The suspension clause: English text, imperial contexts, and American implications

Virginia Law Review

Volumn 94, Issue 3, 2008, Pages 575-714

  Halliday, Paul D ^b   White, G Edward ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

^b School of Law ^*

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EID: 46049097374     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (509)

1. U. S. Const, art. I, § 9, cl. 2.
2. Two features of the American jurisprudence of habeas corpus serve to explain the lack of cases. First, until very recently, congressional or presidential efforts to suspend the writ were quite rare. During the period from the framing of the Constitution through the close of the twentieth century, Congress authorized suspension on four occasions, and the President claimed the authority to do so once. The four congressional occasions were: An Act Relating to Habeas Corpus and Regulating Judicial Proceedings in Certain Cases, ch. 81, 12 Stat. 755 (1863), authorizing President Abraham Lincoln to suspend the writ during the Civil War; An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes, ch. 22, 17 Stat. 13 (1871), authorizing President Ulysses S. Grant to suspend the writ in response to Ku Klux Klan-precipitated resistance to federal officials in southern states; An Act Temporarily to Provide for the Administration of the Affairs of Civil Government in the Philippine Islands, and for other Purposes, ch. 1369, 32 Stat. 691(1902), which was used to authorize the governor of the Philippines to suspend the writ in that territory after an insurrection broke out in 1905; and the Hawaiian Organic Act, ch. 339, 31 Stat. 141 (1900), which was used to authorize the governor of Hawaii to suspend habeas corpus after the Japanese attack on Pearl Harbor in 1941. The 1902 Philippines Act was challenged unsuccessfully in Fisher v. Baker, 203 U.S. 174 (1906). A unanimous Court, in an opinion by Chief Justice Melville Fuller, dismissed the challenge on the ground that habeas corpus proceedings were civil, not criminal, and so the challenger should have brought the case on appeal, not on a writ of error. Id. at 181-83. Lincoln himself claimed the authority to suspend the writ on several occasions, the most prominent of which was categorically rejected by Chief Justice Roger Taney, sitting in chambers, on May 28, 1861. Taney's oral opinion denying that a president could suspend the writ without congressional authorization was subsequently published as a federal circuit court opinion. Ex parte Merryman, 17 F. Cas. 144, 147 (C.C.D. Md. 1861) (No. 9487). Taney himself treated his Merryman opinion as one issued by the Chief Justice of the United States as a Supreme Court Justice, not in his capacity as a federal circuit court judge. For a full discussion of the events that lead to Merryman and Taney's intervention in the proceedings, see Carl B. Swisher, 5 History of the Supreme Court of the United States: The Taney Period, 1836-64, at 842-54 (1974). Second, as we will see in more detail, the Supreme Court has never squarely held that "the privilege of the writ of habeas corpus" amounts to an affirmative constitutional right to habeas review. It came perilously close to doing so in INS v. St. Cyr, 533 U.S. 289, 301, 304 (2001), but stopped short. The Court has, however, regularly entertained habeas corpus challenges to executive detentions. See Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807) (for a discussion of the Bollman case, see infra text accompanying notes 332-84). Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ex parte Quirin, 317 U.S. 1 (1942); Ex parte Mitsuye Endo, 323 U.S. 283 (1944). As we shall see, however, that history does not reduce the Suspension Clause to insignificance. The language of the Suspension Clause is couched in the negative ("the privilege of the writ shall not be suspended"), so it clearly would seem to leave open the possibility that some other official of the federal government, whose authority would issue from the president's capacity as commander-in-chief of the armed forces or from some other constitutionally endowed presidential capacity, might invoke a suspension.
3. The cases, in chronological order, are Rumsfeld v. Padilla, 542 U.S. 426 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006); and Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), cert. granted, 127 S.Ct. 3078 (2007) (No. 06-1195).
4. The statutes are the Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739, and the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, Congress's responses to lawsuits filed by aliens detained in the United States military base at Guantanamo Bay, Cuba.
5. The Military Commissions Act provides that: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. Pub. L. No. 109-366, § 7,120 Stat. 2600, 2636 (2006). At this writing it seems hazardous to state definitively that the Supreme Court will decide the constitutionality of the Military Commissions Act. But that issue received emphasis in the briefs submitted in Boumediene. See Brief for the Respondents at 13-61, Boumediene v. Bush, No. 06-1195 (U.S. Oct. 9, 2007); Reply Brief for the Boumediene Petitioners at 1-20, Boumediene v. Bush, No. 06-1195 (U.S. Nov. 13, 2007). Both the majority opinion for the D.C. Circuit panel and the dissenting opinion reached that issue, the majority concluding that the Act was constitutional and the dissent that it violated the Suspension Clause. Boumediene, 476 F.3d at 992, 94-95.
6. See Richard H. Fallon, Jr. et al., 2007 Supplement to Hart and Wechsler's The Federal Courts and the Federal System 154-89 (5th ed. 2003);
7. Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029 (2007).
8. Jeffrey D. Jackson, The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex Parte Merryman, 34 U. Balt. L. Rev. 11 (2004);
9. David L. Shapiro, Habeas Corpus, Suspension, and Detention: Another View, 82 Notre Dame L. Rev. 59 (2006), cited with approval in Fallon & Meltzer, supra note 6, at 2045 n.53.
10. In addition, there is a vast literature on two other habeas corpus issues that are largely outside the scope of this Article. The first is the scope of the privilege of the writ of habeas corpus for post-conviction challenges, as opposed to challenges brought before trial. The second is whether the habeas remedy is available for collateral attack on, and federal re-litigation of, state criminal convictions. For an exhaustive review of that literature, see Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and the Federal System 1290-1324 (5th ed. 2003).
11. For citations, see id. at 1286-87, 1289-90. For a fuller discussion of the Judiciary Act's language, see infra Conclusion.
12. The earliest usage of the term "great writ of English Liberty" we have found is in Giles Jacob, A New Law-Dictionary 348 (1729). In his discussion of the term, Jacob stated, "it is a mistaken notion that this Writ is of a modern date, and introduced with the reign of King Charles 2." The first major statutory intervention in the writ's use took place with the Habeas Corpus Act of 1679. 31 Car. 2, c. 2. As Jacob's discussion suggests, and as we shall explore further below, the "Great Writ" of common law not only preceded, but was always greater - more expansive - than the writ enacted by statute.
13. INS v. St. Cyr, 533 U.S. 289, 301 (2001) (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996)). Among briefs making use of this standard, see Brief for Former Federal Judges et al. as Amici Curiae Supporting Petitioners at 10, Al Odah v. United States (consolidated with Boumediene), cert. granted, 127 S. Ct. 3078 (2007) (No. 06-1196). Both Judges Randolph and Rogers of that court referred to this standard in explaining their contradictory positions as to whether or not the petitioners in the case the Court heard in December might be able to invoke habeas corpus challenges to their detentions. See Boumediene v. Bush, 476 F.3d 981, 988 (D.C. Cir. 2007) (Randolph, J., for the majority); id. at 1000 (Rogers, J., dissenting).
14. The legal historiography of Anglo-American habeas corpus jurisprudence serves as a model example of "whig history," in which contemporary commentators impose their current preconceptions on their pasts. In Herbert Butterfield's classic formulation, "the whig historian can draw lines through certain events . . . to modern liberty." In doing so, the historian "begins to forget that this line is merely a mental trick." Herbert Butterfield, The Whig Interpretation of History 12 (1951) (originally published in 1931). This "is bound to lead to an over-simplification of the relations between events and a complete misapprehension of the relations between past and present." Id. at 14.
15. Nineteenth-century American accounts of the English history of habeas corpus provide an especially vivid example of "whig history." In these, the genesis of habeas corpus rested in Magna Carta, or, more vaguely, in Anglo-American liberties. See, e.g., William S. Church, A Treatise on the Writ of Habeas Corpus 3 (2d ed., San Francisco, Bancroft-Whitney Co. 1893);
16. Rollin C. Hurd, A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected with It 66-74 (2d ed., Albany, W.C. Little & Co. 1876). We will argue that this general claim, and many assumptions attendant on it, is anachronistic and in need of revision.
17. By the early twentieth century, historians were taking a more measured approach. See, e.g., William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 156, 421-22 (1905);
18. Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution 1300-1629, at 68-69 (1948). But the idea that the writ originated with Magna Carta remains deeply embedded. In the Senate's debates on the Military Commissions Act of 2006, Senator Arlen Specter of Pennsylvania stated that "[t]he right of habeas corpus was established in the Magna Carta in 1215 when, in England, there was action taken against King John to establish a procedure to prevent illegal detention." 152 Cong. Rec. S10264 (daily ed. Sept. 27, 2006). In the same debate Senator Jeff Bingaman of New Mexico likewise dated habeas corpus to 1215. Id. at S10261.
19. For a fuller discussion, see infra Part IV. Commentary on the Suspension Clause by the framers and their contemporaries is discussed in William F. Duker, A Constitutional History of Habeas Corpus 127-35 (1980)
20. and Eric M. Freedman, Habeas Corpus: Rethinking the Great Writ of Liberty 12-19 (2001).
21. U.S. Const. art. I, § 3, cl. 6; U.S. Const, art. I, § 2, cl. 4.
22. For a fuller discussion, see infra Part IV.
23. Across the eighteenth century, lawyers and other commentators referred routinely to habeas corpus as "the Palladium of Liberty," a phrase rich with meaning in a society whose leaders were steeped in classical mythology. Widely printed books, like Francis Pomey, The Pantheon, Representing the Fabulous Histories of the Heathen Gods And Most Illustrious Heroes (Andrew Tooke ed., 6th ed., 1713), recounted classical lore in easily accessible form. Pomey told the story of the palladium, the image of the goddess Trojans called Pallas - better known as Minerva or Athena - that protected their city. As Pomey explained, the Greeks called her Athena "because she is never enslaved, but enjoys the most perfect liberty." Id. at 114. Troy, and Trojan liberty, thus remained safe as long as the image of Pallas guarded the city. Ulysses, with the help of Diomedes, crept into Troy through the sewers and stole the Palladium. The city soon fell. For Pomey's account of the story, see id. at 113-15. For further discussion of Pallas, see id. at 120-22. The writ of habeas corpus and sometimes the Habeas Corpus Act of 1679 were routinely referred to as liberty's palladium.
24. See, e.g., Britannicus, A Reply to the Case of Alexander Murray, Esq. 51 (1751);
25. The Annual Register, or a View of the History, Politics, and Literature, For the Year 1774, at 72, 212 (3d ed., London, J. Dodsley 1782).
26. This language appeared frequently in parliamentary debates, especially when discussion turned to suspending the writ by statute. See, for instance, the 1777 debate to suspend the writ for American rebels, in which John Johnstone condemned a "measure of attacking the grand palladium of the British constitution"; Charles James Fox referred to habeas as "the great palladium of the liberties of the subject;" and James Luttrell damned the bill as a "daring attack upon the palladium of English liberty." 19 The Parliamentary History of England, from the Earliest Period to the Year 1803, at 5-6, 11, 39-40 (William Cobbett comp., London, T. C. Hansard 1814) [hereinafter Parliamentary History].
27. For a brief discussion of the fundamental unity in English constitutional arrangements and presuppositions owing to the centrality of the monarch, see infra notes 41-44 and the sources cited therein.
28. That evolution is briefly discussed in the Article's Conclusion.
29. The view that the writ of habeas corpus embodies a long Anglo-American tradition of vindicating the rights of subjects against the King, or of citizens against the unconstrained powers of the Executive branch, is so widely shared that modern commentators and judges take it for granted. See, e.g., sources cited in Fallon & Meltzer, supra note 6, at 2037-39 nn.24-28. Perhaps the best illustration is in Duker, supra note 14, at 3-9.
30. In St. Cyr, Justice Stevens, for the majority, and Justice Scalia, joined by Justice Thomas and Chief Justice Rehnquist in dissent, advanced alternative views of the history of the Suspension Clause. INS v. St. Cyr, 533 U.S. 289, 301-03, 336-41 (2001). We take up those views in more detail in the Conclusion.
31. Id. at 301 (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996)).
32. Rasul v. Bush, 542 U.S. 466, 481-82 (2004).
33. For a fuller discussion see infra Sections III.B. and III.C.1.
34. Such usage also reflects what John Baker has rightly called "the tyranny of the press over our intellectual horizons." J.H. Baker, Why the History of English Law Has Not Been Finished, 59 C.L.J. 62, 82 (2000).
35. The period from the mid sixteenth century to the late eighteenth is conventionally labeled "early modern" by historians concerned with that period.
36. Manuscripts were the favored form for storing and transmitting legal ideas in early modern England, even in the later eighteenth century, when printed treatises and legal reference works were widely available. Such manuscripts included treatises that were never published and notes or abridgments of statutes or cases carefully gathered under headings in a way that made them into customized reference sources for everyday consultation. Until the late seventeenth century, when readings - public lectures or learning exercises - all but ceased in the Inns of Court, unpublished notes of readings were another prominent feature of legal learning. For the importance of manuscripts and aural learning in the seventeenth century, see Wilfred R. Prest, The Inns of Court Under Elizabeth I and the Early Stuarts, 1590-1640, at 116-24 (1972).
37. For the eighteenth century, see David Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century 131-44 (2000).
38. In Rasul v. Bush, the decision of the U.S. Supreme Court referred twice to the Commentaries; the dissent of Justice Scalia referred to it four times. 542 U.S. 466, 482 nn.12-13, 502-04 (2004). In Hamdi v. Rumsfeld, Justice Scalia made use of Blackstone six times. 542 U.S. 507, 555, 557-58, 561-62, 576 (2004). A few other treatise writers sometimes gain mention. Sir Matthew Hale, meanwhile, gets one notice from the Supreme Court in Rasul, 542 U.S. at 482 n.13, citing to the modern edition of a work first printed in 1713: Sir Matthew Hale, The History of the Common Law of England (Charles M. Gray ed., 1971). For the dating of the first print edition, see id. at xiii.
39. The most readily available edition of Blackstone is the facsimile of the first edition of 1765-69. 1-4 William Blackstone, Commentaries on the Laws of England (Univ. of Chi. Press 1979).
40. The very elegance of the analytic structure and prose in the Commentaries - by which Blackstone made order out of that which was essentially chaotic, English law-should give us pause in taking it as a merely descriptive treatise. For varying approaches to Blackstone, see David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain 31-67 (1989);
41. Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 Buff. L. Rev. 205 (1979);
42. and Michael Lobban, Blackstone and the Science of Law, 30 Hist. J. 311 (1987).
43. For a more recent treatment, see Bernadette Meyler, Towards a Common Law Originalism, 59 Stan. L. Rev. 551, 560-62 (2006).
44. The English Reports (1900-1930). This compilation of the best-known nominate printed case reports was first gathered into a unified set in the early twentieth century. See J.H. Baker, An Introduction to English Legal History 181-84 (4th ed. 2002).
45. For discussion of some of the problems in early modern English reports, see A.W. Brian Simpson, Leading Cases in the Common Law 10-12 (1995);
46. Baker, Why the History of English Law Has Not Been Finished, supra note 25, at 73-78.
47. American law reports in the framing period were no better. See G. Edward White, 3-4 History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815-35, at 384-88 (1988) [hereinafter White, The Marshall Court and Cultural Change].
48. For a full discussion of early American law reports, see Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendency, 83 Mich. L. Rev. 1291 (1985).
49. John Baker has said of printed reports of the seventeenth and eighteenth centuries: "[s]ome of them were so bad that judges forbade their citation, or resorted to manuscripts to supply their deficiencies: a discipline which the student of legal history must necessarily emulate." Baker, Introduction, supra note 31, at 183-84.
50. See Baker, Why the History of English Law Has Not Been Finished, supra note 25, at 74.
51. For an example, see the 1615 case of Henry Rosewell ("Ruswell" in the printed reports), one of a number from that year that concerned King's Bench oversight on habeas corpus of Chancery imprisonment orders. The two printed reports of the case (Ruswells Case, 1 Rolle 192, 81 Eng. Rep. 425 (K.B.), and 1 Rolle 219, 81 Eng. Rep. 445 (K.B.)) offer only a précis of Chief Justice Sir Edward Coke's thinking in the matter, in which he ultimately decided to remand the prisoner based on the return to Rosewell's writ, which stated that he had been imprisoned for a contempt of Chancery. The manuscript version of the report gives a quite full account of the cases Coke discussed and of his exchange with Rosewell's counsel, George Croke. Bodleian Library, Oxford [hereafter Bod.], MS Rawlinson C.382, ff. 56v.-57v.
52. In the most recent work considering the writ's English history, 159 reports of 143 habeas cases are cited from the writ's formative period, the three centuries before 1789. R.J. Sharpe, The Law of Habeas Corpus (2d ed. 1989). The principal American work on habeas corpus cites seventy-two reports of fifty-nine habeas cases from the same period. Duker, supra note 14. Earlier historians of the writ worked with far fewer cases. See, e.g., Church, supra note 13, at 4-16; Hurd, supra note 13, at 75-91.
53. This number is derived from a quadrennial survey of King's Bench records (see infra note 37) conducted by Paul Halliday, yielding information on 2752 writs of habeas corpus ad subjiciendum issued every fourth year, from 1502 to 1798, inclusive. This gives us a projected total of just over 11,000 prisoners. Given the varying condition of these records over such a long period, the figure of 11,000 is almost certainly an undercount. Owing to problems with record survival, only partial information exists for the following years falling in the quadrennial series surveyed: 1510, 1518, 1534, 1674, 1678, and 1686. From this information gleaned from King's Bench archives, a database has been constructed that allows many patterns of use to be traced. Among the many things we learn are the identity of the committing officer or court and the wrong alleged to support the commitment; the dates at each stage of proceedings, and thus the speed of process; results (whether prisoners were remanded, bailed, or discharged); and much more. After 1679, we can determine whether writs issued according to common law, or according to the Habeas Corpus Act of 1679, 31 Car. 2, c. 2. In addition to the quadrennial survey years, the records described below were also searched in other years of probable importance: for instance, the first two decades of the seventeenth century, when certain aspects of writ process changed most rapidly; the 1640s and '50s, during the Civil Wars and the Interregnum; the 1690s, when England experienced foreign war and domestic risings; and the war years of the decades after 1756. This resulted in information on more than 2000 further users of the writ of habeas corpus in addition to the 2752 in the survey group. In total, we are working here with information surviving on over forty percent of the projected total number of users of a quite actively used writ. While the purpose of this Article is not to explore closely the many things we learn from this body of evidence, it is important to understand this information in brief, as at many points following, we can see more clearly the significance of various isolated moments by holding them up to general patterns of usage.
54. Three classes of records from the Court of King's Bench, all held in the National Archives of the United Kingdom, London (Kew) [hereinafter TNA], have been studied. First, the recorda files of the Crown Side of King's Bench - concerned especially with crown pleas, such as felony and statutory wrongs - contain the actual writs and the returns made to them: the full, formal answer made to the writ in which the jailing officer explained the circumstances of imprisonment, often by transcribing into the return the warrant of commitment. Second, the Crown Side controlment rolls contain enrolled copies of many of the writs and/or their returns or at least a précis of the same. Third, the Crown Side rule and order books contain information on all aspects of proceedings on the Crown Side. These documents are cited throughout this Article according to standard historical practice and to the forms of citation recommended by the National Archives of the United Kingdom. The recorda files may be found in TNA, KB145 (up to 1688) and in KB16 (after 1688); some stray recorda files are in TNA, KB32 (for various years in the reign of Charles I, 1625-49) and KB11 (1689-90). In most cases, each file covers a single regnal year: the dating of early modern judicial records, like the dating of statutes, was done not by reference to the calendar year, but by reference to the year of the monarch's reign, that year taken to begin on the date of accession. Because the controlment rolls and rule and order books were kept only during the court's four terms, and not during the lengthy vacations between terms, the recorda files provide us with the only surviving evidence of the extensive use of habeas corpus outside of term. Writs and their returns found in these files are cited herein by the recorda file reference, with the name of the prisoner(s) and, where date information survives, the writ's teste date, the date of issuance: e.g., TNA, KB145/17/14 (Henry Vane, teste May 30, 1662). The controlment rolls are in TNA, KB29. These are composed of large parchment membranes gathered by term and then stitched together at the end of each regnal year to form the roll. References to these rolls are to the individual roll and membrane number: e.g., TNA, KB29/282, m. 159d., where "m." signifies the membrane number, and "d." signifies that the entry is on the dorse, or back, of the membrane. Clerical practice varied widely across three centuries, making these rolls of greater or lesser value from one period to the next. They tend to be quite full in the early sixteenth century, after which they vary in quality until the period after 1660, when the information they contain about habeas use drops rapidly. By the late 1670s, they only list the names of the writ's users, and from the 1690s, even this information disappears. Given this variation, the recorda files are to be preferred to the controlment rolls for any systematic study across centuries, though by combining information from the two, we can hope to get the fullest surviving information. Two important works have made effective use of the controlment rolls to study habeas history. The more recent is J.H. Baker, The Common Law Tradition: Lawyers, Books and the Law 341-46 (2000). In the 1880s, Frederick Solly-Flood wrote a long manuscript treatise on habeas corpus, now housed in the library of the Royal Historical Society, in London. He did extensive work in the controlment rolls, sampling them for the first year of each monarch's reign, though as he reached the seventeenth century, he worked more from the printed reports than from the rolls. The Rule and Order books are in TNA, KB21. These are bound paper volumes, some of which are paginated, some foliated, and others without any numbering of the sheets. Volume and page or folio numbers are indicated thus: TNA, KB21/11, f. 167v., where the second number indicates the volume, "f." indicates the folio number, and "v." indicates the verso, or back of the folio. These order books have been very little studied, yet they contain information we can find nowhere else about many aspects of everyday court practice.
55. As J.H. Baker has noted, such records have been too little studied, especially for the centuries after 1550, yet they "are ignored at our peril." Baker, Why the History of English Law Has Not Been Finished, supra note 25, at 72.
56. Habeas corpus was a judicial writ, requiring motion by counsel making a prima facie case for issuance. For examples of the denial of habeas on motion, see Lincoln's Inn, MS Misc. 499, f. 249 (1666); and Lincoln's Inn, MS Hill 83, f. 226 (1667). See also Thomas Franklyn's case, (1783) 1 Leach 255, 168 Eng. Rep. 230, which provides a good example of the limitations of printed reports. Here the report does not make clear Franklyn's failure to get the writ. For the court's orders, see TNA, KB21/43, unpag., at Monday in fifteen days of St. Hilary (January 27,1783) for the nisi order to issue; and at Wednesday next after the morrow of the Purification of the Blessed Virgin (February 5, 1783) for the discharge of the previous order: in other words, a denial of the writ.
57. National Library of Wales, MS Coedymaen 6, f. 1. Williams was arguing on behalf of the Earl of Shaftesbury. The sting was in the tail of his statement. Shaftesbury had been imprisoned by the House of Lords for contempt. Williams argued, unsuccessfully, that habeas was so important a privilege that even Parliament - "what court soever" - must answer it.
58. King's Bench was said to convene coram rege: before the king. On the idea that King's Bench was the place where the king himself sat in judgment, even long after he had ceased to sit in that court, see Baker, Introduction, supra note 31, at 38-39.
59. On Parliament as the king's highest court, see id. at 207-08.
60. If we are to use English history to understand the contours of our law, then we must approach that history with some sensitivity for its distinctive features. The differences between American and early modern English ideas and practices must be the key to constructing a proper history of habeas corpus. Americans commonly refer to imprisonments ordered by the king and his Privy Council as "executive" orders. Thus, the Five Knights' Case of 1627, in which the knights concerned had been imprisoned by an order of the king in Council, is commonly referred to as an "executive" imprisonment. On the Five Knights' Case, see infra text accompanying notes 125-30. For such usage, see, e.g., Tor Ekeland, Suspending Habeas Corpus: Article I, Section 9, Clause 2, of the United States Constitution and the War on Terror, 74 Fordham L. Rev. 1475, 1481 (2005). But when we call the king or his council an executive, we immediately preclude an historical investigation by employing ahistorical premises. The usage is anachronistic. Neither the king nor his Council was "an executive" in any meaningful sense of that word, nor was a Parliament simply a legislature. To appreciate this, we must understand that Privy Council, Parliament, and every other instrument of authority in England shared the same legal and conceptual source: the king. Judges, the Council, Parliaments, and all others who performed official functions derived their authority from the king, explicitly - through terms spelled out in charters or commissions passed by the great seal - or implicitly, by claims of custom. Powers within the English polity were not seen as separated; thus they did not check or balance one another, even if at times, as a result of institutional or personal jealousies, they came into conflict. The Privy Council was simultaneously an administrative body, an advisory board, and a court. It arguably legislated as well, by proclamation. The Council oversaw the work of judges - issuing instructions to them before they rode their semi-annual assize circuits - and of local justices of the peace.
61. On the Council's functions, see Penry Williams, The Tudor Regime 31-33 (1979). From the Council sprang two of the most popular courts of the sixteenth and early seventeenth centuries: Requests and Star Chamber.
62. On the popularity of Requests, see Tim Stretton, Women Waging Law in Elizabethan England 70-100 (1998),
63. and of Star Chamber, see Steve Hindle, The State and Social Change in Early Modern England, c. 1550-1640, at 66-93 (2000). Individual careers as well as institutional arrangements ensured significant sharing of personnel. Chief justices of the two principal common law courts-Common Pleas and King's Bench - typically first served as solicitor and/or attorney general, in which capacity they advised the Council and did its legal work. After promotion to the bench, chief justices were sometimes sworn as members of the Privy Council. In this capacity, they sat as judges in the Court of Star Chamber as well as in their own courts.
64. See James S. Hart, Jr., The Rule of Law, 1603-1660: Crowns, Courts and Judges 59-62 (2003). The career of the legendary Edward Coke provides a notable illustration: Coke was attorney general, chief justice of Common Pleas and then of King's Bench, Privy Councilor, and sometime judge in Star Chamber.
65. See Allen D. Boyer, Coke, Sir Edward, in 12 Oxford Dictionary of National Biography 451 (H.C.G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/view/article/5826. Nor was Parliament typically a competitor with the king before the 1640s. Rather, it was both the king's highest court and his most important council. Thus Henry VIII was reputed as saying, "[W]e at no time stand so highly in our estate royal as in the time of Parliament, wherein we as head and you as members are conjoined and knit together into one body politic."
66. J.J. Scarisbrick, Henry VIII 507 (1968) (quoting 3 Holinshed's Chronicles of England, Scotland, and Ireland 826 (1808)). Henry's reference to "the time of Parliament" underscores the fact that his contemporaries thought of a Parliament, not the Parliament. Until 1640, and arguably until 1689, "Parliament was an event and not an institution." Conrad Russell, Parliaments and English Politics, 1621-1629, at 3 (1979). Until 1689, Parliament convened at the king's or queen's command, and disbanded on the same authority.
67. On the assembling of a Parliament, see Jennifer Loach, Parliament Under the Tudors 18-20 (1991).
68. The classic statement of the proposition that Parliaments were not bodies apart from and competing with the crown is in G. R. Elton, The Parliament of England, 1559-1581, at 1-40 (1986).
69. This is emphatically not to say that law, and habeas corpus, were premised on so-called absolutism. For a discussion of concepts of monarchy in the seventeenth century, rebutting the common notion that early Stuart kings were "absolutist" in practice or in theory, and underscoring the consensual quality of political discourse in the early seventeenth century, see Glenn Burgess, Absolute Monarchy and the Stuart Constitution (1996),
70. and Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642 (1992). Historians now appreciate the intellectual force and legal clarity of what would become royalist legal argument up to and during the 1640s. This helps us understand why so many lawyers - including many of the King's critics - ended up supporting the king rather than Parliament in the 1640s. As Conrad Russell pointed out, Charles I won a following in the Civil Wars of the 1640s by an appeal to law, an appeal answered by many prominent lawyers.
71. Conrad Russell, The Causes of the English Civil War 131-60 (1990).
72. The modern edition of Hale's writings on the prerogative is a collation of two manuscripts, one probably written during the Civil Wars of the 1640s, the other probably written in the years immediately before and after the restoration of monarchy in 1660. A third manuscript, the Incepta de Juribus Coronae, contains Hale's working notes. On the manuscripts and their dates of composition, see D.E.C. Yale, Introduction to Sir Matthew Hale, The Prerogatives of the King ix-xi, xxiii-xxvi (D.E.C. Yale ed., Selden Society 1976) [hereinafter Hale's Prerogatives]. In writing about the prerogative, Hale took himself to be writing about the heart of English law. As he put it, "It is most certain that the English government is monarchical . . . . [and] the supreme administration of this monarchy is lodged in the king, and that not only titularly but really." Id. at 10-11. From this, all else followed. For Hale's tabular arrangement of English public law, by which he tied political theory to English institutional arrangements as they arose from the central fact of monarchy, see id. at xi-xx. As the leading work on Hale notes, in his writings on the prerogative, Hale "organised the law, which had previously been scattered through an enormous range of difficult sources."
73. Alan Cromartie, Sir Matthew Hale, 1609-1676, at 45 (1995).
74. The term "natural" is placed in scare quotes because a bald distinction between the natural and alien subjects of a monarch may strike contemporary readers as loaded or offensive. The distinction was not so regarded in early modern English jurisprudence. For further discussion of the variety of subjects, see infra Subsection I.B.5.
75. Hale's Prerogatives included a very full section discussing franchises, in which he stated that "all jurisdictions are derived from the crown and are exercised either by immediate commission from his Majesty or by grant over to his subjects, viz. by grant express or presumed . . . . This appears especially by that subordination that they all have to the king's jurisdiction . . . ." Hale's Prerogatives, supra note 45, at 201. For a fuller discussion, see infra Section II.B. Hale's contemporary, Francis North, later Lord Guilford, defined franchise succinctly as "a general denomination for all privileges, exemptions, capacities, and interests, which are claimed either by grant from the king, or by prescription . . . and are distinct from all specific estate or title in lands, tenements, or chattels." British Library [hereinafter BL], MS Add. 32,520, f. 66.
76. As we will see in more detail, Hale endorsed the traditional doctrine "that the king can do no wrong." It did not follow, however, that the king's officers were above the law, even when implementing royal commands. "[F]or if it be wrong and contrary to the law," Hale argued, "it is not the act of the king but of the minister or instrument that put it in execution and consequently such minister is liable to the coercion of the law to make satisfaction." Hale's Prerogatives, supra note 45, at 15. Here we reach the heart of the matter: determining what was wrong in law in the actions
77. The writ also issued from Common Pleas and from the common law side of the Courts of the Exchequer and of the Chancery. Unlike in King's Bench, using the writ from one of these other courts required a claim of privilege: that the writ's user be an officer of, or litigant in, the issuing court. This explains why, as the court of Queen's Bench began to make significant changes in the use of the writ in the second half of the reign of Elizabeth I, use of habeas from these other courts appears to have fallen off dramatically. For this reason, as Chief Justice Sir John Vaughan of Common Pleas put it, it was "more natural" that habeas should issue from King's Bench since it was there that final determinations could be made on criminal wrongs. Carter 221, 124 Eng. Rep. 928 (1671).
78. Throughout this article, the term habeas corpus will be used to refer to the writ of habeas corpus ad subjiciendum et recipiendum (to undergo and receive). The writ took many other forms, but it was this form that developed the force to review imprisonment orders by any official, the quality now regarded as central to the writ's utility. Habeas corpus ad testificandum also came to be regarded as very important, because it brought witnesses into court in criminal (as well as civil) proceedings. The two most common forms of the writ in the early modern period were the writ ad respondendum and the ad faciendum et recipiendum writ, both of which removed a body from one court into another in a private action. To early modern lawyers, these two forms of the writ were central because they aided pleadings in disputes about debts and other private complaints, where professional incomes were earned. Thus early modern practice manuals focused almost entirely on these forms of the writ, not on the ad subjiciendum et recipiendum form. See, e.g., Richard Antrobus & Thomas Impey, Brevia Selecta; Or, Choice Writs 3 (1663);
79. Praxis Utriusque Band: The Ancient and Modern Practice of the Two Superior Courts at Westminster 1-4 (1674).
80. From at least the early seventeenth century, affidavits from the prisoner or others might be used to support the motion by making out a prima facie case for the writ. Occasional references to affidavits may be found in the rulebooks. For example, the court ordered a writ to the jail in Lostwithiel, Cornwall, in 1624 for one Hayne, based on an affidavit presented in court. TNA, KB21/8, f. 28. Unfortunately, affidavits do not survive from before 1688 and only survive in large numbers beginning two decades later. Affidavits are in TNA, KB1 and KB2. The creation of indexes of affidavits (TNA, KB39), which survive from 1738, suggests how important they had become in the eighteenth century.
81. The writ required return of the body along with "the cause of the detention" only. In the sixteenth century, returns were often brief enough that one could write them on the back of the writ itself. In 1628, the language of the writ changed, to require the return of "the day and the cause of the arrest and detention." This led to the making of longer returns, as more detailed information was now required. As returns lengthened, the practice increasingly was to attach another piece of parchment to the writ on which a more full return might be written. For more on this change in process, see infra note 158.
82. Sub pena clauses were usually included in alias and pluries writs, repeat writs issued when the first was unreturned. As one reporter noted in 1632, "the custom of the court is to grant an alias with a pain on affidavit of the serving of the first writ." Cambridge University Library, MS Gg.2.19, f. 253. Such writs tended to impose a £40 penalty in the first instance and an £80 penalty in the second. But sometimes the threat could be more severe: see, for instance, the writ for John Somerland and Hatton Easton, which issued with a £200 threatened penalty. KB21/13, f. 99. They had been jailed in 1646, at the end of the first Civil War, for failing to pay their assessment for support of the parliamentary army. The threat appears to have worked: the return was made and they were bailed. TNA, KB29/296, m. 66d.; KB21/13, ff. 101 and 102v.
83. A particularly impressive example of this concerned writs sent to the porter of the porter's lodge (the prison) of the Council of the Marches of Wales, based at Ludlow, in Shropshire, in 1605. This concerned a writ for Walter Witherley, sent to the porter, Francis Hunnyngs, reported in Harvard Law School [hereinafter HLS], MS 118, ff. 57-58 and HLS, MS 1180, ff. 68v.-70. After repeated attempts to force Hunnyngs to return the writ, King's Bench imprisoned the jailer for contempt. HLS, MS 118, f. 58.
84. Examples were Berwick-upon-Tweed, on the Scottish border; the Cinque Ports, along the south coast; and the Council in the Marches of Wales, in the west. There were also other jurisdictions, known as the palatinates - Chester, Durham, and Lancaster - to which writs in civil process did not run from Westminster Hall, but to which the prerogative writs, including habeas corpus, did run. On these special jurisdictions, see Baker, Introduction, supra note 31, at 27-31, 121.
85. On the Cinque Ports, see J.H. Baker, 6 Oxford History of the Laws of England 318 (2003). For the imposition of the writ of habeas corpus in Berwick, much against the will of the corporation there, see the 1601 case of Henry Brearley: TNA, KB21/2, ff. 84v., 87, and 95. This was in all likelihood the case adduced during arguments in Bourne's Case, from the Cinque Ports, in 1619: see Richard Bourn's Case, Cro. Jac. 543, 79 Eng. Rep. 465, 465-66. For an analysis of Hale's discussion of special jurisdictions, see infra Part II.
86. Habeas Corpus al Cinque-Ports pur un Borne Imprison La., (1619) Palmer 54, 81 Eng. Rep. 975, 975 (K.B.).
87. HLS, MS 105, f. 85 (1605) (from a report on the writ for Ladd, et al.).
88. BL, MS Harleian 5220, f. 3. Dodderidge's sketch of a planned treatise on the prerogative dates from late in Elizabeth's reign, around the years 1600-03. For discussion, see Christopher W. Brooks, Lawyers, Litigation and English Society Since 1450, at 207-08 (1998).
89. Even in the eighteenth century, a King's Bench justice found the analogy to divine miracles a useful way to describe the prerogative. Sir John Fortescue Aland noted that Sir John Davies, a century earlier, had likened "the prerogative to the government of God himself, who suffers things generally to go in their usual course, but reserves to himself to go out of that by a miracle when he pleases." BL, MS Stowe 1011, f. 88 (Fortescue Aland commonplace book, n.d.). But there was nothing in Davies about acting by whim, "when he pleases." As we shall see, the people's well-being, not whim, justified use of the prerogative. See infra text accompanying notes 62-65. Davies wrote, "[The king] doth imitate the Divine Majesty, which in the government of the world doth suffer things for the most part to pass according to the order and course of nature, yet many times doth show his extraordinary power in working of miracles above nature." Sir John Davies, The Question Concerning Impositions, Tonnage, Poundage, Prizage, Customs, &c. 32 (1656). That work was posthumously published, Davies having died in 1626.
90. Sean Kelsey, Davies, Sir John, in 15 Oxford Dictionary of National Biography 378, 378 (H. C. G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/view/article/7245. Fortescue Aland was justice of King's Bench and later of Common Pleas; he died in 1746.
91. David Lemmings, Aland, John Fortescue, first Baron Fortescue of Credan, in 1 Oxford Dictionary of National Biography 558, 558-59 (H.C.G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/view/ article/271.
92. The strangeness of the miracles analogy in a secularized twenty-first century world raises a larger methodological issue. In exploring the centrality of the analogy to early modern English thought, we are arguing that to recover the history of legal concepts, we must recover epistemological assumptions by actors in the past that have now largely been discarded. Appreciating that point is crucial to understand the ideas that underlay Anglo-American habeas corpus jurisprudence during the period covered by this Article. See especially Quentin Skinner's discussion of these methods in his work on the history of political ideas. 1 Quentin Skinner, Visions of Politics: Regarding Method, especially chs. 1, 3, 4, 6, 8 (2002);
93. Quentin Skinner, Liberty Before Liberalism 101-20 (1998). As Skinner notes, "one of the present values of the past is as a repository of values we no longer endorse, of questions we no longer ask." Id. at 112.
94. On early modern ideas about miracles, see Alexandra Walsham, Providence in Early Modern England 225-43 (1999).
95. For the persistence of such thinking in the eighteenth century, see Jane Shaw, Miracles in Enlightenment England (2006).
96. The king "is the most excellent and worthiest part or member of the body of the commonwealth, so is he also (through his good governance) the preserver, nourisher, and defender of all the people[, they] being the rest of the same body." Sir William Stanford, An Exposition of the Kings Prerogatiue, at Fol. 5 (1607).
97. Edward Forset, A Comparative Discovrse of the Bodies Natvral and Politiqve 21 (1606). Forset develops at length the likeness of the king to God, and thus the idea of the king's power, like God's, to act beyond the bounds of nature. Id. at 20-26.
98. The judges discussed this in Calvin's Case (1608), which concerned whether a Scottish subject could hold property in England after Scotland's king, James VI, became England's king too, as James I, in 1603. In deciding that Scots born since 1603 could indeed hold property in England, the judges emphasized that the subject's allegiance was owed to the actual person of the king, not to his political person or some other abstraction such as "the Crown." See Coke's discussion of allegiance, 2 A Complete Collection of State Trials cols. 607, 613-21 (T. B. Howell comp., 1816) [hereinafter State Trials]. In considering whether subjects owed obligation to the king's body politic, or to his body natural, Coke was clear: "our ligeance is to our natural liege sovereign." Id. at col. 629. For analysis of Coke's report of Calvin's Case, see Keechang Kim, Aliens in Medieval Law: The Origins of Modem Citizenship 176-99 (2000)
99. and Daniel J. Hulsebosch, The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence, 21 Law & Hist. Rev. 439 (2003).
100. "Like a free man." John Hawarde, Les Reportes del Cases in Camera Stellata, 1593 to 1609, at 362 (William Paley Baildon ed., 1894). That liberty was a condition premised on obligation, even bondage. It was a secular rendition of the most pervasive language of liberty in seventeenth-century England: that associated with the status of a Christian. See, e.g., Alexander Chapman, Christian Liberty Described in a Sermon Preached in the Collegiate Church at Westminster, by a Minister of Suffolke, at signature D3 (unpaginated) (1606). Debates about the nature of liberty were thus heavily conditioned by religious controversy, the most important being that concerning antinomians. Those who emphasized the role of Hebraic law in controlling human actions were derisively called "legalists" by their antinomian foes, who thought that only in a full and unfettered liberation could they live out their salvation here on earth. On antinomians, see David R. Como, Blown by the Spirit: Puritanism and the Emergence of an Antinomian Underground in Pre-Civil-War England (2004). On "legalists," see id. at 2.
101. "I find the denomination of subjects applicable to persons under these four considerations, first, natural born subjects, secondly, acquired, or subjects by purchase or acquest, thirdly, local subjects, fourthly, feudal subjects." Hale's Prerogatives, supra note 45, at 54. Coke's four varieties of "ligeance" differed slightly: "naturalis," "by acquisition or denization," "local obedience," and "legal obedience." 2 State Trials, supra note 64, at col. 615.
102. Hale's Prerogatives, supra note 45, at 56.
103. BL, MS Harleian 5220, f. 11v. "Protection," according to Thomas Blount, is "that benefit and safety, which every subject, denizen, or alien, specially secured, hath by the Kings Laws." Thomas Blount, NOMO-ΛEΞIKON: A Law-Dictionary, at entry "Protection," signature Fff4 (Sherwin & Freutel 1970) (1670).
104. 33 Geo. 3, c. 4.
105. Sir Francis Ashley, in his 1616 reading on Magna Carta, chapter 29, argued that "none may be freemen except those who are subjects, or born, or resident within the fee of the king and within his protection." An alien, Ashley concluded, was a freeman for purposes of Magna Carta, but this status pertained only while one was within the king's dominions, "because his allegiance and protection is only local." Even an alien enemy, who came by safe conduct, was a "freeman because he has the protection of the king and thus by the law of nations (which is only the law of nature) must have the privilege of the laws of the realm." BL, MS Harleian 4841, f. 6. On the impact of the Aliens Act of 1793 and further statutes amending it, see Caitlin Anderson, Britons Abroad, Aliens at Home: Nationality Law and Policy in Britain, 1815-1870, at 23-58 (2004) (unpublished Ph.D. dissertation, University of Cambridge). The extension of consular protection to a wide variety of different kinds of subjects-for instance, in the Mediterranean - persisted as late as the mid-nineteenth century. Broadly inclusive practices making protection available to persons who were not natural subjects only began to be curtailed, by statutory change, beginning in 1847. See id. at 168-75,176-77. Our thanks to the author for sharing with us a copy of her unpublished dissertation.
106. See, for example, the writ for the Marquis de Brabant and a knight of Malta who were bailed after conviction at Maidstone assizes for shooting three watermen. TNA, KB145/17/14 (teste February 12, 1662); KB21/14, ff. 70v. and 72v.
107. Hundreds of foreign seamen, caught up by press gangs in English, Caribbean, or even foreign ports, successfully used habeas corpus to gain release from naval service in the second half of the eighteenth century. A 1740 statute had excepted from impressment "every foreigner." 13 Geo. 2, c. 17. Reference to this and other exempt categories were the chief grounds on which sailors used habeas corpus to challenge impressment. Foreign sailors in the merchant marine were supposed to be issued letters of protection explaining their foreign status, which could be presented whenever the press came on board. 13 Geo. 2, c. 17, § 3. This did not always prove effective when press officers anxious to meet their quotas were at work. In such cases, when foreign sailors used habeas corpus, the Admiralty's solicitor usually recommended that the sailor be released. In one such case, the Admiralty solicitor explained that two foreign sailors were "entitled to be discharged by virtue of the said writs of HC" He added, as he often did, that releasing them would be advised, "in order to save a great expense." TNA, ADM1/3678, f. 4 (letter of Samuel Seddon, Admiralty solicitor, to John Cleveland, secretary to the Admiralty board, January 22, 1760). While protections were desirable, they were not required, since aliens, by virtue of their status, were exempt from this form of detention. Thus even when a sailor lacked a protection, the Admiralty ordered release. See ADM1/1787 (letter of Capt. John Falkingham to John Cleveland, October 16, 1760, noting that a Swede and a Spaniard had no protection, with order to discharge on the verso). Admiralty solicitor letters in TNA, ADM1 and ADM7, provide a unique body of evidence for the perspective of counsel opposing writs of habeas corpus. The writs (TNA, KB16) and affidavits (TNA, KB1) in impressment cases, along with captains' letters (TNA, ADM1), and the attendant orders on those writs (TNA, KB21), provide an opportunity to examine habeas usage from several angles. For background on impressment, see N.A.M. Rodger, The Wooden World: An Anatomy of the Georgian Navy 164-88 (1986).
108. Hale's Prerogatives, supra note 45, at 56.
109. "By reason of place." Id. at 56.
110. Abraham Fuller was arrested for "suspicion of dangerous and treasonable practices" and, according to the return to his writ, ordered held as "a prisoner at war." He was then discharged without bail upon consideration of this return in February 1690. TNA, KB11/14 (teste January 23, 1690) and KB21/23, p. 362. Though the return to his writ referred to him as a "prisoner at war" and explained his detention by order of the Privy Council, it made no mention of a suspicion of "treasonable practices" mentioned in the original conciliar order. See CSPD 1689-90, p. 329 and TNA, PC2/73, p. 351. The return to the writ for John Dupuis reported that he had been captured at Exeter in September 1694 and ordered jailed by the mayor there, as "a Frenchman, on suspicion of being a spy." King's Bench ordered Dupuis remanded to the royal messenger who had custody of him when the return to his writ was examined in court. In September 1695, the Privy Council ordered that he be turned over to the Commissioners for Sick and Wounded Seamen, who also handled prisoners of war, and ordered that he be exchanged with the French "when there is any exchange of prisoners": TNA, KB16/1/5 (teste April 12, 1695) and PC2/76, f. 116v. The return to a writ of early 1697 explained that Garrett Cumberford had been detained two years earlier, first in Newgate, and later in the Savoy, where other military prisoners were held. He was bailed by King's Bench. A Privy Council order of May 1695 (TNA, PC2/76, f. 65v.) suggests that he may have been given the chance to be released upon giving security and swearing the oath of allegiance. Whether he refused these terms, or other circumstances intervened, is unclear. No mention of any intervening release is made in the return to his writ in the winter of 1697. TNA, KB16/1/6 (teste January 23, 1697) and KB21/25, p. 120.
111. See The Case of Du Castro, (1697) Fortescue 195, 92 Eng. Rep. 816 (K.B.) (he is called Du Castro in the report, but DuCastre in the record). For full information in the case, one must consult the original record, where Daniel DuCastre and Francis LaPierre were called in the return to their writ "alien enemies and spies." TNA, KB16/1/6 (teste January 23, 1697). The clerical note on the return to the writ shows they were bailed. DuCastre and LaPierre appeared twice in court on recognizances, according to standard procedure in bail orders of this kind. Both were ultimately discharged from bail. KB21/25, pp. 149 and 210.
112. On sanctuary, see Hale's Prerogatives, supra note 45, at 259;
113. Peter Iver Kaufman, Henry VII and Sanctuary, 53 Church Hist. 465 (1984).
114. On pardons, see K.J. Kesselring, Mercy and Authority in the Tudor State 56-90 (2003).
115. Hale's Prerogatives, supra note 45, at 177, 259-60.
116. Forset, supra note 63, at 21.
117. "The gaols . . . are all in the king's disposal . . . for the law hath originally trusted none with the custody of the bodies of the king's subjects . . . but the king or such to whom he deputed it." Hale's Prerogatives, supra note 45, at 228-29.
118. Habeas is usually grouped with mandamus, prohibition, certiorari, and quo warranto as prerogative writs. Edward Jenks, The Prerogative Writs in English Law, 32 Yale L.J. 523, 527 (1923). It was no accident that the other prerogative writs underwent major developments in the early seventeenth century, in the same period that the justices of King's Bench were arguing that they used the king's prerogative when they issued habeas corpus, by which they gave that writ its strength. The first writs of restitution - prototypes of mandamus - were used in 1605. These concerned the Sussex parishes of Steyning, Hellingly, and Ashurst, where clergymen ejected from their livings for their refusal to obey the new church canons of 1604 tried to regain their places; another also issued for Newton Valence in Hampshire. For the writs and orders, see TNA, KB29/246, mm. 124 and 138d.; KB29/247, mm. 17 and 32d.; and KB21/3, ff. 58, 61v., and 62v. Underscoring how close were developments on habeas and mandamus is the unusual writ combining both for Edward Farndon, who had been dismissed from the freedom of London and imprisoned. TNA, KB29/249, m. 16. A translation of this unusual writ is in Edith G. Henderson, Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century 167-71 (1963).
119. 4 Edward Coke, Institutes of the Laws of England 71 (1644).
120. As J.H. Baker notes of the prerogative writs, their "jurisdiction was, in other words, equitable." Baker, Inroduction, supra note 31, at 144.
121. J.H. Baker, 6 Oxford History of the Laws of England 39-48 (2003).
122. Edward Hake, Epieikeia: A Dialogue on Equity in Three Parts 56 (D.E.C. Yale ed., Yale Univ. Press 1953). Hake wrote his treatise between 1587 and 1591.
123. Louis A. Knafla, Hake, Edward, in 24 Oxford Dictionary of National Biography 488, 489 (H. C. G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/view/article/11881.
124. What was accepted as the equitable use of statute - entailing, as Thomas Ashe put it, "the exposition of any statute by an Equitie, sometimes farther than the letter, and sometimes contrary to the letter" - applied also to what we may call the equitable use of writs, especially those based so explicitly on the king's authority. Thomas Ashe, Epieikeia: Et Table generali a les Annales del Ley, at The Epistle Dedicatorie (1609).
125. James Bagg's Case, (1615) 11 Co. Rep. 93 b, 77 Eng. Rep. 1271, 1277-78 (K.B.). Though judges would not admit they acted equitably, it was a charge often made against figures like Chief Justice Mansfield, in the eighteenth century, who used habeas corpus as creatively as any justice ever has. "Junius" attacked Mansfield's "arbitrary power of doing right" and his "natural turn to equity" in releasing some on bail. 2 The Letters of Junius 192, 196 (1775).
126. See, for instance, the writ for Ralph Brooke in 1615, committed by the High Commission for neglecting their order to cohabit with his wife and to provide for her maintenance. King's Bench ordered him to pay £20 annual maintenance when they bailed him. TNA, KB145/14/13 (teste May 5, 1615) and KB21/4, f. 116 and KB21/5a, ff. 10v.-16v., passim. A report is at Brakes Case, (1615) Moore (K.B.) 840, 72 Eng. Rep. 940 (K.B.). The clearest statement of this rule came from Justice Sir John Eardley Wilmot, in the House of Lords, during the debate on the failed habeas corpus bill of 1758. On this debate, see James Oldham & Michael J. Wishnie, The Historical Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Immigr. L.J. 485, 488-89 (2002).
127. For example, in many cases, factual matters not in the return were raised in court though there was no jury to hear the facts. In a spousal custody case in 1701, Chief Justice Sir John Holt asserted, "it will be most proper to try the truth of what is sworn [in the affidavits required for issuance of the writ] when the young lady is present in court, upon the return of the habeas corpus." Lincoln's Inn, MS Misc. 713, p. 164. The young lady, Eleanor Archer, was then examined on oath. The printed report of this case says she was examined "by the Court secretly," probably to avoid public scandal. Mr. Archer's Case, (1701) Fortescue 196, 92 Eng. Rep. 816 (K.B.). Facts might also be raised by affidavit after return. These were used to certify the "lewdness" of Elizabeth Claxton in 1701, ensuring that she returned to jail. Elizabeth Claxton's Case, (1701) Holt, K.B. 406, 90 Eng. Rep. 1124 (K.B.). In a capital matter, an accused highway robber was bailed after counsel stated that he had "several affidavits, containing very strong circumstances, to show that the prisoner did not commit the fact." The King and Crisp, (1733) 2 Barn. K.B. 271, 94 Eng. Rep. 495 (K.B.); The King against Crest, Sess. Cas. 63, 93 Eng. Rep. 63 (K.B.). Judicial practices such as these amounted to a consideration by the court of facts that were based on sworn testimony rather than stipulated in the return.
128. William Blackstone, 1 Commentaries *133.
129. 31 Car. 2, c. 2. For instance, it has long been said that one could not get a writ of habeas corpus during the court's vacations before 1679. The source for this mistake may well come from Coke, who said that "neither the kings bench nor common pleas can grant that writ but in the term time." 4 Edward Coke, Institutes of the Laws of England 81 (1797) (1644). But King's Bench rulebooks and recorda files show hundreds of writs used during vacations throughout the sixteenth and seventeenth centuries. An examination of those writs reveals that thirty-nine percent of writs issuing under Coke's predecessors as chief justice - Sir John Popham and Sir Thomas Fleming - issued during vacations, while only fourteen percent of the writs used during Coke's tenure in King's Bench issued in vacation. For a more general statement of the point that judicial accomplishments prefigured the Act of 1679, see Helen A. Nutting, The Most Wholesome Law - The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527, 539 (1960).
130. See Oldham & Wishnie, supra note 89, at 494.
131. 3 Philip C. Yorke, The Life and Correspondence of Philip Yorke, Earl of Hardwicke 1-18, 42-53 (Octagon Books 1977) (1913). For more information on Mansfield's reaction in particular, see Oldham & Wishnie, supra note 89, at 488-95.
132. The vitality of the writ beyond the statutory terms of 1679 is illustrated by the Earl of Aylesbury's case (1696). Accused of treason, Aylesbury was brought into King's Bench by habeas corpus. The judges found that he was not bailable on the Habeas Corpus Act, "yet in regard that this court hath a sufficient power to bail by the common law, and that as well from the Tower as other prisons . . . the court thought it therefore very just and reasonable to bail him, not as an act of duty to which they were obliged by the statute, but as a discretionary act, which was in their power by the common law." HLS, MS 1071, f. 52.
133. Thus all the justices, when asked their opinions about habeas usage during discussion of the 1758 habeas corpus bill, agreed that the statutory writ of 1679 did not extend beyond criminal matters to such issues as impressment. BL, MS Add. 38,161, ff. 100v.-101. See also Oldham & Wishnie, supra note 89, at 488.
134. The Act concerned the use of habeas corpus only in cases of alleged felony or treason. These wrongs dwindled as a share of habeas litigation in the eighteenth century as ever-larger numbers of writs tested detentions in which there was no allegation of wrong, such as those involving abused wives and impressed sailors. That the writ in its common law form developed new uses is evident not only from the non-felony matters to which it was put, but also from the note written on the back of each writ (in the recorda files, TNA, KB16, passim) saying whether it had issued according to the terms of the 1679 statute - a relatively rare occurrence - or by rule of the court.
135. For contemporary circumstances in Ireland, see Tim Harris, Revolution: The Great Crisis of the British Monarchy, 1685-1720, at 445-50 (2006).
136. For a general account of political and military events in 1689-90, see Craig Rose, England in the 1690s: Revolution, Religion, and War 1-62 (1999).
137. Reports of the "disaffected" came from all points. From Newcastle arrived ominous news that dozens of horsemen had mustered on a regular basis. Calendar of State Papers, Domestic Series, [hereinafter CSPD] 1689-90, at 71 (Kraus Reprint 1969) (1895). At Carlisle, tenants of Lord Preston - himself soon arrested on suspicions of treason - refused to obey commands of soldiers there and instead "'bid them kisse their brichers.'" Id. at 40.
138. The state papers are filled with Privy Council arrest orders and discussions of the cases of many alleged traitors. CSPD 1689-90, supra note 99, passim. As we shall see, 147 people used habeas corpus in 1689 and 1690 to test imprisonment ordered on one of these three grounds. See infra text accompanying notes 144-148.
139. There was the practical problem of prison conditions. Jail keepers throughout the country, especially in places on the west and south coasts, held large numbers of prisoners, reflecting anxieties about invasion from France, Ireland, or both. Among the many letters to and from the Privy Council concerning prisoners, see CSPD 1689-90, supra note 99, at 151, 160, 217, 233 (discussing prisoners at Chester); id. at 250 (discussing prisoners at Gravesend); CSPD 1690-91, at 16 (discussing prisoners at Dover).
140. On the imprisonment of Chief Justice Sir Robert Wright, who died in Newgate in May 1689, see Stuart Handley, Wright, Sir Robert, in 60 Oxford Dictionary of National Biography 483 (H.C.G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/view/article/30056.
141. For Sir George Jeffreys, Lord Chancellor, who also died in prison that spring, see Paul D. Halliday, Jeffreys, George, first Baron Jeffreys, in 29 Oxford Dictionary of National Biography 882 (H.C.G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/view/article/ 14702.
142. Sir Robert Atkyns, justice of Common Pleas after 1689, likened pardon and dispensation, with one distinction: that pardon was retrospective while dispensation was prospective. Robert Atkyns, An Enquiry into the Power of Dispensing with Penal Statutes 12 (1689).
143. See Paul Birdsall, "Non Obstante" - A Study of the Dispensing Power of English Kings, in Essays in History and Political Theory 37-76 (Carl Wittke ed., 1936). On the need for dispensations and the right of the king to use them pro bono publico - for the public good - see id. at 60-63.
144. Such appointments were controversial, though the legal arguments on which they rested were stronger than is often appreciated, connected as they were not only to the prerogative, but to mercy. But legality does not make popularity, as Charles understood, even if James did not. On James's ambitious use of dispensations, see Harris, Revolution, supra note 98, at 191-95. The most spectacular use of non obstantes came in 1686-88, when James II removed more than two-thousand town leaders, only to replace them with Protestant dissenters and Catholics by patents permitting them to take office notwithstanding the usual requirements. See Paul D. Halliday, Dismembering the Body Politic: Partisan Politics in England's Towns, 1650-1730, at 237-62 (1998).
145. Tim Harris, Restoration: Charles II and his Kingdoms, 1660-1685, at 63-64, 69-70, 74-75 (2005).
146. For a balanced discussion of the great 1686 test case on dispensations, Godden v. Hales, see Birdsall, supra note 104, at 68-75.
147. On suspensions and the Seven Bishops, see Harris, Revolution, supra note 98, at 211-16, 258-69.
148. The Declaration was enacted as a statute later that year, in which slightly modified form it is usually called the Bill of Rights. For the Declaration's text, see Sources and Debates in English History, 1485-1714, at 282-85 (Newton Key & Robert Bucholz eds., 2004).
149. Perhaps the most famous suspension act was the Toleration Act of 1689, though we tend not to think of it this way since it granted a grudging toleration of different religious views and practices. Its title suggests clearly its function as a statutory suspension of other statutes: "An act for exempting their Majesties protestant subjects . . . from the penalties of certain laws." 1 W. & M., c. 18. The Act suspended penalties in statutes going back to the Act of Uniformity of 1559. What Parliament did in the Toleration Act was precisely what James II had done in his dispensations and the suspensions in his two Declarations of Indulgence, with one exception. James's actions included Catholics; a virulently Protestant Parliament's did not.
150. On these debates, see Clarence C. Crawford, The Suspension of the Habeas Corpus Act and the Revolution of 1689, 30 Eng. Hist. Rev. 613 (1915).
151. The reference to law being made a strumpet is from the speech of Sir Edward Seymour during debates on a suspension bill that did not pass in April 1690. 10 Debates of the House of Commons, From the Year 1667 to the Year 1694, at 93 (Anchitell Grey ed., London 1763). Sir Robert Napier, during debates on May 22, 1689 to renew the first suspension, said the Habeas Corpus Act of 1679 would "become quite a common Whore" if the Act was suspended again. 9 Debates of the House of Commons, From the Year 1667 to the Year 1694, at 263 (Anchitell Grey ed., London 1763).
152. 9 Debates of the House of Commons, From the Year 1667 to the Year 1694, at 263 (Anchitell Grey ed., London 1763).
153. 1 W. & M., c. 2. ("An act for impowering his Majesty to apprehend and detain such persons as he shall find just cause to suspect are conspiring against the government.") This act is often misdated to 1688. See, e.g., Duker, supra note 14, at 171 n.117, and Sharpe, supra note 35, at 94. In fact no Parliament sat at any time in 1688, so no act could have passed that year. The error arises from the fact that until 1752, the new year was reckoned in England as beginning on March 25 (the feast of the Annunciation, or "Lady Day") rather than January 1. Thus items dated January 1 to March 24,1688, by this "Old Style" mode of dating, belong to 1689 by "New Style" dating. On Britain's adoption of the Gregorian calendar in 1752, see C. R. Cheney, A Handbook of Dates for Students of British History 12-13, 17-19, 233 (Michael Jones ed., rev. ed. 2000).
154. The first suspension was extended for one month in April, 1689, 1 W. & M., c. 7, and then for another five months in May 1689. 1 W. & M., c. 19. For additional acts, see infra note 116.
155. In addition to the first three suspension statutes of 1689, further statutes were passed as follows, through 1783: 7 & 8 Will. 3, c. 11 (with effect Feb. 20 to Sept. 1, 1696); 6 Ann., c. 15 (Mar. 10,1708 to Oct. 23, 1708); 1 Geo., sess. 2, c. 8 (July 23, 1715 to Jan. 24, 1716); 1 Geo., sess. 2, c. 30 (renewing previous to May 24, 1716); 9 Geo., c. 1 (Oct. 10, 1722 to Oct. 24, 1723); 17 Geo. 2, c. 6 (Feb. 29 to Apr. 29, 1744); 19 Geo. 2, c. 1 (Oct. 18, 1745 to Apr. 19, 1746); 19 Geo. 2, c. 17 (renewing previous to Nov. 20, 1746); 20 Geo. 2, c. 1 (renewing previous to Feb. 20, 1747); 17 Geo. 3, c. 9 (Feb. 20, 1777 to Jan. 1, 1778); 18 Geo. 3, c. 1 (renewing previous to Jan. 1, 1779); 19 Geo. 3, c. 1 (renewing previous to Jan. 1, 1780); 20 Geo. 3, c. 5 (renewing previous to Jan. 1, 1781); 21 Geo. 3, c. 2 (renewing previous to Jan. 1, 1782); 22 Geo. 3, c. 1 (renewing previous to Jan. 1, 1783). As we shall see, the statutes of 1777 to 1783 differed in some significant ways from those before 1777.
156. The word "suspended" does appear in acts passed after the Treaty of Union of 1707, since those acts "suspended" the Scottish statute of 1701 "For preventing wrongous imprisonment." The first to include this language was 6 Ann., c. 15 (1708). But never, in any of the so-called "suspension" statutes, is the word "suspended" used to describe anything done to habeas corpus since the writ itself is never named.
157. E.g., 17 Geo. 2, c. 6 (1744). A prisoner on bail remained technically a prisoner since he was in the custody of those who served as bail on his behalf. A prisoner released on mainprise was likewise supported by persons who gave sureties on his behalf but in the view of law, the prisoner was not held in their custody. See 9 William Holdsworth, A History of English Law 105-06 (3d ed. 1944); see also 4 William Holdsworth, A History of English Law 525-28 (3d ed. 1922-1923).
158. On magisterial discretion in the use of bail in felony cases, see Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England 88-92 (1987).
159. For the next century, see J. M. Beattie, Crime and the Courts in England, 1660-1800, at 281-83 (1986).
160. 1 W. & M., c. 7 (1689).
161. E.g., 17 Geo. 2, c. 6. Critics attacked this "suspension of the Habeas Corpus act." One suggested that it laid "at the feet of one individual [King William] the liberty of millions; which was never done in the much more dangerous times of queen Elizabeth, nor in Monmouth's rebellion by the tyrant James II." 1 James Burgh, Political Disquisitions: An Enquiry into Public Errors, Defects, and Abuses 408 (New York, Da Capo Press 1971) (1774).
162. The extension of the power to one of the two secretaries of state came in the second statute of 1689.1 W. & M., c. 7. The next suspension statute omitted this authority for the secretaries. 1 W. & M., c. 19 (1689). All subsequent statutes, beginning with that of 1696, included it again. E.g., 7 & 8 Will. 3, c. 11.
163. For example, James Hunt was jailed in March 1696 by a justice of the peace "for holding correspondence with France," but was bailed in Trinity term that year. The suspension made by 7/8 William III c. 11 was in effect both when Hunt was jailed and when he was released. TNA, KB16/1/6 (teste June 12, 1696).
164. See, for instance, the case of Christopher Layer, in 1722. His writ does not survive, but orders on his writ do: TNA, KB21/31, pp. 608, 612. See also Charles Ratcliffe, in 1746: KB16/13/4 (teste November 19, 1746) and KB21/36, pp. 157-58.
165. See John Purser, jailed on the warrant of Secretary of State the Earl of Harrington. TNA, KB16/13/4 (teste November 27, 1746) and KB21/36, p. 164. Purser's writ was heard in Michaelmas 1746. The suspension declared in 20 Geo. 2, c. 1, was not set to expire until February 20, 1747.
166. For a complete review of the major issues in the trial and their connection to parliamentary debates in 1628, see J.A. Guy, The Origins of the Petition of Right Reconsidered, 25 Hist. J. 289 (1982);
167. Mark Kishlansky, Tyranny Denied: Charles I, Attorney General Heath, and the Five Knights' Case, 42 Hist. J. 53 (1999).
168. On the king's loan, a traditional royal revenue device, see Richard Cust, The Forced Loan and English Politics, 1626-1628 (1987).
169. The writs and returns for four of the knights are in TNA, KB145/15/3 (individual writs for Sir John Heveningham, Sir John Corbett, Sir Edward Hampden, and Sir Walter Earle, all teste November 15, 1627). The writ and return for Sir Thomas Darnell - by whose name the case is often known - having never been filed, is not in the recorda file. TNA, KB21/9, ff. 16 and 18.
170. The knights' counsel conceded "our case will not stand upon precedents." 3 State Trials col. 10 (1816). No less prominent an authority than Sir Edward Coke, while still chief justice in King's Bench in 1615, said in more than one case that the Privy Council could imprison without returning a cause on a writ of habeas corpus. See Les Bruers [Brewers'] Case, 1 Rolle 134, 81 Eng. Rep. 382, 382-83 (K.B.); Ruswells Case, 1 Rolle 192, 81 Eng. Rep. 425 (K.B.); Sir Sam. Salkingstowes Case, 1 Rolle 219, 81 Eng. Rep. 444, 444-45 (K.B.). For Coke's full discussion in Rosewell [Ruswell's Case], see Bod., MS Rawl. C.382, ff. 56v.-57. Coke had famously changed his opinion by the time of the debates in the House of Commons that led to the Petition of Right in the spring of 1628, leading to some discomfiture. See 2 Commons Debates, 1628, at 190-93, 197 (Robert C. Johnson & Maija Jansson Cole eds., 1977).
171. For the text of the Petition, see Hutton Webster, Historical Source Book 21 (1920). Many must have known that the political compromise that made the Petition possible had left "lex terrae yet an unfolded riddle."
172. Sir Roger North, in 3 Commons Debates, 1628, at 280 (Robert C. Johnson et al. eds., 1977). The "law of the land" - the phrase from Magna Carta's chapter 29 - was too vague to support a new legal imposition on the Privy Council. Few then must have been surprised when commitments by king and Council, tested on writs of habeas corpus, continued to come back during the 1630s with no cause expressed in the returns. For instances after 1628 of people imprisoned on the orders of the Privy Council, whose writs of habeas corpus were returned without cause given and which concluded with the prisoner's remand, see Reginald Carew, TNA, KB29/282, m. 159d. (1634) and KB21/11, f. 141; Richard Leachford (1634), KB29/283, m. 46d. and KB21/11, f. 153v.; Edward Courtney (1634), KB29/283, m. 124d. and KB21/11, f. 167v.; Alexander Jennings (1637), KB29/286, m. 108d. and KB32/10, part 1 (teste June 27, 1637) (Jennings was bailed on another writ in 1638 after it was returned with a cause, that he had been jailed for "diverse scandalous speeches in derogation and disparagement of his majesty's government": KB29/287, m. 101d., KB145/15/14, and KB21/12, ff. 60-114, passim); and Francis Freeman (1640), KB21/12, ff. 146v.-149.
173. 16 Car., c. 10, "An Act for the regulating of the Privy Council, and for taking away the Court commonly called the Star Chamber," passed in July 1641. For contemporary reaction to the statute, see Conrad Russell, The Fall of the British Monarchies, 1637-1642, at 354-55 (1991). Surprisingly, the Civil War of the 1640s proved to be one of the glory periods for habeas corpus. The court stood up to the imprisonment orders made by many of the new officers or agencies created by Parliament to fight a war against their king. But in the Interregnum of the 1650s, what was then called the Court of Upper Bench occasionally remanded habeas users imprisoned on the orders of Oliver Cromwell's protectoral council. See the writs for John Biddle, jailed in the Isles of Scilly, with no cause given in the returns. No result of deliberations survives on the record for Biddle's first writ, but he was discharged after a more full return was made to a second writ: TNA, KB145/16/1658 (writs teste April 29 and June 11, 1658).
174. E.g., the case of Andrew Newport, bailed in Michaelmas 1659 after he had been jailed on a warrant of the Council of State (the re-named Privy Council) "upon suspicion of holding correspondence with the enemies of this commonwealth and treasonable practices." TNA, KB145/16/1659 (teste October 25, 1659).
175. 1 W. & M., cc. 2, 7.
176. E.g., 18 Geo. 3, c. 1; 19 Geo. 3, c.1; 20 Geo. 3, c. 5; 21 Geo. 3, c. 2; 22 Geo. 3, c. 1.
177. E.g., 17 Geo. 2, c. 6.
178. Pro bono publico: "for the public good." Salus populi: "the people's well being"; perhaps more in keeping with seventeenth-century usage, we might also translate this as "for the common weal."
179. See, e.g., Robert, Earl Nugent, [attributed], An Inquiry into the Origin and Consequences of the Influence of the Crown over Parliament 29-31 (1780).
180. One champion of suspension in 1715-16 noted that "the Difference between suspending the Force of a Law for a certain limited Time only, and the absolute repealing of such a Law . . . [is that] the Limitation [is] to expire at a certain Time, and the Law then to return to its full Force." Daniel Defoe [attributed], Some Considerations on a Law for Triennial Parliaments 28-29 (1716).
181. 6 Ann., c. 15 preamble.
182. 19 Geo. 2, c. 1 preamble.
183. See, e.g., 7 & 8 Will. 3, c. 11 preamble (1696); 6 Ann., c. 15 preamble (1708); 17 Geo. 2, c. 6 preamble (1744).
184. 17 Geo. 2, c. 6 preamble.
185. In 1615, Coke justified the conciliar power to answer writs of habeas corpus "without expressing any cause because there are arcana imperii" (secrets of the realm) that must be protected. Bod., MS Rawlinson C.382, f. 57.
186. We can see this trend by reviewing the results of the quadrennial survey for this period, using information from all writs used every fourth year, 1662 to 1686, inclusive. The survey shows that twenty-seven writs of habeas corpus were used on behalf of those imprisoned on conciliar orders. Results on twenty-six of these writs are known. The justices of King's Bench bailed or discharged twenty (seventy-seven percent) of those prisoners, compared to an average rate of bail or discharge of sixty-six percent for all who used habeas corpus during the same period. Only one of the prisoners was remanded after the Council gave no cause for the incarceration in its return to the writ. This was Henry Vane the Younger, who was soon tried for treason and executed. The writ in his case was used simply to bring him from the Tower into King's Bench for arraignment. TNA, KB145/17/14 (teste May 30, 1662) and KB21/14, ff. 86v., 87v., and 88. Vane had not participated in the regicide (the execution of Charles I in 1649), but he had been deeply involved in politics throughout the 1650s. His prominence ultimately made him a target of those who wanted to destroy prominent signs of the Interregnum regimes. See Ruth E. Mayers, Vane, Sir Henry, the Younger, in 56 Oxford Dictionary of National Biography 108-120 (2004), available at www.oxforddnb.com/view/article/28086.
187. On the threat James posed from Ireland, even after the destruction of most of his military support at the battle of the Boyne in July 1690, see Harris, Revolution, supra note 98, at 433-50. Meanwhile, war had also been declared in 1689 against France, long William's foe in his capacity as stadtholder of Orange and now as William III of England. France's Louis XIV was James IPs most important supporter from 1689 to 1690, and England would remain at war with France until 1713, interrupted only by a fragile peace between 1697 and 1702. On the uniting of national fear with a national sense of religious destiny promoted by William's supporters, see Tony Claydon, William III and the Godly Revolution 122-47 (1996).
188. For general background on the war with France, ended only with the Treaty of Utrecht in 1713, see Geoffrey Holmes, The Making of a Great Power: Late Stuart and Early Georgian Britain, 1660-1722, at 229-42 (1993).
189. Of the 147 habeas cases concerning state wrongs found in this period, results for 14 are unknown. Outcomes are thus for the remaining 133 cases: 26 were remanded, 51 bailed, and 56 discharged. Of those bailed, there is every reason to believe that most were later discharged, which was consistent with the then-current practice, but no record of the discharges has survived. Writs for 1689 and 1690 are in TNA, KB11/14 and KB16/1/1, with court orders in KB21/23, passim. In nineteen additional cases of persons jailed for being Catholic priests or for being Catholics who refused to swear the oath of allegiance - a proxy for treason - the justices bailed all but one. Of those eighteen, fifteen were bailed and were later discharged; three others were bailed, but outcomes in their cases cannot be traced. Only one of the alleged priests, Ralph Gray, was remanded, and then only after the charge against him had been changed to sedition. Gray's offense was dispersing "The Coronation Song," a Jacobite pamphlet. His writ is at TNA, KB11/14 (teste date obscured by damage, but the order date was October 23, 1689), orders thereon at KB21/23, pp. 327, 331. The warrants for his arrest are also noted in CSPD 1689-90, at 110, 270.
190. On Holt, see generally Paul D. Halliday, Holt, Sir John, 27 Oxford Dictionary of National Biography 830-834 (2004), available at www.oxforddnb.com/view/article/13611.
191. Thus Thomas Saxton, originally committed for treason by Secretary of State the Earl of Sunderland, was remanded to stand trial for perjury instead. He was convicted and sentenced to a fine, the pillory, and a whipping from Ludgate to Westminster Hall. TNA, KB11/14 (teste October 23, 1689) and KB21/23, p. 330. See also the case of Joseph Guilstrop, initially taken on suspicion of treason, though later charged and convicted on grand misdemeanor, for which he was fined and pilloried. TNA, KB11/14 (teste October 23, 1689) and KB21/23, pp. 368, 377, 392. CSPD 1689-90, at 317. John Lowthorpe, initially remanded for treason upon hearing the return to his writ of habeas corpus, was ultimately convicted on the less serious charge of publishing A Letter to the Bishop of Sarum, for which he was imprisoned and fined 500 marks. KB16/1/1 (teste June 7,1690), KB21/23, pp. 413, 416; CSPD 1690-91, at 348.
192. TNA, KB16/1/1 (teste July 9, 1690), KB29/349, m. 112, and KB21/23, pp. 427, 443. CSPD 1690-91, at 56, 61, 92. Narcissus Luttrell noted that "'[t]is said [Cross] died a Roman Catholic." 2 Narcissus Luttrell, A Brief Historical Relation of State Affairs from September 1678 to April 1714, at 140 (1857).
193. Joseph Addison [attributed], The Freeholder, or Political Essays 90-96 (1716) (no. 16, Monday, Feb. 13).
194. On the so-called '15 Rebellion, see Tim Harris, Politics under the Later Stuarts: Party Conflict in a Divided Society 1660-1715, at 226-28 (1993).
195. Addison, supra note 149, at 90-96. Much the same argument was made in Thomas Burnett, The British Bulwark: Being a Collection of All the Clauses in the Several Statutes Now in Force Against the Pretender, the Non-Jurors and the Papists 45-46 (London 1715).
196. The issues raised in this section will be discussed in more detail infra Part IV.
197. The term "knew" is placed in quotations marks to signal that scholars have advanced a variety of claims about the sources of the framers' "knowledge" and the interpretive techniques employed to recover that knowledge. We are using "knew" to refer to the generally accepted understandings and assumptions about constitutional issues that ordinary American citizens, who were informed about law and politics, would have held at the time of the framing. One should recall that the debates at the Philadelphia Convention of 1787 were not published until 1840. See 1 The Records of the Federal Convention of 1787, at xv (Max Farrand ed., 1966).
198. There has been surprisingly little discussion of these suspension statutes by historians of habeas corpus. Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 976 n.79 (1998), makes a brief allusion to the 1777 Suspension Act. Neither Sharpe, supra note 35, nor Duker, supra note 14, discusses the statutes.
199. For further discussion of the six parliamentary acts suspending habeas corpus in the American colonies between 1777 and 1783, see infra Part III.
200. See generally Joseph Henry Smith, Appeals to the Privy Council from the American Plantations (1950).
201. For more detail, see infra Part IV. The term "free British" is used advisedly. African-American residents of the colonies were sometimes free persons, but were not treated as "British," even though they were, by virtue of their residence in the king's dominions, among his subjects. On the conceptual status of free blacks in 18th century colonial America, see Jonathan L. Alpert, The Origin of Slavery in the United States -The Maryland Precedent, 14 Am. J. Legal Hist. 189, 207-11 (1970);
202. Edmund S. Morgan, Slavery and Freedom: The American Paradox, 59 J. Am. Hist. 5, 17-18, 23-26 (1972);
203. William M. Wiecek, The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America, 34 Wm. & Mary Q. 258, 279 (1977). Members of Amerindian tribes were not treated as "British" for purposes of challenging those who incarcerated them. Finally, in the eighteenth century the British government, as part of a policy of encouraging European emigration to the American colonies, instituted a policy of treating natives of Germany, Sweden, and the Netherlands as "British" once they established residency in America.
204. On the conception of Amerindian tribes as "non-British" and thus not "free men," see, for the seventeenth century, Katherine Hermes, "Justice Will Be Done Us": Algonquian Demands for Reciprocity in the Courts of European Settlers, in The Many Legalities of Early America 123-49 (Christopher L. Tomlins & Bruce H. Mann eds., 2001),
205. and for the eighteenth century, see Richard White, The Middle Ground 186-523 (1991).
206. For a discussion of habeas corpus petitions brought by African slaves in colonial British America, see infra Part IV, text accompanying notes 312-13.
207. Technically, the Petition of Right was just that: a petition graciously acceded to by the king, not a statute. But it was often interpreted as if it should have statutory effect. One of the most remarkable signs of its impact was a tiny, but critical, change in the standard formula used in the writ of habeas corpus ad subjiciendum. Previously, such writs had issued only requiring the return of the "cause of the detention" of the prisoner. During the Five Knights Case in November 1627, John Seiden, the most famous of the Knights' counsel, argued that though the form of the writ required only the return of the cause of detention, a proper return should also give the day and cause of the arrest, which logically, chronologically, and legally preceded detention. If so, he reasoned, then the Privy Council's return to the writ was insufficient, for while a return stating that one was held "by the special command of his majesty" answered the cause of detention, it did not answer the cause of the arrest. 3 State Trials col. 3. The only problem with this argument was that it disregarded the actual language in writs of habeas corpus ad subjiciendum, which indeed required only return of the cause of detention. Having examined the texts of well over 1000 writs from the early fifteenth century to 1627, Paul Halliday has found that the usual formula was to require the "cause of the detention" only. The Petition of Right said nothing about clerical formulae. But two surprising items indicate that the Petition had a direct impact on such formulae: the fact that, quite unusually, a full manuscript copy of the Petition was placed on the recorda file in 1628, soon after the Petition was written; and virtually all writs thereafter on that file and in all those following demand that the writ be returned with "the day and cause of the arrest and the detention," a formula that required much fuller information from any recipient, including the Privy Council. The recorda file for 1628 is TNA, KB145/15/4. The Petition is on a large parchment near the middle of the bundle, with a note on the back that it was entered into the record of the court in Michaelmas term that year.
208. 16 Car. 1, c. 10, supra note 130.
209. 31 Car. 2, c. 2, supra note 92.
210. For more detail, see infra Part IV.
211. On the bill's legislative history and its ultimate failure, see Oldham & Wishnie, supra note 89, at 487-95.
212. For an illustration of that judicial action, see the writs of 1757-58, soon after William Lord Mansfield assumed the presidency of King's Bench. These include one for Mary, wife of John Wilkes, by which their marriage settlement was tested. TNA, KB16/15/2 (teste February 13, 1758). On Wilkes, famed libertarian and libertine, see Arthur H. Cash, John Wilkes: The Scandalous Father of Civil Liberty (2006); for his unhappy marriage, see id. at 9-10, 17-19, 43-47. For an early naval impressment habeas case, see TNA, KB21/38, p. 110. For the application of the writ to a dispute over a daughter's custody by her father, see TNA, KB21/38, p. 133. An affidavit in this case, concerning Lydia Henrietta Clark, spells out the young woman's fears of her father: TNA, KB1/13/3, affidavit of Mervin James, May 23, 1758.
213. Lieberman, supra note 30, at Introduction, especially 13-28, and Part II, especially chs. 3, 6. See also Lemmings, supra note 27 at 319-29.
214. The Suspension Act of 1777, and subsequent acts that extended it until the beginning of 1783, are discussed in Part III, infra.
215. HLS, MS 13, p. 441 (from an anonymous Reading on Magna Carta).
216. On the Cinque Ports, palatinates, and other jurisdictions, see supra text accompanying notes 53-57.
217. We recognize that our analysis in this section raises a puzzle for the American jurisprudence of habeas corpus. The puzzle centers on the role of "place" in the American constitutional system. After 1789, with the passage of the Constitution and the Judiciary Act of September 1789, informed Americans assumed that the jurisdiction of the federal courts was limited to places in which these courts sat. None of the federal courts of the United States sat abroad. Our analysis in this section reveals that between 1679 and 1789, the writ of habeas corpus was treated in Anglo-American jurisprudence as sounding in common law as well as in the 1679 Act. It thus did run with the place, and British courts in India and in America were understood as having jurisdiction over habeas petitions filed by residents of the places in which those courts sat. Thus our analysis in this Section necessarily raises the question about whether the Constitution and the Judiciary Act of 1789 changed the Anglo-American understanding of "place" for the purposes of habeas jurisprudence in the United States. We address that question in more detail infra Part IV.
218. Throughout this section, we will focus on Hale's thinking on the legal nature of territory and persons within and beyond the king's direct control. Using Hale requires a brief explanation since interest in these issues has traditionally focused on Sir Edward Coke's opinion in Calvin's Case of 1608. 2 State Trials cols. 559-658. On Calvin's Case, see supra note 64. For a different approach from our own, exploring Coke's views in the case, see Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830, at 20-28 (2005). We concentrate on Hale's thinking on these issues for three reasons. First, Hale drew on some of Coke's insights, such as Coke's categories of subjecthood and allegiance, from "natural born" to "local." Supra text accompanying notes 66-76. Second, Hale extended this analysis, doing so within an integrated view of English law's other aspects, making his discussion of subjecthood and the legal nature of the king's dominions part of a unified conception of the operation of both subjecthood and dominion. Hale linked subjecthood and dominion in part through his discussion of franchises and the need, through the courts, to supervise the use of franchises: see supra notes 47-48. Third, in Calvin's Case, Coke worked through his discussion of subjecthood largely as it pertained to property law. As Coke put it, the case arose from a question about landed property: whether a Scot born since 1603 was "disabled to bring any real or personal action for any lands within the realm of England." 2 State Trials col. 609. But property law, as Coke's discussion in Calvin's Case shows, was bounded differently from the law of franchises in both conception and geography. English property law was tied to a place called England - just as the law of Isle of Jersey applied in Jersey - whereas the movement of that part of law concerned with the king's franchises was not restricted in the same ways. See infra note 192.
219. Property law was arguably the area in which the king's law varied most from one of his dominions to the next. Forms of tenure differed in the Channel Isles and Berwick from England. See infra text accompanying notes 191-92. But this variation in property law norms did not affect allegiance. In his own thorough discussion in Calvin's Case, Lord Chancellor Ellesmere highlighted just this point: "diversity of laws and customs makes no breach of that unity of obedience, faith, and allegiance, which all liege subjects owe to their liege king and sovereign lord. And as none of them [in different dominions of the king] can be aliens to the king, so none of them can be aliens or strangers in any of his kingdoms or dominions." Louis A. Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere 237 (1977).
220. Brian Levack argues that by deciding in Calvin's Case that the subject's allegiance belonged to the person of the king and not to an abstraction of kingship - such as law - the decision "minimized] the ties of the subject with the territorial state and . . . emphasiz[ed] a 'community of allegiance' that transcended political boundaries and legal jurisdictions . . . ." The Formation of the British State: England, Scotland, and the Union, 1603-1707, at 183-84 (1987). On the political contexts of Calvin's Case, see id. at chs. 1-3, 6.
221. Hale's Prerogatives, supra note 45, at 19. The section on the dominions is chapter 3 of the modern published version. We should bear in mind that this edition is a collation of two manuscripts that did not have precisely these internal divisions. Hale's work on the prerogative was not published in his lifetime. Nonetheless, we believe that there are good reasons to treat it as an important statement of more widely held views. First, Hale's views, in which the prerogative and the law of franchises are central, were arguably consensual, as indicated by their proximity to those of a judge of a different political stripe, Sir Francis North, later Lord Guilford. In his manuscript essays, North considered the king's place at the center of law, reaching conclusions quite like Hale's. See "A view of judicatures," in BL, MS Add. 32,518, ff. 154-56; "Of franchises," id. f. 182-83; "Of the Prerogative," BL, MS Add. 32,520, f. 32v.; "An account of franchises," id. ff. 66-67. On North, see Paul D. Halliday, North, Francis, first Baron Guilford, 41 Oxford Dictionary of National Biography 85-88 (2004), available at www.oxforddnb.com/view/article/20301. For signs of lawyers consulting Hale's manuscripts in the seventeenth and eighteenth centuries, see Hale's Prerogatives, supra note 45, at x, n.3; for the bequest of his manuscripts to Lincoln's Inn library, see id. at lix-lxxvi. Second, Hale's treatise is arguably the single-most systematic treatment of English law before Blackstone. Unlike Coke or Blackstone, Hale stressed that English law could only be constructed as a coherent system through a careful historical explanation rather than a rationally constructed one. On the ways in which Hale did and did not share the historical sensibilities of Coke, see Hale, History of the Common Law, supra note 28, at 16-38;
222. see also Cromartie, supra note 45, at 45-46, 101-03; J. G. A. Pocock, The Ancient Constitution and the Feudal Law, chs. 2, 7 (2d ed. 1987).
223. For a recent reading of Hale on the territorial movement of law, see Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576-1640, at 35-38 (2006).
224. Hale's Prerogatives, supra note 45, at 20.
225. Id. at 20; id. at ch. XIX, 208-13 (discussing franchises). "Letter patent" was a synonym for charter or other open letter of the king. See MacMillan, supra note 171 at 79-80.
226. On original versus judicial writs, see Baker, Introduction, supra note 31, at 53-67.
227. Hale's Prerogatives, supra note 45, at 204-05.
228. Id. at 42.
229. Id. at 41-42.
230. Id. at 41.
231. Hale, History of the Common Law, supra note 28, at 120. On the dating of Hale's history to the early Restoration - perhaps contemporaneous with and related to the composition of his second manuscript on the prerogative - see Cromartie, supra note 45, at 104. The first printed edition appeared in 1713. Charles M. Gray, Introduction to Sir Matthew Hale, History of the Common Law, id. at xiii.
232. The introduction of English law and a division of Wales into counties with sheriffs was accomplished by statute in 1284. Baker, Introduction, supra note 31, at 30-31.
233. 27 Hen. 8, c. 26.
234. Hale's Prerogatives, supra note 45, at 26.
235. Id. at 33.
236. "Against [or over] the king" and "against [or over] the people" of Ireland. Id. at 32.
237. Id. at 34. Actually, much the same concerning popular desires on the part of Englishmen moving into conquered lands has been said for Wales by R.R. Davies, who notes that "the English communities in Wales were likewise anxious to avail themselves of the concepts and methods of English law . . . ." R.R. Davies, The First English Empire: Power and Identities in the British Isles, 1093-1343, at 106 (2000).
238. Hale's Prerogatives, supra note 45, at 35.
239. The so-called "Four Courts" in Dublin were reproductions of courts with the same names in Westminster. On Irish courts and their use of English common law-though superintended by process on writs of error from King's Bench and Parliament in England - see Baker, Introduction, supra note 31, at 31-33.
240. Hale's Prerogatives, supra note 45, at 43 n.1.
241. Id. The quoted passage is from "The Rights of the Crown," Hale's first unpublished manuscript, used by Prof. D.E.C. Yale in creating the collated text on the prerogatives. Hale makes much the same point in the main body of Prerogatives: "English laws are not settled there, or at least are only temporary till a settlement made." Id. at 43.
242. Id.
243. Id. at 43-44. On the differences in the varieties of property law among the king's dominions, see supra note 169.
244. This echoes some of Coke's own thinking in Calvin's Case. Reasoning from the king's need to defend the realm by venturing abroad, Coke suggested that subjects, including those from the Channel Isles and other places outside England, remained subjects, and retained the perquisites of subjecthood, as they went abroad. Thus, "see-ing the king's power[,] command and protection extendeth out of England, [] ligeance cannot be local, or confined within the bounds thereof. . . . [L]igeance is a quality of the mind, and not confined within any place . . . ." 2 State Trials col. 623; see also id., col. 657.
245. For an analysis of these and other theories of imperial expansion and possession, see MacMillan, supra note 171, especially chs. 1-3. On Coke's infidel/Christian distinction, see Mary Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire 36-38 (2004).
246. Hale's account was derived from within English thought, more so than Coke's, which borrowed heavily from natural law arguments largely foreign to English law. MacMillan points out that much of the need to resort to foreign law traditions was to make sovereignty claims that would be recognized by foreign princes. But Hale's work in his chapter on dominions, concerned as it was to consider the problem of different kinds of lands' relationship to a specifically English king, depended less on ideas outside of English law. Hale consciously worked in the opposite direction here because of his emphasis on English history as the means whereby one can trace the operation in English law of the nature of allegiance and territorial control that are peculiar to a king of England. On non-English legal ideas justifying claims of imperial dominion, see MacMillan, supra note 171 at 17-31, 41-48, and especially 106-19. On Hale's intellectual significance, see Cromartie, supra note 45, and Alan Cromartie, Hale, Sir Mathew, in 24 Oxford Dictionary of National Biography 533-39 (H.C.G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/ view/article/11905.
247. On Hale as John Selden's protégé, and on Hale's participation in some of the major controversies of his own day - for instance, concerning the thought of Thomas Hobbes - see Richard Tuck, Natural Rights Theories: Their Origin and Development 115-18, 132-39 (1979). For his influence on Blackstone's thinking, see Lieberman, supra note 30, at 34-35 and works cited at 35 n.20.
248. The earliest charters of colonies in British America were to "companies" (corporations), for example, the settlements in Jamestown, Plymouth, and Massachusetts Bay. One later colony, Georgia, had a charter in which the king retained "ownership" instead of granting it to a company. But in all instances the recital of the "liberties" of English subjects that was part of the charters presupposed that those liberties had been dispensed by the king. See MacMillan, supra note 171 at 79-105.
249. This is from the patent to Sir Humphrey Gilbert and Sir Walter Raleigh, quoted in MacMillan, supra note 171 at 92. It was standard language in colonial charters.
250. Such ideas of subjecthood and the protection they entailed, in conception and practice, persisted through the eighteenth century and into the nineteenth. For the invocation of consular protection on the Argentine frontier by British subjects in the nineteenth century, see Anderson, supra note 70 at 186-203.
251. In this, the king did for persons leaving England precisely what he did for those to whom he granted franchises by charter within England. Thus the thinking and the language of overseas and domestic charters underlined the same franchisai ideas by the similarity of their operational language. On domestic urban corporations, see Halliday, Dismembering, supra note 105 at 29-55. For the likenesses between American charters and those for the East India Company, see Philip J. Stern, British Asia and British Atlantic: Comparisons and Connections, 63 Wm. & Mary Q. 693, 700-05 (2006).
252. Charters Granted to the East-India Company, from 1601, at 370 (1773). Such language was standard in corporate charters. For its use in domestic urban charters, see Halliday, Dismembering, supra note 105 at 29.
253. BL, MS Add. 32,518, f. 156. North's view of franchises, and the propriety of reviewing their use by quo warranto, was very much of a piece with Hale's. Hale's Prerogatives, supra note 45, at 244-46. North was probably writing this in the early 1680s, as part of his consideration of the legal propriety of challenging London's charter by quo warranto. Halliday, Dismembering, supra note 105 at 220-22. For North, see supra note 170.
254. Technically, from the sixteenth century forward, quo warranto issued by process of information rather than as a writ. Confusion has arisen about this, in part because it has long been classed as a prerogative "writ." On process by quo warranto, and on the distinction between quo warranto process by writ or by information, see Halliday, Dismembering, supra note 105, at 163-64.
255. On the use of quo warranto against domestic urban corporations in the early seventeenth century, see Catherine Patterson, Quo Warranto and Borough Corporations in Early Stuart England: Royal Prerogative and Local Privileges in the Central Courts, 120 Eng. Hist. Rev. 879 (2005).
256. Gentoo was the word used by Britons in the eighteenth century for Hindus. See 6 The Oxford English Dictionary 454-55 (2d ed. 1989).
257. These were: 17 Geo. 3, c. 9; 18 Geo. 3, c 1; 19 Geo. 3, c. 1; 20 Geo. 3, c. 5; 21 Geo. 3, c 2; and 22 Geo. 3, c. 1 (end date: January 1, 1783).
258. See 17 Geo. 3, c. 9.
259. That mistaken view is perpetuated in encyclopedias: see Paul J. Mishkin, Habeas Corpus, in 3 Encyclopedia of the American Constitution 1245,1246 (Leonard W. Levy & Kenneth L. Karst eds., 2d ed. 2000) ("[T]he Habeas Corpus Acts did not extend to the American colonies . . . .").
260. 17 Geo. 3, c. 9. The subsequent suspensions during the American war simply continued this one, following the practice in earlier periods when an initial statute was extended by later ones.
261. 19 Parliamentary History, supra note 17, at cols. 4-53.
262. 17 Geo. 3, c 9.
263. Id.
264. 19 Parliamentary History, supra note 17, at col. 4. The timing of the bill's introduction may have been related to the commitment to Newgate of Georgia merchant Ebeneezer Smith Piatt on January 23, 1777 on a charge of treason. His was a cause célèbre in the public debate over habeas corpus that followed. See John Wilkes's discussion, id. at cols. 29-30; see also An Argument in the Case of Ebeneezer Smith Platt, Now Under Confinement for High Treason (1777), which offers a sardonic endorsement of Mansfield's opinion against Platt.
265. 19 Parliamentary History, supra note 17, at cols. 5-6.
266. On Dunning's prominence, see Lemmings, supra note 27, at 198-201, 347-48; John Cannon, Dunning, John, first Baron Ashburton, in 17 Oxford Dictionary of National Biography 333-35 (H.C.G. Matthew & Brian Harrison eds., 2004), available at http://www.oxforddnb.com/view/article/8284.
267. " 19 Parliamentary History, supra note 17, at col. 6.
268. Id. at col. 7. Dunning continued: [The act] may overtake any man, any where. It authorizes a discretionary punishment, without a color of legal proof, or even a probable ground of suspicion. It makes no distinction between the dreams of a sick man, the ravings of a demoniac, and the malice of a secret or declared enemy. No man is exempt from punishment, because innocence is no longer a protection. It will generate spies, informers, and false accusers beyond number . . . . In fine, it will realize what has hitherto been looked upon to be the creature of poetic fiction: it will scatter over the land more ills and curses, than were ever supposed to flow from Pandora's box. Justice will be bound, as well as blind. Id. at col. 9.
269. Id. at col. 11.
270. Id. at col. 42.
271. The making of distinctions among subjects was underscored by the Lord Chancellor in his speech supporting the bill in the House of Lords on February 21, 1777: "I am happy to say, no Englishman need to dread the suspension of the Habeas Corpus bill[, even] though the bill takes away the benefit of the Habeas Corpus Act in America . . . ." This was reported in American newspapers. See, e.g., The Norwich Packet, May 26-June 2, 1777, at 2.
272. The Annual Register, or a View of the History, Politics, and Literature, for the Year 1777, at 53-56 (3d ed., London 1785) [hereinafter Annual Register, 1777]. For London's petition, see id. at 231-32. A later petition from the City of London, calling the conflict a "civil war," referred to Americans as "our brethren (Englishmen like ourselves)." The Pennsylvania Evening Post, June 20, 1778, at 207.
273. Annual Register, 1777, supra note 219, at 55.
274. Id. at 56.
275. The Continental Journal, and Weekly Advertiser, Mar. 5, 1778, at 3.
276. Some opponents of the Act went further. One anonymous pamphleteer wrote that such a suspension . . . of common justice and common right is so fundamentally subversive of the British constitution of state, that no authority of parliament can make it legal; because it is high-treason against the king and people . . . . [and] no human authority upon earth can suspend or annul any part of the eternal law, without grievous sin! An Address to the People of England: Being the Protest of a Private Person Against Every Suspension of Law that is Liable to Injure or Endanger Personal Security, 14-15, 23 (London 1778) (emphases omitted). The author also made a connection between the suspension of habeas corpus and the impressment of seamen, which he also considered contrary to the laws of God and nature. Impressment, he argued, was in reality a suspension, and like other suspensions, it was justified by "this mere bugbear, necessity!" Acts impressing seamen amounted to "a real suspension (with respect to one part of the community)." Id. at 59,67 (emphases omitted).
277. A Letter from Edmund Burke, Esq. . . . to . . . [the] Sheriffs of [Bristol], on the Affairs of America 4 (2d ed. London 1777). Portions of the Letter or comments on it were printed in many American newspapers. See, e.g., New-England Chronicle (Boston), Oct. 2, 1777, at 1 (published as The Independent Chronicle and the Universal Advertiser);
278. The Pennsylvania Packet, Dec. 3, 1777, at 2;
279. The New Jersey Gazette, Jan. 21, 1778, at 2.
280. Burke, supra note 224, at 8-9.
281. Id. at 15. (emphasis in original).
282. Id. at 17. (emphasis in original).
283. Burke's erstwhile ally, the Earl of Abingdon, defended the bill from Burke's attack on just this ground. Thoughts on the Letter of Edmund Burke, Esq. to the Sheriffs of Bristol, on the Affairs of America 5-6 (Dublin 1777).
284. Burke, supra note 224, at 15. (emphasis in original).
285. "Sepoy" was the term used for an Indian native employed in the British army. 14 The Oxford English Dictionary 1003 (2d ed. 1989). Marathas were Hindus who had long challenged the Mughal emperors for control of central and northern India. In the late eighteenth century, they were rulers of Orissa, which put them within the area whose revenues were ceded to the East India Company by the Treaty of Allahabad of 1765. See infra note 245;
286. P.J. Marshall, Bengal, The British Bridgehead: Eastern India 1740-1828, at 70-74 (1987) [hereinafter Marshall, Bengal];
287. Barbara N. Ramusack, The Indian Princes and their States 34-37 (2004).
288. Arthur Meier Schlesinger, The Colonial Merchants and the American Revolution, 1763-1776, at 275-76 (1918).
289. For more on Dickinson's role in events leading to the American Revolution, see David L. Jacobson, John Dickinson and the Revolution in Pennsylvania, 1764-1776 (1965).
290. Charter For Erecting a Supreme Court of Judicature at Fort William, in Bengal, dated 26th March, 1774, in A Collection of Statutes . . . of the East India Company, app. at xlv-liv (2d pagination, at rear) (London 1794) [hereinafter A Collection of Statutes]. The 1726 charter to the East India Company had appointed local governing bodies for the three Presidency Towns of Bombay, Madras, and Calcutta. Each was thereby given its own justices of the peace and courts of civil jurisdiction. Following the practice also used in the transatlantic colonies, appeal was permitted from these local courts in India to the Privy Council. No other tribunal thus operated in India to supervise these and other local courts until the 1774 charter. For the 1726 charter, see Charters Granted to the East-India Company from 1601, supra note 199, at 368-99.
291. For discussion of the charter and the courts it created, see M. P. Jain, Outlines of Indian Legal History 35-44 (5th ed. 1990).
292. 13 Geo. 3, c. 63. ("An act for establishing certain regulations for the better management of the affairs of the East India Company," usually known as the Regulating Act.) See id. §§ 13-18 for an outline of the court's authority as it was to be defined in the resulting charter. For a superb account of the Calcutta court's beginnings, and the political interplay of the justices and officers of the British East India Company during these years of English law's awkward movement into India, see Robert Travers, Ideology and Empire in Eighteenth-Century India: The British in Bengal 181-206 (2007). We thank the author for sharing his work with us prior to publication.
293. BL, MS Add. 16,265 (Impey letter book, 1774-76), ff. 29v.-30 (May 25, 1775).
294. Kemaluddin Khan was also known as Comaul O'Dein in the eighteenth century. His release, the Company complained, was "to the destruction of our authority by serving as an example to the other [revenue] farmers." BL, MS IOR/H/121, p. 108. Kemaluddin's case is recounted in Jain, supra note 232, at 87-88; B.B. Misra, The Judicial Administration of the East India Company in Bengal, 1765-1782, at 217-21 (1961);
295. B.N. Pandey, The Introduction of English Law into India: The Career of Elijah Impey in Bengal, 1774-1783, at 111-17 (1967).
296. The distinction here is critical: the statute declared that such a court should be made and outlined its form. But following the longstanding law of franchises, only the king, by his charter, could perform the creative act. The most important discussion was in the 1615 case of Sutton's Hospital, in which the justices made clear the nature of corporate franchises: only the king made them, even if a statute might declare the desirability of their creation and suggest some of their terms. Sutton's Hospital, 77 Eng. Rep. 937, 962-63, 975 (K.B. 1615). For discussion of that case, see Halliday, Dismembering, supra note 105, at 32-33.
297. 23713 Geo. 3, c. 63, preamble.
298. A Collection of Statutes, supra note 232, at xlv (emphasis in original).
299. In 1753, the 1726 Company charter was surrendered and a new one granted. This re-established justices of the peace for Madras, Bombay, and Calcutta, who were empowered to hold courts of quarter sessions and of jail delivery. Id. at xxxiii-xxxix. The 1753 charter appointed these local courts to proceed "as in England," by indictment and trial by jury. Id. at xxxviii.
300. For these terms, in the 1774 charter, see id. at xlv, 1 (emphasis in original).
301. 13 Geo. 3, c. 63, § 14 (emphasis in original). The court thus had jurisdiction over the northern and northeastern portions of the subcontinent. Further supreme courts would be established at Madras in 1801 and at Bombay in 1824. See Jain, supra note 232, at 112.
302. A Collection of Statutes, supra note 232, at 1.
303. 13 Geo. 3, c. 63, § 14 (emphasis added). By adding emphasis to the word "against," we mean to suggest that the key to defining the court's purview would arise less from the status of those who made such claims, than from the status of those against whom such claims were directed: that they would be more concerned with the jailer's wrongs than the prisoner's rights.
304. Id.
305. The language in Article I of the Treaty of Allahabad marks out a contract of equals: a "reciprocal friendship, without permitting, on either side, any kind of hostilities . . . which might hereafter prejudice the union now happily established." 43 The Consolidated Treaty Series 189 (Clive Parry ed., 1969). Granting the diwani did not import a western idea of unitary sovereignty. It was not understood as the equivalent of a royal letter patent to the Company because the Emperor was clearly thought of as retaining sovereignty in the Bengal region. As Bernard Cohn points out, "[b]y 1785, a dual principle of sovereignty had been established." Bernard S. Cohn, Colonialism and its Forms of Knowledge: The British in India 58 (1996).
306. Rajat Kanta Ray, Indian Society and the Establishment of British Supremacy, 1765-1818, in 2 The Oxford History of the British Empire: The Eighteenth Century 508, 510 (P.J. Marshall ed., 1998). For more on this relationship, see id. at 508-13.
307. On events in the 1750s and '60s, see P.J. Marshall, The British in Asia: Trade to Dominion, 1700-1765, in 2 The Oxford History of the British Empire: The Eighteenth Century, supra, at 487, 491-507. On the diwani and lingering Mughal allegiance after 1765, see Marshall, Bengal, supra note 230, at 49-52, 77-79, 89-90.
308. To make matters more complex, in 1772 the East India Company approved new criminal regulations based on traditional elements of Islamic law that had fallen into disuse. See Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India 1-6, 26-32 (1998).
309. On jurisdictional complexities in this period, during which British law awkwardly and incompletely overlaid Hindu and Islamic legal practices and institutions, see Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900, at 129-40 (2002).
310. On overlapping sovereignties and the indeterminacy of where a claim to ultimate sovereignty might lie, see Lauren Benton, The Geography of Quasi-Sovereignty: Westlake, Maine, and the Legal Politics of Colonial Enclaves (Inst, for Int'l Law and Justice, Working Paper No. 2006/5). Our thanks to the author for permission to cite this article.
311. See also Sudipta Sen, Distant Sovereignty: National Imperialism and the Origins of British India xi-xxxi, 1-26 (2002);
312. Lauren Benton, Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State, 41 Comp. Stud. Soc'y & Hist. 563 (1999).
313. Report from the Committee to whom the Petition of John Touchet and John Irving, Agents for the British Subjects Residing in the Provinces of Bengal, Bahar, and Orissa . . . were Severally Referred, at app. 9 (1781) (unpaginated) [hereinafter Touchet Report]; see also Misra, supra note 235, at 225-29 (recounting Chund's case).
314. Touchet Report, supra note 249, at app. 9.
315. A Collection of Statutes, supra note 232, at 1.
316. Touchet Report, supra note 249, at app. 9.
317. BL, MS Add. 38,401 (Liverpool Papers, CCXII: East India Papers 1778-79), f. 29 (Chambers to Charles Jenkinson, Feb. 1,1778). A Monsieur Sanson, "a low Frenchman," had been committed by the foujdari adawlat - criminal court - at Midnapur, for an unspecified "outrage." The Supreme Court granted the writ, to which they received a return written in Persian by the judge of the native court. Upon reviewing the return, they ordered Sanson remanded, according to Chambers, because the officers of that court could not be said to be officers of the Company, "without supposing that Company to be the sovereign of these provinces," a supposition Chambers would not make. Id. at ff. 27v.-28. On the foujdari adawlats, see N. Majumdar, Justice and Police in Bengal, 1765-1793: A Study of the Nizamat in Decline 40-43 (1960).
318. For more on this case, see Thomas M. Curley, Sir Robert Chambers: Law, Literature, and Empire in the Age of Johnson 242-43 (1998).
319. P.J. Marshall, The Making and Unmaking of Empires: Britain, India, and America, c.1750-1783, at 268 (2005), quoting BL, MS Add. 16,259, f. 195 (letter to G. Johnstone, n.d.).
320. Impey continued: "We found it highly expedient [to use habeas corpus] in a country when [sic] every man assumed a right to imprison his debtor, if by law we might, and we thought his opinion a full justification for the practice." BL, MS Add. 16,265 (Impey letter book, 1774-76), f. 128 (Impey to Lord Chancellor Bathurst, Sept. 20, 1776).
321. BL, MS Add. 16,265 (Impey letter book, 1774-76), f. 29v.
322. This echoes the usage of Coke, Hale, and Blackstone, all of whom recognized that there were other kinds of subjects besides simply "natural" ones. For Coke and Hale's discussion, see supra text accompanying notes 66-75. Blackstone followed Hale's and Coke's distinction between "natural" and "local" allegiance or subjecthood. 1 Commentaries, supra note 29, at 357-59.
323. Justice John Hyde of the Supreme Court of Judicature advanced an explicit version of that argument. "If the writ be considered," Hyde wrote, "as it formerly was, a prerogative writ, this can afford no objection, because the King's prerogative extends as fully over his subjects here as in any part of his dominions." Hyde was referring to the writ of mandamus, but his argument was directed at the prerogative character of that writ rather than to any distinction between mandamus and habeas corpus. Rex v. Warren Hastings (1775), in T. C. Morton, Decisions of the Supreme Court of Judicature at Fort William in Bengal 206, 207 (Calcutta, 1841). By this view, the justices could correct all abuses: language that takes us back to Coke's claims about his authority on the prerogative writs, an authority derived from the need to ensure that the king's franchises were not abused by their holders. See supra text accompanying notes 81-87.
324. Touchet Report, supra note 249, at app. 9.
325. Id.
326. BL, MS Add. 38,400 (Liverpool Papers, CCXI: East India Papers 1776-77), f. 84 (opinion in Kamal v. Goring (1777)) (emphasis in original). At one point, the Company's governor-general in Calcutta, Warren Hastings, admitted as much: "the Court cannot avoid issuing such writs, if the complainants swear that the defendants are employed in the service of British subjects." Curley, supra note 253, at 593 n.57.
327. BL, MS Add. 16,265 (Impey letter book, 1774-76), f. 29v. (May 25, 1775).
328. BL, MS IOR/H/121, p. 160 (Sept. 19, 1775).
329. Court and Company reached a momentary compromise - supported by Impey and Chambers, but not by Lemaistre and Hyde - in their struggle over the use of habeas for Company prisoners. This broke down by late 1777. Curley, supra note 253, at 242-43.
330. This is apparent both in Company papers and letters, and in their public argument. As the Company directors put it when writing to Secretary of State Lord Weymouth, the Supreme Court's work "has been found in experience as oppressive to the natives as it certainly is adverse to the interests of the Company." BL, IOR/H/148, p. 223 (Jan. 25, 1781). The Company mounted a vigorous public campaign to make its case for further legislation to reform the court. See, e.g., Observations Upon the Administration of Justice in Bengal; Occasioned by Some Late Proceedings at Dacca 4 (1778) [hereinafter Observations];
331. Administration of Justice in Bengal: The Several Petitions of the British Inhabitants of Bengal (recited in the Petition of their Agents) of the Governor-General and Council, and of the Court of Directors of the East-India Company to Parliament 2-8 (1778) [hereinafter Bengal Petitions].
332. "[T]he SUpreme Court must be restrained from a direct interference with the management of the revenues, either by its ordinary process, or by writs of habeas corpus, or the provinces cannot be retained in a manner beneficial to Great Britain . . . ." Bengal Petitions, supra note 265, at 7 (emphasis in original).
333. The same franchisai view applied in the Supreme Court of Judicature's view of its power to monitor native Indian courts that managed the Company's revenue interests. In one case, Impey distinguished between the court's interference with the revenue - a charge he rejected - and the court's proper supervision of the uses of a franchise, even if by a native tribunal. This distinction, if attended to, is of itself sufficient to clear away every thing that can give the least alarm on the account of the interests of the Company: for the court, allowing the custom and usage of the collections to be the law of the country, have only compelled the officers of the government to act conformable to those usages, and not to make use of the color and forms of law to the oppression of the people. Touchet Report, supra note 249, at 79 (Impey to the Company Court of Directors in London, Sept. 19, 1775, discussing the case of Kemaluddin). At least one Company officer admitted that the Supreme Court's scrutiny made them more precise in the conduct of their business: "Decrees founded on a knowledge of the customs and usages of Hindostan . . . may be tried by statutes of English laws; and if the proof of the customs be not clear and positive, which frequently happens, the Superintendent who passes them, or his officer who carries them into execution, may become the sufferers. Even in the daily case of business in the Committee, which relates to the management of the Revenues, we feel too sensibly the truth of these observations. In place of a summary mode of proceedings we are cautious to observe distinctions, rules and forms, lest our proceedings, if hereafter laid before the Supreme Court, should be deemed informal or irregular." Misra, supra note 235, at 259-60 (quoting the minutes of John Shore, president of the revenue committee at Calcutta, 1779, in BL, IOR, Homes Series Miscellaneous, vol. 421, pp. 145-46) (emphasis in original).
334. Observations, supra note 265, at 4.
335. Id. at 6.
336. Considerations on the Administration of Justice in Bengal, Extracted From a Pamphlet Intitled Thoughts on Improving the Government of the British Territorial Possessions in the East-Indies 2 (1780).
337. Observations, supra note 265, at 8.
338. "Shall our writs of liberty unlock these sacred recesses?" Id. at 28-29.
339. Id. at 29 (emphasis in original). In a letter from Directors of the East India Company to Lord Weymouth, printed with their petition against the Supreme Court, the Company complained against the invasion of harems "as such acts of violence, and such violation of the Hindoo laws, [which] must not only disgrace us as a national body with the natives, but likewise breed a disgust in their minds, that may tend to the most serious consequences." Bengal Petitions, supra note 265, at 13 (emphasis in original).
340. Observations, supra note 265, at 29 (emphasis in original).
341. 22 Parliamentary History, supra note 17, at col. 549.
342. Id. at col. 554.
343. Id. at col. 555.
344. Id.
345. Dror Wahrman has argued that it was precisely in the 1770s and 1780s that ideas emphasizing fluid cultural differences transformed into ideas emphasizing fixed racial differences. Dror Wahrman, The Making of the Modern Self: Identity and Culture in Eighteenth-Century England 113-22 (2004).
346. Kathleen Wilson suggests that in the wake of losing America, while at the same time expanding its territorial possessions in the Eastern hemisphere, "English observers from all social levels began to articulate less geographically expansive notions of the nation and narrower definitions of national belonging . . . . [T]he empire of the seas, once idealized as the domain of free white British peoples, had become the imperium of palpably alien colonial subjects . . . ." Kathleen Wilson, The Island Race: Englishness, Empire and Gender in the Eighteenth Century 10-11 (2003).
347. 22 Parliamentary History, supra note 17, at col. 556.
348. Id. at cols. 559-60.
349. 21 Geo. 3, c. 70.
350. The rationales of preserving the authority of Indian men and the laws and customs of Indian culture were also advanced in connection with the two sections: And, in order that regard should be had to the civil and religious usages of the said natives, be it enacted, that the rights and authorities of fathers of families, and masters of families, according as the same might have been exercised by the Gentu or Mahomedan Law, shall be preserved to them respectively within their said families; nor shall any acts done in consequence of the rule and law of cast, respecting the members of the said families only, be held and adjudged a crime, although the same may not be held justifiable by the laws of England. 21 Geo. 3, c. 70, § 18 (emphasis in original). The use of habeas thus narrowed in the decades after 1781, and especially in the first half of the nineteenth century. See Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law 69-131 (2003); Jain, supra note 232, at 106-08.
351. 21 Geo. 3, c. 70, § 19.
352. Sudipta Sen has shown that the operation of English law in Bengal in the late eighteenth century was much messier than either Burke or Courtenay would have preferred. Sudipta Sen, Imperial Subjects on Trial: On the Legal Identity of Britons in Late Eighteenth-Century India, 45 J. Brit. Stud. 532 (2006). In Sen's terms, "an exigent sense of legal entitlement created more expansive . . . subject positions." Id. at 539.
353. For a vivid account of Britons and Europeans in their relationships with the people of the subcontinent, see Maya Jasanoff, Edge of Empire: Lives, Culture, and Conquest in the East, 1750-1850 (2005).
354. Habeas corpus was used in the early years of the Supreme Court of Judicature not only by native Indians, but by other Europeans, including Frenchmen. In Baughban Ghose v. Peter Veblé, the defendant, a Frenchman whose king, in 1781, was at war with Britain, used the writ while a prisoner of war. No record of the outcome in the case could be found. See Morton, supra note 258, at 123-24. For the cases of one Sanson and Joseph Pavesi, both Frenchmen who used the writ in 1776, see Curley, supra note 253, at 242, 288-89. See also Case of Joseph Pavesi (Calcutta S.C. 1776), in The Judicial Notebooks of John Hyde and Sir Robert Chambers 1774-1798, Victoria Memorial Hall, Calcutta, cited in Brief of Legal Historians as Amici Curiae in Support of Petitioners at 23 n.20, Boumediene v. Bush, No. 06-1195 (U.S. Aug., 2007).
355. Jain, supra note 232, at 74. For the court's grappling with this distinction, see id. at 74-76.
356. As P. J. Marshall notes by holding India and America side by side, "an imperial structure consonant with British preoccupations emerged over seemingly alien new subjects in Bengal," while in North America, British rule was frustrated "over people for the most part self-consciously English." Marshall, supra note 254, at 12. American newspapers, as was common, republished excerpts from English papers of debates in Parliament on the 1781 Judicature Act. See, for instance, the debates of February 12, 1781, concerned with the danger of enforcing English law as it concerned Indian women, in Extracts of a Letter From Helvostflays, Feb. 12, Conn. Gazette, May 25, 1781, at 1.
357. On the Irish Parliament's passage of the 1781 Habeas Corpus Act, see Kevin Costello, The Law of Habeas Corpus in Ireland: History, Scope of Review, and Practice Under Article 40.4.2 of the Irish Constitution 5-17 (2006).
358. See, for instance, the accounts of debates in the Parliament at Dublin in 1780 on an early version of this measure, and in the Parliament at Westminster, after its passage in 1782, in The Indep. Chron. and the Universal Advertiser (Boston), July 11, 1782, at 1; The Pa. Packet, Apr. 22, 1780, at 2. The full transcript of the English Parliament's subsequent discussion is in 22 Parliamentary History, supra note 17, at cols. 1241-64.
359. 21-22 Geo. 3, c. 11, § 16, in 12 The Statutes at Large, Passed in the Parliaments Held in Ireland: From the Third Year of Edward the Second, A.D. 1310, to the Twenty Sixth Year of George Third, A. D. 1786, Inclusive 143 (Dublin, 1786).
360. Five Knights Case, TNA, KB145/15/3 (in the return to the writs for the Five Knights, teste November 15, 1627), supra note 127.
361. Account of Some Proceedings on the Writ of Habeas Corpus 17 (1781) (emphasis in original).
362. 24 Geo. 3, c. 25 ("An act for the better regulation and management of the affairs of the East India company, and of the British possessions in India."); see 24 Geo. 3, c. 25 §§ 53-54 (setting forth these imprisonment powers).
363. 24 Geo. 3, c. 25 § 57.
364. "Nabob" was a British corruption of the word nawab, which indicated the ruler of Bengal or the other states within the Mughal empire. "Nabob" was generally used to refer to anyone returning from India with large, and perhaps dubiously gained, new wealth. Sen, Distant Sovereignty, supra note 248, at 124-25. For a thoughtful account of nabobs, see Jasanoff, supra note 286, at 32-39.
365. George Dallas, Speech of George Dallas, Esq., Member of the Committee Appointed by the British Inhabitants Residing in Bengal, for the Purpose of Preparing Petitions to His Majesty and Both Houses of Parliament, Praying Redress Against an Act of Parliament, &c. As delivered by him at a Meeting held at the Theatre in Calcutta 8 (July 25, 1785).
366. Id. at 10.
367. Id. at 17.
368. Id. at 25.
369. Americans noted this impact of Pitt's India Bill on access to habeas corpus for returning nabobs. Mr. Pitt's East India Bill, State Gazette S.C, April 24, 1786, at 2.
370. See Robert Dallas, Esq., Speech at the Bar of the House of Commons in Support of the Bengal Petition (Feb. 27,1787), at 1-7, 25-29. For the debates of 1787, see 26 Parliamentary History, supra note 17, at cols. 133, 637-38, 739-52. The 1786 Judicature Amending Act did little to address some of the most serious concerns raised about suspension or about the loss of trial by jury, which also figured prominently in these debates. 26 Geo. 3, c 57.
371. Indep. Chron. & Universal Advertiser (Boston), April 17, 1777, at 1.
372. Duker, supra note 14, at 98-115.
373. For examples, see id. at 104, 108-14. Although Duker successfully compiles evidence showing the recognition of common law habeas in all of the American colonies, including colonial legislative acts empowering judges to issue common law writs, discussions of the importance of the writ of habeas corpus in colonial assemblies, and a smattering of judicial decisions, his sample of judicial decisions is quite small, and in some of those decisions the person on whose behalf the writ issued was judicially remanded to custody.
374. Neurnan, supra note 153, at 976-77 & nn.80-81, makes a brief reference to the suspension statutes in South Carolina (1778), Virginia (1781), New Jersey (1780), and Massachusetts (1786). Freedman, supra note 14, at 12, begins his coverage with the Philadelphia Convention of 1787.
375. Valerius, Letter to Mr. Printer, Freeman's J. (Philadelphia), Feb. 26, 1783, at 2. The use of classical pseudonyms was habitual for pamphlet writers in the period from just before Independence through the early nineteenth century. For examples of the use of classical pseudonyms in debates about Marshall Court cases, see White, Marshall Court and Cultural Change, supra note 31, at 521-22, 552-62.
376. Id; see, e.g., An Act for Suspending the Privilege of the Writ of Habeas Corpus, 2 Worcester Mag., Dec. 7, 1786, at 435; An Act More Effectually to Prevent the Inhabitants of this State from Trading with the Enemy, or Going within Their Lines, and for other Purposes Therein Mentioned, N.J. Gazette (Trenton), Dec 27, 1780, at 2, § 9.
377. See David L. Jacobson, John Dickinson and the Revolution in Pennsylvania 1764-1776, at 123 (1965);
378. Charles J. Stillé, The Life and Times of John Dickinson 1732-1808, at 257 (1891).
379. John Dickinson, Letter, Freeman's J. (Philadelphia), Feb. 4, 1784, at 2.
380. In chronological order, the slave petitions are reported in the Conn. J. (NewHaven), Feb. 28, 1782, at 3 (describing a petition filed in Philadelphia);
381. David Cowell, Notice, N.J. Gazette (Trenton), June 25, 1783, at 3;
382. New-Haven Gazette, Dec. 16, 1784, at 2;
383. and Pa. Packet (Philadelphia), Mar. 8, 1786, at 2. In all those instances the slaves brought writs because they had been detained after running away from their masters.
384. Investigation of slave habeas petitions in the late eighteenth century seems long overdue. For an analysis of Mansfield's decision in its imperial contexts, see George Van Cleve, Somerset's Case and Its Antecedents in Imperial Perspective, 24 L. & Hist. Rev. 601 (2006).
385. For examples of the many reports in America of the judgment in Somerset's Case, see 4 Essex Gazette (Salem, Mass.), June 30 to July 7, 1772, at 200;
386. Mass. Gazette & Boston Weekly News-Letter, Sept. 10, 1772, supp. to the Mass. Gazette, 1.
387. Given the significance of the Judiciary Act of 1789, it is puzzling that no recent historical treatment of it has appeared. Perhaps this is because of the exhaustiveness of Prof. Goebel's chapter in Julius Goebel, Jr., Antecedents and Beginnings to 1801, at 457-508 (1971),
388. and the revisionist work of Wilfred Ritz, published posthumously. Wilfred J. Ritz, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence (Wythe Holt & L.H. LaRue eds., 1990).
389. See also Wythe Holt, "To Establish Justice": Politics, The Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 Duke L. J. 1421, especially for the political context of the Act.
390. The best general discussion of the relationship of the Constitution to the Judiciary Act of 1789 is Fallon et al., supra note 8, at 28-33. See also the debate among several scholars on the constitutionality of prospective congressional efforts to withdraw all the jurisdiction of the federal courts. Among the contributors are Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990);
391. John Harrison, The Power of Congress to Limit the Jurisdiction of Federal Courts and the Text of Article III, 64 U. Chi. L. Rev. 203 (1997);
392. Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569 (1990);
393. Robert J. Pushaw, Jr., Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article 111, 1997 BYU L. Rev. 847.
394. See Stanley Elkins & Eric McKitrick, The Age of Federalism 62-64 (1993).
395. INS v. St. Cyr, 533 U.S. 289, 300-02 (2001); See supra note 2.
396. Judiciary Act of 1789, ch. 20, § 14,1 Stat. 73, 81-82 (emphasis in original).
397. See Elkins & McKitrick, supra note 316, at 58-64.
398. The discussion in the next few paragraphs draws on White, The Marshall Court and Cultural Change, supra note 31. See also Freedman, supra note 14, at 12-19; Francis Paschal, The Constitution and Habeas Corpus, 1970 Duke L.J. 605, 608-17 (1970).
399. A writ of scire facias required the party against whom it was directed to appear before the issuing court and show cause why a particular order or proceeding of that court should not be enforced.
400. Judiciary Act of 1789, ch. 20, § 14,1 Stat. 73, 81-82.
401. Robert J. Reinstein & Mark C. Rahdert, Reconstructing Marbury, 57 Ark. L. Rev. 729, 746 (2005).
402. See White, The Marshall Court and Cultural Change, supra note 31, at 112-13.
403. See id. at 117-46 (discussing the views of several late eighteenth- and early nineteenth-century treatise writers and commentators).
404. Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73, 82. For more detail, see G. Edward White, Tort Law in America: An Intellectual History 9-12 (expanded ed. 2003) (discussing the "writ system" of jurisprudence in place when tort law became a discrete field of common law with distinctive substantive rules).
405. None of this language can be seen as affecting another issue that has received a great deal of attention: whether habeas relief is available to prisoners in state as opposed to federal custodial facilities. For an exhaustive review of the literature on that topic, see Fallon et al., supra note 8, at 1297-1405. That issue is a product of an 1867 congressional statute, the Act of February 5, 1867, ch. 27, 14 Stat. 385, which expanded the scope of the habeas writ to persons in state custody. It is outside the scope of our inquiry.
406. Judiciary Act of 1789, c 20, § 14,1 Stat. 73, 82 (emphasis in original).
407. For the same argument, see Freedman, supra note 14, at 30-35. A further issue, somewhat peripheral to our analysis, is raised by the fact that the sentence gives habeas power to both Supreme Court Justices and lower federal court judges. Does that mean that the Court, or individual Justices, may issue the writ directly, as an exercise of original jurisdiction, or only on appellate or discretionary review? The modern answer seems to be that (1) the Court or individual justices may issue the writ; and (2) when they do so, it is typically an exercise of appellate jurisdiction. See 28 U.S.C. § 2241(b) (2000); Sup. Ct. R. 20.4(a); Ex parte Abernathy, 320 U.S. 219 (1943). For more detail, see Fallon et al., supra note 8, at 1295-96. Putting these conclusions in terms of the 1789 Act, the best reading is that there are two sources of habeas jurisdiction, original and appellate; that most cases do not involve "ambassadors" within the meaning of Article III, § 2, and thus the Supreme Court's or its Justices' jurisdiction to issue habeas writs is primarily appellate (that is, when persons have challenged detentions in another court), and that § 14 authorizes collateral review only of the actions of federal, not state, officials.
408. For a suggestion that the proviso to § 14 was drafted so as to alleviate fears that the federal courts might use their habeas powers to release persons in custody in the states, see Freedman, supra note 14, at 27, 29. For an argument that the proviso was also designed to prevent restrictions on the power of state courts to issue habeas writs for federal prisoners, see, Duker, supra note 14, at 131-35. On the scope of the habeas powers of the state courts, the Supreme Court later held in Tarble's Case, 80 U.S. 397 (1871), that those courts lacked the power to issue habeas corpus writs to federal officials. To the extent that decision claimed to be recovering original understandings about the habeas powers of state courts, it was historically inaccurate. Freedman's comment on Tarble's Case is apt: "However odd the notion may appear to modern lawyers, contemporaries [of the framers of the Constitution and the Judiciary Act of 1789] all assumed that the state courts would be able to issue writs of habeas corpus to release those in federal custody." Freedman, supra note 14, at 18. Freedman cites instances of Massachusetts courts issuing writs during the Revolutionary War to challenge the validity of military enlistments, citing William E. Nelson, The American Revolution and the Emergence of Modem Doctrines of Federalism and Conflict of Laws, in Law in Colonial Massachusetts 1630-1800, at 419, 457 (Daniel R. Colquillette ed., 1984).
409. Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807).
410. See debates in Fallon et al., supra note 8, at 1289-93 (reviewing the relevant literature).
411. For the details of Wilkinson's career, see George Lee Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15, in 2 History of the Supreme Court of the United States 255 (Paul A. Freund ed., 1981);
412. James Ripley Jacobs, Tarnished Warrior: Major-General James Wilkinson 233-36 (1938).
413. A detailed account of the Burr expedition can be found in Haskins & Johnson, supra note 333, at 248-55. See also Francis S. Philbrick, The Rise of the West, 1754-1830, at 234-52 (1965) (discussing Burr and the conflicting land claims of Spain and the United States to the delta land just west of the Mississippi River in the early 1800s).
414. Haskins and Johnson, supra note 333, at 252-55.
415. United States v. Bollman, 24 F. Cas. 1189, 1190 (C.C.D.C. 1807) (No. 14,622).
416. The order is in Exparte Bollman, 8 U.S. (4 Cranch) 75, 76 (1807).
417. 16 Annals of Cong. 39, 39-40 (1807).
418. 16 Annals of Cong. 44 (1807). The lone dissenter was Senator James A. Bayard of Delaware. See Letter from John Quincy Adams to John Adams (January 27, 1807),
419. quoted in Albert J. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, at 347 (1919).
420. For the House vote, see 16 Annals of Cong. 424-25 (1807). One passage in the House debate, a speech by Congressman James M. Broom of Delaware, who introduced a motion to "make further provision, by law, for securing the privilege of the writ of habeas corpus," is noteworthy for our purposes. Broom said that "the commander of the army [Wilkinson], in the plenitude of his power, avows his disobedience to laws and Constitution, and takes on himself all the responsibility of the violation of our Constitutional rights of personal liberty." Id. at 502, 506. Broom's motion was ultimately postponed indefinitely by the House by a vote of 60-58. See id. at 589-90.
421. 8 U.S. (4 Cranch) at 75.
422. Id. at 75 n.* ("It is the wish of the court to have the [habeas] motion made in a more solemn manner to-morrow, when you may come prepared to take up the whole ground."). Marshall also indicated that Lee had made a motion on behalf of James Alexander, a New Orleans attorney who had also been arrested under Wilkinson's orders. In response to that motion, Alexander was subsequently discharged by a judge of Cranch's circuit court. Id.
423. Elkins & McKitrick, supra note 316, at 741-54.
424. For more on the subject, see White, The Marshall Court and Cultural Change, supra note 31, at 122-44, 450-51. In United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1812), the Court finally confronted the issue of whether there was a federal common law of crimes and concluded that there was not. But judicial decisions in the 1790s, including one by Oliver Ellsworth, had upheld prosecutions based on a federal common law of crimes. See Williams' Case, 29 F. Cas. 1330 (C.C.D. Conn. 1799) (No. 17,708); United States v. Ravara, 27 F. Cas. 713 (C.C.D. Pa. 1793) (No. 16,122). For an argument that the framers of the Judiciary Act anticipated that the federal courts might well be defining the contours of a common law of crimes, see Holt, supra note 314, at 1505-06.
425. U.S. Const, art. III, § 3. The language of the Treason Clause at issue in the Bollman case defined "[t]reason against the United States" as consisting "only in levying war against them, or in adhering to their enemies, giving them aid and comfort." 8 U.S. (4 Cranch) at 126. The best study of the Treason Clause remains James Willard Hurst, The Law of Treason in the United States (1971).
426. See id. at 153-54.
427. See White, The Marshall Court and Cultural Change, supra note 31, at 963-64. For an illustration, see the discussion of Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), in White, The Marshall Court and Cultural Change, supra note 31, at 612-28. Over the course of his 34-year tenure as the Court's Chief Justice, Marshall himself supplied most of that extended constitutional analysis. In the years of Marshall's tenure he wrote forty-five opinions in constitutional cases, the overwhelming number of which were opinions of the Court, whereas the other justices who served with him during that time period - twelve in number - wrote only thirty-one opinions in constitutional cases combined. See id. at 367-68.
428. For more detail on Marshall's approach to admiralty jurisdiction cases, an extremely controversial area in the early nineteenth century, see id. at 432-84. For more detail on his approach in Commerce Clause cases, see id. at 568-84.
429. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 125, 127, 136-37 (1807). Marshall's opinion was described by Cranch, the Reporter, as "the opinion of the court." Id. at 125. Cranch also reported that three other justices, Samuel Chase, Bushrod Washington, and William Johnson, were "present" when Marshall delivered his opinion. It would be a mistake to conclude from those details that Marshall's opinion was unanimous. First, a custom of "silent acquiescence" existed on the Marshall Court, in which justices who found themselves outvoted on an issue typically did not record themselves as dissenting. Second, the fact that justices were "present" when an opinion was delivered does not necessarily suggest that they participated in the deliberations on the case. See White, The Marshall Court and Cultural Change, supra note 31, at 186-92; G. Edward White, History and the Constitution: Collected Essays 405-11 (2007). Finally, Marshall explicitly said there was only a "majority" of the Court for dismissing the treason charge against Swartwout. Bollman, 8 U.S. (4 Cranch) at 135.
430. Unless otherwise indicated, references to Bollman refer to Bollman I.
431. Cranch's Reports record Bushrod Washington, William Johnson, and Brockholst Livingston as "present when [Marshall's opinion in Bollman I was] given." 8 U.S. (4 Cranch) at 93. Justices Samuel Chase and William Cushing were recorded as being absent. Johnson published a dissent from Marshall's opinion and indicated that another justice, "who is prevented by indisposition from attending," supported his dissent. Id. at 101, 107. Since Chase had already signaled that he "doubted the jurisdiction of [the Supreme Court] to issue a habeas corpus in any case," id. at 75, he was likely the justice Johnson had in mind.
432. Id. at 93.
433. Id. at 79-80.
434. Id. at 80.
435. Id.
436. Id.
437. Id. at 80-82.
438. Id. at 82.
439. Id.
440. Notice Harper's careful use of language. He refers to "the United States, in their collective capacity," thus signaling to his audience that he is mindful that the federal union has been forged from the states.
441. Id. at 83. (emphasis in original).
442. Id. at 89-90.
443. Id. at 90.
444. See supra Section IV.B; 8 U.S. (4 Cranch) at 83-84 (analyzing § 14).
445. 8 U.S. (4 Cranch) at 83 (emphasis in original).
446. Harper's final argument was that the jurisdiction of the Supreme Court to issue writs of habeas corpus in the vast majority of cases was appellate, not original. That argument is peripheral to our concerns. Marshall's opinion would agree with the argument, see 8 U.S. (4 Cranch) at 100-01, and the conclusion was foreordained after Marshall had concluded, in Marbury, that the Court could only exercise original jurisdiction when it was specially conferred by the Constitution. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174-80 (1803).
447. For Lee's argument, see 8 U.S. (4 Cranch) at 77-79.
448. Bollman, Swartwout, and Burr were never successfully prosecuted for their allegedly treasonous activities, and Marshall, who sat as a circuit judge in Burr's trial, contributed to those outcomes. On the Burr trial, see 1-2 David Robertson, Reports of the Trials of Colonel Aaron Burr (Late Vice President of the United States,) for Treason, and for a misdemeanor, in preparing the means of a military expedition against Mexico, a territory of the King of Spain, with whom the United States were at peace. In the Circuit Court of the United States, held at the city of Richmond, in the district of Virginia, in the Summer Term of the year 1807 (1808); See also Haskins & Johnson, supra note 333, at 246-92.
449. Both Marshall's sensitivity toward Jefferson and his supporters and Jefferson's antipathy toward Marshall and the Court persisted until Jefferson's death in 1826. See White, The Marshall Court and Cultural Change, supra note 31, at 369-72, 522-23.
450. 8 U.S. (4 Cranch) at 93.
451. Id.
452. See Milton Cantor, The Writ of Habeas Corpus: Early American Origins and Development, in Freedom and Reform 55, 76-77 (Harold L. Hyman & Leonard W. Levy eds., 1967); Paschal, supra note 320, at 628.
453. For more detail, see G. Edward White, The Constitutional Journey of Marbury v. Madison, 89 Va. L. Rev. 1463, 1468-91 (2003).
454. 8 U.S. (4 Cranch) at 93-94.
455. Id. at 95.
456. G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges 32 (2007) (citing Marshall's opinion in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 187-88 (1824)).
457. 8 U.S. (4 Cranch) at 95.
458. Id.
459. For a portrait of Johnson, see White, The Marshall Court and Cultural Change, supra note 31, at 332-44.
460. U.S. (4 Cranch) at 101, 103-07 (Johnson, J., dissenting).
461. Id. at 94, 96 (majority opinion).
462. Id. at 96.
463. Id. at 99.
464. INS v. St. Cyr, 533 U.S. 289, 301 (2001) (quoting Felker v. Turpin, 518 U.S. 651, 663-64 (1996)).
465. Grant Gilmore, The Ages of American Law 99 (1977).
466. Of those issues, the one central to the Boumediene case might be distilled as follows: Does the Suspension Clause, taken together with the background assumptions of its framers, the language of § 14 of the Judiciary Act of 1789, and the relevant Supreme Court precedent, require that alien detainees housed in a naval base leased by the United States government from Cuba be afforded the "privilege of the writ of habeas corpus" to challenge their detention? Or does the Suspension Clause permit Congress, acting on recommendations from the Executive Branch, to withdraw jurisdiction to entertain habeas petitions by those detainees from any courts and judges of the United States, including justices of the United States Supreme Court? Compare the plurality opinion in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2772-86 (2006) (discussing military tribunals and their constitutional limits) with Johnson v. Eisentrager, 339 U.S. 763, 777, 781 (1950) (concluding that "no right to the writ of habeas corpus appears" for "enemy aliens, resident, captured and imprisoned abroad"). See also the discussions in Fallon et al., Supp., supra note 6, at 45-54, and Gerald L. Neuman, Closing the Guantanamo Loophole, 50 Loy. L. Rev. 1 (2004).
467. Both the majority and dissenting opinions in the D.C. Circuit's Boumediene decision agreed that Congress had intended to withdraw jurisdiction from the federal courts to consider the habeas petitions of aliens captured abroad and detained in the Guantanamo Naval Base. Both thus reached the constitutional question of whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended in scattered sections of 10 and 28 U.S.C.), could be reconciled with the Suspension Clause. Boumediene v. Bush, 476 F.3d 981, 988 (D.C. Cir. 2007); id. at 999-1000 (Rogers, C.J., dissenting). The majority and dissenting opinions from the Boumediene panel were notably pointed in their criticism of each other's approach to the Suspension Clause. The majority stated that a distinction posited in the dissent, which treated the Suspension Clause as "a limitation on congressional power rather than a constitutional right," was "no distinction at all"; that one of the dissent's citations in support of that proposition was "particularly baffling"; and that the dissent's characterization of the Suspension Clause, and "the reasoning behind it," was a "strange idea," the source of which was "a mystery." Id. at 993-94. The dissenting opinion, for its part, began by suggesting that the majority "fundamentally misconstrues the nature of suspension" by "misreading the historical record and ignoring the Supreme Court's well-considered and binding dictum" in Rasul, which had suggested that "the writ at common law would have extended to the [Guantanamo Bay] detainees." Id. at 994-95. Along the way the dissent added that the majority had declared a jurisprudential proposition without making any "affirmative argument" in support of it; that it had quoted language from a supposed Supreme Court precedent "without context"; and that it had, "oddly," ignored the "question of whether the Suspension Clause protects the writ of habeas corpus as it had developed since 1789." Id. at 997 & n.4, 1000 n.5.
468. Eisentrager, 339 U.S. at 768.
469. Id. at 776.
470. In re Yamashita, 327 U.S. 1 (1946); Ex parte Quirin, 317 U.S. 1 (1942).
471. 339 U.S. at 777-78.
472. Id. at 778.
473. Id. at 785.
474. Id. at 778
475. See id. at 795 (Black, J., dissenting).
476. Id. at 769.
477. See id. at 769-70.
478. Id at 795 (Black, J., dissenting).
479. Id.
480. Id.
481. Id.
482. TNA, KB29/231, m. 83v., is the enrolled writ by which Lopez, and two other aliens, were turned over to their executioner in 1594. Hale discussed this case immediately after introducing the phrase "open hostility." Lopez served as an example of an alien who had violated the protection of the queen, which amounted to treason. Hale's Prerogatives, supra note 45, at 56.
483. Hale's Prerogatives, supra note 45, at 56.
484. William Blackstone, 1 Commentaries *361 (emphasis added).
485. See supra notes 73-76 and accompanying text.
486. Rasul, 542 U.S. at 475-79 (majority opinion); id. at 485-S8 (Kennedy, J., concurring).
487. Id. at 488-98 (Scalia, J., dissenting).
488. Boumediene, 476 F.3d at 990-92; id. at 1004, 1010-11 (Rogers, J., dissenting).
489. Justice Stevens cited several English and a few eighteenth-century common law habeas cases, and briefly responded to Justice Scalia's more extensive analysis. Among Stevens's English cases were some reported Cinque Ports cases. He also cited a 1960 Queen's Bench opinion for the proposition that the reach of the writ depended on "the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown." Rasul, 542 U.S. at 481-82 (citing Ex parte Mwenya, (1960) 1 Q.B. 241, 303 (C.A.) (Lord Evershed, M.R.)). Scalia's historical exegesis was far more extensive and arguably informed, pivoting on what he took to be an established distinction between the access of subjects of the British Crown and aliens to the courts through the habeas writ. Id. at 502-05. Suffice to say, at this juncture, our analysis presupposes that the distinction posited by Scalia is less of a bright-line one than his Rasul opinion might suggest.
490. The majority opinion in Boumediene left "[a]t the absolute minimum" out of its formulation. See Boumediene, 476 F.3d at 988. The dissent included it. See id. at 1000.
491. Id. at 993-94.
492. Id. at 989. The dissent did not focus on that issue. It argued that the Suspension Clause prevented Congress from withdrawing the habeas jurisdiction of the federal courts which was within the scope of the "privilege of the writ" in 1789. See id. at 1007 (Rogers, J., dissenting).
493. Id. at 989-90 (majority opinion).
494. Id. at 1001 (Rogers, J., dissenting).
495. 542 U.S. at 481.
496. The U.S. government has consistently taken the position, since September 11, 2001, that "enemy combatants" apprehended in connection with the "war on terror" and detained in Guantanamo Bay would fall into this category. Fitting individuals into the historical category of "enemy aliens" entering the sovereign's territory in "open hostility" requires some modifications of the category. At the time of the Suspension Clause's framing, the status of "alien enemy" was determined by a state of war between the sovereign and a foreign state of which the alien was a citizen. Moreover, as we have seen, coming into the territory of a sovereign in "open hostility" presumed that the entry was voluntary. The "war on terror" is not one in which the United States has formally declared war on any foreign state, and consequently is not a war with any apparent time frame, making the term "open hostility" difficult to confine. Moreover, "enemy combatants" detained in Guantanamo Bay have not entered U.S. territory voluntarily, and their designation as "enemies" and "combatants" has been made by the officials detaining them.
497. Gerald L. Neuman & Charles F. Hobson, John Marshall and the Enemy Alien: A Case Missing from the Canon, 9 Green Bag 2d. 39 (2005).
498. Lockington's Case (Pa. 1814), reprinted in 5 Am. L.J. 301, 325 (1814) (Brackenridge, J.). In 1851, Frederick C. Brightly, then the Reporter for the Pennsylvania courts, reproduced the unpublished report. Frederick C. Brightly, Reports of Cases Decided by the Judges of the Supreme Court of Pennsylvania in the Court of Nisi Prius at Philadelphia, and Also in the Supreme Court 269 (Philadelphia, James Kay, Jr. & Brother 1851). For more on the history of Lockington's Case, see Neuman & Hobson, supra note 417, at 40-41 & n.10.
499. Lockington's Case, 5 Am. L.J. at 301. Shortly after Congress declared war on Great Britain in 1812, James Monroe, then Secretary of State, invoked section 1 of the Alien Enemies Act of 1798, ch. 66, 1 Stat. 577 (codified at 50 U.S.C. § 21 (2000)), to issue a notice requiring all British subjects within the United States to report to federal marshals. For more detail, see Neuman & Hobson, supra note 417, at 39-40.
500. Lockington's Case, 5 Am. L.J. at 313-15 (referring to Lockington's Case, 5 Am. L.J. 92, 94, 97 (Pa. 1813)).
501. The original report of the decision appeared in the Virginia Patriot (Richmond) on December 14, 1813. That report was reprinted in the American Daily Advertiser (Phila.) on December 20, 1813, and the Charleston Courier on December 21, 1813. Neuman & Hobson, supra note 417, at 41. See A Short Report of a Late Decision on the Question Concerning Alien Enemies, Virginia Patriot (Richmond), Dec. 14, 1813; A Short Report of a Late Decision on the Question Concerning Alien Enemies, American Daily Advertiser (Phila.), Dec. 20, 1813; A Short Report of a Late Decision on the Question Concerning Alien Enemies, Charleston Courier, Dec. 21, 1813. Neuman and Hobson speculate that the "gazette" where Justice Brackenridge had read the report of Marshall's decision was the American Daily Advertiser. Neuman & Hobson, supra note 417, at 41.
502. See Neuman & Hobson, supra note 417, at 42 n.17. The book was Kenneth Scott, British Aliens in the United States During the War of 1812, at 332 (1979).
503. The order appears as U.S. Circuit Court, Va., Order Book No. 9 (1811-1816), at 240, United States v. Thomas Williams. See Neuman & Hobson, supra note 417, at 42 n.17.
504. U.S. Circuit Court Order Book, supra note 423, at 264, quoted in Neuman & Hobson, supra note 417, at 42.
505. American Daily Advertiser, supra note 421, at 2, quoted in Neuman & Hobson, supra note 417, at 41-42.
506. Neuman & Hobson, supra note 417, at 42 n.17. See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 114 (1807).
507. Neuman & Hobson, supra note 417, at 41 (quoting American Daily Advertiser, supra note 421, at 2).
508. Neuman & Hobson, supra note 417, at 41-42 (quoting American Daily Advertiser, supra note 421, at 2).
509. See supra notes 73-76 and accompanying text.