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[244] 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, and compensation shall be as follows.

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

This so-called court, as its judge said, ‘was always governed by the rules and principles of law, adhering to all the rules and 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.’ Yet, when its judgments and mandates were to be executed, that execution could come only from the same power by which the court was constituted, and that was the military power of the United States holding the country in military occupation. Therefore, to this end the military and naval forces were pledged. Hence it was the military power, as has been said, administering civil affairs.

The Constitution of the United States says:

The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.1

This provisional court was neither ordained nor established by Congress; it had not, therefore, vested in it any of the judicial power of the United States. Neither does the Constitution give to Congress any power by which it can constitute an independent state court within the limits of any state in the Union, as Louisiana was said to be.

This provisional court, therefore, was a mere instrument of martial law, constituted by the commander in chief of the United States forces, not for the usual purposes which justify the establishment of such courts, but to enter the domain of civil affairs and administer justice between man and man in the ordinary transactions of peaceful life. The ministers of martial law are only the representatives of the conqueror, and they sit in his seat of authority to relieve him from the burden of excessive duties, and to administer justice to offenders against his authority and the social

1 Constitution of the United States, Article III, section 1.

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