Year: 1868

The court was opened at half-past 10.


The petit jury was called, and discharged


until 10 o'clock this morning.


Judge Ould, before General Wells pro-


ceeded, wished to say that in regard to the


waiver which was partially argued on


Saturday, he would call the attention Of
and read from Sd Chitty's Practice, pages
$40, 500, 5l3; I'd Doubling, page 620, in the
case of Finn ; to show that the objections to
the affidavit should have been raised be-


fore the return to the writ was made; and
that if the Judge in chambers has passed


upon the sufliciency of the writ the de-


lendant has no right to raise the objection
at any subsequent stage of the proceedings.


General Wells, in commencing his argu-
ment, said that when the prisoner was not
in condition to make the oath it was not
absolutely necessary; otherwise this great


writ of liberty would oftentimes be inope-
rative. The statute Of 1867 is broad and
comprehensive in all Of its details, and its
provisions take in all of the subjects which
can be brought under its operation.


cool, logical mind of the petitioners coun-
sci should not see the difference between
an irregularity in the proceeding and an
informality in the papers; without an afi-
davit you cannot get into court, and the
court therefore has no jurisdiction, and as
soon as that fact becomes clear the whole
case falls to the ground. You cannot


waive jurisdiction. No party citizen of
another State can amend his petition if,


in the petition, he does not state that fact.


This shows the difference between -juris-


diction and irregularity. II the learned


gentlemen on the other side are going to
test the conStitutionality of the laws of
Congress, let us make a basis on which we
can stand. He cited the Milligau case to
prove that when the prisoner was confined
by the military authority he should make
his application to the military commander,
that the commander might have day in
court. ...


The authorities state that objection to
an affidavit should be made within rea-
sonable time; and he contended that in
this case the objection had been raised
within that reasonable time. The error is
apparent on the face Of the record. 1t is
said that, by obeying the writ and bringing
in the body of the prisoner and making his
return, the officer in whose custody he was
waived the informality Of the petition.


In regard to the practice of this court
conforming to that of the State courts, he
said that this was not question of prac-
tice. Practice is mere matter of proce-
dure, and does not affect jurisdiction at
all. That rule Of practice would say that
an act may be done in this court which
the laws of Congress say shall not be done.
You cannot, on question of practice, in
terpolate into the acts of Congress laws
passed By individual States. Congress says
that the seal !" shall be required-the
States say that it shall not. 1t has been
decided in great number Of cases since
the order adopting State practice was en-
tered that it does not include subsequent
legislation. The laws of Virginia say that
it may be proved that man is notary
public. Are we to send up to the Secre-
tary of State to see if this party is one
This court cannot nullify in this way law
of Congress. go.


2. AbbottS Digest, page Gil, in the case
of erparte Vallandigham, was read to show
that because certain officer happened to
be in command at prison he could not
come into this court and by MS return
waive this right Of objection to informallty.
Far reaching as your powers are, you
are still limited in your jurisdiction !;
everything must be proved. Nothing can
be taken for granted. IF A. T. Stewart
were to come into this court and enter suit
without stating in his petition that he was
q citizen of New York, his case would fall
at once. Suppose this affidavit had been
taken in proper form aud duly authenti-
Gated does this case in itself show that it
is within the jurisdiction of this court 7
The petition does not show that the pri-
soner is held in violation of any law of
the United States. He may be amenable
go this court has no Jurisdiction. He may
hs held in violation Of some provision Of
the Constitution, or some law of the United
States. If SO, what provision or what
lawY The mere fact that he is held as q
prisoner in the Libby prison does not at.