Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1861-11-06
The Suspension of the Writ of II beus
CorPus-OPiDIons OF the Judges of
the Circuit COurf.


Deputy Marshal Phillips represented to the
Circuit Court Today that he did not serve the
rule issued by that body on the 22d inst, to be
served on General Andrew Porter, Provost Mar
shall for the District OF Columbia, because he
was ordered by the President ofthe United States
not to serve the same, and to report to the Court
that the privilege OF the writ OF habeas corpus
has been suspended for the present, by order of
the President, in regard to the soldiers of the mr.
my of the United States within this District. The
Deputy Marshal respectfully disclaims all inten-
ton to disobey or treat with disrespect the orders
of the Court.
Chief Justice Dunlop delivered an opinion to
the Court as follows:
Rule TO show cause against General Andrew
Porter, Provost Marshal of the District of Co
iumbia, why an attachment of contempt OF court,
issued against him for obstructing the process of
this Court and the administration of justice under
it. The return made by Deputy Marshal Phil
lips, the 26th of October, we will order to be
filed, though we do not doubt our power to regard
il as insufficient in law. and to proceed against
the officer who has made it. The existing condi
ton 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 Com
mande in Chief of the Army and Navy of the
United States.
Assuming the verify of the return, which has
been made on oath, the case presented is without
parallel in the judicial history of the United States,
and involves the free action and efficiency of the
judges of this country. The President, charged
by the constitution to take care thet the laws are
executed, has seen fit to arrest the process of this
Court, aud to forbid the Deputy Marshal to exc
cute it. tdoes not involve merely the question
of the power Of the Executive in civil war to sus-
pend 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 Presi-
dent, to the Courts or the country, of such sus.
pension here, now first announced to us, and il
will hardly be maintained that the suspension
could be retrospective. The rule in this case
therefore, whatever may be the Presidents power
over the writ of habeas corpus, was lawfully or
dered, 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
responsibilities OF the acts OF Gen. Porter set forth
in the rule, and sanctions them by his order to
Deputy Marshal Philips not to serve the process
on the Provost Marshal.
The issue ought to be, and it is. with the Pres
ident. and we have no physical power to enforce
the lawful process of this Court on his militar,
subordinates. Against the Presidents prohibition
we have exhausted every practicable remedy &c
uphold the lawful authority of this Court. 1t il
therefore ordered, this Goth day of October, that
this opinion of the Cours be fled by the Clerk
and made part of the record, as explaining the
grounds ON which we now decide not to order an,
further proceedings in this case.
Associate Judge Marshall said:
IS a member Of this Court and on its behalf,
wish it understood that. notwithstanding the blow
levelled at this Court, / do distinctly assert tn,
following principles:
Frsf-That the law in this country knows nc
superior.
Second-That the supremacy of the civil au
thoritv over the military can not be denied; tina
it has been established by the ablest %jurists, and,
believe. recognized and respected by the grea
Father OF the Country during the revolutionar,
war.
Tird-That the Court ought to be respects
by every one. as the guardian of the personal lib
erty of the citizen, in giving ready and effectua
aid BY that most valuable means, the writ of ha
beas corpus.
FoarthII therefore respectfully protest agains
the right claimed to interrupt the proceedings il
this case