The Great Writ in the Peach State: Georgia Habeas Corpus, 1865-1965

By Wilkes, Donald E., Jr. | The Journal of Southern Legal History, January 1, 2014 | Go to article overview

The Great Writ in the Peach State: Georgia Habeas Corpus, 1865-1965


Wilkes, Donald E., Jr., The Journal of Southern Legal History


The writ of habeas corpus has always been regarded as a bulwark of the liberty of English-speaking people. It is safeguarded in the constitution of our State. It is a summary and speedy remedy -

- Richards v. McHan, 139 Ga. 37, 39, 76 S.E. 382, 383 (1912).

[T]he remedy to discharge a person held illegally in custody under any form of law or without law is as old as the foundations of English liberty. It is the writ of habeas corpus .... That remedy in complete, and it had better be adhered to.

- Southern Express Co. v. Lynch, 65 Ga. 240, 244-45 (1880).

The right of any citizen to have the legality of his restraint inquired into by the courts on a writ of habeas corpus is as old as English liberty itself, and will no doubt endure as long as any institution of our government exists.

- Barranger v. Baum, 103 Ga. 465, 482, 30 S.E. 524, 531 (1898).

Introduction

There is a plenitude of scholarly writing on the Great Writ of Habeas Corpus, which is universally recognized as "one of the decisively differentiating factors between our democracy and totalitarian governments."1 The overwhelming majority of these scholarly publications are concerned with the writ of habeas corpus as administered in the federal court system. There are far fewer scholarly publications on the writ of habeas corpus as administered in the courts of the State of Georgia, and most of these works are concerned with Georgia habeas corpus as a state postconviction remedy, past and present.2 Only one scholarly piece, a law review article, provides a comprehensive view of the writ of habeas corpus in Georgia. It covers the time span from 1733 (when the Georgia colony was founded) until 1865 (when the Civil War concluded).3

This Article provides a thorough account of the writ of habeas corpus in Georgia during the century after the Civil War, from 1865 to 1965. When this period began, Georgia was in ruins and on the verge of Reconstruction; when the period ended, the state was prosperous and in the midst of a Second Reconstruction. Part I of this Article examines the habeas protections in the Georgia state constitutions of 1865,1868,1877, and 1945. Part II explores the various Georgia habeas corpus statutes enacted or in force at one time or another from 1865 to 1965. Part III reviews Georgia habeas corpus practice and procedure during this same time period, and Part IV surveys the Georgia habeas corpus case law during this period.

I. Georgia Habeas Corpus Constitutional Provisions

Between 1865 and 1965 Georgia adopted a total of four state constitutions, each of which contained a provision in its bill of rights protecting the writ of habeas corpus. The first two of these constitutions permitted suspension of habeas corpus, while the second two flatly prohibited it. The habeas provisions of the 1865 and 1868 constitutions each provided: "The writ of Habeas Corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety may require it."4 The habeas provi- sions of the 1877 and 1945 constitutions, on the other hand, each provided: "The writ of habeas corpus shall not be suspended."5 Thus, the writ of habeas corpus was a state constitutional right in Georgia throughout the period 1865 to 1965, and except for the first twelve years of this period, any suspension of the state's writ was constitutionally barred.6 At no time after the Civil War was habeas corpus ever suspended in Georgia.

II. Georgia Habeas Corpus Statutory Provisions

A. Overview

The Georgia habeas corpus statutes that were adopted or in operation at one time or another from 1865 to 1965 may be divided into four categories. First, there were the various provisions of the habeas chapter, article, or title of each of the seven Georgia Codes-those of 1861, 1868, 1873, 1882, 1895, 1910, and 1933-in force during this period. Second, there were the miscellaneous other habeas corpus provisions of these Georgia Codes, located outside the habeas chapter, article, or title of each Code. …

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