may and should inquire into the regularity of his detention.1 It is, however, only in a limited sense that the prisoner is held under color of a Federal law. If he were in custody of any officer of the United States, or were detained under any process from its Courts, they, and they alone, could inquire into the lawfulness of his detention as has been more fully stated elsewhere;2 but being in custody of State officers, State Courts and State judges have concurrent jurisdiction to issue the writ. He may accordingly invoke the protection of either the State or the Federal Courts. If in the former he asserts that he is held in violation of some right given him by the Constitution or statutes of the United States, and the decision is against him, he may, after having fought the case to and through the highest Court of the State to which he may carry it, appeal to the Supreme Court of the United States.

The scope of the inquiry of either State or Federal Courts in such cases is quite limited. They may not ordinarily review the Governor's decision on any disputed question upon which it was his duty to pass, and upon which there was conflicting evidence.3

Whether the person demanded is substantially charged with a crime or not, is a question of law, and open, upon the face of the papers, to judicial inquiry; yet upon an application for a discharge under a writ of habeas corpus, the indictment will not be nicely scrutinized for possible technical defects. It is sufficient if it shows that the defendant is substantially charged with the crime; for the case is not to be tried on habeas corpus.*

The two cases cited show that the petitioner ought not to be returned to the demanding State if it be clearly established that he was not physically present in that State at any time at which he did anything towards effectuating the crime charged against him, but that it is not necessary to his return that he shall have been present in the State when the offense was actually consummated.

382. The Petition for the Writ.-The Revised Statutes prescribe that the application for the writ shall be made by complaint in writing signed by the person for whose benefit it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint are to be verified by the oath of the person making the application. It is further provided that the Court, justice or judge to whom the application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the applicant is not entitled thereto.

383. Federal Court May Issue Rule to Show Cause Why Writ Should Not Issue.-A practice, sanctioned by the Supreme Court, has grown up whereby in many cases the Court, instead of granting the writ, requires the person, to whom it would otherwise be issued, to show cause why it should not be granted.

An application was made to the Supreme Court for a writ of habeas corpus, alleging that the petitioners were confine ì in the jail of Fulton County, Georgia, in the custody of the United States Marshal for the Northern District of Georgia. under sentence of the Circuit Court for that district, and that the trial, conviction and sentence under which they were held were illegal, null and void. On the filing of the petition, the Court issued a rule on the Marshal, or on any person in whose custody the prisoners might be found, to show cause why the writ should not issue for their release. The superintendent of the Albany penitentiary, in the State of New York, made return that the prisoners had been sentenced to that institution for two years and were then confined there. A transcript of the proceedings of the Circuit Court for the Northern District of Georgia was annexed. The Supreme Court said:

"As this return is precisely the same that the superintendent would make if the writ of habeas corpus had been served on him, the court here can determine the right of the prisoners to be released on this rule to show

cause, as correctly and with more convenience in the administration of justice, than if the prisoners were present under the writ in the custody of the superin tendent; and such is the practice of this court.”1

This method of procedure is obviously convenient, especially when, as often happens, the Court is sitting at some considerable distance from the place at which the prisoner is confined. Moreover, where the petitioner is in the custody of State officials, it is more courteous to the State to lay such a rule than to issue the writ in the first instance.

The petition may very well itself show, and indeed very often does show, that the applicant is not entitled to release. Where this appears there is no necessity for issuing the writ. The petitioner cannot retry his case. He cannot in this collateral way attack the proceedings of the Court by which he was indicted or under the order of which he is held in custody, but he can show facts which do not contradict the record, if they are material to the question he wishes to raise.

384. Appeals in Habeas Corpus Cases.-From the grant or refusal of a writ of habeas corpus an appeal lies. Whether it should be taken to the Circuit Court of Appeals, or directly to the Supreme Court, depends upon the kind of question raised by the proceeding. If such question belongs to the class which goes directly to the Supreme Court, the appeal from the habeas corpus proceeding will take the same course; while if the issue passed upon is of the kind over which appellate jurisdiction is given to the Circuit Court of Appeals, the appeal from the grant or refusal of the writ will be taken to that Court.

385. Habeas Corpus ad Testificandum.-A Federal Court may issue the writ of habeas corpus ad testificandum to bring into Court a person whose testimony is required in a cause depending before it, although he is at the time in lawful custody, either State or Federal. He is, of course, returned to that custody so soon as the occasion for his presence in the Federal Court has passed.

1Ex parte Yarborough, 110 U. S. 651

CHAPTER XIV.

CIVIL PROCEDURE OF THE FEDERAL COURTS WHEN SITTING AS COURTS OF LAW.

386. Civil Procedure as Distinguished From Civil Jurisdiction of Federal Courts.-The preceding chapters have treated of those cases which may be instituted in the Federal Courts, or which may be removed into them; that is to say, of the jurisdiction of those Courts. Something has been said about their procedure when dealing with criminal charges. Now attention must be given to the way in which they handle those civil cases which are properly brought in them or which are removed to them from State Courts. In other words, their civil procedure as distinguished from their civil jurisdiction is to be discussed.

387. Pleading in Federal Courts Should Affirmatively Show Existence of Jurisdictional Facts. As has already been pointed out, it is necessary, in the Federal Courts, that the record shall affirmatively show that the Court has jurisdiction of the controversy. It follows that the plaintiff should distinctly allege such facts, as, if true, will confer jurisdiction upon the Court. This rule was early established and has been consistently adhered to. It is a requirement to which, ordinarily, pleading in the State Courts need not conform. Formerly it was enforced with great rigidity, as, for example, when the Supreme Court dismissed for want of jurisdiction, the case in which the defendant in the body of the bill was described merely as of Philadelphia, although in its caption he had been spoken of as a citizen of Pennsylvania.1

388. Distinction Between Law and Equity.-In some States the distinction between the Federal and State

1 Jackson vs. Ashton, 8 Peters, 148.

procedure is more marked than it is in Maryland. In many, if not in most, of the States of the Union, the larger part of the distinctions between law and equity have been broken down. Probably it is only in a minority of them that separate Courts of equity still exist.

The distinction between law and equity and between Courts of law and of equity, is still rigidly maintained in the Federal tribunals.

As has previously been pointed out, the latter understands a case in equity to be a case of the same kind, class and general nature as those proceedings which were held, by the practice of the English High Court of Chancery in 1789, to be of equitable cognizance.

389. In the Federal Appellate Courts it is Sufficient if the Record Anywhere Affirmatively Shows Jurisdiction in the Lower Court.-It is, however, well settled that the appellate Court, in determining whether it sufficiently appears that the Court of first instance had jurisdiction, does not restrict its examination to those pleadings in which jurisdictional facts should properly be alleged and ordinarily are. It is sufficient after verdict or decree below, that they distinctly and affirmatively appear somewhere in the record.1 Appear, however, they must, and that clearly, in what is properly a part of the record; it is not enough that from something therein, it may be gathered, that they propably exist. They must be unambiguously set forth.2

390. Averments of Jurisdictional Allegations Inadvertently Omitted May Be Inserted by Amendment Even After Final Judgment or Decree.-Until within the last few decades, the Supreme Court, when it found that the record did not disclose jurisdiction, directed that the case should be dismissed1 unless both parties agreed to amend the