Hillegas v. Sams Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    I n  t h e

§>ujirm£ CUnurt of tlu  Inttofu
October Term, 1965 

No................

J an H illegas, 

—v.—
Petitioner,

J oe Sams, J b., County Attorney for Lowndes County, Mis­
sissippi, and P enn Taylor, Sheriff and Custodian of 
the County Jail of Lowndes County, Mississippi,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

H enry M. A ronson

538^2 North Farish Street 
Jackson, Mississippi 39202

J ack Greenberg 
J ames M. Nabbit, III 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Anthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Of counsel:
R. J ess Brown 
Carsie A. H all 
J ack H. Y oung



I N D E X

Citations to Opinions Below .......................................  1

Jurisdiction ............................. ..................................... . 2

Question Presented .......................................................  2

Constitutional and Statutory Provisions Involved......  3

Statement .........................   5

Reasons for Granting the Writ .....................    9

I. The Case Presents an Important Issue Respect­
ing the Federal Judicial Power and Obligation 
to Protect Civil Rights, Not Heretofore Decided 
by This Court ....................................    9

II. The Decision Below Is Wrong and Seriously Im­
pairs Federal Judicial Power to Protect Na­
tional Civil Rights ..............................................  14
A. Federal Habeas Corpus Courts Are Empow­

ered to Discharge From Mesne Restraints 
Petitioners Held to Answer Unconstitutional 
State Prosecutions ........................................   14

B. Petitioner’s Prosecution Is Unconstitutional 14

PAGE



n

C. A Federal Habeas Corpus Applicant in Peti­
tioner’s Situation Is Not Required to Ex­
haust State Judicial Remedies .....................  17
(1) Wyckoff, Brown v. Bayfield and 28

U. S. C. §2254 ...................   18
(2) Legislative History ................................ 23

(3) Judicial Development of the Exhaustion
Doctrine .................................................. 40

(4) Application of the Exhaustion Doctrine
to Civil Rights Cases ...... ........  45

(5) Application of the Exhaustion Doctrine
to Cases Involving Federal Voting 
Rights .....................................................  53

Conclusion.................................................................................  58

Appendices ................................................................................  l a

A ppendix I—

Order of the District Court...................................  la

Appendix II—

Opinion and Judgment of the Court of Appeals .... 2a 

Appendix III—

Petition for Writ of Habeas Corpus...... ............... 15a

PAGE



H I

Table of Cases

page

Anderson v. Elliott, 101 Fed. 609 (4th Cir. 1900),
dism’d 22 S. Ct. 930 (1902) ............. .......................... 55

Application of Wyckoff, 196 F. Snpp. 515 (S. D. Miss. 
1961), 6 Race Rel. L. Rep. 786 ..........8, 9,17,18, 20, 22, 44

Baggett v. Bullitt, 377 U. S. 360 (1964) ..............11, 48, 51
Baker v. Grice, 169 U. S. 284 (1898) ....... .................... 14, 43
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .... 50
Barr v. Columbia, 378 U. S. 146 (1964) ..................... 16
Bates v. Little Rock, 361 U. S. 516 (1960) .................  15
Birsch v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929) ___  55
Bouie v. Columbia, 378 IT. S. 347 (1964) .................. 17
Brotherhood of Railroad Trainmen v. Virginia ex rel.

Virginia State Bar, 377 U. S. 1 (1964) ..................... 15
Brown v. Cain, 56 F. Supp. 56 (E. D. Pa. 1944) ..........  55
Brown v. Rayfield, 320 F. 2d 96 (5th Cir. 1963), cert.

denied, 375 TJ. S. 902 (1963) ........ 8, 9,17,18,19, 21, 22, 44
Bushell’s Case, Vaughan, 6 How. St. Tr. 999, 124 Eng.

Rep. 1006 (1670) .................................... ....................  24

Castle v. Lewis, 254 Fed. 917 (8th Cir. 1918) ..........  55
Cline v. Frink Dairy Co., 274 IT. S. 445 (1927) ..........  16
Cohens v. Virginia, 6 Wheat. 264 (1821)  ..................37, 46
Cook v. Hart, 146 U. S. 183 (1892)  ......................... 14, 22
Cooper v. Aaron, 358 IT. S. 1 (1958) ................... ...... . 49
Cox v. Louisiana, 379 IT. S. 536 ........... .......................  15
Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965) ....10, 48, 50 
Cramp v. Board of Public Instruction, 368 IT. S. 278 

(1961) .............. ...................... ................................ . 50
Cunningham v. Skiriotes, 101 F. 2d 635 (5th Cir. 1939) 43



i y

Darr v. Burford, 339 U. S. 200 (1950) ........................  22
IJi[worth v. Riner, 343 F. 2d 226 (5th Cir, 1965) ....—10, 50
Dombrowski v. Pfister, 380 U. S. 479 (1965) ...... 10,12,16,

48, 50

PAGE

Douglas v. City of Jeannette, 319 U. S. 157 (1943) —11,12

Edwards v. South Carolina, 372 U. S. 229 (1963) —15,51 
England v. Louisiana State Board of Medical Exam­

iners, 375 U. S. 411 (1964) .......................................  52
Ex parte Ah Lit, 26 Fed. 512 (D. Ore. 1886) .............. 42
Ex parte Bartlett, 197 Fed. 98 (E. D. Wise. 1912) ......  43
Ex parte Bollman, 4 Cranch 75 (1807) ....... ................. 24
Ex parte Bridges, 4 Fed. Cas. 98, No. 1,862 (C. C. N. D.

Ga. 1875) .................................................................... 41
Ex parte Conway, 48 Fed. 77 (C. C. D. S. C. 1891) .... 56
Ex parte Hawk, 321 U. S. 114 (1944) ........................ 22,44
Ex parte Lange, 18 Wall. 163 (1873) ............................  24
Ex parte McCardle, 6 Wall. 318 (1867) ........................  41
Ex parte McCready, 15 Fed. Cas. 1345, No. 8,732

(C. C. E. D. Va. 1874) .......... ............................. ...... 41
Ex parte Royall, 117 IJ. S. 241 (1886) ...... 11,14, 22, 42, 43,

44, 45, 46, 49, 53
Ex parte Tatem, 23 Fed. Cas. 708, No. 13,759 (E. D.

Va. 1887)  ..... .............................................................. 41
Ex parte Tilden, 218 Fed. 920 (D. Ida. 1914) .............. 55
Ex parte United States ex rel. Anderson, 67 F. Supp.

374 (S. D. Fla. 1946) ..............................................  55
Ex parte Warner, 21 F. 2d 542 (N. D. Okla. 1927) ......  55
Ex parte Watkins, 3 Pet. 193 (1830) ............................  24
Ex parte Wood, 155 Fed. 190 (C. C. W. D. N. C. 1907) .. 56



y

Farmer v. State, 161 So. 2d 159 (Miss. 1964) ______  51
Fay v. Noia, 372 U. S. 391 (1963) .....12,13, 25, 26, 28, 40, 48
Feiner v. New York, 340 U. S. 315 (1951) .................  52
Fields v. Fairfield, 375 U. S. 248 (1963) .....................  16
Fields v. South Carolina, 375 U. S. 44 (1963) ........ ..15, 51
Flynn v. Fuellhart, 106 Fed. 911 (C. C. W. D. Pa. 1901) 55

Garner v. Louisiana, 370 U. S. 157 (1963) ...... ......... 16
Garrison v. Louisiana, 379 U. S. 64 (1964) .............. 50
Gibson v. Florida Legislative Investigating Committee,

372 U. S. 539 (1963) .................................................. 15
Griffin v. County School Board of Prince Edward 

County, 377 U. S. 218 (1964) ...................................  49

Hague v. C. I. O., 307 U. S. 496 (1939) ........................ 15, 45
Henry v. Eock Hill, 376 U. S. 776 (1964) ................ 15,51
Hunter v. Wood, 209 IT. S. 205 (1908) ..................... 14, 56

In re Alexander, 84 Fed. 633 (W. D. N. C. 1898) .....   43
In re Fair, 100 Fed. 149 (C. C. D. Neb. 1900) ............  54
In re Lee Sing, 43 Fed. 359 (C. C. N. D. Cal. 1890) .... 44
In re Lee Tong, 18 Fed. 253 (D. Ore. 1883) ...........   42
In re Loney, 134 U. S. 372 (1890) .....................14, 55, 56, 57
In re Matthews, 122 Fed. 248 (E. D. Ky. 1902) ....   55
In re Miller, 42 Fed. 307 (E. D. S. C. 1890) ...........  55
In re Neagle, 135 U. S. 1 (1890) .............. .......14, 25, 27, 53,

54, 55, 56, 57
In re Parrott, 1 Fed. 481 (C. C. D. Cal. 1880) .......   42
In re Quong Woo, 13 Fed. 229 (C. C. L>. Cal. 1882) .....  42
In re Sam Kee, 31 Fed. 680 (C. C. N. D. Cal. 1887) .... 44
In re Tie Loy, 26 Fed. 611 (C. C. D. Cal. 1886) ...    42
In re Wan Yin, 22 Fed. 701 (D. Ore. 1885) ..........    42

PAGE



VI

Johnson v. Zerbst, 304 U. S. 458 (1938) .....................  24

Kentucky v. Powers, 201 U. S. 1 (1906) .....................  11
Knight v. State, 161 So, 2d 521 (Miss. 1964)  ..........  51

Lima v. Lawler, 63 F. Supp. 446 (E. D. Va. 1945) ......  55
Lombard v. Louisiana, 373 U. S. 267 (1963) ..............  16

McNeese v. Board of Education, 373 U. S. 668 (1963)
39, 48

Marsh v. Alabama, 326 TJ. S. 501 (1946) ..................... 50
Minnesota v. Brundage, 180 U. S. 499 (1901) ______  43
Monroe v. Pape, 365 U. S. 167 (1961) .........................39, 48
Mooney v. Holohan, 294 U. S. 103 (1935) ..................... 44
Moss v. Glenn, 189 U. S. 506 (1903) ...... .....................  22

N.A.A.C.P. v. Alabama, 357 U. S. 449 (1958) .............. 15
N.A.A.C.P. v. Button, 371 U. S. 415 (1963) .......... 15,17, 50
New York v. Eno, 155 U. S. 89 (1894) ...................... . 22
New York Times Co. v. Sullivan, 376 U. S. 254 (1964) .. 50

Ohio v. Thomas, 173 U. S. 276 (1899) ........................  54

Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir.
1965) ...........................................................................  48

People v. McLeod, 25 Wend. 482 (Sup. Ct. N. Y.
1841) ........ ................................................... ............. 26,27

Peterson v. Greenville, 373 U. S. 244 (1963) .......... . 16
Prince v. Massachusetts, 321 U. S. 158 (1944) ......  50

Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), cert.
granted, 34 U. S. L. W. 3101 (10/11/65) ..............12,48

Eeed v. Madden, 87 F. 2d 846 (8th Cir. 1937) ..............  54
Robinson v. Florida, 378 U. S. 153 (1964) ................ . 16

PAGE



V ll

Saia v. New York, 334 U. S. 558 (1948) ........    50
Shelton v. Tucker, 364 U. S. 479 (1960) .....................  15
Smith v. California, 361 U. S. 147 (1959) .................  50
Staub v. Baxley, 355 U. S. 313 (1958) .......... ..............  15

Thomas v. Collins, 323 IT. S. 516 (1945) ................... 15
Thomas v. Mississippi, 380 IT. S. 524 (1965) ......... ...... 51
Thomas v. State, 160 So. 2d 657 (Miss. 1964)  ...........  51
Thompson v. Louisville, 362 U. S. 199 (1960) ..... ........ 16
Townsend v. Sain, 372 U. S. 293 (1963) ..................48,53

PAGE

United States v. Classic, 313 U. S. 299 (1941) ..........  15
United States v. Hamilton, 3 Dali. 17 (U. S. 1795) .... 24 
United States v. L. Cohen Grocery Co., 255 IT. S. 81

(1921) ..................  16,17
United States ex rel. Drury v. Lewis, 200 U. S. 1

(1906) ...... - ........................... ........................13,14, 22, 55
United States ex rel. Kennedy v. Tyler, 269 U. S. 13

(1925) ........        55
United States v. Lipsett, 156 Fed. 65 (W. D. Mich.

1907) ............................................................   55
United States v. Mississippi, 229 F. Supp. 925 (S. D.

Miss. 1964), rev’d, 380 U, S. 128 (1965) .................  5
United States v. National Dairy Products Co., 372 U. S.

29 (1963) .....................      17
United States v. Haines, 362 U. S. 17 (1960) .............. 15
United States ex rel. Silverman v. Fiscus, 42 Fed. 395

(W. D. Pa. 1890) .........................................................  43
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), 

cert, denied, 369 U. S. 850 (1962) ............................  57

Virginia v. Rives, 100 U. S. 313 (1880) 11



V1U

West Virginia v. Laing, 133 Fed. 887 (4th Cir. 1904) .... 55
Whitten v. Tomlinson, 160 U. S. 231 (1895) ..............14,22
Wildenhus’s Case, 120 U. S. 1 (1887)  .................— 14,55
Wo Lee v. Hopkins, 118 U. S. 356 (1886) .....      44
Wright v. Georgia, 373 U. S. 284 (1963) ...................   17

Yick Wo v. Hopkins, 118 U. S. 356 (1886) .....................  44

Statutes

Act of September 24, 1789, ch. 20, §14, 1 Stat. 73 ....23, 25, 37
Act of February 13, 1801, ch. 4, §11, 2 Stat. 89 ....   37

Act of March 8, 1802, ch. 8, 2 Stat. 132......................... 37
Act of February 4,1815, ch. 21, §8, 3 Stat. 195.............. 37

Act of March 3, 1815, ch. 43, §6, 3 Stat. 231.................  37
Act of March 2,1833, ch. 57, 4 Stat. 632 ................. 23, 25, 37
Act of August 29, 1842, eh. 257, 5 Stat. 539 ................. 23, 26
Act of March 3,1863, ch. 81, §5, 12 Stat. 755 .................  38
Act of March 7, 1864, ch. 20, §9, 13 Stat. 14 .................. 38
Act of June 30, 1864, ch. 173, §50, 13 Stat. 223 ......,.......  38

Act of April 9, 1866, ch. 31, §3, 14 Stat. 27 .......30, 38, 39, 47
Act of May 11, 1866, ch. 80, 14 Stat. 46 ................. 33, 34, 38
Act of July 13,1866, ch. 184,14 Stat. 98........................  38
Act of July 16, 1866, ch. 200, 14 Stat. 173..................... 29

Act of February 5, 1867, ch. 28, 14 Stat. 385 ....23, 27, 30, 33 
Act of March 27, 1868, ch. 34, §2, 15 Stat. 4 4 .............. 41

PAGE



PAGE

Act of May 31, 1870, ch. 114, §§8, 18, 16 Stat. 140, 142, 
144 ....................................................................... ........

Act of February 28, 1871, ch. 99, §16, 16 Stat. 438 ....38,
Act of April 20, 1871, ch. 22, §1, 17 Stat. 13 ..............
Act of March 1, 1875, ch. 114, §3, 18 Stat, 335 ..........
Act of March 3, 1875, ch. 137, 18 Stat. 470 ................. 37,

28 IT. S. C. §1343 (1958) .......................... .......... 11, 38,
28 U. S. C. §1443 (1958) .................................... 11, 30,
28 U. S. C. §2241 (1958) .......................................... 23,

28 IT. S. C. §2241(c)(2) (1958) .................................
28 IT. S. C. §2241(c) (3) (1958) ................. 9,14,27,40,

28 IT. S. C. §2251 (1958) ....... .... ............................... .
28 IT. S. C. §2253 (1958) ............................ ...............
28 U. S. C. §2254 (1958) ............. ........................19, 20,
42 IT. S. C. §1983 (1958)    .............................. 5,16,
42 U. S. C. §1985 (1958) ............................................ 5,
42 IT. S. C. A. §1971 (1964) ............................ 5,16, 56,
Miss. Const, art. 8, §§201, 205, 207 .................. .............
Miss. Const, art. 10, §225 ...... .......... .......... ..................
Miss. Const, art. 12, §§241-A, 244 .................................
Miss. Code Ann. §2666(c) ................................... 4,14,16,
Miss. Code Ann. §§2056(7), 2339, 4065.3 .....................
Miss. Laws, 1st Extra. Sess. 1962, chs. 4, 9, 16, 20

39

39
38
39
39

45
47
54
54
54

28
21

22

38
16
57
16
16

16
17

16
16



X

Other A uthorities

page

Amsterdam, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Eights: Federal Bemoval and
Habeas Corpus Jurisdiction to Abort State Court
Trial, 113 U. Pa. L. Bev. 793 (1965) .....................10, 21

IY Bacon’s Abridgment (Philadelphia 1844) .............. 24

3 Blackstone, Commentaries (6th ed., Dublin, 1775) ....24, 25
Brennan, Federal Habeas Corpus and State Prisoners:

An Exercise in Federalism, 7 Utah L. Bev. 423 
(1961) ....................................................................... 25,40

Chafee, How Human Bights Got Into the Constitution 
(1952) ......       25

3 Comyns, Digest of the Laws of England (1785) ___  23
Cong. Debates, vol. 9, Pt. 1 .......................................  26

Cong. Globe, 27th Cong., 2d Sess.t ...................................  27

Cong. Globe, 39th Cong., 1st Sess.......................29, 34, 38, 39
Dunning, Essays on the Civil War and Beconstruc- 

tion (1898) ..................................................................  38

Frankfurter & Landis, The Business of the Supreme 
Court (1928) .........................................................   39

2 Hale, Pleas of the Crown (1st American ed. Phila­
delphia, 1847) ..........................................................  23

Hart, Foreword, The Supreme Court, 1958 Term, 73 
Harv. L. Bev. 84 (1959) ............................................  25

Hart & Wechsler, The Federal Courts and the Federal 
System (1954) ..........................................................  37



XL

PAGE

9 Holdsworth, A History of English Law (1926) ....24,25
H. E. 3214, 80th Cong., 2d Sess. (1948) .......... ..........  21
1 Morison & Commager, Growth of the American Re­

public (4th ed. 1950) ................................................26, 37
Note, Federal Habeas Corpus for State Prisoners:

The Isolation Principle, 39 N. Y. U. L. Eev. 78 
(1964) .........................................................................  25

Note, The Freedom Writ—The Expanding Use of Fed­
eral Habeas Corpus, 61 Harv. L. Rev. 657 (1948) .... 25

Note, 109 U. Pa. L. Rev. 67 (1960) ......................... . 16
Oaks, Habeas Corpus in the States, 32 U. Chi. L. Rev.

243 (1965) .................................................................... 24
Reitz, Federal Habeas Corpus: Impact of an Abortive 

State Proceeding, 74 Harv. L. Rev. 1315 (1961) ......  25
Reitz, Federal Habeas Corpus: Postconviction Remedy 

for State Prisoners, 108 U. Pa. L. Rev. 461 (1960) .... 25
Report of the Seventh Annual Meeting of the American 

Bar Association (1884) ................................. ........... .  42

Sen. Rep. No. 1559, 80th Cong. 2d Sess. (1948) ..........  21
Thompson, Abuses of the Writ of Habeas Corpus, 18 

Am. L. Rev. 1 (1884) ............................................... . 24
1 Warren, The Supreme Court in United States His­

tory (Rev. ed. 1932) .................................................... 37
Wechsler, Federal Jurisdiction and the Revision of 

the Judicial Code, 13 Law & Contemp. Prob. 216 
(1948) .......    48



I n  t h e

( t o r t  o f %  Bitmtrfr S ta irs
October Term, 1965 

No................

J an H illegas,
Petitioner,

J oe Sams, J r., County Attorney for Lowndes County, Mis­
sissippi, and P enn T aylor, Sheriff and Custodian of 
the County Jail of Lowndes County, Mississippi,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Fifth Circuit entered August 16, 1965, rehearing of 
which was denied September 27, 1965.

Citations to Opinions Below

The order of the United States District Court for the 
Northern District of Mississippi denying petitioner’s ap­
plication for a writ of habeas corpus is unreported and is 
set forth in Appendix I hereto, p. la  infra. The opinion 
of the majority of the Court of Appeals, affirming the order



2

of the district court, and the special concurring opinion of 
Circuit Judge Brown are reported at 349 F. 2d 859, and are 
set forth in Appendix II hereto, pp. 2a-lla infra. No 
opinion was written on denial of petition for rehearing.

Jurisdiction

The judgment of the Court of Appeals was entered Au­
gust 16, 1965, p. 2a infra. Timely petition for rehearing 
was denied September 27, 1965, p. 14a infra. The juris­
diction of this Court is invoked under 28 U. S. C. § 1254(1) 
(1958).

Question Presented

Petitioner, a civil rights worker, was arrested in the 
Lowndes County, Mississippi courthouse, where she was 
assisting Negroes to register to vote. She was thereafter 
charged with vagrancy. Prior to her state trial, she peti­
tioned the United States District Court for a writ of habeas 
corpus, alleging that the Mississippi vagrancy statute was 
void on its face for vagueness; that the conduct for which 
she was prosecuted was conduct protected by the First 
Amendment, the Privileges and Immunities, Due Process 
and Equal Protection Clauses of the Fourteenth Amend­
ment and the Fifteenth Amendment; that her prosecution 
was utterly groundless in fact and was a device designed 
to harass and punish her and thus to intimidate prospec­
tive Negro voter registration applicants, denying them, on 
racial grounds, the franchise in federal, state and local elec­
tions. The district court denied the petition without hearing



3

On this record, did the Court of Appeals for the Fifth 
Circuit err in sustaining the ruling of the district court 
that petitioner was required to exhaust her Mississippi 
remedies ?

Constitutional and Statutory Provisions Involved

1. The case involves 28 U. S. C. §§2241, 2251 (1958), 
in pertinent part as follows:

§ 2241. Power to grant writ.

(a) Writs of habeas corpus may be granted by the 
Supreme Court, any justice thereof, the district courts 
and any circuit judge within their respective jurisdic­
tions.

(c) The writ of habeas corpus shall not extend to 
a prisoner unless—

#  #  #  *  #

(3) He is in custody in violation of the Constitu­
tion or laws . . .  of the United States; . . .

§ 2251. Stay of State court proceedings.
A justice or judge of the United States before whom 

a habeas corpus proceeding is pending, may, before 
final judgment or after final judgment of discharge, or 
pending appeal, stay any proceeding against the per­
son detained in any State court or by or under the 
authority of any State for any matter involved in the 
habeas corpus proceeding.

on the ground of failure to exhaust Mississippi state judi­
cial remedies.



4

After the granting of such a stay, any such proceed­
ing in any State court or by or under the authority of 
any State shall be void. If no stay is granted, any 
such proceeding shall be as valid as if no habeas corpus 
proceedings or appeal were pending.

2. The case involves Miss. Code Aw .. 1942, § 2666(c) 
(Recomp. Vol. 1956):

§ 2666. Vagrants, who are.
The following persons are and shall be punished as 

vagrants, viz.:
-at. jx,w  •7T w  w

(c) All persons able to work, having no property 
to support them, and who have no visible or known 
means of a fair, honest and reputable livelihood. The 
term “visible and known means of a fair, honest and 
reputable livelihood,” as used in this section, shall be 
construed to mean reasonably continuous employment 
at some lawful occupation for reasonable compensation, 
or a fixed and regular income from property or other 
investment, which income is sufficient for the support 
and maintenance of such person.

3. The case also involves the First, Fourteenth and 
Fifteenth Amendments to the Constitution of the United 
States.



5

Statement

This petition brings for review a judgment below deny­
ing federal habeas corpus. Petitioner seeks release from 
the custody of respondents, the County Attorney and 
Sheriff-Jailer of Lowndes County, Mississippi, who hold 
petitioner pursuant to Mississippi state vagrancy charges 
under Miss. Code A nn . § 2666(c) (Recomp. Vol. 1956), 
set forth at p. 4 supra. The district court having denied 
the petition without return or hearing, the following alle­
gations must be taken as true for purposes of review.1

The Council of Federated Organizations (COFO) is an 
association of civil rights and local citizenship groups 
working in Mississippi to achieve, by peaceful and lawful 
means, the equal civil rights of Negroes and all persons and, 
particularly, to educate, assist and encourage Negroes to 
register and vote in local, state and national elections free 
of racial discrimination (Petition, Appendix II infra, 16a). 
Now and during many years past, the county registrar of 
Lowndes County, Mississippi, has denied and is denying 
Negroes the right to register to vote by reason of race, in 
violation of the Fourteenth and Fifteenth Amendments and 
42 U. S. C. A. § 1971 (1964); 42 U. S. C. §§ 1983, 1985 (1958). 
In 1961, the voting age population of Lowndes County was 
16,460 white and 8362 Negro; there were 5869 registered 
white voters and 63 registered Negro voters; these figures 
have not substantially changed (21a).2 One of COFO’s pur-

1 The petition is set out in its entirety in Appendix III hereto, 
pp. 15a-26a infra.

2 The Government has brought suit against the registrar of 
Lowndes County and others to enjoin these discriminatory prac­
tices. United States v. Mississippi, 229 F, Supp. 925 (S. D. Miss. 
1964), rev’d, 380 U. S. 128 (1965).



6

Petitioner is a 21-year-old white girl, a New York domi­
ciliary and a college graduate, employed full-time by COFO 
as a voter registration worker (16a). Her duties for COFO 
include: interviewing Negro citizens of Mississippi for the 
purpose of educating, encouraging and assisting them to 
register to vote; accompanying such Negroes to the place of 
voting registration for the purpose of supporting their ef­
forts to register free of racial discrimination; observing 
conduct by state officials or other persons calculated to 
racially disfranchise Negroes in violation of the Fourteenth 
and Fifteenth Amendments; and participating in the ad­
ministrative activities of COFO’s voter registration pro­
gram (16a-17a). In return for her services, COFO supplies 
her decent lodgings (in the home of a well-known, respected 
retired Negro minister in Columbus, Mississippi), meals, 
support, maintenance, and reasonable livelihood, including 
all things necessary to sustain her as a reputable member 
of the community (17a). In addition, petitioner receives 
from her mother in New York sufficient money to meet all 
her needs (18a).

December 28, 1964, in the course of her COFO employ­
ment, petitioner, with two COFO co-workers, was present 
in the county courthouse for Lowndes County, assisting 
Negro voter registration applicants by: (1) directing them 
to the voter registration office; (2) supporting them, by 
her presence as an observer, against intimidation and 
harassment; and (3) interviewing them after their attempts 
to register, for the purpose of ascertaining whether the 
registrar was obstructing their attempts to register (18a). 
While conducting themselves in these activities in a peace­

poses is to educate, assist and encourage Negro citizens and
residents of Lowndes County to register to vote (16a).



7

ful and orderly manner, the three workers were arrested 
by a deputy sheriff who had been informed that they were 
COFO workers (18a-19a). Charged with vagrancy, peti­
tioner offered to show the arresting officer money and a 
“vagrancy form” prepared by COFO against such a con­
tingency, which stated that petitioner was a COFO em­
ployee. The officer refused to look at the form and held 
them for vagrancy (19a-20a). The following day an au­
thorized COFO agent went to the County Attorney and 
informed him: that petitioner was a New York domiciliary, 
a college graduate, a COFO employee; that by arrange­
ment of COFO she lived without expense to herself in 
the home of a well-known and respected retired Negro 
minister in the same town where she was arrested and 
held; that COFO supplied petitioner all her meals and 
necessaries. The COFO agent also showed the County 
Attorney a telegram dated that morning from petitioner’s 
mother in New York, stating that the mother had assumed 
and would continue to assume full responsibility for pro­
viding her daughter all her decent needs as a respectable 
member of the community in Mississippi or elsewhere. Re­
spondent County Attorney nevertheless persisted in holding 
and prosecuting petitioner on the entirely unfounded charge 
of vagrancy (20a-21a).

Consequently, on January 5, 1965, in advance of her state 
trial, petitioner filed by counsel a petition for writ of 
habeas corpus, challenging the Mississippi vagrancy stat­
ute on its face and as applied to her, as violative of her 
federal rights of free speech, association and assembly, her 
federal privilege to assist Negroes to register to vote in 
federal elections, and her federal guarantee against harass­
ment designed and effective to deter Negro voting regis­
tration. She alleged that the prosecution was in further­
ance of an official state-wide policy of discrimination against



8

Negroes and disfranchisement of Negroes by reason of 
race (22a-24a). She further asserted that she had been ar­
rested without probable cause and that she was being de­
tained in a jail segregated by force of Mississippi statute 
(23a). The United States District Court for the Northern 
District of Mississippi denied the petition on its face on the 
ground that petitioner had not exhausted her Mississippi 
state remedies as required by Application of Wyckoff, 196 F. 
Supp. 515 (S. D. Miss. 1961), 6 R ace Relations L. Rpte. 
786, petition for immediate hearing and for leave to pro­
ceed on original papers denied, id. at 793 (5th Cir. 1961), 
petition for habeas corpus denied, id. at 794 (Circuit Jus­
tice Black, with whom Mr. Justice Clark concurs, 1961); 
and Brown v. Bayfield, 320 F. 2d 96 (5th Cir. 1963), cert, 
denied, 375 U. S. 902 (1963) (la). In so holding, the court 
rejected petitioner’s contention—the principal issue in this 
case—that exhaustion of state remedies is not required 
in petitioner’s circumstances.

January 5, 1965, the order denying the petition was 
entered; District Judge Clayton granted petitioner’s appli­
cation for a certificate of probable cause under 28 U. S. C. 
§2253 (1958), and petitioner’s notice of appeal was filed. 
January 22,1965 the Court of Appeals for the Fifth Circuit 
granted petitioner’s motion for leave to docket the appeal 
and proceed on verified copies of the papers comprising the 
record below, and set the case specially for expedited hear­
ing on typwritten briefs. Such briefs were filed and the case 
was argued February 2,1965.3 August 16,1965, the order of 
the District Court was affirmed by a panel of the Circuit

3 For the information of the Court, District Judge Clayton made 
informal arrangements with the appellees for petitioner Hillegas’ 
release from physical confinement, and for the stay of her state 
trial, pending the appellate proceedings in this ease. Nothing 
of this appears in the record.



9

Court. The majority opinion, by Judge Jones joined by 
District Judge Sheehy, held that the decisions in Wyckoff 
and Brown v. Bayfield, supra, controlled this case (Opinion, 
Appendix II infra, 2a). Judge Brown, concurring under 
the compulsion of Brown v. Bayfield, pointed out that 
Wyckoff was inapposite both to Brown v. Bayfield and to 
the present case (6a-7a), noted that Brown v. Bayfield, 
“the victim of inadequate presentation” (4a), incorrectly 
followed Wyckoff, and, upon careful examination of statu­
tory and judicial history first presented to a federal ap­
pellate court in petitioner’s brief in the present ease (6a) 
and upon analysis of decisions of this Court subsequent 
to Brown v. B ay field (9a-lla), concluded that the latter 
decision was wrong and should be overruled (4a, 11a).

Petitioner thereupon applied for rehearing en banc. Sep­
tember 27, 1965, pursuant to Fifth Circuit practice, the 
application was denied by the panel which had heard the 
appeal.

Reasons for Granting the Writ

I.

The Case Presents an Important Issue Respecting the 
Federal Judicial Power and Obligation to Protect Civil 
Rights, Not Heretofore Decided by This Court.

This case raises a question of cardinal importance in­
volving the relation of state and federal courts under the 
Supremacy Clause of the Constitution and the national 
habeas corpus jurisdiction created by Congress in 1867 and 
now codified in 28 U. S. C. § 2241(c) (3) (1958). That ques­
tion is whether a federal district court empowered to dis­
charge state prisoners “in custody in violation of the Con­
stitution or laws . . .  of the United States,” ibid., can and



1 0

should decline to entertain, pending state court trials and 
appeals, a factually detailed application for habeas corpus 
by a prisoner who alleges that she is confined under mesne 
process of a state criminal court in a prosecution which is 
groundless because aimed at punishing conduct protected 
by the First and Fourteenth Amendments, a prosecution 
whose design and effect are to harass and intimidate the 
prisoner and others similarly situated so as to repress their 
exercise of federal freedoms of expression to encourage 
Negro voter registration in a state which has unconstitu­
tionally disfranchised the Negro.

A more important question can hardly be imagined. Upon 
its correct disposition depends in large measure the power 
and obligation of the federal district courts throughout the 
country to protect individuals from state prosecutions which 
are used as instruments to repress them and deprive them 
of their federally guaranteed freedoms. Surely, as this 
Court has recently recognized, “The assumption that de­
fense of a criminal prosecution will generally assure ample 
vindication of constitutional rights is unfounded in such 
cases,” Dombrowski v. Pfister, 380 U. S. 479, 486 (1965); 
prosecution is itself a potent weapon for the destruction of 
constitutional liberties, cf. Dilworth v. Riner, 343 F. 2d 226, 
231-232 (5th Cir. 1965); thus, reversal of a state criminal 
conviction by the Supreme Court of the United States or a 
post-conviction federal habeas corpus court comes after the 
damage has been done. See Cox v. Louisiana, 348 F. 2d 
750 (5th Cir. 1965). Amsterdam, Criminal Prosecutions 
Affecting Federally Guaranteed Civil Rights: Federal 
Removal and Habeas Corpus Jurisdiction to Abort State 
Court Trial, 113 U. Pa. L. Eev. 793, 794-805, 828-842 (1965). 
Due implementation of the Supremacy Clause requires



1 1

federal judicial intervention to terminate such state prose­
cutions in their inception.

It is petitioner-appellant’s contention that the Congress 
of the United States recognized this truth following the 
Civil War, and, between 1866 and 1875, gave the federal 
courts of first instance ample jurisdiction to do the job. 
The three essential jurisdictional grants were the habeas 
corpus statute of 1867 involved in the present case; the 
civil rights removal statute of 1866, extended in 1875, now 
28 U. S. C. § 1443 (1958), see Rachel v. Georgia, 342 F. 2d 
336 (5th Cir. 1965) cert, granted October 11, 1965; and the 
grant of civil rights equitable jurisdiction in 1871, now 
28 U. S. C. § 1343 (1958).

Post-Reconstruction judicial decisions treated the three 
jurisdictional grants with scant hospitality. Heedless of the 
congressional design to employ federal judicial power for 
the effective vindication of civil rights, this Court in Doug­
las v. City of Jeannette, 319 U. S. 157 (1943), disallowed 
federal injunction of state prosecutions which infringed 
First Amendment freedoms. The Court had already given 
a narrow reading to the civil rights removal statute in a 
line of decisions from Virginia v. Rives, 100 U. 8. 313 
(1880), to Kentucky v. Powers, 201 U. S. 1 (1906); and, 
in the same spirit, had shackled the imperative process 
of the federal writ of habeas corpus by the doctrine of 
exhaustion of state remedies, invented out of whole cloth in 
Ex parte Roy all, 117 U. S. 241 (1886). But these constrain­
ing judicial inventions could withstand neither the scrutiny 
of historical study directed to the purposes of the Recon­
struction legislation nor the demands of a federalism char­
acterized by national commitment to the protection of indi­
vidual liberties. In Baggett v. Bullitt, 377 U. S. 360 (1964),



1 2

and Dombrowski v. Pfister, 380 U. S. 479 (1965), the Court 
substantially repudiated the bases of Douglas v. City of 
Jeannette; in Georgia v. Rachel, No. 147, it has granted 
certiorari to reexamine the scope of the civil rights re­
moval jurisdiction; and in Fay v. Noia, 372 U. S. 391, 416 
(1963), it explicitly recognized the inconsistency of the 
exhaustion doctrine, in at least some of its latter-day exten­
sions, with the congressional intendment of the habeas 
corpus jurisdiction.

The present proceeding was brought to test the applica­
tion of the exhaustion doctrine to civil rights cases in light 
of the historical insight of Fay v. Noia. No better case 
for the purpose could be found. Under the allegations of 
the petition, which the courts below accepted as true, peti­
tioner is being prosecuted in a Mississippi state court for 
conduct plainly protected by the First Amendment, the 
design and effect of the prosecution being to harass and 
intimidate her and others similarly situated so as to coerce 
them to forego exercise of vital federal freedoms. Never­
theless, the District Court and the Court of Appeals (one 
judge disagreeing) denied relief on the sole ground of 
failure to exhaust state remedies. An informal arrangement 
by the District Judge stayed the state prosecution pending 
appellate proceedings and thus guaranteed the appeal 
against mootness4—a constant danger to federal appellate 
review in this sort of pretrial habeas corpus proceeding. 
(Needless to say, such arrangements will not likely be 
made in the future should the Court decline to review the 
present case.) Petitioner has presented to the Court of 
Appeals, and will present to this Court, historical materials 
not previously available and which are indispensable to a

See note 3 supra.



1 3

just appreciation of the congressionally intended scope and 
function of federal habeas corpus. Moreover, the time is 
now especially propitious for disposition of the exhaustion 
question by this Court. The Court now has before it on 
certiorari questions concerning the scope of the civil rights 
removal jurisdiction; the removal legislation of 1866 and 
the habeas corpus legislation of 1867 have a common history 
and are intimately related parts of a federal judicial re­
medial scheme. Full canvass of the issues concerning an­
ticipatory federal jurisdiction in state criminal prosecutions 
affecting civil rights, and an appropriate disposition of 
those issues in view of the full range of alternative forms 
of federal process, can be assured only if certiorari is 
granted here and this case heard in conjunction with the 
civil rights removal cases.

This Court has not discussed the application of the 
doctrine of exhaustion of state remedies to a case in which 
petition for federal habeas corpus was made prior to state 
trial for almost sixty years, see United States ex rel. Drury 
v. Lewis, 200 U. S. 1 (1906), and has never discussed the 
application of the doctrine to a harassment prosecution 
threatening First Amendment freedoms and the equal civil 
rights of Negroes—prime concern of the Reconstruction 
Congress which enacted the habeas corpus legislation. The 
questions are pressing ones today; the implication of Fay 
v. Noia for those questions is unclear; these considerations, 
petitioner submits, make the present case an appropriate 
one for the exercise of the Court’s certiorari jurisdiction.



1 4

II.
The Decision Below Is Wrong and Seriously Impairs 

Federal Judicial Power to Protect National Civil Rights.

A.

Federal Habeas Corpus Courts Are Empowered to 
Discharge From Mesne Restraints Petitioners Held to 
Answer Unconstitutional State Prosecutions.

The national habeas corpus statute, 28 U. S. C. § 2241 
(c)(3) (1958), authorizes federal courts to discharge on 
habeas corpus state prisoners “in custody in violation of 
the Constitution or laws . . .  of the United States.” It is 
well settled that the section empowers release before trial 
of persons detained on state criminal charges which the 
State cannot constitutionally apply to their conduct. Wild- 
enhus’s Case, 120 U. S. 1 (1887); In re Loney, 134 U. S. 372 
(1890); In re Neagle, 135 U. S. 1 (1890); Hunter v. Wood, 
209 U. S. 205 (1908); Ex parte Boy all, 117 U. S. 241, 245- 
250 (1886) (dictum); Cook v. Hart, 146 U. S. 183, 194-195 
(1892) (dictum); Whitten v. Tomlinson, 160 U. S. 231, 241- 
242 (1895) (dictum); Baker v. Grice, 169 U. S. 284, 290 
(1898) (dictum); United States ex rel. Drury v. Lewis, 200 
U. S. 1, 6-8 (1906) (dictum).

B.
Petitioner’s Prosecution Is Unconstitutional.

The state statute under which this petitioner is charged 
cannot constitutionally be applied to petitioner’s conduct 
for several reasons:

(1) If Miss. Code A n n . § 2666(c) (Recomp. Vol. 1956), 
set out at p. 4 supra, makes it criminal to work in a



1 5

courthouse for COFO as a voter registration worker, receiv­
ing from COFO adequate lodging and food and from peti­
tioner’s parents all additional money required to meet peti­
tioner’s needs (with assurance of further funds both from 
COFO and from petitioner’s mother should they be needed), 
then the statute abridges petitioner’s freedom of speech (see 
Thomas v. Collins, 323 U. S. 516 (1945); Staub v. Baxley, 
355 U. S. 313 (1958); N. A. A. C. P. v. Button, 371 U. S. 415 
(1963); Brotherhood of Railroad Trainmen v. Virginia ex 
rel. Virginia State Bar, 377 U. S. 1 (1964), holding that or­
ganizational activity like petitioner’s is protected speech), 
freedom to associate with COFO (see, e.g., N. A. A. C. P. 
v. Alabama, 357 U. S. 449 (1958); Bates v. Little RocJc, 361 
U. S. 516 (1960); Shelton v. Tucker, 364 U. S. 479 (1960); 
Gibson v. Florida Legislative Investigating Committee, 372 
U. S. 539 (1963), striking down lesser impediments than 
absolute prohibition with respect to associations like 
COFO), and freedom to assemble in the courthouse with 
Negro voting registration applicants and other COFO 
workers for the purpose of giving the applicants support 
(this is a fortiori from Edivards v. South Carolina, 372 
U. S. 229 (1963); Fields v. South Carolina, 375 TJ. S. 44 
(1963); Henry v. Rock Hill, 376 IT. S. 776 (1964); Cox v. 
Louisiana, 379 U. S. 536 (1965) ). It also abridges peti­
tioner’s Fourteenth Amendment privilege to assist, en­
courage and educate Negro citizens to register to vote in 
federal elections (see Hague v. C. I. 0. 307 U. S. 496 (1939) 
(opinion of Mr. Justice Eoberts)) and the Fourteenth 
Amendment privilege of those Negroes to register to vote 
in federal elections (cf. United States v. Classic, 313 U. S. 
299 (1941)), as well as their Fifteenth Amendment free­
dom to register to vote in all elections free of racial dis­
crimination (cf. United States v. Raines, 362 U. S. 17 
(I960)). If the statute does not apply to the state of facts



1 6

described in the first paragraph, then there is no factual 
basis whatever for the charge against petitioner, and her 
punishment under the statute deprives her of due process 
of law for that reason. Thompson v. Louisville, 362 U. S. 
199 (1960); Garner v. Louisiana, 370 U. S. 157 (1961); 
Fields v. Fairfield, 375 U. S. 248 (1963); Barr v. Columbia, 
378 U. S. 146 (1964).

(2) Application of the statute to petitioner is also pre­
cluded because the design and effect of this prosecution is 
to enforce a policy of racial discrimination by public of­
ficials of the State of Mississippi in violation of the Four­
teenth and Fifteenth Amendments and 42 U. S. C. A. § 1971 
(1964); 42 U. S. C. §§ 1983, 1985 (1958). See Dombrow- 
ski v. Pfister, 380 U. S. 479 (1965). It is immaterial 
that the policy is not expressed in Miss. Code Auk. § 2666 
(c) (Recomp. Vol. 1956) itself. See Peterson v. Greenville, 
373 U. S. 244 (1963); Lombard v. Louisiana, 373 U. S. 267 
(1963); Robinson v. Florida, 378 U. S. 153 (1964). The 
policy pervades Mississippi’s statute books as well as its 
public life. See, e.g., Miss. Const., art. 8, §§ 201, 205, 207; 
art. 10, §225; art. 12, §§ 241-A, 244; Miss. Code An n . 
§§ 2056(7), 2339, 4065.3 (Recomp. Vols. 1956); Miss. Laws, 
1st Extra. Sess. 1962, chs. 4, 9, 16, 20.

(3) Finally, Miss. Code An n . § 2666(c) (Recomp. Vol. 
1956) is on its face void for vagueness in that it makes 
criminality of a salaried person turn on whether the salary 
amounts to “reasonable compensation.” See cases cited in 
Note, 109 U. Pa. L. R ev. 67, 92-93 (1960), particularly 
United States v. L. Cohen Grocery Co., 255 U. S. 81 (1921), 
and Cline v. Frink Dairy Co., 274 U. S. 445 (1927). Such 
indefiniteness in a criminal statute is unallowable under



1 7

the Fourteenth Amendment, at least where greater defi­
niteness is practicable (as it obviously is here: compare 
the provision of § 2666(c) applicable to persons having an 
income from property or investment, which requires that 
the income be “sufficient for . . . support and maintenance”). 
The limited inroad into Cohen made by United States v. 
National Dairy Prods. Co., 372 U. S. 29 (1963), expressly 
distinguishing Cohen, 372 U. S. at 36, does not save the 
statute, since it operates in the First Amendment area, 
see, e.g., N. A. A. C. P. v. Button, 371 IJ. S. 415 (1963); 
Wright v. Georgia, 373 U. S. 284 (1963); Bouie v. Columbia, 
378 U. S. 347 (1964).

C.
A Federal Habeas Corpus Applicant in Petitioner’s 

Situation Is Not Required to Exhaust State Judicial 
Remedies.

Since petitioner is thus in custody in violation of the Con­
stitution, the only obstacle to her release on habeas corpus 
in advance of state trial is the doctrine of exhaustion of 
state remedies. Petitioner has not, and contends she need 
not, exhaust Mississippi state remedies on the facts of this 
case; the District Court and the Fifth Circuit held that 
Application of Wyckoff and Brown v. Ray field5 6 obliged her 
to do so. Plainly, the evolution of the exhaustion doctrine

5 Application of Wyckoff, 196 F. Supp. 515 (S. D. Miss. 1961),
6 Race Relations L. Rptr. 786, petition for immediate hearing 
and for leave to proceed on original papers denied, id. at 793 (5th 
Cir. 1961), petition for habeas corpus denied, id. at 794 (Circuit 
Justice Black, with whom Mr. Justice Clark concurs); Brown v. 
Rayfield, 320 F. 2d 96 (5th Cir. 1963), cert, denied, 375 U. S. 902 
(1963).



18

by the Fifth Circuit, from Wychoff to Brown v. Bayfield 
to the present case,6 carries the doctrine far beyond any 
of this Court’s decisions, and abuts at a result which en­
tirely perverts the habeas corpus legislation enacted by 
Congress.

(1) Wychoff, Brown v. Bayfield and 28 U. S. C. § 2254.
In Wychoff the petitioner, a freedom rider, was convicted 

by an Ex Officio Justice of the Peace of Hinds County, Mis­
sissippi, of breach of the peace (congregating with others 
with intent to provoke a breach of the peace and refusing 
to move on at the lawful order of a peace officer), arising 
out of her attempt, with other freedom riders, to integrate 
the bus terminal waiting room in Jackson. She was sen­
tenced to $200 fine and two months imprisonment, the im­
prisonment sentence suspended. Under Mississippi law, 
her conviction could be appealed for trial de novo before a 
jury in the County Court, and from conviction by the 
County Court an appeal lay to the Circuit Court, thence 
to the Supreme Court of Mississippi. Mississippi statutes 
allowed the appeals without cost or bond on proper filing of 
a pauper’s oath. Petitioner, who was represented by re­
tained counsel at the justice’s trial, did not appeal. Within 
the period for appeal she filed a federal habeas corpus peti­
tion, asserting that the conduct for which she had been 
convicted was protected, inter alia, by the First and Four­
teenth Amendments, that the prosecution was brought to 
enforce racial segregation in violation of the Equal Protec- 6

6 The present ease involves an extension of the exhaustion re­
quirement beyond that imposed in Wychoff and Brown v. Bayfield, 
for the reasons set out at pp. 53-57 infra.



1 9

tion Clause of the Fourteenth Amendment, and that she had 
been denied a federally guaranteed right of jury trial in 
the justice court. She further alleged that she was unable to 
bear the cost of taking state appeals. The respondent’s 
return denied that the purpose of the prosecution was to 
enforce racial segregation, alleged that the trial and con­
viction were fair and regular, and asserted that state rem­
edies were not exhausted as required by 28 U. S. C. § 2254 
(1958). After hearing, the district court denied the petition 
on the ground of failure to exhaust state remedies, holding 
that the record in the justice court showed that petitioner 
had waived jury trial, pointing out that petitioner still had 
an available appeal for trial de novo in the County Court, 
and noting that Mississippi provided a pauper’s procedure 
for taking the appeal and that petitioner was represented by 
able counsel. Because the respondent’s return had denied 
that the prosecution was designed to enforce unconstitu­
tional segregation and petitioner had offered no evidence in 
support of her allegations to this effect, the district court 
took petitioner’s claims in this respect as unproved. Peti­
tioner noted an appeal and asked the Fifth Circuit for 
leave to proceed on the original papers and for an imme­
diate hearing. The court denied both motions, agreeing 
with the district court that petitioner had failed to exhaust 
state remedies under 28 U. 8. C. § 2254.

In Brown v. Bayfield, the two habeas petitioners were 
arrested while walking in tandem, in an orderly fashion, 
with four other individuals, on a street in Jackson, Missis­
sippi, carrying an American flag and a placard protesting 
racial discrimination. Charged with violation of a Jackson 
ordinance prohibiting parading without a license, they were 
entitled to trial in a justice court and thereafter to appeals



2 0

as in Wyckoff. Apparently prior to their justice trial,7 
they petitioned for federal habeas corpus, asserting that 
the conduct for which they were charged could not con­
sistently with the First and Fourteenth Amendments be 
punished by the State. Petitioners undertook to state a case 
of “circumstances rendering [state remedies] . . . ineffec­
tive to protect [their] . . . rights” within 28 U. S. C. § 2254 
by allegations (a) that all Mississippi public officials were 
committed to a policy of racial discrimination, as demon­
strated by Mississippi’s massive resistance legislation; (b) 
that judges of the various state courts (all elected officials) 
gave tacit if not open support to the discriminatory policy 
in their election campaigns, and that the policy was reflected 
in their judicial decisions and opinions; and (c) that, by 
reason of the congestion of civil rights cases in the Missis­
sippi courts, and delays compelled by Mississippi trial and 
appellate procedures, the June 1961 freedom rider cases 
had not yet been disposed of by the Mississippi Supreme 
Court in the summer of 1963, and a like or greater delay 
was in prospect for the petitioners. The return denied that 
the Mississippi courts would not fairly protect petitioners’ 
federal rights, and asserted that § 2254 precluded enter­
taining the petitions. The district court denied relief on 
this ground; pending appeal the petitioners posted bond 
and were released from ja il; the Fifth Circuit, relying on the 
Wychoff decision, dismissed the appeals for insubstantiality 
on the merits.

7 The Fifth Circuit opinion in Brown v. Bayfield does not make 
clear whether the federal habeas corpus application in that case 
was filed prior to or after the justice tria l; language in the opinion 
suggests the latter. However, Judge Brown’s concurring opinion 
in the present case, based upon examination of the Brown v. 
Bayfield record, indicates that Brown was a pretrial habeas case.



2 1

Any evaluation of Brown v. Bayfield must begin with the 
observation that the court there quite erroneously supposed 
the case was governed by 28 U. S. C. § 2254. That statute 
has no application whatever to federal habeas corpus pe­
titions filed in advance of a state court trial. The section 
applies only to “a person in custody pursuant to the judg­
ment of a State court,” and the legislative history makes 
clear what in any event would be apparent (e.g., by com­
parison of this language with that of 28 U. S. C. § 2253 
(1958)): that the phrase “judgment of a State court” was 
chosen to cover post-conviction habeas cases and to exclude 
cases in which federal habeas corpus was sought prior to 
state trial. The original section in the House bill which 
became the 1948 Judicial Code required exhaustion of avail­
able state remedies by a habeas petitioner who was “in 
custody pursuant to the judgment of a State court or au­
thority of a State officer.” See H. E. 3214, 80th Cong., 
§ 2254. The Senate Committee on the Judiciary rewrote the 
section to make several changes, among them omission of 
the phrase “or authority of a State officer.” The committee 
report explains the purpose of the change to “ . . . eliminate 
from the prohibition of the section applications on behalf 
of prisoners in custody under authority of a State officer 
but whose custody has not been directed by the judgment 
of a State court. If the section were applied to applica­
tions by persons detained solely under authority of a State 
officer it would unduly hamper Federal courts in the pro­
tection of Federal officers prosecuted for acts committed 
in the course of official duty.” Sen. Eep. No. 1559, 80th 
Cong., 2d Sess. 9 (1948). Moreover, the origins of this 1948 
statute, disclosing the concerns to which it responded, 
make patent that § 2254 has not even analogical significance 
in pretrial habeas cases. See Amsterdam, Criminal Prose­



2 2

cutions Affecting Federally Guaranteed Civil Rights: Fed­
eral Removal and Habeas Corpus Jurisdiction to Abort 
State Court Trial, 113 U. Pa. L. Rev. 793, 890 n. 415, 902- 
903 (1965). Accepting arguendo the decision in Wyckoff 
that § 2254 applies to a prisoner confined under a justice 
court conviction notwithstanding state law gives him a 
right of trial de novo in a court of record, the statute 
plainly had no application to the pre-justice-trial petition 
filed in Brown v. Rayfield and the present case.

Of course, § 2254 is merely a partial codification of the 
doctrine of exhaustion of state remedies, which was judi­
cially developed in and following Ex parte Roy all, 117 U. S. 
241 (1886), and which, as a flexible judicial doctrine of 
comity, does apply to pretrial federal habeas petitions. See 
in addition to Royall, e.g., Cook v. Hart, 146 U. S. 183 
(1892); New Tori v. Eno, 155 U. S. 89 (1894); Whitten v. 
Tomlinson, 160 U. S. 231 (1895); Moss v. Glenn, 189 U. S. 
506 (1903); United States ex rel. Drury v. Lewis, 200 U. S. 
1 (1906). The origin and scope of that judicially developed 
doctrine in relation to the function of federal habeas corpus 
in civil rights cases is considered in the ensuing sections 
of this petition; for present purposes it is sufficient to 
note that the doctrine is a judicial creature, unfettered 
by statute against judicial evolution, and which “prescribes 
only what should ‘ordinarily’ be the proper procedure; all 
the cited cases from Ex parte Royall to [Ex parte] Hawk 
[321 U. S. 114 (1944)] recognize that much cannot be fore­
seen, and that ‘special circumstances’ justify departure 
from rules designed to regulate the usual case. The excep­
tions are few but they exist. Other situations may de­
velop. . . . ” Darr v. Bur ford, 339 U. S. 200, 210 (1950) 
(dictum). See, e.g., the authorities cited at p. 14, supra.



23

To determine the appropriate application of the judicial 
doctrine to such cases as the present one and Brown v. 
Bayfield, it will be necessary to canvass the statutory his­
tory of federal habeas corpus jurisdiction and the evolu­
tion of the court-made exhaustion requirement in relation 
to it. From such a survey the conclusion clearly emerges 
that federal habeas corpus is immediately available to one 
in petitioner’s circumstances.

(2) Legislative history.

Habits of thought generated by three quarters of a cen­
tury of application of the exhaustion doctrine tend to make 
American courts and lawyers today think of federal habeas 
corpus almost exclusively as a post-conviction remedy. But 
the nineteenth century Congresses which expanded the 
habeas corpus jurisdiction to its present scope8 thought in 
no such terms. Prior to the twentieth century, post-convic­
tion use of the writ was rare though not unknown;9 the 
English courts had more frequently used the writ in its 
various forms “for removing prisoners from one court

8 The present federal habeas corpus jurisdiction described in 
28 U. S. C. § 2241 (1958), is the product of statutes of 1789, 
1833, 1842 and 1867. Act of September 24, 1789, ch. 20, § 14, 
1 Stat. 73, 81-82; Act of March 2, 1833, ch. 57, 4 Stat. 632; Act 
of August 29, 1842, ch. 257, 5 Stat. 539-540; Act of February 5, 
1867, ch. 28, 14 Stat. 385. Each succeeding statute added to the 
previously given grant of habeas power. The four grants were 
consolidated without substantial change in Rev. Stat. §§ 751-753, 
which remained in force without significant modification until the 
1948 revision of Title 28, U. S. C. That revision produced present 
§ 2241, whose “changes in phraseology” were not designed to affect 
substantive change. See Revisor’s Note to 28 U. S. C. § 2241 (1958).

9 Examination of the texts clearly indicates that in England 
the writ was most commonly used, and thought of, as pretrial, 
not post-conviction, process. E.g., 3 Comyns. Digest of the Laws 
of England 454-455 (1785); 2 Hale, Pleas of the Crown 143-



2 4

into another, for the more easy administration of justice” ;* 4 * * * * * 10 11 
common-law habeas corpus ad subjiciendum developed 
principally as a remedy against executive detention with­
out, or prior to, judicial trial ;1] and the great Habeas Corpus 
Act of 1679, 31 Charles II, ch. 2, as Blackstone noted, ex­
tended by its terms “only to the case of commitments for 
such criminal charge, as can produce no inconvenience to 
public justice by a temporary enlargement of the prisoner; 
all other cases of unjust imprisonment being left to the

148, 210-211 (1st American ed., Philadelphia, 1847); IV Bacon’s 
Abridgment 563-605, Habeas Corpus (Philadelphia 1844). One 
of the relatively infrequent instances of its post-conviction use 
is the celebrated Bushell’s case, Vaughan, 135, 6 How. St. Tr. 999, 
124 Eng. Rep. 1006 (1670), discharging petitioners from a con­
tempt commitment. Several of the precedents cited in Bushell’s 
case involve similar summary commitment. In this country, the 
Supreme Court of the United States early employed the federal 
writ in behalf of persons committed for trial, to release them 
on bail, United States v. Hamilton, 3 Dali. 17 (U. S. 1795), or 
to discharge them for want of probable cause, Ex parte Bollman,
4 Cranch 75 (1807) ; but in Ex parte Watkins, 3 Pet. 193 (1830), 
the Court held that where the respondent’s return to the writ
showed that the petitioner was held by virtue of the judgment 
of a court having jurisdiction, the inquiry on habeas corpus ended
and no reexamination would be made of the lawfulness of the
judgment. Watkins thus restricted post-conviction use of habeas
corpus to a very narrow compass; it was only with Ex parte Lange, 
18 Wall. 163 (1873), that expansion began via the “jurisdictional” 
fiction, and only with Johnson v. Zerbst, 304 U. S. 458 (1938) 
that federal habeas emerged from the fiction in its modern role 
as a post-conviction remedy. See note 14 infra. The state courts,
too, generally disallowed postconviction use of the writ prior to 
the twentieth century. See cases collected in Thompson, Abuses 
of the Writ of Habeas Corpus, 18 A m . L. Rev. 1, 17-18 n. 1 (1884). 
See also Oaks, Habeas Corpus in the States, 32 U. Ch i L R ev 243 
258-264 (1965).

10 3 Blackstone Commentaries 129 (6th ed., Dublin 1775). 
Blackstone here refers to forms of the writ other than habeas 
corpus ad subjiciendum.

11 See 9 Holdswoeth, A History of English Law 111-119 
(1926).



25

habeas corpus at common law.” 12 Consistently with this 
background, the several congressional statutes extending 
federal habeas corpus to state prisoners13 were clearly de­
signed, in the classes of cases with which each was princi­
pally concerned, to give prisoners held by state authorities 
in advance of state court proceedings an immediate federal 
judicial proceeding to secure their release.14 The history of 
the first two of these enactments, in 1833 and 1842, was 
carefully examined in In re Neagle, 135 U. S. 1, 70-75 
(1890), and the conclusion drawn that their whole purpose 
was to allow federal judicial intervention into the state 
criminal process before state court trial. Indeed, no other 
conclusion is possible. The Force Act of March 2, 1833, 
ch. 57, 4 Stat. 632, was Congress’ response to John C. Cal­
houn and his threat to take South Carolina out of the Union

12 3 Blackstone, supra note 10, at 137. For the history of the act 
see 9 Holdswokth, supra note 11, at 115-119; Chafee, How Hu­
man Eights Got Into the Constitution 51-64 (1952).

18 The habeas corpus jurisdiction given by the First Judiciary Act 
by its express terms did not extend to state prisoners except where 
they were “necessary to be brought into court to testify.” Act of 
September 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82.

14 The conclusion in note 9 supra that development of federal 
habeas corpus as a post-conviction remedy may be dated at the 
earliest from 1873 and is largely a twentieth century phenomenon 
is supported by all commentators. See, e.g., Fay v. Noia, 372 U. S. 
391 (1963) ; Note, The Freedom Writ—The Expanding Use of 
Federal Habeas Corpus, 61 Habv. L. Eev. 657 (1948); Hart, 
Foreword, The Supreme Court, 1958 Term, 73 Habv. L. Eev. 84, 
101-121 (1959); Reitz, Federal Habeas Corpus: Postconviction 
Remedy for State Prisoners, 108 U. Pa. L. Eev. 461 (1960) ; Reitz, 
Federal Habeas Corpus: Impact of an Abortive Stale Proceeding, 
74 Harv. L. Eev. 1315 (1961) ; Brennan, Federal Habeas Corpus 
and State Prisoners: An Exercise in Federalism, 7 Utah L. Eev. 
423 (1961) ; Bator, Finality in Criminal Law and Federal Habeas 
Corpus for State Prisoners, 76 Harv. L. Eev. 441 (1963) ; Note, 
Federal Habeas Corpus for State Prisoners: The Isolation Prin­
ciple, 39 N. Y. U. L. Rev. 78 (1964).



2 6

in resistance to the Tariff. See 1 Morison & Commager, 
Growth of the A merican R epublic 475-485 (4th ed. 1950); 
Fay v. Noia, 372 U. S. 391, 401 n. 9 (1963). The Nullifica­
tion Ordinance was an open denial of federal supremacy, 
and it was “apparent that the constitution of the courts in 
South Carolina makes it necessary to give the revenue offi­
cers the right to sue in the federal courts.” Cong. Debates, 
vol. 9, pt. 1, 260 (Mr. Wilkins, who reported the bill and 
was its floor manager in the Senate, id. at 150 (1/21/33), 
246 (1/28/33, 1/29/33)); see also Mr. Frelinghuysen’s re­
marks, id. at 329-332 (2/2/33). Hence Congress responded 
by extending the civil jurisdiction of the federal courts to 
all cases arising under the revenue laws (§ 2), by authoriz­
ing removal of civil and criminal cases against federal 
revenue officers (§ 3), and by giving the federal courts and 
judges habeas corpus power to discharge from state custody 
all persons “in jail or confinement, where he or they shall 
be committed or confined on, or by any authority or law, 
for any act done, or omitted to be done, in pursuance of a 
law of the United States, or any order, process, or decree, 
of any judge or court thereof. . . . ” (§ 7, 4 Stat. 634). The 
clear purpose of these provisions as a lot was wdiolly to 
supersede state court jurisdiction in cases affecting the 
tariff and to give the federal courts power immediately and 
effectively to enforce the tariff against concerted state re­
sistance, including state judicial resistance. Similarly, the 
Act of August 29, 1842, ch. 257, 5 Stat. 539-540, was de­
signed to cope with the problem of the famous McLeod 
case, in which the New York courts nearly touched off a 
major international incident by refusing to relinquish juris­
diction over a British subject held for murder, who claimed 
that the acts with which he was charged were done under



27

authority of the British government. People v. McLeod, 
25 Wend. 482 (Sup. Ct. N. Y. 1841). McLeod was acquitted 
at his trial, but the need for an expeditious federal remedy 
to abort the state court process in such eases was strongly 
felt, and the 1842 statute was its product. See the speech 
of Mr. Berrien, who introduced the Senate bill, Cong., 
Globe, 27th Cong., 2d Sess. 444 (4/26/42), quoted in Neagle, 
135 II. S. at 71-72.

Thus the thirty-ninth Congress, which in 1867 further 
extended the federal habeas corpus jurisdiction to “all cases 
where any person may be restrained of his or her liberty 
in violation of the constitution, or of any treaty or law of 
the United States,” acted against a background of legisla­
tive practice which had previously employed the federal 
writ to discharge individuals held for state trial, in advance 
of that trial, in cases where their detention for subjection 
to the state criminal process was itself destructive of fed­
eral interests that the state judicial proceedings could not 
be expected to vindicate. The Act of February 5, 1867, ch. 
28, 14 Stat. 385, predecessor of the present 28 U. S. C. 
§ 2241(c) (3) (1958), was Reconstruction legislation. Its 
first section granted new habeas corpus power in the lan­
guage quoted above, made elaborate provision for sum­
mary hearing and summary disposition by the federal 
judges, and provided that :

“ . . . pending such proceedings or appeal, and until 
final judgment be rendered therein, and after final 
judgment of discharge in the same, any proceeding 
against such person so alleged to be restrained of his 
or her liberty in any State court, or by or under the 
authority of any State, for any matter or thing so 
heard and determined, under and by virtue of such



2 8

writ of habeas corpus, shall be deemed null and void/’ 
§ 1, 14 Stat. 386.15 16

Its second section gave another and different remedy to 
state criminal defendants having federal constitutional de­
fenses : review of the highest state court judgment by the 
Supreme Court of the United States on writ of error. 14 
Stat. 386-387. In view of the juxtaposition of these reme­
dies, the provisions expressly recognizing that federal 
habeas corpus courts would anticipate and forestall state 
judicial processes, and the pre-1867 usage with the writ, 
one need hardly plumb the legislative debates to conclude, 
as this Court recently has concluded, that: “Congress 
seems to have had no thought . . . that a state prisoner 
should abide state court determination of his constitutional 
defense—the neeessary predicate of direct review by [the 
Supreme Court] . . .—before resorting to federal habeas 
corpus. Rather, a remedy almost in the nature of removal 
from the state to the federal courts of state prisoners’ con­
stitutional contentions seems to have been envisaged.” Fay 
v. Noia, 372 U. S. 391, 416 (1963). The legislative materials, 
moreover, are eloquent on the point.

The genesis of the statute was a resolution offered by 
Representative Shellabarger shortly after the convening 
of the Congress in December, 1865 and immediately agreed 
to by the House, Cong. Globe, 39th Cong., 1st Sess. 87 
(12/19/65): “Resolved, That the Committee on the Judi­
ciary be directed to inquire and report to this House, as 
soon as practicable, by bill or otherwise, what legislation 
is necessary to enable the courts of the United States to en­

15 The successor of this provision is present 28 U. S. C. § 2251
(1958), under which petitioner herein has moved for a stay of 
state proceedings.



2 9

force the freedom of the wives and soldiers of the United 
States under the joint resolution of Congress of March 3, 
1865, and also to enforce the liberty of all persons under 
the operation of the constitutional amendment abolishing 
slavery.” There is no pertinent “joint resolution” of “March 
3, 1865,” and the evidence is persuasive that the “March 3” 
action intended by the reference is the Act of March 3, 
1863, ch. 81, 12 Stat. 755, a statute protecting Union offi­
cers and other persons from civil or criminal liability 
for acts or omissions during the rebellion under Presiden­
tial order or law of Congress, and authorizing removal 
from the state to federal courts of civil or criminal actions 
against such persons.16 That this was Shellabarger’s refer­
ence appears from the House Judiciary Committee’s sub­
sequent reporting of a bill17 which became the Act of May 
11, 1866, eh. 80, 14 Stat. 46, substantially amending the

16 Bator, Finality in Criminal Law and Federal Habeas Corpus 
for State Prisoners, 76 Harv. L. Rev. 441, 476 n. 80 (1963), reaches 
this conclusion. March 3, 1865 was the date of House concurrence 
in a Senate concurrent resolution requesting the President to 
transmit the proposed Thirteenth Amendment to the state execu­
tives, Cong. Globe, 38th Cong., 2d Sess. 1416 (3/3/65), but Shella- 
barger could not have meant to refer to this resolution, which had 
no substantive import. March 3, 1865 was also the date of enact­
ment of the Preedmen’s Bureau Act, ch. 90, 13 Stat. 507, but 
matters involving implementation of that act would doubtless have 
been referred to the House Select Committee on Freedmen, estab­
lished by resolution, Cong. Globe, 39th Cong., 1st Sess. 14 
(12/6/65), and which reported, for example, the Amendatory 
Freedmen’s Bureau Act of July 16, 1866, ch. 200, 14 Stat. 173. 
See Cong. Globe, 39th Cong., 1st Sess, 2743 (5/22/66).

17 The bill was apparently numbered II. K. 238 of the 39th Con­
gress, although some pages of the Globe refer to it as H. E. 298. 
It was the product of a House Judiciary Committee amendment in 
the nature of a substitute to a bill introduced by Representative 
Welker. Introduced at Cong. Globe, 39th Cong., 1st Sess. 196 
(1/11/66) ; reported, id. at 1368 (3/13/66); taken up, id. at 1387 
(3/14/66).



3 0

removal procedures of the 1863 act to prevent their obstruc­
tion by the state courts,18 an act which in turn was amended 
by the Act of February 5, 1867, ch. 27, 14 Stat. 385, au­
thorizing the issuance of writs of habeas corpus cum causa 
by the federal courts to bring before them the bodies of 
defendants whose cases had been removed from the state 
courts under the 1863 removal provisions.19 On March 15, 
1866, in debate on the bill which became the May 11 act, 
Shellabarger returned to what appears the theme first 
sounded in his resolution of the preceding December:

“Mr. Shellabaegek. I wish to inquire of some mem­
ber of the Judiciary Committee whether they intend 
by this bill, or any other which they may have in

18 See id. at 1387-1388 (Cook, who reported the bill, id. at 1368 
(3/13/66), and was its floor manager, id. at 1387 (3/14/66), in 
the House, 3/14/66) ; 2054 (Clark, who reported the bill, id. at 
1753 (4/4/66), and was its floor manager, id. at 1880 (4/11/66) 
in the Senate, 4/20/66).

19 The act was reported by the Judiciary Committee in each 
house. Id. at 4096 (7/24/66) (House), 4116 (7/24/66) (Senate). 
Its purpose was to take from state custody defendants whose cases 
had been removed into the federal courts, id. at 4096 (7/24/66) 
(Wilson, who reported the bill and was its floor manager, Hid., 
in the House); Cong. Globe, 39th Cong., 2d Sess. 729 (1/25/67) 
(Trumbull, chairman of the Judiciary Committee, who reported 
the bill, Cong. Globe, 39th Cong., 2d Sess. 729 (1/25/67) in the 
Senate), and thereby to permit the federal court to determine the 
validity of the defendant’s detention under the arrest, ibid. 
(Johnson, in the Senate). Together with the Act of May 11, see 
supra, text at note 18, and the habeas corpus statute, this enact­
ment evidences congressional concern to provide speedy and effi­
cient federal judicial remedies for state court defendants. Con­
temporaneously with these three bills, the bill which was to 
become the First Civil Rights Act of April 9, 1866, ch. 31, 14 Stat. 
27, -was being processed through Congress. Section 3 of the act as 
enacted created the civil rights removal jurisdiction now found in 
28 U. S. C. § 1443(2) (1958), and adopted the procedures of the 
1863 removal sections with “all acts amendatory thereof.” 14 Stat. 
27.



31

preparation, to provide for such eases as one which I 
am about to describe, a case which came to my bn owl - 
edge about the time of the convening of this Congress, 
and which I now state in order to attract to it the at­
tention of the committee, as it is one of a very large 
class of similar cases.

“In Grant County, I believe, in the State of Ken­
tucky, a provost marshal of the United States ordered 
certain citizens to take to the jail of that county two 
persons who were arrested and held as notorious guer­
rillas. While executing this order the persons in charge 
of these guerrillas, in order to prevent their attempted 
escape, were obliged to fire at them; and by that 
volley one of the guerrillas was killed and the other 
wounded. The persons who took part in that transac­
tion have been indicted by the grand jury of the county 
for murder in the first degree; and one or two of them, 
in order to avoid trial and the conviction which they 
regarded as inevitable in that county, have been com­
pelled to escape from the State.” Cong. Globe, 39th 
Cong., 1st Sess. 1426 (3/15/66).

On July 25,1866 Mr. Lawrence of Ohio reported from the 
House Judiciary Committee the bill which was subsequently 
to be enacted as the habeas corpus statute, ch. 28, of Febru­
ary 5, 1867. Questioned concerning a passage in the bill 
which excluded from its operation certain military prison­
ers, he said:

“Mr. L awrence, of Ohio. I will explain. On the 19th 
of December last, my colleague [Mr. Shellabargeb] 
introduced a resolution instructing the Judiciary Com­
mittee to inquire and report to the House as soon as 
practicable, by bill or otherwise, what legislation is



32

necessary to enable the courts of the United States to 
enforce the freedom of the wife and children of soldiers 
of the United States, and also to enforce the liberty 
of all persons. Judge Ballard, of the district court of 
Kentucky, decided that there was no act of Congress 
giving courts of the United States jurisdiction to en­
force the rights and liberties of such persons. In pur­
suance of that resolution of my colleague this bill has 
been introduced, the effect of which is to enlarge the 
privilege of the writ of hobeas [sic] corpus, and to 
make the jurisdiction of the courts and judges of the 
United States coextensive with all the powers that 
can be conferred upon them. It is a bill of the largest 
liberty, and does not interfere with persons in mili­
tary custody, or restrain the writ of habeas corpus 
at all. I am satisfied there will not be a solitary ob­
jection to this bill if it is understood by the House.” 
Cong. Globe, 39th Cong., 1st Sess. 4151 (7/25/66).

The bill passed the House without further explanation. 
Ibid. In the Senate, it was reported by Lyman Trumbull 
of Illinois, chairman of the Judiciary Committee, id. at 4228 
(7/27/66). As in the House, the question was raised of the 
bill’s exception of military prisoners from its scope, id. 
at 4229 (7/27/66) (Senator Davis of Kentucky), and Sena­
tor Trumbull replied:

“ . . . I will state to the Senator from Kentucky 
which he is probably aware of, that the habeas corpus 
act of 1789, to which this bill is an amendment, confines 
the jurisdiction of the United States courts in issuing 
writs of habeas corpus to persons who are held under 
United States laws. Now, a person might be held



3 3

under a State law in violation of the Constitution and 
laws of the United States, and he ought to have in such 
a case the benefit of the writ, and we agree that he 

. ought to have recourse to United States courts to show 
that he was illegally imprisoned in violation of the 
Constitution or laws of the United States.” Ibid.

This was the only discussion of the bill’s substance in the 
upper house. The Senate passed it with a procedural 
amendment in which the House concurred without debate.20

Floor discussion of the act of 1867 was thus quite limited. 
But its proponents told the Congress all that seemed neces­
sary when they explained its purpose to give “recourse 
to the United States courts” (Senator Trumbull, supra) in 
cases of federally illegal detention, and to expand the habeas 
corpus jurisdiction to its constitutional limits (Representa­
tive Lawrence, supra). There was no need to rehearse 
again the many reasons why the state courts could not be 
entrusted to enforce federal rights, or the many needs for 
a supervening, imperative federal judicial remedy. Those 
matters had recently been debated extensively in considera­
tion of the Act of May 11, 1866, supra. The condition of 
affairs in the state courts was well known. “Now, it so 
happens, as the rebellion is passing away, as the rebel 
soldiers and officers are returning to their homes, that I 
may say thousands of suits are springing up all through 
the land, especially where the rebellion prevailed, against

20 To meet Senator Johnson’s concern over the absence of terri­
torial limitations on the power of the federal judges to issue habeas 
corpus, see Cong. Globe, 39th Cong., 2d Sess. 730 (1/25/67), the 
bill was amended to restrict the habeas grant to the courts and 
judges “within their respective jurisdictions.” Id. at 790 (1/28/67). 
It was so passed by the Senate, ibid., and the House concurred in 
the amendment without debate, id. at 899 (1/31/67).



3 4

the loyal men of the country who endeavored to put the 
rebellion down.” 21 “ [Sjuits are springing up from one 
end to the other; and these rebel courts are ready to de­
cide against your Union men and acquit the rebel soldier.” 22 
“A great many vexatious suits have been brought, and they 
are still pending, and instances have been known—they 
exist now—where Federal officers have been pushed very 
hard and put to great hardships and expense, and sometimes 
convicted of crime, for doing things which were right in the 
line of duty, and which they were ordered to do and which 
they could not refuse to do.” 23 In Kentucky, “They are

21 Cong. Globe, 39th Cong., 1st Sess. 2021 (Clerk in the Senate, 
4/18/66). The excerpts of debate cited in this and succeeding 
notes 22-28 are on consideration of the Act of May 11, 1866, supra. 
Senator Clark reported and managed the bill which became the 
act. Note 18 supra.

The oppressive volume of state litigation against Union men was 
frequently noted in debate. E.g., Cong. Globe, 39th Cong., 1st 
Sess. at 1880 (Clark in the Senate, 4/11/66), 1983 (Trumbull, 
chairman of the Judiciary Committee, in the Senate, 4/17/66). It 
was that there were over 3000 cases pending in Kentucky alone. 
Id. at 1526, 1529 (McKee, of Kentucky, in the House, 3/20/66), 
1983 (Clark in the Senate, 4/17/66), 2021 (Clark in the Senate, 
4/18/66), 2054 (Wilson in the Senate, 4/20/66).

22 Id. at 2021 (Clark in the Senate, 4/18/66).
28 Id. at 1880 (Clark in the Senate, 4/11/66). Recognition that 

the cost of defending suits and prosecutions might itself be ruinous 
to defendant Union men found strong expression in the comments 
of Senators Edmunds, id. at 2063-2064, and Howe, id. at 2064 
(4/20/66), in debate of an amendment offered by Edmunds pro­
viding that the Secretary of War should defend all actions within 
the scope of the bill at government expense, and should indemnify 
the individual defendant for damages, costs, fines and expenses. 
The amendment, and one proposed by Howe providing for govern­
ment defense of removed actions, were defeated on the ground 
that they would overburden the government’s financial resources, 
encourage litigation, encourage collusive actions, result in larger 
jury verdicts in damage actions, and that defendants could be 
adequately protected by private indemnifying bills. See id. at 
2064-2066 (4/20/66). Apart from questions of expense, the injury



35

harassing, annoying, and even driving ont of the State 
the men who stood true to the flag by suits under the legis­
lation and judiciary rulings of Kentucky. There no protec-

to state-court defendants of delay in the vindication of their federal 
rights was pointed up by the debate between Senators Doolittle 
and Hendricks, who opposed the provision making state judges 
civilly liable for proceeding after removal of a case to the federal 
court, and Senators Stewart and Clark, who supported it. Senator 
Doolittle said that it should not be presumed state judges would 
flout the federal removal statute. [In fact, state courts had re­
peatedly obstructed removal by refusing to approve removal bonds, 
by refusing to transmit the state record to the federal court, and 
by proceeding against defendants notwithstanding removal, holding 
the removal statute unconstitutional. See references in note 18, 
supra.] Senator Stewart asked, in effect, what relief there was 
for an indicted defendant if the state court did flout removal, 
pointing out that a state judge could force an indictment to trial 
even without the cooperation of the state prosecutor. Senator 
Hendricks replied that the defendant’s remedy was by appeal 
through the higher state courts to the Supreme Court of the United 
States. Senator Stewart rejoined: “But suppose the judge goes on 
and convicts the man and sends him to the penitentiary, he must 
lie there until the case can be heard in the Supreme Court, three 
or four years hence.” Senator Doolittle thought it sufficient pro­
tection to the defendant that federal law forbid the state jail 
authorities to detain the defendant in such a ease, and make them 
civilly liable if they do. Senator Stewart pointed out that the state 
judge had strong coercive powers over state officers, and Senator 
Clark closed the debate:

“Mr. Clark. I desire to make but one suggestion in answer 
to the Senator from Wisconsin, and that is one of fact. He says 
if it were necessary that these judges should be proceeded 
against he would not object. I hold in my hand a communica­
tion from a member of the other House from Kentucky, in 
which he says that all the judicial districts of Kentucky, with 
the exception of one, are in the hands of sympathizing judges. 
They entirely disregard the [removal] act to which this is an 
amendment. They refuse to allow the transfer, and proceed 
against these men as if nothing had taken place. Here is not 
the assumption that these judges will not do this; here is the 
fact that they do not do it, and it is necessary that these men 
should be protected.” Id. at 2063 (4/20/66).

Senators Stewart and Clark prevailed in the vote on an amendment 
seeking to strike the provision making the state judges liable. Ibid.



36

tion is guaranteed to a Federal soldier.” 24 “[I]n another 
county of that State the grand jury indicted every Union 
judge, sheriff, and clerk of the election of August, 1865. In 
addition to that every loyal man who had been in the Army 
and had, under the order of his superior officer, taken a 
horse, was indicted.” 25 Discrimination against the Union 
men “is the rule in Kentucky, except in one solitary dis­
trict, and the Legislature at its last session inauguarated 
means of removing that judge, simply because he dared 
to carry out this act of the Federal Congress [the 1863 
removal statute].” 26 “There must be some way of remedy­
ing this crying evil, and these men who have been engaged 
in the defense of the country cannot be permitted to be per­
secuted in this sort of way. Then life becomes hardly worth 
having, if, after having driven the rebels out of their 
country and subdued them, those rebels are to be permitted 
to return and harass them from morning until night and 
from night till morning, and make their life a curse for 
that very defense which they have given your country.” 27

It is impossible to read these debates of the thirty-ninth 
Congress without concluding that the federal legislators 
were intensely aware of the hostility and anti-Union preju­
dice of the southern state courts28 and of the use of state 
court proceedings to harass the Union men. Nor, under

24Id. at 1526 (McKee, of Kentucky, in the House, 3/20/66).
25 Id. at 1527 (Smith, of Kentucky, in the House, 3/20/66). See 

also id. at 1526 (McKee, of Kentucky, in the House, 3/20/66).
26 Ibid. (McKee, of Kentucky, in the House, 3/20/66). See also 

id. at 2063 (Clark in the Senate, 4/20/66).
27 Id. at 2054 (Clark in the Senate, 4/20/66).
28 E.g., id. at 1526 (McKee, of Kentucky, in the House, 3/20/66), 

1527 (Garfield and Smith, of Kentucky, in the House, 3/20/66), 
1529 (Cook, who reported the bill and was its floor manager, see 
note 18 supra, in the House, 3/20/66), 2054, 2063 (Clark in the



3 7

these circumstances, was this Congress willing to adopt a 
hands-off attitude toward state criminal administration. 
During nearly three-quarters of a century following the 
First Judiciary Act of September 24, 1789, ch. 20, 1 Stat. 
73, Congress had relegated the enforcement of federal rights 
generally to the state trial courts,29 subject to limited re­
view by the Supreme Court of the United States, and had 
shown itself particularly reluctant to interject the federal 
courts into the course of state criminal proceedings.30 It 
had authorized only limited federal judicial incursions— 
by removal provisions in 1815 and 183331 and anticipatory

Senate 4/20/66). Clark pointed out that hostile state legislatures 
could not be looked to for redress of the discriminations practiced 
by hostile state judges. Id. at 2054 (4/20/66). The only relief 
for the Union men was access to the federal courts: “There is 
where they are most likely to have their rights protected. There 
is where local prejudices are frowned down.” Id. at 1526 (McKee, 
of Kentucky, in the House, 3/20/66) ; see also id. at 1528 (Smith, 
of Kentucky, in the House, 3/20/66), 1529-1530 (Cook in the 
House, 3/20/66); cf. id. at 1387 (Cook in the House, 3/14/66).

29 Hart & Wechsler, The Federal Courts and the Federal 
System 727 (1954). Except for the brief interlude following the 
Act of February 13, 1801, ch. 4, § 11, 2 Stat. 89, 92, repealed by 
the Act of March 8, 1802, ch. 8, 2 Stat. 132, the lower federal courts 
had no general federal question jurisdiction until 1875. Judiciary 
Act of March 3, 1875, ch. 137, 18 Stat. 470.

so The First Judiciary Act, for example, was explicit in excepting 
state prisoners from the federal habeas corpus jurisdiction. See 
note 13 supra. Congressional reluctance to involve the lower federal 
courts in state criminal proceedings is understandable enough when 
one considers the furor raised as late as 1821 by Supreme Court 
assumption of jurisdiction to review federal questions in state 
criminal cases. Cohens v. Virginia, 6 Wheat. 264 (1821) • 1 War­
ren, Tile Supreme Court in United States History 547-559 
(Rev. ed. 1932).

31 Act of February 4, 1815, eh. 31, § 8, 3 Stat. 195, 198; Act of 
March 3, 1815, ch. 43, § 6, 3 Stat. 231, 233. These statutes re­
sponded to New England resistance to the War of 1812. See 
1 MORISON & COMMAGER, GROW TH OF TH E A M ERICA N  REPU BLIC
428, 429 (4th ed. 1950). The Force Act of March 2, 1833 has been 
discussed at p. 23 supra.



3 8

habeas corpus grants in 1833 and 184232—in cases where 
there were extraordinary reasons to distrust the state judi­
cial institutions. But the experience of the Civil War and 
the beginnings or Reconstruction brought new attitudes. 
Extensive civil and criminal removal statutes were enacted, 
covering in 1863 persons acting under Presidential order or 
act of Congress during the rebellion, in 1864 federal inter­
nal revenue officers and persons acting under them, in 1866 
civil rights cases, again in 1866 all persons acting during the 
rebellion under military orders, and in 1871 voting enforce­
ment cases.33 Union military commanders under the Con­
gressional Reconstruction program withdrew from the state 
courts in the South civil and criminal jurisdiction over all 
cases involving union soldiers and freedmen, and gave the 
jurisdiction to national military tribunals.34 Subsequently, 
implementing the new guarantees in which the Thirteenth, 
Fourteenth and Fifteenth Amendments committed the fed­
eral government to protect its citizens against the States, 
Congress was to create in 1871 a broad civil rights juris­
diction35 whose purpose was to supersede state judicial 
processes without respect to exhaustion of state remedies,

32 See pp. 25-27 supra.
33 Act of March 3, 1863, ch. 81, § 5, 12 Stat. 755, 756, p. 26 supra; 

Act of March 7, 1864, ch. 20, § 9, 13 Stat. 14, 17 and Act of June 
30, 1864, ch. 173, § 50, 13 Stat. 223, 241, amended by the Act of 
July 13, 1866, ch. 184, 14 Stat. 98 (these last three statutes cover­
ing revenue officers); Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27, 
note 19 supra; Act of May 11, 1866, ch. 80, 14 Stat. 46, pp. 26-27 
supra; Act of February 28, 1871, ch. 99, § 16, 16 Stat. 438.

34 See Cong. Globe, 39th Cong., 1st Sess. 1834 (4/7/66); Dunn­
ing, Essays on the Civil War and Reconstruction 147, 156-163 
(1898).

35 Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13, the third Civil 
Rights Act, called the Ku Klux Act. The jurisdiction survives in 
present 28 U. S. C. § 1343 (1958) and Rev. Stat. § 1979, 42 U. S. C 
§ 1983 (1958).



3 9

‘‘because, by reason of prejudice, passion, neglect, intoler­
ance or otherwise, state laws might not be enforced and the 
claims of citizens to the enjoyment of rights, privileges, 
and immunities guaranteed by the Fourteenth Amendment 
might be denied by the state agencies.” 36 No longer was it 
assumed that the state courts were the fit tribunals for 
the protection of federal interests except in the relatively 
rare cases where they showed themselves unfit. Now those 
courts were seen as instruments for the deprivation of 
federally guaranteed liberties, and Congress acted to sup­
plant them with a pervasive federal trial jurisdiction.37

In similar, though more limited, circumstances in 1833— 
South Carolina’s resistance to the Tariff of Abominations 
—Congress had responded by the creation both of removal 
and of anticipatory habeas corpus jurisdiction to enable 
federal courts to protect the tariff officials. The removal 
legislation of 1863 and 1866 was patterned on that of 1833.38

36 Monroe v. Pape, 365 U. S. 167, 180 (1961). The purpose of 
the 1871 statute to provide a federal forum for the vindication of 
federal civil rights notwithstanding failure to exhaust state rem­
edies was reaffirmed in MeNeese v. Board of Education, 373 U. S. 
668 (1963).

37 Each of the four major civil rights acts contained jurisdictional 
provisions giving enforcement power to the federal trial courts. 
Act of April 9, 1866, eh. 31, § 3, 14 Stat. 27; Act of May 31, 1870, 
ch. 114, §§ 8, 18, 16 Stat. 140, 142, 144; Act of April 20, 1871, 
ch. 22, § 1, 17 Stat. 13; Act of March 1, 1875, ch. 114, § 3, 18 Stat. 
335, 336. Significantly, by the Judiciary Act of March 3, 1875, ch. 
137, 18 Stat. 470, Congress gave general federal question juris­
diction to the lower federal courts, thus establishing that henceforth 
those courts, not the state courts, were to be the ordinary and 
natural agencies for the administration of federal law. See Frank­
furter & Landis, The Business of the Supreme Court 64-65 
(1928).

38 See Cong. Globe, 39th Cong., 1st Sess. 1387 (Cook in the House, 
3/14/66).



4 0

But removal proved in practice an insufficient protection 
against hostile state courts;39 subjection of defendants to 
the initial stages of state process offered large opportuni­
ties for harassment and obstruction in the vindication of 
federal rights. With this knowledge, Congress enacted the 
habeas corpus statute of 1867, and the temper of the times 
clearly supports the conclusion that “the proponents of the 
remedy certainly contemplated the by-passing of the state 
judicial processes.” Brennan, Federal Habeas Corpus for 
State Prisoners: An Exercise in Federalism, 7 U tah L. 
Rev. 423, 426 (1961).40 It is fair to say that the purpose 
of the Congress which created the federal habeas juris­
diction now codified in 28 U. S. C. § 2241(c) (3) (1958) 
flatly repels the conception that persons seeking to enforce 
the civil rights which the nation won for them in the Civil 
War and preserved by the post-War amendments should 
be remitted for exhaustion of remedies to the state courts 
which were the very agencies of harassing them in the 
exercise of those rights.

(3) Judicial development of the exhaustion doctrine.

The broad scope of the habeas corpus jurisdiction con­
ferred by the 1867 act was immediately recognized by the 
Supreme Court. “This legislation is of the most com­
prehensive character. It brings within the habeas corpus 
jurisdiction of every court and of every judge every pos­
sible case of privation of liberty contrary to the National

39 By a variety of devices, the state courts had managed to defeat 
removal under the 1863 act. See notes 18, 23 supra; also Cong. 
Globe, 39th Cong., 1st Sess. 1526 (McKee, of Kentucky, in the 
House, 3/20/66), 1527 (Smith, of Kentucky, in the House, 
3/20/66), 2054 (Wilson in the Senate, 4/20/66).

40 See Justice Brennan’s statement for the Court in Fay v. Noia, 
p. 28 supra.



4 1

Constitution, treaties, or laws. It is impossible to widen 
this jurisdiction.” Ex parte McCardle, 6 Wall. 318, 325-326 
(1867). Ironically the act was invoked in MeCardle’s case 
not by a state prisoner complaining of state restraint in 
violation of federally guaranteed freedoms or federally 
protected interests, but by a Union army prisoner held for 
trial before a military commission on charges of publishing 
anti-Union propaganda in the newspaper of which he was 
an editor; his habeas corpus petition challenged the validity 
of the federal Reconstruction Acts, and Congress, fearful 
that the Supreme Court would void the legislation, immedi­
ately withdrew its appellate jurisdiction in cases (including 
McCardle’s) arising under the 1867 habeas statute. Act 
of March 27, 1868, ch. 34, § 2, 15 Stat. 44; see Ex parte Mc­
Cardle, 7 Wall. 506 (1869). This left it to the lower federal 
courts, during the years until the Supreme Court’s ap­
pellate jurisdiction was restored by the Act of March 3, 
1885, ch. 353, 23 Stat. 437, to construe the new habeas corpus 
grant without Supreme Court guidance. Significantly, these 
contemporary lower court decisions viewed the 1867 statute 
as imperatively demanding federal discharge of state 
prisoners held for trial or after state trial-court convic­
tion, notwithstanding the existence of still unexhausted 
state remedies. Ex parte McCready, 15 Fed. Cas. 1345, 
No. 8,732 (C. C. E. D. Va. 1874); Ex parte Bridges, 4 Fed. 
Cas. 98, No. 1,862 (C. C. N. D. Ga. 1875); Ex parte Tatem, 
23 Fed. Cas. 708, No. 13,759 (E. D. Va. 1877). Particularly, 
in a series of cases arising out of prosecutions under legis­
lation by which the Pacific Coast States and municipalities 
sought to discriminate against the immigrant Chinese, 
federal district and circuit courts, striking down the legis­
lation under the Fourteenth Amendment, released their 
habeas corpus petitioners in advance of state trial or im­



4 2

mediately following summary state conviction. In re Par­
rott, 1 Fed. 481 (C. C. D. Cal. 1880); In re Quong Woo, 
13 Fed. 229 (C. C. D. Cal. 1882); In re Lee Tong, 18 Fed. 
253 (D. Ore. 1883); In re Wan Yin, 22 Fed. 701 (D. Ore. 
1885); Ex parte Ah Lit, 26 Fed. 512 (D. Ore. 1886); In re 
Tie Loy, 26 Fed. 611 (C. C. D. Cal. 1886). In some of 
these cases, particularly those from the Oregon District 
Court, the substantive holdings of unconstitutionality were 
more or less extravagant (the Oregon District Judge voided 
several municipal ordinances on the theory that, being ultra 
vires state enabling legislation, they violated due process 
of law); these decisions were received with consternation 
by the legal profession, see R eport op the Seventh Annual 
Meeting op the American Bar A ssociation 12-44 (1884), 
which in turn led Congress to reestablish the Supreme 
Court’s appellate jurisdiction in habeas cases in 1885. 
Doubtless the same consternation respecting the scope 
given the Due Process Clause by some lower courts ac­
counts in part for the birth of the exhaustion doctrine in 
Ex parte Royall, 117 U. S. 241 (1886), the following year.

Royall was not a case in which a habeas peti­
tioner invoked federal constitutional protection in the ser­
vice of the federal interests or the federal freedoms with 
which the Reconstruction Congress had been principally 
concerned. It presented a Contracts Clause question, and 
had every appearance of a carefully made test case by which 
Royall, being in no particular circumstance of urgency, 
was employing the habeas corpus route as the most con­
venient device to obtain a Supreme Court ruling on the 
validity of Virginia’s state bond coupon legislation.41 The

41 Royall, an attorney, had been at large on bond for almost a 
year after his arrest in 1884; shortly after passage of the statute 
restoring the Supreme Court’s appellate habeas jurisdiction, he 
surrendered into custody and filed his petition.



4 3

case was unarguably within the broad jurisdictional lan­
guage of the 1867 habeas corpus grant, but as obviously 
■without its purposes. In this context—and in the calmer 
post-Reeonstruction era which resembled neither 1867 nor 
1965 in the South—the Supreme Court understandably 
concluded that the federal habeas courts (although em­
powered to discharge state criminal defendants before state 
trial, 117 U. S. at 245-250) had and should exercise a “dis­
cretion,” 117 U. S. at 251, to abstain in favor of the orderly 
process of state court trial and appeal, “that discretion, 
however, to be subordinated to any special circumstances 
requiring immediate action,” 117 U. S. at 253. Like Royall, 
the cases which soon followed it in refusing federal habeas 
corpus to a prisoner in advance of his state trial involved 
issues which (where not altogether frivolous), either did not 
implicate the post-War Amendments42 or saw the Four­
teenth Amendment invoked against state regulatory legis­
lation by economic interests apparently able to bear with­
out harm the burdens of protracted state-court litigation.43 
With the expansion of conceptions of due process as a 
limitation upon state criminal procedure and the conse­
quent expansion of federal habeas corpus as a post-convic­
tion remedy,44 the focus of litigation under the Royall doc­
trine became the question of exhaustion of state collateral 
remedies for federal constitutional violations in the trial 
process; in these cases exhaustion was rigorously de­

42 See the cases cited at p. 19 supra; also, Cunningham v. Skiri- 
otes, 101 F. 2d 635 (5th Cir. 1939) ; United States ex rel. Silverman 
v. Fiscus, 42 Fed. 395 (W. D. Pa. 1890) ; In re Alexander, 84 Fed. 
633 (W. D. N. C. 1898) ; cf. Minnesota v. Brundage, 180 IJ. S. 499 
(1901).

43 See Baker v. Grice, 169 U. S. 284 (1898) ; Ex parte Bartlett, 
197 Fed. 98 (E. D. Wise. 1912).

44 See discussion in sources collected in note 14 supra.



4 4

manded of Fourteenth Amendment claimants,45 perhaps be­
cause the need for immediate federal intervention seemed 
less compelling where the nature of the state judicial pro­
ceedings (rather than the power of the State to proceed 
at all in the premises) was challenged, perhaps because 
the outstanding early post-conviction cases were death 
cases where the habeas petitioner had no particular ob­
jection to delay so long as he remained unexecuted in the 
interim, more probably because the Royall principle was 
simply carried over unthinkingly from Contract Clause 
and Commerce Clause cases to Fourteenth Amendment 
cases having no smack of urgency about them, and thence 
to all Fourteenth Amendment cases, subject to the “excep­
tional circumstances” qualification. It is enlightening that 
this was not the contemporary view of Royall. For in the 
West Coast Chinese cases raising significant Due Process 
and Equal Protection challenges to state legislation on its 
face or as applied, see p. 42 supra, the lower federal 
courts continued to protect the Chinese by anticipatory 
habeas corpus even after Royall, see In re Sam Kee, 31 
Fed. 680 (C. C. N. D. Cal. 1887); In re Lee Sing, 43 Fed. 
359 (C. C. N. D. Cal. 1890). And this Court itself ap­
proved such an employment of habeas corpus, without con­
sideration of exhaustion of state remedies, in Wo Lee v. 
Hopkins, reported with Tick Wo v. Hopkins, 118 U. S. 356 
(1886). The Fifth Circuit’s decisions in Application of 
Wyckoff, Brown v. Ray field, and the present case, requiring 
exhaustion in similar situations, are inconsistent with these 
cases.

45E.g., Mooney v. Holohan, 294 U. S. 103 (1935)- Ex parte 
Hawk, 321 U. S. 114 (1944).



4 5

(4) Application of the exhaustion doctrine to civil rights 
cases.

Petitioner asks this Court to repudiate these latter-day 
extensions of the exhaustion requirement. Her position, 
simply, is that a habeas petition states a case for an­
ticipatory federal habeas corpus relief if it shows that 
the petitioner is held for state prosecution on account of an 
act which was in the exercise of civil rights46 protected by 
the Fourteenth Amendment or Fifteenth Amendment. The 
protection of civil rights, the protection of the liberty of the 
freedman and the loyal Union man in the South against 
persecution and oppression, were paramount objects of 
the Congress which enacted the 1867 habeas corpus statute. 
Aware that state courts were being used as agencies of har­
assment, Congress enlarged the federal habeas corpus juris­
diction—theretofore always employed by it as a pretrial 
remedy to abort state proceedings which infringed par­
ticular federal concerns—to reach all cases of restraint 
of liberty in violation of federal law; it enacted that, after 
proceeding “in a summary way to determine the facts of the 
case, . . .  if it shall appear that the petitioner is deprived 
of his or her liberty in contravention of the constitution 
or laws of the United States, he or she shall forthwith be 
discharged and set at liberty,” and all subsequent state court 
proceedings shall be void. 14 Stat. 386. Doubtless Boyall 
exercised a permissible judicial license in holding that a

46 The phrase “civil rights” is used advisedly, despite the possi­
bility of unclarity at its fringes, to designate what Mr. Justice 
Stone in dealing with a cognate statute described as a “right or 
immunity . . .  of personal liberty, not dependent for its existence 
upon the infringement of property rights.” Hague v. C. I. 0., 307 
U. S. 496, 518, 531 (1939) (plurality opinion). Congress has 
used the words “civil rights” with, apparently, the same meaning, 
28U. S. C. § 1343(4) (1958).



4 6

federal habeas court need not always “forthwith” award 
the writ in advance of a state trial despite the peremptory 
tone of the statute. But “the court could not, against the 
positive language of Congress, declare any such exception,” 
Ex parte Royall, 117 U. S. at 249, and the exception which 
Royall allowed to the exercise of a congressionally-given 
jurisdiction47 was allowed only because it was supposed to 
be not inconsistent with congressional purpose, 117 U. S. at 
251, 252. In situations which, like Royall, fall within the 
1867 statute’s terms but not within the immediate range 
of congressional concern or foresight, implication of judi­
cial “discretion” to delay relief may properly be thought not 
inconsistent with the statute. However, reading the stat­
ute fairly against its background, it is obvious that Con­
gress intended principally the creation of a summary, super­
vening federal trial jurisdiction brooking no accommoda­
tion of state court processes; and, at least in that class 
of cases where the operation of such a jurisdiction was 
clearly foreseeable in light of the circumstances which give 
rise to the enactment, that sort of jurisdiction should be 
exercised as given. This is the case where a habeas peti­
tioner seeks relief from state restraint imposed on him 
on account of his exercise of the civil rights guaranteed by 
the post-War Amendments and their enforcing legislation.

The mainspring of Royall is the principle that the “dis­
cretion [of a federal habeas court to abstain until state 
remedies are exhausted] should be exercised in the light of 
the relations existing, under our system of government, 
between the judicial tribunals of the Union and of the 
States, and in recognition of the fact that the public good

47 Cf. Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 
264, 404 (1821) : “We have no more right to decline the exercise 
of jurisdiction which is given, than to usurp that which is not 
given. The one or the other would be treason to the constitution.”



4 7

requires that those relations be not disturbed by unneces­
sary conflict between courts equally bound to guard and 
protect rights secured by the Constitution.” 117 U. S. at 
251. In appraising the appropriate “relations existing . . . 
between the judicial tribunals of the Union and of the 
States,” it is pertinent to inquire what specific “rights” are 
in issue, what the Constitution and the Congress (by other 
legislation than the habeas corpus statute itself) have said 
about their importance and the usual forum for their en­
forcement, and, finally, what the federal and state courts 
respectively can do and are in fact doing under their obliga­
tion “to guard and protect” those rights. Federal absten­
tion in favor of state court processes under this principle 
presupposes that, in respect of the subject matter of the 
litigation, the state courts have a generally primary com­
petence or responsibility—that they are the ordinary and 
normal place for such litigation. However valid this may be 
regarding other federal questions (and particularly those 
of procedural due process, where the federal claim arises 
out of the state court proceedings themselves), it is clearly 
not so in matters of civil rights. For not only did the 
Reconstruction Congress create an extensive original fed­
eral jurisdiction in civil rights cases, see note 35 supra, it 
created in § 3 of the first Civil Rights Act, in 1866, federal 
removal jurisdiction over state criminal cases implicating 
civil rights, and even original criminal jurisdiction over 
state-law offenses affecting persons denied their federal 
civil rights.48 An impressive array of recent decisions—

48 Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27, predecessor of 
present 28 U. S. C. § 1443 (1958). Only in the cases of original 
federal criminal jurisdiction over state-law crimes and in removal 
cases not arising from the exercise of federal civil rights, did the 
1866 act admit a place for state court responsibility in the first 
instance.



4 8

Fay v. Noia, 372 U. S. 391 (1963); Townsend v. Sain, 372 
U. S. 293 (1963); Monroe v. Pape, 365 U. S. 167 (1961); 
McNeese v. Board of Education, 373 U. S. 668 (1963); Bag­
gett v. Bullitt, 377 U. S. 360 (1964); Dombrowski v. Pfister, 
380 U. S. 479 (1965); Rachel v. Georgia, 342 F. 2d 336 (5th 
Cir. 1965); Peacock v. City of Greenwood, 347 F. 2d 679 
(5th Cir. 1965); Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 
1965), all decided under the Reconstruction legislation— 
recognize the primary responsibility of the federal courts 
“within this precious area” where “Congress has declared 
the historic judgment th a t. .. there is to be no slightest risk 
of nullification by state process . . . not because the interest 
of the state is smaller in such cases, but because its interest 
is outweighed by other factors of the highest national con­
cern.” Wechsler, Federal Jurisdiction and the Revision of 
the Judicial Code, 13 Law & Contemp. P rob. 216, 230 (1948). 
In this area, consistently with Royall, deference to state 
process is unwarranted.

To assume jurisdiction in the present case, however, the 
Court need not reach the question of the application of the 
exhaustion doctrine to all civil rights cases. This ease is a 
particularly strong one for anticipatory federal relief.

Under the allegations of paragraphs VI and VIII of the 
petition, and on the basis of Mississippi legislation which 
the court may judicially notice, see p. 16 supra, it is ap­
parent that the State of Mississippi has mounted and is 
maintaining a comprehensive practice of resistance to fed­
eral civil rights. Mississippi’s massive resistance is per­
tinent here for several reasons. First, the decision in Roy- 
all’s case to delay the summary exercise of a jurisdiction 
given the federal courts by Congress in order effectively 
to protect federal rights was premised on the assumption



4 9

that state and federal courts were “equally bound to guard 
and protect rights secured by the Constitution,” 117 U. S. 
at 251, and that the state courts in general would probably 
do their job. Where the hostility of all state authorities to 
a particular class of federal rights is intense, the prob­
ability that the state courts will defend those rights di­
minishes so substantially as no longer to justify the as­
sumption made in Royall or the judgment of accommoda­
tion based upon it. Second, the fact of massive state 
resistance to federal constitutional guarantees is itself a 
substantial threat to the principle of national supremacy in 
matters of national concern upon which American federal­
ism is based, and thus per se implicates “the authority and 
operations of the General Government” within a recog­
nized exception to the exhaustion doctrine described at 
pp. 53-57. Cf. Cooper v. Aaron, 358 U. S. 1 (1958); Griffin 
v. County School Board of Prince Edward County, 377 
U. S. 218 (1964). Third, the situation of massive re­
sistance to federally protected interests was exactly that 
which faced the Congress in 1867 and to which it re­
sponded with the grant of habeas corpus jurisdiction which 
petitioner invokes. The statutory history of this grant 
compels the conclusion that, at least in this situation, Con­
gress intended the federal habeas corpus courts to super­
sede, not defer to, state courts which were then, as now, 
used as the instruments for the harassment of individuals 
asserting federal rights. The Royall doctrine, emerging 
after Reconstruction as a principle for the operation of the 
federal courts in calmer days, found that abnegation of 
the summary jurisdiction given by the habeas corpus legis­
lation was not inconsistent with the legislation’s purposes. 
Application of the doctrine in modern instances of massive 
resistance would be flatly inconsistent with those purposes.



5 0

Moreover, petitioner here invokes the habeas corpus 
jurisdiction in vindication of rights secured by the First 
and Fourteenth Amendments: freedom of speech, associa­
tion and assembly in the service of political expression. 
This Court has time and again said that these rights 
occupy a constitutionally preferred position,49 and it has 
recognized that “The threat of sanctions may deter their 
exercise almost as potently as the actual application of 
sanctions.” N.A.A.C.P. v. Button, 371 U. S. 415, 433 (1963). 
See also Smith v. California, 361 U. S. 147, 151 (1959); 
Bantam Boohs, Inc. v. Sullivan, 372 IT. S. 58, 66-70 (1963); 
Cramp v. Board of Public Instruction, 368 IT. S. 278, 286- 
288 (1961); Garrison v. Louisiana, 379 IT. S. 64, 70
(1964) . “ [P]rosecution is punishment,” Dilworth v. Biner, 
343 F. 2d 226, 231 (5th Cir. 1965), no less in First Amend­
ment than in other civil rights cases; and where the First 
Amendment is involved, the need for immediate federal 
judicial process to resist even slight state repression is 
the more imperious. Dombrowski v. Pfister, 380 IT. S. 479
(1965) ; Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965). 
By means of the present prosecution, the State of Mis­
sissippi is harassing petitioner, punishing her for the past 
exercise of First-Fourteenth Amendment freedoms, de­
terring her future exercise of these freedoms, and, through 
petitioner, stifling and repressing COFO and Negro voter 
registration. So long as this prosecution is pending, state 
power to forbid petitioner’s activities is confidently as­
serted; until the prosecution is disposed of and that power- 
denied, few will be hardy enough to exercise their rights

49 Marsh v. Alabama, 326 U. S. 501, 509 (1946), and opinions 
cited; Prince v. Massachusetts, 321 U. S. 158, 164 (1944); Saia v. 
New York, 334 I T .  S. 558, 562 (1948) ; cf. New York Times v 
Sullivan, 376 U. S. 254, 269-270 (1964).



51

and follow petitioner into the toils of Mississippi justice. 
Years of delay in the vindication of freedoms essential 
to the daily functioning of democracy are the price of 
federal abstention under the exhaustion doctrine.50 “Mean­
while, where the vagueness of the statute”—and its con­
sequent susceptibility to use as an instrument of racial 
harassment—“deters constitutionally protected conduct, 
‘the free dissemination of ideas may be the loser,’ ” Baggett 
v. Bullitt, 377 U. S. 360, 379 (1964), and the long, bitterly 
resisted struggle of the Mississippi Negroes against un­
constitutional disfranchisement will be further prolonged 
in frustration.

Petitioner claims that the statute under which she is 
prosecuted is void and unconstitutional on its face. If this 
is so, the policy against disturbance of state criminal pro­
ceedings is not strong, for Mississippi’s interest in the un­
impeded administration of a statute which it cannot con­
stitutionally apply in any case is surely minimal. On the 
other hand, the high priority which the Court has assigned 
to First Amendment liberties and its traditional concern 
lest the threat of punishment suppress unpopular speech 
give impressive cause for recognition that the very pen-

50 In February and March, 1964, the Supreme Court of Missis­
sippi reached, and affirmed, convictions in harassment prosecutions 
arising out of the May, 1961 Freedom Rides. See Thomas v. State, 
160 So. 2d 657 (Miss. 1964) ; Farmer v. State, 161 So. 2d 159 
(Miss. 1964), and companion cases; Knight v. State, 161 So. 2d 521 
(Miss. 1964). And more than another year was to pass before the 
Supreme Court of the United States reached, and reversed, these 
convictions. Thomas v. Mississippi, 380 U. S. 524 (1965). Compare 
Edwards v. South Carolina, 372 U. S. 229 (1963) (two years from 
arrest to Supreme Court reversal of conviction); Fields v. South 
Carolina, 375 U. S. 44 (1963) (three and a half years from arrest 
to Supreme Court reversal of conviction) • Henry v. Rock Hill, 376 
U. S. 776 (1964) (more than four years from arrest to Supreme 
Court reversal of conviction).



52

deucy of state prosecutions aimed at First Amendment 
conduct and calculated to harass those whose speech and 
association are unpopular and to deter others from speech 
and work in the service of unpopular causes, is itself an 
intolerable clog on First Amendment freedom. Summary 
federal disposition of such prosecutions is the more im­
peratively demanded because the power to suppress speech 
even briefly by harassment is the power to render it ineffec­
tive as an instrument of democratic political action.

Petitioner also claims that the statute is unconstitutional 
as applied to her situation. Such a claim depends on facts, 
and the power of the trier of the facts to find the facts 
adversely to petitioner is the power to destroy her constitu­
tional freedoms. See, e.g., Feiner v. New York, 340 TJ. S. 
315, 319, 321 (1951). The whole purpose of the creation of 
a federal trial jurisdiction in habeas corpus in 1867 was to 
relieve persons claiming federal constitutional or statutory 
protection from resort to unsympathetic state courts, to 
give them a federal forum “where local prejudices are 
frowned down,” see note 28 supra, where their federal 
rights were not crushed by the risk of biased fact-finding. 
For that risk not only works to impede the ultimate vindi­
cation of the federal rights of a state criminal defendant 
who goes to trial in the state courts; the knowledge that 
effective enforcement of these rights is committed to the 
largely unreviewable power of state magistrates and judges 
tends broadly to deter their exercise in the service of un­
popular causes. For these reasons, “ [t]he possibility of 
appellate review by [the Supreme Court of the United 
States] . . .  of a state court determination may not be 
substituted, against a party’s wishes, for his right to liti­
gate his federal claims fully in the federal courts.” Eng-



53

land v. Louisiana State Board of Medical Examiners, 375 
U. S. 411, 417 (1964). After her conviction in the state 
courts, it is clear petitioner will be entitled to trial de novo 
of the facts on federal habeas corpus. See Townsend v. 
Sain, 372 U. S. 293 (1963). Pretrial federal habeas corpus 
relief is no greater disruption of “the relations existing, 
under our system of government, between the judicial tri­
bunals of the Union and of the States,” Ex parte Royall, 
117 U. S. at 251, than post-conviction federal habeas corpus 
relief. The only difference is that the first remedy is timely 
and effective, while the second is not.

(5) Application of the exhaustion doctrine to cases in­
volving federal voting rights.

But there is still a narrower ground on which the decision 
below is wrong and—in this aspect—inconsistent with deci­
sions of this Court. One long recognized exception to the 
ordinary doctrine requiring exhaustion of state judicial 
remedies before resort to a federal court on habeas corpus 
is the principle, recognized in the Royall opinion itself, 
that special circumstances justifying anticipatory federal 
habeas corpus relief are presented in “cases of urgency, 
involving the authority and operations of the General 
Government.” 117 U. S. at 251. The classic case is In re 
Neagle, 135 U. S. 1 (1890), where the Court affirmed the 
discharge of a federal deputy marshal committed for ex­
amination on a California murder charge which, the Court 
found, arose out of a killing committed in the scope of his 
authority as a bodyguard to Mr. Justice Field, who was 
then traveling as a Circuit Justice.

“ . . . But all these questions [of Neagle’s authority 
to kill in protection of Justice Field] being conceded,



5 4

it is urged against the relief sought by this writ of 
habeas corpus, that the question of the guilt of the 
prisoner of the crime of murder is a question to be 
determined by the laws of California, and to be decided 
by its courts, and that there exists no power in the 
government of the United States to take away the 
prisoner from the custody of the proper authorities of 
the State of California and carry him before a judge 
of the court of the United States, and release him with­
out a trial by jury according to the laws of the State 
of California. That the statute of the United States 
[present 28 U. S. C. §2241 (1958)] authorizes and di­
rects such a proceeding and such a judgment in a case 
where the offence charged against the prisoner con­
sists in an act done in pursuance of a law of the United 
States and by virtue of its authority [present § 2241 
(c)(2)], and where the imprisonment of the party is 
in violation of the Constitution and laws of the United 
States [present § 2241(c) (3)], is clear by its express 
language” 135 U. S. at 69-70.

The exercise of the power approved in Neagle’s case was 
approved again in Ohio v. Thomas, 173 U. S. 276 (1899), 
affirming the release on habeas corpus, prior to trial de 
novo on summary appeal from a justice of the peace con­
viction, of the governor of a federal disabled veteran’s 
home prosecuted for serving oleomargarine in the mess 
room in violation of a state statute regulating oleo. Fol­
lowing these decisions, the lower federal courts have ordi­
narily entertained petitions for the writ in advance of state 
trial in cases where federal officers are prosecuted, e.g., 
Reed v. Madden, 87 F. 2d 846 (8th Cir. 1937); In re Fair, 
100 Fed. 149 (C. C. D. Neb. 1900); United States ex rel.



55

Flynn v. Fuellhart, 106 Fed. 911 (C. C. W. D. Pa. 1901); 
United States v. Lipsett, 156 Fed. 65 (W. D. Mich. 1907); 
Ex parte Warner, 21 F. 2d 542 (N. D. Okla. 1927); Brown 
v. Gain, 56 F. Supp. 56 (E. D. Pa. 1944); Lima v. Lawler, 
63 F. Supp. 446 (E. D. Va. 1945), or where private citizens 
acting under federal officers are prosecuted, Anderson v. 
Elliott, 101 Fed. 609 (4th Cir. 1900), dism’d 22 S. Ct. 930 
(1902); West Virginia v. Laing, 133 Fed. 887 (4th Cir. 
1904).61

The principle of Neagle, however, carries beyond such 
cases. In Wildenhus’s Case, 120 U. S. 1 (1887), the Court 
held that federal habeas corpus was appropriately used to 
inquire into the claim that three alien seamen, one bound 
over to a state grand jury on a murder charge and two 
committed as material witnesses to the offense, were ex­
empt from state criminal jurisdiction by virtue of a treaty.51 52 
In In re Loney, 134 U. S. 372 (1890), it affirmed the federal 
circuit court’s discharge of a habeas petitioner held by the

51 Discharge of federal officers has sometimes been denied after 
evidentiary hearing where the evidence did not preponderately 
show that the officer was acting within the seope of his federal 
authority. United States ex rel. Drury v. Lewis, 200 U. S. 1 
(1906); Birsch v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929); 
Castle v. Lewis, 254 Fed. 917 (8th Cir. 1918) ; Ex parte Tilden, 
218 Fed. 920 (D. Ida. 1914). The evidentiary standard is dis­
cussed in Brown v. Cain and Lima v. Lawler, cited in text supra. 
These cases do not reflect hesitation to use the federal writ in 
any case in which the interests of the federal government are 
affected; they indicate only that, in each case, the federal interest 
was not sufficiently shown on the facts. See In re Matthews, 122 
Fed. 248 (E. D. Ky. 1902), and particularly In re Miller, 42 Fed. 
307 (E. D. S. C. 1890) ; cf. Ex parte United States ex rel. An­
derson, 67 F. Supp. 374 (S. D. Fla. 1946), decided on same 
grounds without a hearing.

52 United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 19 (1925), 
puts Wildenhus on the ground that it “concerned the delicate 
relations of [the] . . . government with a foreign nation.” It 
should be noted that the petition was filed by the foreign consul. 
Belief was denied on the merits.



5 6

police sergeant of Richmond, Virginia on a warrant charg­
ing him with perjury in giving his deposition before a 
notary public in the case of a contested election of a mem­
ber of the federal House of Representatives. And in Ex 
parte Wood, 155 Fed. 190 (C. C. W. D. N. C. 1907), the 
circuit court entertained a habeas corpus petition, follow­
ing conviction in a police justice’s court but before appeal 
for trial de novo in the superior court, of a railroad ticket 
agent charged with selling tickets at rates in excess of 
those fixed by a state statute whose enforcement the circuit 
court had previously enjoined. The court held the statute 
unconstitutional, found that open and avowed resistance by 
state officials to its injunction presented a situation in­
volving “ [n] ot only . . . the rights of litigants . . . , but the 
dignity and authority of the Circuit Court of the United 
States as well,” 155 Fed. at 191, and discharged the peti­
tioner. The Supreme Court cited Neagle and affirmed. 
Hunter v. Wood, 209 U. S. 205 (1908).53

The present case falls well within the scope of these de­
cisions. As Loney suggests, nothing more substantially af­
fects “the authority and operations of the General Gov­
ernment” than matters touching the very voting process 
by which officers of the national government are elected. 
Upon the fair and effective operation of the voting process, 
including voter registration, depends the democratic char­
acter of the government established by the Constitution. 
That this is not a matter of mere private rights has been 
legislatively determined: Congress has authorized suit by 
the Attorney General in the public interest to protect the 
franchise. 42 U. S. C. A. §1971(c)-(f) (1963 Supp.), 
amended by Title I  of the Civil Rights Act of 1964, 78 Stat.

53 And see Ex parte Conway, 48 Fed. 77 (C. C. D. S. C. 1891).



5 7

241-242, adding two new subsections. And Congress has 
recognized in 42 U. S. C. A. § 1971(d) (1963 Supp.) that 
the federal district courts are the appropriate forum for 
the litigation of matters affecting the right to vote “without 
regard to whether the party aggrieved shall have exhausted 
any . . . other remedies. . . . ” Against this background of 
federal governmental involvement and express congres­
sional concern, the Court of Appeals for the Fifth Circuit 
has authorized the United States to sue to restrain Mis­
sissippi prosecution of a voter registration worker in cir­
cumstances strikingly similar to those of the present case. 
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), cert, 
denied, 369 U. S. 850 (1962). The same considerations 
which were dispositive in Wood bring the present harass­
ment prosecution of a registration worker within the 
Neagle-Loney principle:

“The foundation of our form of government is the 
consent of the governed. Whenever any person inter­
feres with the right of any other person to vote or to 
vote as he may choose, he acts like a political termite 
to destroy a part of that foundation. A single termite 
or many termites may pass unnoticed, but each dam­
ages the foundation, and if that process is allowed to 
continue the whole structure may crumble and fall even 
before the occupants become aware of their peril. Erad­
ication of political termites, or at least checking their 
activities, is necessary to prevent irreparable damage 
to our Government. On the other hand, the temporary 
postponement of trial of a misdemeanor case before a 
justice of the peace causes either no injury or very 
slight injury. . . . ” 295 F. 2d at 784-785.



CONCLUSION

The writ of certiorari should be granted to review and 
reverse the judgment of the Court of Appeals.

Respectfully submitted,

Of counsel:

H enry  M. A ronson

538% North Farish Street 
Jackson, Mississippi 39202

J ack Greenberg 
J ames M. N abrit, III 
M elvyn Z arr

10 Columbus Circle
New York, New York 10019

A n th o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

R. J ess B rown 
Carsie A. H ale 
J ack H . Y oung



A P P E N D I C E S



APPENDIX I

Order

[Caption omitted]

Upon consideration of the verified petition for writ of 
habeas corpus, it is,

Or d er ed :

That the petition be and it hereby is denied for failure to 
exhaust available state remedies. 28 U. S. C. § 2254; In re 
Wyckoff, 196 F. Supp. 515 (S. D. Miss. 1961), 6 Race Rela­
tions L. Rptr. 786, petition for immediate hearing and for 
leave to proceed on original papers denied, id. at 793 (5th 
Cir. 1961), petition for habeas corpus denied, id. at 794 
(Circuit Justice Black, with whom Mr. Justice Clark con­
curs, 1961); Brown v. Ray field, 320 F. 2d 96 (5th Cir. 1963), 
cert, denied 375 U. S. 902 (1963).

This the 5th day of January, 1965.

/ s /  Claude F. Clayton 
Claude F. Clayton, 
District Judge



2a

APPENDIX II

I n  th e

UNITED STATES COURT OF APPEALS 
F or t h e  F if t h  C ircuit 

No. 22241

J an H illegas,

—versus—
Appellant,

J oe S ams, J r., County Attorney for Lowndes County, 
Mississippi, et al.,

Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi

(August 16, 1965.)

B e f o r e  :

J ones and B row n , Circuit Judges, and 
S h e e h y , District Judge.

J ones, Circuit Judge: The appellant, Jan Hillegas, 
brought a habeas corpus proceeding in the United States



3a

District Court for the Northern District of Mississippi 
claiming she was detained by the appellees unlawfully 
and in violation of Federally guaranteed rights. The facts 
herein recited are as set forth in her petition and, for the 
purposes of the ease, are assumed to be true. The appellant 
is a white woman, twenty-one years of age, and went to 
Lowndes County, Mississippi from Syracuse, New York. 
In Mississippi she was associated with the Congress of 
Federated Organizations (COFO) in assisting Negroes in 
their efforts to register to vote. COFO arranged for her 
meals and lodging. Such money as she needed was sup­
plied by her mother. While in the county courthouse of 
Lowndes County at Columbus, Mississippi, sitting on a 
bench with two other COFO workers, the appellant and her 
companions were told by a deputy of the appellee, Sheriff 
Taylor, to leave the courthouse and that if they did not 
leave he would arrest them. They did not leave and he 
arrested them, took them to the Sheriff’s office where they 
were told they were charged with vagrancy. Appellant 
and her companions attempted, by a show of currency and 
other means, to persuade the deputy sheriff that they were 
not vagrants. Their efforts produced no results and they 
were confined in the county jail. Other efforts, equally 
unavailing, were made to procure appellant’s release. She 
then filed a petition for habeas corpus in the United States 
District Court which was denied. This appeal is from the 
order of the district court, which based its order upon fail­
ure to exhaust available state remedies. No effort was 
made to obtain relief in the courts of Mississippi. Nothing 
is here shown to call for the application of a different rule 
than was announced and applied in Brown v. Bayfield, 5th 
Cir. 1963, 320 F. 2d 96, cert. den. 375 IT. S. 902, 84 S. Ct.

O pin ion



O pin ion

191, 11 L. Ed. 2d 143, and in the ease of In re Wykcoff, 
6 Race Eel. L. Rep. 786, 793, which is discussed in Brown 
v. Ray field. The principles announced in those cases sus­
tain the decision of the district court and its judgment is

A ffirm ed .

B rown , Circuit Judge, c o n c u rr in g :

I concur, but solely because Brown v. Bayfield, so long 
as it stands, squarely rules this case. But, with deference, 
that decision, the victim of inadequate presentation, is, 
I think, wrong and ought to be reversed.

Petitioner Hillegas’ petition, seeking federal habeas 
corpus relief pursuant to 28 USCA § 2241, alleges in un­
equivocal, factually detailed, language that she is held1 
in state custody in violation of her federal constitutional 
right. Applying Conley v. Gibson, 1957, 355 U. S. 41, 78 
S. Ct. 99, 2 L. Ed. 2d 80, as we must, this means that the 
Court holds that prosecution and trial by a state to ef­
fectuate unconstitutional race discrimination is not an 
“extraordinary” case. I can imagine nothing more extraor­
dinary.

Parts I-VI of the petition describe Miss Hillegas, her 
resources, her work for COFO in Lowndes County in as­
sisting Negroes in confirming their voting rights in the 
face of past discrimination by the County Registrar under 
the color of Mississippi law and constitutional provisions, 
noting particularly that the Lowndes County Registrar 
was a named party in the Government’s massive assault 
on these provisions and practices in United States v. Mis­
sissippi, S. D. Miss. (3-Judge), 1964, 229 F. Supp. 925,

1 She was subsequently released on bond.



5a

O pin ion

reversed, 1965,----- U. S .------, ----- - S. Ct.----- , 13 L. Ed. 2d
717. Then in Part VII, it is specifically asserted: (1) If 
the Mississippi vagrancy statute2 is construed to apply to 
her conduct, it would be violative of her “freedom of speech, 
of association and assembly (U. S. C onst. Amends. I, XIV), 
of her federal privilege to disseminate information per­
tinent to registration and voting in national elections, and 
to encourage and support Negro citizens of Mississippi to 
register and vote in national elections (IT. S. Const., Amend. 
XV),” and (2) if the vagrancy statute is construed to save 
its constitutionality, “there is no evidence to support the 
charge * * * consistently with due process of law (U. S. 
Const., Amend. XIV).” 3

It is next asserted that her arrest and detention is for 
the purpose of deterring her from exercising the consti­
tutional rights previously mentioned, and Negro citizens 
from seeking to secure their constitutional franchise. In 
Part VIII, all of this is said to be pursuant to a state wide 
practice of segregation, subscribed to by all public officials 
—-including state judges who are popularly elected. She 
candidly and expressly acknowledges that no attempt was 
made to exhaust state remedies, maintaining this to be 
unnecessary in light of the facts alleged.

2 Miss. Code Ann. § 2666 :
“The following persons are and shall be punished as vagrants, 
viz: * # *

“ (c) All persons able to work, having no property to support 
them, and who have no visible or known means of fair, honest, 
and reputable livelihood. * * * ”

3 The authorities supporting (2) as a serious constitutional issue 
have been recently reviewed by Chief Justice Warren in his dissent 
from the Supreme Court’s refusal to hear Drew7 v. Maryland, 1965,
----- U. S .------ , ----- S. C t.-------, ----- L. Ed. 2 d ------- [No. 1010,
June 1, 1965, 33 L. W. 3385],



6 a

The District Court disagreed and, without holding an 
evidentiary hearing, dismissed for lack of exhaustion, 
relying on In re Wycoff and Brown v. Ray field, cited in 
the Court’s opinion, supra. Both of those cases held that 
a case for the exception to the exhaustion requirement of 
28 USCA § 2254 had not been made out. From an exam­
ination of these cases, and particularly a close reading of 
the briefs filed in Brown, it is apparent that the Court 
did not there have before it the same rich historical ma­
terials on the intent of Congress in passing the Act of 
1867 (the forerunner of § 2241) and the early court de­
cisions interpreting it, relative to the extent of the avail­
ability of pre-trial federal habeas relief, set forth in Ap­
pellant’s lengthy, scholarly, completely annotated brief filed 
by Professor Anthony Amsterdam.4

How Wycoff ever got into Brown is a mystery.
Wycoff is simply inapposite. Being an application for 

post conviction habeas relief, the case was put and argued 
as to whether that case came within the exception to the 
exhaustion requirement of § 2254—“that there is either 
an absence of available State corrective process or the 
existence of circumstances rendering such process ineffec­
tive to protect the rights of the prisoner.'’ Section 2254, 
however, has nothing to do with our case. This is so be­
cause that section, in requiring exhaustion as a general 
rule, has to do only with those “in custody pursuant to 
the judgment of a State court * * * .” It necessarily relates 
solely to post-conviction habeas.

4 These materials are substantially duplicated in Professor Am­
sterdam’s recent article, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Rights: Federal Removal and Habeas Corpus 
Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev 793 
805-912 (1965).

O pin ion



7a

Here we have a pre-trial petition, uncluttered by any 
state court judgment. Statutory restrictions on post-con­
viction habeas are not really pertinent. But this is where 
Brown v. Bayfield complicates the matter. For that case, 
as in the one before us, involved a pre-trial application 
for habeas relief for an arrest and confinement and under 
similar circumstances.5 Belying, as any good Court ought 
to do, on the earnest, but historically incomplete presen­
tations of counsel who mistakenly urged that the case was 
one coming within the exception to § 2254 (applicable only 
to post conviction), the Court followed Wycoff holding 
that under § 2254, exhaustion was necessary. Examining 
it wholly from the typical exhaustion point of view, the 
Court stopped short of considering whether the petitioner 
should be allowed to make proof in an appropriate hear­
ing of his allegation that the prosecution was instituted 
for a racially discriminatory purpose, and that he could 
not get a fair trial.6

5 The petition in Brown v. Bayfield alleged that petitioners, while 
walking single file carrying signs protesting segregation, were 
arrested and detained for “parading without a permit.”

6 This is quite different from the approach taken by this Court 
with regard to removal, 28 USCA § 1443(1), whereunder similar 
allegations are often made. In Peacock v. City of Greenwood,
Mississippi, 5 Cir., 1965, -----  F. 2 d ----- [No. 21655, June 22’
1965], holding that a petition for removal alleging discriminatory 
application of a facially valid state statute (same issue as here) 
was sufficient for removal, entitling the petitioner to establish 
factually his charge that the prosecution was undertaken for 
racially discriminatory purposes. (See discussion of Rachel v. 
State of Georgia, infra.) Emphasizing that the decision went only 
to the right to be heard on the jurisdictional facts, the Court stated :

“Of course, such allegations must be proved if challenged. 
Consequently, removal based on misapplication of a statute 
may fail for want of proof. However, we deal here only with 
what allegations are sufficient to prevent remand without a

O pin ion



8a

Professor Amsterdam points out the exhaustion require­
ment relative to pre-trial habeas petitions is a court-made 
doctrine flowing from Ex parte Roy all, 1886, 117 U. S. 241, 
-----  S. Ct. ----- , -----  L. Ed. ----- , designed to curb pre­
trial abuses of the writ. He argues convincingly that in 
spite of Royall and its progeny, Congress, in passing the 
Habeas Act in 1867, intended and the Courts have accorded, 
substantial utilization of the writ as a pre-trial remedy— 
in extraordinary circumstances. The question, therefore, 
is whether the category of cases which Professor Amster­
dam advisedly terms “civil rights cases,” 7 or perhaps more 
narrowly those where the petitioner is, contrary to his 
federal constitutional rights, being prevented from assist­
ing in the ongoing of an important federal interest—such 
as voter registration—is the kind of extraordinary case, 
as to which Congress intended and the courts have allowed, 
pre-trial federal habeas relief. This question, far more 
complicated and serious than made to appear in Brown v. 
Ray field, deserves a considered answer not in the darkness 
of that unillumined presentation but in the full light of 
these historical-juridical materials which are a classic of 
legal literature though unpersuasive here.

O pin ion

hearing.’̂  The allegation was “that Mississippi Code § 2296.5 
[obstruction of public streets] is being applied against [the 
petitioners] _ for purposes of harassment, intimidation, and 
as an impediment to their work in the voter registration drive, 
thereby depriving them of equal protection of the laws.” 
-----  F. 2d at ----- .

But as in Rachel, determination (after hearing) that the case 
is removable automatically resolves the issue and forbids the state 
criminal trial. This allegation is, of course, precisely made in the 
case before us.

7 See Amsterdam, supra, note 3, at 804.



9a

Any such reassessment will demonstrate that the same 
factors are at work in parallel systems of effective federal 
redress against state inspired, state caused, state per­
mitted, instances of unequal treatment.

Dombrowshi v. Phister, 1965,----- TJ. S .------ , —— S. Ct.
----- , 14 L. Ed. 2d 22, involves the role of the injunction
pursuant to 42 USCA § 1983. There plaintiffs sought to 
enjoin the anticipated enforcement of state subversive 
activity control statutes against their free expression ac­
tivities aimed at the advancement of Negro civil rights. 
Must we not say here, as did the Supreme Court in Dom­
browshi in distinguishing the usual non-injunction rule 
of Douglas v. City of Jeanette, 1943, 319 U. S. 157, 63 S. Ct. 
877, 87 L. Ed. 1324, that “the allegations in this complaint 
depict a situation in which defense of the State’s criminal 
prosecution will not assure adequate vindication of con­
stitutional rights. They suggest that a substantial loss 
or impairment of freedoms of expression will occur if 
appellants must await the State court’s disposition and 
ultimate review in this Court of any adverse determina­
tion. These allegations, if true, clearly show irreparable 
injury. * # * Because of the sensitive nature of constitu­
tional expression, we have not required that all of those 
subject to overbroad regulations risk prosecution to test 
their rights.” 14 L. Ed. 2d at 28. In Dombrowshi, as here, 
the motive for the prosecution was challenged, and with 
the factor present in the allegations that the arrest, con­
finement and prosecution is really part of a scheme of 
harassment, the prospect of eventual success in the state 
courts or correction in the Supreme Court is an inadequate 
protection of the constitutional right to free expression. 
14 L. Ed. 2d 29.

O pin ion



10a

In 1961 we took similar action in United States v. Wood, 
5 Cir., 1961, 295 F. 2d 772, where prosecution of the alleged 
assailant was enjoined because of its disruptive effect on 
others then seeking to exercise constitutional rights (voter 
registration).

More recent is Rachel v. State of Georgia, 5 Cir., 1965, 
342 F. 2d 336, involving the civil rights removal statute, 28 
USCA § 1443. Since a “statute”, as construed by this Court, 
was alleged to be one of the causes of discrimination, the 
case came within the traditional grounds for removal, Ken­
tucky v. Powers, 1906, 201 U. S. 1, 26 S. Ct. 387, 50 L. Ed. 
633; State of Virginia v. Rives, 1879,100 U. S. 313, 25 L. Ed. 
667. Going even further is Peacock v. City of Greenwood, 
Mississippi, June 22, 1965, note 6, supra, in which we held 
“that a good claim for removal under §1443(1) is stated 
by allegations that a state statute has been applied prior 
to trial so as to deprive an accused of his equal civil rights 
in that the arrest and charge under the statute were ef­
fected for reasons of racial discrimination.” —.  F. 2d
a t ----- .

And this was given full voice by us in Cox v. Louisiana,
5 Cir., June 29, 1965,----- F. 2d------  [No. 22657], in which
we granted a stay pending appeal to prevent state prose­
cution charged to have been initiated to “harass and punish 
citizens for the exercise of their constitutional rights. * * * ” 
----- F. 2d a t ------ .

Pointing to the congressional view and the receding 
scope we give to the Douglas v. City of Jeanette comity 
concept in the face of the use of the laws machinery as 
the engine of racial denials is Dilworth v. Riner, 5 Cir., 
1965, 343 F. 2d 226. In an extended opinion authored by

O pin ion



11a

Judge Bell, we declared that the Civil Bights Act of 1964 
overrode the general comity statute, 28 USCA § 2283, to 
permit injunctions against state prosecutions for actions 
which were constitutionally protected.

Thus we have now passed the point where Federal Courts 
can refuse to hear evidence in support of a factually de­
tailed claim that a state criminal prosecution has been ini­
tiated to effectuate racially motivated denial of constitu­
tional rights. By civil injunction and removal we recognize 
that this much interference with state criminal prosecu­
tions is the price we pay under the Supremacy Clause.8

In doing so we conclude that the situation is “extraor­
dinary” and therefore calls for extraordinary relief. That 
the Great Writ which is always free of technical impedi­
ments is now relegated to a second class role is a surprise. 
All the more is my surprise that we can hold that deliberate, 
purposeful use by the State of its criminal machinery to 
wreak denials of constitutional rights is not an “extraor­
dinary” case.

Brown v. Ray field may be the latest, but it cannot be the 
last word on this vital question.

O pin ion

81 recognize that with removal and civil injunction being less 
peremptory, a Court might well defer action on a habeas petition 
pending use of these flexible devices. Likewise, availability of 
such devices might, after a hearing to resolve the truth of the 
charges, permit some discretion in denial or deferment of the writ.



1 2 a

UNITED STATES COURT OF APPEALS 
F or t h e  F if t h  C ircuit  

October Term, 1964 
No. 22241

D. C. Docket No. EC-65-L

J an H illegas,

Appellant,
—versus—

J oe S ams, J r ., County Attorney for Lowndes County, 
Mississippi, et al.,

Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi

B e f o r e  :

J ones an d  B row n , Circuit Judges, an d  
S h e e h y , District Judge.

J udgment

This cause came on to be heard on the transcript of the 
record from the United States District Court for the North­
ern District of Mississippi, and was argued by counsel;



13a

Judgment

On consideration  w h e r e o f , It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be, and the same is hereby, affirmed;

It is  f u r t h e r  ordered and  adjudged  that the appellant, 
Jan Hillegas, be condemned to pay the costs of this cause 
in this Court for which execution may be issued out of the 
said District Court.

B r o w n , Circuit Judge, Concurs Specially

August 16, 1965

Issued as Mandate:



1 4 a

I n  th e

UNITED STATES COURT OF APPEALS 
F ob t h e  F if t h  Circuit  

No. 22241

J an H illegas,

Appellant,
—versus—

J oe S ams, J r ., County Attorney for Lowndes County, 
Mississippi, et al.,

Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi

On P etitio n  for R ehearing  

(September 27, 1965)
B e f o r e :

J ones a n d  B row n , Circuit Judges, an d  
S h e e h y , District Judge.

P er Cu r ia m :

It is  ordered That the petition for rehearing in the above 
entitled and numbered cause be, and the same is hereby 
D e n ie d .



15a

APPENDIX III

P etitio n  foe W kit  of H abeas Corpus W it h  M otion foe 
S tay of S tate Court P roceedings

[Caption omitted]

Filed January 5, 1965

To: Honorable Claude F. Clayton, District Judge, United 
States District Court for the Northern District of 
Mississippi:

Petitioner’s verified petition and motion respectfully aver 
that;

I.
The jurisdiction of this court is invoked under 28 U. S. C. 

§ 2241 (1958) to release petitioner Jan Hillegas from the 
custody of respondents Joe Sams, Jr., County Attorney of 
Lowndes County, Mississippi; Penn Taylor, Sheriff of 
Lowndes County, Mississippi and Custodian of the County 
Jail of Lowndes County, Mississippi, who now hold peti­
tioner confined in that jail, in the city of Columbus, Missis­
sippi, within the Northern District of Mississippi, in viola­
tion of the Fourteenth and Fifteenth Amendments to the 
Constitution of the United States. Pursuant to 28 U. S. C. 
§ 2251 (1958), the court is authorized to stay state proceed­
ings against petitioner for matters involved in this habeas 
corpus proceeding.

rr.

On December 28, 1964, petitioner was arrested by re­
spondent Taylor or his deputies and agents. Respondents



now hold petitioner under authority of an affidavit and war­
rant charging petitioner with the offense of vagrancy, Miss. 
Code A n n . §2666 (Eecomp. Vol. 1956). A copy of the 
affidavit and warrant has been refused petitioner’s em­
ployer by respondent Taylor. Petitioner is held for appear­
ance and trial before the justice of the peace of Lowndes 
County, Mississippi, January 6, 1965, on the charges set out 
in the affidavit and warrant. Respondent Taylor has set 
bail in the amount of $200. Petitioner has not made bond.

III.
(A) Petitioner is a 21-year-old girl, white, a college 

graduate, domiciled in Syracuse, New York. The Council of 
Federated Organizations (hereafter COFO) is an associa­
tion of civil rights and local citizenship groups working in 
Mississippi to achieve by peaceful and lawful means the 
equal civil rights of Negroes and all persons and to educate, 
assist and encourage Negroes to register and vote in local, 
state and national elections free of racial discrimination and 
racial disenfranchisement forbidden by the Fourteenth and 
Fifteenth Amendments. COFO has employed, does employ 
and will employ petitioner continuously as a voter registra­
tion worker in the State of Mississippi. (Allegations in this 
part III that anything “has” been done mean that it has 
been done at all times after the date of petitioner’s entry 
into Mississippi, including but not limited to the period 
prior to her arrest, December 28, 1964). Petitioner’s duties 
for COFO consist of interviewing Negro citizens of Missis­
sippi for the purpose of encouraging, assisting and educat­
ing them to register to vote, of accompanying Negroes to

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the place of voting registration for the purpose of support­
ing their efforts to register free of racial discrimination, of 
observing conduct by state officials or other persons calcu­
lated to racially disenfranchise Negroes in violation of the 
Fourteenth and Fifteenth Amendments, and of participat­
ing in the administration of CQFO’s program having the ob­
jectives described above.

(B) In connection with her employment by COFO, peti­
tioner is presently resident in the State of Mississippi for 
a period of more than six months.

(C) In consideration of and partial payment for her 
work, COFO has arranged that petitioner live without ex­
pense to herself in the home of Reverend Wheadon, a well- 
known, respected retired Negro minister in Columbus, Mis­
sissippi. Prior to and at the time of her arrest, December 
28,1964, petitioner was living in Reverend Wheadon’s home, 
802 N. 14th Street, Columbus, Mississippi. Her accommoda­
tions in Reverend Wheadon’s home have remained avail­
able to her following her arrest, and she would presently 
be living there but for her confinement by respondent.

(D) Also in consideration of and partial payment for 
her services, COFO has supplied, does supply, and will 
supply petitioner all her meals without expense to herself 
during her residence in Mississippi, and further has as­
sumed, does assume and will assume responsibility for sup­
plying petitioner during her stay in Mississippi her support, 
maintenance, and reasonable livelihood, including all things 
necessary to sustain her as a reputable member of the com­
munity.

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(E) Independently of COFO, petitioner’s mother, Mrs. 
Estella Hillegas, of Syracuse, New York, has supplied, does 
supply, and will supply petitioner with money sufficient to 
sustain her as a reputable member of the community, and 
has assumed, does assume, and will assume responsibility to 
supply petitioner sufficient income for her support and main­
tenance during her residence in Mississippi.

IY.
(A) December 28, 1964, in the course of her employment 

for COFO, petitioner was present in the county courthouse 
for Lowndes County in Columbus, Mississippi, together 
with two other COFO workers, whose duties were similar 
to petitioner’s, Dennis Gaston and Dove Green. Petitioner, 
Gaston and Green were engaged in directing Negroes who 
desired to register to vote in local, state and national elec­
tions into the office of the county registrar for Lowndes 
County; in assuring such Negroes, to the best of their 
ability, against intimidation and harassment designed to 
dissuade Negro voter registration by reason of race in 
violation of the Fourteenth and Fifteenth Amendments and 
42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C. A, 1983, 1985 
(1958); and in interviewing Negroes who had presented 
themselves to the county registrar for voting registration, 
for the purpose of ascertaining whether the registrar was 
complying with his obligation under the cited provisions of 
federal law to register such Negroes without discrimination 
by reason of race.

(B) While engaged in the foregoing activities, and con­
ducting themselves at all times in a lawful, quiet and orderly

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manner, petitioner, Gaston and Green were seated on a 
bench or seat outside the office of the Circuit Clerk in the 
county courthouse. Circuit Clerk Wiggins came out of the 
office and asked what they were doing there. They replied 
that they were there to aid and give moral support to the 
Negroes who were attempting to register to vote. Circuit 
Clerk Wiggins told them to make themselves comfortable.

(C) Shortly thereafter, petitioner, Gaston and Green 
were approached at the same place by a Deputy Sheriff of 
Lowndes County, an agent of respondent Taylor, whose 
name is believed to be Herrin and who will hereafter be so 
referred to. Herrin asked petitioner and her companions 
the same questions which they had been asked by Circuit 
Clerk Wiggins and they gave him the same answer. Herrin 
then told them that they would have to leave. They replied 
that they had a right to remain in the courthouse. Herrin 
said that if they did not leave he would arrest them. Then, 
without giving them an opportunity to move or reply, he 
told them to come with him. They asked if they were under 
arrest. He said they were. They asked for what offense. 
Herrin said for creating a public disturbance; that the 
people in the offices were complaining that they could not 
work with the three COFO workers there.

(D) Petitioner, Gaston and Green accompanied Herrin to 
the Sheriff’s office in the courthouse. There they were told 
that they were charged with vagrancy or suspicion of va­
grancy. Each of the three workers offered to show Herrin 
a form, hereafter referred to as a vagrancy form, prepared 
by COFO for the purpose of identifying COFO employees.

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Petitioner’s vagrancy form contained her name and ad­
dress, and stated the fact of her employment by COFO. Pe­
titioner also offered to show Herrin an amount of paper 
money, but Herrin refused to look at the vagrancy forms of 
any of the three workers or at petitioner’s money. Peti­
tioner, Gaston and Green were thereupon charged with 
vagrancy and incarcerated in the Lowndes County Jail on 
that charge.

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Y.
On or about December 29, 1964, Cephas Hughes, an au­

thorized representative of COFO, accompanied by Reverend 
Tom Lasswell and Rev. Albert Cohen, went to respondent 
Sams in Sams’ office to attempt to obtain the dropping of 
the vagrancy charges against the three arrested COFO 
workers. After Sams had been informed that Gaston was a 
full time student in California and was planning to leave 
Mississippi for California on the following day, Sams 
agreed to drop charges against Gaston, phoned the jail and 
ordered Gaston’s release. With respect to petitioner, 
Hughes informed Sams that petitioner was a New York 
domiciliary, a college graduate, and a COFO employee; 
that she lived in the neighborhood with Reverend Wheadon, 
and that her meals and necessaries were supplied by COFO. 
Hughes also showed Sams a wire, a facsimile of which is 
attached as Exhibit I to this petition, dated December 28, 
1964, from Mrs. Estella Hillegas of Syracuse, New York, 
stating that as petitioner’s mother Mrs. Estella Hillegas 
had assumed and would continue to assume responsibility to 
supply her daughter all her decent needs as a member of



21a

the community while in Mississippi. After being so in­
formed, Sams refused to drop charges against petitioner. 
Hughes similarly gave Sams information that Green was a 
COFO employee whose lodging, board and necessaries were 
supplied by COFO but Sams similarly refused to drop 
charges against Green. Hughes thereupon went to respond­
ent Taylor at the jail and asked for a copy of the affidavits 
and warrants against petitioner and Green, which request 
respondent Taylor refused.

VI.
(A) Now and during many years past, the registrar 

of Lowndes County is discriminatorily denying and has 
discriminatorily denied Negroes the right to register to 
vote by reason of their race. He has done so under color 
of Miss. Const., art, 12, §§ 241-A and 244, provisions which 
on their face and in their discriminatory application by him 
violate the Fourteenth and Fifteenth Amendments and the 
commands of 42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C. 
§§ 1983, 1985 (1958). The United States of America has 
brought suit against the registrar of Lowndes County and 
others to enjoin these discriminatory and unconstitutional 
practices, which suit is presently pending in the Supreme 
Court of the United States. United States v. Mississippi, 
229 F. Supp. 925 (S. H. Miss. 1964), probable jurisdiction 
noted, 377 U. S. 988 (1964). In 1961, the voting age popula­
tion of Lowndes County was: White, 16460; Negro, 8362. 
There were 5869 registered white voters and 63 registered 
Negro voters. These figures have not significantly changed 
since that date.

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(B) It is the purpose of COFO and of petitioner as an 
employee of COFO to assist, encourage and educate Negro 
citizens and residents of Lowndes County to register to 
vote and vote in local, state and national elections.

VII.
Petitioner is presently in custody in violation of the 

Fourteenth and Fifteenth Amendments because:
(A) the charge on which she is held is unconstitutional 

as applied to petitioner, for (1) is Miss. Code A n n . § 2666 
(Becomp. Vol. 1956) applies to persons engaged in the ac­
tivities in which petitioner is engaged, and supported and 
maintained as petitioner is supported and maintained, it 
deprives her of freedom of speech, of association and as­
sembly (U. S. Const., Amends. I, XIV), of her federal 
privilege to disseminate information pertinent to registra­
tion and voting in national elections, and to encourage and 
support Negro citizens of Mississippi to register and vote 
in national elections (TJ. S. Const., Amend. XV), while (2) 
if Miss. Code A n n . § 2666 is construed and applied so as to 
save its constitutionality, there is no evidence to support the 
charge against petitioner consistently with due process of 
law (U. S. Const., Amend. XIV).

(B) petitioner’s detention and prosecution has the design 
and effect of harassing and punishing petitioner for at­
tempting to assist Negroes to register to vote, of deterring 
and intimidating petitioner from continuing to exercise her 
rights described para. IV(A) supra, and of deterring Negro 
citizens of Lowndes County from attempting to register to

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2 3 a

vote, thereby depriving such Negroes of the franchise by 
reason of race, in violation of the Fifteenth Amendment and 
42 U. S. C. A. § 1971 (1963 Supp.), 42 U. S. C. §§ 1983, 1985 
(1958).

(C) petitioner was arrested and is now detained without 
probable cause to believe that she was committing or had 
committed any offense, in violation of the Fourth and Four­
teenth Amendments.

(D) on information and belief, the Lowndes County Jail, 
pursuant to Miss. Coxst., § art, 11, § 225 and Miss. C ode 
Ann. §§4259, 7965 (Eepl. Vol. 1956), maintains segregated 
facilities for the white and Negro races, in violation of the 
Fourteenth Amendment.

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VIII.

Petitioner has made no attempt to exhaust her state rem­
edies. She need not do so because the prosecution against 
her implicates the authority and operations of the federal 
government by harassing petitioner in her voter registra­
tion activities described above and by deterring her from 
continuing those activities and Negro citizens from attempt­
ing to register to vote. This deterrence and harassment is 
pursuant to a state-wide policy of the officials and public 
agencies of the State of Mississippi to maintain racial dis­
crimination in all phases of life in violation of the Four­
teenth Amendment and in voting in violation of the 
Fifteenth and Seventeenth and Art I, § 2 of the federal Con­
stitution. Such a policy is evident on the face of the statutes 
of the State of Mississippi which this court may judicially



2 4 a

notice, particularly Miss. Code Asnsr. §§4065.3, 2056(7) 
(Repl. vols. 1956), and itself implicates the authority and 
operations of the federal government. Further, state rem­
edies are ineffective to protect petitioner’s rights be­
cause the pendency of her prosecution in the state courts 
dies in diorn intimidates and represses her in the exercise 
of her First, Fourteenth and Fifteenth Amendment free­
doms and intimidates and represses Negro citizens of 
Lowndes County in the exercise of their voting rights under 
Art. I, § 2 and the Fifteenth and Seventeenth Amendments. 
Judicial remedies in the Mississippi courts are also ineffec­
tive because the judges of those courts, and particularly the 
justice of the peace and circuit judge of Lowndes County 
are elected officials politically responsible to an electorate 
from which Negroes have been systematically excluded and 
which is hostile to Negro voter registration and to civil 
rights activity generally.

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IX.

No previous application to this court or to any federal 
court or judge has been made for a writ of habeas corpus on 
the grounds alleged herein.

W herefore, p e ti t io n e r  p ra y s  th e  c o u rt a s  fo llow s:

(1) that the court forthwith issue the writ or a rule to 
show cause, in compliance with 28 U. S. C. § 2243, para. 1 
(1958), returnable within as short a time as may appear 
practicable, and in no event later than three days hence, in 
compliance with 28 U. S. C. § 2243, para. 2 (1958);



25a

(2) that a hearing forthwith be set for as early a date 
as pacticable, and in no event later than five days after the 
return day in compliance with 28 U. S. C. §2243, para. 4 
(1958);

(3) that after hearing this court release petitioner from 
her unconstitutional confinement by respondents and dis­
charge her from all further prosecution in any Mississippi 
court for the matters involved in this petition; and

(4) that pending final disposition of this proceeding,
(A) this court release petitioner on her own recognizance 

or on such reasonable bail as the court may set; and
(B) pursuant to 28 U. S. C. § 2251 (1958) this court stay 

all proceedings in any Mississippi court against petitioner 
for the matters involved in this petition.

/ s /  H enry  A ronson 
Henry Aronson 
507% N. Farish Street 
Jackson, Mississippi

/ s /  A n th o n y  G. A msterdam 
Anthony G. Amsterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104 

Counsel for Petitioner
Of Counsel:
Jack H. Young 
Carsie A. Hall 
R. Jess Brown

(Duly verified.)

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26a

E x h ib it  I A nnexed  to P etitio n

WESTERN UNION 
TELEGRAM

NSA007 SYA005 1964 DEC 29 AM 8 08
SY LLB049 NL PD=SYRACUSE NY 28=
WILLIE ERVIN, PROJECT DIRECTOR^

1212 17 ST NORTH (DLR DONT PONE) 
COLUMBUS MISS=

TO WHOM IT MAY CONCERN I THE MOTHER OF 
JAN HILLEGAS HAVE ASSUMED AND WILL CON­
TINUE TO ASSUME FULL RESPONSIBILITY FOR 
PROVIDING MY DAUGHTER JAN HILLEGAS ALL 
HER DECENT NEEDS TO MAINTAIN HER AS A 
RESPECTABLE MEMBER OF THE COMMUNITY OF 
COLUMBUS MISSISSIPPI OR ANY OTHER PLACE 
SHE MAY DESIRE TO RESIDE=

MRS. ESTELLA H. HILLEGAS.

N otice oe M otion

P lease T ake N otice that the undersigned attorney for 
petitioner will bring the attached motions for bail and for 
stay of state court proceedings before the United States 
District Court for the Northern District of Mississippi, 
Eastern Division, at the time of filing the attached petition 
for writ of habeas corpus, on the 5th day of January, 1965 
at 1 :30 (p.m.), or as soon thereafter as counsel can be heard.

/ s /  H enby  A bonson

Counsel for Petitioner



27a

M otion foe B ail and foe S tay 
of S tate Couet P eoceedings

Upon the verified petition for habeas corpus and the at­
tachments thereto, petitioner respectfully moves the court:

(1) to order petitioner’s release forthwith on her own re­
cognizance or reasonable bail during the pendency of this 
proceeding and until its final disposition;

(2) to stay proceedings against petitioner in any state 
court of Mississippi for any matter involved in this petition 
during the pendency of this proceeding and until its final 
disposition.

Respectfully submitted,

/ s /  H enby  A eonson

Counsel for Petitioner

F obm Oedee 

[Omitted]



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