HABEAS CORITS. 



357 





in writing, upon proper affidavit, and that, as the whole 

 Court was in regular session, he must make it to the 

 Court in full sitting, and he withdrew to confer with 

 some of his brotherTawyers on his course. 



After dinner I visited my brother Judges in George- 

 town, and returning home'between half-past seven and 

 eight o'clock, foundan armed sentinel stationed at my 

 door by order of the Provost-Marshal. I learned that 

 this guard had been placed at my door as early as five 

 o'clock. Armed sentries from that time continuously 

 until now have been stationed in front of my house. 



Thus it appears that a military officer, against whom 

 a writ in the appointed form of law has issued, first 

 threatened with and afterwards arrested and impris- 

 oned the attorney who rightfully served the writ upon 

 him. He continued and still continues in contempt 

 and disregard of the mandate of the law, and has igno- 

 miniously placed an armed guard to insult and intim- 

 idate by 'its presence the Judge who ordered the writ 

 to issue, and still keeps up this armed array at his door, 

 in defiance and contempt of the justice of the land. 



Under these circumstances, I respectfully request 

 the Chief-Justice of the Circuit Court to cause this 

 memorandum to be read in open Court, to show the 

 reasons for my absence from my place upon the bench, 

 and that he "will cause this paper to be entered at 

 length on the minutes of the Court alongside the record 

 of my absence, to show through all time the reasons 

 whv I do not, this 22d of October, 1861, appear in my 

 accustomed place. WILLIAM M. MERRICK. 



Assistant Judge Circuit Court, D. C. 



The reading of the communication having 

 been concluded 



Judge Dunlop announced that the two remaining 

 Judges had, after consultation, decided that the letter 

 should be filed as requested by Judge Merrick, and it 

 was so ordered. 



They also thought it right, as the writ (of habeas 

 corpus) had been regularly issued, to state that the 

 matter was now before the Court to be tried. 



The statement of their brother Judge (he said) pre- 

 sented a case where the progress of law is obstructed. 

 It was the duty of the Court to afford the remedy, 

 and, if the facts are as stated, to cause the law to be 

 respected. 



As the Provost-Marshal had obstructed a process of 

 this Court, it would order a rule to be served on Gen. 

 Andrew Porter to appear before the Court, and show 

 cause why an attachment for contempt of Court should 

 not issue against him. 



Judge Morsell said that this was a palpable and 

 gross obstruction to the administration of justice, to 

 prevent a judge of this Court from taking his seat, be- 

 cause he issued a writ just such as the law requires. The 

 placing of a sentinel before Judge Merrick's house was 

 evidently for the purpose of embarrassing him in this 

 particular subject, and to prevent his appearance in 

 Court. He (Judge Morsell) would make the rule 

 broader, so as to have Mr. Provost satisfy the Court as 

 to both matters. The Court had its duty to do, a duty 

 the judges are sworn to do, and that duty is the ad- 

 ministration of justice according to law. 



What is the real state of things? If martial law is 

 to be our guide, we look to the President of the United 

 States to say so. He (Judge Morsell i did not pretend 

 to controvert the right of the President to proclaim 

 martial law, but let him issue his proclamation. The 

 Judges have their duty to do under the law, and they 

 are liable to be punished if they do not do it. 



The Judge then spoke of the rule which would be 

 served on the Provost-Marshal, and in conclusion, 

 said : " I intend to do my duty, and vindicate the 

 character of this Court as lo'ng as' I sit here." 



A notice was accordingly made out to be 

 served on Gen. Porter, requiring him to appear 

 before the Court on a subsequent day, to show 

 cause why a writ of attachment for a contempt 

 of Court should not issue against him. 



On the day appointed, the Court being in 

 session, the Deputy Marshal, Geo. W. Phillips, 

 appeared and presented through the District 

 Attorney the following paper : 

 To the Honorable the Judges of the Circuit Court of 

 the District of Columbia : 



George W. Phillips, in whose hands the rule herein- 

 after mentioned was placed as Deputy Marshal, respect- 

 fully represents to your Honors tha't he did not serve 

 the rule issued by your honorable Court on the 22d 

 day of October, 18(51, to be served on Gen. Andrew 

 Porter, Provost -Marshal of said district, because he 

 was ordered by the President of the United States not 

 to serve the same, and to report to your honorable 

 Court that the privilege of the writ of habeas corpus 

 has been suspended for the present, by the order of the 

 President of the United States, in regard to soldiers in 

 the army of the United States within said district ; 

 and that" he respectfully disclaims all intention to dis- 

 obey or treat with disrespect the orders of this honor- 

 able C9urt. GEO. W. PHILLIPS. 

 District of Columbia, Washington County, to wit : 



On this 26th of October, 1861, personally appeared 

 in open Court George W. Phillips above named, and 

 made oath in due form of law that the matters and 

 things stated in the foregoing and annexed answer are 

 truer GEO. W. PHILLIPS. 



Test Jxo. A. SMITH, Clerk. 



This return was held under advisement until 

 the 30th of October, when Judge Dunlap an- 

 nounced his decision in the case as follows : 



The return made by Deputy Marshal Phillips the 

 26th of October, 1561, we will order to be filed, though 

 we do not doubt our power to regard it as insuf- 

 ficient in law, and to proceed against the officer who 

 has made it. 



The existing condition of the country makes it plain 

 that that officer is powerless against the vast military 

 force of the Executive, subject to his will and order as 

 commander-in-chief of the army and navy of the United 

 States. 



Assuming the verity of the return, which has been 

 made on oath, the case presented is without a parallel 

 in the judicial history of the United States, and in- 

 volves the free action and efficiency of the Judges of 

 this Court. 



The President, charged by the Constitution to take 

 care that the laws be executed, has seen fit to arrest 

 the process of this Court, and to forbid the Deputy 

 Marshal to execute it It does not involve merely 

 the question of the power of the Executive, in civil 

 war, to suspend the great writ of freedom the habeas 

 corpus. When this rule was ordered to give efficiency to 

 that writ, no notice had been given by the President 

 to the courts or the country of such suspension here, 

 now first announced to us, and it will hardly be main- 

 tained that the suspension could be retrospective. 



The rule in this case, therefore, whatever may be the 

 President's power over the writ of habeas corpus, was 

 lawfully ordered, as well as the writ on which it was 

 founded. The facts on which the rule was ordered by the 

 Court are assumed to be true as respects the President, 

 because the President had them before him, and has 

 not denied them, but forbade the Deputy Marshal to 

 serve the rule on Gen. Andrew Porter. 



The President, we think, assumes the responsibility 

 of the acts of Gen. Porter set forth in the rule, and 

 sanctions them by his orders to Deputy Marshal 

 Phillips not to serve the process on the Provost Marshal. 



The issue ought to be and is with the President, and 

 we have no physical power to enforce the lawful pro- 

 cess of this Court on his military subordinates against 

 the President's prohibition. 



We have exhausted every practical remedy to up- 

 hold the lawful authority of "this Court. 



It is ordered, this 30th day of October, 1S61, that 

 this opinion of the Court be'filed by the Clerk, and 

 made part of the record, as explaining the grounds on 



