Fremont journal. [volume] (Fremont, Sandusky County [Ohio]) 1853-1866, 1859-05-06
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Tor WITH OF tlApeaS OOTPbs. .uiI.
Pack, J. II appears from tho petitions
filed Ia these cases, that all Of the rela,oFs
who ask for the allowance Of the writ Of ha-
hess corpus are now in tho custoday Of the
limited states Marshal for the Northorn Dis
trict Of the State Of Ohio; that they are
thus in his custody, under and by virtuo OF
a mittimus regularly issued by the District
Court Of the United States for the North
ern District Of Ohio on indictments prefer
rcd against them 10 said District Court, tori
an alleged violation Of the law Of the Con
crsss Of the United States, respecting fugi' /,
tsvss from service, passed Sept. Is, 1885,
that the relalors are charged in said indict-
raents with the rescue and the aiding and
abottipg the rescue Of fugitive from ser
vico; and that the proceedings undor said
indictments are still pending and undeter-
mined before said District Court.
The separate application of Simon Bush
nell indeed, shows that ho has been tried
upon said indictment and found guilty and
is now in custody, awaiting the final Judg-
ruent and sentence of the court--That on
being arraigned upon said indictment before
said District Court he, by his counsel NOV
cd the Court 30 quash the same for various
reasons. ono of which was, that the law of
1850 upon which il was based, is unconsti-
susional and void; which motion, the Dis
tfict Court refused togrant.
A motion 10 quash addresses itself to tho
sound discretion Of Court and Is never
granted, except in very clear cases, but the
defendant is left to raise tho question in a
more formal way, by demurrer or motion In
arrest Of judgement. The refusal to grant
cannot be regarded as fadl decision Of the
question raised by tho motion, when the
poipt is one which If well taken would be
available on demurrer or in arrest of judg-
meut: indeed such motion should never be
granted, IL the question is, in amy degree,
doubtful: but should be reserved for hear-
ING on motion to arrest the judgment. No
judgement or sentence having been pro-
nounced, and the question Of jurisdiction
being still au open one before that Court, we
do not think the case of Simeon Bushnell,
As 10 the question Of jurisdiction, distinguish
able i'd principle, from that Of the other re-
lators. % gT
Isit thenlegally competent for thisCourt,
70 withdraw the relators from the District
Court, in the custody Of which they now arc,
charged with The violation of an act Of Con-
gress, willis the proceedings against them
are still pending and undetermined, and dis
charge them on the ground that the act ol
Congress, upon which the indictment IS
based, is unconstitutional and void
The District Court now has possession Of
the case and the parties to it, and has the
legal power and capacity TO bear and deter
mine, for itself, the question Of its own ju-
risdietion and right TO act in the premises.
The legal presumption in such cases always
is, that Court thus presu,niBg to act, will
deterrnino the question of its own jurisdic-
tiou correctly, until it has acted finally up
on il. ~
Hence il is rule founded upon the com
ity which does, and for the prevention Of
unpleasant collision, should always subsist
between judicial tribunals, that where a
court Of general jurisdiction and legally com
petent to determine its own jurisdiction, has
acquired prior jurisdiction defdcto over per
sou or subject matter no other court will
interfere with, or seek TO avert its action,
while the case isstill pending and undeter-
mined. This rule is sustained and support
cd BY all the anAlogies of the law. See
Smith VS.. Ivcr, Wheaton, 532; Hagan vs..
Lucas, 10 Peters, 400; Taylor VS.. Carryl,
20 How, 5o4 United States vs.. Morris, 2
Am. L. r., s5I; Ex partc Robinson, Nc
Lean, 3e3; Heating vs.. Spink, s Ohio State
r., lo5. Hurd on Habcas Corpus, l99, ct
seq.
Il is tight in principle and preventive Of
unpleasant collision between different tribu-
mails. If another tribunal we're thus to in.
torfere with our action and withdraw from
our custody prisoner upon trial before us
and set him at large, we should resist such
attempt to the uttermost. Aud shall We
not extend to other tribunals the sarne com
ity and the same confidence that We claim
for odrselycsg
In the recent cases in the State Of Wis
consin, and which have attracted so muci
attention and remark, this point was cx
pressly decided, and that too by the sans
Court which determined the fugitive slav'
law to be Unconstitutional Elk parte, Booth
Wis. Rep. l45.
The history Of this case IS as follows:
Booth had been arrested on warrant
granted w United States Commissions
for aiding ia the escape Of a fugitive slav
from service contrary to the law Of 1880
One Of the Judges Of the Supreme Court G
Wisconsin upon habcas corpus, discharged
Booth fiom the custody Of the Marshal O
the ground that the law of 1880 as to fug
tiyeslsves was unconstitutional among 9th
erthin4s in authorizing Commissioners so
act aud issue warrants, and that a warran
issued 6y such officer was iIcgahand vei(
aud majority Of the Supreme Court
that State on certiorari, affirmed The judo
mont. Booth WAS subsequently, indicted ]
the District Court Of the U. s. for the sam
offence, and arrested by the Marshal, on
warrant issued thereon. Booth theFeupo
applied to the same Supreme, Court the
in sessioA for a writ Of habeas corpus to
Delivered from, the custody Of the Marsha
but the writ was unanimously rcfused,
tho ground that it appeared from the aPPl
cation, that he was under arrest upon a
dietmeat Of Coari. having juFisdiction
alleged efFenees against the u. 81 and tn
the case was still psnding anl-endeternar
ad The Court decided that they bad a