The national Republican., 1861-10-31
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--s-N--- w.
On the opening Of this court, yesterday morn.
Ing there was quite large crowd Of specta.
tors, who were gathered to hear the decision
Of the court IN ,ne matter of the rule against
the Provost Marshal.
The presiding judge, Hon. James Dunlop, an.
nounced the foil wing decision In the matter:
The return made by Deputy Marshal Phil.
lips. the 26th Of October, 1851 we will order TO
be filed, though we do not doubt our power to
regard 1t as insufficient in lao, and to proceed
against the officer who has made 1t.
The existing condition Of the country makes
II plain that that officer is powerless against
the vast military force OF the Executive, sub.
jsct to his will and order, as commander. in.
chief Of the army and navy OF the United states.
Assuming the uerity Of the return, which has
been made on oath, the case presented Is with.
out parallel in the judicial history Of the Uni
ted States, and involves the free action and
efficiency cf the judges of this court.
The President, charged by the Constitution
to take care that the ,ws be executed, has
seen At to arrest the process of this court, and
to forbid the deputy marshal to execute 1t. 1t
does not involve merely the question on the
power of the Executive In the civil war, and to
| suspend the great writ Of freedom-the hdbeds
corpus.
When this rule was ordered, to give efficacy
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
| II will hardly be maintained that the suspen.
sion could be retrospective.
The rule In this case, therefore, whatever
| may be the Presidents power over the writ Of
hd6eds corpus, was lawfully ordered, as we'll as
| the writ on which 1t was founded.
| The facts on which the rule was ordered by
this court are assumed to be true as respects
tho President because the President had them
before him and has not denied them, but for.
| hade the deputy marshal to serve the rule on
General Andrew Porter.
The President, we think, assume the respon.
sbility Of the acts Of General Porter, set forth
| In the rule, and sanctioned them by his order
to Deputy Marshal Pi iilips not to serve the
process on the provost marshal.
| The issue ought to be and Is with the Presi
dent and we have no physical power to en-
force the lawful process Of this court on his
military subordinates against the Presidents
prohibition. We have exhausted every prac
teal remedy to uphold the lawful authority Of
this court.
/ that this opinion OF the court be hled by the
clerk, and made part Of the record, as exnlain
ing the grounds on which we have now declined
| to order any further proceedings In this case.
Judge MOrsell then read the following pro
| test:
"As a member Of this court, and on its be
half, wish II understood that Notwithstanding
tho blow levelled at this court, do distinctly
assert the following principles:
First. 'That the law in his country knows NJ
superior.
Second. That the supremacy of the civi
authority over the military cannot be denied
that 1t has been established by the ables
jursts, and, I believe, recognised and re
speoted by the great Father of the Countr!
during the revolutionary war.
Third. That this court ought to be respecte,
by every one az tho guardian Of the persona
liberty of the citizen in giving ready and eifec
tusl aid by that most valuable means--the wri
Of hdbeds corpus.
/, therefore, respectfully protest against tn
!. right claimed to interrupt the proceedings 4
! this case.
The opinion Of Judge Morsell was also OIL
dered to be recorded.
, The court then proceeded with its ordinar
business, and the following cases were tried
J Mackall us. Reside; Henshaw vs. Hetzel; Ches
nut and Townsend us. Willard; and Berry D
. Abbott
Samuel F. Glenn, Esq, Of Louisiana, was, Q
motion of the District Attorney, admitted a
!, attorney Of the court.