The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-13


1888; and admitted evidence of the facts relating
to the Imprisonment Of the Marshal. and discharge
him, on the ground that he was imprisoned for an
act admitted to be done in obedience to law. AL
though in that case there had been a judgment by
Court Of Record, that the alleged fugitive was
entitled to her discharge, this was not held to be
conclusive; and the Judge asserted the right Of
going behind the Judgment aud examining the
whole proceeding. The result was that the npr-
comment Of the Marshal was declared to be illegal,
and for an act omitted, pursuant to Law of the
United States. In his opinion, the Judge says, a
sense of duty compes me to say that the proceed
ngs Of the honorable Judge parker were not only
the PROCEEDINGS are void, and am bound to treat
them as nulity."
Another case cited in argument, er parte Jen.
kns, Wallace, Jr 52l, asserts the power ola fede
raj Judge to issue the writ Of habeas corpus in all
cases within the language of the act of 1885, aud to
discharge, under all circumstances, where the ion
prisOnment is for an act done by authority of the
United States. The learned Judge Grier, Of the
Supreme Court of the United States in his opinion
onthat case says: "Che authority conferred on the
Judges of the United States by this act OF Congress-
gives them all the powers which any other court
could exercise, or gives them none at ALL II under
such writ they may not discharge their officer
when imprisoned by any authority for an act done
in pursuance of Law of the United States, it would
be impossible to discover for what useful purpose
the act passed. Is the prisoner to be brou shs
before them only that they may acknowledge their
utter impotence to protect hin!"
The case here referred to Is very similar in several
of its aspects to the one before this Court. In
that case several deputy marshals were resisted
i'm their attempts to arrest fugitive. COM
plant was made before Justice of the Peace.
charging the deputies with an assault and battery
on the fugitive; warrant was issued by the Justice,
aud the deputies were lodged in jau. They applied
for writ of habeas corpus, and although it appear
ed on the bearing they had been committed on pro-
cess legal and right on its face Judge Grer received
evidence that the deputies were imprisoned for an
act done in the discharge OF their duty aud without
hesitancy delivered them from the custody OF the
jailor.
These cases establish beyond doubt that federal
Judge or court, upon the return of habeas corpus
issued pursuant to the act of 1888, setting up an I'M
prisonment under State regular on its face
may receive evidence as to the facts connected with
sucn imprisonment and, if it appears to have
been for an act done omitted in the performance
of official duty, to order the discharge of the party
There is reason to doubt the correctness OF this
construction 1t does not imply any invasion OF the
sovereignty of The State whose process is thus treat
ed. Nor is it based on any assumption or claim that
federal Judge court has any jurisdiction to re-
wise set aside the judgments OF the courts or ma
gistrates Of State. It is merely the exercise OF
rover to inquire into the cause Of Imprisonment !;
and If such is within the contemplation Of the
act to grant an order for the discharge of the in
prisoned party. Neither does 1t import, as sug-
ges.ca II the argument: that federal Judge or
Court can protect on officer of the UNITED States
from punishment for a crime committed against the
laws of the State under pretence that he was doing
his duty.
If the jurisdiction, to the extent indicated, does
not exist IL is very clear the sovereignty of the
United States is liable every day to be condemned
and trampled upon. Upon any other view, it is
entirely in the power Of any one corrupt enough to
make false oath against an officer Of the United
States, having charge of offenders against its laws
to procure their release. and most effectualy to OBJ
struct and nullify the legislation OF the Union for
the punishment of crime. II is easy to conceive,
4 IL h. Er<xs ouu Init fbo 10
for the protection of the Post Office department, and
laws Furnishing the making of spurious coins OF the
United States may be defeated in their salutary ope
rations il the jurisdiction referred TO does not exist
1t is now proper to inquire whether, from the facts
before the Court lit sufficiently appears these Deputy
Marshals were in the rghttul and proper discharge
OF their duties, when the act charged upon them as
a crime against the state OF ONO was commtted.
l shall endeavor TO do this as briefly as possible.
In the first place it may be remarked. that these
deputies were in the possession OF lawful process
for the arrest Of the parties charged with VIOLA
ton of the laws Of the United States. And 1t may
be remarked that it is not optional with them
whether they would serve the process. They were
under the obligation Of an OATH not only to support
the constitution of the United States but faithfully
and promptly to serve ell legal process which should
come into their hands for service, and were subject
TO punishment for not doing 20. There is no ques.
ton from the evidence. that the warrants referred
TO were legally served, and that the prisoners were
legally in the custody OF the Deputy Marsnais.
had an undoubted right TO use all the force neces-
sary TO retain them In such custody. And in case OF
an open, undisguised attempt to rescue them by
force, they would be justified IN killing the assai-
ants that were necessary TO retain the possession
Of their prisoners and such killing ary would not
be a crime against the State OF Ohio
But il is insisted that the Sheriff Of Clarke county
was in possession of valid and legal writ OF habeas
corpus which he was attempting in good faith to
serve and that he violently and illegally resist
ed by the Deputy Marshals in such attempt. On the
other hand il urged that the habeas corpus placed
in the hands of Sheriff Layton was merely colorado,
issued in fraud of the law and was part If con-
spracy by which to effect the rescue OF the prison
ers. This writ has been the subject Of much COM
ment by counsel and authorities have been cited TO
show that IL was a nulty, and that the Saerin was
under no obligation 20 serve IL. AS consequence
IL il Insisted the Deputy MaIshals were not bound
TO respect IT, and could incur no liability for resist.
ing its execution.
cannot take the time necessary TO discuss or de-
eide all the points made in the argument, in refer
ence 70 this writ. The transcript OF the proceedings
by the Judge OF PROBATE OF Champaign county,
who issued the writ and TO whom l. was returned,
and by whose order the prisoners were discharged,
is before me. The writ was Obtained upon the ap
picati1n Of one T. W. Greenhough, who, against tue
truth OF the case took upon bimset the res oonsi0-
ity of swearing that the prisoners were detained IN
custody by Churchill without legal authority. III
issued under the Ohio act OF 1885, and Is directed,
not TO the person having the prisoners in charge,
but 10 any and all OF the SheTffs of the State OF
Ohio, without any showing, by affidavit or other-
wiser that the officer or person having the prison
ers in custody WI refuse or neglect to obey the
writ This obvious disegird Of the provisions OF
the statute I suppose invalidates the writ and a
Sheriff would have incurred no liability by refusing
TO serve it, But | do not propose to discuss this
question, nor TO comment on the strange and anoma
lous provisions Of the statute referred to. IL will suf
fee to saw that while IL provides for writ desgna
ted as q writ Of habeas corpus, the writ has really
none Of the qualities charscterstcs OF that great
writ of right. Whatever may have been the design
of the statute Il seems admirably suited 20 effect
the rescue Of any prisoner In the custody OF an
officer of the United States. All chat is needed for
this purpose In an affidavit that such prs) Is lille
Qally detained in custody, and by the aid Of this
statute IL would be practicable, upon the oath Of
INSCRIPTIONS afisnt tn effect the discharge OF a
prisoner in the penitentiary, under sentence OF any
court of the United states
But IL is further objected TO the writ issued by the
Probate Judge that he bad no jurisdiction, and that
the writ is therefore nullity. great number Of
cases have been referred 20 10 the argument In sup
port Of this position. Without critical notice Of