The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

Robert A. Pratt, The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation, 52 U. Rich. L. Rev. Online 29 (2017).

Click here to download PDF.

Robert A. Pratt *

The United States Supreme Court’s 1954 landmark decision in Brown v. Board of Education declared that segregation in public education violated the Fourteenth Amendment to the United States Constitution.[1] For the millions of African Americans who had endured decades of separate and unequal schooling, this decision was a resounding reaffirmation of the nation’s commitment to equal justice under the law. But those who expected segregated schools to end overnight were in for a rude awakening. The National Association for the Advancement of Colored People (“NAACP”), which had led the legal assault against segregation since its founding in 1909, was encouraged by the Court’s ruling. But its attorneys would soon realize that their initial optimism had been premature and that they had greatly underestimated white southern resistance. Perhaps few could have predicted that it would take nearly twenty years before school desegregation would begin in earnest in the states of the former Confederacy—and only then because of the determined actions of a few courageous judges willing to place principle above prejudice. Judge Robert R. Merhige, Jr., of Virginia was one of them.

A native of New York, Judge Merhige studied at High Point College in North Carolina before attending the University of Richmond’s T.C. Williams School of Law in 1942. After serving in the Army Air Corps during World War II, Judge Merhige returned to Richmond where he began practicing criminal law. On July 17, 1967, President Lyndon B. Johnson appointed Judge Merhige to the United States District Court for the Eastern District of Virginia. Judge Merhige would be involved with many cases during his more than thirty years on the bench, but it was his controversial rulings on school desegregation that would come to define his career and shape his judicial legacy.[2]

For most of the Deep South, the Supreme Court’s ruling in the Brown decision had not only been ignored, but had been met with fierce and determined opposition that became known as “Massive Resistance,” in which Virginia had taken the lead.[3] In his fiery editorials, James J. Kilpatrick of the Richmond News Leader constantly railed against the evils of integrated classrooms, a position strongly reinforced by the Commonwealth’s powerful political establishment often referred to as the “Byrd Organization.”[4] Yet, the steely determination of Virginia’s NAACP attorneys, led by Oliver W. Hill, Samuel W. Tucker, and Henry L. Marsh, meant that the issue of school desegregation would continue to be pressed in the federal courts, forcing some judges, such as Judge C. Sterling Hutcheson, to resign from the bench rather than enforce the Brown decision.[5] Even after “Massive Resistance” had ended, southern school districts continued to resist, substituting token compliance for outright resistance. By creating such schemes as pupil placement boards and freedom of choice plans, southern school districts gave the appearance of acting in good faith when in reality, school segregation remained as firmly entrenched as ever. By the mid-1960s, Virginia’s Pupil Placement Board, which had assigned only a handful of black students to white schools and no white students to black schools, had finally been exposed for what it was.

In 1968, the United States Supreme Court ruled in Green v. New Kent County that the county’s freedom of choice plan did not constitute adequate compliance with the school board’s responsibility to end segregated schools and that the school board would have to devise other plans that would produce meaningful desegregation.[6] During the era of “Massive Resistance,” rural Farmville, Virginia in Prince Edward County had gained national attention by closing its schools for nearly five years rather than integrate.[7] By the early 1970s, however, the focus would shift to Richmond’s public schools, which symbolized one of Virginia’s best examples of the failures of token compliance.

The public schools in the City of Richmond (the “City”) were among the most segregated in the Commonwealth of Virginia, and the school board had been under court order to create a unitary school system since the early 1960s.[8] On March 10, 1970, attorneys for the African-American plaintiffs in Richmond’s ongoing lawsuit filed a motion for further relief in light of the Supreme Court’s recent opinion in Green.[9] They argued that the City’s freedom of choice plan, in effect for four years, had failed to convert the public schools into a non-segregated, unitary system.[10] Enrollment figures validated their assertion: As of May 1, 1970, Richmond’s public school system enrolled approximately 52,000 students. Of the seven high schools, three were 100% black; one was 99.3% white; one was 92% white; one was 81% white; and one was 68% black. Of the nine middle schools, two were 100% black, one was 99.9% black, and three ranged from 88% black to 69% black. Three other middle schools were 91%, 97%, and 98% white. In forty-four elementary schools, seventeen were 100% black; four others were over 99% black; one was 78% black; two were 100% white; thirteen others were at least 90% white; two were roughly 86% white; and five were between 53% and 70% white. The figures for faculty and staff showed even less integration.[11] The evidence was compelling: freedom of choice had failed to produce a unitary school system in Richmond.[12] United States District Court Judge Robert R. Merhige, Jr., would have to rule on the feasibility of any future desegregation plans offered by the school board.

The Richmond School Board responded by proposing a couple of new plans that it claimed would produce better results, but Judge Merhige rejected the plans, saying in effect that Richmond’s history of residential segregation would make it difficult, if not impossible, to achieve acceptable levels of desegregation.[13] Judge Merhige wrote that:

[I]n spite of the lifting of public discriminatory practices as a result of the repeal of White supremacy laws, congressional action and judicial pronouncements, no real hope for the dismantling of dual school systems appears to be in the offing unless and until there is a dismantling of the all Black residential areas.[14]

Judge Merhige reasoned that if residential segregation was the major impediment to school desegregation, only a plan that could bridge the neighborhood gap would have any chance of success.[15] Searching for some viable alternatives to the City’s failed plans of the past, Judge Merhige was keenly aware of a school desegregation case in North Carolina that was currently before the United States Supreme Court.

On April 20, 1971, in the case of Swann v. Charlotte-Mecklenburg Board of Education, the United States Supreme Court ruled unanimously that school districts could use busing to help achieve desegregation.[16] The Court’s rationale, which mirrored Judge Merhige’s own thinking, was that given the nation’s long history of residential segregation, busing was an appropriate remedy for the problem of racial imbalance in the public schools.[17] As early as January 1971, Judge Merhige had ruled that the level of desegregation achieved in Richmond’s schools was “less than remarkable” and that “further delays in affording the plaintiffs what these defendants owe them under the Constitution . . . cannot be justified either by precedent or by practicality.”[18] Judge Merhige continued, “The Constitution is satisfied only when an integration plan ‘works’ in practice and not merely on paper.”[19]

On April 5, 1971, fifteen days before the Supreme Court’s decision in Swann, Judge Merhige ordered into effect a new desegregation plan that provided for pupil and faculty reassignments and free city-wide transportation in the City of Richmond.[20] The new plan stipulated that the school board would have to assign pupils so that the ratio of black to white in each school would be based on the city-wide ratio for the groups; teacher assignments were to be made in a similar manner.[21] Of far greater significance, though, was Judge Merhige’s decision to extend busing to all pupils within the City, including kindergarten and elementary school students.[22] Judge Merhige’s decision had effectively ended seventeen years of legal maneuvers and shenanigans, and the City was now on the fast track to end its segregated school system. But while many applauded Judge Merhige’s decision, not everyone saw this as a time for celebration.

Judge Merhige’s desegregation plan set off an immediate series of protests by white parents and parent-teacher associations across the City.[23] For example, the day after Judge Merhige announced his busing plan, nearly two hundred parents and area residents met to express their desire to return to freedom of choice, withdraw their children from the schools in protest, and even amend the United States Constitution to curb federal judicial power. Others suggested contacting their elected state and federal representatives to urge the removal of those officials who “do not meet the needs and wishes of the people.”[24] Even the Supreme Court’s affirmation of Judge Merhige’s decision did little to quiet the City’s anti-busing forces who were determined that their children would not be bused.[25]

In addition to the negative views expressed by many white parents on the subject of busing (perceptions that were stoked by two of Richmond’s daily newspapers which frequently printed articles and letters citing the alleged genetic inferiority and immorality of blacks), demographics further complicated Judge Merhige’s busing plan. Decades of white migration to the suburbs and black migration to the City had produced what some began to refer to as the “chocolate city vanilla suburbs” phenomenon, as the City of Richmond was surrounded by the overwhelming white Counties of Chesterfield and Henrico.[26] And while the desire for better economic opportunities was perhaps a primary motivation for both migrations, it is apparent that the furor over the City’s busing plan clearly served as a catalyst for white residents leaving the City, especially as the earlier trickle turned into a fast-flowing stream in the early 1970s.[27] In a 1975 article, two University of Richmond professors noted the extent to which “white flight” had contributed to resegregation within the Richmond metropolitan area:

While the overall population figures have decreased in Richmond and increased in the counties, the percentage of blacks in each jurisdiction has changed inversely. Containment of blacks within Richmond, rather than significant black immigration, accounted for the increased percentage of blacks in the city. Although black immigration exceeds emigration . . . the primary factor responsible for the increased proportion of blacks [within the city] is continual white emigration.”[28]

With fewer white students in Richmond’s public schools, Judge Merhige’s desegregation plan for the City would yield few positive results.

Within six months of Judge Merhige’s busing decree, black plaintiffs and their attorneys were back in court to demand that Richmond’s school system be merged with those of Chesterfield and Henrico counties.[29] Arguing that the Commonwealth had an obligation to eliminate school segregation, and that desegregation could never happen so long as the city schools remained predominantly black and the county schools overwhelmingly white, the plaintiffs proposed a city-county merger where Richmond’s public schools, a 43,000-pupil system that was seventy percent black, would be consolidated with Chesterfield and Henrico, each of which had a student population that was over ninety percent white.[30] The result would be a single 104,000-pupil unit that would be one-third black.[31]

On January 10, 1972, Judge Merhige handed down his opinion agreeing with the plaintiffs and ordering the merger.[32] Judge Merhige noted the Commonwealth’s long history of residential segregation, as well as its complicity in maintaining and perpetuating segregated schools; therefore, the Commonwealth was obliged to create the remedy.[33] As for the actual merger itself, Judge Merhige opined:

The proof here overwhelmingly establishes that the school division lines between Richmond and the counties here coincide with no natural obstacles to speak of and do in fact work to confine blacks on a consistent, wholesale basis within the city . . . . For [these] reasons . . . it is adjudged and ordered that [the governing bodies of Henrico, Chesterfield, and Richmond] . . . take all steps and perform all acts necessary to create a single school division.[34]

Judge Merhige’s decision sent shock waves throughout the entire metropolitan area and across the Commonwealth. As expected, officials and residents of both counties were outraged and vowed to appeal the ruling. Some referred to the decision as “personal opinions disguised as law,” while others threatened to abandon the public schools entirely if the decision was not overturned.[35] Both of Richmond’s major dailies also denounced the ruling, with the Richmond Times-Dispatch calling it “the pernicious gibberish of those social engineers who argue . . . that a school system’s primary function is to promote racial togetherness. . . .”[36] Thousands of white students took to the streets, waving anti-busing signs in protest, while many teachers threatened to resign.[37] A week after Judge Merhige’s decision, several thousand county residents, riding in a 3261-car motorcade traveled from Richmond to Washington, D.C., to denounce the ruling.[38] Not surprisingly, the battle lines had formed mainly along racial lines, with most blacks supporting the ruling and most whites in fierce opposition.[39]

The personal repercussions for the judge were immediate. Overnight, a once venerated jurist had become persona non grata, and for the next few years, Judge Merhige and his family endured what seemed like a never-ending nightmare. As hostility to the merger intensified, Judge Merhige became a prime target of abuse. He received a barrage of hate mail, obscene phone calls, and life insurance policies.[40] Threats to his and his family’s lives were constant and common, which prompted authorities to station federal marshals at his home for almost two years.[41] The following note sent to the judge was typical:

Look—You Dirty Bastard, We are sick of you Federal Judges playing God. Your knowledge of the law is zero minus a million—your left-wing ideology aid [sic] the malcontents to bring this country into revolution. It would be a good idea to look under [the] hood of your car before starting it. Think about it. You son of a bitch.[42]

In a 1987 interview, Judge Merhige became emotional when discussing what he and his family had to endure during that time.

My family and I went through hell. . . . I remember that at one time there were eleven [federal marshals] living on my property, twenty-four hours a day. They went to school with my son, went to the grocery store with my wife, and they went everywhere with me. The marshals were truly afraid for me, although I was always more concerned about my family. My dog was shot. Our guesthouse, where my then seventy-five year old mother-in-law lived, was burned to the ground. Every other week or so we received a cryptic letter warning that our son Mark would never live to see age twenty-one. I was burned in effigy, spat upon, and occasionally insulted by people who would deliberately walk out of restaurants whenever my wife and I entered. At times it got awfully depressing. But I did what I did not only because it was the law, but also because I believed it was right. And for that, I have no regrets.[43]

The furor over Judge Merhige’s controversial desegregation plan proved to be short-lived. On June 5, 1972, the Fourth Circuit Court of Appeals, in a 5-1 decision, overturned Judge Merhige’s ruling, holding in effect that a district judge did not have the authority to compel any state or locality to rearrange its political boundaries to help facilitate school desegregation.[44] On appeal, the United States Supreme Court split 4-4 on whether to review the case (with Justice Powell recusing himself),[45] thereby leaving the Fourth Circuit’s ruling in effect.[46] In 1974, the United States Supreme Court would settle the issue definitively in a similar case in Michigan, where a federal judge had ordered the heavily black schools of Detroit to merge with the surrounding white suburban schools.[47] In a 5-4 decision (this time, Justice Powell in the majority), the Court reached the same conclusion that the Fourth Circuit had in the Richmond case.[48] Coming twenty years after Brown, the case of Milliken v. Bradley marked the Court’s first major retreat from school desegregation.[49]

In his long and distinguished career on the federal bench, Judge Robert R. Merhige, Jr., rendered many important decisions on a wide range of issues. Yet, he will always be best remembered for his rulings on school desegregation in Richmond, Virginia. Indeed, as the years have passed and anger has abated, some of his staunchest critics have come to respect his courage and determination in the face of persistent hostility and threats to his and his family’s personal safety. During the early 1970s, Judge Merhige was perhaps the most hated man in Virginia, but his commitment to equal justice under the law has earned him a place alongside the likes of Judges J. Waties Waring, John Minor Wisdom, Richard Taylor Rives, and Frank M. Johnson, who placed dedication to the United States Constitution above politics, popular sentiment, or “southern tradition.” For most of the 1970s, Judge Merhige was a prophet without honor in his own country, but during a critical time in our nation’s history, he was, in a true sense, the conscience of Virginia.

    *     Robert A. Pratt is Professor of History at the University of Georgia. He is the author of The Color of Their Skin: Education and Race in Richmond, Virginia, 1954–89; We Shall Not be Moved: The Desegregation of the University of Georgia; and Selma’s Bloody Sunday: Protest, Voting Rights, and the Struggle for Racial Equality.

        [1]. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).

        [2].    See generally Ronald J. Bacigal, May It Please the Court: A Biography of Judge Robert R. Merhige, Jr. (1992) (giving a detailed discussion of the life of Judge Merhige).

        [3].    Brown at 60: The Southern Manifesto and “Massive Resistance” to Brown, NAACP Legal Defense Fund, (last visited Sept. 27, 2017).

        [4].    Adam Bernstein, James J. Kilpatrick, 89, Dies; Conservative Columnist Formerly on ‘60 Minutes’, Wash. Post (Aug. 17, 2010), article/2010/08/16/AR2010081602555.html; Byrd Organization, Encyclopedia Va., https: // (last visited Sept. 27, 2017).

        [5].    See Robert R. Merhige, Jr., A Judge Remembers Richmond in the Post-Brown Years, 49 Wash. & Lee L. Rev. 23, 24 (1992).

        [6].    Green v. Cty. Sch. Bd. of New Kent, 391 U.S. 430, 441–42 (1968).

        [7].    The Closing of Prince Edward County’s Schools, Va. Hist. Soc’y, ginia/closing-prince (last visited Sept. 27, 2017).

        [8].    See generally Green, 391 U.S. 430 (recounting the history of noncompliance to desegregate Virginia schools).

        [9].    Gary C. Leedes & James M. O’Fallon, School Desegregation in Richmond: A Case History, 10 U. Rich. L. Rev. 1, 15 (1975).

      [10].    See Bradley v. Sch. Bd. of Richmond, 317 F. Supp. 555, 558 (E.D. Va. 1970).

      [11].    Id. at 560 (providing all of the above statistics).

      [12].    See generally Robert A. Pratt, The Color of Their Skin: Education and Race in Richmond, Virginia 1954–89 (1992) (describing the history of school segregation in Richmond).

      [13].    Bradley, 317 F. Supp. at 566.

      [14].    Id.

      [15].    See id.

      [16].    Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30 (1971).

      [17].    Id. at 14, 29–30.

      [18].    Bradley v. Sch. Bd. of Richmond, 325 F. Supp. 828, 831, 834 (E.D. Va. 1971).

      [19].    Id. at 847.

      [20].    Leedes & O’Fallon, supra note 9, at 18–20, 34.

      [21].    Id. at 19–20.

      [22].    See id. at 20.

      [23].    Pratt, supra note 12, at 57–58.

      [24].    Id.

      [25].    Id. at 58.

      [26].    See Reynolds Farley et al., “Chocolate City, Vanilla Suburbs:” Will the Trend Toward Racially Separate Communities Continue?, 7 Soc. Sci. Res. 319, 320 (1978); Leedes & O’Fallon, supra note 9, at 22–23.

      [27].    See Leedes & O’Fallon, supra note 9, at 23.

      [28].    Id. at 22 (emphasis added); see also John V. Moeser & Rutledge M. Dennis, The Politics of Annexation: Oligarchic Power in a Southern City (1982) (discussing Richmond’s 1970 annexation of portions of Chesterfield County); James A. Sartain & Rutledge M. Dennis, Richmond, Virginia: Massive Resistance Without Violence, in Community Politics and Educational Change: Ten School Systems Under Court Order 208-36 (Charles V. Willie & Susan L. Greenblatt eds., 1981) (discussing the desegregation process in Richmond, Virginia); Leedes & O’Fallon, supra note 9, at 29.

      [29].    See Bradley v. Sch. Bd. of City of Richmond, 338 F. Supp. 67 (E.D. Va. 1972); Pratt, supra note 12, at 64.

      [30].    Pratt, supra note 12, at 64–65.

      [31].    Id.

      [32].    Bradley, 338 F. Supp. at 244–45.

      [33].    Id. at 94–96.

      [34].    Id. at 84, 244, 245.

      [35].    See Pratt, supra note 12, at 67.

      [36].    Id. at 68.

      [37].    Id. at 67.

      [38].    Id. at 68.

      [39].    See id. at 71.

      [40].    Id. at 69.

      [41].    Id.

      [42].    Id.

      [43].    Id. (quoting an April 1987 interview with Judge Merhige).

      [44].    See Bradley v. Sch. Bd. of Richmond, 462 F.2d 1058, 1060 (4th Cir. 1972).

      [45].    Justice Lewis F. Powell was a native Virginian and had served as chairman of Richmond’s School Board from 1952 until 1961. See Linda Greenhouse, Lewis Powell, Crucial Centrist Justice, Dies at 90, N.Y. Times (Aug. 26, 1998), /08/26/us/lewis-powell-crucial-centrist-justice-dies-at-90.html?mcubz=0.

      [46].    See Sch. Bd. of Richmond v. State Bd. of Educ. of Va., 414 U.S. 884 (1973).

      [47].    See Milliken v. Bradley, 418 U.S. 717 (1974); Pratt, supra note 12, at 83.

      [48].    See Milliken, 418 U.S. at 721-22, 752-53.

      [49].    See id. at 752-53.

The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

The Honorable Robert R. Merhige, Jr.: A Judge Ahead of His Time

Wayne A. Logan, The Honorable Robert R. Merhige, Jr.: A Judge Ahead of His Time, 52 U. Rich. L. Rev. Online 23 (2017).

Click here to download PDF.

Wayne A. Logan *

When one thinks about it, it is really quite incredible: a Brooklyn-born son of Lebanese and Irish immigrants with a distinct New York accent, standing well under six feet tall, attends a small North Carolina college on a basketball scholarship; serves with distinction in a bombing squadron in World War II; graduates from the University of Richmond School of Law (paying his way by serving as a night librarian); excels at the practice of law in a city (Richmond) not renowned for its receptivity to Yankees; wins election as president of the city’s Bar; and upon being appointed to the federal bench, serves with distinction for thirty-one years, addressing some of the most controversial legal issues of his time with a skill, energy, and workhorse determination unknown to most mortals.[1]

During his time on the bench, of course, Judge Robert R. Merhige, Jr., (“The Judge” to his clerks and extended court family) came to enjoy considerable national renown, not only for being a progenitor of the Eastern District of Virginia’s “rocket docket” and his expeditious resolution of cases when sitting on assignment,[2] but also for landmark litigation, including the antitrust case involving Westinghouse uranium price-fixing litigation, the Dalkon Shield settlement, and events such as the Wounded Knee uprising, Watergate, the Klan/‌Nazi-Communist Party violence in Greensboro, North Carolina, and the desegregation of Virginia’s public schools.

Here, however, I would like to address a perhaps lesser-known and lower-profile aspect of the Judge’s illustrious tenure on the bench: his criminal case docket. During his thirty-one years on the bench, Judge Merhige handled countless criminal matters. Using dispensed justice as a measure of the magnitude of his work, my instinct is that criminal cases, more than civil, constituted the lion’s share of the Judge’s direct human impact. Indeed, the Judge’s frequent sitting-by-designation was often fueled by the need to redress massively backlogged federal criminal dockets. Moreover, it is often overlooked that the Judge, before his appointment to the federal bench by President Johnson in 1967, was regarded as one of Virginia’s premier criminal defense lawyers, handling over two hundred homicide cases during his twenty-one years as a lawyer, with none of his clients receiving the death penalty.[3] He was, by dint of his extensive trial experience, known by counsel coming before him as a “lawyer’s judge,” sensitized to the demands, constraints, and strategies of trial lawyers. And he did his job with a wit and charm that kept lawyers on their toes and provided many with stories they would later recount with relish.[4]

The Judge’s criminal cases encompassed a broad range of varied matters, including prison reform litigation and substantive law. In those realms, the Judge made significant jurisprudential contributions.[5] In preparing this essay, I spent considerable time on Westlaw reviewing cases involving the Judge. Of course, the work of a federal trial judge overwhelmingly involves orders and memoranda that, despite being the grist and substance of justice dispensed, typically do not make their way into the published or reported oeuvre of the federal judiciary.

One particular case reported in Westlaw did, however, catch my attention. Although the Judge, when sitting by designation on an appellate court, often shied away from fracturing a panel otherwise consisting of resident judges or writing separately to make a point, United States v. Kyllo[6] was an exception. In Kyllo, federal agents, acting without a search warrant, used a thermal imager to scan the exterior of Kyllo’s home, which revealed differential heat patterns that possibly indicated high intensity interior lights used to grow marijuana. The readings, along with other information secured by law enforcement, were used to obtain a search warrant of Kyllo’s house, which revealed a marijuana growing operation.[7]

After some procedural wrangling, the trial court eventually backed the government’s warrantless thermal scan, which presented the Judge’s panel (also consisting of Judges Hawkins and Noonan) with a question of first impression in the Ninth Circuit: whether a thermal scan qualifies as a search under the Fourth Amendment, requiring a search warrant.[8] Applying the Katz two-part test,[9] Judge Merhige, writing for himself and Judge Noonan, concluded that Kyllo possessed “a subjective expectation of privacy that activities conducted within his home would be private.”[10] In doing so, the Judge rejected the position of four other circuits that held that the scan simply revealed non-private “waste heat” emanating from the house.[11] With regard to the second part of the Katz test, again rejecting the position of other circuits,[12] the Judge wrote that Kyllo’s subjective expectation of privacy was objectively reasonable because the imager revealed details “sufficiently ‘intimate’ to give rise to a Fourth Amendment violation.”[13] Citing a prior Tenth Circuit decision on the question (later vacated on other grounds),[14] Judge Merhige concluded that:

It is not disputed whether the [imager] could reveal details such as intimate activities in a bedroom. . . . Even assuming that the [imager used], apparently a relatively unsophisticated thermal imager, is unable to reveal such intimate details, technology improves at a rapid pace, and much more powerful and sophisticated thermal imagers are being developed which are increasingly able to reveal the intimacies that we have heretofore trusted take place in private absent a valid search warrant legitimizing their observation.[15]

Moreover, even if the imager did not reveal intimate details such as sexual activity, the Judge reasoned that it could reveal a range of other activities such as the “use of showers and bathtubs, ovens, washers and dryers, and any other household appliance that emits heat. . . . Even the routine and trivial activities conducted in our homes are sufficiently ‘intimate’ as to give rise to Fourth Amendment violation if observed by law enforcement without a warrant.”[16] Because use of the imager by law enforcement qualified as a search, the matter was remanded to determine whether other information, exclusive of the improperly obtained thermal images, established probable cause to issue a warrant.[17]

Judge Hawkins dissented, concluding that “the thermal imaging device employed . . . intruded into nothing,” and urged the panel to “follow the lead of our sister circuits and hold that the use of thermal imaging technology does not constitute a search under contemporary Fourth Amendment standards.”[18]

The government thereafter successfully petitioned for rehearing, Judge Merhige’s opinion was withdrawn, and in its place came a decision reaching the opposite result, authored by Judge Hawkins.[19] Siding with all other circuits that to that point had definitively resolved the question,[20] Judge Hawkins, writing for himself and Judge Brunetti[21] (Judge Noonan, siding with Judge Merhige’s opinion in the earlier iteration, was on the new panel but dissented),[22] concluded that “[w]hatever the ‘Star Wars’ capabilities this technology may possess in the abstract, the thermal imaging device employed here intruded into nothing.”[23]

Certiorari was thereafter successfully sought, and the Supreme Court ultimately reversed by a 5-4 vote.[24] In a clear vindication of Judge Merhige’s original opinion, using strikingly similar language, Justice Scalia wrote for the majority that Kyllo possessed a reasonable expectation of privacy regarding “the interior of [his] home” because “[i]n the home, . . . all details are intimate details, because the entire area is held safe from prying government eyes.”[25] Taking the “long view,” similar to Judge Merhige, the Kyllo majority opinion expressed concern that citizens would otherwise be placed “at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”[26] The majority, however, closed by adding an additional requirement that the device in question must not be in “general public use” for Fourth Amendment privacy protection to attach,[27] a highly problematic standard justifiably condemned by the four-member dissenting opinion authored by Justice Stevens. As noted by the dissent, the protection “dissipates as soon as the relevant technology is ‘in general public use’ . . . ,” a standard that “is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.”[28] Indeed, today, Kyllo likely would come out differently because of the widespread public use of thermal imaging devices.[29]

If only the Supreme Court had left well enough alone and followed Judge Merhige’s simpler and more constrained view. That the Judge should opine in such enlightened fashion on a matter involving technological advancement is a rich irony: I recall many times when he expressed frustration and wonder at not being able to operate devices (a deficiency I share). The larger point, however, is that the Judge in Kyllo, as he did so many other times in his illustrious career on the bench, sagely anticipated the future arc of justice. On critically important issues such as workers’ rights,[30] gender discrimination,[31] consensual homosexual sodomy,[32] as well as the difficulties presented by excess prosecutorial authority vis-à-vis plea bargaining[33] and the life-altering effect of collateral consequences,[34] he was a jurist ahead of his time. And for that, the nation’s jurisprudence—and the citizens that secure liberty and protection from it—are in Judge Merhige’s debt.

*   Gary & Sallyn Pajcic Professor of Law, Florida State University College of Law. Law Clerk to the Honorable Robert R. Merhige, Jr., 1992–1993. Thanks to Barbara Kaplan for her able research assistance and Anna Logan for her expert editorial help.

        [1].    See generally Ronald J. Bacigal, May It Please the Court: A Biography of Judge Robert R. Merhige, Jr. (1992) (describing the life and accomplishments of Judge Merhige).

        [2].    Unlike many colleagues on the bench who relished assignments in pleasure spots such as the Virgin Islands, Judge Merhige took all comers in need of help, including, during my clerkship, the Northern District of Iowa (Cedar Rapids in February!) and the Northern District of West Virginia (Martinsburg). For me, the judicial forays, which could last for weeks at a time, were especially enjoyable, as they allowed for extended time with the Judge (and of course with court reporter Gil Halasz and clerk of court Rob Walker) after hours.

        [3].    Bacigal, supra note 1, at 24.

        [4].    I was on the receiving end of this on my first day on the job when one of the parties in a case asked in open court for a continuance. The Judge, without missing a beat, feigned ignorance about the term’s definition and directed me to retrieve a Black’s Law Dictionary. After I quickly located a copy in chambers, I returned to the courtroom to see a twinkle in the Judge’s eye indicating that I had joined the ranks of prior neophyte clerks by being the target of one of his favorite jokes. See also, e.g., Michael W. Smith, Remembering Judge Merhige, 40 U. Rich. L. Rev. 29, 31 (2005) (recounting the story of a young lawyer appearing before the Judge, who “[r]ather than cut [the attorney] off, belittle him, or shatter his confidence . . . remarked: ‘I know you think that I am missing your point, but for $54,000 a year, you don’t get John Marshall’”).

        [5].    See, e.g., United States v. Baird, 29 F.3d 647, 654 (D.C. Cir. 1994) (citing United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976) (Merhige, J., sitting by designation) (articulating influential standard regarding defense of official misstatement of the law)); Giarratano v. Murray, 668 F. Supp. 511, 517 (E.D. Va. 1986), rev’d, 836 F.2d 1421 (4th Cir.), aff’d on reh’g, 847 F.2d 1118 (4th Cir. 1988) (en banc), rev’d, 492 U.S. 1 (1989) (holding that the Commonwealth of Virginia must provide its death row inmates counsel in habeas corpus proceedings); Landman v. Royster, 333 F. Supp. 621, 647 (E.D. Va. 1971) (holding unconstitutional, on Eighth Amendment grounds, the treatment of inmates in a Virginia prison system). The Judge also presided over the criminal trial of Allied Chemical Corporation (“Allied”) for the extensive environmental damage to the James River caused by its pesticide Kepone, resulting in what was then the largest criminal fine for water pollution ever assessed. The Judge, after imposing the maximum penalty, offered Allied a creative alternative to simple payment of the fine to the federal treasury: he allowed a reduction in the fine if Allied agreed to fund an $8 million endowment to improve the environment. Bacigal, supra note 1, at 116.

        [6].    140 F.3d 1249 (9th Cir. 1998), withdrawn, 184 F.3d 1059 (9th Cir. 1999).

        [7].    Id. at 1251.

        [8].    Id. at 1252.

        [9].    Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

      [10].    Kyllo, 140 F.3d at 1253.

      [11].    Id. The cases were: United States v. Robinson, 62 F.3d 1325, 1328–29 (11th Cir. 1995); United States v. Ishmael, 48 F.3d 850, 854, 857 (5th Cir.), petition for reh’g denied, 53 F.3d 1283 (5th Cir. 1995), cert. denied, 516 U.S. 818 (1995); United States v. Myers, 46 F.3d 668, 669–70 (7th Cir. 1995); United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir. 1994). But see United States v. Cusumano, 67 F.3d 1497, 1502 (10th Cir. 1995), vacated on other grounds, 83 F.3d 1247 (10th Cir. 1996).

      [12].    Kyllo, 140 F.3d at 1253–54 (citing Robinson, 62 F.3d at 1330; Ishmael, 48 F.3d at 855–56; Myers, 46 F.3d at 669–70; Pinson, 24 F.3d at 1059).

      [13].    Id. at 1254.

      [14].    Id. (citing Cusumano, 67 F.3d at 1504).

      [15].    Id.

      [16].    Id. at 1255.

      [17].    See id.

      [18].    Id. (Hawkins, J., dissenting).

      [19].    See United States v. Kyllo, 190 F.3d 1041, 1045 n.6 (9th Cir. 1999) (panel consisting of Hawkins, Noonan, and Brunetti, J.J.) (“We note that a previously filed disposition of this appeal was withdrawn.”).

      [20].    As noted above, the Tenth Circuit in United States v. Cusumano, 67 F.3d 1497 (10th Cir. 1995), concluded that use of a thermal imager constituted a search, but the decision was vacated on rehearing en banc on another basis without reaching the question. See United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) (en banc).

      [21].    See Kyllo, 190 F.3d at 1043 n.1 (“Judge Brunetti has been drawn to replace the Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, in this case.”).

      [22].    See id. at 1047 (Noonan, J., dissenting).

      [23].    Id. at 1046.

      [24].    Kyllo v. United States, 533 U.S. 27, 41 (2001).

      [25].    Id. at 34, 37. With characteristically colorful language, Justice Scalia offered that the thermal imager “might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate’ . . . .” Id. at 38.

      [26].    Id. at 35–36, 40.

      [27].    Id. at 40.

      [28].    Id. at 47 (Stevens, J., dissenting).

      [29].    This is evidenced by a simple query of “thermal imaging device” on

      [30].    See Cohen v. Chesterfield Cty. Sch. Bd., 326 F. Supp. 1159 (E.D. Va. 1971) (holding unconstitutional a Chesterfield County school policy prohibiting teachers from working past their fifth month of pregnancy).

      [31].    See Gilbert v. Gen. Elec. Co., 375 F. Supp. 367 (E.D. Va. 1974) (holding that an employer’s practice of excluding sickness and accident benefits from pregnancy related disabilities was unlawful sex discrimination).

      [32].    Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975) (Merhige, J., dissenting) (disagreeing with the majority opinion’s view that a statute making sodomy a crime was constitutional).

      [33].    See National College of Criminal Defense Lawyers Holds First Institute, 14 Crim. L. Rep. (BNA) 2001, 2326 (1973) (citing the Honorable Robert R. Merhige, Jr.) (“[M]any federal charges are multiplied for bargaining purposes. For instance . . . one bad social security check can lead to 10 federal counts.”).

      [34].    See Marston v. Oliver, 324 F. Supp. 691 (E.D. Va. 1971), rev’d, 485 F.2d 705 (4th Cir. 1973).

The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

Personal Reflections on the Honorable Robert R. Merhige, Jr.: A Judge, Mentor, and Friend

Mary Kelly Tate, Personal Reflections on the Honorable Robert R. Merhige, Jr.: A Judge, Mentor, and Friend, 52 U. Rich. L. Rev. Online 17 (2017).

Click here to download PDF.

Mary Kelly Tate *

Twenty-six years—half my lifetime—have passed since I joined Judge Merhige’s court family as his law clerk. I attempt here to sketch my personal impressions, distilling what to me was most remarkable about Robert R. Merhige, Jr. Perhaps unsurprisingly, this dynamic man turned legendary judge—a man I revered from the moment I met him—is more vivid to me now than he was to my younger self.

Mercurial, energetic, and benevolently despotic, Judge Merhige was a man of extraordinary decency who cherished his vocation and the law. He was a World War II veteran and an accomplished, wickedly talented trial attorney tapped by President Lyndon B. Johnson for the federal judiciary in 1967. As a Lebanese-Irish Northeasterner, he was understandably proud of making good in the famously clubby, genteel Richmond of the 1940s, 1950s, and 1960s. As a judge, he treated his court personnel and law clerks with great affection and caring watchfulness.

Although clerking affords a high degree of access to a judge in the ordinary course, I was fortunate to get a larger dose than is typical. I traveled with the Judge to New York City while he sat in the Brooklyn courthouse clearing its back-logged docket. It is a commonplace that traveling together often affords special insights into people, and it was no different with the Judge. I spent a total of eight weeks—three separate trips—on the Brooklyn assignment. Gil, the Judge’s court reporter, and I spent all day with him on those splendidly up-close trips.

And by all day, I mean all day. The Judge believed in togetherness when it came to his courtly entourage. We met in front of our next-door hotels (his was one step above mine in the amenities department) on East 50th Street in Manhattan at 7:00 AM, where a federal marshal picked us up to ferry us to the borough. After completing the day’s tasks, we journeyed back to Manhattan where, from the first day onward, the Judge would say to me, “Okay, see you in ten minutes.” I would hurriedly change and rush over to the Judge and Gil’s suite, in the comfort of which we would drink martinis until leaving for dinner no earlier than 8:00 PM. We did this every single night. This seventy-six-year-old man was tireless. He woke early every morning, the martinis or late hour of the preceding night be damned, brimming with excitement for the day ahead, scanning the city street impatiently while waiting for the unfailingly on-time federal marshal to arrive. That excitement streamed out of his eyes, and his walk crackled with it too.

The Brooklyn assignment was well-suited for Judge Merhige, as he was one of the progenitors of the spectacularly efficient “Rocket Docket,” known nationally for its swift and orderly dispensation of justice. It was a guilty pleasure to watch the most sophisticated, hard-driving, self-confident lawyers become slack-jawed when they first experienced the judicial command that the Judge would exert over the pace and tempo of their litigation strategies. I remember in particular a blue-stocking law firm partner of gray hair and sartorial splendor telling the Judge he had fifty witnesses, and the Judge telling him, with a steely stare, to pick five. For about thirty seconds, the unsuspecting lawyer thought the Judge was kidding.

Reflecting about my time with Judge Merhige in New York and Richmond, what comes to me now is his singular interest in people’s stories, his pragmatism, and his sense of personal loyalty to those he considered friends. These are the predominant traits that I experienced at his side. As a matter of history and with regard to how he faced the crucible of deciding the momentous controversies before him, courage is the trait that comes into the sharpest relief. That, however, is for a different piece, not this personal remembrance.

First, his love of stories. I am quite certain he offered me a clerkship for the primary reason that I came with a story in hand—the story of my ill-fated journey from Charlottesville to Richmond for my interview with him. En route to the Judge’s historic, regally beautiful chambers, the 1978 Skylark I had borrowed from my law professor had caught on fire, leaving me stranded twenty minutes outside downtown Richmond.

This travel misadventure delighted the Judge and took up the lion’s share of our time together during the interview, which I mistakenly thought was going to be about the law. He did not ask me a single legal question, nor did he make any inquiries into my academic credentials, which bordered somewhere between humdrum and good. It seems more than likely that the narrative hook that the fire provided overcame the competitive advantages other candidates had over me and satisfied the Judge’s ever-present interest in the backgrounds and experiences—the stories—of people’s lives.

No matter who the Judge was dealing with, the story that surrounded that person was his key focus. Pre-sentence reports, docket day banter with lawyers, exchanges with clerk office personnel, placing an order with a waiter—these were all opportunities the Judge took to try to discover a truth about a person and their story. He had an uncanny ability to incorporate the story to put the person at ease or to subtly discomfit the person. The latter he did sparingly and for noble purposes, such as when he sensed an untruth or spotted unfair jockeying.

His respect for the experiences of the individuals around him made him a thoughtful and kind judge. Kindness is not often talked about when delineating what is needed in a judicial temperament. But kindness he had in spades. I never witnessed him be mean from the bench to anyone. Firm, yes. Intense and hard-driving, undoubtedly. But never unkind. He was meticulous in treating everyone with the dignity owed each and every person.

As is widely known, Judge Merhige’s judicial career was marked by an epic engagement with the most searing controversies. He presided over the highest profile litigation of his epoch—school desegregation in the City of Richmond, protests at Wounded Knee, Watergate, and gender discrimination at the University of Virginia, among others. He saw the human condition in a sympathetic way. This allowed him to weigh competing equities with both humility and doggedness. It also compelled him to protect the rule of law as a force to stabilize the darker byproducts of democracy’s imperfect reckoning with human frailties.

Although his judicial portfolio was marked by decades of decisions of huge historical import, it was the case right before Judge Merhige that always had his greatest focus. As a judge, he lived not in the haze of a glorious past, but rather in the thick of the present moment. Like anyone who loves stories and history, he was a keen observer of human detail and motivation. The Judge was not afraid to remind everyone that every case before him, be it criminal or a complex tort case, at base was about people. He returned to this simple reminder again and again.

Notwithstanding the fact that his rulings often simultaneously spurred criticism and praise, I believe he made those rulings with an earnest and deeply felt commitment to the rule of law. He loved the story of America—its imperfect confrontation with its original sin of slavery, its decisive role in conquering fascism, its ever-renewing stream of immigrant hopefuls, and its gloriously independent federal judiciary. At both the personal and professional level, he touched these four pillars of the American story. Even though the American story is a contested one, my time with the Judge convinces me that these four storylines were the ones he felt were most important.

By all reasonable measures, Judge Merhige sought to be guided and limited by the law’s guardrails, be that the United States Constitution, state laws, or federal statutes. He saw himself as operating within a grand, majestic democratic system. Yes, he had a healthy self-regard, but, at base, he was an institutionalist who loved his country.

A second characteristic that comes to mind when reflecting on the Judge is that he was a pragmatic man, thinker, and judge. In addition to being a natural story-teller (hence his exquisite success as a trial attorney) and a tremendous respecter of the stories that made up other people’s lives, Judge Merhige navigated the power conferred upon him with an instinct for problem-solving. He was by nature open to solutions and compromises. He possessed a willingness to find new pathways to intractable disagreements, yet he also knew pragmatism’s limits. When those limits hit, he would set a fair playing field for the battle to be joined.

An example of this pragmatism occurred during an early lunch I had with him. He was not one to dine out much during the workday. He often said he ate to live, not the reverse. I cannot remember the reason I had this precious opportunity with him, but it was early in my clerkship when I was still in the thrall of the University of Virginia School of Law’s strongly theoretical lens. I inquired what brought him to conclude that the law compelled the University of Virginia to admit women, thinking I would hear a complex explanation around the doctrine of the equal protection clause. Instead, he looked up from his soup and said, “It wasn’t fair.” This is not to say that he did not respect doctrinal intricacies or rigorous legal reasoning, both of which he excelled at and utilized. It does, however, reveal the mind of a man whose bent is toward the pragmatic.

Third and finally, he bestowed great affection upon those in his midst. As for his loyalty and kindness to friends and those he called family, the examples of such run in the thousands. People who knew the Judge well often trade such stories with each other. The Judge loved taking action to show concern or affection. I remember being laid up with a terrible cold living in a duplex when an Article III judge tapped on my door with a smile on his face and a serving of Brunswick Stew in his hand. He also cherished the framed photographs of every clerk who had served him during his long tenure, which hung on the walls of his chambers. By the time I was with the Judge, visitors were met with fifty or so pictures of fresh-faced law clerks stacked one on top of the other. It was quite a sight and made the biggest visual statement of his chambers other than his gorgeous desk and fireplace. Those framed pictures announced to the world how much the Judge loved his clerks and where they stood in his heart.

There are times when a person finds his perfect destiny. Judge Merhige found his. Being witness to that destiny was one of the greatest privileges of my life. Yet when I recall those days, it is not the law, the cases, or the legendary record that fill my mind. Instead, my heart is moved in remembering a man lit with love for his country, his court, his family, and his friends. In the end, it was the love the Judge showed which burned the brightest.

* Founding Director, Institute for Actual Innocence. Public Defender, 1999–2001; Solo Practitioner, 1995–1999; Hunton & Williams, 1992–1995; Clerk to Judge Merhige, 1991–1992; J.D., 1991,University of Virginia; B.A., 1987, University of Kansas.

The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

The Honorable Robert R. Merhige, Jr.: A Series on His Life and Career

Stephen N. Scaife, The Honorable Robert R. Merhige, Jr.: A Series on His Life and Career, 52 U. Rich. L. Rev. Online 15 (2017).

Click here to download PDF.

The Honorable Robert R. Merhige, Jr., was a man and judge whose career, personality, and impact deserve to be celebrated and remembered. As this year is the fiftieth anniversary of his judicial appointment to the United States District Court for the Eastern District of Virginia, it provides a perfect opportunity to honor and remember his illustrious career. In this endeavor, the Online Edition of the University of Richmond Law Review is publishing a series of articles that highlight Judge Merhige’s impact on people and the law. As Judge Merhige was an alumnus of the University of Richmond School of Law (L’42), it is with a sense of pride that the University of Richmond Law Review presents this series. In the articles that follow, you, dear reader, will learn of—or fondly be reminded of—Judge Merhige’s memorable personality, towering intellect, and admirable courage and fortitude in ensuring that justice was achieved.

Those familiar with Judge Merhige often emphasize his devotion, namely his devotion to his court, to the city where his courtroom sat, and to the people who walked into his courtroom. In the following pages, one can perceive this devotion. But for now, it can best be summarized by the judge’s own words:

I didn’t go looking for social causes to advocate from the bench. I opened my courtroom one day and asked, “Is anybody here?” A lot of people answered back, “We’re here judge, and we want our constitutional rights.” So I did the only thing I could. I listened and tried to do the fair thing, the right thing.[1]


Stephen N. Scaife

Online Editor

        [1].    Ronald J. Bacigal, May It Please the Court: A Biography of Judge Robert R. Merhige, Jr., at xi (1992) (citation omitted).

Non-Contact Excessive Force by Police: Is that Really a Thing?

Non-Contact Excessive Force by Police: Is that Really a Thing?

Michael J. Jacobsma, Non-Contact Excessive Force by Police: Is that Really a Thing?, 52 U. Rich. L. Rev. Online 1 (2017).

Click here to download PDF.

Michael J. Jacobsma *


When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens[1] action if committed by federal agents.

But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to that question is yes. The context of such alleged excessive force is usually a detention of someone by police at gunpoint. A plaintiff may claim that the pointing of the gun is unreasonable and in violation of the plaintiff’s rights. However, the federal circuits are not uniform on this issue, and the United States Supreme Court has yet to squarely address such a claim.

This article’s purpose is to survey the law in the federal circuits to assist practitioners and courts in understanding the factors used by the federal circuits in analyzing whether a plaintiff has a colorable claim when no physical contact or injury results.

I.  Excessive Force and Civil Rights Actions Generally

The United States Supreme Court has established that in “addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.”[2] The Court opined, “In most instances, that will be either the Fourth Amendment’s prohibition against unreasonable seizures of the person, or the Eighth Amendment’s ban on cruel and unusual punishments . . . .”[3] This article will focus on claims made under a Fourth Amendment search and seizure analysis.

The claim must “be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ‘excessive force’ standard.”[4] Fourth Amendment protections clearly apply where “the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen . . . .”[5]

The Fourth Amendment’s reasonableness standard “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.”[6] Even if law enforcement has the right to make a search or seizure, such a seizure must be executed in a reasonable manner.[7] The “when” and “how” of otherwise legitimate law enforcement actions may always render such actions unreasonable.[8]

The Supreme Court has noted “that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”[9] Determining whether an officer’s actions meet the Fourth Amendment’s reasonableness standard is a fact-specific question.[10] The officer’s actions must be “objectively reasonable” to satisfy the Fourth Amendment.[11]

Thus, under Supreme Court jurisprudence, claims that police actions were excessive due to the display or brandishing of firearms are to be judged under an objective reasonableness standard.

II.  Federal Circuits Expressly Allowing Claims of Excessive Force Based on Unreasonable Seizure at Gunpoint (Third, Sixth, Seventh, Ninth, Tenth, and First Circuits)

A.  Third Circuit

The Third Circuit was among the first of the federal circuits to find that pointing a gun at a person without firing the weapon could amount to a constitutional violation. In Black v. Stephens, the Third Circuit affirmed a jury verdict finding that a Pennsylvania police detective, who was in plain clothes and did not identify himself to motorists with whom he had a dispute on the highway, committed excessive force when he pointed his revolver at the motorists and threatened to shoot.[12]

However, the court in Black did not analyze the constitutional violation under the Fourth Amendment. Rather, the court examined the case under a due process analysis, finding that the police detective’s actions were conduct that “shocks the conscience.”[13] Later, however, Graham eliminated the use of this “shocks the conscience” test under due process and now requires all claims of excessive force during the course of a pretrial arrest or seizure to be analyzed under the Fourth Amendment objective reasonableness standard.[14]

Later, the Third Circuit in Baker v. Monroe Township held that detention of a home’s occupants, who were handcuffed and detained at gunpoint during a drug raid, stated a triable excessive force claim under the Fourth Amendment.[15] The court noted that “the use of guns and handcuffs and, indeed, the length of the detention, shows a very substantial invasion of the [plaintiffs’] personal security.”[16]

B.  Sixth Circuit

The Sixth Circuit in Binay v. Bettendorf held that it was a question of fact for the jury to determine if police used excessive force in detaining and questioning individuals at gunpoint during a residential search where the detainees were cooperative and compliant.[17]

In Binay, police obtained a warrant to search the plaintiffs’ apartment based on suspicion of illegal narcotics possession. While executing the search, six masked police officers stormed the apartment while brandishing weapons and forced the plaintiffs to the floor. [18] The officers pointed their guns at the plaintiffs and handcuffed them.[19] The police secured the house within moments and a drug sniffing dog went through the house. The dog did not find any narcotics and was out of the apartment within fifteen minutes.[20] The police officers then ransacked each room but found nothing. The officers then interrogated the plaintiffs, who were still handcuffed and held at gunpoint. The plaintiffs were completely cooperative and the police left after an hour without finding any narcotics.[21]

The court reasoned that “Plaintiffs had no criminal record, cooperated throughout the ordeal, posed no immediate threat to the officers, and did not resist arrest or attempt to flee.”[22] The court opined that these were all factors weighing against the police officers’ argument that they acted reasonably and led to questions for the jury to resolve.[23]

C.  Seventh Circuit

The Seventh Circuit has upheld excessive force violations, in the context of a § 1983 action, for merely pointing firearms at individuals when it was unreasonable to do so.[24] In Baird v. Renbarger, the court upheld the denial of a police officer’s motion for summary judgment concerning a claim of excessive force in violation of the Fourth Amendment.[25]

In Baird, the officer used a submachine gun to round up persons located in one of the plaintiff’s shops and detained them until the search was completed.[26] The decision does not indicate whether the officer ever fired the weapon or made threats of using the gun, only that the officer used it to detain the individuals. The court concluded that “a reasonable jury could find that [the officer] violated the plaintiffs’ clearly established right to be free from excessive force when he seized and held them by pointing his firearm at them when there was no hint of danger.”[27] Other Seventh Circuit decisions have held the same.[28]

D.  Ninth Circuit

The Ninth Circuit held that pointing a gun at an unarmed suspect who poses no current danger constitutes excessive force in Robinson v. Solano County.[29] In that case, the court relied on the following factors: “the crime under investigation was at most a misdemeanor; the suspect was apparently unarmed and approaching the officers in a peaceful way; [t]here were no dangerous or exigent circumstances apparent at the time of the detention; and the officers outnumbered the plaintiff.”[30] The Ninth Circuit has also held that holding an infant at gunpoint constitutes excessive force.[31]

E.  Tenth Circuit

Similarly, in Holland v. Harrington, the Tenth Circuit held that holding children at gunpoint after the officers had gained complete control of the situation “was not justified under the circumstances.”[32] In that decision, the court reasoned that:

The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time . . . Where a person has submitted to the officers’ show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the officer or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person, in contrast to simply holding the weapon in a fashion ready for immediate use. Pointing a firearm directly at a child calls for even greater sensitivity to what may be justified or what may be excessive under all the circumstances.[33]

Furthermore, in Cortez v. McCauley, the Tenth Circuit specifically held that “[p]hysical contact is not required for an excessive force claim—patently unreasonable conduct is.”[34]

F.  First Circuit

The First Circuit has also recognized that detaining occupants at gunpoint incident to the search of a home can become unreasonable. In Mlodzinski v. Lewis, police conducted a raid on a home seeking to both arrest a seventeen-year-old boy suspected of committing an assault, and to find a nightstick with which he allegedly used to commit the assault.[35] Officers entered the bedrooms of the suspect’s fifteen-year-old sister and parents. The officer who entered the sister’s bedroom pointed an assault rifle at her for seven to ten minutes and brought her downstairs, where she continued to be detained during the search.[36]

The court held that it was unreasonable for an officer to point a rifle at the head of a non-threatening and handcuffed young girl for seven to ten minutes, which, the court concluded, was beyond the time necessary to arrest the only suspect.[37]

When the police entered the parents’ bedroom, according to the suspect’s mother, an officer kept his gun trained at her head for approximately half an hour while she was lying partially nude on the bed.[38] Like the conclusion arrived at with respect to the suspect’s sister, the court held, “The circumstances of [the plaintiff’s] detention in bed are unlike those in which a reasonable officer could have thought that keeping a gun pointed at her head was lawful.”[39]

III. Federal Circuits Expressly Disallowing Gunpoint Seizure Claims (Fourth, Second, and Eleventh Circuits)

A.  Fourth Circuit

The Fourth Circuit takes a different approach to these claims, describing them as “excessive use-of-weapons allegations” that are a “species” of excessive force claims.[40] In Bellotte v. Edwards, police officers executed a warrant search of a house in the middle of the night where one of the residents, Mr. Bellotte, was suspected of possessing child pornography. Officers entered the home with guns drawn and detained Mrs. Bellotte and her children at gunpoint while the premises were searched. Mrs. Bellotte and two of her daughters were in their respective bedrooms asleep. The suspect, Mr. Bellotte, was not at the home that night.[41]

In analyzing the excessive force claims brought by the Bellottes in a § 1983 action, the court, relying on its earlier decision in Taft v. Vines,[42] held that “[i]nvestigating officers may take such steps as are reasonably necessary to maintain the status quo and to protect their safety during an investigative stop.”[43] The court concluded that “although approaching a suspect with drawn weapons is an extraordinary measure, such a police procedure has been justified in this circuit as a reasonable means of neutralizing potential danger to police and innocent bystanders.”[44] Finding against the plaintiffs, the court reasoned that the police had good reason to fear for their safety because they were walking into an unsecured room and that no excessive force was used when pointing their weapons.[45]

B.  Second Circuit

The Second Circuit’s treatment on this issue is curious. The court of appeals has, at least, made the suggestion on one occasion that “[c]ircuit law could very well support [a] claim that a gunpoint death threat issued to a restrained and unresisting arrestee represents excessive force.”[46] However, the federal district courts have not followed that suggestion. In fact, since that Second Circuit decision, the district courts still maintain that “the vast majority of cases within the Second Circuit hold that merely drawing weapons when effectuating an arrest does not constitute excessive force as a matter of law.”[47] Therefore, it appears that the district courts within the Second Circuit expressly disallow claims of excessive force based only on the brandishing of firearms, regardless of the reasonableness of the police action.

C.  Eleventh Circuit

The Eleventh Circuit’s decision in Courson v. McMillian solidified that the Eleventh Circuit allowed officers to draw “weapons when approaching and holding individuals for an investigatory stop . . . when reasonably necessary for protecting an officer or maintaining order.”[48] Trial courts within the Eleventh Circuit have followed that line of reasoning in rejecting claims of excessive force based only on the pointing of guns while being detained.[49]

However, a more recent Eleventh Circuit decision appears to open the door to the possibility of abrogating that reasoning. In Croom v. Balkwill, the Eleventh Circuit stated in a footnote that “[a]n officer’s decision to point a gun at an unarmed civilian who objectively poses no threat to the officer or the public can certainly sustain a claim of excessive force.”[50] The court even cited some of the cases from other circuits discussed above that allowed excessive force claims where no physical harm occurred.[51] Thus, conditions may be ripe in the Eleventh Circuit to follow the lead of those circuits expressly allowing excessive force claims for gunpoint seizures.

IV.  Federal Circuits Analyzing Excessive Force Claims re Seizure at Gunpoint Based on the Injury Sustained by the Plaintiff (Fifth Circuit)

A.  Fifth Circuit

The Fifth Circuit held in Flores v. City of Palacios that “[a] plaintiff alleging an excessive force violation must show that she has suffered ‘at least some injury.’ While certain injuries are so slight that they will never satisfy the injury element, psychological injuries may sustain a Fourth Amendment claim.”[52] The court went on to specifically affirm that “no physical injury is necessary to state a Fourth Amendment claim.”[53]

It would thus appear that in the Fifth Circuit, one could maintain an excessive force claim where police unreasonably detain someone at gunpoint. However, at least one federal district court within the Fifth Circuit appeared to interpret the Fifth Circuit’s holding in Flores to require at least some medical evidence in order to prove the claim of psychological injury. In Strickland v. City of Crenshaw, the district court reasoned that the Fifth Circuit in Flores accepted the plaintiff’s allegation that the plaintiff suffered a diagnosable mental disorder (PTSD), which suggests that “some form of medical evidence is generally required to establish a psychological injury.”[54] This interpretation may be unduly burdensome in light of the Fifth Circuit’s previous decision in Petta v. Rivera where the court held that “[a] police officer who terrorizes a civilian by brandishing a cocked gun in front of that civilian’s face may not cause physical injury, but he has certainly laid the building blocks for a section 1983 claim against him.”[55]

V.  Circuits That Have Yet to Squarely Address the Issue (Eighth and D.C. Circuits)

A.  Eighth Circuit

The Eighth Circuit has not yet squarely addressed the issue of whether a § 1983 action for excessive force can be maintained based only on a seizure at gunpoint. But there has been at least one federal district court that allowed such a claim to go forward.[56] The Eighth Circuit Court of Appeals has addressed the issue of excessive force based on brandishing guns in the context of criminal cases. In United States v. Fisher, the Eighth Circuit declared, “It is well established, however, that when officers are presented with serious danger in the course of carrying out an investigative detention, they may brandish weapons or even constrain the suspect with handcuffs in order to control the scene and protect their safety.”[57]

This well-established principle is derived from the Supreme Court’s decision in Terry v. Ohio, which explained the Fourth Amendment standards and limits on police officers making a brief investigatory detention.[58] In Terry, the Court understood the need for a police officer to make certain intrusions of a person for the safety and protection of the officer, but only when the officer has a reasonable and justifiable belief that the person whom the officer is investigating is armed and dangerous.[59]

It appears logical, then, from the Supreme Court’s decision in Terry and the Eighth Circuit’s decision in Fisher, that if police do not have a specific, particularized suspicion that a suspect is armed and dangerous, brandishing weapons to coercively force that person to follow police instructions is unreasonable under the Fourth Amendment.

Furthermore, unlike the Fifth Circuit, the Eighth Circuit has held that “a citizen may prove an unreasonable seizure based on an excessive use of force without necessarily showing more than de minimis injury.”[60] The Eighth Circuit had previously held that a plaintiff bringing an excessive force claim who suffered post-traumatic stress disorder satisfied the court’s requirement that a plaintiff suffer “actual injury” from the alleged excessive force.[61] Thus, conditions could be ripe for the Eighth Circuit to join the other circuits that allow an excessive force claim based on an unreasonable brandishing of guns during the course of a seizure.

B.  D.C. Circuit

The D.C. Circuit has not squarely addressed the issue either. However, one circuit court decision may have given tacit approval to an excessive force claim based on pointing firearms at the plaintiff during a seizure. In Youngbey v. District of Columbia, the federal district court held that, if the plaintiff’s version of the facts were true, it was unreasonable for police officers, while executing a search warrant of a residence, to detain the plaintiff at gunpoint five to ten minutes after the premises were secured.[62]

On the police officers’ appeal, the D.C. Circuit reversed the district court in part.[63] The reversal related to the district court’s decision that the police officers were not entitled to qualified immunity as to whether the police acted reasonably regarding their “no-knock entry” of the residence.[64] However, the court held that the remaining issues should proceed to trial.[65] The D.C. Circuit did not discuss the excessive force claim, though the decision does not appear to indicate that the specific issue was appealed.

VI.  Factors to Examine in Gunpoint Seizure Cases

What factors should the practitioner or jurist look for when faced with an apparent unlawful seizure at gunpoint? As with so much of Fourth Amendment jurisprudence, whether an exercise of force is excessive will vary depending on the facts and circumstances of the specific case.[66] The factors laid out in Graham are the starting point: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[67]

Many of the cases seem to turn on whether the police have a reasonable belief that their safety is at risk due to a reasonable suspicion that the suspect is armed with guns, or the detainees are disobeying the police officers’ instructions.[68]

In cases where the detention at gunpoint is made pursuant to a warrant to search a residence, adequate justification may exist for the initial brandishing of firearms while executing the warrant. This is due to the existing probable cause that a suspect is wanted on violent criminal charges, or the place to be searched is suspected of narcotics trafficking, both of which are factors indicating the possible presence of guns.[69]

In such cases, the length of the seizure at gunpoint, and who is being detained, may be critical.[70] The police must give careful attention to non-suspects who happen to occupy the place to be searched. As the court in Mlodzinski observed, if a gun is pointed at an occupant of a residence for only a short period while police gain control of the situation, that could affect the outcome of an excessive force claim.[71]


There appears to be a trend among the federal circuits to place greater attention on the issue of whether the actions of the police were unreasonable, and less attention to the injury caused by the force used. As the Tenth Circuit concluded in Holland v. Harrington, “The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force.”[72] Some courts seem to recognize the psychological injury that can accompany a loaded gun pointed at one’s head even though no physical contact is made. Practitioners and jurists should be sensitive to this reality in defining what constitutes “excessive” force.

*   Founding Partner, Jacobsma, Clabaugh, & Goslinga, PLC, Sioux Center, Iowa. J.D., 1996, Creighton University. The author practices civil and criminal litigation and is an adjunct professor at Dordt College, Sioux Center, Iowa. The author would like to express his gratitude to his busy partners, Missy Clabaugh and Kelly Goslinga, for their encouragement, patience, and “carrying the load” for the firm during the writing of this article.

        [1].    See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971).

        [2].    Graham v. Connor, 490 U.S. 386, 394 (1989) (“‘The first inquiry in any § 1983 suit’ is to isolate the precise constitutional violation with which [the defendant] is charged.” (quoting Baker v. McCollan, 443 U.S. 137, 140 (1979))).

        [3].    Id.

        [4].    Id.

        [5].    Id.

        [6].    Id. at 396 (citing Tennessee v. Garner, 471 U.S. 1, 8 (1985)).

        [7].    See Zurcher v. Stanford Daily, 436 U.S. 547, 559–60 (1978) (noting that possession of a warrant and probable cause does not immunize searches from review for Fourth Amendment reasonableness).

        [8].    See id.

        [9].    See Graham, 490 U.S. at 396.

      [10].    Id. (opining that the lack of a precise definition of the reasonableness standard requires a careful analysis of the facts, including the crime’s severity, the suspect’s threat, and whether he is resisting or evading arrest).

      [11].    Id. at 397.

      [12].    See Black v. Stephens, 662 F.2d 181, 184–85 (3d Cir. 1981).

      [13].    Id. at 188 (quoting Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir. 1979)).

      [14].    See Graham, 490 U.S. at 394.

      [15].    Baker v. Monroe Township, 50 F.3d 1186, 1195 (3d Cir. 1995).

      [16].    Id. at 1193.

      [17].    See Binay v. Bettendorf, 601 F.3d 640, 653–54 (6th Cir. 2010).

      [18].    Id. at 644.

      [19].    Id.

      [20].    Id.

      [21].    Id.

      [22].    Id. at 650.

      [23].    Id.

      [24].    E.g., Baird v. Renbarger, 576 F.3d 340, 342 (7th Cir. 2009).

      [25].    Id. at 342–43.

      [26].    See id. at 343.

      [27].    Id. at 347.

      [28].    E.g., Jacobs v. City of Chicago, 215 F.3d 758, 773–74 (7th Cir. 2000) (opining that officers may violate the plaintiff’s Fourth Amendment rights when they pointed a gun at an elderly man’s head for ten minutes even after realizing that he was not the desired suspect); McDonald v. Haskins, 966 F.2d 292, 294–95 (7th Cir. 1992) (reasoning that pointing a gun at a nine-year-old child during a search and threatening to pull the trigger was “objectively unreasonable”).

      [29].    Robinson v. Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002) (en banc).

      [30].    Id.

      [31].    See Motley v. Parks, 432 F.3d 1072, 1089 (9th Cir. 2005) (en banc).

      [32].    Holland v. Harrington, 268 F.3d 1179, 1193 (10th Cir. 2001).

      [33].    Id. at 1192–93.

      [34].    Cortez v. McCauley, 478 F.3d 1108, 1131 (10th Cir. 2007).

      [35].    Mlodzinski v. Lewis, 648 F.3d 24, 29 (1st Cir. 2011).

      [36].    Id. at 30.

      [37].    See id. at 38.

      [38].    Id. at 30–31.

      [39].    Id. at 39. The court examined the relevant factors laid out in Graham and reasoned that:

While the [police] officers did initially have to make split second decisions to assess [the plaintiff’s] threat level and the possible need for restraint, that does not characterize the entire period in the bedroom, which she says was half an hour. Rather, it quickly became clear, on plaintiffs’ version of the facts, that [the plaintiff] was not the suspect, that she was not trying to resist arrest or flee, that she was not dangerous, and that she was not trying to dispose of contraband or weapons. Further, she was completely compliant with all orders. These are all relevant factors under Graham that undercut any claim that defendants acted reasonably.


      [40].    Bellotte v. Edwards, 629 F.3d 415, 424 (4th Cir. 2011).

      [41].    Id. at 418–19.

      [42].    Taft v. Vines, 83 F.3d 681 (4th Cir. 1996).

      [43].    See Bellotte, 629 F.3d at 425.

      [44].    Id. (citations omitted).

      [45].    Id. at 426.

      [46].    See Mills v. Fenger, 216 F. App’x 7, 10 (2d Cir. 2006).

      [47].    See Dunkelberger v. Dunkelberger, No. 14-CV-3877, 2015 U.S. Dist. LEXIS 133814, at *43 (S.D.N.Y. Sept. 30, 2015) (quoting Cabral v. City of New York, No. 12 Civ. 4659, 2014 U.S. Dist. LEXIS 131342 at *28 (S.D.N.Y. Sept. 17, 2014) (“[The defendant’s] approach with his gun drawn does not constitute excessive force as a matter of law.”)); Mittelman v. County of Rockland, No. 07-CV-6382, 2013 U.S. Dist. LEXIS 46382, at *37 (S.D.N.Y. Mar. 26, 2013) (“Likewise insufficient is [the][p]laintiff’s assertion that the officers pointed guns at him. A threat of force does not constitute excessive force.”); Askins v. City of New York, No. 09 Civ. 10315, 2011 U.S. Dist. LEXIS 40435, at *10 (S.D.N.Y. Mar. 25, 2011) (“While the Second Circuit has noted that ‘circuit law could very well support a claim that a gunpoint death threat issued to a restrained and unresisting arrestee represents excessive force,’ [the] plaintiff’s assertion that a gun was pointed at his head cannot be the basis of a claim for excessive force.” (quoting Mills v. Fenger, 216 F. App’x 7, 9 (2d Cir. 2006) (alterations omitted)); Aderonmu v. Heavey, No. 00 Civ. 9232, 2001 U.S. Dist. LEXIS 640, at *10 (S.D.N.Y. Jan. 26, 2001) (dismissing excessive force claim based on an interrogation at gunpoint because the plaintiff “fail[ed] to allege that any physical force was used against him during his interrogation, or that any injuries resulted from [the] defendants’ allegedly unconstitutional conduct”).

      [48].    Courson v. McMillian, 939 F.2d 1479, 1494–95 (11th Cir. 1991).

      [49].    See, e.g., Raby v. Baptist Med. Ctr., 21 F. Supp. 2d 1341, 1350 (M.D. Ala. 1998) (holding that the police officer’s actions of sticking his pistol through the window of the plaintiff’s car and pointing it at the plaintiff’s head was not excessive force and stating that “where the officer merely points a gun at a suspect in the course of arresting him, the suspect would have no basis for claiming . . . excessive force” (citations omitted)); see also Roberts v. City of Hapeville, No. 1:05-CV-1614-WSD, 2007 U.S. Dist. LEXIS 10508, at *20 n.12 (N.D. Ga. Feb. 15, 2007) (holding that the plaintiff’s allegation that an officer pointed a gun at his neck during the course of an arrest was insufficient to state a claim for excessive force).

      [50].    Croom v. Balkwill, 645 F.3d 1240, 1252 n.17 (11th Cir. 2011).

      [51].    Id.

      [52].    Flores v. City of Palacios, 381 F.3d 391, 397–98 (5th Cir. 2004) (citations omitted).

      [53].    Id. at 401.

      [54].    Strickland v. City of Crenshaw, 114 F. Supp. 3d 400, 416 (N.D. Miss. 2015); see also Casto v. Plaisance, No. 15-817, 2016 U.S. Dist. LEXIS 64171, at *19 (E.D. La. May 16, 2016) (holding that the plaintiff’s excessive force claim against the police officer for brandishing a gun at him failed because the plaintiff’s momentary fear was not more than de minimus psychological injury).

      [55].    Petta v. Rivera, 143 F.3d 895, 905 (5th Cir. 1998) (citing Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986)).

      [56].    See Wilson v. Lamp, 142 F. Supp. 3d 793, 805–06 (N.D. Iowa 2015).

      [57].    United States v. Fisher, 364 F.3d 970, 973 (8th Cir. 2004) (emphasis added).

      [58].    Terry v. Ohio, 392 U.S. 1, 20 (1968).

      [59].    In Terry v. Ohio, the Court reasoned:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Id. at 24.

      [60].    Chambers v. Pennycook, 641 F.3d 898, 901 (8th Cir. 2011).

      [61].    Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir. 1995).

      [62].    Youngbey v. District of Columbia, 766 F. Supp. 2d 197, 213 (D.D.C. 2011).

      [63].    See Youngbey v. March, 676 F.3d 1114, 1126 (D.C. Cir. 2012).

      [64].    See id.

      [65].    See id.

      [66].    See, e.g., Binay v. Bettendorf, 601 F.3d 640, 649 (6th Cir. 2010) (“[T]he fact that it is sometimes reasonable to use handcuffs and guns when detaining suspects does not support Defendants’ argument that the amount of force used in this case was objectively reasonable.”).

      [67].    Graham v. Connor, 490 U.S. 386, 396 (1989).

      [68].    See, e.g., Deskins v. City of Bremerton, 388 F. App’x 750, 752 (9th Cir. 2010) (holding that the officer was in danger when the officer was alone and the defendant disobeyed instructions); United States v. Trueber, 238 F.3d 79, 94 (1st Cir. 2001) (holding that the officer’s safety was at risk when the suspect was stopped for trafficking narcotics, “a pattern of criminal conduct rife with deadly weapons” (citation omitted)); United States v. Lloyd, 36 F.3d 761, 762–63 (8th Cir. 1994) (opining that the police acted reasonably when they brandished their weapons upon encountering an individual at a location where police were investigating a report that a man’s life was threatened by several men who had machine guns, shotguns, hand guns, and drugs); United States v. Jackson, 652 F.2d 244, 249 (2d Cir. 1981) (holding that drawing a firearm was reasonable when a police officer came across a driver that was suspected of escaping an armed bank robbery).

      [69].    For a collection of cases holding generally that the real or legitimately suspected presence of dangerous activity may be adequate justification to brandish a firearm see Deskins, 388 F. App’x at 752; Trueber, 238 F.3d at 94; Lloyd, 36 F.3d at 762–63; Jackson, 652 F.2d at 249.

      [70].    See, e.g., Mlodzinski v. Lewis, 648 F.3d 24, 40 (1st Cir. 2011).

      [71].    See id. (“[T]he situation would be very different if, given the execution of these warrants, [the plaintiff] had been detained with a weapon pointed at her for only a very short period needed while she was being cuffed, her husband was being escorted out of the room, and her son was being apprehended.”).

      [72].    Holland v. Harrington, 268 F.3d 1179, 1192 (10th Cir. 2001).


Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases

Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases

Winthrop Rutherfurd, Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases, 51 U. Rich. L. Rev. Online 93 (2017).

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Winthrop Rutherfurd *


I have heard some express the opinion that it would have been better not to have made a Constitution for the Confederate States until after the war was over![1]


Across the Confederacy, state judges uniformly claimed jurisdiction to issue habeas writs to confederate conscription officers on behalf of conscripts claiming unlawful detention. State judges based this authority to issue habeas writs to federal officers on the state habeas doctrine, pursuant to which a state court had coequal jurisdiction with federal courts to determine the lawfulness of a habeas petitioner’s detention. Today state habeas doctrine would constitute a gross violation of jurisdictional lines separating federal and state sovereignty;[2] federal courts have exclusive jurisdiction to determine whether a federal prisoner’s detention is lawful.[3] Even during the antebellum period state habeas was constitutionally controversial, resulting in a robust and divided body of antebellum state and federal precedent, and featured in the broader judicial and political disputes over the boundaries of states’ rights. In the flagship Confederate state habeas conscription cases issued by the supreme courts of North Carolina, Alabama, and Georgia in 1863, only one state supreme court judge dissented from holding state habeas as constitutional under both the United States and Confederate constitutions.[4] By staking a claim to the jurisdictional space of state habeas these confederate state judges made an unequivocal statement about how they envisioned the balance of state and federal sovereign power in the Confederacy. While confederate state judges defended state habeas as an extension of state sovereignty, they were the first in American legal history to widely endorse conscription as constitutional.[5] This was an unprecedented expansion of federal power that subordinated the states’ sovereign prerogative to raise militias.

The dialogue about national conscription and state habeas between state judges and the Jefferson Davis administration sheds light on a constitutional identity crisis about states’ rights absent an abolitionist threat within the Confederacy. The states’ rights ethos of secessionism had rested on the compact theory of federalism, pursuant to which states were equal with the federal judiciary as arbiters of the Constitution because the United States derived its sovereignty from the sovereignty of the several states, and the prior could not supersede the latter. Because the sovereign states had formed the federal sovereign through a compact, a state could exit the constitutional compact should that state believe the federal government improperly infringed upon its sovereignty. The Davis administration’s apprehension about state habeas was that, because a conscript could challenge conscription’s constitutionality in a habeas petition, the determination of whether that conscript’s detention was lawful put Confederate military policy in the hands of a multitude state supreme (or even lower state) courts. State habeas provided a unique forum, unfettered because no Confederate Supreme Court was established, for confederate state judges to determine the boundaries of states’ rights in the Confederacy. Given this forum, confederate state courts generally did not stake a claim to jurisdictional parity with a future Confederate Supreme Court, or fully embrace the states’ rights ethos of secession. Confederate state judges reviewed the constitutionality of conscription to determine lawfulness of a habeas petitioner’s detention, but were largely silent about whether confederate states could nullify what the states construed as onerous federal legislation. State habeas doctrine diverged from the states’ rights of secession in that the state habeas doctrine did not hold the states, or their courts, were equal with the Supreme Court as arbiters of the Constitution. These judges did not seek to diverge from antebellum state habeas doctrine, which presumed state and federal courts had co-equal authority to determine the lawfulness of a prisoner’s detention, but did not presume to extend the states’ coequal jurisdiction beyond the determination of lawfulness. Confederate state judges eschewed the states’ rights of secessionism for the moderated variant underlying the state habeas doctrine, in which state habeas acted as a procedural check on abuses of federal power without a broader substantive claim to the states’ sovereign prerogative.

State judges embraced state habeas as the vehicle to ensure the integrity of state sovereignty amidst national military centralization. Confederate state habeas cases serve as indicia of the boundaries to which states’ rights took root within the confederate legal landscape and the genesis of a confederate constitutional culture forged by state judges. This emerging constitutional culture was distinguished by states’ rights more elastic than those animating secession because substantive rights of the sovereign states as sovereigns, such as that to raise a militia, were constitutionally subordinate to federal military power. This suggests the states’ rights for which the Confederacy ostensibly had been formed did not resonate, amongst legal actors, at least outside the politics of slavery.

The state courts’ embrace of state habeas deepens our understanding of Confederate legal history.[6] Law professors David P. Currie and G. Edward White examined the Confederacy’s constitutional identity crisis—the tension between the Confederacy’s secessionist founding principles and the unprecedented expansion of confederate federal power during the War—in the context of the Confederate Congress and Constitution.[7] White addresses the Confederacy’s judicial architecture under the new Constitution and the war’s central legal issues to conclude that the Confederacy was plagued by an internal and external struggle regarding how to live up to states’ rights ideals while also expanding military power to fight the war.[8] In Currie’s account, the Confederate Constitution represented a measured half step in the direction of states’ rights, and the Confederate Congress, as well as the Davis administration to a lesser extent, readily controverted those secessionist states’ rights principles in the Constitution for the sake of the war effort.[9] J.G. de Roulhac Hamilton likewise addressed the confederate constitutional identity crisis in his seminal work on state courts in the Confederacy.[10] Hamilton presents a trend wherein judges raised states’ rights argument in their opinions before inevitably accepting the general government’s strong wartime prerogative.[11] White and Currie’s findings can be applied to the jurisdictional aspect of the conscription cases, where a multitude of legal voices wrestled with the constitutional identity crisis in an evolving judicial context. How judges could give credence to states’ rights while supporting centralization makes sense when it is understood that the exercise of state habeas jurisdiction was an expression of state sovereignty. White, Currie, and Hamilton’s works raised the question of what happened to all the South’s states’ rights rhetoric once the war began. State habeas provides the answer: judges took care to represent state habeas as a proxy for state sovereignty rather than use that jurisdiction as a platform to strike at military centralization.

Those who have studied the confederate conscription cases at length missed the meaning of the state judges’ decision to embrace state habeas jurisdiction. James G. Randall identified the jurisprudential fodder contained in Union state habeas cases, but failed to capitalize on the opportunity of expanding his analysis beyond a cursory treatment, or recognizing the doctrine’s role in the Confederacy.[12] Law professors Alfred Brophy and James Gardner do not remark on state habeas as a distinct legal issue in their studies of state conscription cases.[13] The former adopts the methodology of contextualizing decisions within the judges’ antebellum political affiliations, the latter focuses on whether the judges employed regionally distinct constitutional analyses. Neither perceived anything substantively out of the ordinary in state judges’ reasoning beyond the prominence of the doctrine of necessity.[14] Hamilton and historian Sidney Brummer give greater attention to state habeas, but do not incorporate the doctrine into a larger argument. Hamilton gives little analysis beyond detailing the arguments for and against state habeas in a prominent North Carolina conscription case.[15] Brummer takes note of how state habeas “vitally” affected relations between the Confederate and state governments, but gives no additional commentary other than outlining the three habeas cases discussed below.[16] Currie gives state habeas only a cursory mention in a footnote.[17] All reached these conclusions because the state habeas cases’ outcomes did not fit the normative states’ rights mold, leading these scholars to ignore the significance of state habeas jurisdiction.

A study of state habeas contextualizes a Confederate struggle for constitutional identity. Both Currie and White portray the Confederate Congress’s failure to establish a Supreme Court as central to the constitutional identity crisis.[18] For White, the debate over whether to establish the Supreme Court, as was constitutionally mandated, captures the Confederacy’s essential spirit: “it was constantly struggling to establish its identity as a government separate from, as well as the agent of, the states that formed it.”[19] White’s observation manifests in the administration’s relationship with state habeas. Because the administration disagreed with the legal basis for state habeas, but participated in state habeas litigation instead of circumventing the state courts, the administration respected the judges’ decision to honor states’ rights through state habeas. How the administration grappled with whether to suspend habeas illustrates the shifting boundary of the administration’s respect for states’ rights, expanding on Currie and White’s work and our understanding of Confederacy.[20]

This article expands on recent interest in state habeas as a constitutional doctrine by federal courts scholars.[21] These scholars have not critically examined Confederate state judges’ defense of state habeas. Consequently, there is a gap in the scholarship between Ableman v. Booth and Tarble’s Case,[22] in which the Supreme Court first addressed and then conclusively struck down the state habeas doctrine as unconstitutional. This article fills that gap by presenting the ways in which state habeas jurisdiction was defended in practice as an offshoot of state sovereignty, characterized as a bastion for individual liberty, and conceived of as an integral component in the separation of powers.

Part I of this article covers the origins of the state habeas doctrine and explores how conscription brought the tension between the Confederacy’s founding states’ rights principles and military centralization to the fore of an evolving discourse between statesmen and judges. Part II examines the three flagship cases on state habeas jurisdiction,[23] as well as how state habeas empowered state courts in the Confederacy’s federal structure absent a Supreme Court. Arguments for state habeas illustrate how judges conceived of habeas jurisdiction as an extension of state sovereignty by framing the jurisdiction as a substantive liberty right integral to sovereignty and a crucial judicial check on executive power. Finally, Part III explores how the Davis administration’s relationship with state habeas doctrine marked the evolving boundaries of the administration’s deference to states’ rights principles.

Antebellum State Habeas and Confederate Constitutionalism

In the early 1800s the writ of habeas corpus evolved beyond procedure to a substantive right to liberty. American colonists had copied portions of the English Habeas Corpus Act of 1679 verbatim in colonial charters and incorporated habeas into American courts’ common law jurisdiction.[24] By the Revolution, all thirteen colonies’ legal systems had access to the writ, which Americans had begun to conceive of as a distinct right, part of the fabric of their nascent American law apart from that administered by English governors, and as a substantive legal doctrine rather than solely a common law procedural device.[25] United States Supreme Court Justice Joseph Story described the writ as the “bulwark of personal liberty,” which could be “applied to every case of illegal restraint.”[26] Writing in 1843, Pennsylvania Congressman Richard Vaux, noted of habeas corpus, “[i]ts sole object is to prevent oppression and injustice, and give to innocence every opportunity to manifest itself.”[27] State courts drew on this tradition to support their habeas jurisdiction extension to federal officers, holding the exercise of that jurisdiction as central to a sacrosanct common law doctrine for the protection of individual liberty predating the Constitution itself.[28]

The earliest state habeas cases involved soldiers seeking discharge from the military. These cases generally arose when underage soldiers second-guessed their martial enthusiasm and sought discharge by virtue of their age.[29] The Supreme Court of New Hampshire in State v. Dimick held that a detention under the color or pretense of United States law “neither confers an exclusive jurisdiction on the courts of the United States, nor ousts the ordinary jurisdiction of the courts of the state.”[30] Writing for the Supreme Court of Pennsylvania in Commonwealth v. Holloway, noted constitutional authority and jurist William Tilghman asserted the right of state courts to discharge those in federal custody, adding that because of the limited availability of federal courts, “it would be an intolerable grievance to have no relief from imprisonment but by application to the district judge.”[31]

Mid-nineteenth century constitutional authorities Thomas Seargeant and James Kent affirmed state habeas doctrine in the constitutional literature of the day, noting that while many states maintained the doctrine, the Supreme Court admittedly had not decided the issue.[32] Rollin Hurd, author of the leading antebellum habeas corpus treatise, concluded: “It may be considered settled that state courts may grant the writ in all cases of illegal confinement under the authority of the United States.”[33] Support from state court judges and legal commentators provided the precedential support for the Confederate state judges’ construction of state habeas as a substantive right attendant state sovereignty. Federal case law, culminating in the Supreme Court’s decision in Ableman v. Booth, generally presented the countervailing position that only federal courts could issue habeas writs to federal officers; a wrinkle that Confederate state judges had to address because, in one of the first congressional acts, the Confederacy adopted United States case law as controlling precedent.[34]

The Supreme Court first addressed the state habeas doctrine in Ableman v. Booth. In 1854, abolitionist newspaper editor Sherman M. Booth led a crowd to free a former slave working in Wisconsin. After his arrest by a federal officer for aiding and abetting a fugitive slave’s escape, Booth obtained a habeas writ from a Wisconsin Supreme Court Justice discharging him on the grounds that the 1850 Fugitive Slave Act was unconstitutional.[35] A federal grand jury subsequently indicted Booth for the same charge, but Booth again obtained a release from the Wisconsin Supreme Court, after which the United States Attorney General filed a petition with the United States Supreme Court Chief Justice Roger Taney, an open supporter of slavery, on the grounds that state courts lacked habeas jurisdiction over federal officers.[36] Taney’s opinion in Ableman denying the Wisconsin supreme court’s habeas jurisdiction fit into the broader jurisprudential trend in federal law constricting the states’ concurrent jurisdiction and expanding federal power.[37]

Writing for a unanimous Court, Taney portrayed state habeas as a usurpation of federal power threatening to upset the careful balance of federalism, a viewpoint later shared by the Davis administration.[38] State habeas doctrine, Taney declared, rested on the presumption of the state courts’ paramount power.[39] To permit state habeas in practice would mean “no offence against the laws of the United States can be punished by their own courts, without the permission and according to the judgment of the courts of the state in which the party happens to be imprisoned.”[40] Taney’s misgivings were rooted in the belief that state judges beholden to local interests would control federal officers at will and upset national policy.[41] A harmonious federal structure demanded federal exclusivity. The Tenth Amendment stated as much, Taney argued.[42] Any attempt for a government to exceed its sovereign boundaries would result in “lawless violence.”[43] This position was informed by Taney’s dual sovereignty conception of the Union. In Taney’s view, both governments derived power directly from the sovereign people and the Supreme Court had been granted final authority in the Constitution to arbitrate disputes about whether state and federal governments wandered outside their proper spheres.[44] The Constitution had been entered into by the states as an agreement.[45] Per the binding contractual terms of that relationship, states had given up part of their sovereignty to secure harmony, creating distinct sovereign bodies independent within their constitutionally granted spheres.[46] For the integrity of the sovereignty of both governments, complete separation was imperative. Wisconsin then had no right to confer state habeas jurisdiction.[47] Upon receiving a writ from a state judge, a federal officer need only explain that the petitioner is in custody under federal authority.

Contemporary legal reactions to Taney’s opinion’s and the constitutionality of state habeas doctrine was mixed until 1871 when the United States Supreme Court decided Tarbles Case.[48] Confederate state judges framed their opinions on state habeas as a clarification of Ableman, which they reasoned a priori could not have stripped the states’ of an integral part of their sovereignty by congressional or constitutional implication. Taney, confederate state judges opinions insisted, had unduly transposed the threat posed to the federal-state equilibrium by Abelman’s facts onto the state habeas doctrine, which only created equality between state and federal courts for the purpose of protecting citizens’ liberty against unlawful detention. Confederate state judges read Ableman’s holding as controlling only in instances when a state judge issued a writ after a federal court had begun process, a viewpoint apparently widely held enough, both North and South, to prompt the United States Supreme Court to hear Tarbles Case to expressly settle state habeas unconstitutionality.

The jurisprudential grounds for state habeas can be understood as a moderated form of the compact theory of federalism. State habeas aligned with the compact theory in that state habeas proponents reasoned that when the states as sovereigns entered into the constitutional compact the states had agreed to transfer only enumerated sovereign powers to the new federal government. All residual attributes of state sovereignty, including state habeas, remained with the states unless explicitly forfeited.[49] Where ambiguity arose about whether federal power superseded that of the states it was assumed the states had not ceded over sovereign power, which necessitated a narrow reading of federal sovereignty, and a correspondingly narrow grant of federal jurisdiction. But state habeas doctrine diverged from the compact theory in that state habeas did not necessarily presuppose that what the states as sovereigns had bestowed the states could also take away, or that states shared authority commensurate with the United States Supreme Court’s to interpret the national laws’ constitutionality.[50] State habeas doctrine was not imbued with the pro-secession and nullification theories’ conviction that the states’ sovereign prerogative prevailed when in conflict with the federal. The spirit of the state habeas doctrine was cooperation. The doctrine’s imperative was that a judicial body reviews the lawfulness of a citizen’s detention. For this task state courts were fungible with lower federal courts. As a matter of practicality, in the antebellum United States state courts were far more accessible than federal.

Attachment to the secessionist variant of states’ rights quickly faded from the evolving dialogue about the nature of states’ rights in the Confederacy, belying the secessionists’ commitment to the compact theory as a jurisprudential doctrine rather than as a political expedient to protect slavery. Secessionism and the Confederate Constitution, modeled on the United States’, had not begot clarity about the balance of federal-state power in the Confederacy. The constitutional disputes for which southerners purportedly fought the war remained alive with the Confederacy as the Confederate government interpreted the new Constitution to support a more expansive federal prerogative than any exercised by the United States before the war. Conscription created the medium for state judges to introduce coherency into this muddled constitutional landscape by supporting the moderated compact theory of states’ rights embodied in the state habeas doctrine, thereby formulating a nascent confederate constitutionalism that institutionalized a variant of states’ rights that did not interfere with the war effort.

By spring of 1862, the Confederacy’s manpower deficit convinced the Davis administration and the Confederate Congress that conscription, along with other iterations of military centralization, was imperative to conduct a successful war effort. From its beginning, conscription incited controversy as a significant minority of politicians decried the contravention of the states’ rights principles for which the South had left the Union. Regardless of conscription’s salutary effect for the war effort, for many the antebellum specter of federal tyranny had become a manifest reality in the Confederacy. The Confederate Congress and Davis administration passed the First Conscription Act on April 16, 1862, as a war measure permissible under the Congress’s constitutional authority to raise armies.[51] The First Conscription Act granted the Davis administration authority to call to service all men between eighteen and thirty-five, and stipulated that conscripts could hire substitutes or apply for exemptions pursuant to War Department regulations.[52] Those regulations required those applying for military exemption to provide a certificate evincing their qualification for exemption to a federal enrolling officer; principals furnishing substitutes had to furnish the substitute to the enrolling officer, who would then provide the principal with a certificate of exemption.[53] Growing demand for troops prompted another conscription act expanding the draft age in September 1862.[54] Another exemption act and further regulations followed to close loopholes and narrow access to exemption.[55] Previously exempted conscripts who found themselves liable for military service under subsequent laws turned to state courts to contest the expanding conscription regime.

The confederate constitutional identity crisis took form in the controversy over conscription. The Confederate Constitution had enshrined states’ rights in certain provisions, but its similarity to the United States Constitution, particularly with regards to the President’s expansive war powers, did not create much of a clearer road map for navigating the boundaries between federal-state sovereignties than had existed in the United States. Because the Confederate Congress had not yet established the constitutionally mandated Supreme Court, state courts were the primary forums for adjudicating constitutional grievances in the Confederacy. Conscripts favored state courts over federal because the prior were more readily accessible and familiar than federal courts.[56] It could also be reasonably assumed that a local judge would be more sympathetic than a federal appointee. Because state courts entertained concurrent jurisdiction with confederate federal courts under state habeas doctrine, and because there was no appeal available from state to federal courts absent a Supreme Court with appellate review, the state courts’ decisions were of greater importance than in the North.[57] The Davis administration accepted as much by litigating conscription controversies in state courts, possibly assuming legal actions in state courts would command more popular respect.[58]

In droves conscripts appealed to state courts to release them from confederate service, necessitating that state courts weigh in on the evolving conscription regime. When conscripts petitioned state judges to issue habeas writs to conscription officers, officers’ commonly responded by denying states judges’ jurisdiction over federal prisoners. The North Carolina, Georgia, and Alabama supreme courts gave the most extensive and authoritative riposte to the conscription officers’ arguments, argued by the conscription officer as proxies, against the state habeas doctrine’s constitutionality.[59] The integrity of states’ rights to these supreme court judges, and by insinuation the corresponding role for states’ rights in the confederate constitutional landscape, comes across in how they framed arguments in favor of state habeas as integral to state sovereignty as a substantive right of liberty and as an element of the separation of powers.

State Courts’ Defense of State Habeas

The Alabama, Georgia, and North Carolina supreme courts handed down opinions in favor of state habeas within months of each other in 1863. In re Bryan arose when Bryan applied to the North Carolina Supreme Court after his arrest pursuant to the Second Conscription Act because the substitute conscript Bryan hired had become liable for service.[60] North Carolina Supreme Court Chief Justice Richmond M. Pearson wrote the majority opinion for Bryan, joined also by Justice William H. Battle in a concurrence.[61] In Georgia, a J.K. Wimberly applied for a habeas writ alleging unlawful detention by conscription officers, who counterclaimed that “the case is within the limits of the sovereignty assigned by the Constitution to the Confederate States, and a habeas corpus issued by a State Judge or Court has no authority within said limits.”[62] Georgia Supreme Court Justice Charles J. Jenkins delivered the opinion in Mims v. Wimberly. Ex parte Hill consisted of two claims, the gravamen of both was unlawful detention of conscripts who had previously procured substitutes.[63] Alabama Supreme Court Justice George W. Stone wrote the majority opinion for Ex parte Hill, with a dissent written by Chief Justice A.J. Walker.[64] Although written by judges with diverse jurisprudential leanings, the opinions upheld the same principle that state habeas doctrine was constitutional under both the United States and Confederate Constitutions.[65]

The judges’ underlying argument that state habeas ensured the integrity of state sovereignty presented procedure as the bulwark of states’ rights in the balance of federalism. Pearson emphasized in Bryan that his court’s habeas jurisdiction derived from North Carolina’s sovereignty.[66] A judge’s authority to protect state citizens with the habeas writ was an obligation attendant sovereignty the North Carolina courts inherited from the King’s obligation “to inquire by his courts into the condition of any of his subjects.”[67] Battle framed the issue presented by Bryan as “[an inquiry into] whether the State gave up any portion of that sovereignty, which was necessary to be retained for the purpose of enabling her to discharge the duty of protecting the personal liberty of her citizens.”[68] Battle’s impression was that, of all the duties imposed by sovereignty, “none was higher than that of protecting all her citizens in the full and free enjoyment of life, liberty and private property,” accomplished by judges through the writ of habeas corpus.[69] In Mims Jenkins explained that the states entered into the United States Constitution at the behest of the people of the states (and not as a common people) so United States sovereignty existed by virtue of a grant from states, not from its citizens as a collective.[70] That neither the United States nor Confederate Constitution had explicitly deprived the states of their habeas jurisdiction was to Jenkins an undeniable “truth of history” as Georgia had never “yielded the prerogative of protecting the personal liberty of her citizens.” [71] Wary of how the United States government had encroached on the states’ sovereignty, Stone concluded that because the states existed as separate sovereigns, they, through their judges, could exercise overlapping power to review whether an enrolling officer had acted outside his authority.[72] For Stone, the question was whether a usurpation of power had occurred rather than whether power had been applied properly, so state and federal judges were equally competent to protect one another’s sovereignty.[73]

The judges may have found state habeas as an attractive expression of states’ rights because the doctrine rested on the sovereign’s imperative to preserve individual liberty, with a mandate rooted in the common law. With great care and veneration, Pearson expounded on state habeas’ connection with the common law. For Pearson, the statutes conferring habeas jurisdiction on North Carolina’s courts confirmed the courts’ preexisting common law jurisdiction that had remained unbroken from colonial times.[74] The state courts’ habeas jurisdiction in Person’s opinion resided on an elemental and sacrosanct jurisprudential plane; without habeas authority writ large North Carolina could not hope to fulfill its sovereign duty to protect its citizens. In contrast to federal courts, whose authority must be conferred by the Constitution, Pearson believed state courts may derive their jurisdiction from common law principles.[75] His understanding of state courts’ common law jurisdiction vis-à-vis federal courts was not without merit as it had been handed down by John Marshall in Ex parte Bollman.[76] Pearson’s opinion presented state judges’ common law authority to issue habeas writs as a “sacred trust” that flowed from North Carolina’s sovereignty to ensure laws were administered so as not to infringe personal liberty, part and parcel to the Bill of Rights North Carolina was bound to maintain.[77] Jenkins and Battle’s opinions echoed Pearson’s sentiment by framing state habeas as a common law doctrine dating back before independence in 1783.[78]As a common law doctrine entwined in the fabric of the Anglo-American legal tradition, the judges’ deductions about state habeas had far reaching implications. The purpose for which state habeas existed, they claimed, was to check executive tyranny, a duty incumbent upon judges to defend the sovereignty granted the state by the people. So the habeas writ prevented lawlessness by executive and protected the integrity of the state-people sovereign compact. The argument for state habeas lauded that jurisdiction to issue writs rather than a particular outcome because it was the ability of judges to serve as a check that satisfied the duty to protect the people and the rule of law.

To give state habeas the full weight of precedential legitimacy, these confederate state judges took great care to explain that state habeas was not a new doctrine, but existed as part of a continuum of states’ rights in American constitutional history. State habeas existed because the sovereign states had never parted with this jurisdiction, these judges reasoned. This argument depended on a textualist understanding of federalism wherein federal sovereignty was strictly limited to those areas enumerated in the constitution the sovereign states, which held true in their minds under both the United States and Confederate States of America Constitutions; the federal government’s sovereign authority could not grow by implication. The Tenth Amendment, taken at face value, evidenced as much according to Judge Battle.[79] Early United States Constitutional authorities such as Alexander Hamilton in Federalist No. 82 and eminent jurist James Kent, were of the opinion that the state courts’ existing jurisdiction remained untouched except where Congress had expressly excluded state courts in a proper constitutionally enumerated mode.[80] Members of the antebellum bench and bar could assume the state courts’ concurrent jurisdiction with federal courts ran even to cases arising under federal law (i.e., the interpretation of military enlistments). And of all the jurisdictional realms over which the state courts had previous cognizance, Battle argued, “none were more important” than habeas corpus.[81] Battle doubted that North Carolina, or any other sovereign state for that matter, would have entered into a constitution under which they lost habeas jurisdiction within their boundaries, regardless of whether detention was under the aegis of state or federal authority; in his opinion, he ventured: “A jurisdiction so essential to the great privilege of going where one may please—a privilege which every citizen of the State would wish to enjoy as freely as he did the air he breathed—the State courts would hardly have parted with, except upon the most urgent necessity.”[82] In a similar vein, Pearson’s opinion placed the onus on those claiming federal judicial exclusivity to show that a positive grant of constitutional authority existed to oust state jurisdiction. Congress must prove it first has the authority to take away the state jurisdiction, and then that it has exercised that power and nothing in the historical record of the United States or Confederacy, Pearson observed, explicitly had limited the states’ habeas jurisdiction.[83]

One need only read federal and state precedent for support of state habeas, but the invocation of stare decisis in support of state habeas under the United States Constitution demanded a discussion of Ableman v. Booth.[84] Pearson read the Supremacy Clause in the United States Constitution to require state courts not to interfere with the federal judicial process by issuing a habeas writ after a federal court had asserted its jurisdiction over the matter. This, Pearson reasoned, had been the holding in Ableman because, in that case, the United States Marshall detaining the habeas petitioner had been acting on a federal district court’s indictment. So Taney had not precluded state courts’ habeas jurisdiction over federal detainees before federal process began.[85] A broader reading of Ableman “against the jurisdiction of the State courts in all cases where one is restrained of his liberty” by a federal officer was merely obiter dictum and could not be taken seriously lest “such an inference . . . do great injustice to that able jurist [J. Taney].”[86] Jenkins likewise asserted that compliance with Ableman required only that, upon learning that a Confederate district court with jurisdiction over the subject of detention had begun proceedings, a state judge dismiss the writ to avoid conflict.[87] Stone explained that a proper application of state habeas jurisdiction abided by federal precedent because the judges would not control federal officers, as state judges could only adjudicate whether an “accident incidental to proper federal authority” occurred.[88]

Jenkins notably discussed state habeas under the Confederate Constitution at length. There was no question for him that Georgia had entered the Confederacy as a sovereign power, and the sovereignty of its people remained explicitly unimpaired.[89] To limit Georgia courts’ habeas jurisdiction, “it must appear that by the Constitution exclusive jurisdiction has been given to the Confederate Courts” in order to divest state courts of their previous jurisdictional authority, and no such thing had occurred in the Confederacy according to Jenkins.[90] Embedded throughout other judges’ opinions was the suggestion that while state habeas served as part of the separation of powers under the United
States Constitution, state habeas had greater import in the Confederacy.[91]

State habeas doctrine had value to the separation of powers in nascent Confederate constitutionalism because state habeas checked executive action in theory, without hamstringing executive action to win the war in practice. The cases’ outcomes illustrate the degrees to which the judges accepted the Davis Administration’s federal prerogative. On the merits of Bryan, Pearson and Battle discharged Bryan based upon two earlier cases, which held that, when War Department regulations conflicted with the Conscription Acts, the latter controlled.[92] In contrast, the court in Hill concluded that one petitioner had been properly discharged by a probate court under the First Conscription Act, but had then become liable under the Second Conscription Act’s expansion of the conscription age, because congressionally authorized War Department regulations stipulated that the exemption lasted only as long as the substitute is not liable for conscription.[93] The other petitioner could not be discharged as the War Department alone could hear questions of fraud vel non cases involving substitutes; such an inquiry involves only how federal officers make a factual decision under lawful authority, just like a land office register would make preliminary proofs of a preemption claim.[94] According to Stone, state habeas did not upset the balance of federalism because state courts were only discerning where federal authority ended so as to protect individuals, pursuant to their duty as agents of the state sovereign.[95] In the case of Armistead, as the question of law was whether Armistead’s initial discharge exempted him from later conscription under the Second Conscription Act, it involved “nothing more nor less than determining whether the officer rightly decided the legal question as to the effect of the substitution and discharge—the accident in Mr. Armistead’s case,” so it could be decided by a state court,[96] as they were equally competent with federal courts to answer such a question. That diverging state opinions about federal laws could disorder the application thereof, a point raised by Taney in Ableman, was not treated as a serious concern in the majority of these opinions. Jenkins believed the obligation placed upon judges to obey the Confederate Constitution “remove[d] any well-founded apprehension that they will unduly obstruct or hinder the Confederate government in the exercise of its proper functions.”[97]

Pearson emphasized that state habeas strengthened the balance of judicial power, both federal and state courts acting together, against their executive colleagues.[98] The reasoning went that when a prisoner was detained, state and federal judges were equally competent to construe national laws to determine whether detention was lawful, as both interpreted constitutional law as a matter of course.[99] State habeas review did not interfere with federal executive action in Pearson’s estimation because executive officers did not have the power of judicial review, and for all intents and purposes, federal and state courts were fungible in the habeas realm. Review of the executive’s implementation of congressional acts was the proper role of the judiciary, and state judges were supplementing rather than usurping the federal courts’ prerogative.[100] A fellow North Carolina justice had argued in an earlier habeas case that the Confederate Congress had delegated the War Department with quasi-judicial powers precluding state court review of the Conscription Act.[101] Pearson’s riposte was that: (1) Congress could not make the Secretary of War a judge without violating constitutionally mandated separation of powers; (2) Congress had in fact not attempted to delegate judicial power as there were no plain and direct terms suggesting as much; and (3) if such judicial power existed in conscription officers, federal courts would be excluded from reviewing their decisions as well.[102] Pearson wrote that it was “surely not” the case that individual liberty depended “solely on the action of the War Department and its subordinate officers;”[103] such circumstances would be tantamount to an abdication of judicial authority.

The defense of state habeas coincided with an expectation that state courts would play a more active role in the balance of federalism than they had in the United States. Confederate policymakers sought to weaken the federal judiciary by limiting review of state court decisions, a divergence from a tenant of United States federalism wherein, after the Supreme Court’s ruling in Martin v. Hunter’s Lesssee, all state court decisions touching on civil matters of federal law were subject to appeal to the United States Supreme Court.[104] With no Confederate Supreme Court, state habeas represented the new vision for the Confederacy’s judicial structure in practice. State judges took the initiative to forge a new landscape of federalism by staking a claim for their courts to act as a check on abuses of executive power and engaging in an active discussion of federal policy. Conveniently for the war effort, the state habeas check generally did not interfere with conscription.[105] Alabama’s Justice Walker’s dissent teased out this tension and questioned why, with the internal threat to slavery gone and a war raging in their midst, the courts should concern themselves with the nuances of states’ rights.[106]

In a tone reminiscent of Taney’s in Ableman, Walker challenged the position that state habeas was essential to state sovereignty. In Walker’s eyes, the use of state habeas was nothing more than judicial politicking. Stripped of the grand trappings of state sovereignty, Walker argued that the issue before the court was whether a court could “by writ of habeas corpus, supervise, control, and annul the act of officers of the Confederate States, done in the exercise of authority given by the law of that government, and required to be done under regulations prescribed by the secretary of war?”[107] The sovereign states had delegated the power to provide for the national defense to the Confederate government as they had under the United States Constitution. The Confederate states were thereby bound by the Constitution not to interfere with the execution of congressional law pursuant to those war powers. The relinquished portion of state sovereignty imbued federal executive officers as the sole authorities to investigate and decide conscription liability.[108] It was the exclusive province of federal courts to address the wrongful impairment of a citizen’s liberty by the Confederacy because,

[t]o concede the power of a State court to apply that remedy, and thus to interfere with, and control and govern as to the manner of executing the law, is to confess that the power of execution is qualified and restricted to such mode and to such line of conduct as a State judge may approve.[109]

The antebellum use of state habeas by northern judges to challenge the Fugitive Slave Act loomed large in Walker’s opinion of state habeas. Animated by sectional antipathy, northern judges had employed state habeas to oppose the federal prerogative with “a boldness and ingenuity without a parallel in the history of the country;”[110] a far cry from the hallowed depiction of state habeas precedent the majority opined. Walker saw no jurisprudential distinction between the fugitive slave and conscription cases. Indignantly he questioned: “Upon what ground, then, can it be maintained, that the State courts can interfere with the execution of the conscript law, and yet were without power to interfere with the enforcement of the fugitive-slave act?”[111] Walker seemed to suggest that Confederate state judges’ jurisdictional overreach was more brazen than their northern counterparts because the former circumvented Ableman, which Walker read to have laid the state habeas doctrine to rest.[112]

Walker honed in on the practical implications of state habeas to undermine the more abstract constitutional arguments offered in support by his colleagues. To Walker, and soon thereafter the Davis administration, state habeas was a gratuitous impediment to the nation’s future. The Confederate Congress passed laws for the nation’s benefit that were too important for local tribunals to undermine with varying interpretations. National defense would suffer if a judge could “utterly subvert the application of the power to raise armies to that State,” which could in turn induce “peculiar rulings” in other states.[113] Further, state habeas would unjustly leave an enrolling officer open to criminal conviction for false imprisonment only because “a State court differs from him upon the question which he is bound to decide.”[114] Drifting into hyperbole, Walker warned that judges with peculiar views and clothed with state habeas power could disband an army in a day.[115] After Lincoln recast the war as a struggle over the existence of slavery with the Emancipation Proclamation, Confederate victory became all the more imperative. In the early days of the war, reunion may have been possible without abolition, but the war evolved into an existential contest over slavery’s survival. Against this backdrop, states’ rights were a distraction at best, and a viper in the nest at worst, to state habeas opponents.

Walker well understood that he was in the minority about state habeas. At the time of his dissent, he lamented, “[t]he question has been now, expressly and by implication, passed upon by several of the appellate State tribunals in our Confederacy; and in no case known to me has an appellate State court sustained the doctrine which I maintain.”[116] Although he remained convinced that legal reasoning and precedent was on his side, and that a hypothetical Confederate Supreme Court would agree, Walker resigned himself to “suffer the State jurisdiction to be exercised, to the extent agreed upon by this court, without further controversy.”[117] Practical and precedential points of contention raised by Walker about state habeas suggest that majority authors defended state habeas as a matter of principle out of respect for state sovereignty in a post-secession environment where such concerns were increasingly subordinate to the war effort.

The Davis Administration and State Habeas

The tenor of the Davis administration’s relationship with state habeas shifted from tolerance to hostility over the course of 1862-1864. The administration may have declined to officially oppose state habeas because its members may have felt a constitutional identity crisis about the role of states rights’ in the Confederacy amidst military centralization and a corresponding impulse to respect state sovereignty where practicable.[118] Instructions to conscription officers to ignore state habeas writs may have been seen as an undiplomatic gesture in an already tense environment—critics accused Davis of ignoring states’ rights from the war’s onset.[119] Instead, conscription officers contested the legitimacy of state habeas in state courts. The fact that the administration’s legal minds disputed the constitutionality of state habeas doctrine, but instructed its officers to answer state habeas writs in state courts, suggests the administration may have felt constrained by respect for state sovereignty. But the war ultimately eroded that respect. Delays imposed by litigating conscription in state courts, and the discharge of conscripts by Justice Pearson in particular, wore down the administration’s patience, and in early 1864, Davis suspended habeas corpus across the Confederacy.[120]

Jefferson Davis extolled habeas corpus as a central pillar of individual liberty in the war’s early days. In a message to Congress in late 1861, Davis villainized Lincoln as one who threatens judges for maintaining the writ of habeas corpus, thereby trampling the rule of law “under the armed heel of military authority.”[121] Davis implicitly sought to distinguish himself as a protector of the rule of law, as protected by the writ of habeas corpus. In an exchange with Georgia’s governor, Joseph E. Brown, in mid-1862, Davis denied that conscription would upset the balance between federal and state power: “The right of each State to judge in the last resort whether its reserved powers had been usurped by the general government, is too familiar and well settled a principle to admit of discussion.”[122] In a letter to Governor Francis W. Pickens of South Carolina, Davis pointed to the state courts as the proper venue for solving exemption disputes to assuage public fears about conscription: “Let him apply to the judges of the land for relief from the action of the Confederate officer, and if the State law be indeed valid and operative in his favor he will be released.”[123] The conciliatory tone Davis took early in the war possibly reflected the popular perception that the war would be a limited conflict that would not disrupt existing institutions.[124] Before the war effort demanded centralization to mobilize and direct the South’s resources, engagement with state governments was political. In late 1862, Davis informed the Mississippi legislature that he had intended for state officials rather than federal officials, to administer the conscription process to further diminish points of contention between the two governments.[125] As the import of states’ rights to Confederate policymakers waned, functionaries of the administration increasingly contested the constitutionality of state habeas.

The question of who would pay for conscription officers’ attorneys’ fees prompted the Confederate Attorney Generals Office to address state habeas. On November 26, 1862, Attorney General Thomas H. Watts gave his opinion to Secretary of War James A. Seddon that conscription officers pay for counsel retained to contest conscription in state courts out of conscription funds.[126] The question of which department would foot the bill required Watts to respond a few weeks later, although only to clarify that the Department of Justice was not on the hook for attorneys’ fees arising from state habeas cases.[127] The decision to contest state habeas in state courts through conscription officers was an accommodation for states’ rights from the administration’s perspective. In contrast, the Lincoln administration instructed army officers to explain only why conscripts were held in response to habeas writs from state judges, and that thereafter officers need not respond to further orders from state judges.[128] But, the Davis administration’s response to state habeas grew increasingly conflicted. Later in 1863, Watts was ambiguous about the authority a general had to detain a conscript when challenged by a state court.[129] Watts instructed that the general was required to answer a state habeas writ with specificity and the conscript in question should be brought before the judge or “could not otherwise enjoy his full constitutional privileges” given that it was undoubted state judges could issue the writ within the territorial limits of their state.[130] But Watts then tacked in the other direction, and, echoing Taney in Ableman, suggested to Davis that,

[w]hen . . . it is ascertained, in proceedings under the writ of habeas corpus issued by a State Judge or State Court, that the prisoner is held by a Confederate Officer, under the Authority of the Confederate States, for any matter over which the Confederate laws operate, the State Judge or State Court can proceed no further.[131]

Attorneys representing the Confederacy in the flagship state habeas cases in 1863 captured the administration’s doubts about the constitutionality of state habeas.[132] In Bryan, District Attorney George V. Strong argued on behalf of the Confederacy with the help of Thomas Bragg, a former Confederate Attorney General and later governor of North Carolina.[133] Bragg and Strong communicated what became the administration’s official position that state habeas was an improper assertion of states’ rights

based upon recent antebellum precedent, claiming that “[t]he old Union was destroyed, not by the encroachments of the General Government upon the rights of the State, but by the encroachments of the fanatical States of the north and northwest upon the Constitution. . . . These encroachments took the shape of ‘personal liberty bills,’ and interference of the courts by writs of habeas corpus with the proper jurisdiction of the General Government. Let us avoid the bad example.”[134]

By the latter half of the war, Jefferson Davis changed his tone and began to label state habeas officially as obstructionist and unconstitutional. Even if conscripts were not discharged en masse, state courts slowed down the conscription process. In a message to Congress on February 3, 1864, Davis asserted state judges exerting habeas were an undue obstruction to conscription. The danger, Davis warned, could come from just one judge, for “[i]f a single judge, in any State, should hold the act to be unconstitutional, it is easy to see that that State will either furnish no soldiers from that class, or furnish them only when too late for the pressing need of the country.”[135] Regardless of whether discharge was the final result, the appeal of an initial state habeas determination was “tantamount in its consequences to a discharge,” according to Davis.[136] By nature, state habeas lent itself to abuse as,

[a] petition for a habeas corpus need not and ordinarily does not declare the particular grounds upon which the petitioner claims his discharge . . . and every enrolling officer will be kept in continual motion to and from the judge, until the embarrassment and delay will amount to the practical repeal of the law.[137]

Weighed against the costs, the benefits of state habeas did not justify its continuation to Davis: “Must the independence for which we are contending, the safety of the defenseless families of the men who have fallen in battle and of those who still confront the invader, be put in peril for the sake of conformity to the technicalities of the law of treason?”[138] Davis was hardly alone in his opinion. Other members of the administration shared in Davis’s frustration and disdain. In a letter dated March 19, 1864, Secretary of War Seddon complained to a general: “This Department has experienced much embarrassment from the eccentric decisions of inferior judges who have had the power to issue writs of habeas corpus, and can appreciate the difficulties that General Greer has had to encounter on that subject.”[139] Robert Kean, Chief of the Bureau of War, captured a trend within the administration to view the use of state habeas as complicit in an anti-confederate agenda, writing in his diary immediately after Bryan: “The local judiciary are doing what they can to defeat the conscription and encourage desertion in many places . . . I mistrust that these feelings have a good deal to do with these decisions by which they thwart and obstruct the execution of the conscription.”[140]

The administration’s shifting position on state habeas illuminates the elastic allegiance to states’ rights. Military necessity trumped all other considerations in a constitutional discourse delineating boundaries between state and federal sovereignty. Allowance for states’ rights wore so thin that the relatively minor number of conscripts discharged by Justice Pearson tipped the scales against state habeas.

Congress had suspended habeas twice before at Davis’ urging in more limited circumstances. In February 1862, Congress had authorized a habeas corpus suspension for a finite period of time and only in those localities where there was “such danger of attack by the enemy as to require the declaration of martial law for their effective defen[s]e.”[141] Davis suspended habeas corpus in counties along Virginia’s coast, eastern Tennessee, and a swath of South Carolina, which were either under Union occupation or home to large concentrations of unionist sympathizers.[142] Later in 1862, Congress granted Davis authority to suspend habeas corpus wherever the public safety so required, with the caveat that the administration investigate the cause of arrest to ensure release of improperly detained persons.[143] A year passed until Davis again requested authority to suspend habeas corpus. In February 1864, Davis, citing state habeas as raison d’etre, implored Congress to pass a comprehensive habeas corpus suspension act.[144] Congress obliged and licensed the suspension of habeas corpus across the entire Confederacy until mid-September 1864 for a laundry list of offenses including “attempts to avoid military service.”[145] Although cause for suspension affected the entire Confederacy, Davis singled out Justice Pearson’s use of state habeas as compelling justification.[146] With state habeas at an end, Davis believed the war effort would run more smoothly absent “treasonable practices” by obstructionist state judges.[147]


The state habeas cases provide unique insight into how confederate state judges and the Davis administration sought to navigate the tension between states’ rights and military centralization in the Confederacy. The cases were a product of, and solution to, the Confederacy’s constitutional identity crisis. Although individual motivations cannot be known, southern state judges’ near universal decision to embrace the hitherto unsettled state habeas doctrine was a public declaration, crossing judges’ various antebellum jurisprudential leanings,[148] in favor of expansive concurrent jurisdiction and a vision of federalism wherein the state judiciary occupied a greater role as a check on the federal executive. Bryan, Hill, and Mims reveal how the state habeas doctrine both gave meaning to states’ rights and represented a nascent confederate constitutionalism in which state judges took a more active role in charting the boundaries of federalism. Historian J.G. de Roulhac Hamilton observed that the unanimity with which state judges accepted conscription was a “wonder” when eleven courts, each of last resort because no federal appeal existed, independently construed organic law.[149] The unanimity with which state judges accepted state habeas and the commonalities of reasoning in the flagship state habeas cases are a previously unexplored wonder.

*   J.D., 2015, University of Virginia School of Law; M.A. (History), 2015, University of Virginia; B.A., 2011, University of Virginia. Many thanks to Aryana Gharagozloo, without whose indefatigable support I would not have finished this article, and to Professor Cynthia Nicoletti for her patience.

        [1].    Ex parte Walton, 60 N.C. 350, 359 (1864) (quoting Chief Justice Richmond M. Pearson, North Carolina Supreme Court).

        [2].    Harris v. Nelson, 394 U.S. 286, 290–91 (1949).

        [3].    See 28 U.S.C. § 1651(a) (2012).

        [4].    See Ex parte Hill, 38 Ala. 429, 430 (1863).

        [5].    Act of Apr. 16, 1862, ch. 31, Pub. Laws, 1st Sess., § 1, in Statutes at Large of the Confederate States of America, Passed at the First Session of the First Congress 45 (R.M. Smith ed., Richmond 1864) [hereinafter Statutes at Large, 1862].

        [6].    Historians agree as to the centrality of states’ rights ideology to Confederate leaders. One school of thought concludes that southern constitutionalism was purely instrumental for defending slave interests. See generally Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (1989); Albert Burton Moore, Conscription and Conflict in the Confederacy 162–63 (1924) (concluding that state courts neglected to “maintain the dignity and prerogatives of the States against encroachments of the Confederate Government,” because state sovereignty as a political philosophy has never taken root on the bench, and that the judges “were . . . completely indoctrinated” to follow Marshall Court precedent favoring federal over state power); Mark E. Neely, Jr., Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism 7–8 (1999) (arguing that many state judges, like southerners themselves, preferred order to grander libertarian principles; and thus, acted as ready accomplices to Richmond’s centralizing policies); Emory M. Thomas, The Confederate Nation: 1861–1965 32 (1979) (noting that “in 1860, states’ rights was a viable doctrine in Southern minds”). Pursuant to this school of thought, whether southerners turned to majoritarian politics or states’ rights depended on what position proved a more effective defense for slavery. Historians on the other side of the spectrum hold that sincere attachment to states’ rights crippled on the Confederacy. See generally Frank Owsley, State Rights in the Confederacy (1925); May Spencer Ringold, The Role of the State Legislatures in the Confederacy 24, 37 (1966); Frank E. Vandiver, Rebel Brass: The Confederate Command System 125–26 (1956). For examples of more recent scholarship examining internal fissures within the Confederacy, please see the following sources, see Richard E Beringer et al, Why the South Lost the Civil War 65–81 (1986); William W. Freehling, The South vs. The South: How Anti-Confederate Southerners Shaped the Course of the Civil War xiii (2001); Stephanie McCurry, Confederate Reckoning: Power and Politics in the Civil War South 2 (2010); David Williams, Bitterly Divided: The South’s Inner Civil War 1, 2 (2008).

        [7].    David P. Currie, Through the Looking-Glass: The Confederate Constitution in Congress, 1861–1865, 90 Va. L. Rev. 1257, 1261–62 (2004); G. Edward White, Recovering the Legal History of the Confederacy, 68 Wash. & Lee L. Rev. 467, 528–31 (2011).

        [8].    White, supra note 7, at 528–31.

        [9].    Currie, supra note 7, at 1260–62.

      [10].    See generally J.G. de Roulhac Hamilton, The State Courts and the Confederate Constitution, 4 J. S. Legal Hist. 425 (1938) (arguing the Confederacy was harmed by the lack of a national supreme court).

      [11].    See id. at 447–48. Hamilton characterizes the state habeas conscription cases as a missed opportunity for making a stronger stand on state habeas, acquiescing to Richmond’s centralizing policies.

It is clear that by the middle of 1864 the state courts had all fully accepted the military power of the Confederacy. Even Chief Justice Pearson, its most consistent and logical opponent among all the judges—as well as the most interesting and colorful judicial figure in the Confederacy—however great his disagreement with his colleagues, yielded in good faith to their decisions.

Id. at 447.

      [12].    James G. Randall, Constitutional Problems Under Lincoln 432 (2d ed. 1951) “The decisions on the subject read like commentaries on the fundamental doctrine of our constitutional law and are replete with citations drawn from the Federalist, Marshall, Story, Kent and other sources that rank among our legal classics.” Id.

      [13].    Alfred L. Brophy, “Necessity Knows No Law: Vested Rights and the Styles of Reasoning in the Confederate Conscription Cases, 69 Miss. L.J. 1123–25 (2000). See generally James A. Gardner, Southern Character, Confederate Nationalism, and the Interpretation of State Constitutions: A Case Study in Constitutional Argument, 76 Tex. L. Rev. 1219 (1998).

      [14].    Brophy, supra note 13; Gardner, supra note 13.

      [15].    See Hamilton, supra note 10, at 433–40; see also Ex parte Hill, 38 Ala. 429, 436 (1863).

      [16].    Sidney D. Brummer, The Judicial Interpretation of the Confederate Constitution, 8 Law. & Banker & S. Bench & B. Rev. 387, 397–400 (Charles E. George ed., 1915).

      [17].    Currie, supra note 7, at 1331 n.318. Currie opines that the Confederate Attorney General “might have been on firmer ground had he said simply that state jurisdiction to release Confederate prisoners, like state power to tax the Bank of the United States, was the power to interfere with legitimate operations of the central government.” Id.; compare Tarble’s Case, 80 U.S. (13 Wall.) 397, 408–09 (1871) (holding no state habeas corpus jurisdiction), with McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819) (holding states do not have the power to tax the federal government).

      [18].    White, supra note 7, at 516–29; Currie, supra note 7, at 1366–77; see also, Curtis A. Amlund, Federalism in the Southern Confederacy 83–84 (1966); William M. Robinson, Justice in Grey: A History of the Judicial System of the Confederate States of America 437–57 (1941); W. Buck Yearns, The Confederate Congress 37–38 (1960). In an on and off debate, Congress decided it would only establish a Supreme Court without appellate jurisdiction over state courts due to persistent fears born from the antebellum experience with the Marshall Court that a Court would trample on states’ rights. Congress never got around to actually establishing that Court, but proceeded to implement the very centralized war policies congressman had that feared the Court would sanction.

      [19].    White, supra note 7, at 528.

      [20].    See discussion infra Part III.

      [21].    See generally William F. Duker, A Constitutional History of Habeas Corpus 126 (1980) (arguing that the original intent of the habeas clause was to protect state’s powers of habeas relief); Justin J. Wert, Habeas Corpus in America: The Politics of Individual Rights 2 (2011) (analyzing the political evolution of habeas corpus throughout American history); Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1510 (1987) (arguing that federal courts should not be allowed to suspend state-law habeas); Marc M. Arkin, The Ghost at the Banquet: Slavery, Federalism, and Habeas Corpus for State Prisoners, 70 Tul. L. Rev. 1, 4 (1995) (arguing that discussions of the “collateral review of state court convictions” should focus on the twentieth century); Earl M. Maltz, Slavery, Federalism, and the Constitution: Ableman v. Booth and the Struggle Over Fugitive Slaves, 56 Clev. S. L. Rev. 83, 83-84, 104 (2008) (examining the constitutionality of the Supreme Court’s state habeas power holding in Abelman); Ann Woolhandler & Michael G. Collins, The Story of Tarble’s Case in Federal Courts Stories 141, 141 (Vicki C. Jackson & Judith Resnik eds., 2010) (discussing the constitutionality of the Supreme Court’s decision holding state courts lack jurisdiction to grant habeas relief for federally detained persons).

      [22].    State habeas doctrine was unsettled after Ableman v. Booth, 62 U.S. 506 (1859), where the Supreme Court ruled the Wisconsin Supreme Court’s use of state habeas to free a prisoner indicted by a United States district court unconstitutional. Tarble’s Case reiterated the points made by Taney in Ableman and can be understood as a clarification that Ableman’s holding had ruled state habeas jurisdiction unconstitutional by stating:

Some attempt has been made in adjudications, to which our attention has been called, to limit the decision of this court in Ableman v. Booth, and The United States v. Booth, to cases where a prisoner is held in custody under undisputed lawful authority of the United States, as distinguished from his imprisonment under claim and color of such authority. But it is evident that the decision does not admit of any such limitation. It would have been unnecessary to enforce, by any extended reasoning, such as the Chief Justice uses, the position that when it appeared to the judge or officer issuing the writ, that the prisoner was held under undisputed lawful authority, he should proceed no further.

Tarble’s Case, 80 U.S. 397, 410–11 (1871).

      [23].    See Ex parte Hill, 38 Ala. 458 (1863); Mims v. Wimberly, 33 Ga. 587 (1863); In re Bryan, 60 N.C. 1 (1863).

      [24].    Anthony Gregory, The Power of Habeas Corpus In America: From the King’s Prerogative to the War on Terror 52 (2013).

      [25].    Id. at 53–55. Habeas corpus tied in with popular conceptions of personal liberty and an idealized form of English law free from monarchical influence of statutory formality that defined part of revolutionary ideology. Courts’ habeas jurisdiction was a consequence of historical experience—largely a function of politics in early modern English history—rather than neutral legal principles, and was distinct in that it was defined both by common law and statute. Wert, supra note 21, at 27; Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 679–80 (2008).

      [26].    3 Joseph Story, Commentaries on the Constitution of the United States 111, 206 (1833). Conception of state habeas as defense against tyranny can be associated with the decentralist position held by the Antifederalists. Id.

      [27].    Richard Vaux, Some Remarks on the Writ of Habeas Corpus: And Proceedings Under the Same 5 (1843).

      [28].    A writ of habeas was not granted as a matter of course; a petitioner must show proper cause why his detention was unlawful and the statute could restrict the writ’s availability such as where a party was detained under the final decree of a competent court. See Edward Ingersoll, The History and Law of the Writ of Habeas 1–2 (1849); Wert, supra note 21, at 51. If issued, a writ was directed to the detainer commanding him to produce body of prisoner with the cause of detention. If the judge believed a detention was unlawful, he would discharge the petitioner, who could not be re-imprisoned on the same grounds and who could subsequently pursue private action of trespass for false imprisonment on the detainer. 1 James Kent, Commentaries on American Law 637 (1826).

      [29].    See, e.g., Commonwealth v. Harrison, 11 Mass. (11 Tyng) 63, 163–64 (1814). George Ribkin, prenticed as a sailor, falsely swore he was twenty-one to enlist in the United States Army without permission from his master, who then sought a habeas petition on his apprentice’s behalf. Id. at 64–65. Because United States law required a minor under twenty-one to have a parent or guardian’s permission to enlist, the court declared Ribkin’s enlistment void and discharged him from the Army against the protests of the Government’s counsel, who claimed the state courts had no jurisdiction to discharge a United States solider from service. Id. at 63, 65; see also Case of J.H. Pleasants, Am. Jur. & L. Mag. 257, 258 (1834) (discharging a prisoner held by a United States Marshal); In re Carlton, 7 Cow. 471, 472 (N.Y. 1827) (affirming the right to discharge a minor who had enlisted in the United States Army); Commonwealth v. Murray, 4 Binn. 487 (Pa. 1812) (asserting habeas jurisdiction over an eighteen year old solider, but declared the enlistment contract binding); Rollin C. Hurd, A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected With It 165, 171 (1858); cf. In re Ferguson, 9 Johns. 239 (N.Y. 1812). This was the silent case denying state habeas and arose from a petition to discharge an underage soldier who had enlisted without the consent of his father. Writing for the court, judge and noted legal scholar James Kent took an expansive view of what was exclusive to the federal government’s jurisdiction, arguing that state jurisdiction was an all or nothing affair, either there was full concurrent jurisdiction or none at all. Id. at 240. Because enlistments occurred under the authority of the United States, claims stemming from proper enlistment are therefore the sole province of federal courts. Id.

      [30].    12 N.H. 194, 197 (1841).

      [31].    5 Binn. 512, 515 (1813).

      [32].    Thomas Sergeant, Constitutional Law: Being A Collection of Points Arising Upon the Constitution and Jurisprudence of the United States Which Have Been Settled by Judicial Decision and Practice 280 (1822). Even Kent, who opposed the writ on the bench, noted in a treatise that in New York after Stacey (over- turning his decision in Ferguson), “[t]he question was therefore settled in favor of a concurrent jurisdiction in that case, and there has been a similar decision and practice by the courts of other states.” Kent, supra note 28, at 401.

      [33].    Hurd, supra note 29, at 156. Of the states that had addressed state habeas jurisdiction when Hurd was writing in 1858, Georgia and South Carolina had disclaimed state habeas, but it had been affirmed in Virginia, Georgia, Massachusetts, Maryland, New York, and Pennsylvania. Id. at 155.

      [34].    The District Court of Kentucky in 1867 captures the federal case law perspective:

The decisions and opinions in the district and circuit courts of the United States, both before and since the decision in Ableman v. Booth, have denied the state jurisdiction . . . I might fortify my decision by copious extract from the opinions of federal and state judges, but the opinion of the supreme court is so conclusive, and I shall be obliged to quote from it so extensively, that I can not, without extending this opinion to an inordinate length, make any further reference to them than has already been made.

In re Farrand, 8 Fed. Cas. 1070, 1072 (No. 4678) (D. Ky. 1867). At the Confederacy’s outset, Congress declared the United States laws as of November 1, 1860 would be law in the Confederate States, so United States federal precedent would remain controlling in the Confederacy. Act of Apr. 19, 1862 ch. 37, Pub. Laws, 1st Sess., in Statutes at Large, 1862, supra note 5, at 27. Secession did not alter state precedent either because the states did not see secession as an interruption in their sovereignty, as Robinson writes:

No change had been necessary in the organic or statutory law except the simple substitution for the word Confederate for United wherever the name of the federal union occurred .  .  . . The executive, legislative, and judicial branches served out their terms under the new confederation in complete harmony with the will of the people . . . . The transition was so orderly and natural that the very fact of secession fails to appear in many classes of State records . . . . The State judicial systems remained intact.

Robinson, supra note 18, at 70–71. Firebrand secessionist and Confederate Senator William Yancey argued United States precedents should never be followed and that the Confederate Constitution ought to be construed on its own terms. Currie, supra note 7, at 1375 (citing Senate Proceedings (Mar. 17, 1863) (statement of Sen. Yancey), reprinted in 48 Southern Historical Society Papers 318, 318–19 (1992).

      [35].    Ableman v. Booth, 62 U.S. 506, 507–08 (1858).

      [36].    Id. at 508.

      [37].    See generally Ingersoll, supra note 28 (explaining how the lower federal courts denied state habeas); see also M’Clung v. Silliman, 19 U.S. (6 Wheat.) 598, 600–04 (1821) (holding that a state court could not issue a writ of mandamus to the United States land surveyor because he was acting as a functionary of United States law); Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 124 (1819) (asserting the supremacy of the federal prerogative whenever the two sovereigns come into contact); Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 12 (1817) (ruling that the Rhode Island state court did not exceed its jurisdiction by bringing a writ of replevin against the cargo of a ship held in custody by a United States official under an embargo law because the federal law only extended exclusive federal jurisdiction to the ship). Further, the federal government expanded its habeas authority over those detained by state officers, with acts in 1833 and 1842 nationalizing habeas corpus. Gregory, supra note 24, at 85. The 1833 Force Act granted federal judges habeas authority over any prisoner for an act pursuant to a United States law, prompted by South Carolina’s detention of federal tariff officials during the Nullification Crisis. See Act of Mar. 2, 1833, ch. 57, 4 Stat. 632–33 (1833) (providing for the collection of duties imports). The 1842 Habeas Corpus Act granted federal courts habeas jurisdiction over foreign nationals held by state officials. See Gregory, supra note 24, at 85–86. These acts were more symbolic of the way the wind was blowing, as “[t]he changes to habeas jurisdiction did not really come into effect until after the Civil War.” Id. at 86.

      [38].    On this point, the Lincoln and Davis administration’s agreed, though the former was more effective in having its way. Solicitor of the Union War Department, William Whiting issued a circular on July 1, 1863, that conscription officers should follow Taney’s instructions in Ableman, the only duty to state judges was to respond that the prisoner/petitioner was in their care. Act of Aug. 29, 1842, ch. 263, 5 Stat. 543 (1842). The Supreme Court of Pennsylvania similarly read Ableman to have ended state habeas, which the court went on to characterize as “simply the Calhoun heresy of nullification.” Kneedler v. Lane, 45 Pa. 238, 293–94 (1863). Northern state judges did not broadly assert their habeas jurisdiction over conscriptees during the war, leading Civil War historian James Randall to treat state habeas in the North as an annoyance for the Lincoln administration by a small number of local judges employing state habeas to oppose conscription. Randall, supra note 12, at 428–32. The United States Congress passed the Indemnity Act of 1863 in order to protect federal officials from state courts jurisdiction so that acting on the President’s orders provided a complete defense and required removal of actions against federal officers to the Federal courts. Id. at 428; see also James G. Randall, The Indemnity Act of 1863: A Study in the War-Time Immunity of Governmental Officers, 20 Mich. L. Rev. 589, 595 (1922).

      [39].    Ableman, 62 U.S. at 514.

      [40].    Id.

      [41].    Earl Maltz suggests Taney conceived of the Court as a neutral arbiter—in spite of its place in the federal government—well positioned to mediate conflicts between the state governments and federal branches. Maltz, supra note 21, at 105–06. Ableman should consequently not be read as a strong endorsement of federal power so much as of the Supreme Court’s power. Taney biographer Bernard Steiner questioned how anyone could speak of Taney as a states’ rights man after reading Ableman, an advocate of Jacksonian federalism. Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court 428, 430 (1922). A large number of scholars suggest he acted primarily to serve the slave interests. See, e.g., Gregory supra note 24, at 89 (explaining the constants in both Ableman and Dred Scott are a support for slavery and opposition to legal obstruction to slavery, rather than any principled attachment to either federal supremacy or states’ rights). See generally Fehrenbacher, supra note 6.

      [42].    See Ableman, 62 U.S. at 518.

      [43].    Id. at 524.

      [44].    Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 342–43 (1816) (holding the United States Supreme Court as the ultimate authority over state courts in civil matters under federal law, so the Supreme Court has appellate power over any state supreme court decision touching on federal law).

      [45].    Scott v. Sandford, (Dred Scott), 60 U.S. (19 How.) 393, 449–50 (1856).

      [46].    Ableman v. Booth, 62 U.S. 506, 516 (1858).

      [47].    Jurisdiction must be conferred by a government or sovereignty and, according to Taney, the United States had neither conferred the habeas authority claimed by the Wisconsin court, nor did Wisconsin have the power to do so. Id. at 515–16. “[N]o State can authorize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent government.” Id. In fact, Taney pointed out, Wisconsin statute mandated a state judge remand a person brought up on a habeas corpus if a United States court had begun process. Id. at 516. Since “the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties.” Id. at 523

      [48].    So too, modern federal courts scholars increasingly question the strength of Taney’s argument. William Duker argues the Suspension Clause’s location, contemporary commentary and records of the state ratification conventions suggest there was a fear of federal interference with personal liberties, and that state courts were the proper forums for redressing unjust detention claims. Duker, supra note 21, at 126–35. Duker prominently injected this argument to existing constitutional historiography, but this is by no means a minority position. Noted federalism scholar Akhil Amar reads William Duker to have “established that the very purpose of the habeas non-suspension clause of Article I, section 9, was to protect the remedy of state habeas from being abrogated by the federal government.” Amar, supra note 21, at 1509. Anthony Gregory similarly posits,

The status of the American states as free and independent before the adoption of the Constitution, and the American understanding of habeas corpus as a common law right merely acknowledged, not created, by state statutes and constitutions, suggest that it was understood at the birth of the American nation that state courts had the power to review federal detentions—a radical states’ rights power and institutionally diffuse check on federal authority.

Gregory, supra note 24, at 62–63. Ann Woolhandler and Michael Collins argue nothing in debates over 1789 Judiciary Act or Habeas Statute suggests federal exclusivity for habeas outside criminal prosecutions and constitutionally granted maritime jurisdiction. “To interpret the statute as making federal court jurisdiction exclusive may therefore require resort to a common law of federalism whereby the Court might decide that reading the statute to make the grant exclusive is necessary to avoid needless conflict in the federal system.” Woolhandler & Collins, supra note 21, at 157. Moreover, the availability of habeas corpus would be virtually non-existent if Congress had not created lower federal courts, and without a grant of widespread habeas jurisdiction to inferior courts and the Supreme Court’s appellate jurisdiction. See Duker, supra note 21, at 140. See generally Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807) (granting federal courts widespread habeas corpus jurisdiction).

      [49].    Even Alexander Hamilton in Federalist No. 82 presumed the states’ jurisdiction would carry on exactly as before under the United States Constitution.

I hold that the State courts will be divested of no part of their primitive jurisdiction further than may relate to an appeal, and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth.

The Federalist No. 82 (Alexander Hamilton).

      [50].    Randall, supra note 12, at 14.

The people, they said, may bestow supreme power where they will, and what they bestow they may recall. Thus the people of the States, possessing the right to bestow supreme governmental power as they should see fit, conferred such power upon a general government as their agent, limiting, to that extent, their State governments, but not limiting their own sovereignty.

Because the Union was a compact between sovereign equals, each state had an equal right to construe national laws’ constitutionality, a power commensurate with that of the Supreme Court because the federal government could not be expected to decide the extent of its own power. Hayne took the extreme states’ rights position that because the Union was a compact between sovereign equals, each individual state has the right to construe federal law and refuse to abide, to “nullify,” by those laws that are repugnant to the state. Mathew Brogdon, Defending the Union: Andrew Jackson’s Nullification Proclamation and American Federalism, 73 Rev. Pol. 245, 251–52 (2011). Note, the most prominent proponent of extreme states’ rights, John C. Calhoun, relied less on the doctrine of state sovereignty, because concurrent jurisdiction deferred too much to the national government, preferring the concurrent majority theory that a state majority was needed to affirm national policy in that state. Fehrenbacher, supra note 6, at 52.

      [51].    Act of Apr. 16, 1862, ch. 31, Pub. Laws, 1st Sess., in Statutes at Large, 1862, supra note 5, at 29.

      [52].    Id. After the President made the call for conscription all men within the specified range were to enroll with enrolling officers, who could be state officers if the Governor consented to their use for national conscription. Once enrolled a man became liable for military duty and if he refused the call to active service—whenever casualties in existing state regiments necessitated replacements—the conscripted man could be apprehended and detained as a deserter. “An Act to exempt certain persons from enrollment for service in the Armies of the Confederate States [First Exemption Act],” Id., § 6, § 9 at 62–63. War Department regulations required those applying for exemption to provide a certificate evincing their qualification for exemption to an enrolling officer; principals furnishing substitutes must furnish the substitute to the enrolling officer who would then provide the principal with a certificate of exemption. General Orders No. 30, 1 The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies 1097–1100 (Gov’t Printing Office 1880–1900) [hereinafter Official Army Records], General Orders No. 37, Official Army Records, supra at 1123–24.

      [53].    Act of Apr. 16, 1862, ch. 31, § 1, Pub. Laws, 1st Sess., in Statutes at Large 1862, supra note 5, at 45.

      [54].    The Second Conscription Act was enacted on September 27, 1862, and expanded the age of those liable for conscription to forty-five and required those already enlisted to serve for the war’s duration. Act of Sept. 27, 1862, ch. 15, Pub. Laws, 2d Sess., in Statutes at Large of the Confederate States of America, Passed at the Second Session of the First Congress 61–62 (R.M. Smith ed., Richmond 1864).

      [55].    Act of Apr. 21, 1862, ch. 74, Pub. Laws, 3d Sess., in Statutes at Large of the Confederate States of America, Passed at the Third Session of the First Congress 57 (R.M. Smith ed., Richmond 1864). For example, laborers no longer were considered railroad personnel and a “Twenty Negro Rule” for exempt overseers was implemented. Id. On May 1, 1863 Congress repealed the Second Exemption Act and imposed further restrictions, including section 4, which required that exempted state officers also be exempted by their states.

      [56].    See generally Robinson, supra note 18, at 122–72 (recognizing that the Confederate district courts essentially replaced the United States courts and continued to operate throughout the war, but there were far fewer Confederate courts than United States courts).

      [57].    Brummer, supra note 16, at 388.

      [58].    See id. at 389.

      [59].    See In re Bryan, 60 N.C. 1, 9 (1863); Mims v. Wimberly, 33 Ga. 587, 598 (1863); Ex parte Hill, 38 Ala. 458, 462–63 (1873).

      [60].    In re Bryan, 60 N.C. at 1 (1863) (citing Second Conscription Act).

      [61].    Id. at 2, 9.

      [62].    Mims v. Wimberly, 33 Ga. 587, 588 (1863). The record indicates only that Wimberly was “in truth and in fact” exempt from military duty from the Conscription Acts. Id.

      [63].    Ex parte Hill, 38 Ala. 458, 459–60 (1863). W.B. Armistead had procured a substitute who was not liable for conscription, at which time Armistead was discharged. He was later held in custody as liable for conscription by L.H. Hill, a Confederate enrolling officer, and sought discharge through a habeas petition. Id. Hill applied for a writ of prohibition to the Alabama Supreme Court to enjoin further proceedings by the probate judge to which Armistead had made his habeas petition. Id. Charles H. Dudley applied for a remedial writ against a state chancellor to obtain a full hearing on habeas corpus and then a discharge from custody as a conscript. Id.

      [64].    Id.

      [65].    Id.

      [66].    See generally In re Bryan, 60 N.C. 1 (1863).

      [67].    Id. at 42 (noting that the King had the obligation “to protect all of his subjects in the enjoyment of their right of personal liberty”).

      [68].    Id. at 29.

      [69].    Id. at 28.

      [70].    Mims v. Wimberly, 33 Ga. 587, 592 (1863). In Jenkins’ reading of history, “we find ourselves, at every step, treading in the footprints of State sovereignty, the most severe test, the clearest demonstration, is to be found in the ratification, which alone gave efficacy to the instrument.” Id. at 590. This account closely resembles that given by Davis, see note infra re ratification. Further, it resembles Calhoun’s account of the founding: “[t]he several states of the Union, acting in their confederated character, ordained and established the Constitution.” John C. Calhoun, A Disquisition on Government, and A Discourse on the Constitution and Government of the United States 131 (Richard K. Cralle ed., 2002) (1851). The United States Constitution had lent itself to all manner of confusion regarding the locus of sovereignty, but, “happily for us” Jenkins noted, the Confederate drafters had replaced “We the people” with “We, the people of the Confederate States,” thereby conforming to “the truth of history.” Mims, 33 Ga. at 591.

      [71].    Mims, 33 Ga. at 589, 593, 598. If the question before a court is whether a federal officer has “erroneously applied his authority . . . to a person” outside the subject matter of his proper jurisdiction, then courts of either government may “determine the question of such erroneous application of authority, unless the law, in its terms, inhibit such inquiry.” Ex parte Hill, 38 Ala. 458, 463 (1863).

      [72].    Ex parte Hill, 38 Ala. at 462–63 (basing his conclusion on Slocum v. Mayberry and McClung v. Silliman).

      [73].    Id.

      [74].    In re Bryan, 60 N.C. 1, 42 (1863). The nation that habeas jurisdiction was derived from the common law was featured more prominently in Pearson’s opinion than in other judges’. Id. In his opinion, Pearson noted that the North Carolina Habeas Corpus Acts copied longstanding English habeas statutes and that one need only look to North Carolina positive law if they were unconvinced of the courts’ common law jurisdiction. Id. at 43–45. Secession theory held a state’s sovereignty had not been fundamentally changed by secession from the Union because the states had acted as established and recognized sovereigns. John W. Burgess, The Civil War and the Constitution, 1859–1865 77 (1908). Habeas jurisdiction attached to North Carolina’s sovereignty when it entered the union, therefore, it had existed unabated into the Confederacy. The other judges made little mention of the actual state statutes conferring habeas jurisdiction except in passing. In re Bryan, 60 N.C. at 37. In response to such arguments, Mr. Strong, arguing on behalf of the Confederacy, stated, “The Common Law itself, in this State, depends for its force upon a statute. And the Legislature could uproot it to-morrow, and establish the code of Napoleon in its stead.” Id. (internal citations omitted).

      [75].    In re Bryan, 60 N.C. at 19. Because state courts’ authority flowed from the common law, Pearson argued, “the power of the Legislature to confer jurisdiction is unlimited.” Id.

      [76].    In Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93 (1807), Marshall acknowledged the state courts’ expansive common law jurisdiction, stating, “[c]ourts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles.” Id. Regarding habeas as part of that jurisdiction, Marshall further suggested all common law courts innately could exercise the writ without indicating any limit upon that power if the prisoner be in federal, opposed to state, detention:

The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.

Id. at 93–94.

      [77].    See In re Bryan, 60 N.C. at 9.

Our conclusion is that the Court has jurisdiction to discharge a citizen by the writ of habeas corpus, whenever it is made to appear that he is unlawfully restrained of his liberty by an officer of the Confederate States; and that when a case is made out, the Court is bound to exercise the jurisdiction, which has been confided to it as a sacred trust, and has no discretion and no right to be influenced by considerations growing out of the condition of our country, but must act with a single eye to the due administration of the law, according to the proper construction of the acts of Congress.

Id. (internal quotation marks omitted). Even Taney could not help but pay service to the writ’s venerated place in Anglo-American jurisprudence after Lincoln first suspended the writ, writing: “From the earliest history of the common law, if a person were imprisoned, no matter by what authority, he had a right to the writ of habeas corpus, to bring his case before the king’s bench.” Ex parte Merryman, 17 Fed. Cas. 144, 150 (1861).

      [78].    See Mims v. Wimberly, 33 Ga. 587, 597 (1893); In re Bryan 60 N.C. at 11–12.

      [79].    See In re Bryan, 60 N.C. at 9–10. Battle specified that the United States Constitution’s Tenth Amendment had been “unnecessary, as the General Government had no powers except what the States had granted to it.” Id.

      [80].    The Federalist No. 82. (Alexander Hamilton). Hamilton extolled concurrent jurisdiction: “Among the cause, of which the State courts had previous cognizance, none were more important than those in which they claimed the right to inquire, through the means of writs of habeas corpus, into the reasons for the imprisonment of person alleged to be illegally restrained of their liberty.” In re Bryan, 60 N.C. at 11.

      [81].    In re Bryan, 60 N.C. at 11.

      [82].    Id. at 11–12.

      [83].    Id. at 4 (quoting Lockington’s Case, Brightly 269, 273 (Pa. 1813)).

      [84].    For state support, Pearson pointed to, inter alia, State v. Brearly, 5 N.J.L. 555 (1819) and treatises by Hurd and Kent. See In re Bryan, 60 N.C. at 4. Pearson reasoned the weight of precedent from state courts was on his side: “It must be presumed that this long series of cases which establish the concurrent jurisdiction of the State Courts, and their power to put a construction on acts of Congress, when necessary to the decision of a case before them, is supported by the most clear and satisfactory reasoning . . . .” Id. Not only did state decisions support habeas jurisdiction, but so did federal precedent according to Pearson, particularly Slocum v. Mayberry, in which a customs officer, suspecting an intention to violate the U.S. embargo laws, seized a vessel in Newport Rhode Island. Id. at 5; see also Slocum v. Mayberry, 15 U.S. (2 Wheat.) (1817). The owners of the cargo aboard the ship brought an action in state court seeking a writ of replevin, which the state judge granted, to have the cargo discharged from the custom officer’s control. In re Bryan, 60 N.C. at 5. The Supreme Court affirmed the state court’s action because it determined the United States officer was entitled only to detain the ship under the federal law, not the cargo. Id. Although Slocum’s facts differed from the present case—habeas was not involved—Pearson understood Slocum to broadly support state courts’ concurrent jurisdiction when a federal officer detained an object or person without proper congressional authorization.

[S]o, it is directly in point to show that a State court has jurisdiction wherever the law gives no authority to detain the person or the thing; and, in order to decide that question, the State court has power to put a construction on the act of Congress under which the officer justifies the imprisonment or detention.

In re Bryan, 60 N.C. at 5. Stone and Jenkins likewise sought to legitimize state habeas by looking to United States precedent rather than by crafting a new argument under the Confederate Constitution. Jenkins argued that one need only look to United States law to understand why state habeas was unproblematic to the federal scheme as part of the states’ concurrent jurisdiction. Procedurally, Jenkins pointed out, judicial power under the United States Constitution extended to cases “between citizens of different States,” but plaintiffs could elect between pursuing their claims in state or federal courts. Mims v. Wimberly, 33 Ga. 587, 595 (1863).

      [85].    See In re Bryan, 60 N.C. at 5–6.

      [86].    Id.

      [87].    Mims, 33 Ga. at 596.

      [88].    That Stone framed his discussion as whether federal authority exceeded authority, rather than exercised authority properly, evinces his greater concern for the Confederacy’s survival. The difference between his reasoning style and the stronger advocates of state habeas illustrates his amenability to strong federal power. Stone’s opinion relied almost exclusively on federal precedent, Slocum v. Mayberry and McClung v. Silliman especially. There was little mention of state law and none of the common law discussion, which occupied so much of Pearson’s opinion. Ex parte Hill, 38 Ala. 458, 463–64 (1863).

      [89].    Mims, 33 Ga. at 593.

      [90].     Id. at 595.

The first paragraph, second section, third article, of the Constitution, defines the extent of the judicial power of the Confederate States. There are sundry specifications, and among others this, ‘all cases arising under the laws of the Confederate States,’ and such is the case before us. But it is not declared that this jurisdiction shall be exclusive.


      [91].    See Donald E. Wilkes, From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733–1865, 45 Ga. L. Rev. 1015, 1062–63 (2011).

      [92].    In re Bryan, 60 N.C. 1, 20 (1863). Pearson reasoned that the Second Conscription Act did not make those serving as substitutes liable for conscription because they were already bound in service, and it would be redundant for the act to merely reclassify them as liable to effectuate the Act’s purpose of increasing the Army. Id. Yet, the Secretary of War’s regulation holding principals liable required that the substitutes had become liable for conscription, to which Pearson responded:

A decent respect for our lawmakers forbids the courts from adopting a construction which leads to the conclusion that it was the intention, by the use of general words, to include within the operation of the act, substitutes who were already bound for the war; not for the purpose of affecting them, but for the indirect purpose of reaching parties who had furnished substitutes, and in that way asserting a power, which is at least doubtful, and certainly involves repudiation and a want of good faith.

Id. at 21–22 (quoting In re Irvin, 60 N.C. 20, 21–22 (1863)). Pearson relied on a similar interpretation of the Conscript Act with regards to the substitutes in the case, In re Meroney, when he pointed out that a different construction, such as that embodied by the War Department’s regulation in question, was inconsistent with a congressional act. Id. at 22; see also In re Meroney, 60 N.C. 22 (1863). Further, to render the substitutes service void so as to exempt the principal, the War Department regulation would have had to insert an additional condition to the substitution contract—that a substitute cannot be made liable afterward by a subsequent act of Congress—which could only be accomplished by a legislative, rather than a bureaucratic, act. In re Bryan, 60 N.C. at 23–25 (Battle, J., concurring).

      [93].    Ex parte Hill, 38 Ala. at 475.

The order of May [General Order No. 37] is too clear to admit of a cavil or doubt. It provides, that the exemption obtained on putting in a substitute, ‘is valid only so long as the substitute is exempt.’ This regulation, being made pursuant to authority conferred by congress, has the binding efficacy of law. It was part of the public law when Mr. Armistead put in his substitute, and therefore became part and parcel of the act done. He cannot complain of a breach of governmental faith, for he is charged with a knowledge of the terms on which his substitute was received. Neither can it, with any plausibility, be contended, that the order of 19th of May, declaring when the exemption shall expire, must be restricted in its operation to a certain limited number of contingencies, on the happening of some one of which the exemption of the principal shall cease. . . . If under forty, he ceased to be legally exempt when the call was made for conscripts up to that age; and Mr. Armistead’s exemption, by reason thereof, then ceased to be valid.


      [94].    In Ex parte Hill, Justice Stone articulated:

In passing upon the question of fraud vel non, the commanding officer, commandant of conscripts, or secretary of war, as the case may be, must necessarily and uniformly hear and decide upon evidence, and draw inferences from facts. These things inhere in the very nature of the inquiry to be made. They always come up, and, hence, are not the accidents of the particular case. They are like the preliminary proofs, and documentary exemplifications, which pertain to the functions of a land-office register, in the matter of pre-emption claims. To allow the State courts to re-try or re-examine the facts on which such decision is pronounced, is to give to the courts of the State government appellate jurisdiction over the commanding officers, commandant of conscripts, or the secretary of war; officers who receive their appointments from the Confederate government, and who are specially charged, by that government, with the performance of these functions. The issue is not solely, nor even mainly, between the principal and the substitute. The Confederate government is directly concerned in the result; and, in its military service, will be the chief sufferer from a reversal of the decision pronounced by the commanding officer, or other officer acting in the premises. State courts have no authority to re-try the question of fraud vel non, in the matter of putting a substitute into the army, under the rules above copied.

Ex parte Hill, 38 Ala. at 470.

      [95].    Id.

      [96].    Id. at 465–66.

      [97].    Mims v. Wimberly, 33 Ga. 587, 598 (1863). David Currie suggests Jefferson Davis largely acted within the bounds of the Confederate Constitution; whereas, Congress was generally willing to follow strong national policies—“virtually everything can be made necessary and proper to military success.” See Currie, supra note 7, at 1355, 1399. Fehrenbacher concluded, “the truly striking feature of this constitution written and adopted by representatives of the deep South is not the extent to which it incorporated states-rights doctrines, but rather the extent to which it transcended those principles in order to build a nation.” Fehrenbacher, supra note 6, at 63. Richard Bensel asserts the confederate governing culture and Constitution were “much more centralized tha[n] those of the Union.” Richard F. Bensel, Southern Leviathan: The Development of Central State Authority in the Confederate States of America, 2 Am. Pol. Dev. 68, 90 (1987).

      [98].    In re Bryan, 60 N.C. 1, 1–16 (1863).

      [99].    Cf. Slocum v. Mayberry, 15 U.S. 1, 6 (1817) (applying this reasoning to the seizure of cargo).

    [100].    Pearson reiterated that any construction by a Confederate district court would be controlling and non-reviewable by state courts, but because the executive branch has no judicial power,

any construction it might give to an act of Congress would be the subject of review, either by the State courts or the Confederate courts; and when a citizen is unlawfully deprived of his liberty or property by an executive officer, acting under an erroneous construction of an act of Congress, the State courts may give redress, as in [Slocum] v. Mayberry.

In re Bryan, 60 N.C. at 8.

    [101].    Id. at 15–16.

    [102].    Id. at 26.

    [103].    Id. at 9.

    [104].    See 14 U.S. (1 Wheat.) 304, 314–15 (1816). The relationship between state and federal courts in the Confederacy was a topic of much debate. The Confederate Constitution stipulated that there would be a Supreme Court and the Senate Judiciary Committee, at Davis’ behest, offered a bill to establish the Court in March 1861. Currie, supra note 7, at 1368–69. This bill was indefinitely postponed after a debate arose regarding whether or not to repeal the Judiciary Act provision for Supreme Court review of state judgments. Id. at 1369–70; see Act of Mar. 16, 1861, ch. 61, Pub. Laws, in Statutes at Large of the Provisional Government of the Confederate States of America 75 (J. Matthews ed., Williams, Hein & Co. 1988) (1864) [hereinafter Statutes at Large, Provisional Government of the Confederate].

That a final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the Confederates States . . . the decision may be re-examined, and reversed or affirmed in the Supreme Court of the Confederate States.

See Act of Mar. 16, 1861, ch. 61, § 45, Pub. Laws, in Statutes at Large of the Provisional Government of the Confederate, supra.

Currie notes that this provision mirrors section 25 of the Judiciary Act of 1789. See Currie, supra note 7, at 1368. During the following session of Congress in September 1863, another attempt was made to set up the Supreme Court in order to address a number of questions that had arisen, such as whether an income tax would be constitutional, and to fulfill the constitutional mandate. Currie, supra note 7, at 1370. Yet, opponents pointed to the history of the United States’ Court, which time and again, they cautioned, had sanctioned the expansion of federal power to the states’ detriment. See id. at 1375. Opponents and proponents vigorously debated the virtues and drawbacks of establishing a Supreme Court. The former had the better of the argument—a Supreme Court would be beholden only to Richmond rather than to protect the states’ sovereignty, they argued.                               See id. at 1371–75. The Senate consequently voted in favor of establishing the Court only after the 1861 Judiciary Act’s provision for Supreme Court review of state supreme court decisions was repealed. Id. at 1375 (citing Senate Proceedings (Mar. 18, 1863), reprinted in 48 Southern Historical Society Papers (1992)). The bill then stalled in the House. Id.

    [105].    Judges took a role in pushing back against policy on the fringes. The Supreme Court of Texas reasoned that nothing in the Constitution prohibited Congress from violating contractual obligations (this had only been denied to the states), and that the ex post facto provision related only to criminal legislation. Ex parte Mayer, 27 Tex. 715, 716 (1864). Other courts took a more generous view of whether an exemption contract had been formed. Assuming an exemption contract had been formed, the Court of Appeals of South Carolina discharged a man who had been exempted as an overseer on the basis that subsequent legislation changing the exemption qualifications for overseers could not operate retroactively absent a clear intention to do so. Ex parte Graham, 47 S.C.L. 277, 283–84, 290 (S.C. Ct. App. (1864). The Supreme Court of Alabama relied on contract law in 1864 when it held that a party has a right to have acceptance and approval of an exemption application within a reasonable time, and that if a reasonable time has passed after such an application was made, exemption could be assumed. Ex parte Mitchell, 39 Ala. 442, 496–49 (1864). Judges utilized state habeas to define the boundaries of the War Department’s regulations and the evolving conscription-exemption regime, thereby assuming the empowered role in the Confederate federal structure discussed.

    [106].    Ex parte Hill, 38 Ala. 429, 430 (1863).

    [107].    Id. at 435. In 1861, Walker had set a similar tone in Ex parte Kelly, by holding based on Ableman v. Booth, that state courts had no jurisdiction to interfere with a detention under federal law. See Ex parte Kelly, 37 Ala. 474, 476 (1861).

    [108].    Ex parte Hill, 38 Ala. at 439. Walker stated:

I do not say that congress can abridge or qualify the jurisdiction of the State courts. The want of authority in the State tribunals, to supervise and control the executive officers of the Confederate States, in the exercise of their appointed functions, by the writs of injunction, replevin, habeas corpus, or other process, results from the delegation in the constitution of an unqualified power to execute the laws which congress may enact, and not from any denial of such authority by act of congress. If a State court cannot correct, under a writ of habeas corpus, the errors of the enrolling officers engaged in enforcing the law of conscription, it is because the constitution bestows the power to execute the law without any qualification that it shall be done in a manner consistent with the judgment of a State judge, and not because congress has suspended, or can suspend, the writ of habeas corpus.

Id. at 479.

    [109].    Id. at 478–79.

I maintain, that so much of that jurisdiction as is exercised in the application of judicial correctives to the irregularities and errors of the executive officers of that government, charged with the enforcement of the conscript law, is necessarily exclusive; and that such officers, when acting within the limits of their authority, can not be interfered with by a State court, although they may commit errors.

Id. at 477.

    [110].    Id. at 490.

    [111].    Id. at 489. War Department clerk Robert Kean observed, on February 26, 1864, “It is pitiful to see how closely the factionists of North Carolina and Georgia, in their resistance to the conscription by the abuse of the habeas corpus, are imitating the tactics with which the Abolitionists fought the fugitive slave law.” Robert G. Kean, Inside the Confederate Government: The Diary of Robert Garlick Hill Kean 138 (Younger ed., 1957). In a letter from mid-1863, Assistant Secretary of War J.A. Campbell similarly linked contemporary state habeas with the abolitionists’ use of habeas, expressing frustration that the state habeas problem could not presently be settled:

The Department has been forced to inquire into the extent of the jurisdiction of local judges to determine such questions. It is well known to you that the writ of habeas corpus was the favorite instrument by which the Abolitionists sought to defeat the fugitive slave law. In some cases they decided that law to be unconstitutional, and discharged from the custody of the Federal officers those who were held for violation of it.

Letter from J.A. Campbell to Hon. E. Barksdale (July 21, 1863), in 2 Official Army Records, supra note 52, at 655–56.

    [112].    See Ex parte Hill, 38 Ala. 429, 496–98 (1863). In response to the charge that Ableman’s “broad and comprehensive principle” denying state habeas was merely obiter dictum, Walker replied, “It is not right to denounce the statement of a principle as obiter dictum, because it is large enough to cover other cases than those decided.” Id. at 495. That the Supreme Court had been unanimous in Ableman suggested there was no ambiguity about the ruling. The Court’s language had been precise, indicating the true opinion of each justice, and should not be read narrowly. See id. at 494. Because Ableman broadly denied state habeas, Walker dismissed the variety of state precedent and constitutional theory relied upon in Bryan. Id. at 496–97.

    [113].    Id. at 499.

    [114].    Id. The Union anticipated this concern and passed an Indemnity Act so that federal officers would not be held personally liable for, inter alia, carrying out the draft. See James G. Randall, The Indemnity Act of 1863: A Study in the War-Time Immunity of Governmental Officers, 20 Mich. L. Rev. 589, 589 (1922).

    [115].    Ex parte Hill, 38 Ala. at 499. The Davis Administration took a similar view. In a message to Congress on February 3, 1864, Davis characterized state judges exerting habeas as an undue obstruction to conscription. The danger, Davis warned, could come from just one judge for, “[i]f a single judge, in any State, should hold the act to be unconstitutional, it is easy to see that that State will either furnish no soldiers from that class, or furnish them only when too late for the pressing need of the country.” 3 Official Army Records, supra note 52, at 69. Even with the law on the Confederacy’s side, Davis expressed aggravation that appealing decisions through the courts would create a delay that “will be tantamount in its consequences to a discharge.” Id.

    [116].    Ex parte Hill, 38 Ala. at 503–04.

    [117].    Id. at 504.

    [118].    Historian Burton J. Hendrick concluded Jefferson Davis quickly abandoned states’ rights philosophy “when faced with the inexorable realism of war” and only the opposition of other leaders such as Alexander Stephens made him tread warily on the path towards centralized nationalism. Burton J. Hendrick, Statesmen of the Lost Cause: Jefferson Davis and His Cabinet 429 (1939). An influential work on why the Confederacy failed posits Confederate nationalism failed, and that states’ rights had little effect on the war effort. Beringer et al., supra note 6, at 428–29. Paul D. Escott has argued Davis failed to respond to the needs of the common people. See Paul D. Escott, After Secession: Jefferson Davis and the Failure of Confederate Nationalism 146 (1978). The interplay between the self-identity crisis and state habeas provides fuller context than these works for Davis’ complicated relationship with states’ rights. The administration’s relationship with habeas further marks the irretrievable shift in policy where states’ rights lost meaning, and winning the war for independence took precedence over all else.

    [119].    Hendrick, supra note 118, at 429.

    [120].    Id.

    [121].    Jefferson Davis Address to the Congress of the Confederate States (Nov. 18, 1861), in 1 A Complication of the Messages and Papers of the Confederacy, 1861–1865 140–41 (James D. Richardson ed., 1904) [hereinafter Messages and Papers of the Confederacy].

    [122].    Jefferson Davis Address to Gov. Joseph E. Brown (July 10, 1862), in Messages and Papers of the Confederacy, supra note 121, at 54.

    [123].    Letter from Jefferson Davis to Gov. Francis W. Pickens (Sept. 3, 1862), in Messages and Papers of the Confederacy, supra note 121, at 74–75. Further placed state courts on par with federal courts as avenue to redress grievances:

The Confederate courts, as well as those of the State, possess ample powers for the redress of grievances, whether inflicted by legislation or executive usurpation, and the direct conflict of executive authorities presents a condition of affairs so grave and is suggestive of consequences so disastrous that I am sure you cannot contemplate them without deep-seated alarm.

Id. at 75.

    [124].    Internal problems in the Confederacy multiplied as the war went on, and the administration increasingly contended with the populace’s discontent as commodity prices skyrocketed and supplies became scarce, leading to riots by women in a number of southern cities. Paul D. Escott, The Confederacy: the Slaveholders’ Failed Venture 49, 60 (2010). On January 1, 1863, the Emancipation Proclamation raised the stakes by making the war about the very existence of slavery as opposed to slaveholders’ rights. In his memoirs, Davis wrote, “[Lincoln] put arms in their hands, and trained their humble but emotional natures to deeds of violence and bloodshed, and sent them out to devastate their benefactors.” 2 Jefferson Davis, The Rise and Fall of the Confederate Government 193 (1881). A series of new legislation in early 1864 signaled the dire measures Confederate leaders thought necessary to continue the war. In addition to a still more expansive conscription act, Congress passed laws establishing higher taxes, a compulsory funding measure to reduce the currency in circulation by as much as two-thirds, an act strictly regulating the trade of commodities, and the suspension of habeas corpus. See Thomas, supra note ­­6, at 263–65.

    [125].    Address to Legislature of Mississippi at Jackson (Dec. 26, 1862), in 8 The Papers of Jefferson Davis 572–73 (Lynda L. Crist & Mary Seaton Dix eds., 1995).

    [126].    Letter from Thomas H. Watts to James Seddon (Nov. 28, 1862), in The Opinions of the Confederate Attorneys General, 1861–1865 183 (Rembert W. Patrick ed., 1950) [hereinafter, Opinions of the Confederate Attorneys General.].

    [127].    Letter from Thomas H. Watts to James Seddon (Dec. 15, 1862), in Opinions of the Confederate Attorneys General, supra note 126, at 188–91.

    [128].    Circular No. 36 from James B. Fry (July 1, 1863), in 3 Official Army Records, supra note 52, at 460–61; see also, Randall, supra note 12, at 431.

    [129].    Letter from Thomas H. Watts to Davis, (Aug. 8, 1863), Opinions of the Confederate Attorneys General, supra note 126, at 311, 313.

It may be that Genl. Buckner, as a Military Commander of a Department, by virtue of his powers and duties to defend the country, independent of any specific laws of Congress, had the right to arrest and hold temporarily, suspicious persons, to prevent them communicating with, or otherwise giving aid and comfort to the enemy. (emphasis added).

    [130].    See id. at 313. Watts’ instructions were prompted because General Buckner had only replied, “Abe Tipton is held as an open and avowed enemy of the Confederate Government. He is held by the Military Authorities, under the laws of the Confederacy.” Id. Watts further stated, “The Court or Judge of a State has the clear right to inquire in this mode of proceeding for what cause, and by what authority the prisoner is confined within the territorial limits of the State Sovereignty.” Id. at 314.

    [131].    Id. at 314.

    [132].    Id. That federal officers had always disputed the doctrine suggests the administration’s tacit support of state habeas in 1862–1863 was lukewarm at best.

    [133].    In re Bryan, 60 N.C. 1, 141–15 (1863).

    [134].    Id.

    [135].    3 Official Army Records, supra note 52, at 69.

    [136].    Id.

    [137].    Id.

    [138].    Id.

    [139].    Letter from James Seddon to General Edmund Kirby Smith (Mar. 19, 1864), in 3 Official Army Records, supra note 52, at 231.

    [140].    Kean, supra note 111, at 64; cf. John B. Jones, A Rebel War Clerk’s Diary 443, 457 (Earl Shenck Miers ed., 1958) (indicating War Clerk John B. Jones’ attitude, who expressed concern over Jefferson Davis assuming absolute power (October 19, 1864) and the preference conscription superintendents gave the rich (December 6, 1864)).

    [141].    Act of Feb. 27, 1862, ch. 2, Pub. Laws, in Statutes at Large, Provisional Government of the Confederate, supra note 104, at 1 (James Matthews ed,. 1862).

    [142].    Currie, supra note 7, at 1328–29.

    [143].    Act of Oct. 13, 1862, ch. 21, Pub. Laws, in Statutes at Large, Provisional Government of the Confederate, supra note 104, at 84 (James Matthews ed. 1862) (“The President shall cause proper officers to investigate the cases of all persons so arrested, in order that they may be discharged, if improperly detained, unless they can be speedily tried in due course of law.”

    [144].    See supra notes 122–25 and accompanying text.

    [145].    Act of Feb. 15, 1864, ch. 37, Pub. Laws, 4th Sess., in Statutes at Large of the Confederate States of America, Passed at the Fourth Session of the First Congress 1863–64, 28–30 (R.M. Smith ed., Richmond 1864). Neely frames the February 1864 Act as the request to end civil liberties in the Confederacy. Representing a departure from earlier requests to suspend habeas, it was purportedly necessary for protection from disloyalty within the heart of the Confederacy. See Neely, supra note 6, at 166. Neely further argues that, similar to Lincoln, Davis showed little sincere interest in constitutional restrictions on government authority in wartime. Id. at 167.

    [146].    Pearson took an expansive view of state habeas jurisdiction even after Congress passed a comprehensive grant for the suspension of habeas corpus across the Confederacy. Addressing the Act’s scope in In re Roseman, Pearson concluded that the petitioner’s case was not covered because by applying for the writ, the petitioner was not seeking to “avoid” service, which implied that the petitioner would have kept out of the way, “taking to the woods, instead of coming up and appealing to the courts to decide upon their rights.” 60 N.C. 368 (1 Win.) 443, 445 (1863). But other North Carolina judges’ unwillingness to push the boundary of state habeas was more representative of the general relationship between state judges and the doctrine. See J.G. de Roulhac Hamilton, The North Carolina Courts and the Confederacy, 4 N.C. Hist. Rev. 366, 366, 390 (1927). The administration resolved that something had to be done before other judges start following Pearson’s example. Perceived disruption arising from Pearson’s decisions, more than any other judge, prompted Davis to recommend suspension of the writ. Id. at 390. Detractors called Pearson a traitor and “predicted that North Carolina would become a haven for all those desiring to shirk their military duties.” Jennifer Van Zant, Confederate Conscription and the North Carolina Supreme Court, 72 N.C. Hist. Rev. 54, 70–71 (1995). In a letter to Thomas Bragg, who had argued for the Confederacy in Bryan, Davis wrote:

The decision of Judge Pearson releasing the conscript in the case before him will of course be respected until the action of the appellate court, for the case was before him prior to the passage of the law suspending the writ of habeas corpus; and although I do not believe that his decision is right, the public interest will not suffer by awaiting the result of the appeal in the one case before him.

Letter from Jefferson Davis to Thomas Bragg (Mar. 7, 1864), in 3 Official Army Records, supra note 52, at 201. Davis placed faith in the North Carolina supreme court’s other justices to counteract Pearson’s meddling influence. Should they fail and should Pearson continue to “pursue the factious course,” Davis ominously pledged, “I shall not shrink from the issue.” Id.

    [147].    Resolution to House of Representatives (May 14, 1864), 3 Official Army Records, supra note 52, at 429–30.

    [148].    Their northern counterparts, the principal advocates for state habeas before the war, did not defend state habeas doctrine with the same vigor. Notable, the Supreme Court of Michigan in In re Spangler adopted a tone similar to Walker in Ex parte Hill in holding state habeas unconstitutional. In re Spangler, 11 Mich. 298, 307 (1863). Echoing Taney in Abelman, the Michigan Supreme Court reasoned:

The Constitution was not framed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home: for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose it was felt by the statesman who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the general government, and that in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities.

Id.; see also Ex parte Anderson, 16 Iowa 595 (1864) (giving a lukewarm defense of state habeas by the Supreme Court of Iowa, but deciding the case on other grounds); cf. Commonwealth ex rel. M’lain v. Wright, 3 Grant 437 (Pa. 1863) (defending the state habeas jurisdiction). After the war, northern courts remained divided regarding state habeas until Tarble’s Case. See In re Farrand, 8 Fed. Cas. 1070, 1072 (D. Ky. 1867); Ex parte Hill, 5 Nev. 154 (1869) (following Abelman and denying state habeas).

    [149].    Hamilton, supra note 10, at 448.