RESPONDENT: United States
LOCATION: Trailways Bus Terminal
DOCKET NO.: 72
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 364 US 611 (1961)
ARGUED: Nov 16, 1960
DECIDED: Jan 09, 1961
Facts of the case
Media for Carbo v. United StatesAudio Transcription for Oral Argument - November 16, 1960 (Part 1) in Carbo v. United States
Audio Transcription for Oral Argument - November 16, 1960 (Part 2) in Carbo v. United States
A. L. Wirin:
May it please the Court.
I was beginning to explore for and with the Court the meaning of the phrase “within their respective jurisdictions” which is in the present habeas corpus statute as it was codified in 1948.
And I'm about to make the argument that the debates in Congress though I realize how -- how cut race inferences from these debates may often be do seem to us at least to indicate that the phrase within their respective jurisdictions means within territorial jurisdictions.
The phrase, which appears in the 1948 revision, first appeared on the statutes -- in the statutes of the United States in 1867 and that appears on the second side, second sheet and first column again, actually our printer wasn't too active.
This first column continued there, but be that as it may, Your Honors will note as the second item there on the second ply sheet 14 statute 385, 1867 and the phrase that appears has an amendment to the habeas corpus statute which originally was adopted in 1789 which we have referred to in the bottom of that column, it appears in the 1867 statute; now a word as to our understanding of what happened in 1867.
Congress was considering an amendment to the habeas corpus statue of 1789 to add a provision that courts may inquire into detention and to determine whether or not the detention violated the Constitution or the laws of United States, a provision which is in Subsection 3 of the present codification that came into the statue, into the law, into the habeas corpus statute in 1867, but that's not the point of my argument.
While Congress was considering making some amendment to the habeas corpus statute, as we set forth in our -- the same reply brief on page 11, Senator Johnson of Maryland, page 11 at the bottom page in the footnote and then page 12 also.
Senator Johnson, one of the senators, objected to the bill as then drafted on the ground that it would commit a judge of a District Court to have ordered brought before him a person from anywhere in the United States or substantially to that effect.
A judge of the United States Court in one part of the union would be authorized to issue a writ of habeas corpus to bring before him a person confined in another and remote part of the union.
And Senator Trumbull, who was in-charge of the bill, then proposed an amendment to the bill as then drafted, the amendment consisting of the phrase “within their respective jurisdictions” and asked the objecting senator whether or not that amendment or that provision wouldn't satisfy the objecting senator, because said Senator Trumbull, it was never intended by the amendment or the statute as then drafted to as we view it, and I'm just paraphrasing, to enlarge the territorial jurisdiction of the District Court.
And if there was any doubt about it, if there was any question about it, the phrase “within their respective jurisdictions” would settle that doubt, because it would be clear that there was no intent on the part of the Congress in 1867 to extend or enlarge or amend a jurisdiction which had been narrowly confined territorially up to that time.
And so that phrase, which was adopted in 1867, have found its -- found itself repeated when the revised statues where adopted in 1875, found itself repeated when the habeas corpus statute was again recodified in the 1940 edition and finds itself repeated in the present codification.
And as a matter of fact, Your Honors, the petitioner's position is strengthened considerably in this claim, because as to the inferences or the statements which I have made as to the intent of Congress at that time, there is no dispute between the Government and the petitioner.
The Government concedes that the phrase “within their respective jurisdiction” means within their respective territorial jurisdiction and so the question is, where is the difference in the ultimate position between the petitioner and the Government?
The Government says that the phrase “within their respective jurisdictions” conceded by the Government to mean within their respective territorial jurisdiction applies only and narrows or limits the authority of the Court “territorially” only with respect to what the Government calls and what was known as common law as the petition for writ ad subjiciendum.
And says the Government, the territorial limitation concededly applicable to that writ, does not apply to what the Government says are auxiliary writs which are available to the courts in order to carry out jurisdiction which they have and says the Government the writ ad prosequendum and the writ to testify known in common law is ad testificandum, these are auxiliary writs and hence the limitation admitted as to subjiciendum doesn't apply to auxiliary writs.
Now we find it difficult.
We do not accept that – that distinction.
When did -- when did the latter two kinds of writs come into the statute, are you going to tell us?
A. L. Wirin:
Yes, we'll head there.
The writ by which a court ordered a person to be brought to that court to testify stems from the first Judiciary Act in 1789.
Now this will make a second.
Now if Your Honors will look at our -- our characterization of the -- of the habeas corpus statue of 1789, which is at the -- at the bottom of the second sheet, first column, Your Honors will note that that Act which purported to confer jurisdiction upon judges and the courts, then went on to contain a proviso and the proviso was in two parts, the second of which says or are necessary to be brought into Court to testify.
Now this is 1789 language and it means writ ad testificandum if the -- if anyone wants to use the -- the common law nomenclature.
Now then we say, I think that's what we're on to Justice Stewart's question that when Congress made it as we believe reasonably clear or I say, crystal clear but there's no point of overstating or anything made it reasonably clear when it used the phrase “within their respective jurisdictions” and was talking about territorial jurisdiction, at that time, the authority to issue writs ad testificandum was in the statute as of 1789.
And we find -- we find nothing in the legislative history of the habeas corpus statue from 1789 to 1948, let alone in the legislative history in 1867 when this phrase was expressly inserted into the statue that anyone in Congress intended let alone Senator Trumbull who was in-charge of the amendment intended that the phrase “within their respective jurisdictions” should not apply to the authority to bring a witness into court to testify, but should apply only to the Great Writ, the writ whereby a court inquired as to the authority to obtain a person.
Moreover we think Your Honors that to read the statute as if not to look at the statute as it now reads and that's in the top of our page and to see the various sections and subsections and to see their interrelationship and to note that Section A is the Section which confers authority, but which limits authority territorially within their respective jurisdictions.
Then look at B which is not important, because that simply provides that a justice of the Supreme Court or judge of the Circuit Court may transfer a case to a District Court.
Then if you look at C, it seems to us you can't read C in terms of English construction, in terms of fairness or in terms of common sense except to read it as a clause which is a proviso clause, and that's what -- that's what it was called as a matter of fact in 1789 and that all of the subsections in C of which the authority to bring a person for trial is -- is the last of subsection 5, all of the subsections qualify or modify or is it were to limit the authority originally conferred in subsection A.
And the distinction between subjiciendum and -- and auxiliary writ, we think must fall because if Your Honors will look at the subsections in C, all of the subsections except 5 deal with subjiciendum, deal with the authority of a court to inquire as to the nature of the detention.