Belmont chronicle. [volume] (St. Clairsville, Ohio) 1855-1973, 1859-05-05

Scott, Hon. Milton Sutliff, and Hon. w
v. Peck, Judges.
TUESDAY. April 2s, 1859.
In the matter OF the application Of Simeon
Bushnell, Charles Langston And others, for
a writ of Habeas Corpus.
Peck, ]. 1t appears from the petitionsi
filed in these cases, that al 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
irs thus in his custody, under and by virtue
Of mi,timus regularly issued by the Dis
trict Court of the United States for the
Northern District of Ohio on indictments
preferred against them in said Di-trict
Court, for an alleged violation Of the law
of the c ongress of the United States. re-
sp>eting fugitives from service, passed Sept.
IS, 1850; that the re iators are charged in
said indictments with The rescue and the
aiding and abetting the rescue of fugitive
| from service; and that the proceedings un-
der said indictments are still pending ard
undetermined before said District Court.
The separate application Of Simeon
Bushnell, indeed shows that he has been
tried upon said indictment and found guilty,
and ia now in custody, awaiting the final
! Judgment and sentence of the Court; that
on being srraigned upon said indictment be-
| fore said District Court. he by his counsel,
moved The Court to quash the same fcr
various reasons, one of which was, tha. the
law Of 1850 upon which it was based, is
unconstitutional and void; which no ton the
I District Court refused to grant. A motion
to quash addresses itself TO the sound dis
creiion Of Court, and is never granted.
except in very clear cases, but the defend
ant is left to raise the question in more
formal way, by demurrer or motion in arrest
OF Judgment. The refusal TO grant Cannot
be regarded as final decision OF the qups-
, tion raised by the motion, when :he point
! is one which, if well tskeH, would be avail
able on demurrer or in arrest of Judgment;
indeed such motion should never be granted
; if the question is, in any degree, d, u5tful;
but should be reserved Tor hearing on mo
ton to srrost the judsm mt. No judgment
or sentence having been pronounced, and
the question of jurisdiction being still an
. open one be fore that Court, we do not think
the case of Simeon Bushnell, as to the
4 question OF jurisdiction, distinguishable, in
principle, from that o: the other REALTORS.
III Ii 10 then legally competent for this Cour
to withdia aw the relators from the District
$ Court, in the custody of which they now
. are. char led with the violation Of an act .
;. Congress, while the proceedings sgans
e them are stil pending and undetermined
and discharge them on the ground that til
act of Congress upon which the indictmen
Is based. is unconstitutional and void!
The District Court Raw has possession
the legal power and capacity to hear an,
g determine. for itself. the question of it
y own jurisdiction, and right to act in thu
Y premises. The legal presumption in sucl
If cases always is, that Court thus assum
vi ing to act, will determine the question o
d its own jurisdic tion correctly, until it ha
Y acted finally upon it.
l. Hence, it Is rule founded upon III
e comfy which does. and for the prevention
ID of unpiesssn, collision, should always Sub
I, sist between judicial tribunals, that where
IN court Of general jurisdiction ani legal.
8. competent TO determine its own jurisdiction
h has acquired prior jurisdiction detacto owe
y person or subject matter, no other court wi
RI interfere with, or seek to avert its actor
'e while the case is still pending and unde
of termined. This rule is sustained and SUP
n ported by A.! the analogies Of the law =
i See Smith vs. liver Wheaton 532; Ha ga
E. vs.. Lucas II Peters 400; Tay. .or VS. Garry
Of 20 How 5s4; United States IS. Morris
ar Am. L. R 5Sl; Elk parie Robinson Nc
ID Lean S63; Heating vs., SPHINX Ohio Stat
Ct, r. ie5. Hurd oD Hateus Corpus 1879,
re seq.
lel /, is right in principle and preventive o
C. unpleasant collision between different tribu
,s mails. If another tribunal were thus to il
y. tertere wi h our action and withdraw frol
E. our cus,c6y prisoner upon trial before u
ip and set him at large, we should resis, sue
II attempt to the ut ermost. And sbal We NJ
or extend 10 other tribunals the same CONF
nv and the same confidence that we claim {;
'e ourselves!
IN In the recent cases in the State Of Wi
e, consn, and which have attracted SO muc
Us attention and remark, this poin: was expr3s
Or ly decided, and that by the same Cou
u which det; rmined TIE Fugitive Slave law
be unconstitutional. Ex -parte, Booth,
l. Wis. Rep. 145. .......
at The history of this case is as follows:
~ Booth had been arrested on warran
4, granted by United States Commission
~ for aiding in he escape of "A fugitive sIa,
- from service contrary TO the law OF $780,
-, One of the Judges os the Supreme Cou
y cf Wisconsin upon habess corpus, disehar
y ed Booth from the custody of the Marsha
VI ou the ground, that the law OF 1850 as
ne o her things, in suthorzing Commissione
CT 60 to act and issue warrants, and that
he warrant issued by such an officer was illeg
s. and void. and a mujority OF the Suprem
= Court of that State on certiorari, sffirme
q tie Judgment. Booth was subsequently, il
p dicles in the District Court of the Unite
ef States for the State OF Wisconsin, for ii
T. tame cfftnse and arrested by the Mar,h
Oh a warrant issued thereon Booth there
" upon applied to the SINE Supreme Cou
's then in session. for wr,t Of habeas corpi
to BE deliver rad from the custody Of III
'e Marshal; but the writ was unanimously re
y fused, en- the ground that t appeared fro
u the application, that he was under are.
C. upon indie msDt of q Court having jur sd,c G