![handle is hein.journals/edinlr13 and id is 1 raw text is: Scots Law News
US Supreme Court: why habeas corpus did not run in Scotland
Thanks to Aidan O'Neill QC for drawing our attention to the US Supreme Court
judgment in Boumediene v Bush, issued on 12 June 2008 (available at http://www.
supremecourtus.gov/opinions/O7pdf/O6-1195.pdf) which, in holding that habeas
corpus runs even for alien enemy combatants detained in Guantanamo, opines
curiously on Scottish constitutional history. In giving the opinion of the Court
(a 5: 4 majority), Kennedy J writes (at 19-21):
The Governmient argues, in turn, that Guantanamo is more closely analogous to
Scotland and Hanover, territories that were not part of England but nonetheless
controlled by the English monarch (in his separate capacities as King of Scotland and
Elector of Hanover). See Cowle 2 Burr, at 856, 97 Eng Rep, at 600. Lord Mansfield can
be cited for the proposition that, at the time of the founding, English courts lacked the
power to issue the wit to Scotland and Hanover, territories Lord Mansfield referred
to as foreign. Ibid. But what matters for our purposes is why common-law courts
lacked this power. Given the English Crown's delicate and complicated relationships
with Scotland and Hanover in the 1700's, we cannot disregard the possibility that the
common-law courts' refusal to issue the writ to these places was motivated not by
formal legal constructs but by what we would think of as prudential concerns. This
appears to have been the case with regard to other British territories where the wit
(lid not run. See 2 R Chambers, A Course of Lectures on English Law 1767-1773,
p 8 (T Curley ed 1986) (quoting the view of Lord Mansfield in Cowle that
[n]otwithstanding the power which the judges have, yet where they cannot judge
of the cause, or give relief upon it, they would not think proper to interpose; and
therefore in the case of imprisonments in Guernsey, Jersey, Minorca, or the plan-
tations, the most usual way is to complain to the king in Council (internal quotation
marks omitted)). And after the Act of Union in 1707, through which the kingdoms
of England and Scotland were merged politically, Queen Anne and her successors, in
their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom.
Accordingly, by the time Lord Mansfield penned his opinion in Cowle in 1759, Scotland
was no longer a foreign country xis-at-xis England - at least not in the sense in which
Cuba is a foreign country vis-'-vis the United States.
Scotland remained foreign in Lord Mansfield's day in at least one important
respect, however. Even after the Act of Union, Scotland (like Hanover) continued
to maintain its own laws and court system. See 1 Blackstone *98, *109. Under these
circumstances prudential considerations would have weighed heavily when courts
sitting in England received habeas petitions from Scotland or the Electorate. Common-
law decisions withholding the writ from prisoners detained in these places easily could
be explained as efforts to avoid either or both of two embarrassments: conflict with
the judgments of another court of competent jurisdiction; or the practical inability,
by reason of distance, of the English courts to enforce their judgments outside their
territorial jurisdiction...
In the end a categorical or formal conception of sovereignty does not provide a
comprehensive or altogether satisfactory explanation for the general understanding](ViewImageLocal?handle=hein.journals/edinlr13&div=1&collection=&method=preview&ext=.png&size=3)
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