We concur in the conclusions of the Court of Claims, including the disposition of the particular contention presented in appeal No. 128.

This involved certain claimants, before the court, known "married out and abandoned whites," who alleged that they became citizens of the Cherokee Nation by intermarriage, but conceded that they had since married persons having no rights of Cherokee citizenship by blood, or had abandoned their Cherokee wives. They contended that they could not be deprived of the rights and privileges acquired by intermarriage save by proceedings in the nature of office found. As to this the Court of Claims said (p. 444):

"These intermarried whites are not grantees or devisees seized and in possession of land, occupying the position of defendants. They occupy the contrary position-of plaintiffs seeking to recover money-and it is obligatory upon them to establish their right to it. To say that a white man can share in the property of the Cherokees for the reason that at one time in his life he was the husband of a Cherokee woman, and to say that this court, or the Secretary of the Interior, must hold that he is still the husband of a Cherokee woman because the contrary has not been established in another proceeding, is an appeal to technicality which the court cannot uphold. These claimants, like other plaintiffs, must prove their case; asserting a present right, they must establish present conditions. The laws and usages of the Cherokees, their earliest history, the fundamental principles of their national policy, their constitution and statutes, all show that citizenship rested on blood or marriage; that the man who would assert citizenship must establish marriage; that when marriage ceased (with a special reservation in favor of widows or widowers) citizenship ceased; that when an intermarried white married a person having no rights of Cherokee citizenship by blood it was conclusive evidence that the tie which bound him to the Cherokee people was severed and the very basis of his citizenship obliterated.

"The Cherokee statute which has been cited (Laws of 1892, section 669) gives a proceeding in the nature of office found, but, nevertheless, is confirmatory of the views herein before expressed. It relates to cases where the Cherokee government takes the initiative to accomplish a purpose; that is to say, where an intermarried white man has forfeited his rights of citizenship in the Nation by acts which declare such forfeiture, 'and the Nation requires his removal beyond the limits of its territory,' this proceeding must be resorted to, to be followed by a call on the United States Indian agent 'to remove such a white man.' It is in principle precisely like the commonlaw procedure of office found, and exists for the same reason-that the Government may exercise a right dependent upon only the alienage of a person living within its territory presumably a citizen."

Decree affirmed.

MATTER OF MORAN, PETITIONER.

No. 8, Original. Argued October 15, 1906.-Decided November 5, 1906.

Where the order of the court having authority to designate the place of trial for a newly organized county in Oklahoma is as precise as circumstances permit, the fact that it merely names the town, there being no county or court buildings at the time of trial, does not affect the jurisdiction of the court, where it does not appear that the party complaining lost any opportunities by reason of no building being named. Acts of the legislature of Oklahoma are not laws of the United States within the meaning of § 753, Rev. Stat.

The Fifth Amendment requiring the presentment or indictment of a grand jury does not take up unto itself the local law as to how the grand jury shall be made up, and raise the latter to a constitutional requirement. Under 10 of the Organic Act of Oklahoma of May 2, 1890, 26 Stat. 85, the place of trial of a crime committed in territory not embraced in any organized county is in the county to which such territory shall be attached at the time of trial, although it might have been attached to another county when the crime was committed.

203 U.S.

Argument for Petitioner.

Courts of Oklahoma Territory have jurisdiction to try a person for crime although committed in a part of the Territory not then opened for settlement, it appearing from the acts of Congress that title had passed' to the Territory, and Congress was only exercising control so far as settlement was concerned.

Whether a person on trial is compelled to be a witness against himself contrary to the Fifth Amendment because compelled to stand up and walk before the jury, or because the jury was stationed during a recess so as to observe his size and walk, not decided, but held that it did not affect the jurisdiction of the trial court, and render the judgment void.

THE facts are stated in the opinion.

Mr. Finis E. Riddle, with whom Mr. William I. Cruce was on the brief, for petitioner:

The District Court that caused the indictment and trial of the petitioner was not organized as required by the act of Congress creating it. Sec. 69, p. 75, Wilson's Ann. Stat. of Oklahoma.

Both time and place are essential constituents of the organization of a court. Hobart v. Hobart, 45 Iowa, 503; Columbus v. Woolen Mills Co., 30 Indiana, 436; Greenwood v. Bradford, 128 Massachusetts, 296; King v. King, 1 P. M. W. 19; In re Allison, 13 Colorado, 535; 21 Enc. Pl. & Pr. 608; Northrup v. People, 37 N. Y. 203.

When it is attempted to hold a term or session at a time and place different from those prescribed, all acts done thereat, other than those properly done in vacation, are as a general rule absolutely void. Ex parte Cranch, 63 Alabama, 283; Boynton v. Wilson, 46 Alabama, 510; Garland v. Dunn, 63 Alabama, 404; Wrightnor v. Carsner, 20 Alabama, 446; Napper v. Nolan, 9 Port. (Ala.) 218; Nabor v. State, 6 Alabama, 200; Neal v. Shinn, 49 Arkansas, 227; State v. Williams, 48 Arkansas, 225; Grimet v. Askew, 48 Arkansas, 151; Chapman v. Holmes, 47 Arkansas, 414; Hamm v. State, 22 Arkansas, 207; Brumley v. State, 20 Arkansas, 77; Ex parte Jones, 27 Arkansas, 349; Ex parte Osborn, 24 Arkansas, 379; Dunn v. State, 2 Arkansas, 229; VOL. CCIII-7

Bates v. Gage, 40 California, 183; Clellan v. People, 40 Colorado, 244; American Fire Ins. Co. v. Pappe, 4 Oklahoma, 110; Irwin v. Irwin, 2 Oklahoma, 180.

This court can go behind the judgment and conviction of the trial court and release a party imprisoned in case the uncontradicted record shows that his imprisonment is illegal. Ex parte Neilson, 131 U. S. 176, 182; Ex parte Lang, 18 Wall. 163; Ex parte Seibold, 100 U. S. 371; Ex parte Yerger, 8 Wall. 85; Ex parte Virginia, 100 U. S. 333; Ex parte Carrol, 106 U. S. 521; Ex parte Yarbrough, 110 U. S. 651; Ex parte Bigelow, 113 U. S. 328; In re Cuddy, 131 U. S. 288; Ex parte Mayfield, 141 U. S. 107, 116; Ex parte Bain, 121 U. S. 1; In re Swan, 150 U. S. 648.

Under certain circumstances the record of the trial court may be contradicted. In re Elmira Steel Co., 5 Am. Bank. Rep. 505, and cases decided by this court, cited to support

same.

The jurisdiction of any court may be challenged in any other court where its decrees or judgments are relied on, and the record of the judgment may be contradicted as to the facts necessary to give the court jurisdiction, and if it is shown that such facts did not exist the record will be a nullity, notwithstanding it may recite that such facts did exist. Adams v. Terrill, 4 Fed. Rep. 796; Williamson v. Berrn, 8 Pet. 540; Elliott v. Piersol, 1 Pet. 328; United States v. Arredondo, 6 Pet. 591; Voorhees v. Bank of U. S., 10 Pet. 475; Wilcox v. Jackson, 15 Pet. 511; Thompson v. Whiteman, 18 Wall. 457; Nooes v. Gas Light & Coke Co., 19 Wall. 58; Brown on Jurisdiction, 2d ed., §§ 101-103.

It was a prerequisite to a legal conviction of the petitioner that he should have been indicted by a legal grand jury.

If the legislature of the Territory of Oklahoma was without power to provide by law for the conviction of a person charged with a capital or otherwise infamous crime without a legal indictment, then the court is likewise without power and authority to disregard the laws which are in harmony with

203 U. S.

Argument for Petitioner.

the provisions of the Constitution, and by that means deprive one of its citizens of those fundamental rights which the legislature had no power to do.

The Circuit Court of Appeals erred in its decision in holding in effect that the legislature of Oklahoma could have provided by law for the conviction of the petitioner without the intervention and indictment of a grand jury. Hurtado v. California, 110 U. S. 516; McNulty v. California, 149 U. S. 645; Clinton v. Englebrecht, 13 Wall. 434, 448; Hornbuckle v. Toombs, 18 Wall. 648; Thompson v. Utah, 170 U. S. 344; National Bank v. Yankton, 101 U. S. 129; Webster v. Reed, 11 How. 433, 460; Am. Pub. Co. v. Fisher, 160 U. S. 464; Springville v. Thomas, 166 U. S. 707.

There was a local law of the Territory in force providing for selecting, empaneling, and organizing a grand jury and prescribing the qualifications of same, which was in conflict with the common law procedure and was exclusive, and the failure of the court to substantially follow its provisions and disregarding it in the manner of organizing a grand jury renders that body and its proceedings void was exclusive. Sharp v. United States, 138 Fed. Rep. 878; Clinton v. Englebrecht, 13 Wall. 434, 448; Crowley v. United States, 194 U. S. 461.

When the common law and the statute differ the common law gives place to the statute. State v. Norton, 23 N. J. L. 33; Bent v. Thompson, 5 N. H. 408; Browning v. Browning, 2 N. Mex. 371; Leitensdorfer v. Webb, 1 N. Mex. 345; McKinner v. Winn, 1 Oklahoma, 327; Utah First Nat'l Bank v. Kinner, 1 Utah, 100; People v. Greene, 1 Utah, 11; Luhrs v. Hancock, 181 U. S. 567; Pyeatt v. Powell, 51 Fed. Rep. 561.

The common law is impliedly repealed by a statute which is inconsistent therewith, or which undertakes to revise and cover the whole subject-matter. 9 Enc. Law & Proc. 376, and cases cited; Township of Dubuque v. City of Dubuque, 7 Iowa, 262; In re Hughes, 1 Bland, 46.

Criminal statutes cannot be extended to cases not included