The New York herald., 1869-11-04

cause was IN shis condition when the war broke out
and nothing further done In IL untii 1893 when
lana, established BY President Lincoln In 1852 for
rule requiring tue claimant 70 show cause WY .ne
10 no! %
removal, ana Judge Peabody there subsequently
affirmed the decree Of the District court. ). ).
Appeal was then taken to this court, where u ~
now insisted by the appellant that the decree OF
Judge reabody was nalhty because his court was
established without constitutional authority, New
Orleans having been q part OF the United States
before the IL Is conceded that had New Orleans
~ us W. 'nsM Uower
would have had The right TO establish sucn courts
as the conQneror could establish; but when the gov.
ernment takes possession OF any rebel district "
acquires no new title, but merely vlndcates that
which previously existed Crhe ANY,, warwick.
Spr. 1881 Upon the capture OF New Orleans the
powers OF the President were such % flowed from
his position a. Commander-in- Chief; but he had no
constitution and legislative department he could
establish civil institutions. Congress alone could
establish courts Nor can the plea Of military neces-
sty be maintained In the case for at the time Oh tne
decree New Orleans not IN fact in law, IN On
insurrectionary condition; and In any case the
martial law TO establish such q court. the
judicial power OF the United States was that
Of has udSal mower T6e
constitution provides that 1.-THE judicial power OF the
United States shall be vested In one supreme Court
time to Iime ordan and establish fhls is conciu-
awe But the Jurisdiction fails because the Presi-
OF any reasonable construction, authorize 1t to take
Jurisdiction OF cases pending IN tno United states
ana Judge reaeoay mas Therefore 10 M no sa
because, beng loyal citizen, living IN loyal State,
ne had constitutional right 10 have ms case decided
by the federal Judiciary as known 10 the constltu
tlon The decree IN the case deprives the claimant
OF his property without due process OF law. and Is
ment. An executive order cannot authorize
q violation Of TINS guarantee Inc act oi
CONGRESS !, o. say 1850; tps proc1ns ior Inc
trct and circuit courts does not violate the decree
because In the first place. by that act the DEGREES OF
the Circuit Court, 'unless the same incon-
siscnt with the rules and proceedings thereof and
1t Is submitted that rule in the Circuit Court and
no proceeding therein Is consistent with the recog
milton OF the validity OF decree rendered In the
provisional court IN cause such as the present once
pending on appeal in the Circuit Court. And III the
second place. because, to make particular form Of
decision the decree OF court can, under the con-
sttution, be done only BY the court ITSELF" and
in this case It is sought to be done
by . legislative act. TINS provision or the
act s clearly yaa aae decree 0 Judge Peabody
valid decree tss act OF Congress could not make 1t
more valid. II It was nulty then Congress has
not the power TO give It validity. supplemental
brief y made on the merits, IN case the court shall
reach them.
rebel territory were public enemies OF the United
States and the latter had the same rights aud pow
ers against them which could be exercised In regard
to enemies In case Of foreign war. The hostile soil
and Inhabitants Of Louisiana, conquered BY the
armies Of the United States were held, controlled
and governed by the military power OF the country
OF the Commander-in-Chief, necessary to exc.
cute his powers and duties. Such court
waS therefore, lawfully constituted. The only
exception that has been suggested TO the power OF
the Executive in the organization OF courts In such
cases is found In Jecker vs. Montgomery (l3 Howe,
29S et seQ.l which, while admitting the power to
establish all other species OF courts holds that 1t
does not extend to the establishment OF prize courts
This II not the case OF prize court and is Therefore
not anected BY that decision. But II there Oe auy
doubt as 70 the right Of the Commander In CHIEF to
establish the court then the defect cured by the
act Of Congress which recognizes and confirms the
court, with all its acts and dongs BY the order OF
the Executive constituting the provisional court Its
Judgments were TO be final and conclusive without
appeal. This Court has therefore no Jurisdiction.
General caleb Cushing for appellant, Thomas J.
Dnrant for appellees.
George W. Conn, Of Louisiana, was admitted to
the bar to-day.
The following cases were argued
fremont County, I0lca, Us. The Burlington and
MiSsOurt Railroad; f. X. YOunO S0ls, pidintlGs
in error, Us. Wnl. Mdrtin.-This IL case involving
common carriers lien for freight
UItAted Sdtes Us. Reside, ana Reside rs. the
Unsted Stdtes-C,oSs Appedts.- Reside claimed CON-
Fremont, commander or the Department or the
West, to the amount OF $2060O. THIS service con.
tlnued four months. The Court held that General
Fremonte contract to pay the commissions was un-
authorized and voiJ but allowed Reside $500 for
his services they being deemed valuable to the r0v-
ernment. The government appeals, Claiming that
Reside should have been referred to Congress for
relief, and Reesde appeals, claiming he should have
judgment for his ful commission.
:, re UttReo states Us. Speed d Ddrlss, AMI he
V1s!led SassS e, Robert fsogd7-ApDedls from ne
court o. Ct0unS.