On the 26th of October, 1861, personally appeared in open Court, George W. Philips (above named) and made oath in due form of law, that the matters and things stated in the
foregoing and annexed answer are true.Test: John A. Smith, Clerk.
Mr. Carrington offered to submit an argument in behalf of Mr. Philips.
The Court announced that it did not propose to take any steps against Mr. Philips, but, as the return presented a grave question, the Court desired to hold it under advisement.
Judge Dunlop, after holding the above under advisement announced the decision of the Court in the case, as follows:
The return made by Deputy Marshal the 26th of Oct., 1861, we will order to be filed, though we do not doubt our power to regard it as insufficient in law, and proceed against the officer who has made it.
The existing condition 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 Commander-in-Chief of the Army and Navy of the United States.
Assuming the verity of the return, which has been made under oath, the case presented is without a parallel in the judicial history of the United States, and involves the free action and efficiency of the Judges of this Court.
The President, charged by the Constitution to take care that the laws be executed, has seen fit to arrest the process of this Court, and to forbid the Deputy Marshal to execute it. It does not revolve merely the question of the power of the Executive in civil war to suspend 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 President to the Courts of the country of such suspension here, now first announced to us, and it will hardly be maintained that the suspension could be retrospective.
