanations are not mutually exclusive. Rather, many are mutually reinforcing. Sometimes diplomatic strategy coincides with constitutional obligation, and so on.
The first possibility to consider is that Americans provided due process because they believed the law of nations required them to do so.
For civil admiralty suits, that is almost certainly the case. Admiralty law and procedures were well-known and applied by admiralty courts in all the maritime powers.343 But each of those powers also had their own municipal constitutional structures that affected the relationship of those courts to the rest of the government, and they also had their own municipal laws governing conduct on the sea.344 While a prize respondent could expect courts in England, France, and the United States to use nearly identical procedures, the respondent could not expect the courts to take the same approach to the nation’s substantive law, because that law would be governed by domestic constitutional principles.345 In any case, at the highest level of abstraction, the law of nations and due process of law are probably best understood as reinforcing the required procedural protections in civil admiralty cases.
Criminal admiralty cases were different. The law of nations may have held that pirates were entitled to a trial of some kind.346 But the law of nations said nothing about the nature of that trial.347Every nation proceeded according to its own municipal law. The United States, alone, uniformly tried offenses on the high seas (and foreign waters) according to the same structural and procedural protections that applied to all other criminals.348 As we have seen, Britain had a dual system.349 A long list of offenses on the high seas were tried in England by Admiralty Session according to the course of the common law. Throughout the eighteenth century, however,
343 See supra note 205 and accompanying text.
344 See supra Section II.D.1.
345 See, e.g., supra note 206 and accompanying text.
346 See VATTEL, supra note 34, bk. I, ch. XIX, § 233 (“[A]s it is proper to have criminals regularly convicted by a trial in due form of law, this is a second reason for delivering up malefactors of that class [including pirates] to the states where their crimes have been committed.” (emphasis added)).
347 See Letter from John Quincy Adams to Richard Rush (June 24, 1823), in 7 WRITINGS OF JOHN QUINCY ADAMS, supra note 276, at 489, 495 (noting that “there is no uniformity in the modes of trial to which piracy by the law of nations is subjected in different European countries”).
348 See supra note 185 and accompanying text.
349 See supra Section II.C.
England tried piracy, robbery, and felonies committed on the high seas before special commissions in the colonies according to the civil law.350
Interestingly, in 1806, some fifteen years after the first criminal law statute in the United States expressly provided that pirates would be tried according to due process of law, Britain reversed course again. A Mr.
Jervis introduced a bill in the House of Commons “for altering and expediting the trial of offences committed in distant parts on the high seas.”351 The dual system, he claimed, had two problems. The Act of 1699 covered only a subset of the offenses covered by the Act of 1536; the commissions in the colonies could only try a handful of crimes on the high seas, many of which went unpunished because it was so difficult to transport the accused to Britain for trial.352 The second problem was that the commissions in the colonies “acted upon the principles of the civil law, which were very different from those of the common law of this country. . . . The design of [Jervis’s] bill, therefore, was to prevent the necessity for bringing home the offenders, and also that they might enjoy the benefit of the trial by jury, and not be tried according to the forms of the civil law.”353 Parliament enacted the bill in essentially the same form, extending “one uniform course of trial” for all offenses at sea to commissions sitting in the colonies.354 They would “adjudge according to the common course of the laws of this realm used for offences committed upon the land within this realm, and not otherwise.”355
This 1806 bill underscores two points about the foregoing account of due process. First, the trial procedures for crimes committed on the high seas were a matter of municipal law, not the law of nations. For more than a century, Britain had two different procedural regimes. Neither were understood to be required by, or to offend, the law of nations. When Britain unified the regime, it did not do so because of the law of nations. Second, Britain itself came to acknowledge that its own constitutional tradition counseled trying offenses at sea by the common law. Well after the American Revolution, and after the United States had committed itself to trying all crimes by jury, Britain extended “the benefit of the trial by
350 Id.
351 6 Parl. Deb. HC (1st ser.) (1806) col. cc723–24.
352 Id.
353 Id.
354 The Offences at Sea Act 1806, 46 Geo. 3 c. 54.
355 Id.
jury”356 and the “common course of the laws of [the] realm” to all offenses at sea, wherever the trial would be held.357
Britain was not alone in trying pirates in special courts. Throughout this period, French law provided for the trial of pirates in special admiralty courts, outside of the ordinary criminal courts.358 As we have seen, Spain sometimes tried pirates by court-martial.359 Nothing in the law of nations itself, or in the practice of other nations, suggests that a nation was obligated to try offenses at sea or outside of its sovereign territory in the same courts and according to the same procedures that it used to try other offenses.
The second possibility is that the United States provided due process for the trial of conduct abroad for reasons of diplomacy. The foregoing evidence about other nations’ municipal law and practice regarding the trial of extraterritorial conduct undermines this argument. While every nation was expected to supply admiralty courts for the trial of prize cases and civil maritime suits,360 there is no evidence that the United States relied on ordinary federal courts to punish offenses at sea because of diplomatic pressure. And since other nations did things differently, they would have had no reason to push the United States to provide more rather than less procedural protections for pirates.
Another possibility is that the Executive and Judicial Departments provided due process simply because Congress required it in the relevant statutes. Congress, according to this view, lawfully could have provided for a different procedural regime for offenses at sea had it wanted to do so.
This seems unlikely, for several reasons. All of the officials who expressly considered the application of the Fifth Amendment to the punishment of crimes committed abroad concluded that the provision required conviction in a federal court.361 Moreover, Congress had the incentive and the
356 6 Parl. Deb. HC (1st ser.) (1806) col. cc723–24.
357 The Offences at Sea Act 1806, 46 Geo. 3 c. 54.
358 In 1681, a marine ordinance gave jurisdiction over piracies and other offenses on the sea to the Judges of the Admiralty. Marine Ordinance of August 1681, bk. 1, tit. 2, art. X; see Piracy Laws, AM.J.
INT’L L.SUP. 963 (1932) (summary in English). In an act of 1825, France provided that pirates would generally be tried by maritime courts. See Law for the Safety of Navigation and Maritime Commerce, April 10, 1825, tit. III, art. 17; AM.J.INT’L SUP. 966 (English translation). There were exceptions for some French citizens, however. A French citizen who accepted a privateering commission from a foreign power without the French king’s authority would be “tried in accordance with the procedure of and by the ordinary courts.” See id. Furthermore, certain French citizens accused of being an accomplice would be “tried by the ordinary courts.” Act of 1825, tit. III, art. 19; see AM.J.INT’L L.
SUP. 967 (English translation).
359 See supra Section V.B.1.
360 See supra Section II.A.
361 See supra note 25 and accompanying text.
opportunity to abrogate due process of law for offenses at sea during the early 1820s when it equipped the Navy to suppress piracy in the West Indies.362 It declined to do so, concluding instead that it was “essentially due to the rights of all” to try pirates in ordinary federal courts according to the common law363—at the same time that Spanish colonial forces were trying and executing pirates by courts-martial.
Finally, perhaps Congress was constrained by the separation of powers provisions of the Constitution, not by the Fifth Amendment. After all, Article III provides that the trial of all crimes shall be by jury.364 It vests the admiralty jurisdiction in the federal courts.365 In light of these provisions, perhaps the Due Process Clause was redundant. In some ways, this is true. The Due Process Clause forbade the government from depriving rights except according to law. The Constitution was the law.
Had Congress enacted a law that purported to vest the power to adjudicate piracy in a non-Article III court, or to authorize a court to try piracy without a jury trial, the law would have been subject to the charge that it violated Article III.366 When the Executive, or the statutory tribunal, attempted to deprive a defendant of life, liberty, or property according to that law, the deprivation would have violated the Due Process Clause.
What the Clause added was the right to enforce the law, including the Constitution, in federal court. This would have included not only suits for damages but also the right to make motions and raise objections to any unlawful procedure by which the government attempted to deprive a party of life, liberty, or property. The totality of the historical evidence strongly suggests that Americans believed that the Due Process Clause, along with the separation of powers, applied to governmental deprivations of rights—
anywhere, and against anyone.
VI. DUE PROCESS ABROAD TODAY
This Part considers the implications of the foregoing history for the scope of due process abroad today. It briefly notes the challenges of doing so; argues that the history strongly supports extending due process to U.S.
law enforcement against anyone, anywhere in the world; and discusses the specific implications of the history for suits arising from cross-border shootings, officially-sponsored kidnappings and detentions, governmental deprivations of statutory immigration benefits, and criminal procedure.
362 See supra Section V.B.1.
363 See supra note 252 and accompanying text.
364 U.S.CONST. art. III, § 2.
365 Id.
366 See id.