In Uganda, in the days of Idi Amin, an expatriate judge from England retained his judicial office until his mandatory retirement date. He would grant orders of certiorari, mandamus and prohibition, not to mention habeas corpus, against the Government. Nobody paid any attention to any of them, but he took the view that he would continue to do the job he was being paid for, however unpromising the results.

In the history of the United States there were occasions when the executive took a similarly jaundiced view of judicial power. I am again grateful to my Canadian friend John Wright for most of this material.

President Jackson

The best known story[1] is that when Justice John Marshall held that laws of Georgia which purported to seize Cherokee lands on which gold had been found violated federal treaties, President Andrew Jackson said:

“John Marshall has made the decision: now let him enforce it”.

Neither he nor the Government of Georgia did anything to acknowledge the effect of the Supreme Court’s order.

 President Jefferson

Twenty years earlier, after President Jefferson had accused Aaron Burr of treason, two men called Erich Bollman and Samuel Swartwout were arrested in New Orleans on suspicion of aiding and abetting the treasonable activities.  Their captor, General James Wilkinson, the acting governor of Louisiana Territory, then defied a writ of Habeas Corpus issued by the Supreme Court of the Orleans territory commanding their release.

When the two prisoners were landed in Charleston, military authorities transshipped them to Baltimore, disregarding another writ of Habeas Corpus for their release, this one issued by the presiding judge of the United States District Court in South Carolina.[2] They were then transported to Washington D.C., where President Jefferson himself interrogated them. They were ultimately freed by an order of the US Supreme Court.

 President Lincoln

In 1861 an episode of the same type occurred, although what actually happened is still shrouded in doubt. President Lincoln adopted the view that he had power to suspend the privilege of the writ of habeas corpus under the Constitution Suspension Clause while Congress was not in session. In a case called ex p Merriman Chief Justice Taney in the US Supreme Court ruled that the authority to suspend habeas corpus lay exclusively with Congress. The Executive Branch, including the Army, failed to comply with this Opinion, with the result that Merryman remained in a military fort in Maryland, inaccessible to the judicial power and the civil legal authorities. By one account of the matter,

 “When [Merryman] petitioned for a writ of Habeas Corpus, Roger Taney, Chief Justice of the United States, went to Baltimore to receive it.  The Chief Justice ordered the army general having custody of Merriman to produce his prisoner.  Instead, the general sent an aide, taking the position that he would not obey the order unless the President told him to.  The Chief Justice directed a writ against the general, but the marshal was unable to find him.  At this point, acknowledging that the force of the military was greater than that of the writ, the Chief Justice took no further step, save to send a copy of his opinion to the President.”[3]

What is still being endlessly debated is the precise nature and status of the Chief Justice’s order.

 President Franklin Roosevelt

The final story in this series arose in June 1942 when eight German saboteurs landed in the United States and were promptly caught and put on trial before a military tribunal.  When the men had all been apprehended, Attorney-General Biddle telephoned President Roosevelt with the good news.  Roosevelt was determined that punishment be harsh, to discourage further infiltrations.  In a memorandum to Biddle, Roosevelt wrote that the two American citizens among the eight were guilty of high treason and the other six were spies.  All, he felt, deserved the death penalty.

‘I want one thing clearly understood, Francis,’ he told Biddle, ‘I won’t hand them over to any United States Marshal armed with a writ of habeas corpus.’[4]

Biddle agreed, telling Roosevelt, “We have to win in the Supreme Court, or there will be a hell of a mess.”

 

In England today, when commentators blithely speak of a possible need for the Government to ignore the orders of the courts in the long-running Brexit saga, there would certainly be a hell of a mess if it did.

 

[1] Possibly apocryphal.

[2] Jean Edward Smith:  John Marshall, Definer of a Nation (1996, Henry Holt & Co.) p. 354.

 

[3] Bowker:  The Hon. Horace Harvey, Chief Justice of Alberta, [1954] 32 Can. Bar. Rev. 933 @ 937.

 

[4] Gary Cohen: The Keystone Kommandos, The Atlantic Monthly, February 2002, p.46 @ 53