356 



HABEAS CORPUS. 



ing, It is a plain case, gentlemen, and I shall feel it 

 my duty to enforce the process of the Court. 



I ordered the attachment yesterday, because upon 

 the face of the return the detention of the prisoner was 

 unlawful upon two grounds. 



1. The President, under the Constitution and laws 

 of the United States, cannot suspend the privilege of 

 the writ of habeas corpus, nor authorize any military 

 officer to dp so. 



2. A military officer has no right to arrest end .de- 

 tain a person, not subject to the rules and articles of 

 war, for an offence against the laws of the United 

 States, except in aid of the judicial authority and sub- 

 ject to its control ; and if the party is arrested by the 

 military, it is the duty of the officer to deliver him 

 over immediately to the civil authority, to be dealt 

 with according to law. 



I forbore yesterday to state orally the provisions of 

 the Constitution of the United States which make these 

 principles the fundamental law of the Union, because 

 an oral statement might be misunderstood in some 

 portions of it, and I shall therefore put my opinion in 

 writing, and file it in the office of the Clerk of the Cir- 

 cuit Court, in the course of this week. 



After reading the above, the Chief-Justice 

 orally remarked : 



In relation to the present return, I propose to say 

 that the Marshal has legally the power to summon out 

 the posse comitatus to seize and bring into Court the 

 party named in the attachment ; but it is apparent he 

 will be resisted in the discharge of that duty by a 

 force notoriously superior to the posse comitatus, and, 

 such being the case, the Court has no power under the 

 law to order the necessary force to compel the appear- 

 ance of the party. If, however, he was before the 

 Court, it would then impose the only punishment it is 

 empowered to inflict that by fine and imprisonment. 



Under these circumstances the Court can barely 

 say, to-day, I shall reduce to writing the reasons under 

 which I have acted, and which have led me to the con- 

 clusions expressed in my opinion, and shall report 

 them with these proceedings to the President of the 

 United States, and call upon him to perform his con- 

 stitutional duty to enforce the laws ; in other words, 

 to enforce the process of this Court. That is all this 

 Court has now the power to do. 



After the delivery of this opinion, all further 

 proceedings in the case were suspended, and 

 the court-room Avas, in a few minutes, vacated 

 by the throng which had occupied it. 



The opinion of the Chief-Justice, which was 

 subsequently filed in the office of the Clerk, is 

 devoted to the elucidation of the two positions 

 stated above. 



About the 20th of May, Emmett McDonald 

 was arrested by orders of the military com- 

 mandant at St. Louis, Captain Lyon, and im- 

 prisoned. A writ of habeas corpus was issued 

 returnable before Judge Trent of the United 

 States District Court. The question raised by 

 the counsel of the respondent was as follows : 



Has this Court jurisdiction in a case of habeas corpus 

 where the petitioner is in custody under authority of 

 the United States, but not by virtue of any warrant, 

 order, or process of Court, or under a technical " com- 

 mitment ' in other words, lias a United States District 

 Court or Judge, under the acts of 17S9 and of 1833, the 

 power to issue a writ of habeas corpus, and examine 

 into the cause of the alleged illegal restraint, unless it 

 appears on the face of the petition that there is such a 

 technical or formal commitment? 



In his argument the U. S. District Attorney 

 for the respondent took the position that the 

 petition set forth that the petitioner had been 



arrested by a military authority without legal 

 process. He cited precedents that the Court 

 had no jurisdiction in the matter, as the military 

 authority in time of war, or "rebellion," had 

 the power and might arrest persons in array 

 against the Federal Government for treason, or 

 alleged treason. 



The Court gave an elaborate opinion, decid- 

 ing that it had jurisdiction in the case. Mean- 

 while General Harney, who had returned to the 

 command of the department from Washington, 

 refused to obey the writ, but on a subsequent day 

 applied to the Court for permission to amend 

 his return by saying that the prisoner never 

 had been under his control ; but by orders from 

 Washington he had been removed from that 

 military department. This answer was deemed 

 by the Court to be sufficient. 



The Circuit Court of the United States, at 

 Washington, at its opening on the second day 

 of the term, Judge Dunlop presiding, received 

 a communication from one of the Assistant 

 Judges, which was read in Court as follows : 



On Saturday, the 19th of October, 1861, Mr. Foley, 

 a lawyer of this city, called upon me with a petition, 

 supported by affidavit in proper form, praying for a 

 writ of7iaf>eas corpus to the Provost-Marshal requiring 

 him to produce before the undersigned one John Mur- 

 phy, who it alleged was a minor under the age of 

 eighteen years, and illegally detained by said Provost- 

 Marshal as an enlisted soldier of the United States. 

 The order was given by me to the clerk, who issued 

 the writ in the usual form. I was informed by Mr. 

 Foley, on the afternoon of Saturday, that, by reason 

 of the many engagements of the Deputy Marshal of the 

 District of Columbia, he himself took the writ and 

 served it, as by law he rightfully might do, upon the 

 Provost-Marshal, General A. Porter ; that when he de- 

 livered the writ to the Provost-Marshal he was told by 

 him that he would consult the Secretary, (I think he 

 said the Secretary of State,) whether he should respect 

 the writ or not, and that he (Mr. Foley) must consider 

 himself under arrest, but for the present might go at 

 large as upon his parole. 



Later in the afternoon Mr. Foley again called at my 

 house, with one or two other persons one, I think, 

 was represented as the elder brother or some near rela- 

 tive of the boy Murphy and desired to know whether 

 he were now to consider the boy as finally discharged 

 and at liberty to return home to his friends, inasmuch 

 as he had then been dismissed from the guard-house. 

 I declined to make any suggestions to him in the prem- 

 ises, and told him that whatsoever I did in the matter 

 must be done judicially, and after facts had been spread 

 before me upon affidavit, and the appropriate motion, 

 if any, made thereon ; and that, as the Court would 

 meet on Monday morning, October 21st, in regular 

 term, I should adjourn all proceedings under the writ 

 into Court for the advice and action of the whole Court. 

 He stated that he would reduce all the facts to writing, 

 make affidavit, and file them, for that he expected to 

 be arrested. He then withdrew. 



On Monday morning, just before the meeting of 

 Court, I went into the Clerk's office and asked Charles 

 McNamee, the Deputy Clerk, if Mr. Foley had filed any 

 affidavits in the case. He examined the papers and 

 reported there was none. I then directed him to en- 

 dorse upon the papers that they were by my order ad- 

 journed into the Court for its further action. 



After the adjournment of the Court I was informed 

 by a member of the bar that about eleven o'clock that 

 morning Mr. Foley had been arrested and placed in the 

 guard-house by order of the Provost-Marshal, and he 

 announced his purpose to apply for his release. I told 

 him that whatever application he had to make must be 



