Anti-slavery bugle. [volume] (New-Lisbon, Ohio) 1845-1861, 1859-05-07
SUPREME COURT OF OHIO.

Tuesday, April %, 1850.
In the matter Of the applications Of Simeon
bushnell, Charles Langstou and others, for u writ
Il Habeas Corpus.
PEcK. j. II appears from The petitions fled
!" these cases, that all Of tho REALTORS who ask for
the allowance Of the writ Of habeas corpus are
now in The custody OF the United States Marshal
Tor the Northern District Of the State of Ohio; that
they are thus in his custody, under aud by the
Distric. Court Of the United States for the North.
ern District Of Ohio on indictments preferred
against them in said District Court, for au ~alledged
violation of the Law Of the Congress of the United
States, respecting r~ugitives from service, passed
Sept. IL, 1850; that the REALTORS are charged in
eaid indictment with the rescue and The aiding
and asetting tho rescue Of a fugitive from services;
and that the proceedings under said indictments
are still per ding and undetermined before said
District Court.
The separate application Of Simeon Bushnell,
indeed, shows that be has been tried upon said in
dictment and found guilty and is now in custody,
awaiting the final judgement and sentence Of the
oourt-Tbat on being a~rraisncd upon said indict
ment before said District Court, be, 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 o Court and is never granted
except in very clear cases. but the Gefendent is
left to raise the question in q more formal way,
by demurrer or motion in 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; in
deed such motion should never be granted, if the
question is, in any degree, doubtful ; but should
be reserved fer hearing on motion to arrest the
Judgment. Nojudgment or sentence having been
pronounced, and tho question Of Jurisdiction being
still al open one before that Court, we do not
think the case OF Simeon Bushnell. as to the ques.
ton of jurisdiction, distinguishablc, in principle,
from that of the other REALTORS.
Is it then legally competent for this Court to
withdraw the relators from the District Court, in
che custody of which they now are, charged with
the violation Of an act of Congress, while the pro,
~oeedings against them are still pending and IN.
determined, and discharge them on the ground that
the act Of Congress, upon which the Indictment Is
based, is unconstitutional aud void? .
The District Court now has possession of the
case and the parties to it, and has the legal power
and capacity to hear and determine, for itself, the
question of it's own Jurisdiction and right to act
10 the premises. The legal presumption in such
eases always is, that a Court thus assuming to act.
will determine the question Of its own jurisdiction
correctly, until it has acted finally upon it.
Hence il is a rule founded upon the comfy
which does. and for the prevention Of unpleasant
no1lisinp shou1d aluaus enhsisk hetwepn iudi va
tribunals, that where o court Of general jurisdic
tion, and legally competent to determine it's owr
jurisdiction, has acquired prior jurisdiction defact
over person or subject matter, no other court wi
interfere with, or seek 10 avert its action, Will
the case is still pending and undetermined. Thi
rule is sustained and supported by all the ANAL
gies Of the law. See Smith VS.. Irer Q Wheato
532; Hagan VS.. Lucas 10 Peters 400; Taylor v
Cdrryl 20 How 594; United States VS.. Norris
An. L. R 35l Exparto Robinson G Mclean So
Keating VS.. Sphinx 2 Ohio State r.. los. Hurd G
Habeas Corpus 100, ct seq.
tits right in principle and preventive Of u
pleasant collision between different tribunals.
another tribunal were thus to interfere with Of
action and withdraw from our custody a prison
upon trial Before us, and set him at large, v
should resist such an attempt to the utteimos
And shall We not extend to other tribunals Il
same county and the same confidence that VIC clai
for ourselves 2
In the recent cases In the State of Wisconsin
and which have attracted so much attention al
remark, this point was expressly decided, and tn
too by the same Court which determined the fug
tive law to be unconstitutional. Elk 2arto, Boot
Wis. Rep. l45.
The history Of this case is as follows;
Booth had been arrested on warrants granted
n United States Commissions for aiding in the
cape of a fugitive slave from service contrary
the law Of 1850. One Of the Judges of the S
preme Court Of Wisconsin upon habeas corp,
discharged Booth from the custody of the Marsh
on the ground that the law of 1850 as to fugiti
slaves. was unconstitutional, among other thin
. in authorizing Commissioners so to act and iss
warrants. and that a warrant issued by such off,
was illegal and vcid, and a majority of tho s
prsme Court of that State on certiorari, affirmed
Judgment. Booth was subsequently, indicted in t
District Court of the U. S. for the State of w
consin, for the same offence and arrested by t
Marshal on O warrant issued thereon. Boo
tbereupon applied to the same Supreme Court til,
in session, for a writ Of habeas corpus to be d
liyered from the custody of the Marshal but IL
writ was unanimously refused. on The ground TIL
it appeared from the application, that he was Vi
der arres. upon indictment Of a Court having ju
addiction Of alledged offences against the U. S.. ar
that the case was still pending and undermine
The court decided that they had no legal right
interfere in bis behalf, while the prosecution "
A pending, even though the law Of Congress und
which he was indicted, was unconstitutiona q
void recognizing. in its fullest extent, the priu
Piles and practice Of judicial courts to which
"a have ayerted. They coneede the privilege q
= right Of the district court to determine first
for itself. the question Of it's own jurisdicti
and in reply to the claim, that the law was unc
.s,itutional and void. and that, therefore, the ]