Habeas writs that helped define Reconstruction-era Texas

While preparing this post related to the history of the Texas Court of Criminal Appeals, I ran across stories about two writs of habeas corpus from Texas' Reconstruction-era history and jurisprudence that one doesn't frequently hear told. For context, in 1867, back when Texas had just one high court, not two, few recall today that all five Texas Supreme Court Justices were removed from office by the US military for their past Confederate allegiances. The five judges were publicly labeled "impediments to reconstruction," a phrase which stuck in the craw of Texas' small and insular legal community for at least two generations, and their expulsion became a cause celebre among ex-Confederate militants. Their names were:

• George F. Moore (Chief Justice, August 1866 -- September 1867, Associate Justice 1862-'66)
• Richard Coke (August 1866 -- September 1867)
• S. P. Donley (October 1866 -- September 1867)
• Asa H. Willie (August 1866 -- September 1867)
• George W. Smith (August 1866 -- September 1867)

These men were replaced by a group which would derisively become known as Texas' "Semicolon Court," so-named among courthouse wags because of their reliance on the grammatical implications of a semicolon in deciding to nullify the gubernatorial election of one of the ousted judges, Richard Coke, who ran for governor as a Democrat in 1873 and won by roughly a 2-1 margin. The Texas Supreme Court declared Coke's election invalid in an extraordinary habeas corpus writ styled Ex Parte Rodriguez - a petition by a man accused of voting twice in a Harris County election. In a ruling handed down Jan. 6, 1874, less than two weeks before Coke's inauguration, "The judges ruled against the state and concluded that Rodríguez should be released because the election had not been valid." So the judgment on the election's validity was a secondary consequence of the ruling, which at its core was about a criminal conviction in a voting fraud case. In the political arena, though, it was viewed (as it was almost certainly intended) as an opportunistic means to rescind the election of a man the military government had openly deposed a scant few years before.

What happened next, though, must have been one of the most exciting moments ever in Texas politics, and certainly in the annals of Texas habeas law:

Disregarding the court ruling, the Democrats secured the keys to the second floor of the Capitol and took possession. [Incumbent Gov. Edmund] Davis was reported to have state troops stationed on the lower floor. The Travis Rifles (see TRAVIS GUARDS AND RIFLES), summoned to protect Davis, were converted into a sheriff's posse and protected Coke. On January 15, 1874, Coke was inaugurated as governor. On January 16, Davis arranged for a truce, but he made one final appeal for federal intervention. A telegram from President Ulysses S. Grant said that he did not feel warranted in sending federal troops to keep Davis in office. Davis resigned his office on January 19. Coke's inauguration restored Democratic control in Texas.

Imagine if, upon receipt of the Supreme Court order in Bush v. Gore, Vice President Gore had holed himself up in the White House with an armed contingent and assumed the Presidency anyway, with the military and law enforcement reluctantly acquiescing to his rule over the court's objections: That would be a rough, modern equivalent of Coke's bold ascension to Governor after his ouster from the Texas Supreme Court.

Coke's story ranks as one of the most extraordinary in Texas political history. And arguably among the darkest. "In 1859 Coke was appointed by Gov. Hardin R. Runnels to a commission that decided that Comanche Indians on the Brazos Indian Reservation should be removed from Texas." He had been a delegate to Texas' secession commission, voting "yes," and volunteered as a private when the Civil War commenced, returning from the field with battle injuries as a captain with the Fifteenth Texas Infantry. He was elected to the state Supreme Court in 1866, then went in just a few years from writing opinions on behalf of the court to openly defying an order by the judges who succeeded him as he seized control of the governor's office at gunpoint. Once there, said this source (p. 156), "the court which immediately followed the Semicolon Court ... was appointed by Gov. Coke and served until the adoption of the 1876 Constitution."

Step back from the details for a moment to consider the arch of this man's political career. Richard Coke went from being ousted from his Texas Supreme Court post by the US military governor to earning the Texas Governor's seat in an election culminating in an armed showdown, after which, victorious, he named all the replacement judges. Can't you imagine those appointments must have been a particularly satisfying political prize? He oversaw the writing of the state constitution that formally launched Jim Crow in Texas, then went to Washington as US Senator to fight federal intervention from what he must have considered the belly of the beast. Even if his tenure in the US Senate failed to match the drama of his state-level political skirmishes, what an epic career!

So it was that Justice Coke became Governor Coke, and later US Senator Coke. But really, none of the  Supreme Court judges ousted by the military left the political scene, and indeed in many ways the group became the core of Texas' post-reconstruction government. Justice George F. Moore, for example, re-emerged as the first Chief Justice on the Texas Supreme Court elected under Texas' 1876 Constitution, which first established the architecture of Jim Crow. Justice Asa Willie, who was a Texas Attorney General before the Civil War and fought at Chickimauga before being elected to, then ousted from, the Texas Supreme Court, later succeeded Moore as Chief Justice before he was elected to the US Congress. A county in the Panhandle is named after Justice Donley (another in west Texas is named for Coke), while George Smith went on to serve in the Texas Legislature before his premature death from yellow fever in 1873. Most pivotal among them, though, was Justice Coke.

In the Coke-Davis episode, a habeas ruling was defied at gunpoint in an embittered political dispute, but it wasn't the only politically significant habeas writ of the era. A beautifully written posthumous remembrance (p. vii) of Chief Justice George F. Moore in 1884 by fellow Texas Supreme Court Justice A.W. Terrell described another remarkable habeas writ, this one issued during war time, which successfully dissuaded a Confederate military commander from punishment of Union sympathizers. The ruling supposedly was the source of the allegation that Moore and his fellow ex-Confederate justices would not subjugate themselves to military rule. Wrote Terrell:

I would do injustice to him as a judge and be recreant to duty as a friend, now that he is gone, if I failed in this solemn moment to rescue his memory from the aspersion conveyed in the language of a military order that once removed him from his high place. At no time during the war between the states was the maxim inter arma leges silent so forcibly illustrated as in 1864. During that year four citizens of Texas, disloyal to her government, however exempt from service, were confined in a military camp on charges of treason and conspiracy against the Confederate States. The general commanding had determined to make by their sacrifice a terrible example - unless rescued by the civil law their doom was sealed. For them, Chief Justice Moore issued writs of habeas corpus, which were disregarded by order of the commanding general on the grounds that the Confederate congress had passed an act suspending the writ. Judge Moore, unawed by power, then rose to the full dignity of a fearless judge and delivered the opinion in which it will be found these memorable words: "If the refusal to obey the writ was by order of the commanding general, then he is the principal offender. Those by whom he has perpetrated so glaring an outrage upon the law and authority of this court are alike his subordinates in criminality and inferiors in rank. ... Better it would be for the prisoners who are in custody, though doubly guilty, beyond all that is charged against them, to go unwhipped of justice, than for the civil authorities to be subordinated to military control and made dependent on the consent of the latter for the discharge of its functions." The commanding general bowed his head, purged himself of the contempt, and the doomed  men, rescued by the hand of the law from a drum-head court martial, were restored to their families. Such was the action of a Texas judge when the tinkle of a secretary's bell condemned unheard the citizens of other states to military bastilles. How can posterity believe that when the clash of arms had ceased and sweet peace came again to bless the land, a judge so loyal to the high trust reposed in him by the people, was removed from the bench by a military satrap as an "impediment to reconstruction" of civil government? Of his associate impediments, one now represents this state in the United States senate, and another presides as chief justice of this court.

That's a powerful example of the use of the habeas writ during wartime - probably one without parallel under Lincoln's Union during the same period.

As the bittersweet irony of history would have it, when Moore took the reins of the Texas Supreme Court as Chief Justice again in 1878, the Texas Constitution had split off the habeas corpus function and given it to a new "Court of Appeal," which was the predecessor of the modern-day Texas Court of Criminal Appeals. As Chief Justice of the new Texas Supreme Court, he no longer had jurisdiction over the writ which had made him a living legend among his peers.