Thanks to Aidan O'Neill QC for drawing our attention to Kennedy J's 5:4 majority speech in the US Supreme Court judgment in BOUMEDIENE v. BUSH, issued 12 June 2008, which opines curiously on Scottish constitutional history in holding that habeas corpus runs even for alien enemy combatants detained in Guantanamo.
Kennedy J writes:
“The [US] Government 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 writ 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 writ did 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 plantations, 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 vis-à-vis England—at least not in the sense in which Cuba is a foreign country vis-à-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. Cf. Munaf v. Geren, ante, at 15 (opinion of the Court) (recognizing that “‘prudential concerns’ . . . such as comity and the orderly administration of criminal justice” affect the appropriate exercise of habeas jurisdiction).
In 1759 the writ did not run to Scotland but did run to Ireland, even though, at that point, Scotland and England had merged under the rule of a single sovereign, whereas the Crowns of Great Britain and Ireland remained separate (at least in theory). See Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone *100–101. But there was at least one major difference between Scotland’s and Ireland’s relationship with England during this period that might explain why the writ ran to Ireland but not to Scotland. English law did not generally apply in Scotland (even after the Act of Union)but it did apply in Ireland. Blackstone put it as follows:“[A]s Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws.” Id., at *100. This distinction, and not formal notions of sovereignty, may well explain why the writ did not run to Scotland (and Hanover) but would run to Ireland.
The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government’s analogy.”
See too Scalia J (dissenting – surprise !):
"See Note on the Power of the English Courts to Issue the Writ of Habeas to Places Within the Dominions of the Crown, But Out of England, and On the Position of Scotland in Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinafter Note on Habeas); King v. Cowle, 2 Burr. 834, 855–856, 97 Eng. Rep. 587, 599 (K. B. 1759). … [T]he writ has never extended to Scotland, which, although united to England when James I succeeded to the English throne in 1603, was considered a foreign dominion under different Crown—that of the King of Scotland. Sharpe191; Note on Habeas 158. (My dissent in Rasul v. Bush, 542 U. S. 466, 503 (2004), mistakenly included Scotland among the places to which the writ could run). That is why Lord Mansfield wrote that “[t]o foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland . . . .” Cowle, supra, at 856, 97 Eng. Rep., at 599–600 … … The Court dismisses the example of Scotland on the grounds that Scotland had its own judicial system and that the writ could not, as a practical matter, have been enforced there. Ante, at 20. Those explanations are totally unpersuasive. The existence of a separate court system was never a basis for denying the power of a court to issue the writ. See 9 W. Holdsworth, A History of English Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El. and El. 487 (1861)). And as for logistical problems, the same difficulties were present for places like the Channel Islands, where the writ did run. The Court attempts to draw an analogy between the prudential limitations on issuing the writ to such remote areas within the sovereign territory of the Crown and the jurisdictional prohibition on issuing the writ to Scotland. See ante, at 19–20. But the very authority that the Court cites, Lord Mansfield, expressly distinguished between these two concepts, stating that English courts had the “power” to send the writ to places within the Crown’s sovereignty, the “only question” being the “propriety,” while they had “no power to send any writ of any kind” to Scotland and other “foreign dominions.” Cowle, supra, at 856, 97 Eng. Rep., at 599–600. The writ did not run to Scotland because, even after the Union, “Scotland remained a foreign dominion of the prince who succeeded to the English throne,” and “union did not extend the prerogative of the English crown to Scotland.” Sharpe 191; see also Sir Matthew Hale’s The Prerogatives of the King 19 (D. Yale ed. 1976).
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus(and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliensabroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. I dissent (Note -= not “respectfully”)."
Scalia J, who of course lectured in Edinburgh in December 2007, seems to Scots Law News to have the better grasp of Anglo-Scottish legal relations post-1707, whether or not that undermines the reasoning of the majority in Boumediene. As Aidan O'Neill notes, "perhaps there should have been a Scots law informed amicus brief." On the other hand, what did the Lord President and Stephen Woolman QC (as he then was) have to say that made the Great Dissenter listen so intently post-lecture last December?