United States ex rel. Murphy v. Porter

27 F. Cas. 599, 2 Hayw. & H.D.C. 394, 1861 U.S. App. LEXIS 455

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: October 31, 1861
• Status: Published

Opinion

DUNLOP. Chief Judge,

after holding the above under advisement, announced the de-cisión of the court in the case, as follows: The return made by deputy marshal the 20th of Oct., 1801, we will order to be filed, though we do not doubt our jxnver to regard it as insufficient in law, and 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 under oath, the case presented is without a parallel in the judicial history of the United States, and involves 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 habeás corpus. When this rule was ordered to give efficiency to that writ, no notice had been given by the president to the courts of the country of such suspension here, now first announced to us, and it will hardly be maintained that the suspension could be retrospective. The rule on 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 General Andrew Porter. The president, we think, assumes the responsibility of the acts of General Porter, set forth in the rule, and sanctions them by his orders to Deputy Marshal Philips 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 process of this court on his military subordinates against the president’s prohibition.

We have exhausted every practical remedy to uphold the lawful authority of this court. It is ordered, this 30th day of October, 1801, that this opinion of the court be filed by the clerk, and made a part of the record, as explaining the grounds on which we now decline to order any further process in this case.

MORSELL, Circuit Judge,

submitted the following: As a member of this court, and on its behalf, I wish it understood that notwithstanding the blow levelled at this court, 1 do distinctly assert the following principles: (1) That the law in this country knows no superior. (2) That the supremacy of the civil authority over the military cannot be denied; that it has been established .by the ablest jurists, and, I believe, recognized and respected by the great father of the country during the Revolutionary War. (3) That this court ought to be respected by every one as the guardian of the personal liberty of the citizen, in giving ready and effectual aid by that most valuable means, the writ of habeas corpus. (4) I therefore respectfully protest against the right claimed to interrupt the proceedings in this case.