Opinion of the Court by
Mr. Justice Douglas,
announced by Mr. Justice Reed.
The initial question presented in this case is the one we reserved in Ex parte Endo, 323 U. S. 283, 305, viz. whether the presence within the territorial jurisdiction of the District Court of the person detained is prerequisite to filing a petition for a writ of habeas corpus.
Petitioners are some 120 Germans who are being held at Ellis Island, New York, for deportation to Germany. Their deportation has been directed under removal orders issued by the Attorney General who has found that each of them is dangerous to the public peace and safety of the United States because he has adhered to a government with which the United States is at war or to the principles thereof. These removal orders were issued under Presidential Proclamation 2655 of July 14, 1945 (10 Fed. Reg. 8947) pursuant to the Alien Enemy Act of 1798, R. S. § 4067, 50 U. S. C. § 21. The orders are challenged by these petitions for writs of habeas corpus on several grounds, the principal one being that all of them exceed the statutory authority in that they were issued after actual hostilities with Germany ceased.
The petitions were filed in the District Court for the District of Columbia and alleged that petitioners were confined at Ellis Island, New York, and are “subject to the custody and control” of the Attorney General. Respondent moved to dismiss because, inter alia, petitioners were outside the territorial confines of the District of Columbia. The Court of Appeals dismissed an appeal from the order of the District Court granting the motion.
The statute, 28 U. S. C. § 452, provides:
“The several justices of the Supreme Court and the several judges of the circuit courts of appeal and of the district courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. A circuit judge shall have the same power to grant writs of habeas corpus within his circuit, that a district judge has within his district; and the order of the circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.”
The question at the threshold of the case is whether the words “within their respective jurisdictions” limit the district courts to inquiries into the causes of restraints of liberty of those confined or restrained within the territorial jurisdictions of those courts. There are few cases on all fours with the present one, the precise question not having frequently arisen in the lower federal courts. But the general view is that their jurisdiction is so confined. McGowan v. Moody, 22 App. D. C. 148, 158 et seq.; In re Bickley, 3 Fed. Cas. 332. And see In re Boles, 48 F. 75; Ex parte Gouyet, 175 F. 230, 233; United States v. Day, 50 F. 2d 816, 817; Jones v. Biddle, 131 F. 2d 853, 854; United States v. Schlotfeldt, 136 F. 2d 935, 940. Cf. Sanders v. Allen, 69 App. D. C. 307, 100 F. 2d 717; Tippitt v. Wood, 78 U. S. App. D. C. 332, 140 F. 2d 689. That is our view.
We start from the accepted premise that apart from specific exceptions created by Congress the jurisdiction of the district courts is territorial. See Georgia v. Pennsylvania R. Co., 324 U. S. 439, 467-468, and cases cited. It is not sufficient in our view that the jailer or custodian alone be found in the jurisdiction.
Although the writ is directed to the person in whose custody the party is detained, 28 U. S. C. § 455, the statutory scheme contemplates a procedure which may bring the prisoner before the court. For § 458 provides that “The person making the return shall at the same time bring the body of the party before the judge who granted the writ.” See Walker v. Johnston, 312 U. S. 275. It would take compelling reasons to conclude that Congress contemplated the production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ. The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose. These are matters of policy which counsel us to construe the jurisdictional provision of the statute in the conventional sense, even though in some situations return of the prisoner to the court where he was tried and convicted might seem to offer some advantages.
The history of the statute supports this view. It came into the law as the Act of February 5, 1867, 14 Stat. 385. And see Act of August 29, 1842, 5 Stat. 539. Prior to that date it was the accepted view that a prisoner must be within the territorial jurisdiction of the District Court in order to obtain from it a writ of habeas corpus. See Ex parte Graham, 4 Wash. C. C. 211; In re Bickley, 3 Fed. Cas. 332. Cf. United States v. Davis, 5 Cranch C. C. 622. The bill as introduced in the Senate was thought to contain an infirmity. The objection was made on the floor that it would permit “a district judge in Florida to bring before him some men convicted and sentenced and held under imprisonment in the State of Vermont or in any of the further States.” Cong. Globe, 39th Cong., 2d Sess. 730. As a result of that objection Senator Trumbull, who had charge of the bill, offered an amendment which added the words “within their respective jurisdictions.” Ibid, at 790. That amendment was adopted as a satisfactory solution of the imagined difficulty. Id. Thus the view that the jurisdiction of the District Court to issue the writ in cases such as this is restricted to those petitioners who are confined or detained within the territorial jurisdiction of the court is supported by the language of the statute, by considerations of policy, and by the legislative history of the enactment. We therefore do not feel free to weigh the policy considerations which are advanced for giving district courts discretion in cases like this. If that concept is to be imported into this statute, Congress must do so.
Respondent is willing to waive the point, so that we may make a decision on the merits. But the restriction is one which Congress has placed on the power of the District Court to act. Hence it may not be waived by the parties. United States v. Griffin, 303 U. S. 226, 229.
Ex parte Endo, supra, p. 305, is not opposed to this view. In that case petitioner at the time suit was instituted was within the territorial jurisdiction of the habeas corpus court but had subsequently been removed to a different district and circuit. We held, in conformity with the policy underlying Rule 45 (1) of the Court, that jurisdiction of the District Court was not defeated in that manner, no matter how proper the motive behind the removal. We decided that in that situation the court can act as long as it can reach a person who has custody of the petitioner.
Since there is a defect in the jurisdiction of the District Court which remains uncured, we do not reach the question whether the Attorney General is the proper respondent (see §§455 and 458; Wales v. Whitney, 114 U. S. 564, 574; Jones v. Biddle, supra; Sanders v. Bennett, 80 U. S. App. D. C. 32, 148 F. 2d 19) and, if not, whether the objection may be waived, as respondent is willing to do. Cf. Ex parte Endo, supra, pp. 305-307.
Affirmed.
But see Ex parte Fong Yim, 134 F. 938; Ex parte Ng Quong Ming, 135 F. 378.
The principle which governed the decision was stated by Mr. Justice Washington as follows, 4 Wash. C. C. pp. 211-212:
“It is admitted that these courts, in the exercise of their common law and equity jurisdiction, have no authority, generally, to issue process into another district, except in cases where such authority has been specially bestowed by some law of the United States. The absence of such a power would seem necessarily to result from the organization of the court of the United States, by which two courts are allotted to each of the districts into which the United States are divided, the one denominated a district, and the other a circuit court. This division and appointment of particular courts for each district, necessarily confines the jurisdiction of these local tribunals within the limits of the respective districts within which they are directed to be holden. Were it otherwise, and the court of one district couH send compulsory process into any other, so as to draw to itself a jurisdiction over persons and things without the limits of its district, there would result a clashing of jurisdiction between the different courts not easily to be adjusted, and an oppression upon suitors too intolerable to be endured.”
The statute then read, “That the several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States; . . 14 Stat. 385.
We need not determine the question of what process, if any, a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights. Cf. Ex parte Betz; Ex parte Durant; Ex parte Wills; Ex parte Cutino; Ex parte Walczak; Ex parte McKinley; and Ex parte Murphy, all reported together. 329 U. S. 672.