The Cleveland Daily Herald

Cleveland, April 23, 1859

The Bushnell Matter.

      Marshal Johnson informs us that the order of the Court in the case of Bushnell and that in the case of Langston, vary in this, to wit: the order in the Bushnell case says:

      On motion of the District Attorney, it is ordered that said defendant, Simeon Bushnell, be committed to the custody of the Marshal of this District to await the further order of the Court.

      The order in the case of Langston says:

      That he be committed to the custody of the Marshal of the District to be conveyed to the Jail of Cuyahoga County, there to remain until the further order of this Court.

      The Marshal claims that as Bushnell was not in the custody of the Sheriff, but in his, the Marshal’s custody, he thought it best, hearing that a writ of habeas Corpus had been issued, to take Bushnell into his own immediate keeping.

      Mr. Bushnell has been retained in the Marshal’s custody since that time by direction of District Attorney Belden, and is now in occupation of the Judge’s parlors, adjoining the Court room, where Mrs. Bushnell and child are also permitted to share his quarters. Meals are furnished from the Forest City House.

      Why the two commitments should so vary is a matter of law or expediency that we cannot explain, and the very fact that these two do vary, of course, rather increases than checks suspicion on the part of the public and the other prisoners. The mode in which Bushnell was taken out of jail, and the whole affair, excites comment, and very naturally it should.

      By reference to t he acts of Congress, the laws of Ohio passed in accordance with such acts, and decisions of judicial tribunals, there is no authority for the Marshal to make a prison home of the Government building. To prove this we give a synopsis of those acts, those laws and those decisions.

      The Congress of the United States, by joint resolution, adopted in 1789, recommended the several States to pass laws permitting the use of their jails, prisons, &c., to the U.S. Courts, for the confinement of prisoners and convicts.

      March 3d, 1791, another resolution was adopted, authorizing the U.S. Marshals, in the State, which had not complied with the above recommendations, acting under the express order of the U.S. Court, to provide temporary places for the confinement of prisoners.

      An act of March 3d, 1821, embodied the same previsions into the form of a law.

      An act of March 3d, 1833, made the same provisions in reference to States, which had once complied with the recommendation of 1789, but had subsequently repealed such statutes.

      The act of June 1834, provides that when any convict sentenced to any penitentiary of any State or Territory, shall be imprisoned pursuant thereto, he shall be exclusively under the control of the State officer having the charge of said prison, &c.

      The act of 1835, authorizes the Federal Court is proper cases, to sentence to the houses of correction, or reformation, &c., in the several States.

      The act of 1856 provides for imprisonment in the penitentiary of a given State, in all cases where the law punishes by imprisonment and hard labor.

      It is believed that the above acts and resolutions contain all the Federal legislation now in force, bearing on the subject. And it will be seen that it is those States alone, which have failed to furnish jails and prisons for the custody of the United States prisoner; that the Federal Courts have authority to provide the means for the custody of their own prisoners. That in the States, which have provided prisons for the use of the Federal Courts and authorities a Marshal can confine his prisoners nowhere else; nor can a Federal Court make an order by which he can be legally held elsewhere.

      In compliance with the recommendation of the Congress embodied in the resolution of 1789, the Legislature of Ohio in 1806, passed a statute placing the jails of the State, subject to the orders of the authorities of the United States, and obliging the Sheriffs and jailors, under sever penalties, to receive and keep all prisoners charged with infractions of the Federal laws. This statue is in full force.

      One case bearing directly on the qu3estion has been adjudicated in the Federal Courts. Randolph vs. Donaldson, 9 Cranch, Rep.76. One Balm was committed for debt, by order of the U.S. Circuit Court, and place in the jail of Botetourt County, Virginia, from which he escaped and this suit was brought against the Marshal to recover for the escape. The material question was whether the prisoner was in the custody of the U.S. Marshal, and the escape from him.

      Justice Story, in delivering the opinion and judgment of the Court, after referring to the legislation of Congress, says – “When a prisoner is regularly committed to a State jail by the Marshal, he is no longer in the custody of the Marshal, nor controllable by him. The Marshal has no authority to command or direct the keeper in respect to the nature of the imprisonment. For certain purposes, and to certain intents, the State jail, lawfully used by the United States, may be deemed the jail of the United States and the Judges to be keeper of the United States.” The opinion discusses the question at length, and was concurred in by a full bench; and explicitly determined that while a United States prisoner is committed to the jail of a State, he is to remain in the custody of the a United States Marshal.

      And it might be well to suggest to all of the federal officers of the Northern District of Ohio, that for any illegal act of theirs, they are liable to the parties injured under the wholesome laws of Ohio, administered by the courts.