Come January 6 I will be not in New Orleans but in San Diego, and hence not at the AALS Luncheon with the Legal Adviser of the U.S. Department of State, Harold Hongju Koh.
So I will not get to ask Dean Koh the following question:
According to John Reeves, author of the History of English Law from the Time of the Romans to the End of the Reign of Elizabeth, a declaration of outlawry—that such-and-such a man could and should be shot or knifed on sight—proceeded according to a legal process in front of judges at least since the reign of Henry III Plantagenet. To quote:
[T]hose of inferior age, as they were not sub lege, could not properly be ever said to be outlawed, or put out of the law: the same of a woman, who, as she also was never in laughe—that is, in frank pledge, or in a decenna, could not be outlawed; but if she fled upon commission of any felony she might be wayviata, as they called it…. esteemed as one deserted and forlorn….
The time necessary to complete the outlawry was this: the offender was to be demanded at four counties, from county to county, till he was outlawed; but at the first county there was only to be what they termed simplex vocatio; and that was not computed towards the time of one of the four counties; so that in truth five were to pass before the outlawry was had; the outlawry therefore was to be at the fourth of those after the simplex vocatio. At the fifth or, as they called it, the fourth county, no essoin or excuse could be received, nor was it sufficient that any one would engage to produce him at the next county…. [T]he fugitive had till the fifth county to render himself to prison or defend himself and purge his innocence, but after that time the outlawry stood in the way, and he could not return till that was removed by the mercy of the king….
In… instances where the king would have pardoned a conviction of the fact [of the underlying crime], he would readily pardon the outlawry, as in case of homicide per infortunium, or se defendendo; and in general where there was really no offence committed. Process of outlawry would not lie against a clerk…
Today, by contrast, in order to be outlawed—and thus in order to have your death commanded not just by blade or bow or gun but by teleoperated robot drone—there needs to be no public process by which you are commanded and offered the opportunity under the king’s peace to surrender and publicly defend yourself at five different successive county sessions. Instead, all that has to happen is that the high functionaries of the President, men and women not bound to others by feudal ties of mutual obligation or republican ties of election and representation but simply chosen at the President’s pleasure to sit on the National Security Council, in secret proceeding without judicial or other scrutiny, put your name on a list. And if you are a minor? Then a high functionary of the President will say, with a straight face, that you “should have chosen a better father” than one who was himself outlawed.
This is not a good trend in the rule of law as applied to outlawry that we have seen since the thirteenth century, is it?
What steps have you taken while in government to reverse this trend, and return the law of outlawry to something that would not have caused the justiciars of Henry III to raise their eyebrows and suggest that we remember what the common law is?
I cannot ask this question. I would dearly love to hear Harold Hongju Koh answer it.