The Washington critic., 1885-06-27

Habeas Corpus In the Celebrated Foley
Case--Timc at Last Sets all Things Even
The recent appointment of Hon. Will
lam NJ. Merrick as one of the Judges of
our Supreme Court, to the extreme salts
faction of majority of the older mem
bers of the Bar, and the more recent
death of his brother, Richard L. Merrick
whose mortal remains we have lately fol-
lowed to their last resting place, has
served to make the name OF Merrick
highly conspicuous, and has recalled
vivdly to mind certain incidents which
occurred in 1861 and jotted down by the
writer at the time. in which the present
Judge Merrick was prominent figure.
1t is well-known, that before the crea-
ton of the present Supreme Court, under
Act of Congress, approved March 4, 1853,
the Circuit Court of the District of Co
lumbia was the highest judicial tribunal,
and with three Justices disposed finally
of all civil cases. with a right of appeal to
the United States Supreme Court The
Chief Judge was James Dunlop, the asso-
ciates James s. Morsell and William NJ.
Merrick. There was a separate Criminal
Court with single Judge (T. Hartley
this court were determined by the Circuit
Court. Both courts were legislated out of
existence in 1868, and Judge Merricks
late restoration is appreciated as an in
stance of retributive justice by his friends
and admirers.
The Circuit Court of the District of Co
lumbia convened for its regular term on
the third Monday of October, A. ID. 1861,
under an extremely embarrassing and un-
usual state of public affairs. The District
swarmed with Federal soldiery, congre-
gated for war purposes. A military organ
ization, termed the provost Guard"
exercised supreme power in its assumed
province, claiming the exclusive right to
adjust all matters of dispute whatsoever,
both public and private, and were sus-
tained in this course by the entire power
of the United States Government. This
provost guard performed all the police
duty throughout the District-arrested
n.nbers of persons upon frivolous
charges, generally that of being inimical
to the Government, and had in their care
several buildings, called in their parlance
'guard-houses," but which were prisons,
where they confined all arrested and sus-
pected persons Among these prisons or
guard-houses were Forrest Hail. George
town; all the police stations and the
engine-houses of the District, besides the
headquarters" at the northeast corner of
Nineteenth and III streets-the whole un-
der the command of Brigadier-G General
Andrew Porter, U. S. A., who signed his
orders of arrest etc, as "Provost- Marshal
of the District of Columbia"
AT the opening day of the court Octo-
Der q, 1861, after the long vacation since
May, there was an intense public feeling,
though it was suppressed and subdued in
the usual Difference to the majesty of the
law as exhibited in this highly-respect-
able court which was presided over by
the venerable Chief Judge James Dun
l... a,otA k.,,. IT,
Morsell and VIM. NJ. Merrick, all of
whom were present. Immediately after
the court had been proclaimed by the
marshal to be open, the Hon. Richard $
Coke, an eminent member of the bar, an
nounced the death of General Walter
Jones', who had for many years been the
leading lawyer of the District, and one of
the most distinguished lawyers this coun-
try has produced. Mr.. Coke gave glow
ing delineation of the private and public
character of General Jones, in a speech of
some length, to which Chief Judge Dun
lOp responded in amanner full of feeling;
and after suitable resolutions were passed
the court adjourned in respect to the
memory of the deceased until the next
day without transacting or alluding to
other business, much to the disappoint-
ment of the large number of citizens who
were in attendance, and who were labor
ing under great excitement for causes that
will now be explained.
Judge Merrick then lived in Washing
ton, on f street, between Sixth and Sew
enth streets. Chief Judge Dunlop and
Judge Morsell lived in Georgetown, and
there were at that time no street-cars or
other public vehicles giving ready facility
of communication to Georgetown, save an
irregular omnibus line For this reason
applications fori injunction, habeas corpus,
or other matters requiring the immediate
order of the Judges were, as rule made
to Judge Merrick
Prior TO the October term of the court,
Judge Merrick, upon proper petitions duly
supported by atfidavits, had issued writs
of habeas corpus for minors, who had en-
listed in the army without the consent or
knowledge of their parents: These writs
were directed to the colones of the regi-
ments in which the minors were serving,
and at the hearing of the cases the minors
were either discharged from, or remanded
back to the custody of the colonel, as the
facts justified or required, several cases
with either result having been disposed
OF. The courts were open--martial law
had not been proclaimed, and it was sup
posed that the laws would be respected,
but it seems these habeas corpus writs
were distasteful to the military powers,
On Tuesday, the 22d of October, 1861,
Judge Merrick was not present in court
ii was rumored that he had been arrested
by the provost guard and was in prison
and an immense crowd filled the court
room and the halls and passages Of the
Courthouse, full Of excitement and ap-
prehension. Chief Judge Dunlop, after
the court was proclaimed open, amid the
mCst intense feeling, stated thathe had re-
ceived the following letter, which, after
reading, he should order to be spread on
the proceedings of the court;
JUDGE MERRGCKs LETTER.
TO he Ion. flames Duai0p, Chief Jl2ge of Ms
CifcuH C0UH Of ne district Of COtaRIJiai
On Saturday the 10th 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 proyost-marshal, requiring him to produce
before the undersigned one John Murphy, who,
II alleged, was minor under the age of Is
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.
was informed by Mr.. Foley on the afternoon
of Saturday that by reason of the many en-
fagements OF the deputy marshal of the Dis
trict, he himself took the writ and served II (as
by law he lightfully might do) upon the pro-
Yostmarshal, General A. Porter; that when he
delivered the writ To the proVost-marshal he
was told by him that he would consult the Sec
retary II think he said the Secretary of Statel
whether he should respect the writ or not, and
that he lMr, Foley must consider himself un-
der arrest but at present might go at large as
upon his parole.
Later in the afternoon Mr. Foley again called
nj my house with one or two other per5ons--one,
Think was represented as the elder brother or
somo near relative of the boy Murphy-and
desired to know whether he was now to CON
slider the boy as finally discharged and at lib
eIty to return home TO his friends, inasmuch as