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The Health of the City, &c..
The Fugitive Slave Case--The Health of the City, &c. Correspondence of the New York Daily Times. PHILADELPHIA, Tuesday, July 26, 1853. The fugitive slave, BILL FISHER, was up again this morning before the Court of Quarter Sessions, and created considerable excitement. Last night, Marshal [Francis M.] WYNKOOP surrendered him to the Court, on the writ of habeas corpus, which was issued on last Thursday or Friday, and he was handed over to the keeper of Moyamensing prison. The Marshal having disclaimed any intention of committing a contempt of Court, was released from the custody of the Sheriff. The friends of the slave had tried every ruse to get him off, but so far without success. About 11 o'clock to-day, FISHER was before Judges THOMPSON and ALLISON, on the petition of LYTTLETON HUBERT, bail for FISHER before Alderman ENUE, upon the charge of assault and battery and inciting to riot. The Marshal was sent for and appeared, accompanied by Mr. ASHMEAD as counsel. The bail of FISHER was represented by D. P. BROWN and Wm. S. PIERCE. After the statements of counsel had been made, Judge THOMPSON said, substantially, that the question, which had been so ably argued, was made to depend entirely upon the right the bail has to the custody of his principal. The Judge cited the return of the U. S. Marshal. He said: The return shows that the claim of the Marshal to the prisoner is properly founded. Thus far, the case presents no difficulties The question was asked, before the argument commenced, who represented the prisoner? and the response was, that counsel appeared for the bail and the prisoner both. The argument has entirely been to show that the Court should remand the prisoner to the custody of his bail. The matter is confined to two questions: First, What does the prisoner ask ? This has not been discussed. The prisoner is here, and does not ask to be remanded to his bail. The second is, Who is to have him--the bail or the Marshal? The right of the bail to demand the custody, and the Court to grant it, is then the only question. That the bail has the right to the custody when the prisoner is taken from prison by him, is not denied. He can take him wherever and whenever found, and no one has the right to interfere with him in that right. Though the bail has this right, if he suffers the prisoner to go at large he becomes subjected to other rights. This is settled by authority. The only difficulty is to apply these plain principles of law. This Court, while ready to sustain the rights of the Commonwealth, or any other rights, yet, where the law points out a way for a bail to proceed, it is necessary for the rights of all that the proper forms of law shall be complied with. This has been neglected by the bail. PETERSDORF on Bail, shows that the principal need only attend Court on the day to which he is bound to appear, except where he has special notice from the bail. The Court nor anybody else can compel him to appear in Court. The bail alone can enforce it. He can control him on all occasions, and on all days. He has more power than the Court over him. HUBERT, by the power of a bail-piece, could have grasped at any time and anywhere. This he failed to do, but comes into Court, and represents a state of facts, which are rather represented by counsel, than shown to exist. Still they are not denied. By these, it appears that he has not enforced his rights, by taking out a bail-piece. This custody of the prisoner was not an active custody. This being the state of the case, our present action cannot be to surrender him to his bail. The prisoner don't ask it. He has not attempted to exercise the right which the law has confided to him. We cannot take it for granted that the Marshal would not let the bail have the prisoner on a bail-piece. As the bail has taken the risk, we will not interfere that he shall appear to answer. If the prisoner should be conveyed to another State, the bail must take the means to bring him hack. It is the consequence of the risk he assumed. If the prisoner had been in actual custody, this Court would not hesitate to enforce a compliance with the petition, as it did in issuing and enforcing the writ of habeas corpus. The Court would require him to answer here first. There is no embarrassment in the case, and no collision of jurisdiction. The fugitive law was never intended to suspend the writ of habeas corpus. The Constitution of the United States declares that the writ cannot be suspended but in the contingencies therein named. Whoever should attempt it, would come into conflict with that instrument, and he would be happy in restraining the attempt as in that present instance. As there is no conflict of jurisdiction, but is simply a question of the right of the bail to have the custody of the prisoner, upon his coming in to ask it, we declare that the prisoner is not in any way under the control of this Court, and therefore discharge him from the custody of the Sheriff, where we placed him. The prisoner was thereupon taken into custody by the United States Marshal, and immediately conveyed to a carriage, and taken on the route to Maryland. Mr. PIERCE asked the Court for a bail-piece, and was informed that it was a writ of right. A bail-piece was made out by Mr. SHARKEY, on the record being filed, and handed to LYTTLETON HUBERT, who, with several others, started in pursuit of the Marshal and his prisoner. Whether they overtook him or not, we have not learned. During the whole proceedings the Court-room was thronged with spectators, mostly blacks. As soon as the Marshal drove off with the slave, a number of them followed the carriage. The friends of the slave will follow him, probably, to Maryland, and there have him arrested on a bail-piece to await a requisition from the Governor. But whether the Governor of Maryland will give him up is another question. The Marshal was determined, when he drove off, that the slave should not again be taken from him, and for this purpose he had provided himself with a pair of swift horses. It is only about twelve miles to the Delaware State line, and it is fair to presume that the Marshal made directly for that State. The course pursued by Judge THOMPSON, in the Quarter Sessions, is highly commended. He has certainly vindicated the State laws, and deserves much praise. Marshal WYNKOOP, in refusing to acknowledge the writ of habeas corpus from the Lower Court, done so at the advice of his counsel, and not through any design to treat with disrespect the laws of the State. A large number of our citizens, however, are highly incensed at his conduct, and look upon him merely as a pander to Southern slaveholders. Much alarm has been created along the riverfront of the lower part of the city, by the report that the yellow fever had broken out. Seven or eight deaths have taken place during the past few days, and this sympton [sic] did certainly seem to intimate that they were the result of yellow fever, but it is more of the ship fever type. It appears that the physician at Quarantine has neglected his duty, and, among other vessels, allowed, beside, the bark Mandarin to pass with sickness on board. Three of the crew had died on the passage. Among the deaths was a Custom-House officer placed on board the Mandarin.
Source: Unknown, "The Fugitive Slave Case--The Health of the City, &c.," New York Daily Times, Wednesday, 27 July 1853, p. 1.
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