New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-03-03
DECISION OF JUDGE LEAvITT.

DECISION OF JUDGE LEAvTTT.
Ercm The Cincinnati COis~bias FEB -
Judge Leaytt yesterday pronounced his decision in
the case Of habeas corpus for the bodies of the adult
fugitiyes new lying in our county jail Before the de-
cision was given, Judge lloadley, for the Sheriff,
moved to amcnd the return by stating that the crime
tor which Margaret Garner confined com
mitted before the United States Marshal had her in
custody; and, also, that Commissioner Pendery had
issued his certificate for the return OF the fugtiyeS
during the time the present case OF habeas corpus was
Dder cCnsiderati
Tie .hbect was argued at length by Judge Hoadley
and Mr. Headington. As it did not produce any
change in the decision, or lead to any modification OF
the action # Court, omit the Arguments, only re-
king that Mr. Headingtou, for the Marshal, com
mented strongly upon the fact that Commissioner Pen
derry had pronounced his decision at time when the
fugitiyes were de tdcto out of his jurisdiction they
having been seized by the Sheriff therefore his dec
SIGN was only the expression of his opinion, and was
as valueless legally if he had expressed 1t to
quantances in the street. II the Court should decide
that the decision good it would bring up ques-
ton as important the one already submitted, that
was can State writ take party out OF the hands OF
the United States officers?
Commissioner Pendery explained that before giving
lis ctccn be had asked the Attorneys OF the parties
concerned if they bad any objection to his so doing,
them.
Mr. Headngton said be had never heard Of such a
question being asked; his opinion had all along been,
that TO give decision under the circumstances was
wrong.
Mr.. Chambers said for his part he had been party
to no agreement or understanding
Judge Leavitt said he would give his decision, and
the parties might afterward assert any rights they
n ight conceive themselves possessed Of
Er-Parte, II. II. Robinson, Marshal &c., Ha5eas
Corpus.
without taking time to set forth at length the
facts appearing the petition for this habeas corpus,
and the return made to it, may say IN brief that the
ouestion involved H. whether the Marshal the Sher
lf,t ,ubt Id IN thp III
the four persons named in these proceedings. At the
time that this writ was sued out claim for these per
sons, with others alleged to be fugitive slaves, was
pending and undetermined before Commissioner OF
this Court. In the progress Of the investigation ot
this claim the Commissioner for the safe keeping of
the alleged fugives, had ordered them 10 be confined
in the Jail Of Hamilton County to be brought before
him fl III time to Time M he might adJudgc necessary
The Commissioner the Goth of February issued an
order to the Sheriff requiring him to produce the
bodies If all the alleged fugtives-seyen in number
in the morning Of the next day at 10 o'clock to answer
to his final judgment IN the premises. In pursuance OF
this order the Marshal made the attempt to get the
possession of the persons referred to- bnt the Sheriff
refused 10 permit him to take them from the Jailthe
four persons in reference to whom the wIlt OF haoeas
G. rue Issued. The of the Sheriff sets forth ~
tie ground Of bis refusal that the Grand jury OF Ham
iton County having previously returned bill of in
dCtment against these four persons for the crime OF
murder IN the iirs degree, wit OF caplas was duly
issued on the Goth of February, commanding him 10
take the SAID persons INTO his 10 hiSWer 10
the said charge az that on the same day. pursuant
30 the command of said writ, he arrested them, then
beirg in the jail of Hamilton County, upon the order
for their commitment by the Commissioner as before
stated and made return of such arrest on the wnt
of capias And the Sheriff claims that he il rgtfuly
in the possession OF these persons in virtue OF these
proceedngs and cannot surrender it to the Marshal on
Lis claim.
"The question presented on these facts is one of
conflict between the Marshal and the Sheriff as to the
Loon pus cd al
counsel OF the Marshal that they in his custody
under Law full process from the Commissioner and that
il waa not competent for the Sheriff to arrest them,
under the process of the State, while they were so
held under process Issued by authority of the laws Of
the United States. On the other hand, it is claimed
by the counsel for the Sheriff that tho proceeding
against them under the Fugitive Slave Act thea
pending. and their commitment to the jail OF Ham
itsn County did not shield them from arrest on
charge Of violation of the criminal law OF the State
oiObio
Ip disposing Of this question: am free to confess
I have had some anxiety to find a legal basis on which
cond satisfactorily reach the conclusion that these
fugitiyes could properly be held custody under the
process of the State notwithstanding the fact of their
being in the prior legal custody OF the Marshal Aud
my inst impressions strongly in favor OF the posi-
IN that a. the claim of the in the proceeding
under the Fugitive Slave Act was the mere assertion
of civil right it must be subordinate and yield to the
right of the State to assert aud enforce It's criminal
laws But, upon closer examination OF the principle
question, l am prepared to adopt dheront con-
cusOn.
If the question as 10 the gbtful custody Of these
four persons could be controlled and governed wnn
exclusive reference to the rights asserted by their
owner and claimant should have no hesitancy IN
holding that those rights could not be protected at the
hazard of infringing upon the rights and dignity OF the
State of Ohio But there Is obviously another phase
of this subject that presents 1t different ana lar
more imposing aspect. In sustaining, as am always
inclined 10 Co. the us powers and sovereign rights OF
the State the of the National Government and
the necessity OF sustaining and yndicating its laws
must not be overlooked. In compound sys-
tenn the National and State Governments have their
Appropriate functions and duties and il vital to the
b. athfu action of the system thct each should move
within its constitutional orbit, thereby avoiding con-
hicts and collision.
- But without extending my remarks in this drec-
ton may observe that if the four persons named In
the writ of habess corpus at the time OF the ar
rest by the Sheriff, in the custody OF the Marshal un.
der process Issued by authority OF law OF the unteo
States do not see how that custody can be super
seded And ! may here remark that, speaking yud-
ciay this question not affected by the tact inst the
law of the United States under which the process IS
sues and these persons are IN cnstooy ny Ss unI
lust or Oppressive. Until repealed. or aoJudged VOID
on the ground Of unconsttutonaty by the properJu.
dicial tribunal Of the Union it must be respected ana
obeyed as law. $3.50.
.fIu holding, as-I must 'do in this case, that the
right Of the Marshal to the custody Of the persons IN
qnertion must be respected. am not 10 be uader'
stood as asserting that fugitive slave Is not respon-
sbe for violation of the criminal laws OF me sac
10 which be NAV have fed. II is the undoubted
right Of every State to pupsh crime committed within
he limits State destitute Of this night IN its freest
and fullest exercise could have no just claim to SOW
.reigrty And if an escaped slave could violate law
With impunty many States of this Union would be- in
a most de1enseless condition. IL Is not asserted
therefore THAI they are not liable to punishment but
merely that if they are in custody OF an officer under
tafe. Iafn~ III. c.r
crime against the State law, the latter arrest cannot
be enforced I'LL the disability existing BY the por ar