Amicus Curiae Brief — Al Odah v. United States (Nos. 06-1196, 06-1195)

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yf | FILED

Nos. © 195, we ee AUG 2 4 2007

et ae ee a

E CLERK |

IN THE SUPREME COURT, U.S. |

Supreme Court of the Anited States

LAKHDAR BOUMEDIENE, ET AL., Petitioners,

Vv.

GEORGE W. BUSH, ET AL., Respondents.

KHALED A.F. AL ODAH, ET AL., Petitioners,

UNITED STATES OF AMERICA, ET AL., Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

BRIEF OF LEGAL HISTORIANS AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

Michael J. Wishnie James Oldham

Hope R. Metcalf (Counsel of Record)

Allard K. Lowenstein St. Thomas More Professor

International Human of Law & Legal History

Rights Clinic—National Georgetown University

Litigation Project Law Center

Yale Law School 600 New Jersey Avenue,

127 Wall Street N.W.

New Haven, CT 06510 Washington, D.C. 20001

(203) 432-1660 (202) 662-9090

Jonathan Hafetz

Brennan Center for Justice

at N.Y.U. School of Law

161 Avenue of the

Americas, 12" Floor

New York, NY 10013

(212) 998-6289

August 2007 Counsel for Amici

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....sssssssssssssssssssssssssseseececccssessees i

STATUTE CP AIR nce ncnnessessonsnnsnessssccions 1

SUMMARY OF ARGUMENT ...-:cccssssssssssssssssssssssssesseseeeseees 1

a ian idicehinsincsdadisbiieietiied 3

I. At Common Law, Habeas Corpus Jurisdiction Followed

the Jailer, Not the Detainee, to any Territory Under the De

Parte Cama GE Git Ca G WR, 2.cccesecsecescesccccossssnsonssccesserncnensvests 3

1. Habeas writs issued directly by the King’s Bench in

Westminster to persons detained outside the realm of

SINUS ockiestsissisansctincncnbibsenersiaviciondesninisieninniianlinaiiecinneins 8

2. Habeas writs issued by Ragich law courts located

ST FR ccccstccrintenislesciinninninemanmenimen 12

Il. The Writ Provided for Meaningful and Independent

Judicial Inquiry Regarding the Factual Basis for Detention,

Including Consideration of Additional Evidence. ............... 16

A. At common law, judicial scrutiny was greatest outside

the context of post-criminal convictions. ...................+00 17

B. Habeas corpus provided a flexible and powerful tool

for judges to inquire into the factual and legal basis for a

IEE a iitteiesittatnincctincnnemreccninenensniamnctnionaien 20

DR, FPRRIS Gr GREICIO EE SOUIIE .ncccccecceccccccccccsccescoscosees 21

2. Rule nisi: order to show cause ................cccceeeseeees 22

3. Confession and avoidance..................................... 23

lla 24

C. Early American courts continued the English common

law tradition of conducting sufficient factual review to

SE TEI CII ccccessnecscenisicsinsenscsentscinsinsadeeimnass 26

a Pi cihatichiiniinicicdensepinsnianaptccnainincatisdatiniiminapitnssilotes 30

TABLE OF AUTHORITIES

CASES

Anonymous, 86 Eng. Rep. 230 (K.B. 1681).............:cccseeeeees 9

Barney's Case, 87 Eng. Rep. 683 (K.B. 1701).............c0e000 17

Booy Booysen [sic] and John Jurgenson Brandt, PRO,

Ee ES Be ictnencnistienrnnrernniteniins snsiinnid 6

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007)

ccnicatitigaiiaiiamicaiicibaitiehinniitiliitiniteiaialnitadithibielinataaipaninl 2, 3, 10

Brearly’s Case, PRO, KB21/2 (K.B. 1600-1601).........:.scs000: 9

Case of Bancha Ram (Sup. Ct., Calcutta, 1775), in THE

JUDICIAL NOTEBOOKS OF JOHN HYDE AND SIR ROBERT

CHAMBERS 1774-1798, Victoria Memorial Hall, Calcutta...14

Case of the Hottentot Venus, 104 Eng. Rep. 344 (K.B.

Case of Joseph Pavesi (Sup. Ct., Calcutta, 1776), in THE

JUDICIAL NOTEBOOKS OF JOHN HYDE AND SiR ROBERT

CHAMBERS 1774-1798, Victoria Memorial Hall, Calcutta...14

Case of Seroop Chund (Sup. Ct., Calcutta 1781), reported in

REPORT FROM THE COMMITTEE TO WHOM THE PETITION OF

JOHN TOUCHET AND JOHN IRVING, AGENTS FOR THE ENGLISH

SUBJECTS RESIDING IN THE PROVINCES OF BENGAL...WERE

SEVERALLY REFERRED (London, 1781).............c:cccssscceseeees 14

Case of Three Spanish Sailors, 96 Eng. Rep. 775 (C.P.

Fe Pein cicunsisnnincrtnpninsiiadinennimaninniaibsiiniiiimentenmneinunginaieesl 6, 25

Commonwealth v. Harrison, 11 Mass. R. 63 (1813)........... 28

Commonwealth v. Murray, 4 Binn. 487 (Pa. 1812)............. 28

Crisp 's Case, 94 Eng. Rep. 495 (K.B. 1744)...........cccceseeeee 17

Cumall a Deen Ally Khan v. Charles Goring, BL Add. MSS

38,400 folio 84 (Sup. Ct., Calcutta 1775)........:ccccessesseeerens 13

DuCastro’s Case, 92 Eng. Rep. 816 (K.B. 1697)...........:0000+ 6

Emerton's Case, 84 Eng. Rep. 829 (K.B. 1675)..........:000++: 22

Ex Parte Beeching, 107 Eng. Rep. 1010 (K.B. 1825).......... 25

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807).............+. 2,27

Ex parte Cabrera, 4 F. Cas. 964 (C.C.D. Pa. 1805)............ 28

Ex parte D’Olivera, 7 F. Cas. 853 (C.C.D. Mass. 1813).......7

Ex parte Hamilton, 3 U.S. (3 Dall.) 17 (1795)... 27

Fabrigas v. Mostyn, 20 Howell’s State Trials 81 (K.B.

PP eittihasinidcetietpieeninteidenbudieidtainiabiemtneninsalddaineinsnimagneeitoe 11

Gardener's Case, 79 Eng. Rep. 1048 (K.B. 1601).............. 24

Goldswain's Case, 96 Eng. Rep. 711 (K.B. 1778)...sssecso- 24

Good's Case, 96 Eng. Rep. 137 (K.B. 1760)...........c:ecceeee 24

Hans Anderson, et al., PRO, ADM1/3680 (K.B. 1778)........ 6

In re Coza Zachariah Khan, | Morley’s Dig. 277 (Sup. Ct.,

Re Wo i icincttccesindntannineninenssinntindinntaneitntesaccuneacitemsantins 14

In re Muddoosooden Sandell, 2 Morley’s Dig. 29 (Sup. Ct.,

SERPENT oe er ce ee oe LF OAD ee EO 15

In re Randolph, 20 F. Cas. 242 (C.C.D. Va. 1833).............. 27

INS v. St. Cyr, 533 U.S. 289 (2001)........... Sitaiesinicsiscslinieciainsbu 2

Jacob Lilliquest, et al., PRO, ADM1/3678 (KB.

Se pcehecinsncivcibitncitsticis hiseissinbétitidnianentahapiiibninaandetnstaabecsseemnnid 6

Jobson's Case, 82 Eng. Rep. 325 (K.B. 1626)..........:c.ccee00-+ 9

Leonard Watson's Case, 112 Eng. Rep. 1389 (K.B.

__—__ RSENS UO EDO RN eT OO TT 22

Matter of Oakes, 8 Monthly Law Reporter 122, 122 (Sup.

FED, Go. I Te cicccseinennesitasiiciteaindiisctiaiiismennsieniitimidl 27

R. v. Cowle, 97 Eng. Rep. 587 (K.B. 1759)...........00.- 3,9, 10

R. v. Dawes, 97 Eng. Rep. 486 (K.B. 1758)...........:.cccseesees 22

R. v. Delaval, 97 Eng. Rep. 913 (K.B. 1763)...........:cceeeees 26

R. v. Kessel, 97 Eng. Rep. 486 (K.B. 1758)...........cccccesseeeees 22

R. v. Marsh, 81 Eng. Rep. 23 (K.B. 1688)............:.cc:csceseee 25

R. v. Monisee, 1 Morley’s Dig. 278 (Sup. Ct., Madras

SIFU conccsusesecinneseneseseiienncsenminenanetindisabioneiniindiiinasiiiamalinll 16

R. v. Nagapen, 1 Morley’s Dig., 278 (Sup. Ct., Madras

SBT ncreccssnsscninusttieneceaneetsleveineteidiianteetebsiasdinniabinaaannaal 16

R. v. Overton, 82 Eng. Rep. 1173 (K.B. 1668)............:::0e000 9

R. v. Ramgovind Mitter, Ind. Dec. (O.S.), I, 1009 (Sup. Ct.,

CED eee cerniecinsscsnintnncensiiinpntinniptsiinnsiapinatdianaiatbiiabmaidils 11

R. v. Salmon, 84 Eng. Rep. 282 (K.B. 1669)............cccccceeeeeees 9

R. v. Schiever, 97 Eng. Rep. 551 (K.B. 1759)..............00++ 6, 26

R. v. Turlington, 97 Eng. Rep. 741, 741 (K.B. 1761).......... 23

R. v. Winton, 101 Eng. Rep. 51 (K.B. 1792).........ccccecseeseee 21

Rajah Mohinder Deb Rai v. Ramcanai Cur, | Morley’s Dig.

ZTE Cae. Ce, Calsette 1794). ccoscesorseccsercrccevosscesssvossossesoneses 16

Rasul v. Bush, 542 U.S. 466 (2004)...............sssee0+- assim

Somersett’s Case, 20 How. St. Tr. 1 (K.B. 1772)...........:00000 5

Sparenburgh v. Bannatyne, 126 Eng. Rep. 837 (C.P. 1797)..7

State v. Brearly, 5 N.J. L. 555 (1819)........cccccececeesseeseeseeeees 28

State v. Cheeseman, 5 N.J. L. 522 (1819)..........cccceeeeeeeeeeees 27

Strudwick's Case, 94 Eng. Rep. 271 (K.B. 1744)................ 21

Sylvester's Case, 87 Eng. Rep. 1157 (K.B. 1703)................ 7

State v. Clark, 2 Del. Cas. 578 (Del. Ch. 1820).............20000 28

United States v. Bainbridge, 24 F. Cas. 946 (C.C.D. Mass.

ELE SARS CONN Bes ae a eNO T EE ee 28

Wilson v. Izard, 30 F. Cas. 131, 131-32 (C.C.D. N.Y.

Ee ee ee 29

STATUTES

Alien Enemies Act of 1798, ch. 66, § 1, 1 Stat. 577.............. 6

Detainee Treatment Act of 2005, Pub. L. No. 109-148, Tit.

EL 1

Habeas Corpus Act of 1679, 31 Car. 2, ©. 2....cccccccececeeeeeeeee 11

Military Commissions Act of 2006, Pub. L. No. 109-366,

SESS is EAE Aaa l

Regulating Act of 1773, 13 George 3, §14..........c:cccccseeeees 12

Settlement Act of 1781, 21 Geo. 3, €.70........cccccccccccesees 15, 16

LEGISLATIVE HISTORY

Proceedings in Parliament Against Edward Earl of

Clarendon, Lord High Chancellor of England, for High

Treason, and Other High Crimes and Misdemeanors: 15 and

19 Charles II. A.D. 1663-1667, 6 STATE TRIALS 291

Se ae a 10

PARLIAMENTARY Hist. (London, T.C. Hansard 1813)........ 18

Wilmot, J.E., Opinion on the Writ of Habeas Corpus, 107

I acta acnetettetiel 18

OTHER AUTHORITIES

Baker, J.H., AN INTRODUCTION TO ENGLISH LEGAL HISTORY

EES A a 4,17

Baker, J.H., Why the History of English Law has not been

Finished, CAMBRIDGE L.J. 74 (2000)............cccececoseeseeeeereeeeens 6

Blackstone, W., COMMENTARIES ON THE LAWS OF ENGLAND

EE a nae TORT 5, 6, 8,9

Chambers, Sir R., LECTURES ON ENGLISH LAW, COMPOSED IN

ASSOCIATION WITH SAMUEL JOHNSON, 1767-1773

Chambers, Sir. R., Letter to Rt. Hon. Charles Jenkinson, in

Liverpool Papers, Vol CCXII, East India Papers (Jan. 1778 —

Jan 1779) MS Add. 38,401 (1 Feb. 1778)...........cccccceeeeeeees 15

A COLLECTION OF STATUTES...AND AN ABRIDGEMENT OF

THE COMPANY’S CHARTERS (1794)...........ccccecscesseeseeeeeseeeees 13

Curley, T., SIR ROBERT CHAMBERS: LAW, LITERATURE AND

EMPIRE IN THE AGE OF JOHNSON (1998)...............ccceeeeee- 14, 15

Dodson, M., THE LIFE OF SIR MICHAEL FOSTER (1811).......19

THE CAMBRIDGE HISTORY OF THE BRITISH EMPIRE (Dodwell,

le GI Ce ersertnesssssrnpeemeperertenmennnbintinnnaiel 12, 13

Duker, W.F., A CONSTITUTIONAL HISTORY OF HABEAS

TEE cchinvcninciaoniettinntninenapsiaidantnimsetapiiitiisidinaabias 17

Freedman, E.M., Milestones in Habeas Corpus: Part I, 51

FB ces See ee ccicitcisacinnnatintagseteinnncatieiiinapiiiiatidd 27

Freedman, E.M., RETHINKING THE GREAT WRIT OF LIBERTY

Hafetz, J., Note, The Untold Story of Noncriminal Habeas

Corpus and the 1996 Immigration Acts, 107 YALE L.J. 2509

SIR MATTHEW HALE'S THE PREROGATIVE OF THE KING (The

Publications of the Selden Society, vol. 92) (Yale, D.E.C.,

ed., London: Pernard Quaritch, 1975)...............c0ccccee0. 4,5,9

Halliday, P.D. & White, G.E., The Suspension Clause:

English Text, Imperial Contexts, and American Implications

Vii

Hamilton, A., Federalist Paper No. 84, in THE FEDERALIST

PAPERS: A COLLECTION OF ESSAYS WRITTEN IN SUPPORT OF

THE CONSTITUTION OF THE UN’TED STATES 261 (Roy P.

IIE TEE iccnincniierisninnenipeincnidivnnbtnmtentaaintemenestied 29

Hastings, Gov., Letter to East India Company Directors,

TOL/L/PARL/2/9 (25 Feb. 1775)........c.sccscccssscssccsorsoserersrees 13

Hussain, N., THE JURISPRUDENCE OF EMERGENCY:

COLONIALISM AND THE RULE OF LAW (2003)............c00cense+s 14

Hurd, R.C., A TREATISE ON THE RIGHT OF PERSONAL

LIBERTY, AND ON THE WRIT OF HABEAS CORPUS

SETI ciensedrctpereepsinncenbitpetininberttinienighapitdagsibtapenapmaitetd 17, 19, 21, 24

THE JUDICIAL NOTEBOOKS OF JOHN HYDE AND SIR ROBERT

CHAMBERS 1774-1798, Victoria Memorial Hall, Calcutta...15

Holdsworth, W., A History OF ENGLISH LAW (2d ed.

Impey, Sir E., Letter to the Governor General and Council of

the East India Company, BL, MS Add. 16,265 (25 May

Spr Uallchinnitsibedennictnntaiesitpasintetnmnnetentaniinienatagnnnmitiinemmeninetibie 12

Jain, M.P., OUTLINES OF INDIAN LEGAL HISTORY

STE sistieiahemsicitsnitiriniabicanniaineadaipbeneenensignincmenumnnnesieniainin 12, 16

ROYAL INSTRUCTIONS TO BRITISH COLONIAL GOVERNORS (L.

By CT ote crcriailnsesnenietiantgenmancenntmmmteneniainmenenties 12

LONDON TIMES (Nov. 26, 1810)..............:ccccescsesssceessecesceenees 23

LONDON TIMES (Nov. 29, 1810)...........--:ccscscecssccesseseseeeeeees 23

LONDON TIMES (Nov. 30, 1801)............ccccccccsceeeesseeeeeeeeeeeees 23

LONDON TIMES (Nov. 29, 1809).............cccccssscesesceesseceneseeeees 12

Madden, F., & Fieldhouse, D., THE CLASSICAL PERIOD OF

THE FIRST BRITISH EMPIRE, 1689-1783 (1985)................04. 23

Neuman, G., Habeas Corpus, Executive Detention, and the

Removal of Aliens, 98 CoLtum. L. REV. 961

Vili

Nutting, H., The Most Wholesome Law: The Habeas Corpus

Act of 1679, 65 AM. HIST. REV. 527 (1959-60)....... 4

Oaks, D.H., Legal History in the High Court--Habeas

Corpus, 64 MICH. L. REV. 451 (1966)............cccccceseeeeees 17, 19

Oaks, D.H., Habeas Corpus in the States - 1776-1865, 32 U.

oo RR ES EERE ease: 26, 27

Oldham, J. & Wishnie, M., The Historical Scope of Habeas

Corpus and INS v. St. Cyr, 16 Geo. IMM. LJ. 488

a 19, 20, 21

Rodger, N. A. M., THE WOODEN WORLD: AN ANATOMY OF

THE GEORGIAN NAVY (1986)...........c0:-:sscessecessecsesetseeeneeeseeeeees 6

Sharpe, R.J.. THE LAW OF HABEAS Corpus (2d ed.,

Pi ccerparsiitihiairnnsmendnpemmncensccnistienigaiinnentainiinies 19, 20, 24, 25

Walker, R.S., THE CONSTITUTIONAL AND LEGAL

DEVELOPMENT OF HABEAS CORPUS AS THE WRIT OF LIBERTY

STATEMENT OF AMICI’

This case raises the question of whether the Military

Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat.

2600 (“MCA”), in combination with the Detainee Treatment

Act of 2005, Pub. L. No. 109-148, Tit. X, 119 Stat. 2739

(“DTA”), constitutes an unconstitutional suspension of the

writ of habeas corpus by limiting access to federal courts by

persons detained by the United States at the Unites States

Naval Base in Guantanamo Bay, Cuba (“Guantanamo”).

Amici curiae are professors of legal history at law schools

and universities in the United States, England and Australia

with expertise in English legal history prior to 1789 and/or

early American legal history. Amici curiae have a

professional interest in ensuring that the Court is fully and

accurately informed regarding the historical scope of the

common law writ of habeas corpus that, under this Court’s

precedents, is properly considered in evaluating the issues

raised under the Suspension Clause of the United States

Constitution.

SUMMARY OF ARGUMENT

Amici wish to clarify two points bearing on this

Court’s analysis of the constitutionality of the MCA’: the

availability of habeas corpus and the nature of habeas review

' A list of amici curiae is provided in the Appendix. Amici have no

personal, financial, or other professional interest, and take no position

respecting any other issues raised in the cases below, including the merits

of the underlying claims for relief of each detainee. All parties have

consented to the filing of this brief, proof of which has been lodged with

the Court. This brief was not written in whole or in part by any party, and

no person or entity other than amici or their counsel made any monetary

contribution towards the preparation or submission of this brief.

? Section 7(a) of the MCA amends 28 U.S.C. § 2241 to provide that “[nJo

court, justice, or judge shall have jurisdiction to hear or consider an

application for a writ of habeas corpus filed by or on behalf of an alien

detained by the United States who has been determined by the United

States to have been properly detained as an enemy combatant or is

awaiting such determination.”

at common law. Historical evidence has long been

considered by the Court as important in interpreting the

Great Writ's availability and scope as guaranteed by the

Suspension Clause and federal habeas statute. See, e.g., INS

v. St. Cyr, 533 U.S. 289, 301 (2001) (“[A]t the absolute

minimum, the Suspension Clause protects the writ as it

existed in 1789.”); see also Ex parte Bollman, 8 U.S. (4

Cranch) 75, 93-94 (1807) (Marshall, C.J.) (“for the meaning

of the term habeas corpus, resort may unquestionably be had

to the common law”). In this case, common law history from

England and the United States shows that habeas corpus was

available to petitioners regardless of their alienage, applied

in places regardless of a territory’s formal sovereign status,

and ensured searching factual review to prevent illegal

imprisonment and abuses of power.

Amici accordingly write to underscore the historical

accuracy of this Court’s recognition of the “writ’s

extraordinary territorial ambit.” Rasul v. Bush, 542 U.S. 466,

481 n.12 (2004); see also Brief of Legal Historians (Jan. 14,

2004) filed in Rasul v. Bush and al-Odah v. United States

(Nos. 03-334, 03-343), available at 2004 WL 96756.

Disregarding Rasul’s analysis of the historical reach of the

writ, the D strict of Columbia Circuit held in the present case

that “the history of the writ in England prior to the founding”

shows that “habeas corpus would not have been available in

1789 to aliens without presence or property within the

United States.” Boumediene v. Bush, 476 F.3d 981, 990

(D.C. Cir. 2007); see also Gov't Br. Opp. Cert. at 9, 14. That

contention misconstrues the nature of the common law writ

of habeas corpus, which turned neither the petitioner’s

alienage nor on the petitioner’s location within or without

sovereign bounds. To the contrary, history demonstrates that

the writ’s primary function was to ensure the legal behavior

of any agent acting pursuant to the Crown’s authority in

territory over which the Crown exercised de facto control.

Thus, habeas applied whenever the jailer operated pursuant

to the Crown’s authority, regardless of the petitioner’s

alienage and regardless of the sovereign status of the

territory in which he was detained.

Amici also write to correct the government” s assertion

that common law courts sitting in habeas jurisdiction were

barred from considering facts beyond those contained in the

jailer’s return. Gov’t Br. Opp. Cert. at 12. The so-called

“rule” against controverting the truth of the return, invoked

here by the Government, existed primarily to protect the role

of the jury—and thus lost its vigor outside of the post-

conviction criminal context. In cases of executive and other

non-criminal detention, courts employed a variety of

procedural mechanisms to permit the admission and

consideration of facts beyond the face of the return. Far from

the “particularly deferential military context” claimed by the

Government, /d. at 14, English and American courts were

especially vigilant in protecting individuals detained by

military authorities, and regularly engaged in independent

factual inquiry to ensure that those individuals were not

detained unlawfully.

ARGUMENT

I, AT COMMON LAW, HABEAS CORPUS JURISDICTION

FOLLOWED THE JAILER, NOT THE DETAINEE, TO ANY

TERRITORY UNDER THE DE FACTO CONTROL OF THE

CROWN.

In Rasul, this Court found that since “[t)here was ‘no

doubt’ as to the court’s power to issue writs of habeas corpus

if the territory was ‘under the subjection of the Crown,” the

application of habeas corpus to “persons detained at the

{Guantanamo Bay] base is consistent with the historical

reach of the writ of habeas corpus.” Rasul, 542 U.S. at 481-

82 (quoting R. v. Cowle, 97 Eng. Rep. 587, 598-99 (K.B.

1759)). The lower court, nevertheless, concluded that “(t]he

short of the matter is that given the history of the writ in

England prior to the founding, habeas corpus would not have

been available in 1789 to aliens without presence or property

within the United States.” Boumediene, 476 F.3d at 990.

Amic’ maintain that the lower court misconstrued the

principles governing the reach of the common law writ. °

A. Cou law h

jurisdiction regardless of a petitioner’s alienage.

The Great Wnit’s authority was rooted in the King’s

prerogative to ensure that officials delegated to discharge the

power of the Crown, especially jailers, were not abusing that

power. See SIR MATTHEW HALE'S THE PREROGATIVE OF THE

KING 228-29 (The Publications of the Selden Society, vol. 92)

(Yale, D.E.C., ed., London: Bernard Quaritch, 1975)(hereinafter

“HALE’S PREROGATIVES”) (“The gaols are all in the king’s

disposal...for the law hath originally trusted none with the

custody of the bodies of the king’s subjects...but the king or

> Amici refer throughout to the common law writ of habeas corpus ad

subjiciendum, developed in the sixteenth century, “chiefly to protect

subjects against unconstitutional imprisonment by privy councilors and

officers of state.” J.H. Baker, AN INTRODUCTION TO ENGLISH LEGAL

HISTORY 126 (2d ed. 1979). Habeas corpus was written into statute with

the Habeas Corpus Act of 1679, but judges had been issuing the writ on

purely common law grounds at least a century prior. See H. Nutting, The

Most Wholesome Law: The Habeas Corpus Act of 1679, 65 AM. HIST.

REV. 527-43 (1959-60). For the next two centuries, the common law writ

remained the primary means of challenging noncriminal forms of

confinement by state and private actors because the famed statutory writ

of the Habeas Corpus Act of 1679 applied only to criminal matters. See

W. Holdsworth, 9 A HistoRY OF ENGLISH LAW 117-18 (2d ed. 1938);

R.S. Walker, THE CONSTITUTIONAL AND LEGAL DEVELOPMENT OF

HABEAS CORPUS AS THE WRIT OF LIBERTY 82-83 (1960). The importance

of the common law writ can be seen in Aylesbury’s Case (1696), in

which the court, despite finding that petitioner was not bailable under the

Habeas Corpus Act, “thought it therefore very just and reasonable to bail

him, not as an act of duty to which they were obliged by the statute, but

as a discretionary act, which was in their power by the common law.”

P.D. Halliday & G.E. White, The Suspension Clause: English Text,

Imperial Contexts, and American menage at 32 n. 90 og

available at http://pe : (

such to whom he deputed it.”).* Because common law

habeas attached to the wrongs of the jailer, not the rights of

the petitioner, the availability of the common law writ was

unrelated to the petitioner’s nationality or alienage.

Thus, habeas corpus was traditionally available to all

manner of aliens detained in the King’s jails or otherwise

subject to the King’s authority. See, e.g., Somersett's Case,

20 How. St. Tr. 1, 79-82 (K.B. 1772) (releasing on habeas

African slave purchased in Virginia and briefly detained on

English soil pending voyage to Jamaica); “ase of the

Hottentot Venus, 104 Eng. Rep. 344, 344 (K.B. 1810)

(reviewing habeas petition of “native of South Africa”

* The term “subject,” as used by Hale and his contemporaries, arises in a

specific historic context and cannot be equated with modern notions of a

nation’s “citizens.” In his dissent in Rasul, Justice Scalia makes this

common mistake. 542 U.S. at 501-02 (Scalia, J., dissenting) (arguing that

“there would be habeas jurisdiction over a United States citizen in

Guantanamo Bay,” but that writ’s historic reach would not encompass

others, because “Guantanamo Bay is not a sovereign dominion, and even

if it were, jurisdiction would be limited to subjects.”) (emphasis added).

Subjecthood was a more fluid and permeable category than present-day

American citizenship: mere physical presence within territory under de

facto English control could subject a person to the King’s authority.

HALE’S PREROGATIVES, at 56 (“Every person that comes within the

king’s dominions owes a local subjection and allegiance to the king, for

he hath here the privilege of protection”); see also W. Blackstone, |

COMMENTARIES ON THE LAWS OF ENGLAND 358 (1769) (citing Hale for

proposition that “[I]ocal allegiance is such as is due from an alien, or

stranger born, for so long time as he continues within the king's dominion

and protection. . .”). The closest eighteenth century analog to Justice

Scalia's phrase “non-citizen” is not non-“subject,” but rather “alien.” /d.,

| COMMENTARIES 354 (“The first and most obvious division of the

people is into aliens and natural-born subjects. Natural-born subjects are

such as are born within the dominions of the crown of England ... and

aliens, such as are born out of it.””) (emphasis added). “Alienage” was not

a basis for barring access to habeas corpus. See discussion infra at 5-8.

The proper historical use of the term “dominion” (which was a

descriptive term rather than a term of art or formal territorial

classification) is discussed infra at noie 13.

allegedly held against her will in England). Cf Rasul, 542

U.S at 481-82 & n.11.°

Similarly, prisoners of war and alleged enemy aliens®

could challenge the legality of their detention by way of

habeas corpus. Even where in these cases courts ultimately

declined to discharge the petitioner, they reviewed the basis

for the prisoner’s detention on the merits. R. v. Schiever, 97

Eng. Rep. 551 (K.B. 1759); The Case of Three Spanish

Sailors, 96 Eng. Rep. 775 (C.P. 1779). Manuscripts’

underlying DuCastro’s Case, 92 Eng. Rep. 816 (K.B. 1697),

show that the King’s Bench issued a writ for Daniel

Ducastro and Francis La Pierre, “alien enemies and spies.”

The court bailed petitioners over counsel’s arguments that

petitioners’ status as foreigners disentitled them from access

to habeas, and ultimately discharged the men. Halliday &

* Habeas petitions from the late eighteenth century show that alienage

might itself be a cause for discharge. The Royal Navy frequently press-

ganged merchant sailors, including aliens, into serving on warships. See

generally, N. A. M. Rodger, THE WOODEN WORLD: AN ANATOMY OF

THE GEORGIAN NAVY 164-88 (1986). Many petitioners were able to

secure discharge on the ground that aliens were ineligible for

impressment. See, e.g., Hans Anderson, et al., The National Archives,

London (Kew) [PRO], ADM1/3680, folio 478 (K.B. 1778) (ordering two

Danes impressed into the Royal Navy. released on habeas corpus); Jacob

Lilliquest, et al., PRO, ADM1/3678, folios 123, 137 (K.B. 1759)

(holding a English ship captain in contempt for ignoring previous court

order to release a foreigner impressed upon his ship); Booy Booysen [sic]

and John Jurgenson Brandt, PRO, ADM1/3677, folio 262 (K.B. 1758)

(granting habeas release to two Danes impressed on the Princess Royal).

In the English context, an enemy alien was defined was an individual

native to a country in a declared war with England. See, e.g., Blackstone,

supra, 2 COMMENTARIES 401. All other aliens were “alien friends.” /d. at

1 COMMENTARIES 360. Similarly, in the American context, the definition

of an enemy alien has always been limited to nationals of a foreign

government against which the United States had declared war. See Alien

Enemies Act of 1798, ch. 66, § 1, 1 Stat. 577.

” Manuscripts provide an important supplement to seventeenth and

eighteenth century printed reports. See J.H. Baker, Why the History of

English Law has not been Finished, CAMBRIDGE L.J. 74, 82 (2000).

Amici are prepared to provide the Court with copies of any of the

manuscripts cited herein.

White, supra, at 27 n.72 (citing KB21/14, ff. 70v. and 72v.,

PRO, KB16/1/6 (teste 23 January 1697)).®

Early American courts likewise exercised jurisdiction

over habeas claims filed by or on behalf of aliens. See, e.g.,

Ex parte D’Olivera, 7 F. Cas. 853 (C.C.D. Mass. 1813)

(Story, J., on circuit) (discharging Portuguese sailors

imprisoned for desertion upon holding that American

desertion laws only applied to American ships); Rasul, 542

U.S at 481-82 & n.11. American courts also exercised

habeas jurisdiction over claims filed by or on behalf of aliens

alleged to be enemy aliens or prisoners of war. In

Lockington’s Case, for example, the Pennsylvania Supreme

Court considered the habeas petition of an Englishman

imprisoned as an enemy alien during the War of 1812.7

Bright (N.P.) 269 (Pa. 1813). The court held that it had

jurisdiction to hear the petition and considered at length

whether the statute authorized the marshal to detain

Lockington, concluding ultimately that it did. Jd at 301.

Even the dissent agreed that an alleged enemy alien might

receive habeas review, to determine whether the petitioner

was in fact an enemy alien. /d. at 298-99 (Brackenridge, J.).

In sum, both English and American courts exercised

jurisdiction over habeas corpus claims regardless of the

alienage of the petitioner. This jurisdiction, moreover, was

exercised even where the petitioner was alleged to be an

enemy alien during time of war.

* Even outside the habeas context, English courts that did not have the

power to provide relief to enemy aliens nonetheless had jurisdiction to

determine whether the petitioner before them was in fact an enemy alien.

See, e.g., Sylvester's Case, 87 Eng. Rep. 1157 (K.B. 1703) (holding that

a Frenchmen could challenge his designation as an enemy alien and

thereby gain access to English courts). Accord Sparenburgh v.

Bannatyne, 126 Eng. Rep. 837, 840-41 (C.P. 1797).

* Although Lockington’s petition was brought under a state statute, the

disposition of his case demonstrates the general understanding of habeas

corpus jurisdiction at common law in America. See G. Neuman, Habeas

Corpus, Executive Detention, and the Removal of Aliens, 98 COLUM. L.

REV. 961, 993 (1998).

B. Courts exercised common law _ habeas

urisdiction regard] ormal t

sovereignty.

As this Court has recognized, at common law the wnt

of habeas corpus had an “extraordinary territorial ambit.”

Rasul, 542 U.S. at 482 n.12 (internal quotation marks

omitted). Courts exercised jurisdiction over the habeas

petition of any person detained within territory under the

Crown’s de facto control, regardless of whether the territory

was under the Crown’s formal sovereignty. Jd. at 481

(“[T]he reach of the writ depended not on formal notions of

territorial sovereignty, but rather on the practical question of

the exact extent and nature of the jurisdiction or dominion

exercised in fact by the Crown.”). This Court’s conclusion in

Rasul is fully supported by the historical record, and amici

are unaware of any case before 1789 in which the common

law writ of habeas corpus was held not to extend to any

territory over which the Crown exercised sufficient power

and control to enforce it.

1. Habeas writs issued directly by the King’s

Bench in Westminster to persons detained

outside the realm of England.

Cases dating from the early seventeenth century

through the late eighteenth century demonstrate the gradual

expansion of the territorial ambit of habeas corpus. As

discussed above, the writ was used throughout this period to

ensure that no jailor acting in the name of the King was

exempted from the scrutiny of the King’s courts of law. See

Blackstone, supra, 3 COMMENTARIES 131 (“[F]or the king is

at all times [e]ntitled to have an account, why the liberty of

any of his subjects is restrained, wherever that restraint may

be inflicted.”)."°

'° See discussion of the term “subject,” supra at n.4.

Throughout the seventeenth century, English courts

issued common law habeas writs to so-called “exempt

jurisdictions” - territories which, because of ancient

privileges predating their acquisition by the English crown,

maintained their own local courts of law.’’ Despite royal

charters exempting these territories from general judicial

oversight by the central English courts, the common law writ

of habeas corpus still ran.'* Sir Matthew Hale noted the

importance of the writ’s broad territorial reach “partly in

respect of the interest the king hath in his subject, partly in

respect there is no other means to examine whether his

commitment be legal.” HALE’S PREROGATIVES, at 207.

Throughout the eighteenth century, habeas corpus

continued to reach exempt jurisdictions and distant sites

subject to de facto English control. Lord Mansfield, writing

his 1759 decision in R. v. Cowle, cited to a successful habeas

action brought in 1601 by one Henry Brearly in Berwick-on-

Tweed, an exempt jurisdiction on the Scottish-English

border outside the formal realm of England, and declared

that “[w]rits . . . such as writs of . . . habeas corpus . . . may

issue to every dominion of the Crown of England. There is

no doubt as to the power of this court, where the place is

'' These territories included Berwick-on-Tweed, the Isle of Man, the

Channel Islands, the Cinque Ports and Palatinates such as Durham. See

Blackstone, supra, 3 COMMENTARIES 79.

" See, e.g., Brearly’s Case, PRO, KB21/2, fols. 84v, 87 & 95 (KB.

1600-1601) (writ issued to Berwick-upon-Tweed, exempt jurisdiction on

the English-Scottish border) (cited in R. v. Cowle, 97 Eng. Rep. 587

(K.B. 1759)); Bourn's Case, 79 Eng. Rep. 465 (K.B. 1619) (writ issued to

Dover, a Cinque Port town); Jobson's Case, 82 Eng. Rep. 325 (K.B.

1626) (writ issued to Durham, a County Palatine; writs previously issued

to Calais and Bordeaux as early as fourteenth century). As the Court

noted in Rasul, in the decades following the passage of the Habeas

Corpus Act of 1641, English courts continued to exercise their common

law jurisdiction over habeas claims from petitioners detained outside

England. R. v. Overton, 82 Eng. Rep. 1173 (K.B. 1668) (writ issued to

isle of Jersey) and R. v. Salmon, 84 Eng. Rep. 282 (K.B. 1669). See also

Anonymous, 86 Eng. Rep. 230 (K.B. 1681).

under the subjection of the Crown of England.” 97 Eng.

Rep. at 599. Thus, “even if a territory was ‘no part of the

realm,’ there was ‘no doubt’ as to the court’s power to issue

writs of habeas corpus.” Rasul, 542 U.S. at 482 (quoting

Cowle).

Efforts to create enclaves beyond judicial reach were

seen as affronts to the rule of law. In 1667 the Ear! of

Clarendon was impeached and charged with attempting to

undermine the judicial exercise of habeas corpus by sending

persons “to be imprisoned against law in remote islands,

garrisons, and other places, thereby to prevent them from the

benefit of the law.” See Proceedings in Parliament Against

Edward Earl of Clarendon, Lord High Chancellor of

England, for High Treason, and Other High Crimes and

Misdemeanors: 15 and 19 Charles II. A.D. 1663-1667, 6

STATE TRIALS 291, 330, 396 (1668). In the present case, the

circuit court interpreted the “Clarendon Affair” as an

example of the unavailability of habeas corpus to detainees

held in certain locations. Boumediene, 476 F.3d at 989-90.

However, Clarendon’s prisoners were prevented from

enjoying “the benefit of the law” not because their territorial

location was beyond the jurisdiction of English courts, but

rather because those courts were prevented from exercising

their proper jurisdiction at common law by the very

communication and transportation problems created by

Clarendon’s actions — actions that Parliament held to be

"3 “(E}very dominion of the Crown of England” refers to every territory

under the control of the English Crown. “Dominion” understood in its

historical context is not a legal category of land-holding — colonies,

protectorates and dependent territories have all been described as

dominions — but rather an expressive term implying the breadth of the

Crown’s reach, applicable to any locale under the de facto control of the

English Crown. See generally OXFORD ENGLISH DICTIONARY (2d ed.

1989) (defining “dominion” as “(t]he territory owned by or subject to a

king or ruler, or under a particular government or control, esp. a country

outside England or Great Britain under the sovereignty of or owing

allegiance to the English or British Crown’) (emphasis added).

treasonous.'* The lower court’s reading turns the historical

record on its head: the Clarendon Affair does not prove the

limits of the common law reach of habeas corpus; on the

contrary, it demonstrates that creating enclaves of

unreviewable executive detention is antithetical to the very

purpose and history of the Great Writ.’*

The Framers of the United States Constitution,

steeped in English law, drew upon the common law

framework in drafting the Suspension Clause. That

framework was shaped by the learned opinions of Hale and

Blackstone, by precedents such as Brearly and Cowle, and

'* Parliament also responded to the Clarendon Affair with the Habeas

Corpus Act, 3] Car. 2, c. 2, passed in 1679, that reinforced the common

law understanding that habeas had a broad territorial scope, removed any

doubt that a court’s jurisdiction to issue the writ extended to detentions

overseas, and made it a separate offence to remove detained persons to

“Scotland, Ireland, Jersey, Guernsey, Tangier, or into Parts, Garrisons,

Islands or Places beyond the Seas, which are or at any time hereafter

shall be within or without the Dominions of his Majesty.” 31 Car. 2, c. 2,

Sects. XI-XII (emphasis added).

A century later, Sir Robert Chambers, successor to Blackstone

as Vinerian Professor of English Law at Oxford (and who later became a

Justice of the Supreme Court of Judicature at Calcutta, see infra at note

19), argued that despite the practical complications of enforcement,

habeas corpus was still the most effective legal recourse for those held, as

Clarendon’s prisoners had been, in extra-territorial detention. “Yet cases

have formerly happened of persons illegally sent from hence and

detained there in which a writ of habeas corpus would be the properest

and most effective remedy.” Sir R. Chambers, LECTURES ON ENGLISH

LAW, COMPOSED IN ASSOCIATION WITH SAMUEL JOHNSON, 1767-1773 at

7. & (1986).

'? Lord Mansfield expressed similar hostility to enclaves where executive

detention could not be effectively reviewed by courts. In Fabrigas v.

Mostyn, 20 Howell’s State Trials 81 (K.B. 1775), a “native” of Minorca

brought an action for false imprisonment and banishment against the

English military governor, who claimed immunity. In rejecting the

governor’s sweeping assertion of absolute executive power, Lord

Mansfield cautioned that “to lay down in an English court of justice such

monstrous propositions as that a governor ... can do what he pleases . . .

and is accountable to nobody — is a doctrine not to be maintained; for if

he is not accountable in this court, he is accountable nowhere.” /d. at 231.

by reaction to the misadventures of Clarendon, all of which

demonstrated that habeas prevented the establishment of

prisons beyond judicial reach.

2. Habeas writs issued by English law courts

located in overseas territories

English law courts established overseas, in a wide

variety of territorial locations with differing gradations of

allegiance to the Crown, possessed the power to issue the

writ of habeas corpus. See, e.g., Instruction Nos. 464 & 466,

in 1 ROYAL INSTRUCTIONS TO BRITISH COLONIAL

GOVERNORS 334-38 (L. Labaree, ed. 1967) (providing

instructions extending writ to Barbados in 1702, Bahamas in

1729, St. John in 1769, and Nova Scotia in 1749); F. Madden

& D. Fieldhouse, THE CLASSICAL PERIOD OF THE FIRST

BRITISH EMPIRE, 1689-1783 at 450 n.2 (1985) (regarding

extension of writ to Jamaica in late eighteenth century).

English courts in India, which provide a useful

analogy to the case at bar, also had authority to issue writs of

habeas corpus. Established by the Crown to ensure that the

East India Company complied with the common law,'® these

courts had jurisdiction over an area that was not sovereign

territory belonging to the Crown but nonetheless was under

‘® After Parliament passed the Regulating Act of 1773 to oversee the

admmistration of the East India Company, a royal charter established a

Supreme Court of Judicature at Calcutta with junsdiction that included

Bengal, Bihar, and Orissa and which had the “full power and authority”

to adjudicate “all complaints against any of his majesty’s subjects for any

crimes, misdemeanors or oppressions” in a manner similar to the King’s

Bench. 13 George III, §14. The Court took seriously its responsibilities to

check abuses by the East India Company, as evidenced by Chief Justice

Impey’s warning to the Company’s Governor General: “Though the

immediately so under that of the laws. One great end of the institution of

our court is their protection, particularly against British subjects vested

with real or pretended authority.” Chief Jeice Sir Elijah txpey, Letter

to the Governor General and Council of the East India Company, BL,

MS Add. 16,265 (Impey Letterbook 1774-76) f29v (25 May 1775).

de facto English control. M.P. Jain, OUTLINES OF INDIAN

LEGAL History 383-137 (1952).'’ Further, habeas reached

into India not through a specific statutory grant, but through

the common law."

The Supreme Court at Calcutta’s jurisdiction over

habeas claims was not limited by the petitioner’s alienage as

long as the jailer in question was operating under the

authority of the Crown or a Crown-chartered organization.

As stated by Justice Robert Chambers of the Supreme Court

at Calcutta, “I conceive every man in these provinces,

whether subject to our jurisdiction or no, to be entitled to a

habeas corpus, upon ... reason to believe that he is

imprisoned without any just cause, by a person employed by

the East India Company.” Cumall a Deen Ally Khan v.

Charles Goring, BL Add. MSS 38,400 folio 84 (Sup. Ct.,

'? Britain intentionally delayed assertions of forma! sovereignty over the

range of territories controlled by the East India Company until 1813. 4

THE CAMBRIDGE HISTORY OF THE BRITISH EMPIRE 605 (Dodwell, H.H.

ed. 1929) (“Down to [1813] the British assertion of sovereignty within

the Company's possessions had been spasmodic and incomplete.”).

'§ Habeas corpus is not mentioned the Regulating Act, and a subsequent

royal charter for the Supreme Court of Judicature at Calcutta enumerated _

the Court’s power to issue writs of “mandamus, certiorari, procedendo

and error” but not habeas corpus. “Charter for Erecting a Supreme Court

of Judicature at Fort William, in Bengal,” of March 1774, in A

COLLECTION OF STATUTES...AND AN ABRIDGEMENT OF THE COMPANY'S

CHARTERS (1794), Appendix, p.1. The Court was able to implement the

common law, however, and it was in the common law that habeas power

resided. “The powers of Justice of the Court of King’s Bench at common

law are given severally and respectively to the Judges of this Court; and

as (according to Blackstone) the Judges of the King’s Bench used to

issue writs of habeas corpus severally, we have agreed that we have

severally authority to issue the writ.” R. v. Ramgovind Mitter, Ind. Dec.

(O.S.), 1, 1009 (Sup. Ct., Calcutta, 1781) (Chambers, J.). Even the

Governor General of the East India Company, whose employees were the

recipients of habeas writs issued by the Court, acknowledged the Court’s

jurisdiction, explaining to company directors that “the Court cannot

avoid issuing such writs, if the complainants swear that the defendants

are employed in the service of English subjects.” Governor General

Hastings, Letter to East India Company Directors, IOL/L/PARL/24,

no. 16, ff. 265-268 (25 Feb. 1775).

Calcutta 1775) (opinion of Chambers, J.) (emphasis in

original) (ordering the release of a revenue collector detained

by the East India Company for alleged late payments).'? This

court issued scores of habeas writs, including many for

petitioners of Indian or other non-English alienage.”” To the

extent the limits of the Supreme Court at Calcutta’s habeas

jurisdiction were discussed, the question turned not on the

formal territorial sovereignty of the site of detention, but on

the competence of local courts. Only when a local court was

competent to review and redress unlawful detention might

the English court consider declining to exercise its common

law habeas jurisdiction as a matter of comity.”"

'® Robert Chambers (1737-1803) had a long and distinguished career as a

legal scholar and jurist. He succeeded Blackstone as Vinerian Professor

of English Law at Oxford, served as Principal of New Inn Hall, Oxford,

and enjoyed a twenty-five year long tenure as a Justice (later Chief

Justice) of the Supreme Court of Judicature at Calcutta. See generally T.

Curley, SiR ROBERT CHAMBERS: LAW, LITERATURE AND EMPIRE IN THE

AGE OF JOHNSON (1998).

» See, e.g., Case of Seroop Chund (Sup. Ct., Calcutta 1781) (Lemaistre,

J.), reported in REPORT FROM THE COMMITTEE TO WHOM THE PETITION OF

JOHN TOUCHET AND JOHN IRVING, AGENTS FOR THE ENGLISH SUBJECTS

RESIDING IN THE PROVINCES OF BENGAL...WERE SEVERALLY REFERRED

(London, 1781), unpaginated, Appendix 9 (issuing writ to bail Indian

jailed for failure to repay debt); Jn re Coza Zachariah Khan, | Morley

Dig. 277 (Sup. Ct., Calcutta 1779) (issuing writ to Indian held in “a

distant place” and ordering its return upon receipt); Case of Bancha Ram

(Sup. Ct., Calcutta 1775), in THE JUDICIAL NOTEBOOKS OF JOHN HYDE

AND SIR ROBERT CHAMBERS 1774-1798, entry of 13 Feb. 1776, 72 vols.,

R4073 ff., Victoria Memorial Hall, Calcutta (hereinafter “NOTEBOOKS”)

(describing writ issued to Indian detainees jailed by English authorities);

Case of Joseph Pavesi (Sup. Ct., Calcutta 1776) in NOTEBOOKS (same, as

to French national detained in Bengal). See generally N. Hussain, THE

JURISPRUDENCE OF EMERGENCY: COLONIALISM AND THE RULE OF LAW

80-81 (2003).

" In Case of Sanson (Sup. Ct. Calcutta 1776), the four justices of the

Supreme Court at Calcutta disagreed about the court’s ability to

discharge a French national ordered by a local Indian court to be held in

an English-controlled jail on assault charges. See Curley, supra at 242-

43, 593-94 n.61. Justice Chambers recommended deference to the local

courts. See Sir. R. Chambers, Letter to Rt. Hon. Charles Jenkinson, in

Parliament recognized the application of the writ

outside the realm of England to non-English aliens — that is, .

the use of habeas by Indian petitioners in India — even as it

attempted to limit that application by statute. In 1781, at the

behest of the East India Company, Parliament passed the Act

of Settlement, which allowed jailers to defeat a petition for

habeas Corpus on behalf of a non-English alien by producing

a statement from the Governor-General of the East India

Company that the Company had authorized the detention. 21

Geo. III c.70; see also Jain, supra, at 122. However, the Act

did not extinguish the Supreme Court’s ability to exercise

habeas corpus to “accommodate ... the religion and

manners” practiced locally, which invited the Court to use

habeas corpus to settle family disputes: and to deferid .

individuals held improperly on private or local authority

rather than Company authority. 21 George.3, c. 70, s. 19, see

also Halliday & White, supra, at 77-81. Throughout the end

of the eighteenth century and into the nineteenth, English

courts in India repeatedly used their habeas jurisdiction to do

so.

Liverpool Papers, Vol CCXII, East India Papers (Jan. 1778 — Jan. 1779)

MS Add. 38,401 ff 28a-28b (1 Feb 1778). By contrast, Justices Hyde and

LeMaistre thought the local courts were inferior to the English courts,

and sought a fuller account of Sanson’s detention before denying relief.

Hyde, NOTEBOOKS, 16 and 22 Apr. 1776. Justice Lemaistre went so far

as to suggest convening before the Supreme Court a trial, complete with

witnesses, on the circumstances and legal merits of the detention. Jd.

Chief Justice Impey worried that the local courts would not heed the

Supreme Court’s ruling, and that Sanson’s case was “not amenable to

us.” See Liverpool Papers, Vol CCXII, East India Papers (Jan. 1778 — Jan

1779) MS Add. 38,401 ff 28a-29b, Sanson ultimately escaped, mooting

the case before the court could issue a decision. /d. at 30a (all reported in

Curley, supra, at 242-43, 593-94 n.61. Nonetheless, Justice Hyde’s

position was bore out in subsequent cases, as the Supreme Court

exercised habeas jurisdiction over local court systems. See, e.g., B.N.

Pandey, THE INTRODUCTION OF ENGLISH LAW INTO INDIA 151°(1967)

(discussing writ issued in 1777 on behalf of Indian arrested and confined

without trial by local criminal court in Bengal, outside Calcutta).

” See, e.g., In re Muddoosooden Sandell, 2 Morley’s Dig. 29 (Sup. Ct.

Calcutta 1815) (issuing writ on behalf of mother against son); Rajah

In sum, the proceedings of English courts — whether

sitting in London or in overseas territories, whether operating

in permissive or restrictive statutory environments —

demonstrate the broad territorial reach of habeas corpus.

They show that the common law writ’s availability did not

depend on formal constructs such as sovereignty or on the

alienage of the prisoner but instead extended to any territory

where the crown possessed sufficient power and control to

ensure the jailor’s obedience to the writ’s command.

Il. THE WRIT PROVIDED FOR MEANINGFUL AND

INDEPENDENT JUDICIAL INQUIRY REGARDING THE

FACTUAL BASIS FOR DETENTION, INCLUDING

CONSIDERATION OF ADDITIONAL EVIDENCE.

The Government has asserted that habeas courts at

common law “engage[d] in highly deferential sufficiency

review” that precluded prisoners from contesting the facts

alleged in the custodian’s return. Gov’t Supp. App. Br. at 51.

That assertion is incorrect, as it ignores the difference

between post-conviction criminal cases and other forms of

executive or other non-criminal detention. English and

American judges in the time surrounding the Founding

routinely looked beyond the face of the return to ensure that

individuals received meaningful judicial inquiry regarding

the factual basis for their detention.

Mohinder Deb Rai v. Ramcanai Cur, | Morley’s Dig. 277 (Sup. Ct.,

Calcutta 1794) (issuing writ and discharging Indian prisoner detained by

order of provincial court). A separate supreme court established at

Madras in 1801, see Jain, supra, at 125, likewise continued to issue writs

of habeas corpus. See, e.g., R v. Nagapen, 1 Morley’s Dig., 278 (Sup.

Ct., Madras 1814) (writ issued on behalf of mother to obtain possession

of her illegitimate infant unlawfully in putative father’s custody); R. v.

Monisee, | Morley’s Dig. 278 (Sup. Ct., Madras 1810) (issuing writ to

petitioners held outside Madras by local jailer).

B. mmon i w

greatest outside the context of post-criminal

convictions,

The Government’s contention that common law

courts were strictly bound by the four comers of the

custodian’s return (or response) to a habeas corpus petition is

historically inaccurate. To the contrary, the general rule

against traversing — or disputing — the facts asserted in the

return applied primarily in post-conviction criminal cases.”

While courts generally did not allow criminal detainees—

who had already received a trial and a jury verdict—to

contradict the facts stated in the return,” they commonly

exercised independent review over the factual assertions of

prisoners in cases of executive and other non-criminal

detention that lacked the safeguards of a jury trial by

considering additional evidence. J. Hafetz, Note, The Untold

Story of Noncriminal Habeas Corpus and the 1996

Immigration Acts, 107 YALE L.J. 2509, 2535-36 (1998). In

cases arising out of “partially judicial, partially executive

® This distinction is recognized by Dallin Oaks, despite his work having

been cited prominently—and erroneously—by the Government. D.H.

Oaks, Legal History in the High Court--Habeas Corpus, 64 MICH. L.

REV. 451, 454 n.20 (1966) (“[W]ith respect to imprisonments other than

fer criminal matters, however, the exceptions to the mule against

controverting the return were ‘governed by a principle sufficiently

comprehensive to include . . . most cases’ so that it was impossible to

specify those [non-criminal] cases in which it could not [be

controverted].””) (quoting R.C. Hurd, A TREATISE ON THE RIGHT OF

PERSONAL LIBERTY, AND ON THE WRIT OF HABEAS CORPUS 270-71

(1858) (bracketed language and ellipsis in original).

By contrast, courts entertaining habeas petitions of pretrial criminal

detainees seeking bail often considered extrinsic factual evidence going

to the legality of the arrest. See, e.g., Crisp's Case, 94 Eng. Rep 495

(K.B. 1744) (in considering return of commitment on allegation of

highway robbery, examining affidavits “containing very strong

circumstances to show that the prisoner did not commit the fact” and

entering nisi order to bail); Barney's Case, 87 Eng. Rep. 683 (K.B. 1701)

(granting bail for woman indicted for killing her husband after allowing

her to introduce affidavits of fact showing malicious prosecution).

bodies, the writ moved yet closer to its role as a safeguard

against the arbitrary power of the Crown itself.” W.F. Duk-r,

A CONSTITUTIONAL HISTORY OF HABEAS CORPUS 80 (1980).

Accord Baker, INTRODUCTION, supra, at 419 (observing that

the expanded powers of summary conviction “infringed the

principle that a man should only be judged by his peers, and .

. . were regarded with deep suspicion by the superior

judges”). To that end, Exgiish and American judges in the

seventeenth and eighteenth centuries ensured that individuals

challenging executive detention received meaningful and

independent review of both factual and legal questions.

Full exploration of the Government’s chief historical

source for the general rule against traversing the retum

shows that its reliance is misplaced for two reasons. First,

among leading English jurists in the mid-eighteenth century,

there existed a multiplicity of views surrounding the effect of

the return, and the rule against traversing the return was

neither iron-clad nor the prevailing view among judges.

Second, and equally important, even defenders of the rule

against traversing the return permitted the introduction of

facts in habeas cases by a range of other means.

The Government principally relies on a statement by

Justice John Eardley Wilmot, Opinion on the Writ of Habeas

Corpus, 107 Eng. Rep. 29 (H.L. 1758), during the debate on

the failed 1758 habeas corpus bill. Gov’t Supp. App. Br. at

51. The bill would have extended certain procedural reforms

available in criminal cases under the Habeas Corpus Act of

1679 to non-criminal cases and codified the common law

practice of permitting the habeas petitioner to controvert

facts stated in the return. 15 PARLIAMENTARY Hist. 871-74

(London, T.C. Hansard 1813). Wilmot opined that judges

sitting in habeas were constrained by the return, except “by

the clearest and most undoubted proof”—a jury verdict. 107

Eng. Rep. at 60.

Wilmot’s view, however, was not commonly

accepted. See J. Oldham & M. Wishnie, The Historical

Scope of Habeas Corpus and INS v. St. Cyr, 16 GEO. IMM.

L.J. 488, 495 (2002) (criticizing account contained in W. S.

Holdsworth, 9 A HISTORY OF ENGLISH LAW 120 (reprint

1966)). Six of the twelve common law judges disagreed with

Wilmot’s views, and after the failure of the 1758 bill, an

alternative bill drafted by the judges expressly permitted

judicial examination into the truth of the facts alleged in the

return. Oldham & Wishnie, supra, at 490. In particular,

Justice Michael Foster, widely respected by his colleagues

for his expertise in criminal law, stated of non-jury executive

detertion cases, “as they come not within the general reason

of the law, [they] are not within the general rule.” Letter,

Justice Foster to Chief Baron Parker, 20 How. St. Tr. 1378

(cited in Hurd, supra, at 267 (1858)). Foster recognized that

if denied the opportunity to controvert the truth of the facts

claimed in the return, a man pressed into military service

could be sent away far from any court without an

opportunity to contest the deprivation of his liberty. In such

circumstances, “he is absolutely without remedy” because

"{ajn ineffectual remedy is no remedy; it is a rope thrown to

a drowning man, which cannot reach him, or will not bear

his weight.” Oldham & Wishnie, supra, at 489 (citing M.

Dodson, THE LIFE OF SIR MICHAEL FOSTER 57-62 (1811)

(reprinting letter dated May 24, 1758). Thus, Wilmot’s

statement by no means represented a consensus viewpoint.

R.J. Sharpe, THE LAW OF HABEAS CORPUS 66 (2d ed., 1989)

(“[TJhere was nothing like unanimity in favour of Wilmot’s

formulation of the common law rule. In fact, there would

seem to have been a preponderance of judicial opinion which

favoured a more liberal construction.”). Indeed, prisoners

detained without charge contested the facts in the return in

“most ... cases.” Oaks, supra, 64 MICH. L. REV. at 454 n.20

(emphasis added).

The judges’ debate was narrowly focused on what

happened after the return was made, not on the broader issue

of whether habeas petitions were barred from introducing, or

whether judges might request or consider, additional facts.

15 PARLIAMENTARY HIST., supra, at 872. At common law, a

jailer made a return only after the court issued the writ. A

prisoner moved, or “petitioned,” for a writ of habeas corpus.

The court could immediately enter the writ, thereby calling

for the jailer to make a return. Instead of immediately issuing

the writ, however, the court could issue an order to show

cause, or rule nisi, why the writ should not issue. See infra,

at 22-23. At that stage of the proceedings, because the return

had not been entered, both sides were able to contest the

factual and legal basis of the detention. Thus, common law

judges ~ including Lord Mansfield, who concurred with

Wilmot that “the Writ of Habeas Corpus issues upon the

return supposing the facts alleged to be true”” — employed a

variety of procedural mechanisms to conduct a full judicial

inquiry into the factual basis of non-criminal detentions,

including the consideration of extrinsic facts.

C. Habeas corpus provided _a_ flexible and

powerfu! tool for judges to inquire into the factual

and legal basis for a prisoner’s detention.

Common law courts routinely considered evidence

beyond the face of the return in non-criminal contexts such

as impressments and private detentions. As one historian

recognized, “courts have never really been prevented by the

_ common law rule from reviewing facts essential to the

jurisdiction or authority underlying the order for detention.”

Sharpe, supra, at 70. See also G. Neuman, Habeas Corpus,

Executive Detention, and the Removal of Aliens, 98 COLUM.

L. REV. 961, 980 (1998) (acknowledging that “[o]ne of the

maxims of eighteenth-century habeas corpus practice had

been that the petitioner could not controvert the facts stated

in the return,” but noting that the “general statement papered

over exceptions”). Instead, by the eighteenth century, courts

treated the so-called rule against controverting the truth of

the return as essentially a procedural hurdle and reviewed

5 Oldham & Wishnie, supra, at 492 (citing Mansfield’s own notes of the

debates, Scone Palace MSS, Bundle 1352, unpublished manuscript).

additional evidence submitted by the prisoner if (1) the

return was deemed insufficient; (2) prior to the entry of a

return, the court issued a rule nisi, essentially converting the

writ into an order to show cause; (3) the petitioner

“confessed” to the facts contained in the return, which then

permitted the introduction of additional factual allegations;

or (4) the evidence pertained to jurisdictional facts, which

often extended to the very core of the case and effectively

vitiated the rule altogether. See generally Sharpe, supra, at

66-68, 72-73; Hurd, supra, at 267-71. In short, common law

courts exercised an arsenal of mechanisms that formally

preserved the respective roles of judge and jury in criminal

cases while permitting judicial fact-finding in a wide range

of cases of executive and other-non-criminal detention,

where a prisoner had not received — and would not receive —

the full panoply of protections provided in jury trials.

1. False or insufficient return

Courts did not hesitate to admit additional relevant

information or even to conduct their own interview of

witnesses and documents when a return appeared insufficient

or false. Sufficiency of the return—a statement of the cause

for detention and process given—was fundamental to

preserving the integrity of the writ. R. v. Winton, 101 Eng.

Rep. 51 (K.B. 1792) (“The courts always look with a

watchful eye at the returns to writs of habeas corpus. The

liberty of the subject so essentially depends on a ready

compliance with the requisitions of this writ that we are

jealous whenever an attempt is made to deviate from the

usual form of the return.”’). Further, if the court had cause to

believe a return was false—regardless of its adherence to

legal form—the court permitted additional factfinding. See

Leonard Watson's Case, 112 Eng. Rep. 1389, 1415 (K.B.

1839) (declining to establish blanket rule providing that

custodian bear affirmative burden of demonstrating the

veracity of the return, but permitting petitioner to

demonstrate on traverse that the facts in the original return

were false and, upon such a showing, compelling jailer to

explain the untruths im the original return or to provide

further evidence of the return’s veracity). Thus, in

Strudwick’s Case, 94 Eng. Rep. 271 (K.B. 1744), in response

to a return that a prisoner was too sick to be produced in

court, the court considered affidavits from both sides

attesting to the prisoner’s state of health. See also Emerton’s

Case, 84 Eng. Rep. 829 (K.B. 1675) (finding return

insufficient on basis of affidavit attesting that petitioner’s

wife was still under respondent’s custody).

2. Rule nisi: order to show cause

Perhaps the most common means of independent

judicial fact-finding was to evade the return altogether. Upon

receiving a motion for habeas corpus, the court issued a rule

nisi in advance of a writ for habeas corpus. The jailer was

ordered to show cause as to why the court should not issue

the writ (which could be rebutted by the petitioner), instead

of filing a return, which was presumptively binding. If the

jailer was unable to show cause, the writ issued, and the

petitioner had the advantage of the factual record already

developed. In R. v. Dawes, 97 Eng. Rep. 486 (K.B. 1758),

for example, Lord Mansfield “went minutely through the

affidavits on both sides” on an order to show cause for the

discharge of an impressed sailor, ultimately finding that the

impressment was valid. In a parallel case, Lord Mansfield

considered the case of a man who claimed he had been

illegally conscripted into military service by force. On a rule

nisi, the lawyers argued “upon the fact only,” and the court,

having taken “time . . . to look into the affidavits,” ordered

the petitioner’s discharge. R. v. Kessel, 97 Eng. Rep. 486

(K.B. 1758).

Rules nisi commonly issued in private detentions as

well. In R. v. Turlington, 97 Eng. Rep. 741, 741 (K.B. 1761),

the court discharged a woman contesting her confinement in

a “mad-house” after ordering a medical imspection,

reviewing that doctor's affidavit from the medical inspection,

and examining the woman, who appeared to be sane. In Case

of the Hottentot Venus, 104 Eng. Rep. 344, 344-45 (K.B.

1810), the court considered multiple affidavits from

witnesses and ordered an examination of a “native of South

Africa” to assess whether she was confined against her

will.”*. These and numerous other examples demonstrate that

courts employed the rule nisi procedure on habeas to

consider new facts in determining whether the prisoner was

lawfully detained.”

3. Confession and avoidance

Courts overseeing habeas proceedings also engaged

in factual review by permitting detainees to “confess and

avoid” the return, allowing the petitioner to admit the

allegations in the return and then file a special pleading to

matters that did not explicitly contradict the return, including

2° Contemporaneous news reports indicate that the court undertook

lengthy factual inquiry in considering the habeas petition brought on

behalf of the “Venus Hottentot,” a woman from South Africa who was

alleged to be held and exhibited to the public against her will. 104 Eng.

Rep. at 344-45. Over two days of proceedings, the court considered

affidavits of a businessman who had tumed down an offer to buy the

detainee and another person who had gone to the exhibition and attested

in detail to the prisoner’s apparent misuse. On this extrinsic evidence, the

court ordered that the prisoner be brought forth to determine whether she

was being kept against her will. LONDON TIMES at 3B (Nov. 26, 1810).

The court conducted a three hour independent examination of the

detainee, and ultimately decided against issuing the writ, based upon the

detainee’s own testimony that she was employed in accordance with her

own will. LONDON TIMES at 3D (Nov. 29, 1810).

7” See LONDON TIMES at 4A (Nov. 30, 1801) (reporting case of John

Rogers, who was detained by doctor as insane person; noting that court

considered several affidavits from numerous doctors and relatives on

both sides of the issue, and ordered that the writ should enter, but only to

provide a court-appointed investigator to examine Mr. Rogers at the

asylum); LONDON TIMES at 3B (Nov. 29, 1809) (reporting case of Tilley

Mathews, whose relatives filed a petition when the governors of the

hospital refused to release her; noting that the court considered multiple

affidavits, and ordered hearing to consider “what additional evidence

could be procured,” including affidavits from the detainee’s doctors).

additional facts not contained in the return. For example, in

Goldswain's Case, 96 Eng. Rep. 711 (K.B. 1778), the court

looked beyond the admiralty’s return to a petition brought by

a bargeman who had been impressed by the Admiralty

despite being under the protection of the Navy-Board while

carrying cargo for the King. The return made no mention of

the claimed protections, but merely contained the statutory

basis for impressment and the time and place Goldswain was

taken. The court rejected the contention that it must defer to

the admiralty’s statement of the factual and legal basis for

detention: “[W]e are not concluded by the return but the

petitioner may plead to it any special matter necessary to

regain his liberty.” Jd. The court then decided, on the basis of

the additional factual evidence in the petitioner’s special

pleading submitted in response to the return, that he had been

subject to protection by the Navy-Board and ordered his

discharge. See also Good's Case, 96 Eng. Rep. 137 (K.B.

1760) (accepting the petitioner’s affidavit stating that he was

a ship-carpenter and thus entitled to an exemption from

enlistment based on the petitioner's status as a freeholder);

Gardener's Case, 79 Eng. Rep. 1048 (K.B. 1601) (ordering

discharge based on petitioner’s “confession” that he had

possessed a handgun and additional submission that such

possession was justified due to petitioner’s status as deputy

sheriff); Hurd, supra, at 353-61. “Confessing and avoiding”

the return thus provided an important means of remedying

unlawful detentions by enabling judges to consider existing

evidence and to ensure there was adequate factual basis for

executive and other non-criminal detentions.

4. Jurisdictional facts

Common law courts also frequently considered

extrinsic evidence without resorting to any of the technical

procedural mechanisms discussed above. These cases

suggest that courts were willing to review jurisdictional

facts—i.e., evidence showing that the detention in question

was beyond the custodian’s authority. Sharpe, supra, at 73

(“[A]dmittedly, there can be little doubt that it is difficult to

— a jurisdictional fact from a non-jurisdictional

” but inferior courts and executive agencies would

ine be permitted to establish the limits of their own

powers, “and the courts have long considered that such

unfettered powers would be intolerable with respect to the

liberty of the subject.”). In Ex Parte Beeching, 107 Eng. Rep.

1010 (K.B. 1825), for example, the court considered the

legality of civil arrests under the Custom Act. The statute

required that persons arrested under the statute be reviewed

by justices of the peace residing near the place of arrest. The

return alleged that petitioners were taken by their own

consent to a jail more than 150 miles from their place of

arrest. Justice Abbot stated that because the case arose under

common law habeas, the effect of the return was an open

issue. He observed that “[tJhere is a very good reason for not

permitting the truth of a return to be traversed where the

person is charged with a crime, for that would be trying him

upon affidavits,” and thus usurping the role of the jury, but

held that such reservations did not apply to the committing

a .thority’s jurisdiction, including the manner of arrest. Jd.

In many instances, jurisdictional facts went to the

heart of the case. Where the legality of detention turned on a

factual requirement—such as enemy alien status or a factual

basis for impressment— courts conducted an independent

inquiry into the underlying facts, including evidence

submitted by the prisoner, regaruless of the return. Sharpe,

supra, at 115-16 (habeas court will investigate whether

detainee “is in fact and in law” an enemy alien or a prisoner

of war). In R. v. Schiever, 97 Eng. Rep. at 551, a Swedish

national challenged his detention as a prisoner of war. The

court considered not only the affidavit of the petitioner, a

Swedish sailor detained as a prisoner of war, but also that of

Oluf Orundell, who was on board the privateer with the

petitioner. Jd Though the court ultimately found that the

petitioner was a prisoner of war, it considered extensive

extrinsic evidence before doing so. Accord Three Spanish

Sailors, 96 Eng. Rep. at 775 (reviewing affidavits and bodies

of petitioners before determining that petitioners “upon their

own showing” were enemy aliens); R. v. Marsh, 81 Eng.

Rep. 23 (K.B. 1688) (denying discharge of petitioner

committed for piracy by admiralty following thorough

review of all manner of evidence, including petitioner’s own

statements).

D. Early American courts continued the English

common _law_ tradition of conducting sufficient

factual review to prevent illegal detention.

Early American courts similarly used the writ to

remedy all manner of unjust commitment, even when doing

so required factual inquiry beyond the face of the return. R.

v. Delaval, 97 Eng. Rep. 913, 915-16 (K.B. 1763), in which

Lord Mansfield conducted a full factual inquiry into the case

of a girl held against her will, has been noted as “probably

the best known and most influential habeas corpus authority

imported into the country with the common law.” D.H. Oaks,

Habeas Corpus in the States - 1776-1865, 32 U. Cui. L. REV.

243, 271-72 (1965). Numerous examples from the Founding

era confirm that judges routinely considered evidence

beyond the face of the return, particularly in cases outside of

the post-criminal conviction context. American courts,

moreover, conducted fact-finding without resort to the

formal procedural mechanisms used in England to consider

additional evidence.

Chief Justice Marshall contemplated that courts

sitting in habeas would review the decisions of committing

magistrates for their adherence to core principles of due

process by looking beyond the four corners of the return. In

Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), Marshall

considered a habeas petition by two defendants who had

been arrested on charges of treason and committed pending

trial. The Court “fully examined and attentively considered”

the “testimony on which [the prisoners] were committed,” in

the prisoners’ presence, during proceedings that stretched

over five days. Jd. at 125. Marshall made clear that it was the

Court’s responsibility to undertake a plenary examination of

the evidence, which, he noted, “the court below ought to

have done.” Jd. at 114. The Court discharged the prisoners

due to insufficient proof of the “actual assemblage of men

for the purpose of executing a treasonable design” which the

crime of levying war against the United States required. /d.

at 125-36; see also Ex parte Hamilton, 3 U.S. (3 Dall.) 17,

17-18 (1795) (describing examination of affidavits submitted

by prisoner and witnesses).

Previous executive process did not foreclose a factual

inquiry by a court during habeas proceedings. For example,

Chief Justice Marshall, sitting on circuit, considered both

factual and legal issues in reviewing the commitment of a

civil debtor by a municipal authority. Jn re Randolph, 20 F.

Cas. 242 (C.C.D. Va. 1833) (Marshall, CJ., on circuit). At

the hearing, counsel for petitioner presented two new

documents—authentic copies of the petitioners’ original

accounts to refute the accuracy of return, and the underlying

warrant. 20 F. Cas. at 242. The court pointed to the

municipal authority’s erroneous accounting to demonstrate

that the flawed quasi-judicial process was illegal. While the

court acknowledged that it could not order a reaccounting, it

could order release, which it did. /d. at 25.

The executive detention of military deserters drew

especial judicial scrutiny. Numerous cases indicate that

courts “exercising their original habeas jurisdiction were not

bound by the returns to their writs, but commonly conducted

evidentiary hearings to examine the substantive legality of

** State courts also routinely considered extrinsic evidence in cases of

non-criminal detention to determine that there was an adequate factual

basis for the prisoner’s confinement. See also State v. Cheeseman, 5 N.J.

L. 522, 525 (1819) (considering upon returm testimony and affidavits

from mother, child and alleged guardians, and refusing to turn child over

to guardians over child’s own desires); Matter of Oakes, 8 Monthly Law

Reporter 122, 122 (Sup. Jud. Ct. Mass. 1845) (not reported) (cited in

Oaks, 32 U. Cui. L. REV. at 267) (remanding after two-day evidentiary

hearing that commitment of mentally ill petitioner was proper).

detentions.” See E.M. Freedman, Milestones in Habeas

Corpus: Part I, 51 ALA. L. REV. 531, 572-73 & n.130 (2000)

(collecting cases). For example, the district court conducted

a detailed factual inquiry into the petitioner’s state of mind

and determined that he “enlisted ... when he was wholly

incapable of transacting business or understanding it by

reason of intoxication,” thus invalidating the legal basis for

commitment. E.M. Freedman, RETHINKING THE GREAT WRIT

OF LIBERTY 166 & n.56 (2001) (citing and discussing Matter

of Peters, M-1215 (D.W. Tenn. Dec. 31, 1827)).”” Thus, as

in the English impressment cases, American military

enlistment cases often turned on extrinsic evidence submitted

in response to the return. See, e.g., State v. Clark, 2 Del. Cas.

578 (Del. Ch. 1820) (discharging soldier based upon newly

submitted evidence contradicting the return and showing that

soldier was underage and intoxicated at time of enlistment).

Courts exercised ihe same independent and de novo

factual inquiry regardless of the petitioner’s alienage. In Ex

parte Cabrera, 4 F. Cas. 964, 964-66 (C.C.D. Pa. 1805), a

foreign diplomat submitted a petition to federal district court

on the grounds that he was entitled to immunity from

imprisonment under state law for debt, and supplied

numerous documents in response to the return. The court

agreed, finding that the newly submitted pieces of evidence

“fully establish” that there was no lawful basis for his

confinement. Jd. at 966; see also Commonwealth v.

?° See also Commonwealth v. Murray, 4 Binn. 487 (Pa. 1812) (following

the submission of a return from naval officers attesting to the legality of

the enlistment of an alleged minor, consider testimony of minor’s mother

regarding his age, family history and whether or not she in fact gave

consent); State v. Brearly, 5 N.J. L. 555 (1819) (in response to return on

habeas petition brought by proprietor on behalf of minor apprentice

enlisted in navy, considering prisoner’s and petitioner's own testimony

and parties’ stipulation of certain facts). C/ United States v. Bainbridge,

24 F. Cas. 946, 949-52 (C.C.D. Mass. 1816) (Story, J., on circuit)

(deciding as matter of law that Congress could require enlistment of

minors without parental consent, but recognizing that court otherwise

would have entertained detailed affidavits on issue of consent).

;

’

Harrison, 11 Mass. R. 63 (1813) (en banc) (ordering

discharge upon affidavit of Russian captain to whom

prisoner was given as apprentice and examination of Russian

enlistee, despite plain face of return that apprentice swore to

U.S. military officer that he was of age).

Courts similarly scrutinized the factual and legal

basis for the executive detention of alleged enemy aliens.

Again, courts considered additional facts submitted to show

there was no lawful basis for the detention. See, e.g., Wilson

v. Izard, 30 F. Cas. 131, 131-32 (C.C.D. N.Y. 1815)

(adjudicating habeas petition by English enlistees who

claimed, inter alia, that as “alien enemies” they were

ineligible to serve in military, “a fact not appearing on the

return, but sworn to at the time of the allowance of the

habeas corpus”); Lockington’s Case, Bright (N.P.) 269 (Pa.

1813) (habeas corpus would issue if a petitioner contested

the Government’s factual assertions by submitting an

“affidavit . . . [stating] that he is not an enemy alien”).

In sum, English and American cases from the

seventeenth through the nineteenth centuries demonstrate

that the writ of habeas corpus functioned as a vigorous and

critical limit on mnon-criminal detentions. Far from

considering themselves bound by the four corners of the

retum, judges routinely considered extrinsic evidence such

as in-court testimony, third party affidavits, documents, and

expert opinions to scrutinize the factual and legal basis for

detention. Only by providing meaningful review were courts

able to protect the integrity of the Great Writ and to prevent

the “practice of arbitrary imprisonments, . . . in all ages, the

favorite and most formidable instrument{ ] of tyranny.” A.

Hamilton, Federalist Paper No. 84, in THE FEDERALIST

PAPERS: A COLLECTION OF ESSAYS WRITTEN IN SUPPORT OF

THE CONSTITUTION OF THE UNITED STATES 261 (Roy P.

Fairfield, ed. 1981).

CONCLUSION

For the foregoing reasons, amici respectfully request that this

Court exercise jurisdiction over the habeas corpus petitions

and ensure independent judicial inquiry regarding the factual

and legal basis for petitioners’ detention.

Michael J. Wishnie

Hope R. Metcalf

Allard K. Lowenstein

International Human Rights

Clinic—National Litigation

Project

Yale Law School

127 Wall Street

New Haven, CT 06510

(203) 432-1660

Jonathan Hafetz

Brennan Center for Justice at

N.Y.U. School of Law

161 Avenue of the Americas

New York, NY 10013

(212) 998-6289

August 2007

Respectfully submitted,

James Oldham

(Counsel of Record)

St. Thomas More Professor of

Law & Legal History

Georgetown University Law

Center

600 New Jersey Avenue,

N.W.

Washington, D.C. 20001

(202) 662-9090

Counsel for Amici Curiae

APPENDIX: LIST OF AMICI CURIAE’

Sir John H. Baker

Downing Professor of the Laws of England

St. Catharine's College

University of Cambridge

Cambridge CB3 9DZ

United Kingdom

Mary Bilder

Professor of Law

Boston College Law School

885 Centre Street

Newton, MA 02459

Barbara A. Black

George Welwood Murray Professor of Legal History

Columbia Law School

435 West 116th Street

New York, NY 10027

Dr. Paul Brand

Senior Research Fellow

All Souls College

University of Oxford

Oxford OX1 3BD

United Kingdom

Chris Brooks

Professor of History

Durham 1! 'niversity

Durham DH1

United Kingdom

* Affiliations of amici are provided for identification purposes only.

Christine Desan

Professor of Law

Harvard Law School

1563 Massachusetts Avenue

Cambridge, MA 02138

Charles Donahue

Paul A. Freund Professor of Law

Harvard Law School

1563 Massachusetts Avenue

Cambridge, MA 02138

Lawrence M. Friedman

Marion Rice Kirkwood Professor of Law

Stanford Law School

559 Nathan Abbott Way

Stanford, CA 94305

Robert W. Gordon

Chancellor Kent Professor of Law & Legal History

Yale Law School

Box 208215

New Haven, CT 06520

Sarah Barringer Gordon

Professor of Law and History

University of Pennsylvania Law School

3400 Chestnut Street

Philadelphia, PA 19104

Thomas A. Green

John Philip Dawson Collegiate Professor of Law

University of MichiganLaw School

625 South State Street

Ann Arbor, MI 48109

Hendrik A. Hartog

Class of 1921 Bicentennial Professor of the History of

American Law & Liberty

214 Dickinson Hall

Princeton University

Princeton, NJ 08544

Daniel Hulsebosch

Professor of Law and History

New York University School of Law

40 Washington Sq. South

New York, NY 10012

Stanley N. Katz

Professor of Public & International Affairs Woodrow Wilson

School

Princeton University

Princeton, NJ 08544

David Lieberman

Jefferson E. Peyser Professor cf Law and History

University of California, Berkeley

Boalt Hall School of Law

Berkeley, CA 94704

Professor Michael Lobban

Professor of Legal History

Queen Mary School of Law

University of London

London El 4NS

United Kingdom

Eben Moglen

Professor of Law

Columbia Law School

435 West 116th Street

New York, NY 10027

William E. Nelson

Judge Edward Weinfeld Professor of Law

New York University School of Law

40 Washington Square South

New York, NY 10012

James Oldham

St. Thomas More Professor of Law & Legal History

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

Wilfrid Prest

Professor of Law and History

University of Adelaide

SA 5005

Australia

Jonathan Rose

Professor of Law & Willard H. Pedrick Distinguished

Research Scholar

Arizona State University College of Law

P.O. Box 877906

Tempe, AZ 85287

David J. Seipp

Professor of Law

Boston University School of Law

765 Commonwealth Avenue

Boston, MA 02215

A.W. Brian Simpson |

Charles F. and Edith J. Clyne Professor of Law |

University of Michigan Law School

625 South State Street

Ann Arbor, MI 48109

T. Robert Travers

Associate Professor of History

Cornell University

450 McGraw Hall

Cornell University

Ithaca, NY 14853-4601

John Fabian Witt

Professor of Law and History

Office 514 Jerome Greene Hall

Columbia Law School

435 West 116th Street

New York, NY 10027

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