Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1859-04-30
avrreme Courl of ohIo
Hon JosEPH r Swan, Chief Justice, AMI Hon
JAcoB BRiNKERHoFF, Hon. JOSIAH Soo1T, Hon,
MiLroN SuTLrFF, and Hon. WiLLrAM v. PEcK,
Judges l.. J. CRircHFIELD, Reportei

AUbbDAht hpili 80 lopbs
In the matter Of the applications Of Simeon
Bushnell Charles Lanaston and others, for a
writ Of Habeas Corpus.
PrcK, j. IL appears from the petitions filed
in these cases, that all Of the relators who ask
for the allowance Of the writ Of habeas corpus
are now in the custody Of the United States
Marshal for the Northern District Of the State Of
Ohio; that they are thus in his custody, under
aud by virtue Of a mlttimus regularly issued by
the District Court of the United States for the
Northern District of Ohio on indictments pre-
ferred against them in said District Court, for
an alledged violation Of the law Of the Congress
of the United States, respecting fugitives from
service, passed Sept. Is, 1850; that the relators
are charged in said indictment with the rescue
and the aiding and abettng the rescue of fu-
gltive from service; and that the proceedings un-
der said Indictments are still pending and unde-
termined before said District Court.
The separate application Of Simeon Bushnell,
indeed, shows that he has been tried upon said
indictment and found guilty and is now in Gus.
iody, awaiting the final judgment and sentence
of the court--That ON being srraigncd upon
said in lctment before said District Court, he,
by his counsel, moved the Court to quash the
same for various reasons, one Of which was,
that the law Of 1850 upon which it was based,
is unconstitutional and void; which motion, the
District Court refused to grant. A motion TO
quash addresses itself TO the sound discretion of
a Court and is never granted except in very
clear cases, but the defendant is left to raise
the question in a more formal way, by demurrer
or motion in arrest OF judgment The refusal
to grant cannot be regarded as final decision of
the question raised by the motion, when the
point is one which, it well taken, would be
available on demurrer or in arrest of Judgment;
indeed such motion should never be granted, if
the question is, auv degree, doubtful; but should
be reserved for hearing on motion to arrest the
judgment. No judgment or sentence having
been pronounced, and the question of juTsdle-
liOn being still an open one before that Court,
we do not think the case of Simeon Bushnell,
as to the question of Jurisdiction, distinguisha-
bic, in principle, from that Of other REALTORS
Is it then legally competent for this Court, to
Withdraw the relators from the District Court,
in the GU stOdy of which they now are, charged
with the violation Of an act of Congress, while
the proceedings against them are still pending
and undetermined, and discharge them on the
ground that the act OF Congress, upon which in
dictment is based, is unconstitutional and voidl
The District Court now has possession of the
case and the parties to it, and has the legal pow
er and capacity to hear aud determine, for ITSELF
the question Of its own jurisdiction and right to
act in the premises. Tue legal presumption in
huCL cases dlWhls 49, lIul "A ODuIb tiluS ukSuIll-
ing to act, will determine the question of its
own Jurisdiction correctly, until it has acted f.
nally upon it.
Hence it is rule founded upon the comfy
which does, and for the prevention of unpeas-
ant collision, should always subsst between
judicial tribunals, that where a court of general
jurisdiction, and legally competent to determine
its own jurisdiction, has acquired prior iuris.
diction detdctO over person or subject matter,
no other court will interfere with, or seek to
avert its action, while the case is still pending
and undetermined. This rule is sustained and
supper ted by all the analOges Of the law. See
Smith vs.. IUcr 9 Wheaton 532; Hagan VS. Lucas
10 Peters 400; Taylor VS. Carryl 20 How 594;
Uni'ed States VS.. Morris Am. l.. R. 35I; Ex.
parte Robinson Nc Lean 1863; Heating vs. SPHINX
? Ohio State r. l05 Hurd on Habeas Corpus
1856, ct seq.
It Is rigut in principle and preventive of un-
pleasant collision between different tribunals
If another tribunal were thus to interfere with
our action and withdraw from our custody a
prisoner upon trial before us and set him at
large, we should resist such an attempt to the
uttermost. And shall we not extend to other
tribunals The same comfy and the same conf
dence that we claim for ourselves
In the recent cases in the State of Wisconsin,
and which have attracted so much attention and
that too by the same Court which determined
The fugitive slave law to be unconstitutional
Ex parte, Booth, 3 Wis. Rep. las.
1he history Of this case is as follows:
Booth had been arrested on warrants granted
by United States Commissioner for aiding in
the escape of a fugitive slave from service con.
trary to the law of 1850, One of tho Judges
of the Supreme Court OF Wisconsin upon habpas
C lrpus, discharged Booth from the custody of
the Marshal, on the ground, that the law of
1850 as TO fugitive slaves, was unconstitutional
among other things, in authorizing Commits
sioners so to act and issue warrants, and that |
warrant issued by such officer was illegal and |
void, and majority Of the Supreme Court of |
that State on certlorari, affirmed the Judgment. |
Booth was subsequently indicted in the District |
Court of the U. s for the State of Wisconsin, |
for the some ollense and arrested by the Marshal
on Il warrant issued thereon. Booth thereuuon |
applied to the same Supreme Court then in ses.
slon, for a writ of habeas corpus to be delivered |
from the custody of the Marshal; but the writ |
was unanimously refused, on the ground that it |
appeared from the application, that he was un- !
der arrest upon indictment of Court having
jurisdiction of alleged Otlenses against the u s.,
and that the case was still pending and unde-
teumiued The court decided thut they had no
legal right to interfere in his behalf, while the
prosecution was pending, even though the law
of Congress under which he was indicted, was |
and void; recognizing, in its ful
lest extent, the principles and practice of judi
cill courts to which have averted. They con-
cede the privilege and right of the district court
to determine fl st and for itself, the question of
its own jurisdiction, and in reply to the claim,
that the law was unconstitutional and void and |
that, therefore, the District Court couldnot have |
any jurisdiction, very aptly remarks, that that |
fact, if true, amounts, after all, to question OF
jurisdiction which they, in the first instance, |
must decide for themselves. Subsequently the |
prosecution having terminated by a conviction |
and sentence Of imprisonment, the same court |
allowed a writ of habeas corpus and discharged |
Booth for alleged defects in the Indictment,
which did not bring the courts upon which he |
was convicted within the purview of the act of
Congress of Sept ls, 1850.
We refer to these cases in Wisconsin with no
design of expressing our assent or dissent to the
decisions under the first and last writs Of ha-
beas corpus; but merely TO show that court
which had judicial decided the law to be un-
constitutional still hold that in a case like that
under consideration, that they had no legal right
or authority to interfere
On the whole, we are unanimously Of the
opinion that the REALTORS, upon their own show
ing admitting the law in question to be uncon.
stitutional and void, could not be discharged by
us, II the writ had been issued, and they were
now before us for deliyerance. 1t would be
an idle and expensive ceremony to award the
writ 10 bring the parties here and, for the time,
intercept proceedings in said District Court,
when our next duty would be to remand them
into the custody Of the officer who now holds
them.
The application for wrts Of habeas corpus in
behalf of the reators, is, for the reasons stated