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Law Quadrangle (formerly Law Quad Notes)

Abstract

My interest in the detention of citizens, without trial, in Britain during the war of 1939-1945 arose as a byproduct of a more general interest. The study of cases has long been central to the common law tradition. But the legal dramas we examine so minutely are too often both contextless and dehumanized. Real people assume the masks of the law, becoming plaintiffs and defendants, offerors and offerees, grantors and contingent remainderpersons, concealed from us by the forms into which their problems have been packaged for legal analysis. Two English leading cases, decided by the House of Lords on November 3, 1941, strikingly illustrate this point. Their names are Liversidge v. Anderson and Greene v. Secretary of State for Home Affairs. In both cases individuals, Robert William Liversidge, alias Jack Perlsweig, and Ben Greene respectively, attempted to challenge the legality of their detention without trial under Regulation 18B of the wartime Defense Regulations. The defendants in the cases were Sir John Anderson, Home Secretary in 1939-1940, and his successor, Herbert Morrison, who took office in October 1940.

These cases are regarded as major decisions in English and Commonwealth constitutional law. Their counterparts in the United States are the Supreme Court decisions concerning the treatment, including detention, of Japanese American citizens after the attack on Pearl Harbor on December 7, 1941, particularly the decisions in Korematsu v. United States and Ex Parte Endo, both decided on December 18, 1944. These American cases at least reveal the official reason why the individuals were detained; their English counterparts give virtually no indication as to who Liversidge and Greene were, why the authorities had locked them up, and why the government lawyers had been prepared to resist their attempts to secure liberty. There is a real sense in which the reported decisions give no indication as to what the litigation was really about.

I have attempted to recreate the historical context of these cases and to locate them in the general history of civil liberty during the Second World War. This is in part a comparative study. Both in Britain, the original home of the common law, and in the United States of America, its present day principal place of residence, individuals were detained without trial in the name of military necessity or national security. Some few turned to the courts to vindicate that most basic of all civil rights, the right to personal freedom. They had little success. In Britain, one individual, a Captain Budd, secured his liberty through habeas corpus proceedings in May 1941. Curiously enough, the score in the United States seems to have been the same, Mitsuye Endo having secured her complete liberty through legal action in 1944.

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