The judge added that the twelve judges of England were, about a century ago, asked by the House of Lords for their opinions on this and other points, and all but two or three thought the evidence inadmissible. But the party could indict the marshal, or sue him for damages, for any falsity in his return or his proceedings, and must resort to that mode of relief against such misconduct. Parliament then passed an act not requiring the receipt of such evidence, on this hearing; but allowing the judge, on affidavits, when he pleased, to ascertain the truth of any material facts or allegations. Now, though this act may not be binding on him, it was a reasonable act, and he would enforce its principle in the broad discretion which all judges possessed in such hearings, and allow any proof to be given by witnesses which would show any fraud in the charges made in the complaint, or any false and wrongful conduct by the marshal in obtaining it. But it would be quite too remote, collateral and unimportant, here, to inquire whether the effect of this movement might not be to help protect the prisoner from an arrest on another like warrant, issued by a State magistrate on the application of one of his own counsel, and to inquire which was most legitimate or bona fide. All things in society were so interwoven and dependent, that it was difficult to perform any rightful act, without some influence or effect on other matters, for which the actor was not responsible, generally. Mr. Sumner said he had no such evidence to offer as the judge indicated, but asked the discharge of Sims on the proofs and documents now before the court; showing first the warrant to have been bad in form and substance, and showing next an illegal delay in executing it, and one which, by itself, raised a presumption of fraud in the marshal. And, if these failed, he moved that the judge himself now hear and examine the criminal charge against Sims; or, if declining that, admit him to bail upon it. Judge Woodbury inquired if anything more was desired, on either side, to be said in respect to the habeas corpus. On the reply that there was not, he proceeded to remark in substance as follows: It is proper to say that the proceeding before me is not an application to discharge from custody of the marshal the prisoner Sims, as a fugitive slave, but the petition for the habeas corpus is confined exclusively to the allegation of his being held by a criminal warrant, and which issued on a complaint for an assault on an officer of the United States while executing legal process; and it asks, merely, that he may be discharged from custody so far as held under that warrant. The writ of habeas corpus, by which he has been brought before me, is also confined specially to the same inquiry. There seems, then, on such a collateral question of mere law, little occasion for so vast a crowd, or any high public excitement. The first objection is to the legality of the warrant on its face. But every professional man knows the difference between what is required VOL. II. 30 in such a warrant, merely like mesne process to bring the party before a magistrate for examination, and a final warrant of commitment in execution of a sentence, or a warrant to search the premises of a suspected person. The cases cited, where warrants are bad on their face, are all of this last character, and not of the kind like this. They are, too, for defects not existing even in this; such as the want of an oath, when an oath to this appears, or, as in Cranch, the want of any offence for the commitment described at all; whereas, here it is alleged to be the offence of obstructing the complainant in the service of a legal precept, or, as in the case from the Massachusetts Reports, not setting out carefully the premises to be searched, and the name of the owner or person suspected, when here the respondent is accurately described. But, besides this, the present warrant, after stating what has been suggested, is fuller than most precepts issued merely for an arrest, and much fuller than the old writ for an insulated trespass in all cases to get parties into the king's bench, and then declare against them, and try them on some contract, or other cause of action. For the trial or hearing is on the declaration or complaint, here as well as in England, and not on the writ. And the warrant to arrest is merely to bring the party in, and then to exercise jurisdiction, and decide on the complaint or not, as that may be sufficient. Here, in the warrant itself, the respondent is referred to what "is more fully set forth in" the complaint, as the cause for which he is to be arrested and tried. And in the return of the marshal, a copy of the complaint is included, and is conceded to contain every allegation necessary to give jurisdiction to the commissioner, and justify the arrest. The question on this first objection, likewise, is not one between the complainant, Butman, and Sims, or either of them, and the commissioner; but whether the marshal, an executive officer, is not justified in making an arrest, as required in the precept on this warrant. It seems to me, clearly, that he was. There is no pretence of want of sufficient cause for such an arrest. The offence stated to have been actually committed is conceded to have occurred; and a Mr. List, said to be one of the prisoner's counsel, is represented, in the argument for him, to have made a complaint that it was a still higher crime, namely, an assault with intent to kill, and for which he is stated to have obtained another warrant from the State authorities. But that it was committed rather against the United States' authorities and the Union, and should be investigated by her commissioner, and the offender arrested by her marshal, is manifest from the fact that it was committed on an officer, or an assistant to one, acting under her laws, while executing one of her precepts, and in order to carry into effect a provision of her constitution and acts of Congress. That constitution and these laws must be maintained against all violence, or the United States must cease to exist as a government. [Applause, but promptly checked by the officers.) They must be maintained, too, rather by precepts like this, issued by the public officers of the United States, and by the request of their prosecuting officer, than by a complaint and warrant, made before a State magistrate, by one of the prisoner's own counsel, against his own client, - a new kind of professional service, and whether on public or private motives can better be inquired hereafter, when that conduct may be brought in question for other purposes. This assault on a United States officer, to obstruct him in serving the process of the United States, and issued as to a subject within the cognizance of the United States, was made penal by a United States law, passed the very first year after the United States government went into operation; and Judge Washington, in the Circuit Court, had held it to be a most important provision to the execution of all laws of the United States, and without enforcing which, the administration of justice under the United States constitution was likely to be utterly prostrated. Why any one of the prisoner's counsel should interfere, and endeavor to turn it into an offence against the State, and punish their own client for it there, when the injured party and the prosecuting officers have not gone there, looks extraordinary, and does not seem entitled to any special encouragement by the authorities of the United States. The prisoner has a claim to sympathy for thus being harassed by two prosecutions for the same assault, and, indeed, for the offence itself, more than others, if, in his ignorance, others have excited him to it by exhortations to murder the public officers when attempting to arrest and return fugitives to their masters, in conformity to the public laws. [Much sensation in the audience.] The second ground for claiming a discharge of the prisoner was the delay in taking him before the commissioner to be examined on this criminal complaint, and the exceptionable facts connected with it. The usual course, in criminal proceedings, was to have an examination follow speedily on arrest, and an unnecessary and injurious delay was censurable. But that could seldom render the warrant invalid, or entitle the prisoner to an absolute discharge, though it might properly expose the officers who did it to a civil action, at times, or cause an indictment. In the case cited from Barnwell and Cresswell, the prisoner was not discharged from the criminal arrest. Mr. Sumner said he did not mean to contend that the warrant thus became invalid, but that, by this and other facts, the arrest would be. The judge replied, If the warrant still remained in full force, how could the arrest be invalid? It was made in the proper form; there had been no escape since; it was for an offence admitted to have been committed; and the fact of more delay, if illegal, was to be punished collaterally, and no case was cited showing that it alone nullified the arrest. On the contrary, the whole ground of principle, on which it could be held illegal, failed on the facts set out in this return. When adjudged illegal, it generally had been because the prisoner was thus deprived of his liberty for several days, if held by only that one warrant. But here the return showing an earlier arrest by another process, and a detention under it up to the present time, he had not been imprisoned or detained a single hour by this alone. There was by it, therefore, no imprisonment or injury. In the cases cited, however, he was held in confinement by the warrant alone which was complained of, and thus was injured and imprisoned by it unnecessarily long. That could not be justified. Every case but one in Cowan was of this character; and there one of two precepts was considered null, and adjudged bad, but the other continued good, and he was not discharged. Now, was the marshal, under these and the other facts, excusable for this delay? The design in issuing the writ was to have before him officially the reason for it, - as it might be justifiable by sickness of the prisoner, magistrate or marshal, or by the wish of the prosecutor and assent of the accused to delay, or the pendency of other prior legal proceedings. It turned out to have been the latter; and, considering the menaces uttered of violence, - considering the array of force and arms around and near us, to prevent a rescue of the prisoner, it furnishes an unusual and weighty reason not to expose him abroad, in going from office to office, and from one kind of examination to another, to the imminent danger of escape, till the previous one was completed, and till it could be done with safety. The more especially was this prudent when not thereby causing the prisoner's detention, but a prior precept doing that. But it is strenuously urged that this, being a criminal warrant, should, at all risks, have been examined before the other, which is supposed to be only a civil proceeding. Without inquiring now whether that be merely civil in character, this is not the case of the marshal having both precepts at once, and then serving the civil one first. Such a course might not always be proper. But he had what is called the civil precept first, and served it first; and while serving it, the offence was committed by the prisoner, for which the criminal warrant issued. It was delivered to him while the examination or trial of the others was going on; and the question left is, whether that inquiry was to be abandoned or suspended, and the prisoner taken before another commissioner, and tried on this, though the district attorney did not desire it who has charge of it, nor, for aught which appears, the officer, Butman, or the commissioner, or even Sims himself. The cases quoted of rights of property in slave States yielding to the punishment for crimes are generally but decisions that the master must lose his private slave property when the latter is demanded for punishment for crimes committed against the public. That is far from this case, which relates merely to the mode or form of trying one question first or last, after the civil trial has begun. What is the practice on this daily in the State court near us, and in all other States? Does not the civil trial, pending, go on till closed, before a criminal one is called. Who ever heard of an attorney-general breaking into the midst of a civil trial, and asking a criminal one to be substituted? however proper it might be, when no trial has commenced, to request that the criminal cases have a preference. In the case of the fugitive Crafts, last November, which has been the topic of so much misrepresentation and mistake, the counsel for the agent of the master (Seth J. Thomas, Esq.), who now sits before us, and cannot but well remember the facts, came to his chambers while the court was not in session; and having failed to find a commissioner who did not prefer to have the Circuit Court examine the case, it being one of the first impressions and the subject-matter a very excitable one, requested that the court would do it. He was informed that a civil cause had been several days on trial, and was likely to continue several more, and could not be broken off without the consent of the parties; but that their counsel would be asked to consent as soon as the court met. The parties declined to give way entirely, as they had many witnesses, and, on one side, belonged to another State; but agreed to suspend the trial an hour, so as to have the papers examined, and a warrant issued, if appearing to be proper. They were accordingly examined, and the warrant issued, pending the other case, but only on the express consent of the parties before the change. Nor would it have been proper here, any more than there, without some special urgency, and the consent of the parties in the other case. The same rule we have seen applied in criminal as in civil cases, after trials have once been begun. Both of these leading objections to the warrant and conduct of the marshal failed, therefore, to make out a case which would justify Sims' discharge from the criminal warrant. But two other motions had been made, this afternoon, which required a few minutes' consideration. One was, that the judge, sitting as he was now in chambers, should hear the case to which the warrant referred when the original complaint was not before him; and when a commissioner could, and doubtless would, discharge that duty, if requested by the complainant or district attorney; and when neither of the latter desired it now; and when the prisoner was brought before him now for another and specific object. The other motion was to admit him to bail. But that duty belongs to the magistrate before whom he is taken for examination; and no VOL. II. 30* |