Page:Reports of Cases DC Circuit Court 1840-1863, Volume 2.djvu/409

394, ex rel.

vs.

Writ of Habeas Corpus on the petition of John Murphy for the release of his son James.

In this case President Lincoln had suspended the writ of habeas corpus, as a military necessity within the District of Columbia, and just prior to such suspension, Justice Merrick had issued the writ upon the petition of the father of James Murphy, who had enlisted into the military service of the United States, in the 12th Regiment of New York Volunteers, while under the age of eighteen years, for that reason asking for the discharge of said son from said military service, and made the said writ immediately returnable before him.

The Marshal of the District was directed not to execute the writ upon Provost-Marshal Porter, and to make return. That he was ordered by the President of the United States not to serve the same, as the writ of habeas corpushad been suspended as regards soldiers in the army of the United States, within said district, by the order of the President.

In this case appears the reasons assigned by Justice Merrick for his non-appearance in Court, upon the further consideration of the case and the protests of Judges Dunlop and Morsell against the action of the military authorities in thus interfering with the process of the Court.

Mr., attorney for the petitioner.

Mr. 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