From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865

Authors

Donald E. Wilkes Jr., University of Georgia School of Law

Publication Date

2011

Abstract

This Article provides, for the first time, a comprehensive
account of the writ of habeas corpus in Georgia not

primarily focused on use of the writ as a post conviction
remedy. The Article covers the 132-year period stretching
from 1733, when the Georgia colony was established, to
1865, when the American Civil War came to a close. Part
II of this Article, which examines the writ of habeas corpus
in colonial Georgia, begins by briefly summarizing the
history and development of the writ in England, and then
analyzes the reception and availability in the colony of the
common law writ of habeas corpus and the English
Habeas Corpus Act of 1679. Part III explores habeas
corpus in Georgia during the Antebellum era, and
demonstrates that both common law habeas corpus and
the 1679 English habeas statute continued to be part of
Georgia law throughout this period. Part IV focuses on
habeas corpus in Georgia during the Civil War, and
explores four major habeas corpus developments in
wartime Georgia. The first was the taking effect of the
habeas corpus provisions contained within the Georgia
Code of 1861, and the consequent abolition of the state's
common law writ of habeas corpus and repeal of the 1679
English statute. The second development was the
enactment of an 1863 habeas corpus statute designed to
assure that when properly applied for the writ would not
be denied. The third was Georgia's fiery resistance to
Confederate suspension of habeas corpus. The fourth
development was the willingness of the Georgia Supreme
Court, in case after case, to permit persons serving in or
conscripted by the Confederate Army or the Georgia state
militia to seek and where appropriate obtain state habeas
relief from military service. Part V brings the Article to a
close by summarizing the sound reasons supporting the
view that during the period extending from the founding of
the colony until the end of the War Between the States the
writ of habeas corpus was the glory of Georgia law.

Recommended Citation

Wilkes, Donald E. Jr. (2011) "From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733-1865," Georgia Law Review: Vol. 45: No. 4, Article 3.
Available at: https://digitalcommons.law.uga.edu/glr/vol45/iss4/3