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The Suspension Clause: English Text, Imperial Contexts, and American Implications

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HALLIDAY/WHITE_BOOK 4/14/2008 7:48 PM THE SUSPENSION CLAUSE: ENGLISH TEXT, IMPERIAL CONTEXTS, AND AMERICAN IMPLICATIONS Paul D. Halliday and G. Edward White∗ INCE at least 2001, the Supreme Court of the United States has S signaled that the jurisprudence of the writ of habeas corpus, and its possible suspension, should be informed by an understanding of the writ and of the Habeas Suspension Clause in the U.S. Constitution “as it existed in 1789.” This Article recovers the historical basis of the Suspension Clause. It begins by exploring, in the English context, previously unexamined court archives and other manuscript sources. It then traces the path of the writ across the British Empire in the years before 1789. Finally, it analyzes early American uses of the writ, including its treatment in the Judiciary Act of 1789 and Chief Justice John Marshall’s decision in Ex parte Bollman. The Article concludes that the writ’s peculiar force was the product of judicial rather than statutory innovation; that judicial authority was premised on the idea that judges enacted powers peculiar to the king—his prerogative—when ∗ Associate Professor of History, Corcoran Department of History, University of Vir- ginia, and David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law. The authors thank the staff of the conservation department of the National Archives in London (Kew) for making it possible to study the recorda files of the Court of King’s Bench, where writs of habeas corpus and their returns were filed. We are grateful to seminar participants at the Georgetown Law Center and the law schools of Harvard University, New York University, and the Universi- ties of Michigan and Virginia for comments on earlier drafts. Thanks in particular to Randy Barnett, Lauren Benton, Mary Bilder, Neil Duxbury, Richard Fallon, Eric Freedman, Richard Friedman, Jack Goldsmith, Thomas Green, Jonathan Hafetz, John Harrison, Daniel Hulsebosch, Charles McCurdy, Caleb Nelson, William Nelson, Gerald Neuman, and James Oldham for their suggestions. Thanks also to Maya Jasanoff, Neeti Nair, and Robert Travers for help with Indian contexts, and to Patrick Griffin, Peter Onuf, and George Van Cleve for help with American ones. Thanks also to Jennifer Goodlatte and the Reference Desk of the University of Virginia School of Law for research assistance, and to Karen Spradlin for help with formatting. Research for this Article was aided by a Frederick Burkhardt Fellowship of the American Council of Learned Societies, a fellowship from the National Endowment for the Humanities, and a Franklin Research Grant from the American Philosophical Soci- ety. Quotations in Law French have been silently translated. Throughout, English spellings and punctuation of the sixteenth to eighteenth centuries have been modern- ized, with the exception of book titles. Unless otherwise indicated, books dated prior to the nineteenth century were published in London. 575 HALLIDAY/WHITE_BOOK 4/14/2008 7:48 PM 576 Virginia Law Review [Vol. 94:575 they used the writ; that this meant that judges focused more on the behavior of jailers rather than the rights of prisoners; that this focus gave the writ its surprisingly wide coverage as to persons and places; and that the implications of this history for current cases involving the claims of Guantanamo Bay detainees are significant. INTRODUCTION................................................................................... 578 A. Habeas Corpus Jurisprudence and the Role of History..... 580 B. Overview of the Analysis ...................................................... 582 I. AN ENGLISH TEXT .......................................................................... 588 A. Evidentiary Problems in Habeas History............................ 588 B. “The privilege . .”................................................................. 593 1. A Prerogative Writ .......................................................... 594 2. Habeas Corpus in Early Modern England: A Primer............................................................................... 598 3. Miracles and the Royal Prerogative............................... 600 4. Justifying Royal Miracles: The Bond Between King and Subjects ..................................................................... 602 5. Habeas Corpus and the King’s Subjects, Natural and Alien.................................................................................. 604 C. “. .of the writ of habeas corpus. .”.................................... 608 1. An Equitable Common Law Writ ................................. 608 2. The Equity of the Writ: Evidence from Records .......... 610 3. A Judicial, Not a Parliamentary Writ ........................... 611 D. “. shall not be suspended . .”........................................... 613 1. The Historical Context of the Suspension Acts............. 613 2. Meanings of “Suspension” ............................................. 614 3. Parliamentary Suspension .............................................. 616 4. Features of the Suspension Statutes ............................... 617 5. Implications...................................................................... 620 E. “. unless when in cases of rebellion or invasion the public safety may require it.”................................................ 624 1. The Judicial Response to Parliamentary Suspension........................................................................ 625 2. The Institutional Implications of Parliamentary Suspensions...................................................................... 627 F. The English Text and Its American Framing: A Preliminary Comment........................................................... 628 II. IMPERIAL CONTEXTS I: HABEAS CORPUS IN THE REALM AND BEYOND................................................................................ 633 HALLIDAY/WHITE_BOOK 4/14/2008 7:48 PM 2008] The Suspension Clause 577 A. Locating the Law of the Land.............................................. 633 B. Defining the King’s Dominions: Hale’s Prerogatives of the King................................................................................... 634 1. The Palatinates................................................................. 637 2. More Remote Regions..................................................... 637 3. The Importance of Hale’s Analysis ............................... 641 III. IMPERIAL CONTEXTS II: AMERICA AND INDIA......................... 644 A. An Imperial Writ, Its Suspension in 1777, and the American Revolution ............................................................ 644 1. The 1777 Suspension Act: Text ...................................... 645 2. The 1777 Suspension Act: Parliamentary Debates....... 646 3. The 1777 Suspension Act: Reactions ............................. 648 4. Edmund Burke’s Intervention........................................ 649 B. The Imperial Writ in India, 1774-1781................................. 651 1. The Governance of India in the Eighteenth Century ... 653 2. Using Habeas Corpus in India....................................... 656 3. The East India Company’s Response............................ 660 4. Parliament’s Response: The Judicature Act of 1781 .... 663 5. The Fracturing of a Unitary Subjecthood ..................... 666 C. Imperial Contexts and the American Framing.................... 667 1. Fracturing Subjecthood in the 1770s and 1780s............ 667 2. The American Constitutional Convention .................... 670 IV. TRANSLATING ENGLISH HABEAS CORPUS JURISPRUDENCE TO AMERICA................................................................................. 671 A. The English Legacy............................................................... 671 B. The Suspension Clause and the Judiciary Act of 1789....... 674 1. Habeas Corpus in North America in the 1770s and 1780s ................................................................................. 674 2. The Constitution and the Judiciary Act of 1789 ........... 676 3. Reading the Texts ............................................................ 677 4. The Jurisprudential Context of the Texts ...................... 679 C. Ex Parte Bollman .................................................................. 683 1. The Facts and Background of Bollman ........................ 683 2. The Jurisprudential Ramifications of Bollman ............ 686 3. Robert Goodloe Harper’s Argument in Bollman I...... 689 4. Marshall’s Response to Harper...................................... 693 D. The Founding History of Habeas Revisited........................ 698 CONCLUSION....................................................................................... 699 A. The Import of History........................................................... 699 HALLIDAY/WHITE_BOOK 4/14/2008 7:48 PM 578 Virginia Law Review [Vol. 94:575 B. American Constitutional Implications................................. 701 C. Concluding Thoughts............................................................ 712 INTRODUCTION “The Privilege of the Writ of Habeas Corpus shall not be sus- pended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”1 After long years of obscurity,2 the Suspen- 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
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