Ashtabula weekly telegraph. [volume] (Ashtabula, Ohio) 1853-1873, 1859-05-07

arrest of Judgment. The refusal to grant
cannot be regarded as a final decision OF
the question raised by the motion, when
the point is one which, if well taken, would
be available on demurrer or in arrest OF
Judgment indeed such motion should never
be granted, IL the question is, in any de-
gree, doubtful but should be reserved for
hearing on motion to arrest the Judgment
No Judgment or sentence having been pro.
nouuced. and the question Of Jurisdiction
being still an open one before that Court,
we do not think the case Of Simeon Bush
ucll as to the question of jurisdiction, dis
tinguishable, in principle, from that of the
other relators.
Is it then legally competent for this
Court, to withdraw the REALTORS from the
District Court, in the custody of which,
they now are, charged with the violation
of an act of Congress, while the proceed
ings against them are still pending and un-
determined, and discharge them on the
ground that the act Of Congres, upon which
the indictment is based, is unconstitutional
and void2
The District Court now has possession Of
the case and the parties to it, aud has the
legal power and capacity to hear and de-
termine, for ITSELF the question of its own
jurisdiction and right to act in the premises.
The legal presumption in such cases always
is, that Court thus assuming to act, will
determine the question of its own jurisdic-
tion correctly, until it has acted finally up
on it.
Hence it is rule founded upon the conf
ty which does, aud for the prevention Of
unpleasant collision, should always subsist
between judicial tribunals, that where a
court of general jurisdiction and legally
competent TO determine its own jurisdiction,
has acquired prior jurisdiction de fgcto over
person or subject matter, no other court
will Interfere with, or seek to avert its ac-
tion, while the case is still pending aud un-
determined. This rule is sustained and
supported by all the analogies of the law,
gan vs. Lucas 10 Peters 400 Taylor VS..
Carryl 20 How 594 /; United States VS..
Morris 2 Am. L. r sci Ex parte Rob-
inson G Nc Lean 1853 Heating VS.. Sphinx
3 Ohio State r. los. Hurd on Habeas
Corpus 1919, et seq
1t is right iu principle and preventive Of
unpleasant collision between different tri-
bunals. If another tribunal were thus to
Interfere 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. And shall we
not extend to other tribunals the same conf
ty aud the same confidence that we claim
for ourselves
In the recent cases in the State Of Wis
cousin, and which have attracted so much
attention and remark, this point was ex-
pressly decided, and that too by the same
Court which determined the fugitive slave
law to be unconstitutional. Ex partc,
Booth, 3 Wis, Rep. las,
The history of this case is as follows
Booth had been arrested on warrants
granted by United States Commissioner
for aiding in the escape of fugitive slave
from service contrary 10 the law of 1850
One of the Judges of the Supreme Court
Of Wisconsin, upon habeas corpus, discharg-
cd 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 Commissioners
so to act and issue warrants, and that a
warrant issued by such officer was illegal
and vcid, and majority of the Supreme
Court of that State on certiorari, affirmed
the Judgment. Booth was subsequently in
dicted iu the District Court of the U. S.
for the State of Wisconsin, for the same
offence, and arrested by the Marshal on a
warrant issued thereon. Booth thereupon
applied to the Supreme Court, then in seS-
sion, for writ of habeas corpus to be de-
livered from the custody of the Marshal ;
but the writ was unanimously refused, on
the ground that it appeared from the appli-
cation, that he was under arrest upon in
dictment of Court having jurisdiction oI
alleged offenses against U. s., and that the
case was still pending ard undetermined
That Court decided that they had no lega
right to interfere in his behalf while the
prosecution was pending, even though the
law Of Congress which lie was indicted
was unconstitutional and void reeoguz
ing, in its fullest extent, the principle and
practice of judicial courts to which | have
adverted They concede the privilege and
the right of the District Court TO deter
mine first and for itself, the question of it:
own Jurisdiction, and 10 reply to the claim
that the law was unconstitutional aud void
and that therefore, the District Court could
not have any Jurisdiction, very aptly re
marks that that fact, if true, amounts, af
ter all, to a question of Jurisdiction which
they, on the first instance, must decide fol
themselves. Subsequently, the prosecution
having terminated by a conviction aud sen
fenced to Imprisonment, the same court al
lowed a writ Of habeas corpus and discharg
ed Booth for the alleged defects in the in
dictment which did not bring the count.
upon which he was convicted within the
purview of the act of Congress of Sept. Is
1850.
We refer to these cases in Wisconsin Will
the design of expressing our assent OF
dissent to the decisions under the first and
last writs of habeas corpus bat merely tC
show that eourtwhich had judcially dec
ded the law to be unconstitutional, still
held that in ease like that under consid
GRAFTON, they had no legal right or authori
ty to interfere
On the whole, we are unanimously of the
opinion, that the REALTORS, upon their own
showing admitting the law in question n