ex. parte.     }  In the Cir. Court of the
                            John Jenkins and }      U. S. for the East.
                              James Crossin,  }        Dist. of Penna.
    As all cases involving questions concerning the jurisdiction and powers of the Courts of the United States, and those of the several States, especially as they have any connection with the Act of Congress "concerning fugitives from justice, and persons escaping from the service of their masters," excite much public attention, and seem peculiarly liable to misrepresentation, from the garbled statement of those who undertake to report them, I have concluded to reduce to writing the opinion I entertain in this case.
    Our very peculiar institutions, which require of every citizen a double allegiance, and obedience to two distinct sovereigns with independent judiciary systems emanating from each, make it especially necessary that great caution and prudence is exercised by their respective tribunals, in order to avoid any collision or conflict in the exercise of their respective jurisdictions over the same subjects and persons. That there should be great diversity of opinion as to the limits of the power of either sovereign and its Courts may naturally be expected. But without adopting the political opinions of extremists on either side, it is the duty of Courts, in order to have no unpleasant collisions, to carefully avoid the assumption of power not plainly confided to them, and at the same time to perform the duties imposed upon them with firmness and resolution, disregarding the clamor or the contumely of heated partizans.
    The jurisdiction of the courts of the United States is limited; but within its limits, supreme. The State courts have often, in many cases a concurrent jurisdiction over the same subjects and persons. But neither can treat the other as an inferior jurisdiction, except in the cases where the constitution and acts of Congress, have given such power to the courts of the Union. Where persons or property are liable to seizure or arrest by the process of both; that which first attaches should have the preference. Any attempt of either to take them from the legal custody of the officers of the other, would be an unjustifiable exercise of its power, and lead to most deplorable consequences. Therefore, if a person be imprisoned under the civil or criminal process of one, the other cannot take him from such custody, in order to subject him to punishment for an offence against them. A fugitive cannot be taken from the legal custody of the sheriff, by any warrant from the courts of the United States, in order to extradition under the acts of Congress. Neither can such fugitive, when in custody of the marshal, under legal process from a judge or commissioner of the United States, be delivered from such custody by means of a habeas corpus or any other process to answer for an offence against the state, whether felony or misdemeanor, or for any other purpose. While the act of Congress does not forbid the issuing of a habeas corpus by a State Judge, it carefully guards against the abuse of it, and makes a certificate of a Commissioner or Judge of the United States "conclusive evidence of the right of the person or persons in whose favor it is granted to remove such fugitive," and forbids all "molestation of such person or persons by any process issued by any court, judge or magistrate, or other person whomsoever." This act of Congress is the supreme law of the land, and binding on the conscience of State Judges, as well as those of the United States. Judges of the United States, as well as those of State Courts, are therefore bound to dismiss a writ of habeas corpus, or to refuse to allow it whenever they are properly informed that the prisoner is held by legal process under this act, and not to suffer it to be abused by mischievous inter meddlers, for the purpose of "molestation" of the officer or owner of the fugitive in effecting his extradition. The laws of the United States give ample remedy by habeas corpus for those illegally imprisoned under color of their process, and State Courts have in many instances exercised a concurrent jurisdiction in similar cases. But State Courts or Judges, have no power under a habeas corpus to review or sit in error upon the judgment or process of the judicial officers of the United States, acting within the jurisdiction committed to them, as has sometimes been done. I have known of one instance (and have heard of others) where a fugitive, legally in custody, has been discharged on habeas corpus, under pretence or affectation of judicial ignorance that slavery existed in Virginia. Such an abuse of judicial discretion was held to be no defence to those who knowingly rescued the fugitive by means of it. Whether such an illegal discharge would protect the Marshal from the high penalty inflicted on him for permitting an escape, may well be doubted; and if he should resist it, as possibly he would, it would lead to a very unpleasant conflict, which every good citizen should be careful to prevent.
    I have made these remarks as preliminary to entering upon the question now before us, in order to rectify a misapprehension and gross misapplication of those made on a former occasion; and also that persons whose zeal in favor of fugitives is sometimes permitted so far to outrun their discretion, may be aware of the mischievous consequences both to themselves and others, which are likely to ensue from attempts thus to abuse the process of State courts, and bring them into conflict with those of the United States.
    The prisoners, John Jenkins and James Crosson, have been brought before the Court by virtue of a writ of habeas corpus, issued and allowed by me on the 4th of October, and directed, J. F. Chollet. The petition for this writ sets forth, that, the petitioners are Deputies of the Marshal of the United States for this District; that a warrant was placed in their hands by said Marshal, issued by E. D. Ingraham, Esq., Commissioner, and endorsed by a Judge of the Supreme Court, directing them to arrest a negro named William Thomas, who being held to labor and service in the State of Virginia and owing the same to a certain Isham Keith, of Fauquier county, Virginia, had escaped therefrom into the State of Pennsylvania. That they proceeded to Wilkesbarre, Luzerne county, Pennsylvania, where the fugitive was found. That they attempted to arrest him in obedience to said warrant. That the arrest was resisted with great violence, and after a severe struggle the fugitive succeeded in escaping. They complain that they have been arrested and imprisoned under color of a warrant from a justice of the peace of Luzerne county, charging them with an assault and battery on said fugitive with intent to kill, and pray to be discharged from such imprisonment.
    To this writ of habeas corpus, Chollet makes return, that he detains the prisoners by virtue of a certain warrant issued by Gilbert Burrows, a justice of the peace for the borough of Wilkesbarre, and endorsed by an Alderman of Philadelphia.
    The warrant sets forth as information upon the oath of a certain William Gildersleeve, "that George Wynkoop, John Jenkins and James Carson, in a riotous manner with pistols and other weapons, beat and wounded a certain colored man named Bill, and that they assaulted, beat and abused the said Bill, as the deponent believed, with the intent to kill him."
    On the return of this writ, on Wednesday last, objection was made to any action by the Court upon it, by learned counsel, who appeared without stating on whose behalf, or by whom they were authorized to interfere in the matter. Being desirous to hear any objections which could be made as to the extent of the power of the Court in this matter, these gentlemen were willingly heard as amica curiae,(?) without any inquiry as to who had authorized them to take a part in the proceedings.
    It was objected that the Court had no authority to discharge the prisoners because they were held by a warrant from a State magistrate for an alleged criminal offence against the State of Pennsylvania; and the warrant was conclusive evidence of the fact. To a habeas corpus issued by this Court under the general authority conferred on them by the judiciary act, this objection would be conclusive. But this writ was not allowed and issued under the general law, but under the special powers conferred by the seventh section of the act of Congress, of second of March, 1833, ch. 57,(?) which so far as is material to our present inquiry, is as follows:
    "And be it further enacted, That either of the Justices of the Supreme Court, or a Judge of any District Court of the United States, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases of a prisoner or prisoners in jail or confinement, where he or they shall be committed or confined, on or by any authority or law, for any act done or omitted to be done, in pursuance of a law of the United States, or any order, process, or decree of any Judge or Court thereof, any thing in any Act of Congress to the contrary notwithstanding."
    For the purpose of the discussion and argument of this point, it was necessary to assume that the facts set forth in the prisoners' petition were true leaving the proof of them to be made out afterwards. The petition states distinctly that the prisoners have been committed for an act done in executing process issued in pursuance of a law of the United States. It therefore comes within the provisions on this act.
    "The writ of habeas corpus is a high prerogative writ known to the common law; the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the commitment; it brings the body of the prisoner up, together with the cause of his confinement. The Court can undoubtedly inquire into the sufficiency of that cause." (See ex parte Watkins, Peters, 201.)
    A warrant of arrest issued by a justice of the peace, has none of the characteristics of a judgment of a court of record, and is therefore not conclusive evidence that the prisoner is rightly deprived of his liberty. It is every days practice to inquire into its regularity, and whether it has been issued on sufficient grounds to justify the arrest and imprisonment. If this could not be done, the writ of habeas corpus, would little deserve the eulogies, which it has received as a protection to the liberty of the citizen. Warrants of arrest issued on the application of private informers, may show on their face a prima facie charge sufficient to give jurisdiction to the justice; but it may be founded on mistake, ignorance, malice, or perjury. To put a case very similar to the present: A. tells B. that he has seen C. kill D. B. runs off to a justice, swears to the murder boldly, without any knowledge of the fact, and takes out a warrant for C. who is arrested and imprisoned in consequence thereof. C. prays a habeas corpus, and shows that he was the sheriff of the county, and hanged D. in pursuance of a legal warrant. If a court could not discharge a prisoner in such a case, because the warrant was regular in its face, the writ of habeas corpus is of little use. Every arrest of the person is an assault and battery, and attended with force and violence against a resisting party; and, if made by three or more persons is a riot, provided the fact be concealed that it was made in execution of a legal warrant.
    The authority conferred on the judges of the United States, by the act of Congress, gives them all the power that any other court could exercise under the writ of habeas corpus, or gives them none at all. If under such a writ they may not discharge their officer when imprisoned "by any authority for an act done in pursuance of a law of the United States," it would be impossible to discover for what useful purpose the act was passed. Is the prisoner to be brought before them only that they may acknowledge their utter impotence to protect him? This act was passed when a certain State of the Union had threatened to nullify acts of Congress, and to treat those as criminals who should attempt to execute them; and it was intended as a remedy against such State legislating. If the State of Pennsylvania had by act of Legislature, declared that the fugitive law should not be executed within its borders, and had directed her officers to arrest and imprison those of the United States who should attempt to execute it, would not this Court have been bound to treat such act as unconstitutional and void, and discharge their officers from imprisonment under it? And have they no power to do so, when mischievous intermeddlers endeavor to prevent and abuse State process for the same purpose? If the Marshal, and his officers may be arrested for serving process, why not the Commissioner and Judge who issued the process? The extremest advocate of State rights would scarcely contend that in such cases the Courts of the United States should be wholly unable to protect themselves or their officers. Let me look at the consequences. While the Marshal's officers, in this case, were endeavoring to retake the prisoner who had escaped from them, the person who afterwards swore to the information on which this warrant was issued, had a warrant put in the hands of the Sheriff which he very wisely refused to execute, knowing the persons charged to be acting under authority of the laws of the United States. Now, let us suppose, the Marshal's officers had succeeded in making the arrest, and the Sheriff had attempted to execute the process. What would have been the consequence? If the Marshal resists, a contest ensues, which may be called, in fact, a war between officers, each acting and justifying their conduct under process from their respective sovereigns. If the Sheriff succeeds as probably he would, the fugitive is discharged, and the officers of the United States conveyed to prison. If such a state of affairs can be brought about at the instance of any mischievous or unprincipled person, who is willing to swear, without scruple, to that which he does not know to be true, or perhaps known to be false, then, indeed, has been discovered a safe mode of nullifying the Constitution and laws of the United States. Those who celebrate the anniversaries of the Syracuse riots, and of the Christiana murders may well rejoice at the discovery.
    Not believing that, the Courts of the United States have been left in this helpless condition, or that we are required and authorized to issue a habeas corpus without any power to release the prisoners, if unjustly detained, the objections to the jurisdiction and power of the Court were overruled, and the further hearing of the case postponed till the 12th of October--in order that proof might be made of the facts stated in the petition, and that the State of Pennsylvania, through her known officers, might appear, if she saw fit, and show any just cause of complaint against the officers now in arrest.
    On that day, the same learned gentlemen, who had appeared on the former occasion, came forward and proposed to take a part in the proceedings.--They were requested to state whom they represented, and to show their authority, if they had any, to intervene on behalf of the State of Pennsylvania. It was answered that they had been employed by the Constable who made the arrest; to which it was replied, by the Court, that their duty to their client ended when they had made out his return to the writ of habeas corpus; that the Constable had no more concern with the result of this proceeding than any other citizen. That the United States government has appeared by its proper representative in defence of its officers; and if the Commonwealth of Pennsylvania by any officer entitled to represent her, avows this proceeding and complains that her laws have been transgressed by the prisoners, they should be heard. That, if the gentlemen had any authority from the Governor or Attorney General of Pennsylvania, as from the Prosecuting Attorney of Luzerne county, they should be heard. But as the Court had no reason to believe that any of those officers had shown, or would show, the least countenance to such proceedings, and as the person who had a right to complain as the injured party, (if any one had,) has confessed the justice of his arrest by fleeing the country, we would not permit more volunteers to interfere for the purpose of embroiling the State of Pennsylvania, against her will, with the United States, or that any society of persons, however respectable, should assume to be the guardians of her peace and dignity.
    Evidence was then received to show that the prisoners were deputies of the Marshal--that a lawful warrant was put into their hands commanding them to arrest one William Thomas, a fugitive from labor. That in pursuance of this warrant they arrested said fugitive, that he resisted with great violence, and made attempts to wound and kill the officers; that he succeeded in escaping from their arrest--ran into the river--where, armed with a knife, he declared he would not be taken alive; and the officers seeing this to be his determination, gave up the attempt to re-capture him and came away, and that for these acts done in obedience to their writ, they had been falsely charged with riot and assault and battery. The counsel for the prisoners having thus shown, as they contended, a case sufficient to authorize their discharge, closed the case. But the court being informed that a number of respectable persons were present, who had witnessed the transaction, and being desirous to ascertain whether the officers had acted in an unjustifiable manner, such as to call for censure or punishment, ordered the depositions of those persons to be taken by a commissioner. In order, also, to ascertain upon what grounds the sworn information was made, and who were the persons presenting it, the deposition of Wm. C. Gildersleeve, on whose oath the warrant was founded, was also taken; it being due to that person that he should be allowed to justify himself for the course he has pursued. In order to obtain this warrant for the prisoners, he had signed a deposition, stating positively that the prisoners had committed an assault and battery on Bill or William Thomas, with pistols, &c., with intent to kill him. He now says, on oath, that he was not present and knows nothing of the transaction whatever; that he did not see William Thomas that day at all. That a certain Joseph Easterline had told him "that a man was shot at the river bank and was dying," and "that it was a colored man that was shot." That he immediately consulted Mr. Collins, and after finding out the name of one of the prisoners, that he then went to a Justice of the Peace, and told him that there had been a man shot at the river bank, and he wanted a warrant; that the Justice wrote out an information and read it to him, and he swore to it--to the best of his knowledge and belief. That he never swore out a warrant against any body before, and it was a new business to him but he did it by counsel of Collins. That he did not know the persons who attempted to arrest Bill were officers at that time. That he cannot tell what he swore to before Esquire Goff in order to obtain the warrant. That he did not see the prisoners fire pistols--got all his information from Easterline and Seaman, that his "interview with them was very brief--done in a minute." That he had no belief of what the officers came for, his "mind being wholly intent on the single subject of obtaining a warrant at that time." That he thought a man had been killed by shots, and made no further inquiry. That he got the warrant and delivered it to the Sheriff, and told him he wanted him to execute it. Nothing was done on this warrant. Some two weeks after this, after the witness had learned that the fugitive was not shot, and that the prisoners were officers, and had made an unsuccessful attempt to arrest the fugitive, an affidavit was brought to him, ready written out by Squire Burrows, (on which this warrant was issued.) Burrows had made out the affidavit at the request of Messrs. Brown and Jackson. That it was intended when the information was drawn out, that one Katz should swear to it, but as it was inconvenient to find Katz, the Squire told him it did not make a particle of difference whether he or Katz swore to it, and he signed and swore to it, after hearing it read. That he cannot tell who employs Messrs. Jackson and Brown, but supposed it was some person in Philadelphia. That he knew nothing of them until they introduced themselves to him in his store. That it never came into his mind to state to the magistrate that the persons claimed to be Marshal's officers making an arrest; and finally, that "he knew nothing about any pistol or fire arms, or any knives and forks, or any thing under heaven."
    Comment on such conduct is superfluous. It is enough to say, that it shows to the Court, that while the sane and intelligent portion of the population of Wilkesbarre, who witnessed this transaction, and the public prosecutor, whose duty it was to prosecute offences against the public peace, have not seen proper to institute any proceedings, some philanthropic individuals, or association, in Philadelphia, have ventured to take the people of Luzerne county, under their protection, and have been so fortunate as to find a witness willing to swear to an information, of the truth or falsehood of which, by his own account, he was utterly ignorant. Imputing no bad motive to the witness for such rash and ill advised conduct, we think he has suffered his zeal to outrun his discretion, and are pleased to see, that he is now better informed, and in his last deposition has refused to "testify to that which he has heard by report from others," and that he now believes "that rumor is no testimony."
    In order to correct any false impressions which may have been received with regard to this transaction, we think it proper to give a brief history of the facts as elicited from the testimony of numerous and respectable eye witnesses who have been examined and testify not to rumor but to what they saw and heard.
    The three Deputies of the Marshal, accompanied by two gentlemen from Virginia, who were well acquainted with the fugitive to be arrested, entered the dining room of the Phoenix Hotel, in the morning, about seven o'clock, and found the negro Bill, or William Thomas, in the room. The agent of the owner took hold of the fugitive and handed him over to the officers, saying, "This is the boy I require you to take under the warrant."--As the officers proceeded to arrest him, telling him they were United States officers, a violent struggle ensued; the landlord of the hotel, who was sitting at his breakfast, got up and went round the table, and said "Bill, give up, there is no use to resist." Bill called for his pistols. The landlord attempted to get hold of him, Bill made a pass at him, to hit him in the face, but missed it, and struck him on the shoulder. The officers attempted to secure him, one of them seized him round the waist--he was thrown to the floor; but rising with them, he obtained possession of a carving-knife, and attempted to stab Mr. Settle, who had come to the assistance of the officers. This blow was partially warded off by another person, so that Settle was struck with the handle, instead of the point of the knife, on his elbow, and disabled from rendering further assistance. The knife being taken from him, the officers endeavored to secure the prisoner's hands with shackles or handcuffs, but succeeded only in getting them on his right wrist, when Bill struck Crossin, one of the deputies, over the head with the handcuffs, inflicting a cut on his temple, and stunning and disabling him for a time. Bill was again thrown down, the officers in vain attempting to secure his hands with the handcuffs; Bill rose up with them, and seized a table knife and wounded slightly the hand of Jenkins, who held him around the waist. The knife was wrested from him, and likewise a fork which he had seized. While Bill had possession of the carving knife, and was endeavoring to stab the officers, some one cried out to them, "Why don't you shoot him?" One of them answered, "We don't want a dead negro." "Do not hurt him."--one of the witnesses said--"he fought desperately, and endeavored to kill them." He made his way to the door at length, with two of the officers endeavoring to hold him, and finally released himself from them, and escaped, and ran towards the river. The officers then said they would try to frighten him, and fired off pistols, but did not point the pistols toward him. Bill waded into the river; some one furnished him with a large knife. The officers then despatched a messenger for the Sheriff, who refused to render them any assistance. Bill's clothes were much torn, and considerable blood had been shed over his face and clothes in the struggle; a large crowd collected; some exhorted Bill not to be taken alive, and he declared his intention to die, or be drowned, rather than be taken. The officers, after dallying some time, being afraid to make further attempts to arrest him, as no one would assist them, gave up the attempt and went away, saying "as the negro would not be taken alive, and they did not want him dead, they would pursue him no further." After the departure of the officers, Bill said to two witnesses, who inquired of him if he was hurt "that he was not hurt, but had some bruises about the face." He was afterwards taken away by some person, on a wagon, and made his final escape.
    We are unable to perceive in this transaction, anything worthy of blame in the conduct of these officers, in their unsuccessful endeavors to fulfill a most dangerous and disgusting duty; except, perhaps, a want of sufficient courage and perseverance in the attempt to execute the writ. A careful examination of the testimony sufficiently exhibits the reason why those who were acquainted with the facts of the case, have been unwilling to prosecute the officers for their unsuccessful attempt, and left it to those who, to use their own language, "knew nothing about it under heaven."
    In conclusion, as we find that the prisoners are officers of the United States, "in confinement for acts done in pursuance of a law of the United States," and "under process from a Judge of the same;" that they have in no way exceeded the exigency of the process under which they acted; that this prosecution has not been instituted, nor is now acknowledged by the State of Pennsylvania, but has its origin in some association living at a distance, and wholly ignorant of the whole transaction which they have volunteered to investigate; that the information on which the warrant to arrest the prisoners is founded, was sworn to by one who did not know whether the matter of the affidavit presented to him was true or false; and that by a statement of but half the truth, it is wholly false.--
    The prisoners are therefore discharged.

Source:

Unknown, "The Wilkes-Barre Slave Case, Judge Grier's Opinion," The Luzerne Union, Wilkes-Barre, Pa., Wednesday, 26 October 1853, p. 1, cols. 6-7, p. 2, cols. 1-2.