The constitutionality of international courts: The forgotten precedent of slave-trade tribunals

University of Pennsylvania Law Review

Volumn 158, Issue 1, 2009, Pages 39-115

  Kontorovich, Eugene ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 73949085720     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (453)

1. 42 ANNALS OF CONG. app. at 3012 (1823) (letter from John Quincy Adams to Stratford Canning).
2. This Article uses the terms "courts" and "tribunals" interchangeably unless otherwise specified.
3. See Press Release, Am. Soc'y of Int'l Law, American Society for International Law Task Force Issues Recommendations on U.S. Policy Toward the International Criminal Court (Feb. 2, 2009), available at http://www.asil.org/pdfs/pressreleases/pr090202.pdf(recommending That The United States consider joining The ICC).
4. See, e.g., Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71, 93-99, 110-12 (2000) (exploring how "delegations to international organizations can ... create conflicts with The Constitution's basic structural requirements");
5. John O. McGinnis, Medellín and the Future of International Delegation, 118 YALE L.J. 1712, 1742-47 (2009) (discussing how The Treaty Clause "answers The [constitutional] complaints under... Article III" by creating The "capacity to enter into international federations and create international tribunals" that have "binding power under [U.S.] law").
6. See, e.g., AM. SOC'Y OF INT'L LAW, U.S. POLICY TOWARD THE INTERNATIONAL CRIMINAL COURT: FURTHERING POSITIVE ENGAGEMENT 41 (2009), available at http://www.asil.org/files/ ASIL-08-DiscPaper2.pdf (concluding That "these [constitutional] concerns do not present any insurmountable obstacles to joining the Court");
7. OUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 270 (2d ed. 1996) (stating That U.S. participation in the ICC "would not be constitutionally troublesome");
8. David Scheffer & Ashley Cox, The Constitutionality of the Rome Statute of the International Criminal Court, 98 J. CRIM. L. & CRIMINOLOGY 983, 1065-68 (2008) (concluding that ratification of the Rome Statute would be constitutional);
9. Ruth Wedgwood, The Constitution and the ICC (discussing the United States' past participation in international tribunals and concluding that "there is no forbidding constitutional obstacle to U.S. participation in [the ICC]"), in THE UNITED STATES AND THE INTERNATIONAL CRIMINAL COURT: NATIONAL SECURITY AND INTERNATIONAL LAW 119, 121-22 (Sarah B. Sewall & Carl Kaysen eds., 2000);
10. .See also Monroe Leigh, Editorial Comment, The United States and the Statute of Rome, 95 AM. J. INT'L L. 124, 131 (2001) (dismissing as "totally misplaced" the "criticism that under the ICC United States service personnel will be denied due process protections").
11. But See Lee A. Casey, The Case Against the International Criminal Court, 25 FORDHAM INT'L L.J. 840, 841-42 (2002) (arguing that ratification of the Rome Statute would not only be inconsistent with American democracy but also unconstitutional).
12. See, e.g., Matthew Mason, The Battle of the Slaveholding Liberators: Great Britain, the United States, and Slavery in the Early Nineteenth Century, 59 WM. & MARY Q. 665, 671 (2002) (describing how "American officials' refusal to cooperate with Britain [in the right of search for slave-trade suppression] opened them to the charge of being sympathetic to the African slave trade").
13. See Diary Entry of John Quincy Adams (June 4, 1817) (calling the proposal for mutual search and capture of slave-trading vessels a "barefaced and impudent attempt of the British to obtain in time of peace that right of searching and seizing the ships of other nations which they have so outrageously abused during war"), in 3 MEMOIRS OF JOHN QUINCY ADAMS 555, 557 (Charles Francis Adams ed., Philadelphia, J.B. Lippincott & Co. 1874) [hereinafter ADAMS MEMOIRS].
14. It is not, however, free of past prejudices. While repression of the slave trade, unlike domestic abolition, was broadly popular in America, cooperation with the British was not. See infra text accompanying notes 85-98. The Article will attempt to tease out the effects of these attitudes from the constitutional arguments.
15. See infra Part III.
16. See Scheffer & Cox, supra note 5, at 986 n.7 (noting that "[Constitutional issues were constandy considered").
17. See E-mail from David Scheffer to author (Sept 7, 2009) (on file with author) (affirming that while serving as negotiator of the Rome Treaty on behalf of the United States, Scheffer did "not... recall the issue of the slave trade courts being raised").
18. The sole exception is a few paragraphs in Lee A. Casey & David B. Rivkin, Jr., The Limits of Legitimacy: The Rome Statute's Unlawful Application to Non-State Parties, 44 VA. J. INT'L L. 63, 69-71 (2003). While the authors view the rejection of the British slavecourt proposal as a precedent against the ICC, however, they do not analyze the constitutional grounds for that rejection.
19. See id. Moreover, the authors' description of the proposal as concerning "only a civil jurisdiction," id., might obscure the actual basis for the United States' rejection.
20. See infra subsection V.A.2 (noting the agreement that international criminal courts would be unconstitutional).
21. For major works dealing with this period that neglect the episode, See DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF AMERICA, 1815-1848 (2007);
22. HOWARD JONES & DONALD A. RAKESTRAW, PROLOGUE TO MANIFEST DESTINY: ANGLO-AMERICAN RELATIONS IN THE 1840s, at 72-81 (1997);
23. BRADFORD PERKINS, CASTLEREAGH AND ADAMS: ENGLAND AND THE UNITED STATES, 1812-1823 (1964);
24. JAMES A. RAWLEY WITH STEPHEN D. BEHRENDT, THE TRANSATLANTIC SLAVE TRADE (rev. ed. 2005);
25. HUGH G. SOULSBY, THE RIGHT OF SEARCH AND THE SLAVE TRADE IN ANGLO-AMERICAN RELATIONS, 1814-1862, at 174-76 (1933). While these historians mention that the United States balked at the mixed commissions, they devote less than one page to the issue. None discusses the nature or merits of the constitutional objections.
26. See HENKIN, supra note 5, at 266-70 (citing U.S. participation in a variety of mixed tribunals as evidence of the constitutionality of joining the ICC but not mentioning the United States' rejection of the slave-court treaty);
27. Diane Marie Amann & M.N.S. Sellers, The United States of America and the International Criminal Court, 50 AM. J. COMP. L. (SUPP.) 381, 382-85 (2002) (reviewing U.S. involvement in the development of international criminal adjudication);
28. David Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and fudicial Authority, 55 STAN. L. REV. 1697, 1703-06 (2003) (tracing the pre-Founding Era precedents for modern international organizations);
29. Henry Paul Monaghan, Article III and Supranational Judicial Review, 107 COLUM. L. REV. 833, 851-52 (2007) ("So far as practice can settle meaning, [the Jay Treaty] establishes that the United States can enter international agreements creating state-state arbitration panels to resolve the private law claims of its nationals against foreign governments.");
30. Edward T. Swaine, The Constitutionality of International Delegations, 104 CO-
31. LUM. L. REV. 1492, 1532 (2004) (arguing that nondelegation objections "must confront the longstanding practice of employing international arbitral tribunals");
32. Wedgwood, supra note 5;
33. See also RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 50-51 (5th ed. Supp. 2008) (describing Monaghan's article as an "important contribution" whose "analysis rests largely on historical practice").
34. Golove, supra note 13, at 1746.
35. See Jenny S. Martinez, Antislavery Courts and the Dawn of International Human Rights Law, 117 YALE L.J. 550, 579-95 (2008) (describing the antislavery courts that resulted from bilateral treaties between Britain and other countries);
36. See also Edward Keene, A Case Study of the Construction of International Hierarchy: British Treaty-Making Against the Slave Trade in the Early Nineteenth Century, 61 INT'L ORG. 311, 312-15 (2007) (explaining the differences in the provisions of the treaties that Britain used to establish slave-trade tribunals with different nations).
37. Martinez, supra note 15, at 640.
38. See Id. at 603 (mentioning President James Monroe's constitutional objection in less than a sentence: "Monroe ... objected to the mixed courts as 'incompatible' with the Constitution ...."); See also Jenny S. Martinez, Slave Trade on Trial- Lessons of a Great Human-Rights Law Success, BOSTON REV., Sept.-Oct. 2007, at 12, 15 ("Concerns about both sovereignty and freedom of the seas prevented [the United States] from joining the mixed-courts regime ....").
39. See, e.g., Richard A. Posner, Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, 67 U. CHI. L. REV. 573, 579 (2000);
40. David J. Bederman, Foreign Office International Legal History 2-8 (Emory Univ. Sch. of Law Pub. Law & Legal Theory Research Paper Series, Research Paper No. 05-24, 2005), available at http://papers.ssrn.com/ sol3/papers.cfm?abstract-id=756886 (discussing the kind of legal historiography that makes for acceptable scholarship).
41. See supra notes 13-14.
42. These events are too far from the Framing to be direct originalist evidence. Legal historians sometimes treat the entire period up to 1815 as part of the Founding Era. See, e.g., Daniel Hulsebosch & David Golove, On an Equal Footing: ConstitutionMaking and the Law of Nations in the Early American Republic 50 (Mar. 15, 2008) (unpublished manuscript presented at the Alberico Gentili Conference, NYU), available at http://www.law.nyu. edu/search/ECM-DLV-016254 (referring to "the founding generation" as spanning "from 1776 to about 1815"). This Article's focus begins precisely where that period ends, with the Treaty of Ghent.
43. The entire negotiation was presided over by James Monroe, who was the last Revolutionary War veteran elected President and who had been a member of the Continental Congress and the Virginia Ratifying Convention. He personally approved Adams's constitutional arguments. See 2 DANIEL PRESTON, A COMPREHENSIVE CATALOGUE OF THE CORRESPONDENCE AND PAPERS OF JAMES MONROE 734, 856, 888 (2001) (listing Monroe's supervisory correspondence with Calhoun and Adams on the issue). Albert Gallatin, at the time Minister to France, advised the Administration on the treaty. He had been a member of the 1789 Pennsylvania Constitutional Convention, which considered the first proposed amendments to the Constitution, and was one of the leading diplomats of the Founding Era. See Biographical Directory of the U.S. Congress, Gallatin, Albert, http://bioguide.congress.gov/scripts/biodisplay.pl?index=G000020 (last visited Oct. 15, 2009). Charles Pinckney, also a Framer, sat in the House from 1818 to 1821. Biographical Directory of the U.S. Congress, Pinckney, Charles, http://bioguide. congress.gov/scripts/biodisplay http://congress.gov/scripts/ biodisplay.pl?index=P000354 (last visited Oct 15, 2009). Sitting in the Senate throughout the negotiations was Rufus King, one of the drafters of the Constitution. King had been ambassador to the Court of St. James and was involved with resolving the Jay Treaty controversies. He was also a leading advocate of the gradual abolition of the slave trade and was extremely active from 1817 to 1820 in opposing the introduction of slavery to new states.
44. Cf. 6 THE LIFE AND CORRESPONDENCE OF RUFUS KING 90-95 (Charles R. King ed., 1900) [hereinafter KING]. Nevertheless, he vehemently opposed the slave-trade convention because of the search issue.
45. See, e.g., PRESTON, supra, at 733 (noting a letter from King to James Monroe in which King voiced his opposition to the search proposal).
46. Adams was not simply the son of a distinguished Framer. Though he joined his father on diplomatic missions in the Revolutionary period, his participation in the political debates at the dawn of the Constitution led George Washington to appoint him as Minister to the Netherlands at the age of twenty-six and to other diplomatic posts in the 1790s. See PAUL C. NAGEL, JOHN QUINCY ADAMS: A PUBLIC LIFE, A PRIVATE LIFE 1213, 73-77 (1998). These were not protocol posts for a scion of a powerful family: Adams was one of only five American ministers to foreign countries.
47. See id. at 82 (explaining that there were only U.S. embassies in London, Paris, Lisbon, Madrid, and The Hague). Indeed, Adams was directly involved in negotiating the Jay Treaty. Id. at 85-86, 90.
48. See 252 U.S. 416, 433 (1920) ("It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could....").
49. U.S. CONST, art. III, § 1.
50. See James E. Pfander, Article I Tribunals, Article III Courts, and the fudicial Power of the United States, 118 HARV. L. REV. 643, 715-16 (2004).
51. Id.
52. See Id. at 749-54 (discussing the formation of territorial courts under Article I).
53. 26 U.S. (1 Pet.) 511 (1828).
54. Id. at 546.
55. Id.
56. The territorial-courts precedent was extended to the unincorporated territories in the Insular Cases. See, e.g., Dorr v. United States, 195 U.S. 138, 149 (1904) (holding that the right to a jury trial, afforded in the states, did not apply in the territory of the Philippines). Similarly, the precedent was applied to the District of Columbia in Palmorev. United States, 411 U.S. 389, 402-05, 410 (1973).
57. See Northwest Ordinance of 1787 §13, reprinted in 1 U.S.C. at LVI (2006).
58. 140 U.S. 453 (1891).
59. Id. at 480.
60. See id. at 463 ("The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments.").
61. Id. at 463-64.
62. See id. at 464.
63. Id. at 465.
64. The case's first and second points have since been overruled, and it is unlikely that consular courts would be found constitutional today. See Boumediene v. Bush, 128 S. Ct 2229, 2259 (2008) ("Even when the United States acts outside its borders, its powers are not absolute and unlimited but are subject to such restrictions as are expressed in the Constitution." (internal quotation marks omitted));
65. Reid v. Covert, 354 U.S. 1, 16 (1957) (plurality opinion) ("[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.").
66. See U.S. CONST, art. IV, §3, cl. 2 ("The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory ... belonging to 41 the United States---");
67. id. art I, § 8, cl. 14 ("[The Congress shall have Power] To make Rules for the Government and Regulation of the land and naval Forces ....");
68. id. art. I, § 8, cl. 17 ("[The Congress shall have Power] To exercise exclusive Legislation in all Cases whatsoever... over... the Seat of the Government....").
69. McGinnis, supra note 3, at 1726.
70. See DAVID P. CURRIE, FEDERAL JURISDICTION IN A NUTSHELL 53 (4th ed. 1999) ("Thus the Congress, in exercising the powers confided to it, may establish 'legislative' courts....").
71. 285 U.S. 22, 50 (1932).
72. See N. Pipeline Constr. Co. v. Marathon Pipe Une Co., 458 U.S. 50, 70 n.24 (1982) (plurality opinion) (noting that criminal prosecutions have always been treated as "private rights" cases).
73. See, e.g., MARTIN H. REDISH, THE FEDERAL COURTS IN THE POLITICAL ORDER: JUDICIAL JURISDICTION AND AMERICAN POLITICAL THEORY 93-94 (1991) (calling the goal of limiting judicial power to cases of private rights "absurd").
74. Cf. CrowelL 285 U.S. at 50; FALLON ET AL., supra note 13, at 49 (referring to Pfander's argument that non-Article III tribunals have historically had as their subject matter disputes that lie outside the jurisdiction of Article III courts).
75. See, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 853-57 (1986) (finding that the grant of jurisdiction over certain common law counterclaims to the non-Article III Commodity Futures Trading Commission did not violate the Constitution).
76. See Id. at 853-55.
77. See Northern Pipeline, 458 U.S. at 70-71.
78. Id. at 84-87.
79. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 61-64 (1989).
80. See Schor, 478 U.S. at 837, 857.
81. See Id. at 856.
82. See Id. at 853 (observing that the legal rulings of the administrative courts were still subject to de novo review by Article III courts);
83. Crowell v. Benson, 285 U.S. 22, 44 (1932) (noting that parties could Seek suspension of the legislative-court order by instituting proceedings in a federal district court).
84. U.S. CONST, art. III, § 1.
85. See William Wirt Blume & Elizabeth Gaspar Brown, Territorial Courts and Law: Unifying Factors in the Development of American Legal Institutions (pt. 1), 61 MICH. L. REV. 39, 75-78 (1962) (discussing appellate review of nineteenth-century territorial courts).
86. Similarly, the D.C. courts, though created by Congress, are not reviewable on local issues. See Palmore v. United States, 411 U.S. 389, 396, 407-10 (1973) (holding that the Supreme Court did not have jurisdiction to hear an appeal regarding a "strictly local crime").
87. See Act of May 8, 1792, ch. 42, § 4, 1 Stat 285, 286 (providing that one Supreme or Superior judge of the territories could hold court). This eliminated all direct review, but habeas may still have been a possibility in criminal cases.
88. See Clarke v. Bazadone, 5 U.S. (1 Cranch) 212, 212-14 (1803) (quashing an appeal from a Northwest Territory court on the ground that Congress had not authorized such jurisdiction, despite arguments by George Mason that the Supreme Court's status as "supreme" and the mandatory language of Article III, Section 2 regarding appellate jurisdiction gave the Court inherent authority to supervise and correct all other courts, independent of any act of Congress). Clarke was issued one week before Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), though it appears subsequently in the United States Reports.
89. See ANNE ASHMORE, LIBRARY, SUPREME COURT OF THE U.S., DATES OF SUPREME COURT DECISIONS: UNITED STATES REPORTS, VOLUMES 2-107, AUGUST TERM 1791-OCTOBER TERM 1882, at 4 (1997), available at http://www.supremecourtus.gov/datesofdecisions.pdf. Thus, depending on how well established one thinks judicial review was before Marbury, Clarke can be understood as implying that the Court must accept Congress's jurisdictional allocations even if they are unconstitutional. After Clarke, Congress did not exempt any territorial court from appeal.
90. See also Blume & Brown, supra note 56, at 78 (describing Congress's concern with the territorial-court appeal issue as focused on attaining uniform decisionmaking).
91. The case held that there was no statutory basis for issuing a writ of error to the territorial court. 5 U.S. (1 Cranch) at 214.
92. Perhaps such writs as those of habeas and mandamus, which had independent statutory and, in the case of habeas, constitutional, sources could still be issued. Cf. Pfander, supra note 25, at 724-27 (describing such common law writs as important to maintaining supervisory control over lower tribunals, including tribunals outside Article III).
93. Military courts have always been an exception. Even today, many criminal cases adjudicated by a court martial are not reviewable by any Article III court. See Bernie Becker, Military Appeal Process Is Challenged, N.Y. TIMES, Nov. 28, 2008, at A30 (describing a bill approved by the House but still pending in Congress that would allow Supreme Court review of all courts martial).
94. 492 U.S. 33, 64 (1989).
95. Dorr v. United States, 195 U.S. 138, 14-49 (1904).
96. Id.
97. Pfander, supra note 25, at 716-17.
98. Yet supporters of joining the ICC argue that these precedents show that even civilians can be tried for conduct that took place in the United States proper. See, e.g., Scheffer & Cox, supra note 5, at 1041-47.
99. See 252 U.S. 416, 433-35 (1920) (explaining that legislation implementing a treaty is not limited by Tenth Amendment concerns and need not be justified by a separate Article I power).
100. See Reid v. Covert, 354 U.S. 1, 16 (1957) (plurality opinion) ("[N]o agreement with a foreign nation can confer power on the Congress, or on any other branch ... which is free from the restraints of the Constitution.");
101. See also Boos v. Barry, 485 U.S. 312, 324 (1988) (noting that rules of international law do not trump the Bill of Rights);
102. Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 412 (1998) (arguing that there is no indication that the Framers intended to exempt the treaty power from the general proposition that the powers delegated to the national government are limited and few).
103. The debate goes back to the Founding Era. See John T. Parry, Congress, the Supremacy Clause, and the Implementation of Treaties, 32 FORDHAM INT'L L.J. 1209, 1211-12 (2009) (stating that there was "a lack of consensus [and] also considerable confusion about how the treaty power, legislative powers, and supremacy clause would interact under the new Constitution"). There are also notable recent contributions. Compare Bradley, supra note 68, at 394-95 (arguing that the treaty power should not be construed so as to negate federalism), and Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867 (2005) (contending that Missouri v. Holland was wrongly decided), with David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075, 1079 (2000) (maintaining that Missouri v. Holland was correctly decided), and David Sloss, International Agreements and the Political Safeguards of Federalism, 55 STAN. L. REV. 1963, 1975-88 (2003) (positing that federalism limitations need not be imposed on the treaty power).
104. Treaty of Amity, Commerce, and Navigation, U.S.-Gr. Brit, Nov. 19, 1794, 8 Stat 116 [hereinafter Jay Treaty].
105. These tribunals have always had narrow purviews. For example, the Iran-United States Claims Tribunal, created in 1981 and based in The Hague, has purely retrospective jurisdiction over contract and property claims by U.S. nationals against Iran and its entities. See Dames & Moore v. Regan, 453 U.S. 654, 664-66 (1981) (describing the creation of the Claims Tribunal).
106. The commission established by Article VI of the Jay Treaty is certainly a very discouraging precedent. It had only one ignoble session, in which it decided nothing. The American commissioners were disappointed that the tie-breaking moderator, chosen by lot in case of a deadlock, was British. The Americans withdrew from the proceedings, defeating a quorum. See SAMUEL FLAGG BEMIS, JAY'S TREATY: A STUDY IN COMMERCE AND DIPLOMACY app. V, at 318 ( 1923).
107. This presages the "greater includes the lesser" reasoning employed in In re Ross. See supra notes 33-39 and accompanying text.
108. The United States signed the Rome Statute of the International Criminal Court, but neither the Clinton nor the Bush Administration pursued ratification. In fact, President George W. Bush removed the United States' signature from the treaty, provoking an outpouring of criticism from international lawyers in Europe and America. See David Tolbert, International Criminal Law: Past and Future, 30 U. PA. J. INT'L L. 1281, 1289 (2009).
109. Constitutional challenges to NAFTA tribunals remain unresolved. See, e.g., Coal, for Fair Lumber Imps., Executive Comm. v. United States, 471 F.3d 1329, 1332-33 (D.C. Cir. 2006) (per curiam) (ruling that a U.S.-Canadian settlement agreement precluded review of a panel ruling);
110. Am. Coal, for Competitive Trade v. Clinton, 128 F.3d 761, 764-65 (D.C. Cir. 1997) (dismissing a suit for lack of standing where the petitioner "failed to establish the requisite causal connection between its alleged injury and the binational panel system").
111. See Martinez, supra note 15, at 552-53 ("Between 1817 and 1871, bilateral treaties between Britain and several other countries ... led to the establishment of international courts for the suppression of the slave trade....[They] involved as many as one out of every five or six ships involved in the transatlantic slave trade." (footnote omitted)).
112. See Id. at 579, 603-04 (explaining that President Monroe rejected international courts as disallowed by the Constitution).
113. See Id. at 582.
114. See Leslie Betthell, The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century, 7 J. AFR. HIST. 79, 82-83 (1966) (describing Lord Palmerston's policy of expanding the anti-slave-trade treaty network and describing its success with every nation except the United States and France);
115. See also THE FOREIGN SLAVE TRADE: A BRIEF ACCOUNT OF ITS STATE, OF THE TREATIES WHICH HAVE BEEN ENTERED INTO, AND OF THE LAWS ENACTED FOR ITS SUPPRESSION, FROM THE DATE OF THE ENGLISH ABOLITION ACT TO THE PRESENT TIME 20 (London, John Hatchard & Son et al. 1837) (bemoaning, with some exaggeration, the U.S. rejection "[y]ear after year" of "advances made by this country for a treaty for affording mutual facilities").
116. Additionally, Adams's son, Charles Francis Adams, would later be the American envoy to the Court of St. James, when, under the pressure of the Civil War, the United States ultimately acceded to such a treaty. See infra Part IV (describing the circumstances surrounding the United States' accession).
117. See HOWE, supra note 12, at 245 (describing Adams's devotion to selfimprovement by setting aside time every day for diary writing).
118. See id. at 244-45.
119. See id. at 512, 514.
120. See id. at 521-22.
121. See id. at 53.
122. See id. at 51-52.
123. For example, the New England Anti-Slavery Society first met in 1833, and the American Anti-Slavery Society, the most prominent American abolitionist group, formed over the next few years. Id. at 426.
124. See Id. at 254.
125. See U.S. CONST, art. I, § 9, cl. 1 ("The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight....");
126. Act of Mar. 2, 1807, ch. 22, 2 Stat. 426 (prohibiting the importation of people of color as slaves after January 1, 1808).
127. See Act of May 15, 1820, ch. 113, §§ 4-5, 3 Stat. 600, 600-01; See also infra Section II.D.
128. §§ 4-5, 3 Stat. at 600-01.
129. See Bethell, supra note 79, at 79.
130. See id.
131. See Martinez, supra note 15, at 574.
132. See id. at 574-75.
133. See Diary Entry of John Quincy Adams (Dec. 10, 1814) (stating that, under the proposed treaty, slave trading "should be assimilated to piracy and it should be agreed to punish the offenders as pirates"), in ADAMS MEMOIRS, supra note 7, at 93, 96-97.
134. See id. ("[T]he [c]ourts of justice should be open in each of the two countries to the subjects and citizens of the other.").
135. See id. at 97-98 (noting that Bayard, Adams, and Clay opposed the idea).
136. Id. at 97.
137. Id.
138. Diary Entry of John Quincy Adams (Dec. 23, 1816), in ADAMS MEMOIRS, supra note 7, at 452, 454-55.
139. See RICHARD RUSH, MEMORANDA OF A RESIDENCE AT THE COURT OF LONDON 32-36 (Philadelphia, Lea & Blanchard 1845) (describing and reprinting Casdereagh's letter to Rush inviting the United States to join the treaty).
140. See id. at 39.
141. See Diary Entry of John Quincy Adams (Oct. 30, 1818) ("The opinion was unanimous that this proposal ought not to be acceded to."), in 4 MEMOIRS OF JOHN QUINCY ADAMS 148, 151 (Charles Francis Adams ed., Philadelphia, J.B. Lippincott & Co. 1875) [hereinafter ADAMS MEMOIRS].
142. For a thorough examination of the Cabinet's precise constitutional objections, see infra Part III.
143. Wirt was the longest-serving and most influential Attorney General in the nation's history-serving for twelve years. Through his prolific use of opinion letters, he defined the office's paramount role in setting a consistent legal policy for an administration. See generally Henry M. Dowling, William Wirt, 10 GREEN BAG 453 (1898) (profiling Wirt);
144. H. Jefferson Powell, William Wirt & the Invention of the Public Lawyer, 4 GREEN BAG 2D 297 (2001) (discussing Wirt's aspirations and impact on legal policy).
145. Diary Entry of John Quincy Adams, supra note 104.
146. See infra notes 165-72 and accompanying text
147. See Letter from John Quincy Adams to Albert Gallatin and Richard Rush (Nov. 2, 1818),
148. as reprinted in 5 AMERICAN STATE PAPERS: FOREIGN RELATIONS 72, 72-73 (Asbury Dickins &James C. Allen eds., Washington, D. C., Gales & Seaton 1858)
149. [hereinafter AMERICAN STATE PAPERS] .
150. See RUSH, supra note 102, at 215 ("I adverted to what Liverpool said[,] ... that as the signatures of European Sovereigns to the Holy Alliance were all by their own hands, England could not join in it, as the Prince Regent was restrained, by the fundamental doctrine of the British constitution.").
151. Letter from Richard Rush to John Quincy Adams (Nov. 10, 1819),
152. as reprinted in AMERICAN STATE PAPERS, supra note 109, at 74, 75.
153. Proclamation of President James Monroe (Jan. 26, 1823), in AMERICAN STATE PAPERS, supra note 109, at 214, 214-15.
154. See Diary Entry of John Quincy Adams (Apr. 14, 1819) (recounting a meeting with the British ambassador, Mr. Bagot, during which Adams referred to the nonimpeachability of the judges as a constitutional objection), in ADAMS MEMOIRS, supra note 104, at 333, 335;
155. Diary Entry of John Quincy Adams (Oct 2, 1820) (describing a two-hour conversation with Canning), in 5 ADAMS MEMOIRS, supra note 104, at 181, 181-82;
156. Diary Entry of John Quincy Adams (Oct 20, 1820) (recording a three-hour discussion), in 5 ADAMS MEMOIRS, supra note 104, at 189, 189;
157. Diary Entry of John Quincy Adams (Oct 26, 1820) (describing a two-hour discussion), in 5 ADAMS MEMOIRS, supra note 104, at 191-93;
158. Diary Entry of John Quincy Adams (Dec. 18, 1820) (recounting another long meeting), in 5 ADAMS MEMOIRS, supra note 104, at 212, 214. Each of these conversations dealt extensively with the constitutional issues.
159. See Diary Entry of John Quincy Adams (Oct 2, 1820), supra note 113, at 182, 184. To this, Adams replied that broad European participation only strengthened his desire to stay out of the treaties, as the United States did not want to become entangled in the arrangements of a federative Europe.
160. Id. at 182.
161. Id. at 183.
162. Letter from John Quincy Adams to Stratford Canning (Dec. 30, 1820), in AMERICAN STATE PAPERS, supra note 109, at 76, 76.
163. See Diary Entry of John Quincy Adams (Oct. 26, 1820), supra note 113, at 192-93 ("I told him that it was not my wish to debate the point. We had more than once exhausted the argument with his Government....").
164. Cf. Diary Entry of John Quincy Adams (Dec. 18, 1820) (describing Canning's urgings to Adams to have the President reconsider the proposal), supra note 113, at 214.
165. Diary Entry of John Quincy Adams (Dec. 23, 1820), in 5 ADAMS MEMOIRS, supra note 104, at 216. The Cabinet met yet again one week later to approve the text of Adams's memorandum to Canning on the subject; again, there was consensus that the courts were unconstitutional.
166. See Diary Entry of John Quincy Adams (Dec. 30, 1820) ("[M]y draft of an answer to Mr. Canning ... was approved, with the suggestion of some slight alterations ... to soften the harshness of refusal."), in 5 ADAMS MEMOIRS, supra note 104, at 222, 222.
167. Only Secretary of the Navy Smith Thompson favored the search provision. Thompson had previously been Chief Justice of the New York Supreme Court He thought the search for slavers was a specific enough question that it would not serve as precedent for impressment but that "by declining [the search provision] we shall expose ourselves to the imputation of insincerity as to our purpose of suppressing the trade," which would "discredit us with the rest of Europe." Diary Entry of John Quincy Adams (Dec. 23, 1820), supra note 119, at 217.
168. Nonetheless, Thompson Thought that any slavers caught by British cruisers would have to be "tried by our own Courts." Id. Soon after, Thompson was appointed to the U.S. Supreme Court where he served twenty years.
169. id.
170. See infra subsection III A. 2, Section III.B.
171. Diary Entry of John Quincy Adams (Dec. 23, 1820), supra note 119, at 216;
172. see also Letter from Albert Gallatin to James Monroe (Feb. 4, 1822) ("The total suppression of that traffic has become such a popular topic in England that the Ministers are compelled to follow the stream, and to use everywhere every possible endeavor to ob-tain from other nations their assent to some measure tending to produce the desired effect"), in 2 THE WRITINGS OF ALBERT GALLATIN 231, 232 (Henry Adams ed., Philadelphia, J. B. Lippincott & Co. 1879).
173. See Letter from Albert Gallatin to James Monroe, supra note 123, at 232 ("[I]t would not be impossible to obtain, in consideration [of a modified slave-trade treaty], some favorable adjustment of other concerns.").
174. See id. at 233 (describing as "worthy of consideration" the possibility of agreeing to the treaty in exchange for concessions in the West Indies).
175. Id.
176. See, e.g., Letter from Thomas Jefferson to James Madison (Nov. 15, 1823) (listing the agenda for negotiations with the British as including, according to Rush, suppression of the slave trade and the northern boundary), in 12 THE WORKS OF THOMAS JEFFERSON 325, 325 & n. 1 (Paul Leicester Ford ed., 1905).
177. See Holger Lutz Kern, Strategies of Legal Change: Great Britain, International Law, and the Abolition of the Transatlantic Slave Trade, 6J. HIST. INT'L L. 233, 242-43 (2004).
178. See Treaty to Settle and Define the Boundaries Between the Territories of the United States and the Possessions of Her Brittanic Majesty in North America; for the Final Suppression of the African Slave Trade; and for the Giving Up of Criminals, Fugitive from Justice, in Certain Cases, U.S.-Gr. Brit, arts. I-III, VIII, Aug. 9, 1842, 8 Stat 572.
179. Canning offered to have one of the two tribunals sit in the United States-which would partially answer the objection to extraterritorial courts - and to make the U.S. commissioners impeachable by Congress. Diary Entry of John Quincy Adams (Oct 2, 1820), supra note 113, at 182;
180. Diary Entry of John Quincy Adams (Oct 20, 1920), supra note 113, at 190.
181. Diary Entry of John Quincy Adams (Oct. 2, 1820), supra note 113, at 182.
182. See supra text accompanying note 90.
183. See, e.g., Diary Entry of John Quincy Adams (Jan. 9, 1821) (explaining how the House reviewed the full diplomatic correspondence on a slave-trade treaty), in 5 ADAMS MEMOIRS, supra note 104, at 231, 232-33.
184. This can be inferred from the treatment of the 1824 search treaty, which was ratified by the Senate, albeit with reservations, and promoted by several resolutions in the House.
185. ANNALS OF CONG. 1064 (1821).
186. See id. at 1069 ("The proposal itself... is a total abandonment, on the part of England, of any claim to visit and search vessels in a time of peace. . . ").
187. See id. at 1070 ("[T]he reciprocal right ... is reduced to the simple inquiry whether, in practice, it will be beneficial to the two contracting nations.").
188. See id. at 1068 (citing a letter from the Secretary of State expressing doubt that the U.S. government had the constitutional right to establish a court with foreign judges unaccountable to the U.S. appeals process and unable to be impeached).
189. See id. at 1070 ("[A]n arrangement perhaps could be effected so ... vessels and slaves delivered to the jurisdiction of the United States might be disposed of in conformity with the provisions of our own act. . . .").
190. There was little other discussion of the constitutional issue. In one House debate, Representative Wright urged the Administration to take action in entering a slave-trade treaty, opining that "if it shall be found that [the treaty provisions] cannot be exercised under our Constitution, ... it may be so altered as to leave no impediment to so desirable an object" 40 ANNALS OF CONG. 332 (1822).
191. ANNALS OF CONG. 1537 (1822).
192. See 40 ANNALS OF CONG. 1151-55 (1823) (approving the resolution by a vote of 131 to 9). After the failure of this round of negotiations, the House passed yet another resolution, to the same effect, in 1831.
193. See 7 REG. DEB. 850 (1831) (passing, by a vote of 118 to 32, a resolution "requesting the President] to renew and to prosecute from time to time such negotiations with the several maritime Powers of Europe and America ... for the effectual abolition of the African slave trade, and its ultimate denunciation, as piracy... by the consent of the civilized world").
194. Certainly some members felt that agreeing to the right of search itself went too far. Representative Forsyth of Georgia, one of the nine members who voted against the 1821 and 1822 resolutions, argued that [committee] reports ... are nothing, until acted upon by the House, but the opinions of so many members of the House, who approve them.... [A]t this session, a correspondence had been laid before this House which had taken place between this Government and the British Government, in which an argument was founded on certain expressions in a report of a committee of this House.... I protest against the opinion of a committee of this House being taken as an expression of the will of the House, unless first sanctioned by a vote of the House.... I for one, ... believe the Senate acted right in refusing their assent to parts of that convention .... IREG. DEB. 626(1825).
195. Compare 40 ANNALS OF CONG. 1153 (1823) (statement of Rep. Wright) (advocating a "qualified right of search" by the British),
196. with 40 ANNALS OF CONG. 332 (1822) (statement of Rep. Wright) (expressing hope that if the British proposal "cannot be exercised under our Constitution, ... it may be so altered so as to leave no impediment to so desirable an object").
197. See 42 ANNALS OF CONG. app. at 3003 (1823) (letter from Stratford Canning to John Quincy Adams) (stating that "His Majesty's Ministers are still unwilling to despair of finding the United States at length prepared" to join "the system of concert" previously proposed).
198. Diary Entry of John Quincy Adams (June 29, 1822), in 6 ADAMS MEMOIRS, supra note 104, at 35, 35-36.
199. See Diary Entry of John Quincy Adams (June 20, 1823) (describing "views unfriendly to [the] Administration, and personally so to [Adams,]" coming from members of Congress), in 6 ADAMS MEMOIRS, supra note 104, at 149, 150;
200. Diary Entry of John Quincy Adams (June 19, 1823) (reporting how Adams argued before the Cabinet that the Administration should "carry into effect the resolution of the House of Representatives recommending negotiation to obtain the recognition of the slave-trade to be piracy by the law of nations"), in 6 ADAMS MEMOIRS, supra note 104, at 148, 148. It is not clear why Adams felt so constrained by the nonbinding resolution of the House in an area of Executive supremacy. In any event, he was certainly amply rewarded for his solicitude of the people's representatives when they elected him President in 1825.
201. See 42 ANNALS OF CONG. app. at 3006-10 (1823).
202. See COMM. ON THE SUPPRESSION OF THE SLAVE TRADE, 17TH CONG., REPORT OF THE COMMITTEE ON THE SUPPRESSION OF THE SLAVE TRADE 3 (1822), available at http://digital. library.cornell.edu/cgi/t/text/text-idx?c=mayantislavery;idno=28893027 (follow "View Pamphlet or Book" hyperlink) (noting that the constitutional "objections apply ... to a particular proposition" that includes use of mixed courts rather than to the modified proposal that would use "existing courts, of competent jurisdiction, in the United States").
203. See Letter from Albert Gallatin to John Quincy Adams (Jan. 18, 1823), in THE WRITINGS OF ALBERT GALLATIN, supra note 123, at 264, 265 (suggesting that the right of search, with rendition of detained vessels to the home country, would be an acceptable alternative to the constitutionally problematic mixed-court proposal).
204. 42 ANNALS OF CONG. app. at 3005 (1823).
205. See Memorandum from Rufus King (May 23, 1824), in KING, supra note 21, at 572-73 (describing Adams's initial hesitation in agreeing to search on the high seas). He had insisted, as a condition of signing a search treaty, that Britain enact legislation mirroring America's 1820 act, declaring the slave trade to be piratical.
206. See Diary Entry of John Quincy Adams (June 19, 1823), supra note 147, at 14&49. This ensured that any search exercised by Britain would not establish a general right of search on the high seas but rather would be incident to the established right to search for pirates.
207. See AMERICAN STATE PAPERS, supra note 109, at 361-62 (recording the Senate vote on ratification of the 1824 treaty).
208. See Letter from George Canning to Richard Rush (Aug. 27, 1824) (noting British disapproval of the amended treaty), in AMERICAN STATE PAPERS, supra note 109, at 364.
209. See Letter from Rufus King to Charles King (May 22, 1824) ("The Senate has advised the Ratification of the Convention with Great Britain for the suppression of the Slave Trade upon conditions that will defeat the same; in other words they have rejected it"), in KING, supra note 21, at 571.
210. See 2 REG. DEB. app. at 38 (1826) (noting the rejection of the Colombian Convention, even though "the coasts of America were excepted from its operation");
211. W. STULL HOLT, TREATIES DEFEATED BY THE SENATE: A STUDY OF THE STRUGGLE BETWEEN PRESIDENT AND SENATE OVER THE CONDUCT OF FOREIGN RELATIONS 50-51 (1933) (discussing the politics of the Colombian treaty rejection and noting that it was the first treaty entirely rejected by the Senate).
212. See 2 REG. DEB. app. at 39 (1826) (letter from Henry Clay to Henry Addington) ("[I]t would seem to be unnecessary and inexpedient any longer to continue the negotiation respecting the Slave Convention ....").
213. See Charles Sumner, Final Suppression of the Slave Trade, Speech in the Senate on the Treaty with Great Britain (Apr. 24, 1862) ("Not disheartened by failure with the United States, Great Britain pursued her honorable policy, enlisting Government after Government. . . ."), in 6 THE WORKS OF CHARLES SUMNER 474, 481 (Boston, Lee & Shepard 1872) [hereinafter SUMNER];
214. Martinez, supra note 15, at 595 (listing treaties with Brazil, Chile, the Argentine Confederation, Uruguay, Bolivia, and Ecuador).
215. See DANIEL WEBSTER, THE DIPLOMATIC AND OFFICIAL PAPERS OF DANIEL WEBSTER, at xix (New York, Harper & Bros. 1848) ("Attempts were made on the part of England, during the ministry of Lord Melbourne, to renew the negotiation with the United States, but without success.").
216. Certainly there was still strong support in the House for such arrangements. In 1831, Colonel Mercer offered, and the House passed by an overwhelming vote, yet another resolution calling on the President "to renew and to prosecute ... negotiations with the several maritime Powers ... for the effectual abolition of the African slave trade, and its ultimate denunciation, as piracy, under the law of nations." 7 REG. DEB. 850 (1831).
217. See, e.g, 38 HOUSE J. 485, 486 (1843) (message of President John Tyler) (denouncing British efforts to search U.S. ships suspected of slave trading as an "arbitrary and ever-varying system of maritime police");
218. SEN. J. app. 689, 693 (1842) (message of President John Tyler) ("The examination or visitation of the merchant vessels of one nation, by the cruisers of another, for any purpose [with certain exceptions] ... may lead to dangerous results.... Interference with a merchant vessel by an armed cruiser, is always a delicate proceeding, apt to touch the point of national honor, as well as to affect the interests of individuals.").
219. See generally HENRY WHEATON, ENQUIRY INTO THE VALIDITY OF THE BRITISH CLAIM TO A RIGHT OF VISITATION AND SEARCH OF AMERICAN VESSELS SUSPECTED TO BE ENGAGED IN THE AFRICAN SLAVE-TRADE 148-51 (Philadelphia, Lea & Blanchard 1842) (arguing strongly against the British right of search on international law and policy grounds, while surveying the history of the negotiations regarding the suppression of the slave trade, including the mixedcommissions episode).
220. See 33 SEN. J. app. 689, 693 (1842) (message of President John Tyler) (mentioning treaties between Britain and other nations that audiorized each to "seize, and bring in for adjudication, vessels found engaged in the slave-trade" as part of the background to U.S. efforts to refrain from any such commitments). When the rejection of the commissions was recalled, it was treated as a settled question. Cf. United States v. Watkins, 28 F. Cas. 419, 462 (C.C.D.C. 1829) (No. 16, 649) (Thruston, J., dissenting) ("The negotiation with Great Britain, respecting the suppression of the slave trade, failed upon the ground that the United States could not give power to the courts of another nation to punish the violation of the laws of the United States.").
221. Ironically, John Quincy Adams had been one of the few to argue that the arrangement for territorial judges was unconstitutional. See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829, at 113 n. 195 (2001).
222. See Diary Entry of John Quincy Adams, supra note 104, at 152. The idea was raised as part of the Adams-Onis Treaty, which granted Florida to America. The Cabinet ultimately favored all-American commissioners, though apparendy not for constitutional reasons. The constitutionality of the commission's judicial role was upheld in Comegys v. Vasse, 26 U.S. (1 Pet.) 193 (1828).
223. See id. at 212-13 ("The object of the treaty was to invest the commissioners with full power and authority to ... decide upon the amount and validity of the asserted claims upon Spain, for damages and injuries.... [T] he award of the commissioners ... presents no bar to the action. . . .").
224. Adams in his diaries does not suggest hypocrisy.
225. This is at least the impression given by the condensed record of the meeting in Adams's diaries.
226. See Diary Entry of John Quincy Adams, supra note 104, at 151.
227. See U.S. CONST, art. I, §2, cl. 2 (requiring citizenship for election to the U.S. House of Representatives);
228. id. §3, cl. 3 (requiring the same for the U.S. Senate);
229. id. art II, §1, cl. 5 (requiring natural-born citizenship for the presidency).
230. See Diary Entry of John Quincy Adams, supra note 104, at 151.
231. Adams made this point by recalling the "Courts of Admiralty which it has been proposed to establish at Naples if we could have obtained consent of that Government" Id
232. Id. Wirt was probably referring to the foreign commissioners, not the American ones; the latter could probably have been removed by Congress like other appointed officials under the general impeachment provision.
233. See U.S. CONST, art. II, § 4 (providing that "all civil officers of the United States" can be removed for certain kinds of wrongdoing);
234. see also CURRIE, supra note 162, at 113 n.192 (noting that Congress assumed that territorial officers and judges could be impeached). Their impeachability would depend on their being U.S. officials seconded to a foreign agency rather than on their being officers of a non-U.S. institution who happened to have been selected by Washington. Some might argue that nonimpeachability would demonstrate that the official was not an officer of the United States and thus eliminate any separation of powers concerns. Yet this tack would make international delegations constitutionally even easier than domestic ones. In regard to the slave court the assumption seems to have been that U.S. commissioners remained removable officers of the United States. A modern case involving the U.S.-Canada Boundary Commission opined in dicta that treaties could not limit presidential removal power to the same extent statutes could.
235. See Leu v. Int' I Boundary Comm'n, 523 F. Supp. 2d 1199, 1207-08, 1211-12 (W.D. Wash. 2007) (holding that while the International Boundary Commission was supposed to function as an independent agency, its constitutive treaty did not limit presidential removal power over the U.S. commissioner). It would be much harder to say that treaties could insulate an official from impeachment or removal in ways that would, in a domestic setting, violate the separation of powers.
236. Diary Entry of John Quincy Adams, supra note 104, at 151. Adams appears to have anticipated the view, associated with Missouri v. Holland, that Congress can, pursuant to a valid treaty, do what would otherwise exceed its enumerated powers.
237. Two years later, the British ambassador futilely invoked the Jay Treaty precedent to Adams, who by then was set on the proposal's unconstitutionality. See Diary Entry of John Quincy Adams (Oct 20, 1820), supra note 113, at 190 (recounting Canning's plea to the "precedent [of] the Commissions to which we had agreed by Treaty to submit questions of property and territorial rights").
238. If Adams disagreed with the Monroe Administration's position on the mixed courts, he could in theory have reversed it when he succeeded as President. In practice, this would not have been a likely course, and his failure to revive the question as President means little. Adams was not enthusiastic about the right of search in the first place, the Senate was hostile to it and Adams's close election by the House of Representatives left him with little political capital. There would have been little reason to revisit the unpopular issue. Moreover, the Senate's rejection of the modified search treaty in 1824 cast a pall on subsequent negotiations during Adams's Administration. See Letter from John Quincy Adams to Albert Gallatin (Dec. 12, 1827) (writing that Canning "had been laying up a stock of resentments, for which he was hoping to expose us to public and open humiliation" because of the "disappointment of the slavetrade convention"), in THE WRITINGS OF ALBERT GALLATIN, supra note 123, at 398.
239. Adams's positions would later be fully endorsed by the Cabinet. See Diary Entry of John Quincy Adams (Dec. 23, 1820), supra note 119, at 217.
240. See Diary Entry of John Quincy Adams (Oct. 26, 1820), supra note 123, at 192 ("I had told [Canning] there was one certain Constitutional difficulty which we saw no way of getting over. This of itself was decisive for the present I had not thought it necessary to mention that there was another, which might prove no less embarrassing.").
241. WHEATON, supra note 160, at 79.
242. See 42 ANNALS OF CONG. app. at 3011 (1823) (letter from John Quincy Adams to Stratford Canning) (objecting that the commissions would be "under no subordination to the ordinary judicial tribunals of the country");
243. Letter from John Quincy Adams to Albert Gallatin and Richard Rush, supra note 109, at 73 (noting that the tribunal would be unacceptable because it would "decid[e] upon the statutes of the United States without appeal"). This point may have been made in the Cabinet debate but was not recorded by Adams in his diary.
244. U.S. CONST, art. I, § 8, cl. 9.
245. Id. art. III, § 1.
246. It is not clear what it means for a court to be "inferior." Professor James Pfander has argued powerfully that it means there must be the possibility of direct or habeas review. See James E. Pfander, Essay, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 NW. U. L. REV. 191, 212-14 (2007). One might instead argue that inferiority means the Supreme Court's precedents are binding rather than persuasive authority for all lower courts.
247. See id. at 214. The mixed commissions were not inferior in either of these senses.
248. Indeed, Adams might have elaborated on his argument by noting that writs of habeas corpus would presumably not run to the slave-trade courts; this would eliminate any avenue for Supreme Court review and possibly constitute a suspension of the writ.
249. See supra subsection I. A. 3.
250. Letter from John Quincy Adams to Stratford Canning, supra note 116.
251. See U.S. CONST, amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, [except in the wartime armed forces] ....");
252. id. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury ...." (emphasis added)). Significandy, applicability of these amendments is not limited to any particular federal tribunal but depends instead on the defendant being held and prosecuted by the government.
253. See Diary Entry of John Quincy Adams (Oct. 26, 1820) ("Mr. Canning called.... He brought with him a long written paper, containing what he had understood as the substance of our former conversations [on the slave trade], which he ... wished to read to me ...."), supra note 113, at 191-92.
254. Id. at 192. Adams did not make clear if he was referring to the requirement of a grand jury or to the broader "due process" provision. However, his reference to an "express" prohibition suggests the former.
255. See, e.g., 42 ANNALS OF CONG. app. at 3029 (1823) ("[W] hen the crime and the punishment are aggravated to involve the life of the accused, it affords but a more imperative inducement for securing to him the benefit of a trial by his countrymen and his peers."). The slave trade had been made a capital offense in the United States in 1820, though no other nation had attached such severe penalties to this crime.
256. See DON E. FEHRENBACHER, THE SLAVEHOLDING REPUBLIC: AN ACCOUNT OF THE UNITED STATES GOVERNMENT'S RELATIONS TO SLAVERY 151-52 (Ward M. McAfee ed., 2001). The U.S. law was particularly severe because it applied to all crew members and owners, regardless of the extent of their role in the slave-trading expedition.
257. Slave vessels were often captured on their outward voyage, when they did not yet have slaves on board. Convictions in such cases were based on circumstantial evidence involving the equipment on board. Juries, especially in Southem states, were often reluctant to convict in such cases. See Diary Entry of John Quincy Adams (May 8, 1840) ("I suppose it as impossible to commit a slave-trader at Baltimore as in the island of Cuba. . . . "), in 10 MEMOIRS OF JOHN QUINCY ADAMS 283, 284 (Charles Francis Adams ed., Philadelphia, J. B. Lippincott & Co. 1876). This reluctance was greatly reinforced by the severe punishment under the 1820 Act of Congress.
258. See FEHRENBACHER, supra note 187, at 152, 199-200 (explaining that although the Act imposed the death penalty for slave trading, only one person was ever executed under the Act, and not until 1862).
259. See supra note 68 and accompanying text.
260. See McGinnis, supra note 4, at 1746 ("[T] he treaty power dissolves structural constitutional impediments to international delegation ....").
261. See Antonin Scalia, Foreword: The Importance of Structure in Constitutional Interpretation, 83 NOTRE DAME L. REV. 1417, 1418 (2008) (arguing that the structural provisions of the Constitution were designed to protect individual liberty).
262. Compare U.S. CONST, art. III, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeachment shall be by Jury ...."), with id. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury....").
263. This view comports with current jurisprudence on non-Article III courts, which allows them to the extent they are not an end run around the civil jury-trial right See, e.g., Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 61-65 (1989) (noting that non-Article III courts may be allowed but that the Seventh Amendment right to a jury trial may not be eliminated "merely by relabeling the cause of action to which it attaches and placing exclusive jurisdiction" in a non-Article III court).
264. See id. at 62-63 ("[The] claim that juries may serve usefully as checks only on the decisions of judges who enjoy life tenure overlooks the extent to which judges who are appointed for fixed terms may be beholden to Congress or Executive Officials, and thus ignores the potential for juries to exercise beneficial restraint on their decisions." (citation omitted)).
265. This is the practice in bankruptcy courts, though it requires the parties' consent See 28 U.S.C. §157(e) (2006) ("If the right to a jury trial applies in a proceeding that may be heard under this section by a bankruptcy judge, the bankruptcy judge may conduct the jury trial if specially designated to exercise such jurisdiction by the district court and with the express consent of all the parties.").
266. This may help explain why the mixed tribunals were objectionable but the use of mixed commissions to settle civil claims between nationals of the United States and other countries was not.
267. Adams spoke of the proposal as giving Britain power over "offenders and offence[s]" aboard U.S. vessels, and of the mixed commission having "power over the persons ... and reputation of the citizens of this country." Letter from John Quincy Adams to Stratford Canning, supra note 116.
268. When the House committee wrote in support of the ultimately failed search treaty, it noted that this arrangement represented a modification of the original British proposal in that it "contemplate[d] the trial and condemnation of such American citizens as may be found engaged in this forbidden trade, not by mixed tribunals sitting in a foreign country, but by existing courts, of competent jurisdiction, in the United States." COMM. ON THE SUPPRESSION OF THE SLAVE TRADE, supra note 149, at 3. Similarly, the French, who also rejected the British proposals, clearly understood that they only contemplated jurisdiction over the vessel yet referred to them as "mixed commissions, charged with pronouncing upon the culpability of the individuals."
269. Memoir of the French Government on the Slave Trade, in COMM. ON THE SUPPRESSION OF THE SLAVE TRADE, supra note 149, at 74, 79.
270. Letter from John Quincy Adams to Stratford Canning, supra note 116.
271. Id.
272. Letter from Albert Gallatin to John Quincy Adams (Feb. 2, 1822), in THE WRITINGS OF ALBERT GALLATIN, supra note 123, at 229, 230 (emphasis added).
273. 42 ANNALS OF CONG. app. at 3029 (1823) (letter from John Quincy Adams to Alexander Everett).
274. Proceedings to condemn a vessel would fall within admiralty jurisdiction and be heard solely by a judge, even in United States courts. However, criminal offenses falling within the federal admiralty jurisdiction would be heard by a jury. See Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 55 n.10 (1989) ("Civil causes of action in admiralty ... are not suits at common law for Seventh Amendment purposes, and thus no constitutional right to a jury trial attaches.");
275. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447(1830).
276. Though Canning at one point defended the commission as akin to "trials for forfeitures," see Diary Entry of John Quincy Adams (Oct. 20, 1820), supra note 105, at 190, he did not reiterate this argument in his numerous discussions and correspondences with Adams and Rush.
277. Wheaton, writing twenty years later, when any confusion about the nature of the proposal was surely resolved, also presented it in a criminal light See WHEATON, supra note 160.
278. An 1819 resolution of the House of Lords, calling for the United States to join the mixed-courts system, noted that it would allow for "seizing vessels engaged in the criminal traffic, and for bringing to punishment those who shall still be guilty of these nefarious practices." Resolution of July 9, 1819, reprinted in AMERICAN STATE PAPERS, supra note 109, at 80. Similarly, a counterproposal by Russia called for establishing, instead of the mixed-tribunals network, an international court that would "judge all crimes relating to the trade."
279. Opinion of the Russian Cabinet upon the Slave Trade (Nov. 7, 1818), in COMM. ON THE SUPPRESSION OFTHE SLAVE TRADE, supra note 149, at 72, 73-74. The offer appears to be a tactic to refuse Britain's offer by agreeing to even more than London could accept.
280. Similarly, uncertainties about the jurisdiction of the International Criminal Court lead those inclined to be suspicious to entertain the worst-case scenarios, which supporters of the court dismiss as unlikely.
281. See Despatch from Lord Castlereagh to Earl Bathurst (Nov. 2, 1818) (Memorandum A) ("The mixed commission has no jurisdiction of a criminal character...."), in AMERICAN STATE PAPERS, supra note 109, at 115;
282. see also Martinez, supra note 15, at 591 (noting that mixed courts lacked criminal jurisdiction over the crew of a seized slave vessel).
283. Diary Entry of John Quincy Adams, supra note 104, at 151;
284. see also Rome Statute of the International Criminal Court art 77(2) (b), July 17, 1998, 2187 U.N.T.S. 90 (providing for forfeiture of property as a criminal penalty administrable by the ICC);
285. ANNALS OF CONG. 1067 (1821) (describing the proposal as giving courts jurisdiction over vessels only).
286. Ironically, confiscation of assets-whether civil or criminal-was later cited by Crowell v. Benson, the seminal modern case on the permissibility of non-Article III adjudication, as a paradigmatic example of the kind of case that required an Article III forum even at the trial level. See Crowell v. Benson, 285 U.S. 22, 60 (1932).
287. See The Emily and the Caroline, 22 U.S. (9 Wheat.) 381, 388-89 (1824) ("[The U.S. statute allowing for condemnation of vessels fitted out for the slave trade] furnishes authority to take from the offender the means designed for the perpetration of the mischief. This is not punishing, criminally, the intention merely; it is the preparation of the vessel, and the purpose for which she is to be employed, that constitute the offence ...." (emphasis added)). Justice Thompson had, until the previous year, been the Navy Secretary in Monroe's Administration and had participated in all the Cabinet discussions of the mixed-courts treaty. Thus, The Emily is particularly strong evidence that the Cabinet saw the British proposals as "punishing criminally." This was certainly the view of the French.
288. See Memoir of the French Government on the Slave Trade, supra note 197 ("In vain would it be alleged that the mixed commission does not exercise its jurisdiction in a criminal manner, and that it only pronounces upon the legality of the seizure of the vessel...." (internal quotation marks omitted)).
289. See Letter from John Quincy Adams to Stratford Canning, supra note 116 (noting that commissions would have power over the "reputation" of U.S. citizens).
290. See Boyd v. United States, 116 U.S. 616, 633-34 (1886) (opining that "proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal" and thus trigger Bill of Rights protections);
291. see also One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696 (1965) (holding that evidence obtained in violation of the Fourth Amendment is admissible and may not be relied on to sustain a forfeiture).
292. But see United States v. Ursery, 518 U.S. 267, 270-71 (1996) (holding that civil forfeiture is not a "punishment" for double jeopardy purposes).
293. See generally The Palmyra, 25 U.S. (12 Wheat.) 1, 14-15 (1827) (discussing the relation between forfeiture in admiralty and criminal liability, and holding that the latter is not necessary for the former).
294. See The Three Friends, 166 U.S. 1, 49-50 (1897) ("The suit is a civil suit in rem for the condemnation of the vessel [for violations of neutrality] only, and is not a criminal prosecution. The two proceedings are wholly independent and pursued in different courts, and the result in each might be different").
295. See United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet) 453, 462-63 (1833) (requiring more than "accident or mistake" for civil forfeiture because the forfeiture statute was considered "a highly penal law");
296. The Marianna Flora, 24 U.S. (11 Wheat.) 1, 39-40 (1826) (stating that confiscation of a vessel may be proper punishment for "gross violations of the law of nations on the high seas" but not for "lighter faults, or common negligence").
297. See, e.g, Strohm v. United States, 23 F. Cas. 240, 241 (C.C.D. Md. 1840) (No. 13, 539).
298. See The Marianna Flora, 24 U.S. at 40 (describing forfeiture of a vessel that attacked a U.S. Navy ship in mistaken self-defense as "such harsh punishment[]" because, unlike damages, the relief was not proportionate to the harm caused).
299. See supra text accompanying notes 43-48.
300. See United States v. Mann, 26 F. Cas. 1153, 1154 (C. C. D. N. H. 1812) (No. 15, 718) (recognizing that fines and forfeitures could be either civil or criminal, depending on the language and context of the statute).
301. See 42 ANNALS OF CONG. app. at 3029 (1823) (suggesting that mixed tribunals would leave defendants open to capital punishment, which was available in the United States upon conviction of slave trading but was not a punishment that the mixed court itself could impose).
302. Memoir of the French Government on the Slave Trade, supra note 197, at 78. While the U.S. rules of estoppel would likely differ from those of France, the memo seems to refer to a de facto, if not de jure, estoppel. In any case, the preclusive effects in a subsequent criminal case of a judgment of an international mixed court in U.S. law are entirely unclear.
303. This issue was recently forcefully argued with respect to the International Court of Justice in Medellin v. Texas, 128 S. Ct. 1346, 1360-65 (2008). While the Supreme Court rejected the view that the ICJ's decisions are automatically binding, it treated the question as one of treaty intention, to be decided on a case-by-case basis.
304. See id at 1356-57.
305. The treaty contained "equipment articles," which allowed vessels to be seized on suspicion of involvement in the slave trade if they carried equipment typical of a slave vessel. See Treaty Between the United States and Great Britain for the Suppression of the Slave Trade, U.S.-Gr. Brit., arts. VI-IX, Apr. 7, 1862, 12 Stat. 1225. This could range from the very suspicious, such as shackles, to the potentially benign, such as an abundance of water and other routine supplies.
306. See id, art VI. Vessels apprehended with such equipment would be condemned unless they produced "clear and incontrovertible evidence, proving to the satisfaction of the mixed court of justice, that ... the vessel was employed in a lawful undertaking."
307. Id.
308. Under the terms of the treaty eventually signed by the United States, the crew of a condemned vessel would be presumed guilty in a subsequent domestic prosecution. See id. art. IX (authorizing sentencing by the home country of all crew members condemned before the mixed courts).
309. For example, Adams recounted in his diary one such discussion with Canning: I also went largely into the objection arising from the analogy between the right of visitation and search proposed to be given by the Convention, and the claim of Great Britain to the right of visitation and search to impress men. The conversation was altogether free and unreserved, the discussion invariably temperate .... [Canning] hint[ed] some regret that we should even harbor the sentiment that there was any analogy between them, or bring that subject into view at all ... but [I] observed that it was indispensable to unfold with candor and sincerity all our objections to the proposed Convention.
310. Diary Entry of John Quincy Adams (Oct. 20, 1820), supra note 113, at 189-90.
311. See 42 ANNALS OF CONG. app. at 3019 (1823) ("Our objection has been of two kinds; first, to the mixed commissions, as inconsistent with our Constitution; and secondly, to the right of search, as a dangerous precedent, liable to abuse, and odious to the feelings and recollections of our country.").
312. See id. at 3019-20 (declaring that the American government disagreed with the right to search American vessels because of fears of unwanted encroachment and past incidents of maltreatment).
313. Fabricated arguments are presumably always available. By analogy to the nondelegation argument against mixed commissions, the Administration might have said that using British cruisers to police violations of American anti-slave-trade laws would infringe on the President's power to "take Care that the Laws be faithfully executed." U.S. CONST, art. II, § 3.
314. Again, these concerns stemmed from a reluctance to concede anything that might confirm Britain's role as the police of the oceans or allow Britain to abuse the right of search to harass U.S. vessels and impress sailors.
315. The commissions may also have been reminiscent of the British military and admiralty tribunals established by the British in the colonies in the decades before the Revolutionary War. These courts were one of the colonists'major grievances. See THE DECLARATION OF INDEPENDENCE paras. 20-21 (U.S. 1776) (criticizing King George III "[f]or depriving us, in many Cases, of the Benefits of Trial by Jury" and "[f]or transporting us beyond Seas to be tried for pretended Offences");
316. JOHN QUINCY ADAMS, THE JUBILEE OF THE CONSTITUTION: A DISCOURSE 8-9 (New York, Samuel Colman 1839) ("Parliament... in their omnipotence, instead of trial by jury and the Habeas Corpus, enacted admiralty courts in England to try Americans. . . . "). However, there is no indication that these played any role in the mixed-commission question, and it seems unlikely that they would have: five decades is a long time for political memory.
317. See, e.g., REPORT ON RELATIONS WITH GREAT BRITAIN (Nov. 29, 1811) (describing Calhoun as an open Anglophobe),
318. reprinted in 1 THE PAPERS OF JOHN C. CALHOUN 66-67 (Robert L. Meriwether ed., 1959).
319. Adams noted in his diaries, for instance, when he took a position in public that he privately disagreed with. See, e.g., Diary Entry of John Quincy Adams (Nov. 17, 1821) (recalling having told Canning that the President lacked the power to extradite suspects to Britain even "though [he] was not entirely satisfied that there was a want of authority"), in 5 ADAMS MEMOIRS, supra note 104, at 400. He did not do so here.
320. See supra subsection II. C. 2.
321. The diplomatic correspondence with Britain was covered in the press, as was the establishment of mixed courts with other countries. See, e.g., The Slave Trade-No. Ill, FRANKLIN GAZETTE (Phila.), Aug. 18, 1821 (describing "judicial arrangements for the execution of this project of the right of search"). The Administration's constitutional stance, however, apparently did not attract comment.
322. The House argued that any treaty that would operate within Congress's enumerated powers-and certainly within those areas of legislation that must originate with the House-had to be passed by the entire legislature. The Senate claimed that all treaties, regardless of subject matter, were self-executing. See generally WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA 58-70 (Philadelphia, H.C. Carey & I. Lea 1825) (discussing the rationale behind the treaty-making requirements and noting the heated nature of the debate concerning the houses' roles);
323. Parry, supra note 69 (discussing the debate in a broader historical context).
324. Decades later, Charles Mercer, the long-serving chairman of the House slavetrade committee and one of the most ardent opponents of the trade, indulged in recriminations with Adams over responsibility for the failure of the 1824 convention. While Mercer charged the Monroe Administration with being unenthusiastic about the treaty, and perhaps hoping for its failure in the Senate, he did not cast any doubt on the validity of the objection to mixed commissions. See Charles Fenton Mercer, Address at the Anniversary of the American Colonization Society (Jan. 18, 1853), in 29 THE AFRICAN REPOSITORY 153-56 (1853).
325. See 2 REG. DEB. 2257 (1826) (speech of Daniel Webster before the House of Representatives) (observing that the resolutions of the House, unlike the committee reports, did not recommend right of search and that with the "negotiation having been concluded, in conformity to the opinions expressed, not indeed, by the House, but by the committee, the treaty, when laid before the Senate, was rejected by that body").
326. See, e.g.. Diary Entry of John Quincy Adams (June 4, 1824) (recording that Quaker lobbyists expressed "their great anxiety for the suppression of the slave-trade" in negotiations), in 6 ADAMS MEMOIRS, supra note 104, at 374, 375;
327. cf. The Slave Trade Treaty, BOSTON DAILY ADVERTISER, Apr. 29, 1862 (presenting with minimal comment the language of the treaty).
328. During the debate over the Webster-Ashburton Treaty, the early diplomacy of the Monroe Administration was reviewed and discussed by Adams, Webster, Ingersoll, and others, with no suggestion of a change of views on the constitutional question. Adams did, however, feel compelled to admit with "bitterness" that the earlier negotiations had effectively conceded a limited right of search. CONG. GLOBE, 27th Cong., 2d Sess. 424 (1842).
329. See infra note 243.
330. Letter from John Quincy Adams to Stratford Canning (Dec. 30, 1820), in AMERICAN STATE PAPERS, supra note 109, at 76.
331. The universal status of a crime was thought to make a constitutional difference to the converse constitutional question: America's ability to punish crimes committed extraterritorially by foreigners. Thus, Congress did not think it could punish foreign slave trading until that offense became well accepted as a universal crime in international law. See Eugene Kontorovich, The "Define and Punish " Clause and the Limits of Universal Jurisdiction, 103 NW. U. L. REV. 149, 195 (2009). This limitation came from the "Define and Punish" Clause of the Constitution, and it is harder to see how this could authorize the limitation of the constitutional rights of U.S. citizens.
332. See id. at 167-68,198-200.
333. 42 ANNALS OF CONG. app. at 3027-28 (1823);
334. see also id. at 3029 (letter from John Quincy Adams to Alexander H. Everett) (arguing that because slave trading was still technically "considered as of inferior magnitude [to piracy], the Constitution of the United States forbade the submission of it, when charged upon their citizens, to any foreign tribunal").
335. Adams went still further by arguing that even for universal-jurisdiction crimes, the trial must be held in the domestic courts of the offender's nation. In this view, universal jurisdiction refers simply to enforcement jurisdiction - the ability to make arrests-rather than to adjudicative jurisdiction. This is a gross misstatement of international law then and now. Considerations of comity, practicality, and national selfinterest ensured the dominance of "complementarity"-giving precedence to fora with traditional jurisdictional ties. Adams was wrong that a foreign trial was not countenanced by international law. His insistence on this point betrays his aversion to British justice, and it may cast some doubt on the sincerity of his constitutional arguments. However, unlike his constitutional objections, Adams's expressed positions on universal jurisdiction were not previewed or accepted by the rest of the Administration or Congress.
336. See Wedgwood, supra note 5, at 123 (outhning U.S. efforts to include standards of due process in the ICC).
337. See Eugene Kontorovich, Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93 MINN. L. REV. 1191, 1219-23 (2009) (showing that Congress's power to "define ... [p]iracies ... and offenses against the [l]aw of [n]ations," U.S. CONST, art. I, §8, cl. 10, does not allow it to invent such definitions unrestrained by objective international law).
338. A similar argument prevailed in In re Ross, where the Court upheld the trial of Americans in non-Christian countries, before a U.S. consul, without any procedural protections of constitutional rights. See 140 U.S. 453, 461, 480 (1891). Had the United States not entered into treaties with foreign countries allowing for such consular courts, the American citizens would have been tried by local courts where they would have enjoyed even fewer protections.
339. Id. at 465. Given the focus of modern international criminal courts on crimes committed during armed conflict, this exception could be quite significant
340. See United States v. Palmer, 16 U.S. (3 Wheat.) 610, 621 (1818) ("The jurisdiction of a nation over its public ships is exclusive every where [sic] ....").
341. But cf. In re Ross, 140 U.S. at 464 ("The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States."). This may just mean that the Court thought habeas and other rights could not be procedurally exercised on a ship because it was outside of the jurisdiction of any district court If the Court meant that substantive rights did not apply on board the ship, it would represent a further-and unsupported-extension of Ross's already problematic holding that the Constitution has no applicability to governmental action abroad.
342. See United States v. Smiley, 27 F. Cas. 1132, 1134 (C.C.N.D. Cal. 1864) (No. 16, 317) ("The constructive territory of the United States embraces vessels sailing under their flag; wherever they go they carry the laws of their country, and for a violation of them their officers and men may be subjected to punishment").
343. See, e.g., Cunard S.S. Co. v. Mellon, 262 U.S. 100, 123 (1923) ("The jurisdiction which it is intended to describe arises out of the nationality of the ship, as established by her domicile, registry and use of the flag, and partakes more of the characteristics of personal than of territorial sovereignty.");
344. Johnson v. Twenty-One Bales, 13 F. Cas. 855, 862 (C.C.N.Y. 1814) (No. 7417) ("The notion that vessels must be considered as part of the territory of a nation, is antiquated and exploded.").
345. See United States v. Robins, 27 F. Cas. 825, 838 (D.S.C. 1799) (No. 16, 175) ("To suppose that Vattel mean[t] ... that the ships of a nation are, with respect to the space of water they cover on the ocean, its territory as to jurisdiction,... as completely as its lands or rivers are, is [incorrect].").
346. See, e.g., Cunard, 262 U.S. at 121-23 (holding that despite the "metaphor" of flag-state territoriality, the Eighteenth Amendment did not apply to U.S. ships on the high seas);
347. Lam Mow v. Nagle, 24 F.2d 316, 317-18 (9th Cir. 1928) (holding that a U.S. merchant vessel was not U.S. "territory" for purposes of the Fourteenth Amendment's birth-citizenship provision). Interestingly, in the case of the only slave trader ever ex-ecuted by the United States, the court suggested that birth on a U.S. vessel would help determine one's status as a U.S. citizen under pre-Fourteenth Amendment principles.
348. See United States v. Gordon, 25 F. Cas. 1364, 1365 (C.C.S.D.N.Y. 1861) (No. 15, 231).
349. U.S. CONST, art. III, § 2, cl.3.
350. See id.
351. See supra notes 193-194 and accompanying text.
352. See supra notes 195-196.
353. See, e.g., text infra accompanying note 306.
354. See A. Taylor Milne, The Lyons-Seward Treaty of 1862, 38 AM. HIST. REV. 511, 512 (1933).
355. Id. at 513-14.
356. See id. at 513.
357. Treaty Between the United States and Great Britain for the Suppression of the Slave Trade, Apr. 7, 1862, 12 Stat 1225 [hereinafter Lyons-Seward Treaty].
358. See WARREN S. HOWARD, AMERICAN SLAVERS AND THE FEDERAL LAW, 1837-1862, at 61 (1963).
359. SUMNER, supra note 158, at 474.
360. See Milne, supra note 258, at 511 ("To conclude with Great Britain a convention of the kind she had so frequently suggested was also a means of enlisting British sympathy for the North.").
361. See JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CTVIL WAR ERA 387 (1988) ("[T]he British government announced an action that misled Americans on both sides of the Potomac to anticipate imminent diplomatic recognition of the Confederacy.").
362. Id. at 389-90.
363. See id. at 390 ("The [British] government clamped an embargo on all [saltpeter] shipments to the United States until the [diplomat-seizure] crisis was resolved.").
364. See id. ("War seemed imminent").
365. The New Slave-Trade Treaty, TIMES (London), May 24, 1862, at 10 ("To hold over the South the fear of abolition is the obvious policy of Washington, and this fear will be best aroused by a show of decision in dealing with all questions relating to Slavery."),
366. as reprinted in N.Y. TIMES, June 6, 1862, at 2.
367. See Diary Entry of William H. Seward (Apr. 8, 1862) ("Had such a treaty been made in 1808, there would now have been no sedition here ...."), in 5 THE WORKS OF WILUAM H. SEWARD 52, 52 (George Baker ed., Boston, Houghton, Mifflin & Co. 1890) [hereinafter SEWARD].
368. See Letter from Lord Lyons to Lord Russell (Apr. 7, 1862) (noting Seward's statement that, "while confident of obtaining the Ratification of the Senate at this moment, he [could] []not feel so certain that he should be able to do so a month hence"), in Milne, supra note 258, at 523.
369. See Milne, supra note 258, at 514 ("Charles Sumner, who piloted [the treaty] through the Senate, had brushed aside the old contention that American courts on foreign soil would be unconstitutional. . . . ");
370. see also SUMNER, supra note 158, at 474 ("[O]n motion of Mr. Sumner, the Senate proceeded to consider the resolution of ratification.").
371. Sumner, supra note 158, at 483.
372. See id. at 483 & n. 2 (citing Am. Ins. Co. v. Canter, 26 U.S. (1 Pet) 511, 546 (1828)). Seward also mentioned the "extra- constitutional" nature of courts martial, though he did not mention the cases that upheld them.
373. See id at 483 ("[C]ourts martial are also extra-constitutional, standing on the war power and the practice of nations."). In the intervening years, the Court had, however, upheld military courts martial.
374. See Dynes v. Hoover, 61 U.S. (20 How.) 65, 82-83 (1857).
375. See Sumner, supra note 158, at 483 ("Like Territorial courts, mixed courts are plainly extra-constitutional, standing on the treaty power and the practice of nations....").
376. See id. at 484 ("The Jay Commission was originally criticized .... But nobody now doubts that this commission was proper.").
377. Id. at 485.
378. Id.
379. See Pfander, supra note 25, at 766 (stating that "federal courts have used habeas to review courts-martial, mandamus to review territorial court judgments").
380. See Reid v. Covert, 354 U.S. 1, 34-35 (1957) (plurality opinion) (finding that dependents accompanying military personnel overseas were not subject to the jurisdiction of courts martial);
381. see also Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 107, 122 (1866) (finding that a trial by military commission of a U.S. civilian who "never had been in the military or naval service" was unconstitutional).
382. Decisions of the Court before Canter had already implied that Congress could properly give judicial functions to the territorial courts. See supra note 27 and accompanying text Similarly, the constitutionality of courts martial was generally accepted by the early 1820s, though it had not been confirmed by the Court As Rawle explained, There is [a] species of courts having a special jurisdiction, from which trial by jury is also excluded, yet whose power extends to ... imprisonment, personal chastisement, and even loss of life. It will be at once perceived that we allude to courts martial. Although not expressly mentioned in the constitution, the power to institute them is unquestionably given by the authoriry vested in congress to make rules for the government and regulation of the land and naval forces ....
383. RAWLE, supra note 234, at 209-10.
384. Sumner, supra note 158, at 483 (arguing that the objections voiced by John Quincy Adams were now "wholly superficial and untenable").
385. See Milne, supra note 258, at 513 (describing Seward's subterfuge in portraying the right to search as an American initiative rather than capitulation to a British request).
386. See HOWARD, supra note 262, at 62-64.
387. See Bethell, supra note 79, at 91-92 (reviewing the success of the British navy and the British vice-admiralty courts in suppressing the slave trade in the years leading up to the war). This included the much-publicized, first-ever execution of a slave trader in February 1862.
388. See supra note 188.
389. See HOWARD, supra note 262, at 64-65.
390. See id. at 65;
391. see also Milne, supra note 258, at 516 (noting Spain's increased efforts to suppress the slave trade).
392. HOWARD, supra note 262, at 62-63.
393. The salary was roughly the same as that of a congressman at the time. However, the Freetown and Cape postings were hazardous duty assignments, with death and illness rampant among the commissioners. As one senator put it, "these Courts ... have accomplished absolutely nothing for the suppression of the slave trade or any other object, as I know from a member of the Court" Fortieth Congress, Third Session, Consular Appropriations, N.Y. TIMES, Feb. 4, 1869, at 1 (quoting Sen. Patterson). Another senator noted that "[t]he question before the Senate was simply whether certain gendemen should be supported out of the people's money without doing anything to earn it."
394. Id. (quoting Sen. Hendricks).
395. See SUMNER, supra note 158, at 486 (chronicling the end of the mixed courts).
396. See infra Section V.A.
397. See SOULSBY, supra note 12, at 174-76.
398. See 3 A DIGEST OF THE INTERNATIONAL LAW OF THE UNTTED STATES §327, at 142-46 (Francis Wharton ed., Washington, D.C., Gov't Printing Office 1887).
399. See id. §at 145-46.
400. See Letter from Horatio J. Perry to William H. Seward (July 11, 1862) (reporting that a Spanish minister was "much surprised" by reports of the treaty given diat the United States had been "combatting [sic] that principle so long"), in 1 U.S. DEP'T OF STATE, FOREIGN RELATIONS OF THE UNITED STATES 509, 509 (Washington, D.C., Gov't Printing Office 1862).
401. Strangely, although the unanimous vote on the treaty occurred in closed session, when legislation carrying the treaty into effect was before the Senate just a few monthis later, five senators voted against it out of "[c]onstitutional scruples." News from Washington, The Treaty for Suppressing the Slave-Trade, N.Y. TIMES, June 27, 1862, at 4. Said one senator, "I do not object to the suppression of the African slave-trade, but I do not believe that this Government has the constitutional right to establish any such court. I think the treaty ought not to have been adopted."
402. SUMNER, supra note 158, at 486 (recording the statement of Senator Saulsbury).
403. It is not clear whether these senators had opposed the treaty initially; perhaps diey had abstained from the vote. Cf. id. at 485 (recording Sumner's surprise at the unanimous ratification of the treaty.) The objectors were a group of mosdy Northern Democrats highly critical of abolition and, in some cases, of Lincoln's policy more generally. One of them, Senator Bayard, later lost his Senate seat for refusing to take a loyalty oath that he also regarded as unconstitutional.
404. See A NORTHERN MAN, THE DIPLOMATIC YEAR.- BEING A REVIEW OF MR. SEWARD'S FOREIGN CORRESPONDENCE OF 1862, at 36 (2d ed., Philadelphia, John Campbell 1863) (arguing that the treaty would be "fruidess").
405. See William H. Seward, The Assurance of Victory, Remarks at a Serenade in Rejoicing over the Reelection of President Lincoln (Nov. 10,1864) ("The fint year of the war suppressed the African slave trade in the United States."), in 5 SEWARD, supra note 270, at 514.
406. CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA art. 9 §1.
407. See Sumner, supra note 158, at 485 (arguing that ratification would be seen by foreign nations as an "open pledge to Human Rights," while "the Rebels" would see it as "a new sign of the national purpose").
408. See supra note 296.
409. The favorable coverage of the treaty in the Northern press made litte or no mention of the mixed courts and the constitutional issues they raised. Search, which had been actively contested for decades, was seen as the essence of die treaty. This was consistent with the focus of earlier discussions of the British program. See, e.g, A New Anti-Slave-Trade Treaty, N.Y. TIMES, Apr. 22, 1862, at 4 (noting that the treaty as passed by the Foreign Relations Committee had not been made public, preventing a debate on its merits).
410. See, e.g., A NORTHERN MAN, supra note 297, at 29-37 ("Mr. Seward may think nothing of it, but this reversal of history, this renunciation of... ancient policy, gives a sharp pang.").
411. The pamphlet focuses its ire on the concession of search. While the audior also objects to the mixed commissions, see id. at 31, he treats them as a side issue because with the slave trade already over, they would not hear any cases-yet the right of search would still exist
412. See id. at 35-36 (characterizing the agreement as "a dark shadow that may yet harm America").
413. One subsequent commentator wrote that "there was a general impression in the United States that it was quite doubtful whether such a tribunal could render an effective judgment" but did not explain how this impression was manifest. See Simeon E. Baldwin, TheProposed Trial of the Former Kaiser, 29 YALE L.J. 75, 77 (1919).
414. Letter from Thomas Bayard to Messrs. Sawyer & Spooner (Apr. 19, 1886), in 2 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 948 (1906). Secretary Thomas Bayard, a former senator himself, was the son of the senator James Bayard who had originally opposed the treaty, and was a prominent "Peace Democrat" during the war. He opposed secession and is generally credited for keeping Delaware in the Union, but at the same time he challenged most aspects of Lincoln's response to the crisis. Thus, his narrow view of the treaty's significance is hardly surprising, and it highlights how much of the response to the treaty broke along the highly fraught political lines of the Civil War.
415. A greater diversity of political views was represented in Congress in the 1820s dian in 1862, when many Southern seats were empty.
416. Determining which characterization is accurate is a hard question. Clearly the fact diat the case would be in rem would not change its punitive and blame-assigning nature. The slave-trade commission was an unusual court of limited quasi-criminal jurisdiction. It was neither fish nor fowl and could be viewed as either criminal or civil depending on one's perspective or desired result.
417. See Rome Statute of the International Criminal Court, supra note 208, art 77(1) (allowing the court to imprison defendants for up to thirty years for offenses within the jurisdiction of the court and up to life for certain serious crimes).
418. See supra subsection V.A.2.
419. See supra subsections III.D.3-4.
420. See U.S. CONST, amend. VII (preserving the right to trial by jury for most suits at common law).
421. Similarly, the Sevendi Amendment question would not have arisen under the Lyons-Seward Treaty because civil admiralty proceedings did not have juries.
422. See supra subsections III.D.3-5.
423. This also explains why the treaty's complementarity provisions may reduce but not eliminate the frequency of unconstitutional events. Complementarity allows the ICC to proceed with a case when the home state is "unwilling or unable genuinely to carry out the investigation or prosecution." Rome Statute of the International Criminal Court, supra note 208, art. 17(1). However, a jury acquittal, a decision by a U.S. Attorney not to bring charges, or a dismissal on a "technicality" particular to the United States could all be taken as "unwillingness" by the ICC. No U.S. Attorney has investigated former Secretaries of Defense Cohen and Rumsfeld for their alleged war crimes in Serbia and Iraq, respectively. This complete lack of prosecutorial interest could be taken as "unwillingness" sufficient to trigger the ICC's jurisdiction. The subsequent ICC prosecution would still suffer all the constitutional infirmities alleged by Adams. Under the treaty, the ICC has the last word in determining when complementarity applies, and this determination would not be reviewable by any U.S. court, which is precisely the problem that Adams stressed.
424. See id. art 17(2) (granting the ICC power to determine if a state's failure to prosecute is justified). Nothing in the slave-trade episode suggests that the mixed commissions would have been favored if they limited their activities to cases where the United States had chosen not to prosecute or had acquitted the defendant Indeed, the opposite seems to be the case.
425. See id art 8(2) (b) (cataloging "[o]ther serious violations of the laws and customs applicable in international armed conflict, within the framework of international law").
426. The treaty has not been acceded to by the United States, China, India, Russia, or most Arab nations. See United Nations Treaty Collection, Status of Treaties, Rome Statute of the International Criminal Court, http://treaties.un.org/Pages/>Treaties.aspx?id=18&subid=A&lang=en (follow "Rome Statute of the International Criminal Court" hyperlink) (last visited Oct. 15, 2009).
427. Adams and Congress clearly took the position, supported by ample British and American case law, that treaties delegating jurisdiction did not create universal jurisdiction. See 42 ANNALS OF CONG. app. at 3029 (1823) (letter from John Quincy Adams to Alexander Everett) (writing that even after the United States and Britain declared the slave trade to be piracy, it was "essential" that vessels seized under the U.S.-British treaty were tried by their home state until "the consent of other nations to the general oudawry of this traffic as piracy"). This view still reflects international law.
428. Interestingly, neither Adams nor members of Congress who reviewed his diplomatic correspondence thought that Congress's power to define and punish offenses against the law of nations gave that branch final say on what or when an offense had become universal in international law.
429. See Rome Statute of the International Criminal Court, supra note 208, art. 120 ("No reservations may be made to this Statute.").
430. See id. art. 12(2) (a).
431. See, e.g, Boumethene v. Bush, 128 S. Ct 2229, 2262 (2008) (granting the right of habeas corpus review to an alien detainee held in an area under United States control).
432. While the precise basis for the constitutionality of extradition is obscure, the practice has been decisively accepted in practice., See, e.g., Scheffer & Cox, supra note 5, at 1015-19 (describing the practice of U.S. courts, when reviewing whether to extradite a defendant, of not inquiring into the due process protections or lack thereof in the receiving state).
433. See, e.g., Daryl Mundis, Editorial Comment, The United States of America and International Justice: Has Lady Liberty Lost Her Way?, 2 J. INT'L CRIM. JUST. 2, 6 (2004) (arguing diat there is no difference between extradition to a foreign country and to the ICC).
434. See Jay Treaty, supra note 70, art. 27 (agreeing with Britain to mutually "deliver up to justice all persons, who, being charged withmurder or forgery, committed within the jurisdiction of another, shall seek an asylum").
435. See United States v. Robins, 27 F. Cas. 825, 833 (D.S.C. 1799) (No. 16,175) (upholding the extradition of an alleged mutineer of uncertain nationality to Britain pursuant to the 1794 Jay Treaty);
436. Ruth Wedgwood, The Revolutionary Martyrdom offonathan Robbins, 100 YALE L.J. 229 (1990) (discussing the Robins case and its implications).
437. See, e.g, In re Kaine, 55 U.S. (14 How.) 103, 112-13 (1852) (plurality opinion) (noting with approval the practice of extradition).
438. The Jay Treaty, as well as subsequent extradition agreements, have been confined to crimes "committed within the jurisdiction" of the parties. See, e.g., Jay Treaty, supra note 70, art. 27. Indeed, James Madison explained that [t]his [extradition] act audiorises [ye] surrender of a Citizen to a foreign Sovereign within whose acknowledged jurisdiction the citizen shall commit a crime, of [which] satisfactory proof shall be exhibited to Congress, and for which in the judgment of Congress the law of nations exacts such surrender.... The opponents contended that such surrenders were unknown to the law of nations, and were interdicted by our declaration of Rights.... With regard to the bill of rights, it was alleged to be no more or rather less violated by considering crimes committed [against] other laws as not falling under the notice of our own, and sending our Citizens to be tried where the cause of trial arose, thian to try them under our own laws without a jury of the vicinage, and without being confronted thdi their accusers or witnesses; as must be the case, if they be tried at all for such offences under our own laws.
439. Letter from James Madison to Thomas Jefferson (Jan. 9, 1785), in 2 THE WRITINGS OF JAMES MADISON 110-11 (Gaillard Hunted., 1901) (emphasis added).
440. See Letter from James Madison to Thomas Jefferson, supra note 327, at 111 ("And to say that such offenders [against foreign law] could neither be given up for punishment, nor be punished within their own Country, would amount to a licence for every aggression...." (emphasis added)).
441. The ICC might obtain jurisdiction over Americans based on their presence in the territory of another member State, but the discussion here focuses on that jurisdiction which is a result of U.S. participation in the treaty.
442. 350Diary Entry ofjohn Quincy Adams, supra note 104, at 151;
443. see also United States v. Watkins, 28 F. Cas. 419, 462 (C.C.D.C. 1829) (No. 16,649) (Thruston, J., dissenting) ("The negotiation with Great Britain, respecting the suppression of the slave trade, failed upon the ground that the United States could not give power to the courts of another nation to punish the violation of the laws of the United States.");
444. Letter from Albert Gallatin to John Quincy Adams, supra note 200, at 229-30 (arguing that it would violate die Constitution for mixed commissions to try citizens for "violation of our own laws").
445. Canning had sarcastically suggested to Adams that if mixed courts were constitutionally problematic, there could be no problem with prosecuting slave traders in "the ordinary way": by regular (British) admiralty courts. See 42 ANNALS OF CONG. app. at 3007-08 (1823). Not surprisingly, Adams rejected this uneven proposal out-of-hand: [I]t might seem needless to remark, that the Constitutional objection could not diminish in proportion as its cause should increase, or that the Power incompetent to make American citizens amenable to a court consisting one-half of foreigners, should be adequate to place their liberty, their fortune, and their fame, at the disposal of tribunals, entirely foreign.
446. ANNALS OF CONG. app. at 3010,3012 (1823).
447. See id. at 3012 (arguing that under the Constitution there is no right for another nation to try local offenders).
448. It is difficult to say what proportion of American judges makes a tribunal "mixed" enough to be considered an exercise of the judicial power of die United States. The slave-trade precedent suggests that as little as one-third is a problem, and the ICC sits in panels of three (though U.S. participation in a U.S. case is not guaranteed). Still, were an American to sit on a threejudge panel, she would be left with the outcome-determinative decision whenever the other two were divided. It would be hard to say in such a case that the U.S. involvement was diluted to the extent of being inconsequential. Still, with a large enough panel of judges, one can imagine the U.S. role being de minimis.
449. See Pfander, supra note 25, at 767-68 (highlighting how NAFTA panels are not standard Article III tribunals). Put differendy, this view would say that while nonArticle III courts created under the Tribunals Clause must be inferior, the Treaty Clause contains no such requirement for tribunals that might be created or joined through that power.
450. See id. Pfander notes that while such courts may not be objectionable on nondelegation grounds, they would still have to adhere to other constitutional norms.
451. See id, at 768 n.596 (describing constitutional protections in extradition hearings).
452. Id. at 768.
453. See ROBERT KAGAN, OF PARADISE AND POWER: AMERICA AND EUROPE IN THE NEW WORLD ORDER 9 (2003) (arguing that American foreign policy in the early years of the Republic was more concerned with advancing international law, which the fledgling state hoped would constrain greater powers more than itself).