# Amicus Curiae Brief — INS v. St. Cyr

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1327%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 533 U.S. 289

## Text

2/ 7 / FILE

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.

ll

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
of

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

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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

iV

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

I.

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

v

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

vi

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 ..........

18

19

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

iX

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

xX

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

x1

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 +

XV

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.

2
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

3

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.

4
ARGUMENT

I.

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).

5

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).

4
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).

8
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

9

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

10

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.

12
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).

|

13

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.

14

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.

15

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.

16

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

17
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).

18

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).

19
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.

20
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.

21
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

Pe

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.

23

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).

24
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.

Nr
A)

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).

25

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

26
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.

27

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

28
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.

29

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1327%3A10. Public record. Not legal advice.