Early Cases and Extraterritorial Application

It has often been said that the conventional view of the extraterritorial application of the Constitution begins in 1891, with In re Ross. But that is not actually the first time the Court addressed the question of whether the Constitution follows the flag. Furthermore, the Court remarked in Johnson v. Eisentrager that the extraterritorial application of the Constitution was unknown to the Founders. However, several earlier cases only make sense if one believes that the Constitution follows US forces wherever they may be found. I will briefly discuss four cases today.

First are a pair of cases from early in the days of the republic, during the quasi-war with France, when US naval forces routinely captured French ships on the high seas. Under the law of prize, ships captured on the high seas from pirates or enemies were to be libelled and sold as salvage, with a portion of the proceeds going to the ship’s captain and crew who captured the vessel. Libel and salvage did not apply to vessels from neutral states, not at war with the United States. In 1801 and 1804 two cases made their way to the Supreme Court, challenging actions by U.S. forces which made captures on the high seas.

In Talbot v. Seeman, 5 US 1, 1 Cranch 1, (1801), a question arose as to whether the neutral owners of a vessel, recaptured from a French prize crew, were liable to pay salvage to Captain Talbot, who had recaptured the vessel. The vessel, the Amelia, was an armed vessel of Hamburgh, captured by a French prize crew and sailing to a French port. Captain Talbot and his crew recaptured the Amelia and sailed her to New York, where he was awarded half of her value as salvage. The Circuit Court of New York reversed this judgment, because Hamburgh was not a beligerant nation in regards to the United States. On appeal, the Supreme Court examined several statutes passed by Congress pursuant to its war powers and held that they would have prevented the capture here. However, becuase Captain Talbot had probable cause to believe the vessel was French at the time of her capture, he was entitled to salvage (although of a lesser amount). It is true, the Court does not rely explicitly upon the Constitution, but the reliance on probable cause is familiar under the Fourth Amendment.

Likewise in Little v. Barreme, 6 U.S. 170, 2 Cranch 170 (1804), Captain Little captured a Danish vessel, the Flying Fish, believing it to be an American vessel which had violated the non-intercourse law. The trial court determined that the vessel was improperly seized, but held that Captain Little could not be held to damages because he had probable cause to think the vessel was American. The Supreme Court reversed because it held that, even had the vessel been American, her capture would have been unlawful under the applicable acts of Congress, because she was not bound to a French port, but rather from one. Particularly telling in Chief Justice Marshall’s opinion is the line that he was first inclined to draw a distinction between “proceedings within the body of the country and those on the high seas[,]” but that he was convinced to take a different position by his brethren.

The second pair of cases deal with the rights of U.S. citizens abroad as they are impacted by the actions of U.S. officers. These cases were decided in the middle of the ninteenth century and arose out of American military adventures in Mexico and Nicaragua.

In 1851, the Court decided Mitchell v. Harmony, 54 U.S. 115 (1851). There, a naturalized citizen was traveling in Mexico selling goods and after the declaration of war between the US and Mexico fell in with a U.S. Army convoy. He attempted to leave the convoy, but was prevented by Lieutenant Mitchell. After a confrontation with the Mexican Army, Harmony lost all his property and brought an action against Mitchell. Mitchell defended in part on the grounds that the taking of Harmony’s property was for public use.

The Court sided with Harmony, holding that an Army officer’s power over the property of a citizen cannot be enlarged because of his distance from home. Even when private property can be taken to prevent it from falling into the hands of the enemy, full compensation must be made to the owner. While the Court did not mention the Fifth Amendment specifically, this is the source of law which requires just compensation for a taking for public use. Interestingly, the state of war between the United States and Mexico did not cause the Court to hesitate in applying the Fifth Amendment’s requirements.

The final case is Wiggins v. United States, (The Wiggins’s Case), 3 Ct. Cl. 412 (1867). This case was decided by the Court of Claims. Boston merchants had shipped a large quanitty of gun powder to San Juan, Nicaragua. The town was overtaken by “mauraders and freebooters” which damaged a great deal of property and even attacked a U.S. foreign minister. Commander Hollins was dispatched to retake the town. He did so, and after being warned of potential acts of retribution, cast the gunpowder into the bay, destroying it. The merchants sued, seeking resitution. The court ordered damages in the amount of $6000, holding that the gunpowder was private property taken for public use. Once again, the fact that the taking occurred outside the United States was no hinderence to the court’s conclusion.