The daily republic. [volume] (Washington, D.C.) 1853-1853, 1853-07-27
TIL e REPUBL
The Case of Marshal Wynkoop

The Case Of Marshal WynkOOp.
In the United States district court at Philadel-
phia on Monday, the 25th instant, Judge Kane
presiding, the following proceedings took place in
reference to the case of George Smith, alias Bill
Fisher, fugitive slave, and the refusal of Uni
ted States Marshal Wynkoop to surrender the
body Of Smith under writ of habeas corpus from
the cou9t of quarter sessions, after he had been
remandfd to his master by the United States Com
missioner. We copy the report of the Philadel-
phia Bslleiia:
United States Marshal Wynkoop, who was
placed in the custody of the sheriff by Oswald
Thompson, president Judge of the court of quar-
ter sessions, on Saturday last, still remains pri
soner. The fugitive, Bill Fisher, continues in the
custody of the marshal, and was present in court
this morning. fa gana1 bat
| At Ito clock this morning Deputy Sheriff Bill
meyer received an order from Judge Thompson to
conduct Marshal Wynkoop Immediately to pri-
son. The deputy sheriff waited upon the marshal
and notified him Of the order. =. y
| j. w. Ashmead, counsel for the marshal, in
formed the deputy sheriff that the marshal was
now about to appear before the United States
court, and said he would present the matter to
Judge Kane. tHt'
Mr.. sAshmead then went into court, and read
the petition of the marshal praying for writ Of
habeas corpus.
| Judge Kane asked counsel to show the authori-
ty of this court for issuing writ of habeas corpus
Mr.. Ashmead read from the opinion of Chief
Justice Marshall in the case of Tobias Watkins,
to show that the United States courts had such
authority. 1t is in these words: "No law of the
United States prescribes the cases in which this
great writ shall be issued, nor the power of the
court over the party brought up by it. The term
is used in the Constitution as one which was well
understood; and the judicial act authorizes this
COURT and all the courts of the United States, and
the Judges thereof, to issue the wrts for the pur
pose Of imquiring into the cause Of the commitment.
Judge Kane said that the act of Congress by
which this court alone receives authority to grant
Il writ of habeas corpus was the act of 1889. The
case of Watkins, referred to by counsel, is per-
haps within the recollection of nearly every mem
| Der of this bar 1t was case in which person
had been committed by the court of the District
of Columbia, upon charge or conviction OH facts
which went to show violation of the laws of the
United States. 1t was an offence against the
United States, upon an United States process,
and the commitment was by court of the United
States. The language of the Chief Justice must
be determined by the facts which were before the
Chief Justice, and not by single detached sem
tence.
! 1t is unnecessary to say that the chief justice
could not have forgotten that the right to issue his
writ of habeas corpus granted by the l4th sec
ton of the judiciary act, which gives power to
the United States district judges to inquire into
the cause of imprisonment, with this proviso,
that it shall not extend TO persons in Jail by pro-
cess of State court, but only where prisoner
may be brought up as witness to testify. Other
cases. since the decision in case, all tend
to this view of the matter, and maintain this dis
tinction for the very purpose of avoiding conflict
of jurisdiction between the State and the United
States courts, and to prevent such courts from in
terfering with the process of each other. Even
the great writ Of habeas corpus cannot be issued in
/ 4, ctnIxy
as a witness, or where it is by process or color OF
process of the United States court. The case of
Watkins is not case upon which the writ can
| issue. "a
| Mr. Ashmead replied that under the view at
present entertained by the court, it would be UNI
necessary to look for authorities. If the opinion
Just expressed is correct the United States has no
power to protect its own officers.
Judge Kane said the case of Governor Dorr
decided the question at issue, that Judge of the
Supreme Court has right to issue writ of ha-
beas corpus, where prisoner is in custody under
process of State court, but for the purpose OF
using him witness. .
i Mr.. Ashmead replied that it was lamentable
state of things, if such is the law.
Judge Kane interrupted counsel by stating tina
, he would not hear an argument upon the writs
but simply as to whether this court had the RICH
to issue the writ He would not inquire into thu
policy of the law.
"a
defect, will your honor not hear it discussed?
\ Judge Kane replied: We now hearing an
argument er parte. If counsel can show any de-
cison of a superior court sustaining his view OF
the case the writ will issue. you will bring a
statute susceptible Of two meanings, | will hear
an argument.
| Mr.. Ashmead If the decision in DORIS case
| and the act of Congress settles the matter, it is
useless to look for other cases. | want to show
that the petition for habeas corpus in the court
below does not set forth that Fisher was in the
custody of anybody by virtue of process OF
State court.
Judge Kane. You have now, for the first time,
presented fact.
Mr. Ashmead. The petition to your honor
says that the marshal is uniustly held by the
sheriff.
Judge Kane. No petition has been presented to
mel have not had it in my hands.
The petition was then handed to Judge Kane
who read il, and said, if it not presented will
view to take the marshal out of the custody 0
tho person to whom tho State court had consigned
him. he would hear counsel; but if otherwise, the
writ could not be issued.
Mr. Ashmead replied that the petition was pre-
scented in the shape it was handed to him. nc
could admit or deny nothing.
Judge Kane 1t is owing to the opening OF coun
sci that the court has thrown out certain ntima
TONS If the petition is not to take the marsha
out of the custody of the sheriff, the writ OF haoea
corpus will issue. | would rather that the peutiot
should be amended fit ismeantth the Sherlf
holds him by virtue of process issued out OF t., the
State court, / would quash the writ. would IKE
the language more definite, by change phrase
) ology.
The writ was then granted by the court.
, Marshal Wynkoop was brought into court by
Deputy Sheriff VIM. M. Billmeycr, when M
counsel, Mr.. Ashmead, asked that the United
States Marshal might be permitted to make
statement to the court.
This was granted, when the marshal arose am
b rected the facts of the case, as they nave bce'
before published, and wished to know whether n
!, had acted right in the premises Tic had through
out the whole matter acted consciontiously, ant
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