1. A federal district court is without jurisdiction to issue a
writ of habeas corpus if the person detained is not within the
territorial jurisdiction of the court when the petition is filed.
Pp. 335 U. S.
2. The history of the statute (28 U.S.C. § 452) conferring power
on the district courts, "within their respective jurisdictions," to
grant writs of habeas corpus, indicates that conclusion. Pp.
335 U. S.
3. Considerations of policy which might warrant giving the
district courts discretion in this matter are for Congress, not the
courts. Pp. 335 U. S.
4. The jurisdictional requirement that the person for whose
relief a petition for a writ of habeas corpus is intended must be
within the territorial jurisdiction of the district court is one
which Congress has imposed on the power of the district court to
act, and it may not be waived by the parties. P. 335 U. S.
5. Ex parte Endo, 323 U. S. 283
distinguished. P. 335 U. S.
The District Court dismissed petitioners' applications for writs
of habeas corpus to secure their release from detention under
removal orders issued by the Attorney General under a Presidential
Proclamation pursuant to the Alien Enemy Act. The United States
Court of Appeals for the District of Columbia dismissed on appeal.
This Court granted certiorari. 333 U.S. 826. Affirmed,
335 U. S.
Page 335 U. S. 189
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The initial question presented in this case is the one we
reserved in Ex parte Endo, 323 U.
, 323 U. S. 305
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,
petitioners were outside the territorial
confines of the District of Columbia. The order of the District
Court granting the motion was affirmed by the Court of Appeals.
The statute, 28 U.S.C. § 452, provides:
"The several justices of the Supreme Court and the several
judges of the circuit courts of appeal and of the district courts,
within their respective jurisdictions, shall have power to grant
writs of habeas
Page 335 U. S. 190
corpus for the purpose of an inquiry into the cause of restraint
of liberty. A circuit judge shall have the same power to grant
writs of habeas corpus within his circuit that a district judge has
within his district, and the order of the circuit judge shall be
entered in the records of the district court of the district
wherein the restraint complained of is had."
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
48 F. 75; Ex parte Gouyet,
175 F. 230, 233;
United States v. Day,
50 F.2d 816, 817; Jones v.
131 F.2d 853, 854; United States v.
136 F.2d 935, 940. [Footnote 1
] Cf. Sanders v. Allen,
307, 100 F.2d 717; Tippitt v. Wood,
78 U.S.App.D.C. 332,
140 F.2d 689. That is our view.
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
324 U. S.
-468, and cases cited. It is not sufficient, in our
view, that the jailer or custodian alone be found in the
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
Page 335 U. S. 191
that "The person making the return shall at the same time bring
the body of the party before the judge who granted the writ."
See Walker v. Johnston, 312 U. S. 275
would take compelling reasons to conclude that Congress
contemplated the production of prisoners from remote sections,
perhaps thousands of miles from the District Court that issued the
writ. The opportunities for escape afforded by travel, the cost of
transportation, the administrative burden of such an undertaking
negate such a purpose. These are matters of policy which counsel us
to construe the jurisdictional provision of the statute in the
conventional sense even though, in some situations, return of the
prisoner to the court where he was tried and convicted might seem
to offer some advantages.
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,
211; [Footnote 2
] In re
Page 335 U. S. 192
3 Fed.Cas. 332. The bill as introduced in the Senate was thought
to contain an infirmity. The objection was made on the floor that
it would permit
"a district judge in Florida to bring before him some men
convicted and sentenced and held under imprisonment in the Vermont
or in any of the further States."
Cong.Globe, 39th Cong., 2d Sess. 730. As a result of that
objection, Senator Trumbull, who had charge of the bill, offered an
amendment which added the words "within their respective
at 790. That amendment was adopted as
a satisfactory solution of the imagined difficulty. [Footnote 3
Thus, the view that
the jurisdiction of the District Court to issue the writ in cases
such as this [Footnote 4
restricted to those petitioners who are confined or detained within
the territorial jurisdiction of the court is supported by the
language of the statute, by considerations of policy, and by the
legislative history of the enactment. We therefore do not feel free
to weigh the policy considerations which are advanced for giving
Page 335 U. S. 193
courts discretion in cases like this. If that concept is to be
imported into this statute, Congress must do so.
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
303 U. S.
Ex parte Endo, supra,
p. 323 U. S. 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
and 458; Wales v. Whitney, 114 U.
, 114 U. S. 574
Jones v. Biddle, supra; Sanders v. Bennett,
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
pp. 323 U. S.
But see Ex parte Fong Yim,
134 F. 938; Ex parte Ng
135 F. 378.
The principle which governed the decision was stated by Mr.
Justice Washington as follows, 4 Wash.C.C. pp. 211, 212:
"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
those courts which could not easily be adjusted and an oppression
upon suitors too intolerable to be endured."
The statute then read,
"That the several courts of the United States, and the several
justices and judges of such courts, within their respective
jurisdictions, in addition to the authority already conferred by
law, shall have power to grant writs of habeas corpus in all cases
where any person may be restrained of his or her liberty in
violation of the constitution, or of any treaty or law of the
United States. . . ."
14 Stat. 385.
We need not determine the question of what process, if any, a
person confined in an area not subject to the jurisdiction of any
district court may employ to assert federal rights. Cf. Ex
parte Betz, Ex parte Durant, Ex parte Wills, Ex parte Cutino, Ex
parte Walczak, Ex parte McKinley
and Ex parte Murphy,
all reported together. 329 U.S. 672.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE BLACK and MR.
JUSTICE MURPHY join, dissenting.
The jurisdictional turn this case has taken gives it importance
for 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
Page 335 U. S. 194
from a country which takes care for personal liberties, even
when its hospitality may be abused, to one which denied its own
citizens such rights until its structure of tyranny fell in ruins.
Whether or not petitioners have forfeited the right to continued
enjoyment of our institutions and the life they foster, and whether
the forfeiture has been declared and can now be executed pursuant
to lawfully granted authority, are indeed important questions upon
which these petitioners are as much entitled to hearing and
decision as Ludecke. Cf. Ludecke v. Watkins, ante,
335 U. S. 160
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.
, 306 U. S. 26
Ex parte Endo, 323 U. S. 283
323 U. S.
-307; Price v. Johnston, 334 U.
; Wade v. Mayo, 334 U.
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.
Page 335 U. S. 195
All other considerations are put to one side. Neither the
jailer's presence and amenability to process nor his ability, or
even his willingness to produce the body can cure the court's basic
infirmity if, by accident or choice, the locus of confinement
happens to fall beyond the physical line.
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, [Footnote 2/2
] and much of
its historic efficacy may have been destroyed. For if absence of
the body from the jurisdiction is alone conclusive against
existence of power to issue the writ, what of the case where the
place of imprisonment, whether by private or public action, is
unknown? What also of the situation where that place is located in
one district, but the jailer is present in and can be served with
process only in another? [Footnote
] And if the place of detention lies wholly outside the
territorial limits of any federal jurisdiction, although the person
or persons exercising restraint are clearly within reach of such
authority, is there to be no remedy, even though it is American
citizens who are wrongfully deprived of their liberty and Americans
answerable to no other power who deprive them of it, whether
purporting to act officially or otherwise? In all these cases, may
the jailers stand in defiance of federal judicial power, and plead
either the accident of the locus of detention outside the court's
territorial limitations, or their own astuteness in so selecting
the place, to nullify judicial competence?
Page 335 U. S. 196
To none of these questions does the Court give answer, although
it purports to reserve decision concerning one of them. Yet, in
all, if power to act rests solely on the body's presence, its
absence [Footnote 2/4
] will render
the court impotent even though the jailer is within grasp of its
process for compelling production and, it may be, beyond reach of
the like process of any other court. For, upon the test prescribed,
there must be conjunction of the body's presence and the jailer's
for the writ to issue. On the other hand, if relief can be given in
such cases, where the conjunction does not exist, then it is not
true that the federal courts have been stripped of power to afford
it only when the body is held within the limits of their
territorial jurisdictions, and the Court's grounding of this
decision would seem neither necessary nor proper for disposition of
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,
"The important fact to be observed in regard to the mode of
procedure upon this writ is that it is directed to, and served
upon, not the person confined, but his jailer. It does not reach
the former except through the latter. The officer or person who
serves it does not unbar the prison doors and set the prisoner
free, but the court relieves him by compelling
Page 335 U. S. 197
the oppressor to release his constraint. The whole force of the
writ is spent upon the respondent. . . . The place of confinement
is therefore not important to the relief, if the guilty party is
within reach of process, so that, by the power of the court, he can
be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement's being beyond the
limits of the state, except as greater distance may affect it. The
important question is where is the power of control exercised?
Page 335 U. S. 198
In this historic view, the proceeding in habeas corpus is
analogous jurisdictionally neither to one in rem
quasi in rem
nor to the anomalously restricted personal
action, as developed in the common law, of trespass to reality.
] Yet the Court's
decision gives to this prime remedy for invasion of personal
liberty an availability in the inferior federal courts hardly
greater than those highly restricted proceedings possess,
jurisdictionally speaking, for purposes remedial of injuries to
property. Those courts indeed are deprived of powers in habeas
corpus which, as Judge Cooley pointed out in relation to state
tribunals, [Footnote 2/7
] they may
constantly exert with extraterritorial effects in the exercise of
their general jurisdiction in equity.
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
Page 335 U. S. 199
upon the territorial element in jurisdictional matters of this
sort. The question is whether the Attorney General is a proper
party respondent. The answer turns on whether the petitioners are
in his custody, [Footnote 2/8
thus are subject to his power of production. In my opinion, they
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; [Footnote 2/10
Page 335 U. S. 200
he claims to have complete discretion to decide whether or not
removal shall be directed. In view of his all-pervasive control
over their fortunes, it cannot be doubted that he is a proper party
to resist "an inquiry into the cause of restraint of liberty" in
their cases. [Footnote 2/11
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,
] nor does he claim
immunity in this respect.
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. [Footnote 2/13
Unless, therefore, power is totally wanting by reason of
petitioners' absence from the district, there is no insuperable
obstacle to its exercise in this case. And, as to this, the
Attorney General does not urge, he merely suggests, in view of
certain dicta and decisions, see 335
fn2/18|>note 18, that the power may be lacking for
Page 335 U. S. 201
If so, this can be only because the statutory wording "within
their respective jurisdictions" compels the Court's conclusions.
] The language,
however, does not even purport to define "their respective
jurisdictions" in terms of where the body restrained is held.
Indeed, it gives no indication that absence of the persons detained
from the district which has personal jurisdiction of their
custodian creates an insuperable jurisdictional defect, with the
necessary consequence that, if he is beyond reach of process issued
by the courts where the body is held, there can be no remedy by
habeas corpus in any federal court. On the contrary, the wording of
the statutory phrase is as consistent with regarding "their
respective jurisdictions" as attaching when the court acquires
jurisdiction over the jailer by service of process within the
limits of its territorial jurisdiction, even though the place of
detention is elsewhere, as it is to invert those factors of
territorial limitation in the manner of the Court's
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,
Page 335 U. S. 202
in issuing the writ, by requiring the production of persons
detained in distant places, with the effect of maladjustment in the
exercise of authority as among the different federal courts. But it
does not follow, as the Court concludes, that it sought to solve
those problems in a manner that would deprive all courts of power
to issue the writ except those sitting in the place of detention.
As will appear, Congress was dealing with an even broader
possibility for abuse, and, while it sought to limit authority to
issue the writ, there is nothing in the statutory language, the
legislative history, or the problem of statutory authorization the
amendment was introduced to solve which shows that so narrow and
rigid a restriction was contemplated.
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.
, 324 U. S.
-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
Page 335 U. S. 203
power of control is exercised within that District. We have no
problem of issuing process to be served outside the District of
Columbia such as might result in
"a clashing of jurisdiction between those courts, which could
not easily be adjusted, and an oppression upon suitors, too
intolerable to be endured,"
and with which alone, in my opinion, the statutory phrase sought
to deal. [Footnote 2/15
When the cases where both the custodian and his prisoner are
outside the territorial jurisdiction of the court [Footnote 2/16
] are separated from those where the
custodian is within the jurisdiction though the prisoner is
elsewhere, [Footnote 2/17
weight of authority in the lower federal courts is opposed to the
conclusion reached to day. [Footnote
] With the former class,
Page 335 U. S. 204
this case is not concerned. But, for reasons yet to be stated,
it is with that class alone, in my opinion, that the phrase "within
their respective jurisdictions" sought to deal. Moreover, other
authorities have generally taken the position that jurisdiction
over the custodian is sufficient regardless of the location of the
party restrained. [Footnote 2/19
In the light of this prevailing conception of the problem, we turn
to the Court's reasons for departing from it.
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. [Footnote 2/20
] This was the possibility that the bill
would confer power upon district judges to issue process against
jailers in remote districts, and thus create departure from the
usual rule, in habeas corpus cases as in others, that process does
not run beyond the territorial jurisdiction of the issuing court.
Page 335 U. S. 205
wished to make sure that the bill would not have that effect.
And the underlying assumption of the entire discussion was that,
without the limitation proposed, the bill's unlimited language
might be taken to give authority to districts courts to issue
process to run throughout the country, comparable, as was said, to
that exercised by justices of this Court, or even beyond its
borders, [Footnote 2/21
] and thus
to bring before them jailers without regard to distance.
It was this possibility which led to the proposal and acceptance
of the amendment, not that a jailer within the court's
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.
] It is this
crucial fact which the Court's opinion and ruling ignore.
Page 335 U. S. 206
Confining the running of the court's process to its territorial
jurisdiction is, of course, a very different thing from confining
its jurisdiction to cases in which the prisoner's body is located
within those limits. Most importantly, it is one much less
destructive of the writ's efficacy in cases where it may be most
needed, and of the historic conception of the nature and scope of
the proceeding. The amendment's terms are completely satisfied, are
given their full and intended effect, if they are limited to the
former object. So taken, they do no more than prevent the section's
otherwise unlimited phrasing from authorizing process to run
without territorial limitation, cf. Georgia v. Pennsylvania R.
at 324 U. S.
-468, and authorities cited; they do not trench upon
the writ's classic availability or its utility as a prime safeguard
of freedom. There is no hint in either the amendment's wording or
in its legislative history that it had any such restrictive purpose
or effect. The entire measure was adopted, in fact, not to reduce,
but to expand, the writ's availability. [Footnote 2/23
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
Page 335 U. S. 207
of the writ's availability and adaptability to all the varying
conditions and devices by which liberty may be unlawfully
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,
269, 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. [Footnote 2/24
Page 335 U. S. 208
The Court has reserved decision upon cases where the place of
confinement is not within the territorial jurisdiction of any
court. [Footnote 2/25
] And it has
sought to distinguish Ex parte Endo, supra.
I agree that
the reservation and the distinction should be made. But I think the
fact they have been found necessary goes far to destroy the
validity of the present decision's grounding.
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
Page 335 U. S. 209
Wills; Ex parte Cutino; Ex parte Walczak; Ex parte McKinley;
Ex parte Murphy,
329 U.S. 672. Some of those petitioners were
citizens of the United States, some were civilians, others members
of the armed forces. In some instances, the detention was pursuant
to sentences imposed by military tribunals for alleged offenses,
death being the penalty in one. In other cases, the petitioners
claimed to be confined for indefinite periods without charge and
The jurisdictional questions raised by those petitions are of
profound importance. [Footnote
] And if any of the reasons advanced for today's decision
is deemed controlling, all such questions will be resolved in the
future against such petitioners. Perhaps when those cases arise,
the Court will ignore the reasons relied on today, just as today it
ignores the reasoning relied on in Ex parte Endo.
absence of the body detained from the territorial jurisdiction of
the court having jurisdiction of the jailer creates a total and
irremediable void in the court's capacity to act, what lawyers call
jurisdiction in the fundamental sense, then it is hard to see how
that gap can be filled by such extraneous considerations as whether
there is no other court in the place of detention from which remedy
might be had and whether a rule of this Court, Rule 45(1), can
override a basic jurisdictional limitation Congress has
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
Page 335 U. S. 210
District of Columbia with applications for habeas corpus from
the country at large. It is entirely another to tie their hands,
and those of all other inferior federal courts, with a strict
jurisdictional limitation which can only defeat the writ's efficacy
in many cases where it may be most needed.
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. Kahanamoku, 327 U.
; Ex parte
4 Wall. 2; In the Matter of
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 personal records in order,
cf. Hirabayashi v. United States, 320 U. S.
; Ex parte Endo, supra;
or possibly, though
it is to be hoped not often, even from willful 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 unwarrant 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.
Cf. Sunal v. Large, 332 U. S. 174
dissenting opinions at 332 U. S. 184
332 U. S.
Congress has not given the District Court power to direct
service of the writ to be made outside the limits of the state in
which the court sits, see United States ex rel. Corsetti v.
Commanding Officer of Camp Upton,
3 F.R.D. 360, and it is at
least questionable whether service on the turnkey would constitute
service on the custodian. See United States ex rel. Goodman v.
152 F.2d 841.
Further questions necessarily arise concerning matters of
pleading and proof of presence necessary to establish the
In the Matter of Jackson,
15 Mich. 417, 439, 440.
See Ex parte Endo,
323 U.S. at 323 U. S. 306
At a later point, Judge Cooley's opinion continued:
"There is no inherent difficulty in the case, and the court of
chancery, in the exercise of its power to compel specific
performance, frequently exerts an authority over a subject matter
in a foreign jurisdiction similar to that which is sought for here.
I think the case presented by the petition is one in which we can
give belief, and the decision in United States v. Davis,
Cranch C.C. 622, is in point, and will warrant it. There are no
conflicting decisions. The incidental remarks which have been made
in some cases about the remedy's applying where the imprisonment is
within the state seem to me of no significance. In none of those
cases was attention directed to this particular point.
(Emphasis added.) 15 Mich. at 441.
Some of the cases following this view are Emerson v.
107 Colo. 83, 108 P.2d 866; Crowell v.
190 Ga. 501, 9 S.E.2d 628; Shaw v. Shaw,
S.C. 300, 103 S.E. 526; Queen v. Barnardo,
24 Q.B.D. 283;
In re Matthews,
12 I.R.C.L. 233, and see
cited in Ex parte Endo,
323 U.S. at 323 U. S. 306
The same position is taken in Church, Habeas Corpus (2d Ed.) §
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 335
fn2/16|>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 the Matter of Samuel W.Jackson,
15 Mich. 417,
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. 323
283, 323 U. S.
Restatement, Conflict of Laws, § 624 Special Note
(Tent.Draft No. 5, 1929); see also
Proposed Final Draft
No. 2, Question Suggested for Discussion, § 624; Note, 28 Ky.L.J.
The statute provides that the "writ shall be directed to the
person in whose custody the party is detained." Rev.Stat. § 755, 28
U.S.C. § 455.
cases cited in notes 335
fn2/5|>5 and 335
The Executive Proclamation under which the Attorney General was
acting provides that all alien enemies
"who shall be deemed by the Attorney General to be dangerous to
the public peace and safety of the United States because they have
adhered to the aforesaid enemy governments or to the principles of
government thereof shall be subject upon the order of the Attorney
General to removal from the United States, and may be required to
depart therefrom in accordance with such regulations as he may
Proclamation 2655, 10 Fed.Reg. 8947. This proclamation was
issued pursuant to the authority conferred by the Alien Enemy Act
of 1798, 1 Stat. 577.
Furthermore, as the Solicitor General points out in his brief,
"no reason why the United States cannot waive this particular
objection, since it has the effect merely of permitting suit
against one Government officer rather than another."
Fed.Rules Civ.Proc., 28 U.S.C. following§ 723c,
Upon the facts, the situation is one in which the Government
quite properly desires a speedy determination upon the merits in
order to avoid the further delay necessarily incident to reaching
them by further proceedings. Whether from the viewpoint of
establishing the Government's power to remove the petitioners or of
terminating the restraint upon their liberties, expedition of the
determination is highly desirable.
The 1925 amendment to the statute providing that
"the order of the circuit judge shall be entered in the records
of the district court of the district wherein the restraint
complained of is had"
does not limit jurisdiction to grant the writ. See Ex parte
Endo, 323 U. S. 283
323 U. S. 307
The provision is a mere recording requirement applicable in terms
only to circuit judges acting individually. Appropriately, it does
not apply to courts, as distinguished from judges, because court
orders would be recorded by routine procedure, whereas an order
issued by a judge in vacation would require special treatment.
Since the application in this case was made to a court in session,
the requirement does not apply here. But even if it did apply, and
even if a recording provision enacted in 1925 could be taken to
relate back to the amendment of 1867 to give meaning to the words
"within their respective jurisdictions," the wording "the district
wherein the restraint complained of is had" could be taken as
readily to mean "wherein the power of control is exercised" as
"wherein the body is located." Cf.
the cases cited in
fn2/5|>5 and 335
See Ex parte Graham,
4 Wash.C.C. 211-212. See
note 2 of the Court's opinion
In that case, as in most of the cases cited by the Court, the
custodian and the prisoner were both outside the territorial
jurisdiction of the court. See
fn2/16|>16, 17, and 18.
Ex parte Graham,
4 Wash.C.C. 211; In re Boles,
48 F. 75; Ex parte Gouyet,
175 F. 230; Ex parte Yee
33 F.2d 360; United States v. Day,
816 (in this case the custodian did appear in court, but only
specially to challenge its jurisdiction); Jones v. Biddle,
131 F.2d 853; United States v. Schlotfeldt,
United States v. Davis,
5 Cranch C.C. 622; In re
3 Fed.Cas. 332, No. 1,387; McGowan v. Moody,
22 App.D.C. 148; Ex parte Fong Yim,
134 F. 938; Ex
parte Ng Quong Ming,
135 F. 378; Sanders v. Allen,
App.D.C. 307, 100 F.2d 717. See Tippitt v. Wood,
U.S.App.D.C. 332, 140 F.2d 689; Burns v. Welch,
U.S.App.D.C. 384, 159 F.2d 29.
Of the cases cited in 335
fn2/17|>note 17, only McGowan v. Moody
In re Bickley
are in accord with today's decision. And
even those two cases are distinguishable. In McGowan v.
the principal ground of decision seems to have been
that the prisoner was not in the actual custody of the Secretary of
the Navy. See
22 App.D.C. at 163, 164. Moreover, the
authority of that case is questionable in view of later decisions
by the same court, see 335
fn2/24|>note 24 infra.
Although In re
does rest on the ground that the court was not
"competent to give the relief asked for," and uses the term
"jurisdiction," it is well known that, at that time, the term
"jurisdiction" was often used in the sense of "venue," and, since
the custodian did not waive the defect, it was not necessary for
the court to reach the precise issue adjudicated today. In fact,
the opinion intimates that the result would have been different if
the point had been "freely conceded." See
The bill, prior to addition of the phrase, read pertinently as
"Be it enacted, &c.,
That the several courts of the
United States and the several justices and judges of such courts,
in addition to the authority already conferred by law, shall have
power to grant writs of habeas corpus in all cases where any person
may be restrained of his or her liberty in violation of the
Constitution or of any treaty or law of the United States. . .
Cong.Globe, 39th Cong., 2d Sess. 730.
When the amendment "within their respective jurisdictions" was
suggested, Senator Johnson commented on it as follows:
"The amendment proposed by the honorable chairman is entirely
satisfactory to me. I suggested the necessity of an amendment the
other day because I know that the date Chief Justice of the United
States decided that, under the laws as they stand, process issued
by a judge of the Supreme Court in cases where those judges have a
right to issue process extends all over the Union. That, I am
satisfied, might lead to a practical evil. The amendment proposed
by the honorable chairman is entirely satisfactory to me, and
removes that difficulty."
Cong.Globe, 39th Cong., 2d Sess. 790.
The discussion of the amendment in the Senate was limited to the
statements by Senator Johnson, quoted in part in 335
fn2/21|>note 21, and the remarks of Senator
Trumbull, who introduced the amendment as a result of Senator
Johnson's statement. See
Cong.Globe, 39th Cong., 2d Sess.
The Act of 1867 was an important liberalizing measure in two
respects. Substantively, the statute authorized the issuance of the
writ to relieve any detention in violation of the Constitution or
laws of the United States. Procedurally, the remedy was extended to
all persons in state, as well as in federal, custody. See
Note, 61 Harv.L.Rev. 657, 659. "[N]o indication has been found of
intent to narrow the act. . . ." Ibid.,
The District of Columbia Reformatory is located at Lorton,
Virginia, and the District Workhouse is at Occoquan, Virginia.
Persons are confined in these institutions for violations of the
District of Columbia Code. The official in charge of both
institutions is a resident of the District, and maintains his
headquarters in the District. For obvious administrative reasons,
the Court of Appeals of the District of Columbia has therefore held
that applications for habeas corpus may be filed in courts of the
District by inmates of those institutions even though they are
confined beyond its territorial jurisdiction. Sanders v.
69 App.D.C. 307, 100 F.2d 717. See Burns v.
81 U.S.App.D.C. 384, 159 F.2d 29. Under today's ruling,
such petitions must hereafter be filed in the Virginia federal
court, to the inconvenience of the parties and of the court, which
must to a certain extent apply law peculiar to the District of
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,
307, 100 F.2d 717, 719, but cf.
or, at least by
implication, on the ground that Secretary Moody was not a proper
party respondent. See Sanders v. Bennett,
32, 148 F.2d 19, 20, n. 2. Both of these grounds indicate that the
Court of Appeals no longer regards McGowan v. Moody
authority for the proposition for which the Court cites it
The logical inconsistency of this reservation with the decision
is highlighted by the citation, apparently with approval, of
McGowan v. Moody,
22 App.D.C. 148, where the court
expressly assumed that, if it had no jurisdiction, there would be
no tribunal in which relief might be had. 22 App.D.C. at 158. In
that case, the petitioner sought relief against the Secretary of
the Navy in behalf of a Marine imprisoned on Guam.
Wolfson, Americans Abroad and Habeas Corpus, 9