Amicus Curiae Brief — INS v. St. Cyr

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No. 00-767

IN THE ) OPBICL OF Th OLER:

Supreme Court of the United States

Immigration and Naturalization Service,

Petitioner,

vs.

Enrico St. Cyr,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF LEGAL HISTORIANS LISTED

HEREIN IN SUPPORT OF RESPONDENT

TIMOTHY G. NELSON

Four Times Square

New York. New York 10036

(212) 735-2193

DOUGLAS W. BARUCH

MICHAEL J. ANSTETT

CONSUELO J. HITCHCOCK

DAVID B. WISEMAN

Fried, Frank, Harris, Shriver &

Jacobson

1001 Pennsylvania Avenue, N.W.

Suite 800

Washington, D.C. 20004

(202) 639-7368

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) 662-9000

MICHAEL J. WISHNIE

161 Avenue of the Americas

New York, NY 10016

(212) 998-6430

AMICI

J.H. Baker

Downing Professor of the

Laws of England

St. Catharine’s College

University of Cambridge

England

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 Scholar

All Souls College

University of Oxford

England

James S. Cockburn

Professor of History Emeritus

Department of History

University of Maryland

College Park, MD 20742

Christine Desan

Professor of Law

Harvard Law School

Cambridge, MA 02138

Eric M. Freedman

Professor of Law

Hofstra University

School of Law

Hempstead, NY 11549

Lawrence M. Friedman

Marion Rice Kirkwood

Professor

Stanford Law School

559 Nathan Abbott Way

Stanford, California 94305

Robert W. Gordon

Fred A. Johnston Professor

of Law & Professor of

History

Yale Law School

127 Wall Street

New Haven CT 06520

Sarah Barringer Gordon

Professor of Law & History

University of Pennsylvania

Law School

3400 Chestnut Street

Philadelphia, PA 19104

* Affiliations listed for identification purposes only.

Thomas A. Green

John Philip Dawson

Collegiate Professor of Law

& Professor of History

University of Michigan

625 South State Street

Ann Arbor, MI 48109

Hendrik Hartog

Class of 1921 Bicentennial

Professor of the History of

American Law & Liberty

History Department

Princeton University

Princeton, NJ 08544

Morton J. Horwitz

Charles Warren Professor of

the History of

American Law

Harvard Law School

Cambridge, MA 02138

Stanley Katz

Professor of Public &

International Affairs,

Woodrow Wilson School

Princeton University

Princeton, NJ 08544

Daniel M. Klerman

Associate Professor of Law

University of Southern

California

Los Angeles, CA 90089

Eben Moglen

Professor of Law

Columbia Law School

435 West 116th Street

New York, NY 10027

William E. Nelson

Joel S. & Anne B.

Ehrenkranz Professor of Law

New York University

School of Law

40 Washington Square South

New York, NY 10012-10016

James Oldham

St. Thomas More Professor

Law & Legal History

Georgetown University

Law Center

600 New Jersey Avenue N.W.

Washington, D.C. 20001

John P. Reid

Russell D. Niles

Professor of Law

New York University

Schoo! of Law

40 Washington Square South

New York, NY 10012

ill

Harvey Rishikoff

Professor of Law

Roger Williams University

Ralph R. Papitto School of Law

Ten Metacom Avenue

Bristol, RI 02809-5171

Jonathan Rose

Professor of Law

Arizona State University

College of Law

Box 988906

Tempe, Arizona 85287

David J. Seipp

Professor of Law

Boston University

School of Law

765 Commonwealth Avenue

Boston, MA 02215

TABLE OF CONTENTS

em Page(s)

See te RON GU PORE ks Ske md caun bine binge seas bes ]

SUMMARY OF ARGUMENT ........... aon ace eae el ae l

EE 5.8 Sic kas cs aa bbe ck Roo ba Obed eee 4

AT COMMON LAW IN ENGLAND, HABEAS

CORPUS WAS AVAILABLE GENERALLY TO

REVIEW THE LEGALITY OF CIVIL CONFINE-

MENT, WITHOUT LIMITATION AS TO CITI-

ZENSHIP OR THE NATURE OF THE ILLEGAL -

ee 8! | error rr ry ey ree Te ere re 4

A. Case Law and Commentaries Demonstrate

the General Availability of the Writ to Chal-

lenge the Legality of Civil Confinement ........ 4

l. By the Eighteenth Century, Habeas

Corpus Was Established as a Gen-

~ eral Remedy for Unlawful Deten-

tion, Whether Civil or Criminal ........ 4

a Eighteenth Century Courts Granted

the Writ to Review the Legality of

Detention in a Wide Range of Civil

OO PP er er ee eee Pre Tere ?

a. Habeas Corpus as a

Remedy Against Impress-

ME kb teak creak een eekas 5

be SREY

b. Habeas Corpus as a Remedy

Against Civil Detention by

Executive Bodies and Infe-

RP CE FCA ed 5

é. Habeas Corpus as a Remedy

1 TE TAME «ix ve awracios 7

d. Habeas Corpus as a Remedy

Against Other Forms of

Non-criminal Confinement ..... 8

3. The Scope of Habeas Review in the

Eighteenth Century Encompassed

Questions of Law, Including Ques-

tions of Statutory Interpretation ........ 8

4. At Common Law, the Writ of Habeas

Corpu > Ran Throughout the Sover-

eign's ‘erritory and Applied to All

Persons Present Therein, Including

Fe ee yen, Geer mite aigre 10

The Eighteenth and Early Nineteenth Century His-

tory of Habeas Corpus Legislation in England Re-

flects a General Understanding That Civil Habeas

Was Available to Review Executive Detention at

Pee eee oe eee 11

A, The Habeas Corpus Act of 1679 ....... 11

2. The Habeas Corpus Bill of 1758 ....... 12

3. The Habeas Corpus Act of 18]6 ....... 15

IN COLONIAL AND EARLY POST-COLONIAL

AMERICAN LAW, HABEAS CORPUS WAS GEN-

ERALLY AVAILABLE TO REVIEW THE LE-

GALITY OF CIVIL CONFINEMENT, WITHOUT

LIMITATION AS TO CITIZENSHIP OR THE

NATURE OF THE ILLEGALITY ASSERTED .......

A. Habeas Corpus As Known In England Was

Fully A Part of Early American Law ..........

B. In the Post-Colonial Era, Habeas Corpus

Was As Broad and Effective a Remedy As

1 NG os sc ccthoncusasanveueneeurtess

l. The Founders Enshrined Habeas

Corpus in its Full Width and Effect ....

yA Post-Colonial Case Law Evidences

The Wide and General Application

of Habeas Corpus To Review Ques-

GOMOD 56 6-043 Fi ae caai nena babes

a. Habeas as a Remedy for

Indentured Servants ..........

b. Habeas As Applied in Civil

BNE GEO ic ib vcézruénceds

6. Habeas Jo Redress Unlaw-

ful Military Enlistment ........

d. Habeas Relief For Deserters

From Foreign Ships ..........

Vii

e. Habeas as a Remedy

Against Other Forms of

Civil Confinement ........... 26

CONCLUSION

Viil

TABLE OF AUTHORITIES

CASES PAGE(S)

Attorney General v. Fenton, 19 Va. (5 Munf.) 292 (Va.

Ona ede hon weed aR ee mk kaw eae aes 21

Bamfield v. Abbot, 2 F. Cas. 577 (D. Mass. 1847) ............ 24

Bank of U.S. v. Jenkins, 18 Johns. 305 (N.Y. Sup. Ct. 1820) .... 21

Ex parte Boggin, 104 Eng. Rep. 484 Ss SURED 6c 443 50R0 ena 5

Bushell's Case, 69 124 Eng. Rep. 1006 ot ae eee 6

Calvin's Case, 77 Eng. Rep. 377 (1608) .................. 10-11

In re Carlton, 7 Cow. 471 (N.Y. Sup. Ct.1827) .............. 24

C'wealth v. Alexander, 6 Binn. 176 (Pa. 1813) ............... 21

C'wealth v. Cornman, 4 Binn. 483 (Pa. 1812) ................ 21

C'wealth v. Cushing, 11 Mass. (11 Tyng) 67 (Mass. 1814) ..... 23

C'wealth v. Downes, 41 Mass. (24 Pick.) 227 (Mass. 1836) .. 18, 24

C'wealth v. Edwards, 6 Binn. 202 (Pa. 1813) ................ 20

C'wealth v. Harrison, 11 Mass. 63 (Mass. 1814) ............. 25

C'wealth v. Holloway, | Serg. & Rawle 392 (Pa. 1815) ........ 25

C'wealth v. Keeper of Jail, 4 Serg. & Rawle 505 (Pa. 1818) .... 21

C'wealth ex rel. Kerr v. Brady, 3 Serg. & Rawle 309 (Pa.

kd Eee PE EEE RTT re bene EE ee kvewken 26

C'wealth ex rel. Lewis v. Holloway, 6 Binn. 213 (Pa. 1814) ..... 27

C'wealth ex rel. Menges v. Camac, | Serg. & Rawle 87 (Pa.

POE Sides RS a SAAN EERSTE Canoe RS a 23

C'wealth v. Morey, 8 Mass. (8 Tyng) 78 (Mass. 1811) ......... 26

C'wealth v. Murray, 4 Binn. 487 (Pa. 1812) ...............0. 23

C'wealth ex rel. Stephenson v. Vanlear, 1 Serg. & Rawle 248

A SU phe ho chan ei oi te esos rl 20

C'wealth v. Waite, 19 Mass. (2 Pick.) 445 (Mass. 1824) ........ 21

C'wealth v. Ward, 4 Mass. (4 Tyng) 497 (1808) .............. 26

C'wealth ex rel. Webster v. Fox, 7 Pa. 336 (Pa. 1847) ......... 24

Davis v. Coburn, 8 Mass. 299 (Mass. 1811) ...............-. 20

Case of the Deserters from the British Frigate L'Africaine, 3

oe i he EET EEE CORSE ET ee ey 25

Discharge of Richardson, Worcester Sup. Jud. Ct., Mass.,

a UE ihe 5 5 LES Chae hae es 21, 22

Dr. Groenvelt's Case, 91 Eng. Rep. 1038 (K.B. 1702) .......... 6

Elkison v. Deliesseline, 8 F. Cas. 493 (Cir. Ct. D. S.C. 1823) ... 27

Ex parte D'Olivera, 7 F. Cas. 853 (Cir. Ct. D. Mass. 1813) .. 18, 26

Ex parte Drydon, 101 Eng. Rep. 235 (K.B. 1793).............. 5

Fitzpatrick v. Neal, 3 N.C. (2 Hayw.) 8 (N.C. 1797) ...... eee 21

Gardener's Case, 78 Eng. Rep. 1048 (K.B. 1600) ............. 6

Goldswain's Case, 96 Eng. Rep. 711 (C.P. 1778) .............. IM

Ja re Goodemaugn, 19 Wis. 274 (IGG) oa occa ca oc ee evi ws 20

Gusty v. Diggs, 11 F. Cas. 128 (Cr. Ct. D.C. 1820) ......... 20, 21

Hetley v. Boyer, 79 Eng. Rep. 287 (K.B. 1613)................ 6

Case of Hippolyte Dumas, 2 Am.L.J.86 ........-..--.++-+- 25

Hite v. Fitz-Randolph, 3 Va. (1 Va. Cas.) 269 (1812) .... Srey 26

Hollingshead's Case, 91 Eng. Rep. 307 (K.B. 1702) ........... 6

Case of The Hottentot Venus, 104 Eng. Rep. 344 (K.B. 1810) ... 10

Kennedy & Co. v. Fairman, 2 N.C. (1 Hayw.) 408 (N.C.

cB rca une ae oe) bears re egevehct ears as 21

Lister's Case, 5 Re ee ye | eer rer yore 8

Ex parte Mason, 5 N.C. (1 Mur.) 336 (N.C. 1809) ............ 23

In re McDonald, 16 F. Cas. 33 (D. Mass. 1866) .............. 24

McMullen v. Charleston, | S.C.L. (1 Bay) 46 (S.C. 1787) ...... 27

Ex parte McNeil, 6 Mass. 245 hiees. SN ics eke cae ea 21

Ex parte Minor, 17 F. Cas. 457 (Cir. Ct. D.C. 1823) ....... 26, 27

Oakes, 8 Monthly Law Reporter (Sup. Jud. Ct. Mass. 1845) .... 27

In re Pederson, 19 F. Cas. 91 (SDNY. 1881)... 0 eek 25

Ex parte Pool, 4 Va. (2 Va. Cas.) 276 (1821) .............-.. 25

R. v. Delaval, 97 Eng. Rep. 913 (K.B. 1763).................. 8

mV. Ee, OS Ee. Be. Se Ge. TOP sn os 8

R. v. Nathan, 93 Eng. Rep. 914 (K.B. 1724 [reported 1730]) ..... 8

R. v. Schiever, 97 Eng. Rep. 551 (K.B. 1759) ............... 10

a. cg wench, op ing Be ag) Hee EEE EO EE EC ee 10_

R. v. Turlington, 97 Eng. Rep. 741 (K.B. 1761) .............. 1]

R. v. White, 20 Howell's State Trials 1376 (K.B. 1746) ......... 5

In re Randolph, 20 F. Cas. 242 (Cir. Ct. D. Va. 1833) ... 18,21, 22

Respublica v. Betsey, 1 U.S. 469 (Mem.) (Pa. 1789) ........... 27

Respublica v. Keppele, 2 U.S. 197 (Mem.) (Pa. 1793) ......... 20

Richards v. Goodson, 4 Va. (2 Va. Cas.) 381 (Va. 1823) ....... 21

Shorthouse & Ross v. Carothers, 3 Yeates 182 (Pa. 1801) ...... 21

Sim's Case, 61 Mass. (7 Cush.) 285 (1851) ................. 24

Somerset v. Stewart, 20 Howell's State Trials 1 (K.B. 1772) .. 7,10

In re Stacy, 10 Johns. 328 (N.Y. Sup. Ct. 1813) .............. 23

Xll

State v. Applegate, 13 S.C.L. (McCord) 110 (1822) ........... 26

State v. Brearly, 5 N.J.L. 555 (N.J. Sup. Ct. 1819) ............ 24

State v. Clark, 2 Dei. Cas. 578 (Del. Ch. 1820) % ....... 2.6.4... 24

ete v. Tame 2 TE. GO CIRO oc vo ks ne cen a eweae a eees 27

eer: CRF PEED. Dee Cee nic sca s ad an o-cae eee 27

State v. Sheve, 1N.J.L. (1 Coxe) 230 (N.J. 1794) ............. 20

State v. Taylor, 3 N.J.L. 467 QN.J. 18QB) . oo. wc eee eee ever

U.S. v. Bainbridge, 24 F. Cas. 946 (Cir. Ct. D. Mass. 1816) ........

i 5 ORR TA RED a en KR ee 18, 23, 24

U.S. v. Desfontes & Gaillard (S.D. Ga. 1830), ............... 25

U.S. v. Lawrence, 3 U.S. (3 Dall.) 42 (Mem) Le See : 25

UG v. Fader, 26 F. Cas. 22 GT. FOS) sci ceva sa nas 24

; U.S. ex rel. Turner v. Wright, 28 F. Cas. 798 (Cir. Ct. W.D.

PO. FORE 6 66d ee now kate 5 4 eee ee entteeneiemen 24

U.S. v. Villato, 28 F. Cas. 377 (Cir. Ct. D: Pa. 1797) .......... 18

Ex Parte Watson, 10 U.S. (6 Cranch) 52 (1810) .............. 22

U.S. v. Wyngall, 5 Hill 16 (N.Y. Sup. Ct. 1843) .............. 25

Washburn v. Belknap, 3 Conn. 502 (1821) ................5. 26

Wilson v. Izard, 30 F. Cas. 131 (Cir. Ct. D. N.Y. 1815) ........ 25

X11

STATUTES & LEGISLATIVE MATERIALS PAGE(S)

ec a oe kadai a caudate 19

ee avg ook sob Ska es’s |

eG boss u vbeeacccve ee 1

ESS |

I 22

NS 1]

Habeas Corpus Act 1679 (Eng.) .................... 11, 12, 19

Habeas Corpus Bill 1758 (Eng.) ........7......... 9, 12, 13, 14

Habeas Corpus Act 1816 (U.K.) (56 Geo. III, c. 100) .. 9, 12, 13, 14

cS 14

OTHER AUTHORITIES PAGE(S)

Marc M. Arkin, The Ghost at the Banquet: Slavery, Federal-

ism, and Habeas Corpus for State Prisoners, 70

re a eee 17, 23, 27

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND (Ist ed. 1765-1769) .................... 4,5

A.H. Carpenter, Habeas Corpus in the American Colonies, 8

CMT Es OO cc cv ace cavcccoeues 17

XIV

Zechariah Chafee, Jr., The Most Important Human Right in

the Constitution, 32 B.U. L. REV. 143 (1952) ...... 17, 18

C.R. CHENEY (ed.), HANDBOOK OF DATES FOR STUDENTS OF

ROE MG TRONS GAO TO Eick ok chan ba ao ee ines ices 12

WILLIAM S. CHURCH, A TREATISE ON THE WRIT OF HABEAS

Ce te ROD ono eva) ohne seo wee 18, 20

EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF

THE LAWS OF ENGLAND

(1642 ed.) (William S. Hein Co. 1986) ......... 5

DODSON, THE LIFE OF SIR MICHAEL FOSTER, KNT. ( 1811)... 14,15

WILLIAM F. DUKER, A CONSTITUTIONAL HISTORY OF HaA-

GIES 6 os ik ew vide e thei nw xe den 16, 17, 19

LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW

ee gs 17

Eric M. Freedman, Milestones In Habeas Corpus: Part I, 57

FA Fas Pe : a on dike ho ha es bap Os 26

Jonathan L. Hafetz, The Untold Story of Noncriminal Ha-

beas Corpus and the 1996 Immigration Acts, 107

FE ee IE oa ee Che Rebbe keene he 7

PRINCE. HOARE, MEMOIRS OF GRANVILLE SHARP (1820) ........ 7

W.S. HOLDSWORTH, HISTORY OF ENGLISH LAW (2d ed.

1938) (Methuen & Co., Sweet & Maxwell, 1966

SE occ b ei oe eee. ewe ahead Gea khese +

ROLLIN C. HURD, A TREATISE ON THE RIGHT OF PERSONAL

LIBERTY AND ON THE WRIT OF HABEAS CORPUS AND

THE PRACTICE CONNECTED WITH IT (2d ed. 1876

(reprint, Da Capo Press, 1972))

SLAP EAE Oe LEERY ORS KS REREAD OH TS passim ©

Barbara W. Kern, The English High Judiciary & the Politics

of the Habeas Corpus Bill of 1758, in HENDRICK

HARTOG, WILLIAM NELSON, & BARBARA W. KERN,

(eds.) LAW AS CULTURE & CULTURE AS LAW (2000) .... 12

LONDON CHRONICLE, March 18-21, 1758 ................... 13

LONDON EVENING Post, April 28 - May 2, 1758 ............. 13

THE MONITOR OR BRITISH FREEHOLDER, ME Si REO ENG Sa Sis 14

IMEORNING CHRONICLE, June 16,1777 <2... ooo c ccc cee ccne 10

William E. Nelson, The American Revolution and the Emer-

gence of the Modern Doctrine of Federalism and

Conflict of Laws, 62 COLONIAL SOC. OF MASS. 419

SR A wa eda ee NR EEN WA Teas Cheep cuke 22

Gerald L. Neuman, Habeas Corpus, Executive Detention,

and the Removal of Aliens, 98 COLUM. L. REV. 961

SO he ele cna e ia aes eee ay eS 18, 25

Dallin H. Oaks, Habeas Corpus in the States - 1776-1865,

Sa. CU. E.. REV. 245 1965) .. 0... ss. 17, 18, 18, 22

JAMES OLDHAM, THE MANSFIELD MANUSCRIPTS AND THE

GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CEN-

EE co So hee een ee ee. 7,10

XV1

James Oldham, New Light on Mansfield and Slavery, 27

JOUR. OF BRITISH STUDIES 45 (1988) ..............00.

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

JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF

THE UINITER STATIS CIs inc che wee seks eaacas

—--

STATEMENT OF INTEREST'

The first question herein is whether the federal courts may

review Respondent’s statutory retroactivity claim on habeas

corpus. Amici curiae are professors of legal history at law schools

and universities in the United States and England with expertise in

English legal history prior to 1789 and/or early Amecican legal

history. The professional interest of amici curiae legal historians

is in ensuring that the Court is fully and accurately informed

respecting the historical precedent, understandings and evidence

regarding the scope and availability of the writ of habeas corpus

that, under this Court’s precedents, are properly considered in

evaluating the issues raised under the Suspension Clause. U.S.

Const., Art I, § 9, cl. 2. The people whose lives and writings amici

curiae study, including the generation which drafted this country’s

Constitution, considered habeas corpus a great bulwark of

personal freedom, and unquestionably the Framers, educated in

English law, drew on their common law comprehension when they

prohibited suspension of the writ. Amici curiae have no personal,

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

respecting the other issues raised in the case at bar.

SUMMARY OF ARGUMENT

Respondent Enrico St. Cyr asserts that he is in custody and

subject to deportation by the Immigration and Naturalization

Service (“INS”) based on the agency’s misinterpretation of its

organic statute, the Immigration and Nationality Act, 8 U.S.C. §§

1101 et. seq. Mr. St. Cyr contends that Congress, in amending the

immigration statutes in 1996 to eliminate certain forms of

discretionary relief from deportation, did not intend the

amendments retroactively to render him ineligible for relief based

1 Amici state that no party or its counsel has authored this brief in

whole or in part, nor has any person or entity other than amici

and their counsel made any monetary contribution to its

preparation. Letters of consent by the parties to the filing of this

Brief have been lodged with the Clerk of this Court. Sup. Ct. R.

37.6.

on conduct or convictions that predated the 1996 laws. The

administrative courts rejected Mr. St. Cyr’s statutory interpretation

and refused to consider his application for relief. In his petition

for a writ of habeas corpus, Mr. St. Cyr asked that a U.S. district

court judge adjudicate his statutory- retroactivity claim and

determine the lawfulness of his custody by the Executive branch.

The INS responds that no judge may consider Mr. St.

Cyr’s statutory claim, on habeas petition or otherwise. In her

opening brief, the Acting Solicitor General argues that the Illegal

Immigration Refo:m and Immigrant Responsibility Act of 1996

(“IIRIRA”) requires, and the Constitution permits, the conclusion

that no court can review the agency interpretation of the relevant

provision, even if, as Mr. St. Cyr claims, that interpretation is

incorrect and therefore results in Respondent’s unlawful detention

and deportation.

The Acting Solicitor General maintains that this

conclusion is consistent with the Suspension Clause because “non-

constitutional” claims such Mr. St. Cyr’s statutory retroactivity

claim are “well removed” from the “core of the Great Writ.”

{Brief for Petitioner at 27, 28.) The government in its bref

reviews late nineteenth century and early twentieth century

challenges to deportation orders and discerns “four kinds of

challenges” that are concededly subject to judicial review: (1)

where the person detained was a citizen, not an alien; (2) for an

alien deprived of a “fundamentally fair administrative

proceeding”; (3) where the factual finding of deportability was

“completely without supporting evidence”; and (4) where the case

did not fall within any statutory category for deportation. /d. at

30.

The historical evidence set forth below shows, however,

that whenever a deprivation of liberty was predicated upon

determination of a question of law, that determination was

reviewable on habeas. Amici curiae are unaware of evidence that

either the English common law or early American habeas practice

recognized the sort of parsing of legal claims urged by the

government here. Rather, the historical evidence indicates that the

statutory interpretation claim raised by Respondent falls within the

scope of habeas corpus at common law. ‘i

1. The writ of habeas corpus was available to

persons subject to civil detention in a wide range of contexts in

England prior to 1789. The INS may be analogized to eighteenth

century executive agencies such as the British Navy,

administrative bodies such as the Sewer Commissioners, or courts

of “inferior” (limited) jurisdiction. As both case law and

commentaries confirm, unlawful detention by any such bodies

could be corrected upon issuance of habeas corpus. The Great

Writ was available to non-enemy aliens and citizens alike. Habeas

was commonly granted where a detention was grounded on an

error of law, including an error of statutory interpretation. Habeas

was never fettered by any requirement that the error go to the

jurisdiction of the decision-maker who decided to detain

petitioner. Moreover, any distinction between constitutional and

non-constitutional errors was unknown to English law and habeas

corpus in the English courts. Legislative efforts to reform habeas

procedure in England in the late seventeenth to early nineteenth

centuries also uniformly assumed the broad availability of the writ

to correct errors of law that resulted in civil detention by the

government.

r & Similarly, early American courts commonly

utilized habeas to resolve disputes of law, including disputes of

Statutory construction, raised by petitioners detained civilly.

American common law also extended such remedies to non-

citizens. Early American jurists who interpreted statutes on

habeas challenges to civil confinement included John Marshall,

Joseph Story, and Lemuel Shaw. Further, while the distinction

between constitutional and non-constitutional errors of law does

have meaning in the American historical context, it does not

appear to have ever been used to confine to constitutional errors

the scope of habeas corpus in cases of ciyil, Executive branch

detention.

ARGUMENT

AT COMMON LAW IN ENGLAND, HABEAS CORPUS

WAS AVAILABLE GENERALLY TO REVIEW THE

LEGALITY OF CIVIL CONFINEMENT, WITHOUT

LIMITATION AS TO CITIZENSHIP OR THE NATURE OF

THE ILLEGALITY ASSERTED

A. Case Law and Commentaries Demonstrate the

General Availability of the Writ to Challenge

the Legality of Civil Confinement

l. By the Eighteenth Century, Habeas

Corpus Was Established as a General

Remedy for Unlawful Detention, Whether

Civil or Criminal

The writ of ‘habeas corpus originated as a judicial

development in the common law and Chancery courts of England.’

It was known to the common law as early as the fifteenth century,

and was used to test the validity of executive committals in

numerous sixteenth century cases.’ The functions of the early writ

were varied and included relief from detention that, in modern

2 As noted below (see infra, I.B), aspects of habeas corpus

practice, particularly in criminal cases, were affected by

seventeenth-century and later legislation. The broader common

law writ, however, lived outside statute, and had earlier origins.

3 See R.J. SHARPE, THE LAW OF HABEAS CORPUS 6-8 (2d ed.

1989); ROLLIN C. HURD, A TREATISE ON THE RIGHT OF

PERSONAL LIBERTY AND ON THE WRIT OF HABEAS CORPUS AND

THE PRACTICE CONNECTED WITH IT (2d ed. 1876) (reprint, Da

Capo Press, 1972); 9 W.S. HOLDSWORTH, HISTORY OF ENGLISH

LAW 104-25 (2d ed. 1938) (Methuen & Co., Sweet & Maxwell,

1966 reprint); 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS QF ENGLAND 129-38 (1st ed. 1765-1769) (facsimile

reprint, Univ. of Chicago Press, 1979).

terms, was civil in nature. Any person contending that he or she

was unlawfully detained or confined could petition for habeas

corpus. The petition could also be filed by the legal custodian of

the person confined. The recipient of the writ (the alleged

confiner) was then required to file a return stating the legal basis

for the detention. The broad scope of habeas corpus was widely

recognized; as Chief Justice Coke observed in his INSTITUTES, the

writ extended to all detention “contra legem terrae,” ie., against

the laws of the land, whether civil or criminal, 1 EDWARD COKE,

THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND

54 (1642 ed.) (William S. Hein Co. 1986). Blackstone described

habeas corpus as the “the bulwark of the British Constitution,” 4

BLACKSTONE’S COMMENTARIES 438, and stated that the writ was

“efficacious . . . in all manner of illegal confinement,” 3

BLACKSTONE’S COMMENTARIES at 131.

2. Eighteenth Century Courts Granted the

Writ to Review the Legality of Detention

in a Wide Range of Civil Contexts

a. Habeas Corpus as a Remedy Against Impressment

Judges used habeas corpus on numerous occasions to

redress the unlawful impressment of sailors into the British Navy.

See, e.g., R. v. White, 20 Howell’s State Trials 1376, 1377 (K.B.

1746) (King’s Bench discharging a seaman upon determining he

was statutorily exempt from impressment); Goldswain’s Case, 96

Eng. Rep. 711 (C.P. 1778) (writ used to challenge a sailor’s

impressment); Ex parte Drydon, 101 Eng. Rep. 235, 236 (K.B.

1793) (Kenyon, C.J.) (holding the naval recruitment statute was

subject to an exception, and therefore discharging the sailor).

Habeas review of impressment cases enabled not only review of

the state*s compliance with statutory enlistment rules but also

review of executive decisions. Ex parte Boggin, 104 Eng. Rep.

484, 484 na) (K.B. 1811) (reference to Chalacombe's Case--

habeas issued on behalf of impressed master of a coal vessel,

despite opposition by counsel for Admiralty on grounds that

exemptions for "seafaring men of this description" were given

only by "grace and favour," not "of right").

b. Habeas Corpus as a Remedy Against Civil

Detention by Executive Bodies and Inferior

Courts

The Great Writ was used to review actions by inferior

courts of record, as well as commissions and tribunals which

affected the liberty of the subject. Thus, actions by the London

Court of Sessions,’ the bankruptcy commissioners,’ the College of

Physicians in its malpractice jurisdiction over doctors,° the

decisions of justices of the peace’ and of the Sewers Commission

sitting as a court of record® were all reviewable upon the return of

habeas corpus.

This inherent and wide-ranging supervisory jurisdiction

can properly be analogized to the very kind of review sought in the

4 See Bushell’s Case, 69 124 Eng. Rep. 1006, 1016 (C.P. 1670)

(habeas corpus granted to discharge a juror who had been

committed for contempt by London Court of Sessions for voting

to acquit). ——__

5 Hollingshead’s Case, 91 Eng. Rep. 307 (K.B. 1702) (prisoner

discharged; bankruptcy commission had failed to adhere to

statute); R. v. Nathan, 93 Eng. Rep. 97, 914 (K.B. 1724 ~

[reported 1730]), (habeas applied to a commitment by

bankruptcy commissioners).

6 Dr. Groenvelt’s Case, 91 Eng. Rep. 1038 (K.B. 1702) (holding |

that statute empowering College of Physicians to fine did not i

abrogate royal pardon power).

7 Gardener's Case, 78 Eng. Rep. 1048 (K.B. 1600) (review of

question of whether justice of the peace properly interpreted

firearms statute).

8 Hetley v. Boyer, 79 Eng. Rep. 287 (K.B. 1613) (discharging

individual imprisoned for refusing to release a suit to challenge

taxation system used by the Commission to finance project;

holding such taxation system to be invalid).

present case, i.e., review by an Article II court over the activities

of Article I specialized tribunals, the Board of Immigration

Appeals and Immigration Judges. “Under the common law

definition, both immigration judges and the BIA qualify as inferior

courts because their jurisdiction is specialized and limited. In

certain respects, immigration tribunals are like the King’s conciliar

courts, the extensive power of which the common law courts

sought to supervise through habeas corpus.” Jonathan L. Hafetz,

Note: The Untold Story of Noncriminal Habeas Corpus and the

1996 Immigration Acts, 107 YALE L.J. 2509, 2538 (1998)

(footnote omitted). j

rd Habeas Corpus as a Remedy in Slavery Cases

The writ of habeas corpus supplied the jurisdictional basis

for the landmark emancipation case, Somerset v. Stewart, 20

Howell’s State Trials 1, 79-82 (K.B. 1772). There, a writ was

issued to bring up the body of James Somerset, an African slave

who had been purchased by defendant Charles Stewart in Virginia.

Somerset was confined on board a ship lying in English waters,

about to depart for Jamaica. The Chief Justice, Lord Mansfield,

ruled that the only question was “whether the cause of detention

upon the return was sufficient,” and since there was no authority

under English law to force a slave out of the country, “the black

must be discharged.” James Oldham, New Light on Mansfield and

Slavery, 27 JOUR. OF BRITISH STUDIES 45, 56-58 (1988) (quoting

from the Hill manuscript).

Habeas corpus also won a discharge in February 1771 for

another slave, Thomas Lewis, who otherwise would have been

sent off by his master to Jamaica to be sold. See R. v. Stapylton,

transcribed at 2 JAMES OLDHAM, THE MANSFIELD MANUSCRIPTS

AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY

1225-28 (1992); see also id. at 1242 (discussion). During the

Lewis case, Lord Mansfield also noted that he had granted writs of

habeas corpus preventing the impressment of slaves in two or

three cases on the basis of affidavits of their masters. PRINCE

HOARE, MEMOIRS OF GRANVILLE SHARP 59 (1820).

d. Habeas Corpus as a Remedy Against Other Forms

of Non-criminal Confinement

Judges provided relief from private civil detention in a

diverse range of cases on habeas petitions. One common type

involved family disputes. In R. v. Delaval, 97 Eng. Rep. 913 (K.B.

1763), a habeas writ supported by affidavits from parents

produced an inquiry into the state of their daughter, who had been

apprenticed at age fifteen to a music master, but who had been

handed over to defendant to become his mistress. Lord Mansfield

approved this use of the writ and mentioned three other cases “of

writs of habeas corpus directed to private persons, ‘To bring up

infants.’ Jd. at 914. In R. v. Turlington, 97 Eng. Rep. 741 (K.B.

1761), the writ was issued to the keeper of a private “mad-house”

to bring into court a woman who had been placed in the asylum by

her husband. (The court first ordered that a medical examination

of the woman be conducted, and on receiving an affidavit from the

examining doctor that the woman appeared perfectly sane, the writ

was ordered. The woman appeared in court, though no return to

the writ was made.) See also R. v. Lee, 83 Eng. Rep. 482 (K.B.

1676) (reviewing husband’s detention of wife, but refusing relief);

Lister's Case, 88 Eng. Rep. 17, 17 (K.B. 1721) (reviewing

detention, releasing wife whose husband “[took] her violently into

his custody”’).

a The Scope of Habeas Review in the

Eighteenth Century Encompassed

Questions of Law, Including Questions of

Statutory Interpretation

As Chief Justice Coke stated, habeas review was generally

available to provide relief against detention contrary to the laws of

the land. Questions of statutory interpretation, along with

questions of common law, were properly and frequently addressed

on habeas. A common use of habeas was in connection with the

bankruptcy statutes. In R. v. Nathan, 93 Eng. Rep.914 (K.B. 1724

{reported 1730]), for example, the bankruptcy commissioners

concluded that defendant, on his examination under oath, “had

notoriously prevaricated.” They had committed him to the Fleet

Prison without bail until they had resolved his estate or until he

“be otherwise delivered by due course of law.” Jd. On a habeas

petition, the court ruled, per curiam, that the statute required

questions be put to the bankrupt in writing and that he be given

time to consider his answer, adding: “It is very dangerous to let

people depart from the words of the Act.” Jd. Since the

commitment did not conform to the words of the statute, defendant

was discharged.

Common law judges in eighteenth-century England

disagreed about the extent to which the truth of facts asserted in a

return of a writ could be examined by the court in a habeas

hearing without being put before a jury. This was one of the

issues debated by Parliament on the unsuccessful 1758 habeas

corpus bill and dealt with in the 1816 Act. (See infra, _pp 12-15).

Because the legal merits of Respondent’s statutory interpretation

claim in the present case can be determined on the basis of

undisputed facts -- in eighteenth century terms, on the face of the

return -- that difference of views is not pertinent to the case at bar.

The common law courts were careful, however, to

preserve and examine the legal merits of a habeas petition, even if

this required procedural maneuvering to enable relevant statutory

interpretation to become reviewable. For example, in a King's

Bench impressment case in June 1777, the court considered how to

take up the merits of the habeas petitioner’s claim that he was

Statutorily exempt. Lord Mansfield observed that, “this writ is an

antient and constitutional writ; it must go in its original form,

without bending to particular purposes,” but after discussion:

At last, Lord Mansfield, with great respect to the

gentlemen of the bar, proposed to them this

question, “Whether any harm could result from

this mode, if adopted, viz. For the Crown

Lawyers to return the writ of Habeas Corpus, that

Mellichip, being a liveryman serving upon the

nver Thames, had been impressed into his

Majesty’s service, having no legal exemption.”

This, his Lordship said, would give the gentleman

on the other side an opportunity of suggesting,

that he had an exemption, such as the charter of

the City. constant, invariable, immemorial usage,

or whatever plea might be alleged. This being

entered on the record, might lead to a compleat

investigation of the whole matter in view. To

which proposal all parties seemed to acquiesce.

MORNING CHRONICLE, June 18, 1777, quoted in 1 MANSFIELD

MANUSCRIPTS, 78.

4. At Common Law, the Writ of Habeas

Corpus Ran Throughout the Sovereign's

Territory and Applied to All Persons

Present Therein, Including Aliens

The wnit applied to all non-enemy aliens detained within

the realm. Such treatment is consonant with a central precept of

English justice, that the sovereign's writs run throughout the realm

and apply to all persons physically present therein. Thus, all

aliens within the realm were treated as entitled to its benefits, and

subject to its burdens. This is clearly demonstrated by the slave

cases discussed above (Somerset v. Stewart, R. v. Stapylton, p. 7,

supra). See also Case of The Hottentot Venus, i104 Eng. Rep. 344,

344 (K.B. 1810) (entertaining a habeas petition of a “female

native of South Africa” allegedly held in private custody); R. v.

Schiever, 97 Eng. Rep. 551 (K.B. 1759) (reviewing, but denying,

the habeas petition of a neutral alien deemed a prisoner of war

because he was captured aboard an enemy French privateer).

In Calvin's Case, 77 Eng. Rep. 377 (1608) (a seminal case

dealing with issues of citizenship and alienage -- though not a

habeas case) Chief Justice Coke explained why aliens are equally

subject to the prerogative writs, and equally entitled to their

benefits. “[W]hen an alien . . . cometh into England, because as

long as he is within England, he is within the King's protection;

therefore so long as he is here, he oweth unto the King a local

obedience or ligeance, for that the one (as has been said) draweth

the other.” /d. at 383."

The common law of England therefore affords no support

to any suggestion that the scope of the Great Writ is in any way

conditioned by the nationality of the detainee. Providing the

critical element of physical presence was established, habeas

corpus could be sought on behalf of (and, indeed, against) any

person, regardless of citizenship.

B. The Eighteenth and Early Nineteenth Century

History of Habeas Corpus Legislation in

England Reflects a General Understanding

That Civil Habeas Was Available to Review

Executive Detention at Common Law

As shown above, ha‘zas corpus was developed by

fifteenth and sixteenth century common law courts as a remedy

against unlawful detention. Although a common law creation,

constitutional crises led to its reaffirmation in the Petition of Right

and the Habeas Corpus Act of 1640.'° Subsequent legislation

built on these foundations with largely procedural reforms.

1. The Habeas Corpus Act of 1679

By 1679, the principle that the writ was available at

common law and under the 1640 Act to challenge the legality of

detention in a wide range of contexts, civil and criminal, was well

established. But problems and controversies had arisen,

particularly in criminal cases, regarding the appropriate procedures

to be used and which specific courts had power to grant the writ.

Unlike its predecessors, the 1679 Act did not codify general

principles of habeas practice, but instead addressed specific

practical issues pertaining to the availability of the writ in cases of

9 That habeas corpus had not been specifically used to review

immigration matters as of 1789 reflects the fact that England did

not by statute limit admission of aliens until 1793.

10 For the full early history, see the sources cited at n.3, supra.

criminal confinement (e.g., the availability of the writ during court

“vacation” time).

P The Habeas Corpus Bill of 1758"

In 1758, a bill was proposed to extend the procedural

reforms of the 1679 Act to non-criminal cases. It passed the

House of Commons but eventually failed in the face of opposition

in the House of Lords. But two premises emerge clearly from the

debate surrounding the bill. First, it was not seriously questioned

that habeas corpus was already, as a matter of common law,

generally available in cases of civil detention. Second, there was

general agreement that, at least with respect to executive

detention, the scope of review on habeas corpus in civil cases

already was and clearly should remain at least as extensive as in

criminal cases, including review of questions of law. The central

issues 1n controversy in 1758 were whether, given the broad scope

of civil habeas at common law, reforms were necessary in the civil

context, whether the specific reforms proposed would render

habeas too readily available in cases of private detention, and

whether procedural steps were needed to ensure the availability of

habeas during times when the common law courts were not sitting,

9912

i.e., during “vacation time” instead of “term time.””’~.

1] See generally, Barbara W. Kem, The English High Judiciary &

the Politics of the Habeas Corpus Bill of 1758, in HENDRIK

HARTOG, WILLIAM E. NELSON, & BARBARA W. KERN, (eds.)

LAW AS CULTURE & CULTURE AS LAW 147 (2000). Amici are

grateful to Ms. Kern for extending to us her research materials.

12 The central common law courts sat only four times a year for

about two to three weeks at a time. The dates for the terms

varied from year to year according to the calculation of religious

holidays, see generally C.R. CHENEY (ed.), HANDBOOK OF

DATES FOR STUDENTS OF ENGLISH HISTORY (1978), but

customarily the year began in November with Michaelmas Term

(after the “long vacation”), followed by Hilary

(January/February), Easter (April/May) and Trinity (June/July).

The bill captured public attention, as shown by “An

Account of the Origin and Use of the Writ of HABEAS CORPUS,

and of the Bill now in Parliament concerning it,” printed in several

London newspapers in late May 1758 (e.g. Lloyd’s Evening Post,

The London Chronicle, Payne's Universal Chronicle), when the

bill had passed the Commons and was before the House of Lords.

The bill was reportedly prompted by a recent impressment act,

specifically by reported abuses of impressment officers in

disregarding statutory exemptions. The absurdity of saying that

habeas corpus was available to those accused of crime but not

available to those unsuspected of any crime was remarked in the

newspapers, but was said to be a “doubt . . . raised by some

Lawyer.” Yet there was, in fact, no serious question that the

Habeas Corpus Act of 1679 did not apply to men confined under

impressment acts (who had been accused of no crime), but rather

that their remedy lay with the writ of habeas corpus at common

law.

The purpose of the 1758 bill was, thus, not to secure the

availability of habeas in civil cases; civil habeas had long been

firmly established. Rather, the bill had been put forward by

Charles Pratt, M.P., later Lord Chancellor Camden, in response to

the plight of an unnamed gentleman who had been improperly

impressed (since, as a gentleman/property holder, he was exempt

by statute from impressment), but for whom, for procedural

reasons, habeas corpus had not been effective. As detailed above,

habeas petitions were available to challenge the impressment of

persons who were statutorily exempt (supra, p. 5), but habeas

procedures in civil cases were at times insufficiently expeditious

to prevent a falsely impressed man languishing in prison for some

time pending judicial action, or, in some cases, from being enlisted

and transported from the jurisdiction before the writ became

returnable.'’

13 These procedural difficulties were discussed in the newspapers

of the day. See, e.g, LONDON CHRONICLE, March 18-21, 1758;

LONDON EVENING Post, April 28 - May 2, 1758.

Pratt’s bill swept through the Fouse of Commons with

barely a murmur. It was highly popular, ynd its eventual defeat in

the Lords met with indignant public regction. one commentator

calling it a blow to one of the two fundarentals of English liberty

(the other fundamental being trial by jury,'* The opposition in the

Lords was led by Lords Mansfield (lecently-appointed Chief

Justice of the Court of King’s Bench) and Hardwicke (recently

resigned as Lord Chancellor after neatly twenty years in that

office). In their deliberations, the Lo-ds resolved to put ten

questions to the twelve common law judges in order to better

understand the need for, and the implicatigns of, the bill. Answers

given by nine of the twelve judges are printed in Parliamentary

History; the views of the other three, inc uding Mansfield, can be

reconstructed from other sources.'’ It is not necessary here to

recount all of the difficulties that Mansfield, Hardwicke and others

had with the bill, except to note one concern--that the bill would

make it harder to obtain the writ in some civil matters, particularly

family disputes, than had been true in practice.'®

14 See, e.g., THE MONITOR OR BRITISH FREEHOLDER, July 1, 1758

(“Every friend of liberty must shudder”; “usurpation upon the

rights and liberty of the people”; “without [the bill] the personal

liberty of the subject may be left to the discretion of a passionate,

corrupt, or indiscreet judge”).

15 Sir Michael Foster and Thomas Parker (Chief Baron of the Court

of Exchequer) corresponded with Chief Justice Wilmot of the

Common Pleas, as reproduced in M. DODSON, THE LIFE OF SIR

MICHAEL FOSTER, KNT. (1811). Mansfield’s answers were never

printed, but his notes on the questions and about the bill

generally are among surviving manuscripts at the family home in

Perthshire, Scone Palace.

16 This would have been due to, among other things, the

requirement in the bill that actual confinement be alleged, which

could not be done in the case of a wife or child who had

willingly gone off to live with another person. Hardwicke’s

unpublished views can be found at Add. MSS 35,878, f. 91 et

seq. Mansfield’s unpublished notes af¢ at Scone Palace MSS,

Bundle 1352.

3. The Habeas Corpus Act of 1816

At the end of the debate in the House of Lords in 1758,

Hardwicke moved thai the judges should prepare a bill “to extend

the power of granting writs of Habeas Corpus” to cases not within

the 1679 Act, and to present the bill at the start of the next session

of Parliament.'’ This was agreed, and according to Horace

Walpole, the maneuver prevented a division in the Lords.'* The

bill was in fact drafted, but was never introduced."

In 1816, however, an act was passed (56 Geo. III, c. 100)

that was virtually identical to the judges’ bill. The 1816 Act

applied to non-criminal situations other than imprisonment for

debt or by process in a civil suit, and provided, among other

things, that the writ could issue during vacation on a probable

cause showing by affidavit, and that the truth of the facts alleged

in the return could be examined by a single judge in vacation or by

the court in term time.

Il.

IN COLONIAL AND EARLY POST-COLONIAL

AMERICAN LAW, HABEAS CORPUS WAS

GENERALLY AVAILABLE TO REVIEW THE

LEGALITY OF CIVIL CONFINEMENT, WITHOUT

LIMITATION AS TO CITIZENSHIP OR THE

NATURE OF THE ILLEGA.LITY ASSERTED

In colonial and post-colonial America, the lawfulness of

17 15 PARL. HIST. ENG. 925-25.

18 Id. at 925, n.*.

19 The bill is printed in DODSON, supra. Ina letter of March 9,

1759, Hardwicke reported to Newcastle that he “understood the

judges had made a draft,” but that, after a little noise about it

some time back, he had heard nothing further. He concluded that

“it did not look as if the friends of the bill were eager for it.”

Add. MSS 32,888, f. 436.

Executive Branch confinement was subject to review on petition

for writ of habeas corpus. In adjudicating habeas petitions, state

and federal judges performed the core judicial function of

interpreting statutes and resolving other questions of law. Judges

recognized that the writ was available to contest the legality of

civil confinement, and further that it was available regardless of

the petitioner’s citizenship _ status. Consistent with the

contemporaneous practice in England described above (supra,

1.A), American judges adjudicated habeas challenges to non-

criminal confinement by persons in military custody, held as a

debtor, bonded servant, or slave, and detained as a deserter from a

foreign ship.

As is explained below, the broad scope extended by

American courts to habeas corpus was affirmed in countless

decisions, including opinions by John Marshall, Joseph Story, and

Lemuel Shaw. Had Mr. St. Cyr filed a petition for habeas corpus

in 1789 contending that his Executive Branch custody was

pursuant to the government’s misinterpretation of a statute, there 1s

substantial evidence that a judge would have decided the merits of

the statutory claim.

A. Habeas Corpus As Known In England Was

Fully A Part of Early American Law

From the establishment of the American colonies, habeas

corpus was a part of colonial law. See WILLIAM F. DUKER, A

CONSTITUTIONAL HISTORY OF HABEAS CORPUS 98 (1980)

(conquest of “infidel” (non-Christian) lands such as American

colonies resulted in extension of the law of England in force at

time of conquest, including common law and all affirming

statutory law, insofar as “was applicable to colonial life”); JOSEPH

STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES § 156 (1851) (observing that in each colonial charter,

“either expressly or by necessary implication it is provided that the

laws of England so far as applicable shall be in force there”);

HURD, supra at 92 (“The American colonists always claimed to

possess ‘all the mghts, liberties, and immunities of free and

natural-born subjects within the realm of England’”) (citation

omitted). Thus, “the common-law writ of habeas corpus was in

operation in all thirteen of the British colonies that rebelled in

1776.” DUKER, supra, at 115. As detailed in Part I, supra, that

common-law writ was available to review legal challenges to civil

custody.”°

There are few reported habeas decisions from the colonial

period. This was true because of the paucity of printed case

reports, see LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN

LAW 102-03, 322-26 (2d ed. 1985), and because “incarceration

was not routinely imposed as a means of postconviction

punishment for criminal acts until the nineteenth century,” Marc

M. Arkin, The Ghost at the Banquet: Slavery, Federalism, and

Habeas Corpus for State Prisoners, 70 TUL. L. REV. 1, 11 (1995).

The habeas decisions that do exist from the colonial era, however,

confirm the writ’s role as the principal recourse of persons subject

to illegal government detention, including non-criminal custody.

HURD, supra, at 96-97; DUKER, supra, at 101-02.

B. In the Post-Colonial Era, Habeas Corpus Was

As Broad and Effective a Remedy As in

England

20 While the common law right to habeas corpus applied with full

effect from the establishment of each colony, the Habeas Corpus

Act of 1679 did not initially extend there, so its procedural

innovations were at first unavailable. DUKER, supra, at 99 (post-

conquest enactments by Parliament applied in colonies only by

express direction). Eventually, however, royal governors in

Virginia, South Carolina, North Carolina, and Georgia issued

proclamations extending the 1679 Act’s procedural reforms in

those colonies. See Dallin H. Oaks, Habeas Corpus in the States

- 1776-1865, 32 U. CHI. L. REV. 243, 251 (1965); see also A.H.

Carpenter, Habeas Corpus in the American Colonies, 8 AM.

HIST. REV. 18, 24-25 (1902); DUKER, supra, at 100, 103-06.

Official extension of the 1679 Act was likely but a formality, for

as Zechariah Chafee surmised, “in actual practice all judges used

its procedure as a matter of course.” Zechariah Chafee, Jr., The

Most Important Human Right in the Constitution, 32 B.U.L.

REV. 143, 146 (1952).

Judges widely understood the writ to be available to

review the lawfulness of non-criminal confinement in early

America, including statutory questions. See WILLIAM S. CHURCH,

A TREATISE ON THE WRIT OF HABEAS CorPUS 137 (2d ed. 1893);

(“[T]he wrt . . . may issue in civil as well as in criminal cases

...."), id. at 249 (“The issue raised on the hearing of a Aabeas

corpus may be one of law simply.”); HURD, supra, at 146.”"

Chief Justice John Marshall and Associate Justice Joseph

Story, mding circuit, each authored important decisions resolving

statutory construction questions on habeas petitions challenging

civil confinement, Marshall in a debtor case, see Jn re Randolph,

20 F. Cas. 242 (Cir. Ct. D. Va. 1833) (Marshall, C.J., on circuit),

Story in a military enlistment case, see U.S. v. Bainbridge, 24 F.

Cas. 946, 949-52 (Cir. Ct. D. Mass. 1816) (Story, J., on circuit)

(interpreting naval enlistment statute), and again in a case

involving deserters from a foreign ship, see Ex parte D ‘Olivera, 7

F. Cas. 853, 854 (Cir. Ct. D. Mass. 1813) (Story, J., on circuit)

{construing federal statute governing naval desertion). See also

C'wealth v. Downes, 41 Mass. (24 Pick.) 227 (Mass. 1836) (Shaw,

C.J.) (on habeas, construing provision of federal enlistment

Statute).

l. The Founders Enshrined Habeas Corpus

in its Full Width and Effect

The Articles of Confederation were silent as to habeas

corpus, Chafee, supra, at 145, and “when the constitutional

convention met in Philadelphia in 1787 there were [only] four

states with habeas corpus guarantees in their constitutions.” Oaks,

supra, at 247. But see Chafee, supra, at 146 (absence of habeas

21 It is also plain that the writ was available to non-citizens. See,

e.g., Gerald L. Neuman, Habeas Corpus, Executive Detention,

and the Removal of Aliens, 98 COLUM. L. REV. 961, 989 (1998)

(“The nght to the writ . . . in the United States was . . . not

limited to citizens.”); U.S. v. Villato, 28 F. Cas. 377, 378-79

(Cir. Ct. D. Pa. 1797) (on Aabeas, discharging non-citizen

arrested for treason).

provisions in state constitutions because writ “had been so long

and solidly established in every colony that assertion was probably

considered unnecessary”).

Yet the authors of the U.S. and state constitutions were

careful to preserve the writ of habeas corpus and to ensure that

early U.S. practice continued English and colonial traditions. At

the Constitutional Convention, Charles Pinckney of South

Carolina proposed several versions of a guarantee of the writ of

habeas corpus, and apart from objection by some that the writ

should never be suspended, the Suspension Clause was adopted

with little debate. HURD, supra, at 107-10; Oaks, supra, at 248-49

(noting that three colonies voted against the provision that writ

may be suspended “when in cases of Rebellion or Invasion the

public Safety may require it”); DUKER, supra, at 127-35.

Statutory enactments followed the adoption of habeas

corpus clauses in the federal and state constitutions. Congress

provided for habeas corpus jurisdiction in section 14 of the

Judiciary Act of Sept. 24, 1789, 1 Stat. 73, 81-82 (1789), which

codified the familiar common law writ. The common law of each

original state also provided for habeas review. The states moved

slowly to adopt formal statutory provisions, Oaks, supra, at 251,

and initially all patterned their statutes on the 1679 English Act.

Id. at 252-53. See also HURD, supra, at 121-28. Like the 1679

Act, the statutes in five states initially neglected non-criminal

confinement, leaving civil custody subject to challenge under the

traditional common law writ. Oaks, supra. at 254-55.

2. Post-Colonial Case Law Evidences The

Wide and General Application of Habeas

Corpus To Review Questions of Law

Reflecting eighteenth century English practice, the writ of

habeas corpus was invoked to challenge the lawfulness of non-

criminal confinement in a number of circumstances in the post-

colonial period. In their decisions, state and federal judges

regularly performed the traditional function of construing statutes

and resolving other questions of law.

a. Habeas as a Remedy for Indentured Servants

Habeas was used to challenge private confinement as an

indentured servant, and in these cases judges regularly adjudicated

statutory claims. See, e.g., Respublica v. Keppele, 2 U.S. 197,

198-99 (Mem.) (Pa. 1793) (construing Pennsylvania servant

Statute, concluding infant could not be bound, and discharging

fourteen year-old who had fled service); State v. Sheve, 1 N.J.L. (1

Coxe) 230, 230 (N.J. 1794) (granting writ to 27-year old man

indentured by mother, upon application of common-law principle

that “parental authority to dispose of a child’s services ceases

when the latter arrives at the age of twenty-one”’); State v. Taylor,

3 N.J.L. (2 Penning.) 467, 1808 WL 1006, at *1 (N.J. 1808)

(Pennington, J., dissenting) (minor must agree to indenture himself

under “the true construction” of state servitude statute); C’wealth

ex rel. Stephenson v. Vanlear, | Serg. & Rawle 248, 1815 WL

1221, at *2-3 (Pa. 1814) (opinion of Tilghman, C.J.) (construing

1799 statute, partly in contrast to 1790 act, and holding master’s

assignment of indentured minor to third-party, without consent of

minor’s father, improper under later statute); Jn re Goodenough,

19 Wis. 274 (1865) (holding indenture in violation of state statute

requiring that instrument specify instruction in “profession, trade,

or employment”). Church specifically notes that where states

regulate such relationships, “[iJndentures of apprenticeship must

conform to the requirements of the statute,” CHURCH, supra, at

744, and are subject to habeas review. Id. at 745.

Judges also adjudicated a related legal claim on habeas,

that a master had unlawfully removed a servant from the state in

which the indenture had been executed. See, e.g., C'wealth v.

Edwards, 6 Binn. 202 (Pa. 1813) (applying common law to hold

minor bound in Virginia may not be removed to Pennsylvania,

where indenture does not provide for such removal). See also

Davis v. Coburn, 8 Mass. 299, 1811 WL 1678, at *4 (Mass. 1811)

(if master could assign servant from New Hampshire “into

Massachusetts, | see not why he might not have sent him to

Georgia, or even to China. That a master should have such legal

authority would be monstrous”) (emphasis in original); Gusty v.

Diggs, 11 F. Cas. 128 (Cr. Ct. D.C. 1820) (apprentice bound in

Maryland may not be brought into District of Columbia).

b. Habeas As Applied in Civil Debtor Cases

Debtors subject to confinement also petitioned for writs of

habeas corpus in the United States, and these petitions frequently

raised questions of law.” The opinions in Jn re Randolph, 20 F.

22 See, e.g., Kennedy & Co. v. Fairman, 2 N.C. (1 Hayw.) 408

(N.C. 1796) (construing creditor notice provision of insolvency

statute and remanding prisoner); Fitzpatrick v. Neal, 3 N.C. (2

Hayw.) 8 (N.C. 1797) (debtor arrested and imprisoned pursuant

to letter of attorney released because letter not under required

seal); Shorthouse & Ross v. Carothers, 3 Yeates 182 (Pa. 1801)

(releasing debtor who had been re-arrested after posting bond in

same cause); Ex Parte McNeil, 6 Mass. 245 (Mass. 1810)

(discharging debtor as privileged from arrest while attending

court in the “necessary care of his action”); C'wealth v.

Cornman, 4 Binn. 483 (Pa. 1812) (construing provisional

discharge section of 1812 insolvency statute and remanding

prisoner); C’wealth v. Alexander, 6 Binn. 176 (Pa. 1813) (on

habeas, releasing debtor on grounds that warrant was defective):

Attorney Gen. v. Fenton, 19 Va. (5 Munf.) 292 (Va. 1816)

(affirming discharge of men confined by court-martial, for failure

to pay fine for not appearing at place of rendezvous for militia);

C'wealth v. Keeper of Jail, 4 Serg. & Rawle 505 (Pa. 1818)

(construing 1802 federal statute prohibiting arrest of soldier for

debt and denying writ to detained husband who deserted family

and failed to provide maintenance); Bank of U.S. v. Jenkins, 18

Johns. 305, 309 (N.Y. Sup. Ct. 1820) (affirming authority under

state habeas statute to review lawfulness of debtor’s

imprisonment); Richards v. Goodson, 4 Va. (2 Va. Cas.) 381

(Va. 1823) (holding debtor privileged from arrest while

attending court on his own case and discharging prisoner);

C'wealth v. Waite, 19 Mass. (2 Pick.) 445 (Mass. 1824) (where

debtor arrested upon valid execution, incorrect copy produced in

return to writ, and correct copy provided later, terms of state

statute satisfied). See also Discharge of Richardson, Worcester

Sup. Jud. Ct., (Mass. Sept. 1800) (discharging debtors who, as

soldiers, were exempt from imprisonment for debt under federal

Cas. 242 (Cir. Ct. D. Va. 1833), show that judges resolved

questions of statutory construction in habeas challenges to civil

confinement of debtors. There, on a warrant issued by the

Treasury under a statute governing the administration of public

accounts, see 3 Stat. 592, 31 U.S.C. §§ 506-508, Randolph was

arrested for debt allegedly outstanding following his naval service.

Randolph, 20 F. Cas. at 242. On habeas, Chief Justice Marshall

recited but avoided several constitutional challenges raised by

Randolph’s counsel, notably that the act impermissibly conferred

judicial power on the executive. /d. at 253-54 (Marshall, C.J., on

circuit). He then conducted a detailed statutory analysis,

comparing the text of §§ 2 and 3 of the act, before construing the

sections narrowly as not applying to Randolph, an “acting” Purser.

Id. at 254-57; see also id. at 256 (describing “fair construction” of

act); id. at 251-52 (Barbour, D.J., on circuit) (construing act as not

permitting Treasury to reopen account previously settled).

é. Habeas Jo Redress Unlawful Military Enlistment

Nineteenth century American courts decided many habeas

petitions challenging the legality of military and naval enlistments,

routinely exercising a broad scope of review. NELSON, supra, at

457 (“State writs of habeas corpus . . . were used on numerous

occasions to test the validity of military enlistments . . . Such state

writs, of course, carried with them the power to interpret the

federal statutes by which the validity of the enlistments was

determined”). See generally HURD, supra, at 156.

statute), cited in William E. Nelson, The American Revolution

and the Emergence of the Modern Doctrine of Federalism and

Conflict of Laws, 62 COLONIAL SOC. OF MASS. 419, 458 n.7

(1984); Oaks, supra, at 265.

23 Judge Barbour also considered “whether habeas corpus could be

sustained in favor of a party imprisoned under civil process,” id.

at 253, in light of Marshall’s cryptic decision in Ex Parte

Watson, 10 U.S. (6 Cranch) 52 (1810). Barbour reviewed the

common law authorities, however, and concluded that “the writ

is not confined to criminal cases.” Randolph, 20 F. Cas at 253.

Many habeas challenges to military enlistments arose

around the time of the War of 1812. In an effort to expand the

nation’s military forces, the federal government paid bounties to

enlistment brokers for each new recruit secured, leading to a high

number of fraudulent enlistments, often of minors. Arkin, supra,

at 14-15. See, e.g., C'wealth v. Murray, 4 Binn. 487, 487, 492-93

(Pa. 1812) (opinion of Tilghman, C.J.) (interpreting 1809 statute

as permitting naval enlistment of minor child who “has neither

father, master, nor guardian” and “against the consent” of mother,

relying in part on comparison between 1802 army and 1809 naval

enlistment statutes); Ex parte Mason, 5 N.C. (1 Mur.) 336, 337

(N.C. 1809) (construing statutory term “parent” as including

mothers as well as fathers); C'wealth v. Cushing, 11 Mass. (11

Tyng) 67, 71 (Mass. 1814) (“The true construction must be, that

persons under the age of twenty-one years are not to be enlisted or

held in service, unless with the [required] consent . . . and if they

have no parents, guardians, or masters, they are not to be enlisted

or held in service at all”) (emphasis added); C'wealth ex rel.

Menges v. Camac, | Serg. & Rawle 87, 1814 WL 1344, at *2 (Pa.

1814) (opinion of Tilghman, C.J.) (construing statute as permitting

father to consent days after minor’s formal eniistment).”4

The differing interpretations of the parental consent

provisions reached by the Pennsylvania and Massachusetts courts

were addressed in a major opinion by Justice Story on circuit.

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

1816), exemplified statutory construction in a habeas corpus Case.

Bainbridge was a challenge to a minor’s enlistment in the US.

Navy without parental consent. After concluding that Congress

could constitutionally authorize the enlistment of a minor without

parental consent, Justice Story turned to the specific question of

whether Congress actually had so legislated. Reviewing the

language of the naval and army enlistment acts, and reading the

instant statute against general common-law contract principles,

24 See also In re Stacy, 10 Johns 328, 333-34 (N.Y. Sup. Ct. 1813)

(Kent, C.J.) (discharging civilian accused of treason and detained

by federal military authorities as beyond authority of tribunal).

Justice Story concluded that the naval acts allowed the enlistment

of a minor without his father’s consent. /d. at 951-52.”

Habeas review of legal questions in the enlistment cases

was plainly available to non-citizens. See, e.g., C’wealth vy.

Habeas challenges to military enlistments led judges to continue

to construe the statutes after the War of 1812. See, e.g., State v.

Brearly, 5 N.J.L. 555, 1819 WL 1256, at *5 (N.J. Sup. Ct. 1819)

(consent by master subsequent to enlistment of apprenticed

minor sufficient under statute); State v. Clark, 2 Del. Cas. 578,

580-81 (Del. Ch. 1820) (discharging soldier on evidence that he

was underage and intoxicated at time of enlistment, “knew

nothing of being enlisted until the next morning,” and lacked his

father’s consent, as confinement was “contrary to law”’); Jn re

Carlton, 7 Cow. 471, 471, (N.Y. Sup. Ct.1827) (“Any person

illegally detained, has the right to be discharged, and it is the

duty of this court to restore him to his liberty.”); C’wealth v.

Downes, 41 Mass. (24 Pick.) 227, 1836 WL 2527, **3-4 (Mass.

1836) (Shaw, C.J.) (distinguishing Bainbridge and holding

statute does not authorize minor enlisting as seaman in the U.S.

Navy without consent of his legal guardian); Bamfield v. Abbot,

2 F. Cas. $77, 578 (D. Mass. 1847) (discharging minor allegedly

enlisted under 1846 act, where company had “not [yet] been

mustered into the service of the United States, or been received

or accepted by any officer thereof”); C’wealth ex rel. Webster v.

Fox, 7 Pa. 336, 1847 WL 5030, at *2 (Pa. 1847) (prohibition in

the 1802 Act against enlistment of minors without consent of

father, guardian, or master “is as plain as the English language

can make it”); Sim ’s Case, 61 Mass. (7 Cush.) 285, 309 (1851)

(issuance of writs “is constantly done, in cases of soldiers and

sailors, held by military and naval officers, under enlistments

complained of as illegal and void’); U.S. ex rel. Turner v.

Wright, 28 F. Cas. 798, 798-99 (Cir. Ct. W.D. Pa. 1862)

(construing statute as requiring discharge of minor who enlisted

on false oath); U.S. v. Taylor, 28 F. Cas. 22, 22-23 (D.N.J. 1863)

(statutory language and legislative history indicate that oath of

enlistment taken by the recruit is conclusive as to his age); /n re

McDonald, 16 F. Cas. 33, 34-36 (D. Mass. 1866) (engaging in

[a] careful examination of the acts of congress regulating

enlistments in the army” to determine whether, inter alia,

enlistment of minor without father’s consent was valid).

Harrison, 11 Mass. 63, 65 (Mass. 1814) (discharging Russian

minor enlisted without consent of parent, guardian, or master, as

“[a] foreign minor is included in the [statutory] prohibition”);

Wilson v. Izard, 30 F. Cas. 131, 1815 U.S. App. Lexis 247, at *2

(C.C. D. N.Y. 1815) (adjudicating claim by British enlistees that

they were “alien enemies” ineligible to serve but remanding); U.S.

v. Wyngall, 5 Hill 16, 18, 26, 1843 WL 4481, at *7 (N.Y. Sup. Ct.

1843) (construing statutory authorization to enlist “able bodied

citizen{s] of the United States” as directory, not mandatory and

concluding that non-citizen was lawfully enlisted).

d. Habeas Relief For Deserters From Foreign Ships

Seamen who deserted from foreign ships, regardless of

citizenship, were subject to arrest, either at the request of consular

officers pursuant to treaty or under general federal legislation

enacted in 1829. See Neuman, supra, at 990-91. These arrests

occasionally prompted habeas petitions to state and federal judges,

whose decisions resolved questions of law. See, e.g., C'wealth v.

Holloway, 1 Serg. & Rawle 392 (Pa. 1815) (discharging alleged

deserter and holding arrest not authorized by statute or common

law); Case of the Deserters from the British F. rigate L'Africaine, 3

Am. L.J. 132 (reporting 1809 Maryland decision discharging

alleged deserters); Case of Hippolyte Dumas, 2 Am. L.J. 86

(reporting 1807 Pennsylvania decision discharging alleged

deserters); Ex parte Pool, 4 Va. (2 Va. Cas.) 276 (1821) (arrest of

deserters by justice of peace exceeded his authority); Jn re

Pederson, 19 F. Cas. 91 (S.D.N.Y. 1851) (construing treaty as

inapplicable to Swedish deserter who returned home and was later

arrested after emigrating to U.S.); see also U.S. v. Lawrence, 3

U.S. (3 Dall.) 42, 49 (Mem) (1795) (where district court declined

request of French consul to arrest alleged deserter, Attorney

General sought mandamus from Supreme Court, arguing if arrest

was unlawful prisoner could seek release on habeas corpus);U.S.

v. Desfontes & Gaillard (S.D. Ga. 1830) (on habeas petition by

French Consul to deliver alleged French deserters, holding sailors

properly detained on state criminal charges and remanding to state

custody), reprinted in Eric M. Freedman, Milestones in Habeas

Corpus: Part I,57 ALA. L. REV. 531, 598-99 (2000).

In 1813, Portugese sailors arrested as alleged deserters

petitioned for a writ of habeas corpus in federal court, requiring

Justice Story, on circuit, to interpret provisions of a federal statute.

Ex parte D’Olivera, 7 F. Cas. 853, 854 (Cir. Ct. D. Mass. 1813)

(Story, J., on circuit) (construing Act of July 20, 1790, 1 Stat. 131,

regulating seamen in merchant service). The court, per Story, was

“of the opinion, that the act for the regulation of seamen

exclusively applies to seamen engaged in the merchants’ service of

the United States.” /d. at 854. Because the Portugese sailors were

engaged by a foreign vessel, Story held their confinement was

authorized by neither statute nor treaty. Jd.

e. Habeas as a Remedy Against Other Forms of Civil

Confinement

Legal questions arose on habeas challenges to non-

criminal confinement in several other circumstances. A number of

decisions addressed challenges to confinement by a justice of the

peace or lower court, often resulting in delineation of the scope of

the confining entity’s legal authority. See, e.g., C'wealth v. Ward,

4 Mass. (Tyng) 497, 497 (1808) (“[t]he justice [of the peace] has

wholly misconceived his authority” and “the commitment was

illegal”); C’wealth v. Morey, 8 Mass. (Tyng) 78 (Mass. 1811)

(same); Hite v. Fitz-Randolph, 3 Va. (1 Va. Cas.) 269 (1812) (on

habeas, discharging creditor who had been arrested on contempt

order for trying to collect on judgment subject to stay, on grounds

that “county court [had] no nght to make an order restraining

[creditor] from proceeding on his judgment at law obtained in the

superior court of law’’); C’wealth ex rel. Kerr v. Brady, 3 Serg. &

Rawle 309 (Pa. 1817) (on habeas, holding probate court lacked

authority to confine relator on contempt and discharging prisoner);

Washburn v. Belknap, 3 Conn. 502 (1821) (confinement to

workhouse for indefinite term by justice of peace contrary to

statute); State v. Applegate, 13 S.C.L. (McCord) 110 (1822)

(justice of peace not authorized to confine constable for act of

contempt done outside presence of justice); Ex parte Minor, 17 F.

Cas. 457 (Cir. Ct. D.C. 1823) (on habeas, discharging debtor as

arrest warrant exceeded authority of justice of peace). See also

McMullen v. Charleston, 1 S.C.L. (Bay) 46 (S.C. 1787) (arrest for

selling certain liquor by municipal “court of wardens”

unauthorized by statute permitting municipality to regulate liquor).

In some instances, slaves sought writs of habeas corpus to

win their freedom. See, gen. Arkin, supra, at 33-41; see also

Respublica v. Betsey, 1 U.S. 469 (Mem.) (Pa. 1789) (construing

Pennsylvania statute governing abolition of slavery as requiring

discharge where owner failed to register slave by statutory

deadline); State v. Emmons, 2 N.J.L. 6 (1806) (applying 1798 state

Statute governing freeing of slaves and holding execution of

manumission did not satisfy statutory requirements); State vy.

Quick, 2 N.J.L. 393 (1807) (applying New York statute and

granting slave’s petition for freedom); C’wealth ex rel. Lewis v.

Holloway, 6 Binn. 213 (Pa. 1814) (construing exception for slaves

of members of Congress to state statute governing abolition of

Slavery and remanding); Elkison v. Deliesseline, 8 F. Cas. 493, 496

(Cir. Ct. D. S.C. 1823) (Johnson, J. on circuit) (declaring local

Negro Seaman Act unconstitutional, but holding federal habeas

Statute did not reach person in state custody).

Finally, as in England, persons confined in mental health

institutions occasionally petitioned for release on habeas. See

Oakes, 8 Monthly Law Reporter 122 (Sup. Jud. Ct. Mass. 1845)

(not officially reported), excerpted in Oaks, supra, at 267.

In short, the history of colonial and early post-colonial

habeas practice demonstrates a strong continuity with English

traditions set forth in Part I, supra. At common law and pursuant

to state and federal statutory enactments, the writ was plainly

available to persons held in non-criminal confinement as a means

to challenge the lawfulness of their custody. The writ was

available to non-citizens. And, most importantly for the instant

case, the rich history of early civil habeas practice confirms that

State and federal judges regularly decided questions of law,

including interpretation of statutes governing military enlistment,

confinement of debtors, indentured servitude, abolition of slavery

and desertion from foreign ships. These decisions provide

significant support for the proposition that statutory claims, such

as the statutory retroactivity claim asserted by Respondent Enrico

St. Cyr, were subject to review on the writ of habeas corpus

familiar to the Founders.

CONCLUSION

For the foregoing reasons, amici ask this Court to grant relief

to the Respondent Enrico St. Cyr.

Respectfully submitted,

JAMES OLDHAM

Counsel of Record

600 New Jersey Avenue N.W.

Washington, D.C. 20001

(202) 662-9000

March 28, 2001

Of Counsel:

Michael J. Wishnie

161 Avenue of the Americas

New York, NY 10016

(212) 998-6430

Timothy G. Nelson

Four Times Square

New York, New York 10036

(212) 735-2193

Douglas W. Baruch

Michael J. Anstett

Consuelo J. Hitchcock

David B. Wiseman

Fried, Frank, Harris, Shriver & Jacobson

1001 Pennsylvania Avenue, N.W.

Suite 800

Washington, D.C. 20004

(202) 639-7368

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