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Authority of the  Provisional Court  of Louisiana

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THEAMERICAN LAW REGISTER,MAY, 1865.THE AUTHORITY OF THE "PROVISIONAL COURT"OF LOUISIANA.In the early part of this Volume (p. 66), a statement was givenof the recent organization of a Provisional Court for the stateof Louisiana, by authority of the President of the United States.The extent of the jurisdiction thus created, and the validity ofthe decrees pronounced by Judge PEABODY, under his commis-sion, present questions of novelty as well as interest. Has ajudicial or simply-a military tribunal been created? Are itsjudgments of permanent or temporary force ? Are they conclu-sive upon the rights of parties, or re-examinable by other courts ?As Commander-in-Chief of the Army and Navy of the UnitedStates, the President has the right to declare the existence ofmartial law over territory disputed by armed opposition to thenational authority, when and where he deems it necessary. Andhe has equally the right to delegate to any subordinate the powerof expounding that law, which the Duke of Wellington definedas the will of the military commander.This will is ordinarily expressed only as acting upon the rightsof persons, unless where property is taken for public use, and itis doubtful if more than this is to be included under the termIartial Law, as understood in constitutional governments.During its continuance, however, this will of the military com-mander may evidently extend itself, at his pleasure, to cover andVOL. XIII.-25 (385)AUTHORITY OF THEdetermine all rights of private property and civil controversies,for he represents the force of the state unfettered by its laws.But when the exigency has passed, and the civil authorityresumes its sway, these private rights would be decided, ingeneral, without regard to prior military adjudications. Martiallaw, when pushed to this extent, is the law of the moment andthe bayonet. Its stability is limited by the one ; its authority bythe other.By a military order of the President of the United States,certified by the Secretary of War under the seal of that depart-ment, the Hon. Charles A. Peabody, of New York, was commis-sioned to hold "a Provisional Court, which shall be a court ofrecord for the state of Louisiana, with authority to hear, try,and determine all causes, civil and criminal, including causes inlaw, equity, revenue and admiralty, and particularly all suchpowers and jurisdiction as belong to the District and CircuitCourts of the United States, conforming his proceedings, so faras possible, to the course of proceedings and practice which hasbeen customary in the courts of the United States and Louisiana-his judgment to be final and conclusive."Thus, by a paper dashed off in a few hurried moments (for itstautology and inaccuracy of construction show that it was drawnup with little deliberation), one man, acting on powers given him,at most, only by implication, confers on another all the judicialauthority over an extensive territory which could be granted bythe sovereign power of a state.The criminal jurisdiction granted would seem to be authorized,and the sentences pronounced under it conclusive, for everybreach of the peace is an offence against the military, here thegoverning power; and the offender, therefore, is justly liable topunishment by its officers.'The civil jurisdiction exercised, however, whether terminatingin judgments in rem or in personam, seems not entitled to thesame protection. If two men differ about the title to a horse ora farm, the necessity of the case does not call upon the militarycommander to intervene. So long as their difference does notlead them to break the peace, the military power can only inter-fere as a matter of temporary policy. If the legislative powerdoes not see fit to give such complainants a mode of remedy, itis because it thinks it best, in such times, that they should remainremediless ; and the executive cannot make permanent laws, orPROVISIONAL COURT OF LOUISIANA.give permanent effect to his own temporary law, under a consti-tution, defining a'nd separating, as does ours, the Executive, Leg-islative, and Judicial Departments.An instructive case upon this point is that of Jecker et al. vs.Montgomery, 13 How. 498. During the Mexican War, it wasinconvenient to send home for adjudication the prizes capturedby our naval cruisers on the Pacific coast. At the request of thenaval commander on that station, the President of the UnitedStates erected a Prize Court at Moiiterey, a port of the enemyin our possession, and appointed a chaplain from one of the shipsof war to act as judge, and exercise admiralty jurisdiction incases of capture, reporting his proceedings tb and holding allprize-moneys for distribution upon the order of the Secretary ofthe Navy.A captured vessel having been condemned and sold under pro-ceedings before this court, the owners of the cargo brought theiraction to recover its value, against the commander of the shipmaking the seizure, before a District Court of the United States.In giving the opinion of the Supreme Court, before which thecase came on appeal, TANEY, C. J., remarks: "Under the Con-stitution of the United States, the judicial power of the GeneralGovernment is vested in one Supreme Court, and in such inferiorcourts as Congress shall from time to time ordain and establish.Every court of the United States, therefore, must derive its juris-diction and judicial authority from the Constitution or the lawsof the United States ; and neither the President nor any militaryofficer can establish a court in a conquered country, and authorizeit to decide upon the rights of the United States, or of individu-als in prize cases, nor to administer the laws of nations.-Th6 courts established or sanctioned in Mexico during the war,by the commanders of the American forces, were nothing morethan the agents of the military power, to assist it in preservingorder in the conquered territory, and to protect the inhabitantsin their persons and property, while it was occupied by theAmerican arms. They were subject to the military power, andtheir decisions under its control, whenever the commandingofficer thought proper to interfere. They were not courts of theUnited States, and had no right to adjudicate upon a question ofprize or on prize; and the sentence of condemnation in the courtof Monterey is a nullity, and can have no effect upon the rightsof any party."AUTHORITY OF THEAn equally unanswerable argument against the judicial cha-racter of the Provisional Court is drawn from the tenure of officeof the judge who holds it. See the opinion of MARSHALL, 0. J.,•in Am. Insurance Co. vs. Canter, 1 Pet. 546.The doctrine of these cases applies to the civil adjudications ofJudge PEABODY with a double force. In the state of Louisiana,Congress had actually established what it deemed proper and suffi-cient judicial tribunals. The presiding justice of that circuit (JudgeCATRON) was, when this Provisional Court was established, in theactive performance of his judicial duties at the seat of govern-ment. The places of the district judges, if they had become for-feited, could easily have been filled upon proper proceedings;yet, by a stroke of the pen, these established courts are eitherousted of their jurisdiction, or forced to share it with a tribunalunknown to the laws, and at least one case (that of The BarkcGrapeshot) is in fact transferred from the Circuit Court, to whichit had come on appeal from the District Court for the EasternDistrict of Louisiana, to this Provisional Court, and there broughtto final judgment.What is this, if considered a judicial proceeding, but the sub-stitution of a court of the Executive for a court of the Constitu-tion ? and what is that but the substitution of arbitrary power forconstitutional limitations ?The Constitution, we may admit, allows the President undercertain circumstances to silence all law in a given district andrule it by his military will. But surely it does not allow him towithdraw causes from courts whose legal existence and presentauthority he recognises by the withdrawal, to be decided by him-self or his agents, and claim for such decision the sanctions ofpermanent judicial determinations.There is less doubt about the remaining civil jurisdictionbestowed upon the Provisional Court, that of causes properlycognisable in the state courts. This, not even Congress,and much less the President, could permanently vest in othertribunals, since the authority granted to the United States doesnot embrace it. When conferred upon this military officer, itwas as a temporary measure of military policy, the better to pre-serve the order and contentment of the community. The attach-ment to the forms and sanctions of judicial tribunals, as DeTocqueville has remarked, is a deep-fixed sentiment of the Ameri-can people. If, during a temporary disorganization of civilPROVISIONAL COURT OF LOUISIANA.government, justice must be declared by the voice of militarycommand, our people like better to have it uttered by one bearingthe appellation of judge and acting by a marshal, clerk, and dis-trict attorney-names of familiar authority-than by an officerin uniform with a file of soldiers to enforce his decisions. Andso, from a similar policy, in many of our detached military posts,the commanders have created provost-marshal's courts (as, forexample, " The Provost-]Marshal's Court for the District of, New-bern"), to which writs in ordinary form are returned by an officerstyled,, Constable of the Court."If these views are correct, it would follow that the civil rightsof parties, upon the cessation of military government, are to beregarded as tinaffected by decisions of the Provisional Courts.As was said by Chief Justice MARSHALL in Bose vs. Eimely, 4Cranch 241, in reviewing a judgment in rem pronounced by aprize court in San Domingo, " a sentence professing on its faceto be the sentence of a judicial tribunal, if rendered by a self-constituted body, or by a body not empowered by its governmentto take cognisance of the subject it had decided, could have nolegal effect whatever. The power of the court then is, of neces-sity, examinable to a certain extent by that tribunal which iscompelled to decide whether its sentence has changed the rightof property. The power under which it acts must be lookedinto; and its authority to decide questions which it professes todecide must be considered."The principle which protects adjudications by the courts of adefacto government (as, in England, the judgments of the courtsof 'Cromwell's Protectorate were respected upon the Restoration),will not apply in the case in hand, since we have to deal not witha judicial but with a military tribunal. Judge PEABODY'S courtwould probably be entitled to less regard than a court-martial oftfie ordinary character. Neither would be protected if actingwithout its legal jurisdiction., To give any binding effect to a judgment, it is essential thatthe court should have jurisdiction of the person and of the subject-matter, and the want of jurisdiction is a matter that may alwaysbe set up against a judgment when sought to be enforced, orwhere any benefit is claimed under it. The want of jurisdictionmakes it utterly void and unavailable for any purpose :" Bordenvs. Fitch, 15 Johns. 141; Dynes vs. Hoover, 20 How. 83.The reorganization of the state and national courts for Louis-

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Authority of the Provisional Court of Louisiana

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