Page:Reports of Cases DC Circuit Court 1840-1863, Volume 2.djvu/411

396 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.

On Monday morning, just before the meeting of the Court, I went into the clerk's office, asked Charles McNamee, the Deputy clerk, if Mr. Foley had filed any affidavits in the case; he examined the papers and reported there was none. I then directed him to endorse upon the papers that they were by my orders adjourned into Court for its future action. After the adjournment of the Court I was informed by a member of the bar that about eleven o'clock that morning