Ex parte Booth

[147] By the Court, Whitok, C. J. We think that this application must he denied. The petitioner states in Ms petition for the writ, that he is imprisoned in the common jail of the county of Milwaukee; and that the cause or pretence of his commitment to the said jail, according to the best of his knowledge and belief, is a warrant from Andrew C. Miller, judge of the District Court of the United States, for the district of Wisconsin; a copy of which warrants annexed to the petition. The petitioner states further, that the indictment mentioned in the said warrant is founded upon a pretended violation of -the Fugitive Slave Act of 1850, which he represents as unconstitutional and void. The warrant annexed to the petition commands the marshal of the district to take the petitioner and him safely keep so that he should have his body before the District Court of the United States for the district of Wisconsin, forthwith to answer to an indictment pending in said ¡court against him, for aiding and abetting and assisting the escape of Joshua Clover from the custody of Charles 0. Cotton, a deputy marshal. The warrant is tested in the name of the judge of the District Court of the United States, for the district of Wisconsin; is sealed with the seal of that court, and signed by its clerk. In the case of Ableman vs. the State of Wisconsin, ex rel Booth, decided at the present term of the Court, we held that the issuing of a writ of Habeas Corpus by a State magistrate authorized to issue the writ, to bring before him a person who had been committed by a commissioner of the United States, for refusing to enter into a recognizance with sureties for his appearance before the District Court of the United States to answer for an alleged offence, and the discharge [148] of the prisoner ¡?0 cuiiimiitCí!, did not interioro with the jurisdiction of that court. But we said distinctly, that when a court had obtained jurisdiction of a case, no COurt of concurrent jurisdiction would interfere, and that when the jurisdiction of a court was exclusive, no other court could take jurisdiction at all. "We supposed this to he a familiar principle, which would he denied by no one. We are still of this opinion, and if the present application for the writ showed that the petitioner was in confinement for refusing to recognize with sureties for his appearance before the District Court of the United States for this district, in obedience to the order of a commissioner, or other inferior magistrate, wo should not hesitate, to irsas the writ. But iho facts set forth in the petition for the wrir, show that the petitioner is in co'/JÍhiouK-nt by force of a warrant issued by the court, and that the objector the imp teomne-ut is, to compel him to answer an indictment now pending againot him therein. These facts show that the .District Court of the United States has obtained jurisdiction of the cajo, and S is apparent that the indictment ponding against the petitioner is for an of-fence of which the courts of the United States have exclusive jurisdiction. We do not'see therefore how we can, consistently with the principles of our termer decision, interfere. It is true, that we are not asked to take the ease from the District Court of the United Spates, and try the petitioner for the oífence with which he is charged, but we are asked to remove him from the custody of that court and to discharge him, if, in our opinion, hie imprisonment is illegal. In other words, we are called upon to do an act which would prevent the court of the United States from proceed [149] ing to try and determine a case now pending before it, and of which it has exclusive jurisdiction ; for, without the custody of its prisoner, that court can not proceed to a trial of him for the alleged offence. But it is said by the petitioner, that the act of Congress, for violating which he ia indicted, is void, for the reason, that it is repugnant to the Constitution of the United States, and that consequently the petition shows that no offence has been committed by the petitioner. And it is farther claimed by him, that the District Court of the United States can not obtain jurisdiction of a criminal proceeding when the facts show that no offence has been committed. In other words, that no court can have jurisdiction to try a person for an alleged violation of a void statute Hence the petitioner concludes, that by issuing a writ of Habeas Corpus and discharging him from custody, we should not disturb the jurisdiction of the District Court, for the very obvious reason that it never acquired jurisdiction. But it is to be remembered that that court, having the case pending before it, is of ne cessity compelled to decide every question which the case involves — that of its own jurisdiction included. It must therefore retain the case in order to decide that, as well as every other question that may arise No State court can therefore interfere. The application must be denied.