The initial question presented in this case is the one we reserved in Ex parte Endo, 323 U.S. 283, 305, viz. whether the presence within the territorial jurisdiction of the District Court of the person detained is prerequisite to filing a petition for a writ of habeas corpus.
Petitioners are some 120 Germans who are being held at Ellis Island, New York, for deportation to Germany. Their deportation has been directed under removal orders issued by the Attorney General who has found that each of them is dangerous to the public peace and safety of the United States because he has adhered to a government with which the United States is at war or to the principles thereof. These removal orders were issued under Presidential Proclamation 2655 of July 14, 1945 (10 Fed. Reg. 8947) pursuant to the Alien Enemy Act of 1798, R.S. § 4067, 50 U.S.C. § 21. The orders are challenged by these petitions for writs of habeas corpus on several grounds, the principal one being that all of them exceed the statutory authority in that they were issued after actual hostilities with Germany ceased.
The petitions were filed in the District Court for the District of Columbia and alleged that petitioners were confined at Ellis Island, New York, and are "subject to the custody and control" of the Attorney General. Respondent moved to dismiss because, inter alia, petitioners were outside the territorial confines of the District of Columbia. The Court of Appeals dismissed an appeal from the order of the District Court granting the motion.
The statute, 28 U.S.C. § 452, provides:
The question at the threshold of the case is whether the words "within their respective jurisdictions" limit the district courts to inquiries into the causes of restraints of liberty of those confined or restrained within the territorial jurisdictions of those courts. There are few cases on all fours with the present one, the precise question not having frequently arisen in the lower federal courts. But the general view is that their jurisdiction is so confined. McGowan v. Moody, 22 App. D.C. 148, 158 et seq.; In re Bickley, 3 Fed. Cas. 332. And see In re Boles, 48 F. 75; Ex parte Gouyet, 175 F. 230, 233; United States v. Day, 50 F.2d 816, 817; Jones v. Biddle, 131 F.2d 853, 854; United States v. Schlotfeldt, 136 F.2d 935, 940.
We start from the accepted premise that apart from specific exceptions created by Congress the jurisdiction of the district courts is territorial. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 467-468, and cases cited. It is not sufficient in our view that the jailer or custodian alone be found in the jurisdiction.
Although the writ is directed to the person in whose custody the party is detained, 28 U.S.C. § 455, the statutory scheme contemplates a procedure which may bring the prisoner before the court. For § 458 provides
The history of the statute supports this view. It came into the law as the Act of February 5, 1867, 14 Stat. 385. And see Act of August 29, 1842, 5 Stat. 539. Prior to that date it was the accepted view that a prisoner must be within the territorial jurisdiction of the District Court in order to obtain from it a writ of habeas corpus. See Ex parte Graham, 4 Wash. C.C. 211;
Respondent is willing to waive the point, so that we may make a decision on the merits. But the restriction is one which Congress has placed on the power of the District Court to act. Hence it may not be waived by the parties. United States v. Griffin, 303 U.S. 226, 229.
Ex parte Endo, supra, p. 305, is not opposed to this view. In that case petitioner at the time suit was instituted was within the territorial jurisdiction of the habeas corpus court but had subsequently been removed to a different district and circuit. We held, in conformity with the policy underlying Rule 45 (1) of the Court, that jurisdiction of the District Court was not defeated in that manner, no matter how proper the motive behind the removal. We decided that in that situation the court can act as long as it can reach a person who has custody of the petitioner.
Since there is a defect in the jurisdiction of the District Court which remains uncured, we do not reach the question whether the Attorney General is the proper respondent (see §§ 455 and 458; Wales v. Whitney, 114 U.S. 564, 574; Jones v. Biddle, supra; Sanders v. Bennett, 80 U.S. App. D.C. 32, 148 F.2d 19) and, if not, whether the objection may be waived, as respondent is willing to do. Cf. Ex parte Endo, supra, pp. 305-307.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK and MR. JUSTICE MURPHY join, dissenting.
The jurisdictional turn this case has taken gives it importance far beyond the serious questions tendered on the merits of petitioners' application. They are alien enemies interned during the war as dangerous to the nation's safety. They now seek to avoid deportation
But the Court, putting them aside for these petitioners, cuts much more sweepingly at the roots of individual freedom by its decision upon the jurisdictional issue than could any disposition of those issues. The decision attenuates the personal security of every citizen. So does any serious contraction in the availability of the writ of habeas corpus. For the first time this Court puts a narrow and rigid territorial limitation upon issuance of the writ by the inferior federal courts. Heretofore such constrictive formulations have been avoided generally, even assiduously, out of regard for the writ's great office in the vindication of personal liberty. See, e.g., Bowen v. Johnston, 306 U.S. 19, 26-28; Ex parte Endo, 323 U.S. 283, 304-307; Price v. Johnston, 334 U.S. 266; Wade v. Mayo, 334 U.S. 672.
But today's ruling, departing from that policy, is that the writ can issue only when the place of confinement lies within the limits of the court's territorial jurisdiction. That purely geographic fact and it alone determines the court's competence to act. And this is not merely as a matter of venue or of accommodation in the exercise of authority among tribunals of coordinate power, allowing room for some adaptability to varying circumstances. It is one crucial between competence to act and total impotence.
If this is or is to become the law, the full ramifications of the decision are difficult to foresee. It would seem that a great contraction of the writ's classic scope and exposition has taken place,
By thus elevating the place of physical custody to the level of exclusive jurisdictional criterion, the Court gives controlling effect to a factor which generally has been regarded as of little or no importance for jurisdictional purposes or for the functioning of the writ in its great office as historically conceived. Perhaps the classic exposition of its nature and availability, as also of the character of the proceeding, is that of Judge Cooley, quoted in part with approval by our opinion in Ex parte Endo, supra:
This exaltation of the territorial element in jurisdiction, with such constrictive and potentially destructive consequences, the Court makes by reason of its conception of the meaning of the statutory phrase, "within their respective jurisdictions," 28 U.S.C. § 452; the legislative history of its insertion; and certain considerations of policy, relating especially to the production of persons detained by federal penal or other authorities in courts distant from the places of detention and thought to require the narrow reading given. I do not think these considerations compel so rigid a jurisdictional significance, or that this is necessary to avoid the evils the Court thus seeks to escape.
The jurisdictional problem as presented by the facts involves two questions. The first, the Court does not reach. But it is one I think basic to consideration of the other, a difference no doubt due to different emphasis
The same principle which forbids formulation of rigid jurisdictional limitations upon the use of this prerogative writ in other respects, inconsistent with its availability for performing its office in varying circumstances, forbids limiting those who may be called upon to answer for restraints they unlawfully impose by technical niceties of the law of principal and agent, superior or subordinate in public authority, or immediacy or remoteness of the incidence of the authority or power to restrain. Jurisdictionally speaking, it is, or should be, enough that the respondent named has the power or ability to produce the body when so directed by the court pursuant to process lawfully issued and served upon him.
There can be no question of the Attorney General's power to produce the petitioners in this case. For he is in complete charge of the proceedings leading up to the order directing their removal from the country;
Moreover, there can be no doubt of the Attorney General's amenability, in his official capacity, to process in the District of Columbia searching his official acts for lawful authority,
The case therefore is one in which every requisite of jurisdiction, as the writ has been conceived historically, is present. The person having custody of the body has not only the ability but the authority to produce it. He is within reach of the court's process and amenable to it for that purpose. Indeed in this case he is willing to respond and, to that end, to waive any objection he might be entitled to make to the court's exercise of its power.
It is true that Congress, when it added the phrase, was concerned with the problem, or rather the possibility, that the inferior federal courts might abuse their power,
To put the matter in proper perspective, before turning to the legislative history and the precise problem with which it was concerned, it is important to emphasize that the alternative to the Court's holding is not that petitioners have a right to be heard in a distant court whenever the Attorney General may there be served. Rather the alternative is that their absence from the district is a circumstance which normally would induce the court to exercise its discretion to decline jurisdiction, but which may be disregarded in exceptional circumstances if the respondent so desires or if the court finds that justice in the particular circumstances so demands.
Even though we start from the accepted premise that for this purpose the jurisdiction of the district court is territorial, see Georgia v. Pennsylvania R. Co., 324 U.S. 439, 467-468, we should also recall, as has already been stated, that the Attorney General is within the territorial jurisdiction of the court in which these proceedings were instituted. It is within his power to terminate the restraint of petitioners' liberty without leaving the District of Columbia. In the sense stated by Judge Cooley, his
When the cases where both the custodian and his prisoner are outside the territorial jurisdiction of the court
Principal reliance is placed on the legislative history of the 1867 amendment. But this history neither requires nor, in my opinion, justifies the Court's view. It consists in a short statement by Senator Johnson, followed by brief colloquy, which led to insertion of the phrase. Cong. Globe, 39th Cong., 2d Sess. 730, 790, 899. It seems quite clear that he was concerned about a wholly different problem, arising from the bill's broad wording before the limiting phrase was introduced.
It was this possibility which led to the proposal and acceptance of the amendment, not that a jailer within the court's jurisdiction, i.e., in reach of its process issued and served within its territorial jurisdiction, might detain the body outside those limits and be required to bring it before the court when ordered. Indeed there is not a word in the legislative discussion about the latter situation, or to suggest that it was the cause either of concern or of the amendment's inclusion. Neither Senator Johnson nor anyone else seems to have had in mind the situation where the locus of detention is in one jurisdiction and the jailer is present in another, amenable to its process.
In view of this history and its effect for the statute's meaning and purpose, the considerations of policy and convenience upon which the Court relies to bolster its view can have no proper influence to give that view validity. Indeed, if the legislative history were less clear than it is against the Court's conception, a due and hitherto traditional regard for the writ's high office should dictate resolving any doubt, as between the possible constructions, against a jurisdictional limitation so destructive
Especially is this true since no such rigid restriction is necessary to provide adequate safeguard against the evils the Court envisages. It seems to proceed upon the assumption that if jurisdiction in the District of Columbia were admitted, federal prisoners thousands of miles away would have an unqualified right to invoke it.
On the contrary, if the Attorney General should not waive objection to proceeding in the District of Columbia as he has done here and there were no compelling reason for overriding his objection, such as the absence of any possible remedy elsewhere, the courts of the District clearly would have discretion to decline the exercise of their jurisdiction. Indeed, in the vast majority of such cases, where remedy would be available in a more convenient forum, it would be their duty to do so and an abuse of discretion, subject to correction upon review, for them to compel the petitioner's production in such an inconvenient or otherwise inappropriate forum. See Beard v. Bennett, 114 F.2d 578, 580-581.
In this view it would be only the exceptional case of detention outside the District and pursuant to authority independent of its affairs, which would require or indeed permit the exercise of jurisdiction by its courts. On the other hand, in the situations where the District has a peculiar interest that its courts shall have power in such cases, namely, those affecting its penal institutions located outside its borders, they would not be deprived of jurisdiction, as the present decision consistently applied would seem to necessitate.
Cases of the type reserved have arisen recently on application for original writs of habeas corpus by petitioners detained by the military authorities in Germany and Japan. Ex parte Betz; Ex parte Durant; Ex parte
The jurisdictional questions raised by those petitions are of profound importance.
In any event, I cannot subscribe to the view that Congress has laid down a jurisdictional criterion so capricious in its consequences or so destructive of the writ's historic nature, scope and availability. As was stated at the beginning, the full ramifications of the decision are difficult to foresee. It is one thing to lay down a rule of discretion adequate to prevent flooding the courts of the
Not the least important of these may be instances arising in the future where persons are wrongfully detained in places unknown to those who would apply for habeas corpus in their behalf. Without knowing the district of confinement, a petitioner would be unable to sustain the burden of establishing jurisdiction in any court in the land. Such a situation might arise from military detention, cf. Duncan v. Kohanamoku, 327 U.S. 304; Ex parte Milligan, 4 Wall. 2; In the Matter of Samuel Stacy, 10 Johns. 328; or as a result of mass evacuation of groups from a given area in time of emergency with consequent disruption of the means of keeping personnel records in order, cf. Hirabayashi v. United States, 320 U.S. 81; Ex parte Endo, supra; or possibly, though it is to be hoped not often, even from wilful misconduct by arbitrary executive officials overreaching their constitutional or statutory authority. These dangers may seem unreal in the United States. But the experience of less fortunate countries should serve as a warning against the unwarranted curtailment of the jurisdiction of our courts to protect the liberty of the individual by means of the writ of habeas corpus.
Accordingly, I dissent from the conclusion and judgment of the Court. Since I think the District Court had jurisdiction and since also the Attorney General has waived any objection to its exercise in this case, for reasons certainly not inadequate, I am also of the view that the case should be decided on the merits.
"It is admitted that these courts, in the exercise of their common law and equity jurisdiction, have no authority, generally, to issue process into another district, except in cases where such authority has been specially bestowed by some law of the United States. The absence of such a power would seem necessarily to result from the organization of the court of the United States, by which two courts are allotted to each of the districts into which the United States are divided, the one denominated a district, and the other a circuit court. This division and appointment of particular courts for each district, necessarily confines the jurisdiction of these local tribunals within the limits of the respective districts within which they are directed to be holden. Were it otherwise, and the court of one district could send compulsory process into any other, so as to draw to itself a jurisdiction over persons and things without the limits of its district, there would result a clashing of jurisdiction between the different courts not easily to be adjusted, and an oppression upon suitors too intolerable to be endured."
Some of the cases following this view are Emerson v. Guthner, 107 Colo. 83; Crowell v. Crowell, 190 Ga. 501; Shaw v. Shaw, 114 S. Car. 300; Queen v. Barnardo, 24 Q.B.D. 283; In re Matthews, 12 Ir. C.L. 233; and see cases cited in Ex parte Endo, 323 U.S. at 306. The same position is taken in Church, Habeas Corpus (2d ed.) § 109.
In the Endo case, although reserving the precise issue now decided, we said: "There are expressions in some of the cases which indicate that the place of confinement must be within the court's territorial jurisdiction in order to enable it to issue the writ. See [cases cited in note 16 infra]. But we are of the view that the court may act if there is a respondent within reach of its process who has custody of the petitioner. As Judge Cooley stated in In the Matter of Samuel W. Jackson, 15 Mich. 417, 439-440:" Then followed the matter quoted in the text ending with the words, "The whole force of the writ is spent upon the respondent;" together with citation of other authorities to similar effect. 323 U.S. 283, 306.
It is of interest that the Court of Appeals reached this result in the face of the apparently inconsistent earlier holding in McGowan v. Moody, 22 App. D.C. 148. That case has been explained either on the ground that even though the court had jurisdiction it properly declined to exercise it because relief was available elsewhere, see Sanders v. Allen, 69 App. D.C. 307, 309, 100 F.2d 717, 719, but cf. note 25 infra, or, at least by implication, on the ground that Secretary Moody was not a proper party respondent. See Sanders v. Bennett, 80 U.S. App. D.C. 32, 33, 148 F.2d 19, 20, n. 2. Both of these grounds indicate that the Court of Appeals no longer regards McGowan v. Moody as authority for the proposition for which the Court cites it today.