John Marshall’s Sea Mine

The notion of an independent judiciary that restrained the other branches was an infant with a questionable life expectancy when John Marshall stated in placatory dicta in Ex Parte Bollman (1807)—quite wrongly as a matter of both British history and American constitutional law— that the federal courts had no inherent authority to issue the writ of habeas corpus in the absence of legislation. The Suspension Clause, he claimed, was merely precatory, an injunction to Congress to pass such legislation. The highly political case involved Erick Bollman and Samuel Swartwout, alleged members of the Aaron Burr conspiracy, and pitted prominent federalists such as petitioners’ counsel Robert Goodloe Harper and Charles Lee against the administration of Thomas Jefferson. After reviewing the factual and political background, this chapter details the arguments of counsel in favor of inherent judicial authority to grant the writ and Marshall’s rejection of them. Judicial autonomy was under threat at the time and Marshall was trying to defend it But his words were a judicial sea mine that created a long-term danger: Congress could by simple inaction evade the bedrock prohibition against suspension of the writ.

The Dual Strand

Legislative intervention in judicial proceedings has two aspects. It might be an additional means for an individual to achieve justice after a procedural misfortune. But changing substantive outcomes legislatively might weaken the independent authority of the court system and threaten individual liberty. The Supreme Court’s split decision in Bank Markazi v. Peterson (2016), involving the availability of Iranian assets to terrorism victims, shows that these concerns remain salient today and that in any particular case reasonable people may disagree on which sort of intervention the legislature has engaged in. This Chapter focuses on a number of colonial and early national examples of “restoration to law.” These were legislative actions whose purpose was to assist litigants perceived as blameless in achieving fair adjudications. Consideration of legislation explicitly intended to alter substantive outcomes is deferred to Part III.

Interweaving Actions

This Chapter describes how the system of restraints on power during the colonial and early national periods was synergistic yet homeostatic. The synergies arose because aggrieved parties might pursue their remedies simultaneously rather than sequentially. For example, when J.P. Wyseman Claggett of New Hampshire sent James Dwyer to jail pending trial on theft charges, the immediate result was both a criminal indictment for unlawfully altering the order and, as this Chapter details, a false imprisonment action by Dwyer against both Claggett and the constable who conducted the arrest. Yet while interweaving actions amplified the power of the system they also served as stabilizers. If a particular action were abused the victim might have recourse to a damages action of his or her own. For example, as several malicious prosecution cases in this Chapter illustrate, a criminal defendant who secured a favorable outcome could sue a party who had pursued a private criminal prosecution or wrongfully procured initiation of a public criminal prosecution.

Knowing Habeas Corpus When You See It

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

The Habeas Corpus Strand of Restraints on Government

Utilizing primarily cases from the War of 1812, this Chapter illustrates the power and limitations of the writ in restraining government. Positive examples include state habeas challenges to military enlistments in the period prior to Tarble’s Case and Ableman v. Booth, including one decided in the Massachusetts Supreme Court against General Thomas H. Cushing, and New York Chief Justice James Kent’s order that General Morgan Lewis release alleged spy Samuel Stacy. Negative ones include the defiance of the writ by General Andrew Jackson in the period surrounding the Battle of New Orleans. Events began with the expulsion of French counsel Louis de Tousard. When Louisiana legislator Louis Louailler protested, Jackson had him arrested. Lawyer Pierre L. Morel sought habeas corpus from Louisiana Supreme Court Justice Francois-Xavier Martin (denied) and prohibition and habeas corpus from federal Judge Dominick A. Hall (latter granted). Jackson arrested Hall. When United States Attorney John Dick obtained a state habeas writ Jackson arrested Dick and ordered the judge’s arrest. Jackson was fined by Hall for contempt but ultimately reimbursed by Congress. George Washington respected the writ but it was ever vulnerable to defiance, evasion or legislative suspension. Although valuable, it could not be relied on exclusively.

The Benefits of a Functional View

On a functional view, all cases in which custody is challenged by a person seeking a judicial determination of its legality are habeas corpus cases regardless of formal nomenclature. Adopting this view, which flows from historical research into what common law courts actually did, would: — expand the universe of cases argued to and relied upon by the Supreme Court in Suspension Clause cases — teach lower courts to focus on facts ascertained by direct investigation and do justice in the case at hand, rather than seeking to make sweeping legal pronouncements — be of special benefit in national security cases, as illustrated in 2008 by United States District Court for the District of Columba proceedings before Judge Richard J. Leon involving Guantanamo Bay detainee Lakhdar Boumediene following the Supreme Court’s remand in Boumediene v. Bush.

Captain Hodsdon’s Legal Entanglements

Illustrating the numerous legal restraints on power in the early national period, this chapter focuses on Captain Isaac Hodsdon of the United States Army, accused of wrongfully imprisoning men in Stewartstown, New Hampshire during the War of 1812. They first obtained a state writ of habeas corpus. Hodsdon’s response, that he would not produce the men because one was a prisoner of war and the other detained on federal charges was—quite appropriately—found contemptuous. He was prosecuted in private criminal contempt proceedings, and also held liable for damages in a false imprisonment action. Meanwhile the New Hampshire legislature (to whom Hodsdon apparently gave a false account of the events) passed a restoration to law statute, enabling him to overcome a missed deadline. Ultimately the United States Congress (of which his counsel, John Holmes, had become a member) granted him indemnity. These events were the subject of tart newspaper exchanges in the Concord Statesman & Register and the New-Hampshire Patriot.

The Connecting Strand

Until the first half of the nineteenth century the wide power of the jury was a central check on government as this Chapter shows through numerous examples. The jury might choose to render a special verdict determining the facts and letting the court apply the relevant law. This often happened in routine cases of a technical nature. But the law-determining power of the jury could not be taken from it involuntarily. The power was often utilized in high-visibility cases, e.g. the prosecution of John Peter Zenger for libel, and in ones where the legal issues were clear, e.g. most cases involving misconduct by law enforcement officers. The landmark English habeas corpus decision in Bushell’s Case established that a criminal jury (there, the one trying William Penn for unlawful preaching) could insist on an acquittal regardless of the judge’s view. Moreover, juries could constrain the judges’ sentencing options through fact-finding whose effect was to render the defendant guilty only of a lesser offense (e.g. Colony v. Bullojne (Mass. 1667)). The jury’s role as a constraint on power was eviscerated by subsequent historical developments. The present situation is undesirable and should be reconsidered.

The Criminal Prosecution Strands of Restraints on Government

The legal restraints on public power during the colonial and early national periods included criminal prosecutions of officeholders, which could be pursued by both by private citizens and public prosecutors. We have only episodic knowledge of American private criminal prosecutions and thus cannot confidently generalize about their characteristics, as the Supreme Court seems to have recognized in Robertson v. United States ex rel. Watson (2010). Even today, the law on both the state and federal levels is continuing to evolve. In contrast, ample data shows that public criminal prosecution of officeholders has long been common and well-accepted. This chapter provides some examples from both sides of the Atlantic from the sixteenth through eighteenth century (e.g. prosecution of: London sheriffs Skynner and Catcher for gross abuse of female prisoners; General Thomas Picton, former Governor of Barbados, for ordering torture of native female prisoner to secure confession; North Carolina Secretary of State James Glasgow for issuing fraudulent land warrant; New Hampshire officials for failure to perform statutory duties).

Habeas Corpus With and Without the Writ

This chapter shows through examples that during the colonial and early national periods unlawful confinement could be redressed not only through habeas corpus (e.g., constable Charles Banfild, contemnor Benjamin Whittemore, alleged slave Peter Johnson, impoverished service member George Daze) but also through other common law writs, including certiorari (e.g., contemnor Peter Pearse), supersedeas (e.g. impoverished service member Andrew Downer), prohibition, trespass, and personal replevin (de homine replegiando) (e.g. alleged slave Phebe Nung in action against owners Vincent Tarr and Lois Tarr)—or even by filing a petition without naming a specific writ (e.g., the free black woman Zipporah in “the case of the headless baby” and Elizabeth Bird on behalf of her son, apprentice John Bird).