The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-13
NEW YORK HERALD, MONDAY, JULY IL, 1851.

sable that the fact was not known to that Judge.
But this is not shown in the transcript it cannot
be assumed as fact. strong light is, no xever,
upon this transaction by the proof before tue
Court that when the prisoners were brought before
Probate Judge, when 1t was his duty TO inquire
into ard ascertain the precise ground which they
were held in custody by the Deputy Mars ,as, he
ordered them to be summary discharged. The rea-
of this order, as appears from the transcr pit,
wss, that no appeared to show by what authon-
ty the prisoners arrested and held ia custody.
| The truth was-whether known to the Probate
Judge does not appear--that the Deputy Marshal
named in the proceedings, and who was SO solemnly
called and deiauled tor his non appearance, was at
the time close prisoner in the jail OF the adjoining
county of Clarke.
IL is also insis,ed, in argument that if the Depu-
ties bad the lawful custody Of these prisoners and
we justified in resisting any attempt TO take them
by State officer that such resistance excessive,
and that fy such they have forfeited the
| amenable to the law of Ohio AS before noticed,
the emily questi m With which / am now to deal ia
whether the act charged as criminh against the
official duties. This inquiry necessarily leads to
notice Of some Of the facts before the Court in con-
with the attempted rescue of the prisoners
Many Of the statements in the afidavis have no
reit renee this transaction, and need not be spe
cially noticed. 1t Is the alleged violence of the De-
putes in resisting the Sheriff that fo:ms the basis of
he complaint against them before the Justice OF the
Peace Of Clarke couasy; II in this they have done
doing, they within the provisions of the act Of
Congress.
La stating my views on this point of the case
shall not attempt critical examination OF the state
ments of the witnesses on either side La some im-
portant particulars there discrepancies aud con-
tradictOns in the facts set forth IN the numerous
| afic avts which have been read. shall make no
effort to reconcile Theses nor ID 1t necessary that
/ ShOCd
conflicting statements.
There are some considerations which are conclu-
sive Of the question indicated In his oral evidence
if not in his affidavit, Sheriff Lay ton admits he was
notified when the writ of habeas corpus was placed
in his hands that the persons having the custody OF
| the prisoners were Deputy Marshals, and held the
prisoners under the authority OF the United States.
1t is very clear upon the authorities before referred
co. that with a knowledge OF the tac., even If the
writ valid, the power OF the Sheriff was as an
| end, and he was wrong In attempting the service:
AS an officer, sworn to support the constitution OF
the United States, he was under no obligation t,
serve it, and would have incurred no liability in re-
fusing do His return of the fact, that the pr-
soneIs in custody were held by the paramount
authority of the United States, would have been
complete justification for not serving the writ He
fully aware that the writ could not be served
without bringing the authorities of the United States
and the State Of Ohio into direct collision and that
| the issue to be settled purely one of physical
power. If unnecessarily, and against tae obliga-
lions of official duty be placed himself in position
/ OF p he may De SUPPOSED 10 nave uOue 30 VIII
| full knowledge of what the consequences might
be, and determination to meet them at all hazards.
To understand the nature Of this conflict, should
| be remembered that the Deputy Marshals, by their
official oaths were under positive and paramount
obp to retain their prisoners and to oppose all
attempts to rescue them. The prisoners were law
fully in their custody, and they would nave been de-
relct in duty 70 have parted with that custody un,
less compelled TO do by an overpo wering physical
force. The Sheriff had q writ which commanded
him take the prisoners from the custody of these
officers of the United States IL was not the usual
and well known writ OF habeas cor ous, summoning
the party having the alleged unlawful custOny OF
the persons named in the writ to have them before
the officer issuing it, with the cause OF their de-
tention but writ requiring them to be taken,
forcibly, il necessary, from those having the prior
and lawful custody. This was the only way of
serving the writ; and the question, whether 1t could
be served was simply question OF power; SO the
| Sheriff understood it, and hence he and his asss-
| tants deliberately AIMED themselves as prepare
ton for the conic., which they foresaw was inevi
table. In serving the writ their first object was to
do what the writ required namely TO take the priso-
ners from the custody of the Deputy Marshals.
Counting probably, on the active co.operanon OF
the prisoners, they made this attempt. 1t Is alto
gether mmaterial whether the Sheriff, on coming
| up with the United States officers, announced his
Official character, or that he had writ requiring
| him TO take the prisoners. II such announcement
were made (Which Is doubtful from the weight Of
| the testimony. il vas idle form, which the De
puries were not bound to respec., and which can
| have no influence in the decision OF this question.
Taey would have been faithless to their duty il they
had quietly surrendered their prisoners upon such
notice.
II Is apparent from facts not in controversy, that
the Sheriff and his assistant we'll understood how the
! writ vas TO be served. they were apprized that
mere statement that they were officers OF the State
Of Ohio, and had wit OF habeas corpus for the
prisoners would come altogether short OF the ext
gency of the writ. They knew that nothing out the
actual capture OF the prisoners and their corporeal
custody would It's dem ands Hence, the first
movement was the seizine, by the assistant OF the
Sheriff. OF the bride of the horse in the foremost
carriage. He was resisted In this attempt, and i'm
mediatey aimed his revolver at the Deputy and If
he did not actually fire, Is beyond all question he
| made the attempt Watcher he fired or only made
the attempt the officer whose life WAS thus put at
| hazard had an undouoted right. in sefdefence, to
disable his assailant, and fully justified in firing
at him with this view. II may be noticed here, as
throwing some light on the intention OF the Sheriff
and his assistant that tue Sheriff states a. his i'm
preston that his assistant ne drove past the rear
| carriages pointed his pistol rom the carriage In
which he rode, thus giving very significant indica-
ton OF what might be expected If the prisoners
| were not peaceably surrendered.
But it ~ said the Sheriff was most wantonly In
jured in this ARRAY. In bis oral testimony he states
that after leaving his buggy he approached the car
rage in which Churchill rode, with pistol In hand,
prepared 20 fire. and intending to fire at Churchill.
This fact IS clearly proved by many other witnesses
! in their afiidayi,s. Aud il N also proved beyond
doubt than it was when the Sheriff was thus ap-
| preaching Churchill tia; the latter seized hum with
the sole view Of dsarming him, and thus saving his
own or the life OF another person. IL Is greatly TO
be regretted that the Sheriff severely injured la
this recyunter; bat II any fact is established in this
case Ii is that these injuries resulted from the
we're conflict in the attempt 70 dsarm him. In such
contest the degree OF force which may be used
| cannot be graduated with absolute precision.
LII the writ put into the hands of the Sheriff had
been issued in good faith and were the well known
writ OF habeas corpus, requiring the deputy mar
shals 20 produce the bodies of. the prisoners for
the purpose Of eDquiing into the cause of their
detention, II would have been the duty Of those
officers to take the persons before the Judge. IL
not as matter Of legal obligation, the courtesy due
to the authorities Of another jurisdiction would
have required this, In doing this they would have
retained the possession Of the prisoners no state
Judge, it may be presumed, would have authorized
their discharge when Il was made kDosn to MIN
that they were held under valid United States an-