Year: 1868

r E--4


the same reason. r.,s...f- :, 81
L The petition states that early In 1865 a
soldier Of the United States was murdered
by some one. Early in that year law
was passed making tia penal offence, and
triabie by military commission, to kill a
Federal soldier. He cited, in support Of
thatiproposition, the case of two men who
were tried by military commission for cut
ting off the ears Of two negroes who had
enlisted in the Federal service. Leaving
out of the case the fact that he is amenable
to the reconstruction laws $50 called) Of
Congress, the petition is defective mas
much as that it does not state the offence
with which the prisoner is charged.
| In regard to one other point, General
| Wells read from the act Of 1867 to show
that however comprehensive and broad the
provisions, of the law are, certain forms and
regularities are necessary, and to show.
| that in the case now under consideration
the terms of that act had not been COM
piled with. q


Let the court dismiss this writ, and the
counsel on the other side can come
| great questions involved.


| Colonel johnson: If your Honor please,
l have not been able, in my reflections upon
this subject, to divide it as the gentleman
has done. I understand the motion to be
one Which, in the first place, is uDprece-
dented, and I shall call your Honor's
attention to the question which, in my
mind, is now before you.


The question is completely divested of
difficulty to my mind, and with alacrity
would leap to the rescue of the Consti-
tuition of the United States from the dust
into which it has fallen, and present it to
the people of the country untarnished and
clear. The prisoner at the bar is here
upon his petition, stating the fact that he is
in unlawful custody; that not being in
the military or naval service of the United
States he is not amenable to their laws,
and therefore is illegally confined.


In the return, the officer acknowledges
the fact of his custody, and that he is held to
be tried by military commission in this dis
trict.


The gentleman representing the Govern
ment comes forward and says that the pro-
ceedings must be dismissed, not because
of want of jurisdiction, but because Of
alleged informality in the petition. The
subject matter is what is to determine
your jurisdiction.


In the case Of an absconding debtor
your Honor would issue an order for the
arrest of the party, even should the seal Of
the notary be wanting, and unless he gave
bail he would be put into Jail. Now, if this
man were to come before you on writ of
! hubeas corpus, and the affidavit to the pc
tition be without the seal of the notary,
would your Honor quash the latter pro-
ceedings and permit the man to remain in
jailf


| The State of Virginia long since put q
law on her statute book, and Chief JUS
tice Marshall made the order, adopting the
practice of the State courts, and be too,
said, in Boldeman's case, 4th Cranch, page
IS, that where magistrate was found act
ing as such, it must be presumed that he
! was qualified to administer an oath. The
officer in whose custody the prisoner is
| found has, by his return, acknowledged
the fact stated in the allegation, and that
precludes the necessity of the affidavit.


There are in the clerks offices of this
| State hundreds, nay thousands, Of docu-
| ments to which the affidavit is made with
! out the notarial seal of the party before
whom it was taken.


The act of February 5, 1867, gives power
! to grant writs in any case where party is
charged with violations Of any law Of the
United States when the petition is sup
ported by affidavit; and want no surer
foundation than this broad and compre-
| hensive statute, which seems to entold
under its egis the whole people of this
great country. There is, too, in Virginia
| l.. .nL lok
ceedings of law where informality does
not 20 to the substance Of the case
it shall proceed unless it would take the
other party by surprise; and this rule
thus laid down is now in common practice
in the courts OF the State. He contended
that in all particulars they had fully met
the requirements Of the law, and they
gave the court the power at any time to
correct any informality in the case, that
thereby the material facts of the case may
| be brought out.


Unless it were the object to ensnare or
entrap the prisoner, you must decide that
the objection raised by the gentlemen on
the other side is invalid, and cannot be
sustained; and because you have not cor
rected it, we must believe that you do not
intend to enforce it in this case. Grant,
for the sake of argument, that it is law,
and we find it waived in the return. This
is shown in the case of Philpot, where the
case was heard without an affidavit at all.
The order by which the prisoner is now
before you, signed by Chief Justice Chase,
states that this is matter equitable by
the Circuit Court of the United Ststes for
the District of Virginia; and now the gen.
tleman comes here and says that it is not
equitable. That defendant may waive
irregularity, and is supposed to have done
SO by obeying the process of the court, IS
a well-known rule Of practice in all the
courts.


A writ of habeas corpus is suit from
beginning to end, and it is SO decided in
the case of Milligan 18th Wallace, page
2O2) and this became suit the moment
the return was put in; and if a suit, why
not let the same rules apply to it as attach
to all other suits arising in this or any
other court? Any informality in any other
suit can be corrected before the issue is
made but after it has been brought to the
bar, can a motion be made to quash 1t
must be made in the declaration itself.
The affidavit is as good as can be made,
and sanctioned by the immemorlal usage
of Virginia, and so affirmed by the highest
legal tribunal known to American law.
The prisoner claims that he is in custody
of the United States, and held for viola
ton of the acts Of Congress known as the
reconstruction laws, which give to q
military commander the power in certain
cases to try citizens; and We contend that
no mower IS given under the Constitution