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

This Article provides, for the first time, a comprehensiveaccount of the writ of habeas corpus in Georgia not primarily focused on use of the writ as a post convictionremedy. The Article covers the 132-year period stretchingfrom 1733, when the Georgia colony was established, to1865, when the American Civil War came to a close. PartII of this Article, which examines the writ of habeas corpusin colonial Georgia, begins by briefly summarizing thehistory and development of the writ in England, and thenanalyzes the reception and availability in the colony of thecommon law writ of habeas corpus and the EnglishHabeas Corpus Act of 1679. Part III explores habeascorpus in Georgia during the Antebellum era, anddemonstrates that both common law habeas corpus andthe 1679 English habeas statute continued to be part ofGeorgia law throughout this period.

Part IV focuses onhabeas corpus in Georgia during the Civil War, andexplores four major habeas corpus developments inwartime Georgia. The first was the taking effect of thehabeas corpus provisions contained within the GeorgiaCode of 1861, and the consequent abolition of the state'scommon law writ of habeas corpus and repeal of the 1679English statute. The second development was theenactment of an 1863 habeas corpus statute designed toassure that when properly applied for the writ would notbe denied. The third was Georgia's fiery resistance toConfederate suspension of habeas corpus.

The fourthdevelopment was the willingness of the Georgia SupremeCourt, in case after case, to permit persons serving in orconscripted by the Confederate Army or the Georgia statemilitia to seek and where appropriate obtain state habeasrelief from military service. Part V brings the Article to aclose by summarizing the sound reasons supporting theview that during the period extending from the founding ofthe colony until the end of the War Between the States thewrit of habeas corpus was the glory of Georgia law.