Meantime the case was making some progress in the State courts. Sheriff Brashears having made return to the Common Pleas Court that the fugitives were in the custody of the United States Marshal, Judge Carter said this could not be received as a true return, as they were in the County jail, under the sheriff's control. The sheriff then amended his return, so as to state that the prisoners were in his custody, as required in the writ, and this was received by the Court. The fugitives now came fully into the charge of the State authorities. The sheriff held them "by virtue of a _capias_ issued on an indictment by the grand jury for murder."
The slaves declared they would go dancing to the gallows rather than to be sent back into slavery.
On the 26th February, Commissioner Pendery gave his decision. First, he refused to discharge Margaret and three others from the custody of the United States Marshal and deliver them to the Sheriff of Hamilton County, although held to answer, under the laws of Ohio, to the charge of murder. He then proceeded to consider the claim of Marshall to three of the slaves, decided it to be valid, and ordered them into Marshall's custody. He then considered Gaines's claim to Margaret and her three surviving children, decided that also to be good and valid, and ordered them to be delivered into the possession of said Gaines.
The case of the rightful custody, as between the United States Marshal and the Ohio Sheriff also came on, February 26th before Judge Leavitt, of the United States District Court, and was argued by counsel on both sides. On the 28th, Judge Leavitt decided that the custody was with the United States Marshal. The substance of Judge L.'s argument and decision is found in the following extract.
"Judge McLean says: 'Neither this nor any other Court of the United States, nor Judge thereof, can issue a _habeas corpus_ to bring up a prisoner who is in custody under the sentence or execution of a State Court, for any other purpose than to be used as a witness. And it is immaterial whether the imprisonment be under _civil or criminal process_.' If it be true, as there asserted, that no Federal Court can interfere with the exercise of the proper jurisdiction of a State Court, either in a civil or criminal case, the converse of the proposition is equally true. And it results that a State Court cannot take from an officer of the United States, even on a criminal charge, the custody of a person in execution on a civil case.