# United States ex rel. Murphy v. Porter

* related portals: United States Circuit Court.
* sister projects: Wikipedia article.
United States ex rel. Murphy v. Porter was a case decided by the United States Circuit Court for the District of Columbia in October 1861. The case arose when John Murphy asked the court to issue a writ of habeas corpus to release his son from service in the United States Army during the Civil War on the grounds that he was underage. The case was decided at a time when habeas corpus had been suspended in the District of Columbia. General Andrew Porter, to whom the writ was directed, arrested Murphy's lawyer when he attempted to serve Porter with the writ and had Judge William Matthew Merrick placed under house arrest in order to prevent him from proceeding in the case. Merrick's fellow judges then took up the case and ordered Gen. Porter to appear before them and explain himself, but President Abraham Lincoln then prevented the marshal from delivering the court's order. The court objected that this disruption of the its process was unconstitutional as the president had not declared martial law (while acknowledging that he did have the power to do so), but noted that it was powerless to enforce its prerogatives.
The United States, ex rel John Murphy. vs. Andrew Porter, Provost Marshal, D.C. At Law.Decided Oct. 31, 1861.
Mr. C. C. Carrington for Geo. W. Philip, Deputy Marshal.
The application is as follows:
To Col. S.S. Walrath, of New York 12th Volunteers.
Your petitioner represents that his son James Murphy enlisted in your regiment of New York 12th Volunteers, at Syracuse, New York, in Captain Church's Company H, and is now in your regiment, in said company, as he is informed at Fort Onandago, where your regiment is now encamped.
And your petitioner further represents that at the time his said son enlisted it was without his knowledge or consent, and that at the time he resided with your petitioner in the ​village of Manlius, Onandago County, and came to Syracuse and enlisted in said company, and when your petitioner found it out he tried to get him discharged, and tried to get him to return home.
And your petitioner further represents that his said son is now anxious to return, and your petitioner is desirous of having him discharged from said Company and Regiment.
Petition for the writ of Habeas Corpus.
To the Honorable Wm. M. Merrick, Judge of the Circuit Court of the D. C.:
D.D. Foley, Attorney for Petitioner.
Wm. M. Merrick, A. J. October 19, 1861.
Letter of Judge Wm. M. Merrick.
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 of habeas corpus ​to the Provost-Marshal, requiring him to produce before the undersigned one John (James) Murphy, who it was 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 D.C., he himself took the writ and served it, as by law he rightfully might do, upon the Provost-Marshal, Gen'l A. Porter; that when he delivered the writ to the Provost 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 he might go at large, as upon his parol. 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 man relative 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 been dismissed from the guard house. I declined to make any suggestion to him in the premises, 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, the 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.
W. M. Merrick, Assistant Judge of the Circuit Court of the District of Columbia.
The reading of the communication (from Judge Merrick) having been concluded, Judge Dunlop announced that the two remaining Judges (himself and Judge Morsell) had, after consultation, decided that the letter should be filed as requested by Judge Merrick, and it was so ordered.
The statement of their brother Judge presented 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 General Andrew Porter, to appear before the Court and show cause why an attachment for contempt 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 because 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 the Provost satisfy the Court as to both matters. The Court has its duty to do, a duty the Judges are sworn to do, and that duty is the administration 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) 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 are liable to be punished if they do not do it.
I intend to do my duty, and vindicate the character of this Court as long as I sit here.
I am an old man.
The following notice was written off by the Judge: In the Circuit Court of the District of Columbia
By order of the Court. Test. John A. Smith, Clerk.
The Court asked the clerk if there had been any return to the writ issued against General Porter, the Provost-Marshal of this city.
The clerk answered there was none.
Mr. Carrington, the District Attorney, presented in behalf of the Deputy-Marshal (Mr. Philips) a paper, with the affidavit of Mr. Philips, stating that the rule had not been served, because he had been ordered by the President not to serve it, and because the privilege of the writ of habeas corpus had been suspended for the present by the President, in regard to soldiers in the army of the United States, within the Distri6t of Columbia.
To the Honorable, the Judges of the Circuit Court of the District of Columbia.
George W. Philips, in whose hands the rule hereinafter mentioned was placed as Deputy Marshal, respectfully represents to your honors that he did not serve the rule issued by your honorable Court on the 22nd day of October, 1861, to be served on General 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 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 disobey or treat with disrespect the orders of this honorable Court.
G. W. Philips.
On the 26th of October, 1861, personally appeared in open Court, George W. Philips (above named) and made oath in due form of law, that the matters and things stated in the
George W. Philips.
Test: John A. Smith, Clerk.
Mr. Carrington offered to submit an argument in behalf of Mr. Philips.
The Court announced that it did not propose to take any steps against Mr. Philips, but, as the return presented a grave question, the Court desired to hold it under advisement.
October 30, 1861.
Judge Dunlop, after holding the above under advisement announced the decision of the Court in the case, as follows:
The return made by Deputy Marshal the 26th of Oct., 1861, we will order to be filed, though we do not doubt our power 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 revolve 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 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 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, 1861, 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.
Judge Morsell 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, I do distinctly assert the following principles:
1st. That the law in this county knows no superior.
2nd. 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.
3rd. 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.
4th. I therefore respectfully protest against the right claimed to interrupt the proceedings in this case.