Habeas Corpus: Rethinking the Great Writ of Liberty

4. Bollman’s Errors—I

Bollman’s Errors—I A. The Background of the First Judiciary Act As Chapter 2 has described, the path of political wisdom in the debates over the Suspension Clause lay in presenting the habeas corpus powers of the federal judiciary as having not been unduly constricted. The path of political wisdom in the debates over the First Judiciary Act lay in presenting the habeas corpus powers of the federal judiciary as having not been unduly enlarged. The reason for this reversal is simple enough. As a result of fears expressed during the ratification process over the expansive Constitutional language regarding federal judicial authority, there was heavy political pressure on the First Congress to limit the scope of the federal court system. Because so many of their constituents “desired significant restrictions upon, or elimination of portions of, national-court jurisdiction,” the challenge facing the members of the First Congress—overwhelmingly ardent Federalists— “was to cater to these demands without seriously crippling the national judiciary .” They accomplished this by writing a statute that “was as astute politically as it was legally. It was an ingenious collection of compromises, using both tight, detailed wording and broad, open-ended wording in different places.”1 In the case of federal habeas corpus for state prisoners, the authors wrote a statute containing the appearance rather than the substance of a limitation on federal court authority. This argument rests upon two pillars. In the present state of our knowledge, the first of these is the more solid, but further scholarship may well change that situation. First, as this chapter argues, assuming that the provisions of the Judiciary Act exhaustively set forth the habeas corpus powers of the federal courts, Bollman misread the statute in a way that wrongly narrowed those powers. Second, there are sound reasons to believe that the assumption just set forth is wrong, and that the framers of the Judiciary Act expected the federal courts to have powers additional to those specifically set forth by statute, 4 29 powers derived from the common law and from state law. The next chapter presents this argument. B. Misinterpreting the Statute: Why the Section 14 Proviso Applies to Judges, Not Courts As already indicated, the first two sentences of Section 14 distinguish between courts (i.e., tribunals composed of a quorum of their members) and judges (i.e., individual members of those tribunals).2 In those two sentences , the section authorizes first courts and then individual judges to issue writs of habeas corpus. It then contains a proviso, clause [4], saying that the power generally extends only to prisoners in federal custody. Bollman stated in dictum that “the proviso extends to the whole section,” i.e., that it limits the power of both courts and individual judges.3 This interpretation of the statute has little to recommend it. Soundly read, the proviso limits judges but not courts. This conclusion finds support in at least six considerations. 1. Language First, while the argument to be drawn from the language of the section is not particularly compelling in either direction, it would certainly be most natural to attach a proviso to the sentence that immediately precedes it, rather than the two that do. In this connection, I invite the reader to examine the Frontispiece, which is a photoreproduction from the collections of the National Archives of a manuscript of Section 14 in the handwriting of Oliver Ellsworth. Although I do not put any heavy weight on this consideration, it was my subjective feeling after seeing the original that the period followed by a dash at the end of the first sentence was intended to definitively close the thought it contained , while the single space underline after the second sentence and before the third is almost in the nature of a ligature. 2. Policy Second, the framers—beginning with Oliver Ellsworth, a leader both in the adoption of the Constitution and in the drafting of the First Judiciary Act who was later to serve as Chief Justice4 —were plainly aware that state 30 | Bollman’s Errors—I authorities could obstruct national policy, especially in foreign affairs. Thus, for instance, in Waters v. Collot,5 the Supreme Court of Pennsylvania refused to order the discharge of the defendant in a state civil suit alleging that, as Governor of Guadeloupe, he had improperly confiscated plaintiff’s brig. (He was eventually freed after the government of France complained to the government...