420 



HABEAS CORPUS. 



would be a wise adjustment of the vexed ques- 

 tions. 



Judge Bnsteed thereupon delivered the fol- 

 lowing opinion : 



The answer of Gen. Woods to the warrant of at- 

 tachment issued in this matter is satisfactory. Situ- 

 ated as this officer is, and with the explanations 

 offered for his course, he ought to be excused for his 

 refusal to obey the mandate of the Court. The first 

 duty of a soldier is obedience to orders, and it now ap- 

 pears General Woods has acted in strict and discipli- 

 nary subordination to those who have a lawful right 

 to require his literal compliance with their commands. 

 For this he should be praised by them rather than 

 censured by me. The attachment against him will 

 therefore be vacated, and without costs. But while 

 acquitting Gen. Woods, I cannot, even by implica- 

 tion, consent to what I consider an encroachment 

 of the Executive Department of the Government 

 upon one of its coordinate branches. It is worse 

 than useless for the Courts to attempt the exercise 

 of their functions if the President not only allows but 

 directs disobedience to their authority and process. 



In the language of a learned jurisconsult: " The 

 citizen lives under the protection and is subject to the 

 requirements of a written fundamental law. No de- 

 partment of the National or any State Government can 

 lawfully act otherwise than according to the powers 

 conferred or the restrictions imposed by that instru- 

 ment. If the citizen believes himself to be aggrieved 

 by some action of either government which he sup- 

 poses to be in violation of the Constitution, and his 

 complaint admits of judicial investigation, he must 

 be heard on that question, and it must be adjudicated, 

 or there can be no administration of the laws worthy 

 of the name of justice." 



I frankly own the embarrassment put upon me by 

 the action of the President in this case. His procla- 

 mation of July, 1865, appointing a Provisional Gov- 

 ernor for this State, inter alia, provides that the 

 District Judge of the United States shall proceed to 

 hold courts in this State, in accordance with the acts 

 of Congress. 



Before I left New York, in November last, I agreed 

 with Gov. Parsons, who was then in that city, about 

 to go to Washington, that he should inform the Pres- 

 ident of my purpose to open the courts, and that if 

 in the opinion of the President it was not discreet to 

 do so, upon my receiving a telegram to that effect 

 from Gov. Parsons, directed to me at Mobile, I would 

 postpone holding them until such time as the Presi- 

 dent should determine the civil authority might, with 

 advantage to the public interests, be put in course 

 of exercise here. I deemed it my duty, as it was my 

 pleasure, to secure, so far as I could, the utmost har- 

 mony of action between the various departments of 

 the Government. 



Upon my arrival in Mobile, I received a telegram 

 from Gov. Parsons, dated at Washington, which runs 

 as follows : 



" To the Hon. Richard, Bwteed : 

 " The courts will bc'held. 



"LEWIS E. PARSONS, 

 "Provisional Governor." 



I presumed this telegram was transmitted after 

 consultation with the President, and at once prepared 

 to discharge such of the duties of my office as might 

 be required. Application was shortly afterwards 

 made to me to issue a writ of habeas corpus in the case 

 of a person who, it was alleged, was wrongfully im- 

 prisoned by the military authorities at this city. 

 The petition in the matter makes out as clear a case 

 for relief as can be imagined, and I allowed the writ. 

 The officer upon whom it was served refused to obey 

 its requirements, on the ground that he had express 

 instructions from his military superiors to assume 

 and maintain jurisdiction in the case. Various iudi. 

 cial orders followed the granting of the writ, all of 



which were disregarded. None of the allegations in 

 the petition were controverted, and at this hour their 

 truth remains upon the records of this court wholly 

 unchallenged. 



These, taken as admitted, left me no option as to 

 my course. I was obliged to and did order the dis- 

 charge of the petitioner from military arrest, but, to 

 save the Government harmless, directed his transfer 

 to the civil authorities, to the end that he might be 

 put under sufficient recognizances to answer any in- 

 dictment or complaint which might be preferred 

 against him. This order was also disregarded, and 

 the petitioner's counsel then moved for a writ of 

 attachment against Gen. Woods, which was issued 

 accordingly, and was made returnable in two weeks 

 from the date of its allowance. In the interim I saw 

 Gov. Parsons at Montgomery, who informed me that 

 before the telegram was sent to which I have re- 

 ferred, he conversed with the President, and told him 

 of our interview in New York, and that I was on my 

 way to this State to hold the National Courts as di- 

 rected by the act of Congress, and that the Pres- 

 ident expressed the opinion that it was proper for 

 me to do so. 



This summary brings us to the answer of Gen. 

 Woods to the writ of attachment, read and filed this 

 morning. From this answer and the papers annexed 

 to it, and the proceedings herein, four things are now 

 made distinctly apparent. First, it appears that tho 

 original arrest and imprisonment of the petitioner 

 was by virtue of a direct order of the President him- 

 self without the intervention of the chief or any offi- 

 cer in any of the executive departments. The tel- 

 egram under which the arrest was made is signed 

 "Andrew Johnson, President of the United States," 

 Secondly, it appears that the continuance of the 



Eetitioners imprisonment, although pronounced to 

 e unlawful by the courts, is by express personal in- 

 structions from the President. His telegram to Gen. 

 Thomas, in reply, I presume, to one sent him touch- 

 ing this case, is also signed " Andrew Johnson, Pres- 

 ident of the United States." Thirdly, it appears 

 that Gen. Woods should not be held to answer crim- 

 inally in this case, for refusing obedience to the writ 

 of habeas corpus. Fourthly, it appears that the im- 

 prisonment of Dexter is not for any of the causes in 

 respect of which, and that he is not himself one of the 

 persons as against whom the privilege of the writ 

 of habeas corpus has ever been suspended. If he is 

 guilty as alleged, his offence is malversation in a 

 purely civil office, and it will hardly be contended 

 that the public safety now requires the trial of an 

 offence against the Treasury to be by a military tri- 

 bunal. Courts-martial are the necessary, but mere 

 adjuncts of a war establishment. Civil judicatories 

 are the appropriate and chosen tribunals established 

 bj' law, not more for the punishment of the guilty, 

 than the protection of the innocent. 



It is under the circumstances thus briefly reca- 

 pitulated, that this unseemly conflict between the mil- 

 itary and the civil authorities has been provoked. I 

 claim exemption from any responsibility for it. And 

 as in our land, no public man and official station is 

 or ought to be beyond the public watchfulness, and 

 as with us, all place and power are held in trust for 

 the people, I deem it due alike to them, and to my- 

 self, to make the foregoing statements of fact. Ami 

 upon behalf of the judicial office, I respectfully pre- 

 test against the act of the President, and assert that 

 the trial of the petitioner Dexter cannot lawfully pro- 

 ceed in any other than the way established, nn 

 cording to the forms prescribed in the Constitution 

 of the United States; a scrupulous reverence for. 

 and obedience to which, is at once the knightliest 

 and most patriotic service that either citizen or gov. 

 ernment can render to the country. 



The following proclamation, restoring tho 

 writ in some portions of the United States, ww 

 issued on December 1st: 



