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Doc. 39.-Provisional Court for Louisiana.

By the capture of New Orleans and some of the adjacent ports of the State of Louisiana, a territory of great importance was placed under the control of the Federal arms, and the government of that district was a duty at once cast upon the power holding it. The agricultural and manufacturing interests of this section of [342] country, connected with the two great staples, cotton and sugar would have been sufficient to call for more than the ordinary extemporaneous provisions in such cases; but, in addition to those, it embraced one of the largest commercial cities in the country--one, too, of much wealth and great business activity, and known for many years before as one of the most turbulent and difficult to govern. The only power of the Federal Government there was the military. This in its nature being executive, and purely so, neither the legislative nor the judicial wants were supplied by it. The army could very well execute decrees and orders, but it could not well hear and decide cases; and to provide for the government of this territory while it should be held and occupied by the Federal forces, one of the first things was to establish a judiciary by which controversies could be decided and justice administered.

Some of the earlier experiments in temporary expedients for this purpose were not as successful as could be desired. A large part of the population of Louisiana were foreigners — persons born in Europe who had never been naturalized in the United States, and who still owed allegiance to, and were entitled to the protection of the governments under which they had been born. This class in particular, by the aid of the consuls and agents of their respective governments, had given a great deal of trouble, not only at New Orleans and in Louisiana, to General Butler and the authorities there, but numbers of claims which had been passed upon in one way and another in Louisiana went on appeal to Washington, and were there, through the ministers and agents of the respective governments, pressed upon the attention of the authorities. These cases, as they had not been passed upon by courts of general jurisdiction and permanent powers, had to be re-examined there. In this manner a great amount of labor was thrown upon the President and members of the Cabinet, and sometimes very serious anxieties were occasioned as to the relations of the government with the governments of these complainants. To supply the wants of the State and avoid these complications with foreign powers, this court was created with powers plenary in all cases. The order of the President creating it was in the following words:

Executive order, Establishing a Provisional Court in Louisiana.

Executive mansion, Washington, October 20, 1862.
The insurrection which has for some time prevailed in several of the States of this Union, including Louisiana, having temporarily subverted and swept away the civil institutions of that State, including the judiciary and the judicial authorities of the Union, so that it has become necessary to hold the State in military occupation; and it being indispensably necessary that there shall be some judicial tribunal existing there capable of administering justice, I have, therefore, thought it proper to appoint, and I do hereby constitute a Provisional Court, which shall be a Court of Record for the State of Louisiana, and I do hereby appoint Charles A. Peabody, of New York, to be a Provisional Judge to hold said court, with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, revenue, and admiralty, and particularly all such powers and jurisdiction as belong to the District and Circuit courts of the United States, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the courts of the United States and Louisiana--his judgment to be final and conclusive. And I do hereby authorize and empower the said Judge to make and establish such rules and regulations as may be necessary for the exercise of his jurisdiction, and to appoint a Prosecuting Attorney, Marshal and Clerk of the said court, who shall perform the functions of attorney, marshal, and clerk, according to such proceedings and practice as before-mentioned, and such rules and regulations as may be made and established by said Judge. These appointments are to continue during the pleasure of the President, not extending beyond the military occupation of the city of New Orleans, or the restoration of the civil authority in that city and in the State of Louisiana. These officers shall be paid out of the contingent fund of the War Department, compensation as follows: * * * * * Such compensations to be certified by the, Secretary of War. A copy of this order, certified by the Secretary of War, and delivered to such Judge, shall be deemed and held to be a sufficient commission. Let the seal of the United States be hereunto affixed.

Abraham Lincoln. By the President: William H. Seward, Secretary of State.

War Department, Washington, 23d October, 1862.
I hereby certify that the foregoing is a true copy, duly examined and compared with the original of the executive order of the President of the United States, constituting a Provisional Court for the State of Louisiana.

Witness my hand and the seal of the War Department.

Edwin Mi. Stanton Secretary of War. Attest: John Botts, Chief Clerk.

This order provides a tribunal, with powers as comprehensive as can be desired for any and all purposes. Without limit as to amounts or the nature of the controversies, it confers on Judge Peabody the power to hear and determine all causes of every name and kind, and ordains that his decision shall be final and conclusive.

The language of the order is very clear: “I do hereby appoint Charles A. Peabody, of New York, to be a Provisional Judge to hold said court, with authority to hear, try, and determine all causes, civil and criminal, including causes [343] in law, equity, revenue, and admiralty, and particularly all such powers and jurisdiction as belong to the District and Circuit courts of the United States, * * * * his judgments to be final and conclusive,” leaving no doubt as to either the comprehensiveness of its jurisdiction in respect to the subject-matters embraced, or the extent of its powers as to the conclusiveness of its judgments.

This court went into operation in January, 1863. Its inauguration was announced by a proclamation of General Shepley, then Military Governor of Louisiana, in the following terms:

A proclamation.

State of Louisiana, Executive Department, New Orleans, December 29, 1862.
By an executive order, dated on the twentieth day of October, A. D. 1862, Abraham Lincoln, President of the United States, has constituted an “United States Provisional Court for the State of Louisiana,” and appointed the Hon. Charles A. Peabody to be a Provisional Judge to hold said court.

By the terms of this order he is invested “with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, revenue, and admiralty, and particularly to exercise all such powers and jurisdiction as belong to the District and Circuit courts, conforming his proceedings, as far as possible, to the course of proceedings and practice which has been customary in the courts of the United States and Louisiana; his judgments to be final and conclusive.”

The said Judge is further authorized and empowered to make and establish such rules and regulations as may be necessary for the exercise of his jurisdiction, and to appoint a Prosecuting Attorney, Marshal, and Clerk of the said court.

In the exercise of the authority conferred by this order, the said Judge has appointed George D. Lament, Prosecuting Attorney, Augustus De B. Hughes, Clerk of said court, and Isaac Edwards Clark, Marshal.

Official notice is hereby given of the organization of said court, and of the appointment of the said Charles A. Peabody as Judge, and of the officers of the court by him appointed.

All judgments, decisions, and decrees of said court, and all acts of said officers by them done under the authority of said order, are to be respected and obeyed accordingly.

George F. Shepley, Military Governor of Louisiana.

Under this order it will be seen that the powers conferred were the administration of justice, and that not according to any law designated or suggested. The civil institutions of the country having been swept away, the law theretofore in force there had yielded like the rest, and was no longer in force as the rule of conduct of men, or the guide in the administration of justice. The court therefore was to administer justice, not by any particular law, but in its own way, and to adopt its own rules or laws by which it would be guided in the administration of it; and this very early called for the adoption and promulgation by the court of a system of rules of action.

The court considered it the purpose and duty of the government to govern the country held by its armies in a manner consistent with its own dignity and best interests, and the condition of things brought about by the war in which it was engaged; that in doing this it would have great respect for the interests of those to be governed; that in selecting the system of laws by which transactions between individuals should be governed and controversies decided, the interests of the people of the locality would be chiefly consulted; the government itself having but little interest, except to deal justly, preserve quiet, cultivate contentment, and give the people the system most beneficent for them under all the circumstances of the case. The government naturally looked to the system it found in operation there at the time of the conquest of the country. That system had been introduced there by the wisdom of the country, as best suited to the wants of the community, its habits and pursuits; and it was reasonable to suppose that the selection had been wise, and this circumstance would commend it to the favorable consideration of the government. That system had, moreover, been in force previously, and the transactions and contracts which would be the subjects of consideration in the court, had most of them been entered into while it had been so in force, and, as might fairly be presumed, with reference to it as the system by which they would be construed and carried into effect; and consequently that system (other things being equal) would be most just and beneficial in its operation in those cases; and not less so than any new system in respect to other cases more recently arisen, or those thereafter to arise. The court therefore declared that, as far as the altered condition of things would permit, the system of laws heretofore in Louisiana would be adopted as the one which would be the guide of the court in the administration of justice.

The general orders of the General in command of the Department of course were binding as laws, and were to be respected as of paramount authority by the court.

Those orders made numerous modifications of the law adopted as the basis of the system, and indicated the policy of the government in the many matters to which they related. They were the express or written law of the land for the time, and corresponded in most respects with the statutes enacted by the legislative power in a country under civil administration of government.

All the power of the government being in the military arm, it followed that that arm had the power to dictate laws according to which justice should be administered, as well as to erect courts to administer it. For reasons similar to those which led the court to adopt the laws of [344] Louisiana in matters pecuniary and civil in their nature, the criminal laws of Louisiana were adopted as the rule of the administration of criminal justice. “These laws,” said the court, in a charge to a grand jury, “framed by the wisdom of the State, with an enlightened appreciation of the wants and interests of the community here, will be found best adapted to the government of this country, and will be your guide and rule in your deliberations generally in the performance of your duties as grand jurors.”

The laws of the State, however, in criminal as well as civil matters, he said would not be adhered to inflexibly in the new condition of things.

There were changes in circumstances which must be taken into account in administering criminal justice. These changes and the modifications they would require in the administration of justice, were subjects to be considered by the court in cases as they should arise, and not generally matters that could be provided for by rules of general application. It was natural that certain crimes should become frequent in a state of society broken and chaotic, where the general feeling of obligation and restraint among men was relaxed, and the temptations to crime, growing out of increased wants and temptations, greatly increased, and the punishments must be graduated accordingly.

In most cases where a departure from former laws would become expedient, it would be in the direction of greater mildness in punishment. In some cases, however, a deviation in the opposite direction might be called for by the necessities of the case. A similar rule was adopted as to cases which, under the former system of things, would have been cognizable by the Federal courts. In those cases the same law was applied as would have been administered in the Federal courts in the respective departments of civil and criminal, legal and equitable, admiralty and maritime, jurisprudence.

As soon as the court was ready for business, a large amount was commenced in it of the various kinds to which the habits and pursuits of the country give rise in times of peace, and many questions were presented which arose out of the peculiar circumstances of the times, the previous occupation by the Confederate authorities, acts governmental and personal during that time, and the change of rule by the occupation by the Federal forces. Most of the questions presented were such as arise naturally out of the transactions between men in a community-such as this was, and had been; but many of them were eccentric in their character, arising out of the peculiar state of things existing at the time, and that which had previously existed there in the course of the revolution, the Confederate rule, and the transition from Federal to Confederate, and from Confederate back to Federal government, and the substitution of martial for civil law and government. Many of these were exceedingly novel and peculiar.

The court was always governed by the rules and principles of law, adhering to all the forms of civil tribunals, and avoiding everything like a military administration of justice. In criminal matters it summoned a Grand Jury, and submitted to it all charges for examination. After indictment found, the cases were tried before a jury with all the usual forms of law, and all the rules theretofore in use which were not inconsistent with the existing condition of things. Several capital cases were tried, and convictions were obtained. Three cases were tried in one week, in two of which convictions of murder were had, and in the other a conviction of man-slaughter-such a coincidence as in that licentious country had probably never occurred before, and was not likely soon to occur again.

Crimes against the person there had seldom before been punished at all, and hence this administration of justice in that place was remarkable.

The first court established there was the Provost Court of the army; at first performing only the duties of a military court, then those of a general criminal court.

In addition to these duties, and in the absence of other courts, the Provost Court, from time to time, sometimes by order of the Commanding General, entertained and tried civil suits, and those not only of the usual character arising out of transactions of a pecuniary nature, but those once esteemed of ecclesiastical cognizance, such as successions, the administration of the estates of deceased persons, the custody of infants and their estates, and cases of divorce, not only “a mensa et thoro,” but also “a vinculo matrimonii.”

In that court the pleadings had always been oral; no notes of evidence were taken, and the decision usually followed immediately on the closing of the evidence or arguments of counsel, in cases where arguments were heard.

That court had been doing business some months when the Provisional Court went into operation, and the questions growing out of the actions of that court were among the most novel and eccentric that came before the Provisional Court. The operations of that court had been most beneficent, and it was safe to assume that justice and the best interests of the public would be advanced by sustaining its acts so far as circumstances would permit, and the Provisional Court, therefore, always inclined to sustain its jurisdiction. When, for instance, a divorce “a mensa et thoro” had, been adjudged by that court, on the application of the wife, and more than a year had elapsed without a reconciliation of the parties, the law of Louisiana in such a case giving the plaintiff after the expiration of a year, a right to a complete divorce “a vinculo matrimolii,” and half of the property acquired during coverture, the Provisional Court was applied to, to make the final decree and distribute the property between the parties.

The Provisional Court sustained the jurisdiction [345] of the Provost Court, affirmed its decision, and ordered judgment of divorce, dissolving the bonds of matrimony, and dividing the property of the marriage, and awarding the custody and support of the children. De Barr vs. De Barr.

A Mr. Emerson during the rule of the Confederate authorities, held a mortgage on the property of one Guilloutet. He proceeded to foreclose it, and had obtained an order for the sale of the property. He directed the Sheriff to receive in payment of his mortgage only gold and silver. Guilloutet wished to pay it in Confederate notes. These Emerson refused to receive. Shortly afterwards Emerson was arrested by order of a Confederate Provost-Marshal and carried before him and questioned as to his refusal to receive Confederate notes in payment. He said that he had refused, and further said that as to debts like the mortgage arising out of contracts made prior to the Confederate rule, when the currency was specie or its equivalent, and on which he had paid or loaned specie, he should insist on payment in specie, and should decline to receive Confederate notes. The Provost-Marshal ordered him committed to the parish prison, telling him that he would discharge him whenever he would consent to receive Confederate notes in payment of all sums due him. Being an old man and infirm, he could not remain there without great danger to his life, and he soon yielded to the entreaties of his wife and friends, and gave a written promise to the Provost-Marshal that he would receive those notes in payment of all sums due him, and was discharged. Shortly afterwards the mortgage was paid off by Guilloutet in Confederate notes, and was cancelled off record.

Soon after the Provisional Court was opened, Emerson brought a suit to have the cancellation of the mortgage rescinded and the mortgage restored to its condition as a lien on the premises, and offered to return the Confederate notes to Guilloutet. Since the cancellation of the mortgage, Gilloutet had procured from another person, named Samony, having no knowledge of the manner in which the cancellation of Emerson's mortgage had been effected, another loan, and had given another mortgage on the same property. The holder of this mortgage was also made defendant in Emerson's suit, and the lien of his mortgage was also sought to be cut off or postponed to that of Emerson.

The Court ordered the cancellation to be vacated, and Emerson's mortgage to be restored as a lien on the property, but declined to vacate or postpone the lien of the subsequent mortgage, and excepted that from the operation of Emerson's lien, and established it as prior to that of Emerson's mortgage.

It is not a little remarkable that while things of this kind were of frequent occurrence during the rule of the Confederacy, there is no law of the Confederate States, or of any State of the Confederacy, making these Confederate notes legal tender, or obliging any one to accept them in payment, and the whole matter of urging this currency, so universal throughout the Confederacy, and of which instances were so frequent, and the modes often so fatally violent, was without the warrant or pretence of any warrant of law whatever.

The Court held that its powers to hear and determine finally all cases, embraced not only cases originating therein, but also those commenced and pending in other courts in the State, whose functions were suspended by the Rebellion, and not only those pending in courts of original jurisdiction, when they had been commenced in the State courts and the Federal courts, but also those pending in appellate courts of the State and of the United States within the boundaries of that State, and accordingly cases pending in the Supreme Court of the State, the appellate court of last resort, on appeal from the courts of the several parishes, and those pending in the Circuit courts of the United States on appeal from the District courts of the Eastern and Western districts of Louisiana, were considered as coming within the powers of this court to hear and decide, and some of them were transferred to it by order of this court, and were then heard and determined. Causes pending in other courts were transferred to this court only where the functions of the court in which they were pending were in suspense and they could not be prosecuted to a conclusion there. Where the courts in which they were pending were then in operation and justice could be had there, this court always declined to interfere. Among the cases in which the action of the court was early invoked, were many of a public character on behalf of the government by its officers. Of these some of the most attractive were those of maritime prize, and those arising under the Confiscation acts of 1862. Numbers of these were presented for consideration at an early day. The Court immediately decided that it had not jurisdiction in cases of prize, holding that, although such questions were embraced in the general terms of the order constituting the court, still that in the very nature of the court, deriving its powers, not from the Constitution or laws of the United States, but from the Chief Executive officer and military head of that government, exercising powers conferred on him as such officer by the law of nations, and constituted for and holding its sessions in territory held in military occupation by the forces of the United States, and over which his powers of government were derived from the conquest and military occupation of it, and from the necessities arising from that condition of things, it had not jurisdiction for such purposes, and it declined to entertain them.

Suits in considerable number were also brought on behalf of the United States to enforce the laws of 1862 for the confiscation of the property of those who had taken active part in the rebellion. [346] In answer to these proceedings, it was insisted that the court had not jurisdiction in cases of this class, and very able and elaborate arguments were heard, Mr. George S. Lacey, and Mr. William H. Hunt, and Mr. Roselins, all eminent members of the bar of New Orleans, appearing for the claimants, and Mr. Lamont, the Prosecuting Attorney of the court, appearing for the government. This argument occupied several days, and at the close of it the court took time for consideration. While the question remained undecided, the constitutional courts of the United States for that district were organized and opened, and all business of the kind was transferred, with the approbation of both courts, to the District Court, that being the court in which, by the law itself, questions arising under it were directed to be tried.

The question of jurisdiction was never decided, and was in effect, by subsequent events, withdrawn from consideration. It was understood, however, that Judge Peabody had great doubts of his jurisdiction, and that his doubts arose from an inclination to think that the question was governed by the same rule as that of jurisdiction in cases of prize, in which he had already decided that he had not jurisdiction. If, however, the court had originally had jurisdiction in these cases, in the absence of the Federal court, on which the jurisdiction had been expressly by the act itself conferred, he was quite of the opinion that it did not retain it after the organization and re-establishment of that court, but was thereby divested of it.

In cases of prize the court declined jurisdiction, and in cases of confiscation it doubted its jurisdiction and never exercised it.

In no other class of cases was the jurisdiction of the court ever questioned or doubted. So convincing is the argument of necessity to persons present and witnessing with their own senses its illustrations, that no one was found to doubt that the military power of the United States holding that country in military occupation, had, ex necessitate rei, the right to govern it.

All other powers being suspended by the conquest, it followed that whatever of government it should have must come from that source. That it should have government from some source, no sane man could doubt. That it could in the existing condition of things have it from any other was plainly impossible. It must, therefore, have it from that; and to have refused it would have been not merely a breach of duty, but a violation of one of the first principles and plainest dictates of humanity.

The judgments and mandates of this court were, of course, to be executed. They would be executed by the same power by which the court was constituted. To this the military and naval force at the command of the President was pledged. With this understood, nothing like resistance or a hesitation to obey was ever for a moment experienced.

When the commission of this court was first presented to the bar, the all-embracing comprehonsiveness of its jurisdiction, as to the cases and questions which it was authorized to entertain, and the omnipotence of its judgments, terminating without appeal the rights of the parties in all cases, attracted attention and remark. No serious objection was made to it, however, and soon after it went into operation, the readiness with which it was filled with business of the first magnitude, a great part of which was equally cognizable by other courts then in operation in the parish of Orleans, showed that litigants and the bar were on the whole not at all disposed to shun, but rather were disposed to seek this court, anomalous as it was in its jurisdiction and powers.

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