New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-06-16

The following decision was rendered June
II. 1875:
EY JUSTICE STRONG.
No. :0,:. The Mechan and Traders
BANK. plaintiffs 10 error, Va. tho Union Bank
Of Lou,siaHa.--In error 70 the Snur,me
Conrt OF The State of louisiana
The facts in this case are thu. in Nav,
isb-. alter the capture OF New Orleans by
tns cnited States army. General Butler.
then IN command of the army at that place.
ISSUED general order appointing Major j.
VI. Bel. volunteer aid dc camp Of the divi-
.,;.s S;os ..sh: provost Judge Of the city, and
Nirec'ed that he SHOULD De ObeyeI aud re.
specsed accordingly. The same order ap-
pointed Captain j. II. French provost mar
ana! Ut the city, and Captain Stafford ..epc-
- proves: marshal. A few days after this
order the Cninn Bank lent to the plaintiff.
tbs ssu'n 9: $4,000. and subsequently,, the
loan not aaViog been paid, Brought sui. be.
tore the provost Judge t. recover th.. debt.
lac Ht.e'ss was taken tina: t.l. Judge
hah ii" jurisdiction over civi! eases. but
.ud g'nent was given against the borrowers.
and they paid the money under protest.
J" recover Is back is the object of the
pres.n' su.t. aud the contention of the
:lainslh. - that the Judgment vas illegal
ana so'.i1 bsCaus. the proves. gour. had
no li:Isdic.loH OF the case. The iuIpuant
OF the district court VIZ. a.a.ns. tn. p,sin-
t!fs. and Mi. judgment va. .s.ivtned ty
fhs SuryeMe Court OF the State Tn This
a1hTmance eIGo: Is noy as. .Igued. The argu.
Men' ~ the plaintiffs in error is ,ha. the
establishment %. the proves. cont the an;
Po,ntment Of 'he Judge, and Ii. action a.
snch n 'a- case brough: ac ,hr Union
bar. against them were invalid. because
IN violation ~ the constitution of the
dn'te' States. which vests the .utiica! power
ot .be general government III one Supreme
Court and III such interior cou.ts a, Con
establish, and that under Mi. carsututioOai
provision they were entitled 20 immunity
'roii any liability imposed by the ;ud gment
OF the provost court. Thus. il il claimed. a
fedora! question is presented, and the
highest court of the State having decided
against the immunity claimed, our iari.dic.
tton i. invoked.
Assuming that the case i, thu, brought
within our righ: to review it, the control
ling question is whether tho commanding
general of the army which captured New
Orleans and held 1t in May, 1862, had au-
thofity after the capture OF the city 70
establish court aud appoint judge, with
power to try and adjud!caie civil cases.
DID the constitution Ut the United States
prevent the creation of civil courts in cap
;ured districts during the war of the rebel
lion, and their creation by military author
ity! This can not be said to be an open
question
After noticing Tho decisions which had
been made on the question, tho opinion
proceeded: Then it Las been determined
that the power to establish by military au.
thOrity courts, for the administration of |
civil as we'll as criminal justice in portions
ot the insurgent States occupied by the ma
iIoDal forces, is precisely the same as that |
which exists when foreign territory has |
been conquered and is occupied by the !
conauerOrs. What that power is, has sew |
II, y,a;t |
dorfen and H0ugtOn vs. Webb 20 How,
E6). may be found notable iliustratinn
Upon the conquest of New Mexico in 1916, |
the commanding officer of the conquerirg |
army, N virtue of the power of conquest /
and occupancy, and with the sanction and !
authority of the President, ordained pro-
visional government for the country. lex.
Doe, I'd Sess. 29th Cong, Vol. g. Doc - |
The ordinance created courts. with both
civil and criminal jurisdiction.
1t did not undertake to change the mu
nicipal laws of the Territory bat it estab
lishei judicial system with a superior or
appellate court, and with circuit courts,
the jurisdiction of which was declared to
embrace, first, all crimina! causes that !
should not otherwise be provided for by |
laws: and secondly. original aud exclusive
CogDIzance of all civil cases not cognizable
before the projects and alcaldes. But
though these courts and this judicial sys-
l
shority OF the United States without any
legislation of Congress, this court ruled
that they were lawfully established. And |
there was no express order for their estab-
'ishment emauating from tho President or |
:he c0mmander.in chiet. The ordinance
was the act Of General Kearney, the com.
.nantliug officer OF tho army occupying the
territory.
In view of these decisions it is not 20 be
questioned that tie constitution did not
3tohi bit the creation by military authority |
of courts for the trial OF civil causes during |
che civil war in conquered portions of the
jlsurgenI States. The establishment of
sue courts ia but the exercise of the ordi
nary rights of conquest. The plaintiffs in |
tryor. therefore, had no constitutional iul-
Inunlty against objection to the judgments
Ct such courts. They argue. however, that
j: this be conceded, still General Butler had
40 authority to establish such a court; that |
Ihe President alone. as scommander-inchief,
mad such authority. We do not coincide in 1
lhis view. General Butler was in command
Of chs cOnquering army. He was commits
stoned to carry on the war in Louisiana.
|Is was. therefore. invested with all the +.
powers OF making war. except SO far as ,
they were denied to him by the cOmman
ie.-in chief. and among these powers. :
- ws have seen. was that OF ,,
.stablishiu. courts in conquered ter ,
.itorie.. I, must be presumed tia: he
,c,ed unde. the order Of hi. superior officer. |
he President. and that his acts in the
prosecution OF the war were the acts OF his
commander in chief. Again, is is argued
hat even il the provost court was rightly :
g. s.aolished it had 10 jurisdiction over civil =
suses. 1t must be conceded that the order q
" which the court was created 0ld not de | .
me expressly the nature and extent of its | :,
Jurisdiction. 1t is also trne that a provost y y
ourt ordinarily has CognlZancc only OF :,
Amor criminal offenses, but that 3 larger u
nrisdietion may be given to it by the power \
vhich brings it into being is undeniable: n
Whether a larger jurisdiction was conferred +
, the case now under consideration we are
OF called upon to determine. Il is not
,deral question. The Supreme Court Of u
Ouisiana decided that General Butler had v
right, after tho capture OF New Orleans,
! May, 1862, to appoint iudge to try civil G..
ases, notwithstanding the provisions OF 81
le constitution. Having determined that :.
9 had such q right, we have disposed Of 81 81
le question which entities the case to be =, :,
card here, and it is not for as to inquire =, =,
hether the provost court acted within its ~
lrisdiction or not. That is question ex- ~
usiyely for the State tribunals. ~
In determining as the State Supreme ~
ourt did, that the plaintiffs had 10 euch 81 81
immunity as they claim, VI
ere was no error. Ii in other respects
rors were committed, they are not review. &c
,le bv this court, unless they present some r,
her federal question. Such question,
q plaintiffs allege. is presented. Assum'
q that the Judgment of the provost court
favor of the Union Bank was void for
ant of jurisdiction of the court, they argue .,
at when they paid the sum adiudged VI
,ainst them the law raised an implication Lei
q promise by the Union Bank to refund da