OPINION,

ATTORNEY GENERAL'S OFFICE,

November 29, 1862.

Hon. S. P. CHASE,

Secretary of the Treasury.

SIR: Some time ago I had the honor to receive your letter submit-
ting, for my opinion, the question whether or not *colored men* can be
citizens of the United States. The urgency of other unavoidable
engagements, and the great importance of the question itself, have
caused me to delay the answer until now.

Your letter states that "the schooner Elizabeth and Margaret, of
New Brunswick, is detained by the revenue cutter Tiger, at South
Amboy, New Jersey, because commanded by a 'colored man,' and
so by a person not a citizen of the United States. As colored masters
are numerous in our coasting trade, I submit, for your opinion, the
question suggested by Captain Martin, of the Tiger: *Are colored men
citizens of the United States, and therefore competent to command
American vessels?*"

The question would have been more clearly stated if, instead of
saying *are colored men citizens*, it had been said, *can colored men be
citizens of the United States*; for within our borders and upon our
ships, both of war and of commerce, there may be *colored men*, and
*white men*, also, who are not citizens of the United States. In treat-
ing the subject I shall endeavor to answer your question as if it
imported only this: Is a man legally incapacitated to be a citizen of
the United States by the sole fact that he is a *colored*, and not a
white man?

Who is a citizen? What constitutes a citizen of the United States? I have often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase *citizen of the United States*. I find no such definition, no authoritative establishment of the meaning of the phrase, neither by a course of judicial decision in our courts nor by the continued and consentaneous action of the different branches of our political government. For aught I see to the contrary, the subject is now as little understood in its details and elements, and the question as open to argument and to speculative criticism, as it was at the beginning

4

of the government. Eighty years of practical enjoyment of citizen-
ship, under the Constitution, have not sufficed to teach us either the
exact meaning of the word or the constituent elements of the thing
we prize so highly.

In most instances, within my knowledge, in which the matter of
citizenship has been discussed, the argument has not turned upon
the existence and the intrinsic qualities of citizenship itself, but upon
the claim of some right or privilege as belonging to and inhering in
the character of citizen. In this way we are easily led into errors
both of fact and principle. We see individuals, who are known to be
citizens, in the actual enjoyment of certain rights and privileges, and
in the actual exercise of certain powers, social and political, and we,
inconsiderately, and without any regard to legal and logical conse-
sequences, attribute to those individuals, and to all of their class, the
enjoyment of those rights and privileges and the exercise of those
powers as incidents to their citizenship, and belonging to them only
in their quality of citizens.

In such cases it often happens that the rights enjoyed and the
powers exercised have no relation whatever to the quality of citizen,
and might be as perfectly enjoyed and exercised by known aliens.
For instance, General Bernard, a distinguished soldier and devoted
citizen of France, for a long time filled the office of general of engi-
neers in the service of the United States, all the time avowing his
French allegiance, and, in fact, closing his relations with the United
States by resigning his commission and returning to the service of
his own native country. This, and all such instances, (and they are
many,) go to prove that in this country the legal capacity to hold
office is not confined to citizens, and therefore that the fact of hold-
ing any office for which citizenship is not specially prescribed by law
as a qualification is no proof that the incumbent is an American
citizen.

Again, with regard to the right of suffrage, that is, the right to
choose officers of government, there is a very common error to the
effect that the right to vote for public officers is one of the constitu-
ent elements of American citizenship, the leading faculty indeed of
the citizen, the test at once of this legal right, and the sufficient
proof of his membership of the body politic. No error can be
greater than this, and few more injurious to the right understanding
of our constitutions and the actual working of our political govern-
ments. It is not only not true in law or in fact, in principle or in
practice, but the reverse is conspicuously true; for I make bold to

5

affirm that, viewing the nation as a whole, or viewing the States sepa-
arately, there is no district in the nation in which a majority of the
known and recognized citizens are not excluded by law from the right
of suffrage. Besides those who are excluded specially on account of
some personal defect, such as paupers, idiots, lunatics, and men con-
victed of infamous crimes, and, in some States, soldiers, all females
and all minor males are also excluded. And these, in every com-
munity, make the majority; and yet, I think, no one will venture to
deny that women and children, and lunatics, and even convict felons,
may be citizens of the United States.

Our code (unlike the codes of France, and perhaps some other
nations,) makes no provision for loss or legal deprivation of citizen-
ship. Once a citizen, (whether natus or datus, as Sir Edward Coke
expresses it,) always a citizen, unless changed by the volition and
act of the individual. Neither infancy nor madness nor crime can
take away from the subject the quality of citizen. And our laws do,
in express terms, declare women and children to be citizens. See,
for one instance, the act of Congress of February 10, 1855, 10 Stat.,
604.

The Constitution of the United States does not declare who are
and who are not citizens, nor does it attempt to describe the constitu-
ent elements of citizenship. It leaves that quality where it found it,
resting upon the fact of home, birth, and upon the laws of the sev-
eral States. Even in the important matter of electing members of
Congress it does no more than provide that "the House of Repre-
sentatives shall be composed of members chosen every second year
by the people of the several States, and the electors in the several States
shall have the qualifications requisite for the electors of the most
numerous branch of the State legislature." Here the word citizen is
not mentioned, and it is a legal fact, known of course to all lawyers
and publicists, that the constitutions of several of the States, in
specifying the qualifications of electors, do altogether omit and ex-
clude the word citizen and citizenship. I will refer, in proof, to but
three instances.

1. The constitution of Massachusetts, adopted in 1779-'80, in article 4 of section 3, chapter 1, provides as follows: "Every male person being twenty-one years of age, and resident of a particular town in this commonwealth for the space of one year next preceding, having a freehold estate within the same town of the annual income of three pounds, or any estate of the value of sixty pounds, shall have the

6

right to vote in the choice of representative or representatives for
said town.''

2. The constitution of North Carolina, adopted in 1776, after a bill of rights, and after reciting that "whereas allegiance and protection are, in their nature, reciprocal, and the one should of right be refused when the other is withdrawn," declares, in section 8, "that all *freemen* at the age of twenty-one years, who have been inhabitants of any one county within the State twelve months immediately preceding the day of any election, and shall have paid public taxes, shall be entitled to vote for members of the house of commons for the county in which he resides."

3. The constitution of Illinois, adopted in 1818, in article 2, section 27, declares that "in all elections all *white male inhabitants* above the age of twenty-one years, having resided in the State six months next preceding the election, shall enjoy the right of an elector; but no person shall be entitled to vote except in the county or district in which he shall actually reside at the time of the election."

These three constitutions belong to States widely separated in geographical position, varying greatly from each other in habits, manners, and pursuits, having different climates, soils, productions, and domestic institutions, and yet not one of the three has made *citizenship* a necessary qualification for a voter; all three of them exclude all females, but only one of them (Illinois) has excluded the black man from the right of suffrage. And it is historically true that the practice has conformed to the theory of those constitutions, respectively, for, without regard to citizenship, the colored man has not voted in Illinois, and freemen of all colors have voted in North Carolina and Massachusetts.

From all this it is manifest that American citizenship does not necessarily depend upon nor coexist with the legal capacity to hold office and the right of suffrage, either or both of them. The Constitution of the United States, as I have said, does not define citizenship; neither does it declare who may vote, nor who may hold office, except in regard to a few of the highest national functionaries. And the several States, as far as I know, in exercising that power act independently and without any controlling authority over them, and hence it follows that there is no limit to their power in that particular but their own prudence and discretion; and therefore we are not surprised to find that these faculties of voting and holding office are not uniform in the different States, but are made to depend upon

7

a variety of facts, purely discretionary, such as age, sex, race, color, property, residence in a particular place, and length of residence there.

On this point, then, I conclude that no person in the United States did ever exercise the right of suffrage in virtue of the naked, unasisted fact of citizenship. In every instance the right depends upon some additional fact and cumulative qualification, which may as perfectly exist without as with citizenship.

I am aware that some of our most learned lawyers and able writers have allowed themselves to speak upon this subject in loose and indeterminate language. They speak of "all the rights, privileges, and immunities guaranteed by the Constitution to the citizen" without telling us what they are. They speak of a man's citizenship as defective and imperfect, because he is supposed not to have "all the civil rights," (all the *jura civitatis*, as expressed by one of my predecessors,) without telling what particular rights they are nor what relation they have, if any, with citizenship. And they suggest, without affirming, that there may be different grades of citizenship of higher and lower degree in point of legal virtue and efficacy; one grade "in the sense of the Constitution" and another inferior grade made by a State and not governed by the Constitution.

In my opinion the Constitution uses the word citizen only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other. And I have no knowledge of any other kind of political citizenship, higher or lower, statal or national; or of any other sense in which the word has been used in the Constitution, or can be used properly in the laws of the United States. The phrase "a citizen of the United States," without addition or qualification, means neither more nor less than a member of the nation. And all such are, politically and legally, equal—the child in the cradle and its father in the Senate are equally citizens of the United States. And it needs no argument to prove that every citizen of a State is, necessarily, a citizen of the United States; and to me it is equally clear that every citizen of the United States is a citizen of the particular State in which he is domiciled.

And as to voting and holding office, as that privilege is not essential to citizenship, so the deprivation of it by law is not a deprivation of citizenship. No more so in the case of a negro than in case of a white woman or child.

8

In common speech the word citizen, with more or less of truth and pertinency, has a variety of meanings. Sometimes it is used in contrast with *soldier*; sometimes with *farmer* or *countryman*; sometimes with *alien* or *foreigner*. Speaking of a particular man we ask, Is he a citizen or a soldier? meaning, is he engaged in civil or military pursuits? Is he a citizen or a countryman? meaning, does he live in the city or in the country? Is he a citizen or an alien? meaning, is he a member of our body politic or of some other nation? The first two predicates relate only to the pursuits and to the place of abode of the person. The last is always and wholly political, and concerns only the political and governmental relations of the individual. And it is only in this last sense, the political, that the word is ever used in the Constitution and statutes of the United States.

We have *natural born* citizens, (Constitution, article 2, § 5,) not made by law or otherwise, but *born*. And this class is the large majority; in fact, the mass of our citizens; for all others are exceptions specially provided for by law. As they became citizens in the natural way, *by birth*, so they remain citizens during their natural lives, unless, by their own voluntary act, they expatriate themselves and become citizens or subjects of another nation. For we have no law (as the French have) to *decitizenise* a citizen, who has become such either by the natural process of birth, or by the legal process of adoption. And in this connection the Constitution says not one word, and furnishes not one hint, in relation to the color or to the ancestral race of the "natural born citizen." Whatever may have been said, in the opinions of judges and lawyers, and in State statutes, about negroes, mulattoes, and persons of color, the Constitution is wholly silent upon that subject. The Constitution itself does not *make* the citizens, (it is, in fact, made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the *naturalization* of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former.

And I am not aware of any provision in our laws to warrant us in presuming the existence, in this country, of a class of persons intermediate between citizens and aliens. In England there is such a class, clearly defined by law, and called *denizens*. "A denizen (says Sir William Blackstone) is an *alien born*, but who has obtained, *ex donatione regis*, letters patent to make him an English subject; a high and incommunicable branch of the *royal prerogative*. A denizen is in a kind of middle state between an alien and a natural born subject, and partakes of both of them."—(Sharswood's *Bl. Com.*, 374.)

9

In this country I know of but one legal authority tending to show the existence of such a class among us. One of my learned predecessors, Mr. Legaré, (4 *Opin.*, 147,) supposes that there may be such a class, and that free colored persons may be ranked in it. Yet, in that same opinion, he declares that a "free man of color, a *native* of this country, may be admitted to the privileges of a pre-employer under the 10th section of the act of the 4th September, 1841." And that act declares that a pre-employer must be either a citizen of the United States or a person who had declared his intention to become a citizen, as required by the naturalization laws. Of course, the "colored man" must have been a *citizen* or he could not have entered the land under that act of Congress. If not a citizen *then*, by virtue of his native birth, he never could become one by force of law, for our laws extend the privileges of naturalization to such persons only as are "*aliens*, being free *white* persons," and he was neither; not alien, because natural born in the country, and not a free *white* person, because, though free, confessedly "a man of color."

It occurs to me that the discussion of this great subject of national citizenship has been much embarrassed and obscured by the fact that it is beset with artificial difficulties, extrinsic to its nature, and having little or no relation to its great political and national characteristics. And these difficulties, it seems to me, flow mainly from two sources. First, the existence among us of a large class of people whose physical qualities visibly distinguish them from the mass of our people, and mark a different race, and who, for the most part, are held in bondage. This visible difference and servile connection present difficulties hard to be conquered; for they unavoidably lead to a more complicated system of government, both legislative and administrative, than would be required if all our people were of one race, and undistinguishable by outward signs. And this, without counting the effect upon the opinions, passions, and prejudices of men. Second, the common habit of many of our best and most learned men (the wise aptitude of which I have not been able to perceive) of testing the political status and governmental relation of our people by standards drawn from the laws and history of ancient Greece and Rome, without, as I think, taking sufficient account of the organic differences between their governments and ours.

A very learned writer upon the politics of Greece (Heeren, Bancroft's translation, p. 105) informs us "that the essential character of the new political form assumed by Greece consisted in the cir-

10

cumstance that the free States which were formed were *nothing but cities* with their districts; and their constitutions were, consequently, only *forms of city governments*. This point of view (the learned author warns us) must never be lost sight of.''

And the wise observation of the author applies to Italy as well; for the earliest free cities of Italy were but Greecian colonies, which, (bringing along with them the higher civilization of their parent country, and its better notions of civil polity,) by degrees diffused the light of knowledge, and consequently the love of liberty among the then barbarous people of the Italian peninsula. The Italians, profiting by the good example, founded cities of their own upon the Greecian models, and each new Italian city became an independent State. How long this condition of things continued I know not; but it continued until Rome outgrew all the neighboring communities, and subdued them all (the Grecian colonies included) under its power. Still *the city* ruled, and from time to time granted to such as it would (and withheld from such as it would) the title of *Roman*, and the rights of Roman citizens.

In process of time, when the dominant power of Rome had expanded over Greece and western Asia, the same civil polity was still continued. As it had been in Italy, so it was in Greece and Asia. In the countries and kingdoms subdued by the Roman arms and transferred into Roman provinces, the same system of government still prevailed. Rome, by her pro-consuls and other governors, ruled the conquered nations with absolute sway. And the ruling power at Rome, whether republican or imperial, granted from time to time to communities and to individuals in the conquered east the title of *Roman* and the rights of Roman citizens.

A striking example of this Roman naturalization, of its controlling authority as a political law, and of its beneficent power to protect a persecuted citizen, may be found in the case of St. Paul, as it is graphically reported in the Acts of the Apostles. Paul, being at Jerusalem, was in great peril of his life from his own countrymen, the Jews, who accused him of crimes against their own law and faith, and were about to put him to death by mob violence; when he was rescued by the commander of the Roman troops and taken into a fort for security. He first explained, both to the Roman officer and to his own countrymen, who were clamoring against him, his local status and municipal relations, that he was a Jew of Tarsus, a *natural born citizen* of no mean city, and that he had been brought up in Jerusalem

11

in the strictest manner according to the law and faith of the fathers. But this did not appease the angry crowd, who were proceeding with great violence to kill him. And then "the chief captain commanded that he be brought into the castle, and bade that he should be *examined by scourging*," (that is, tortured to enforce confession.) "And as they bound him with thongs, Paul said unto the centurion that stood by, Is it lawful for you to scourge a man that is *a Roman and uncondemned*? When the centurion heard *that* he went out and told the chief captain, saying, Take heed what thou doest, *for this man is a Roman*. Then the chief captain came and said, Tell me, art thou a *Roman*? He said Yea, and the chief captain said, With a great sum obtained I *this freedom*. And Paul said, But I was *free born*. Then straightway *they* departed from him which should have *examined* him. And the chief captain also was *afraid*, after he knew that he was a *Roman*, and because he had *bound him*."

Thus Paul, under circumstances of great danger and obloquy, as- serted his immunity, as "a Roman uncondemned," from ignominious constraint and cruel punishment, a constraint and punishment against which, as a mere provincial subject of Rome, he had no legal protec- tion. And thus the Roman officers instantly, and with fear, obeyed the law of their country and respected the sacred franchise of the Roman citizen.

Paul, as we know by this record, was a natural born citizen of Tarsus, and as such, no doubt, had the municipal freedom of that city; but that would not have protected him against the thongs and the lash. How he became a *Roman* we learn from other historical sources. Cæsar granted to the people of Tarsus (for some good service done, probably for taking his side in the war which resulted in the establishment of the empire) the title of *Roman*, and the free- dom of Roman citizens. And, considering the chronology of events, this grant must have been older than Paul; and therefore he truly said I was free born—a free citizen of Rome, and as such exempt by law from degrading punishment.

And this immunity did not fill the measure of his rights as a citizen. As a Roman it was his right to be tried by the supreme authority, at the capital of the empire. And when he claimed that right, and appealed from the jurisdiction of the provincial governor to the emperor at Rome, his appeal was instantly allowed, and he was re- mitted to "Cæsar's judgment."

I have dwelt the longer upon this case of Paul because it was a

12

leading case in Roman jurisprudence in the matter of the "jus Romannum." And in so far as there is any analogy between Roman and American citizenship, it is strictly applicable to us. Its authenticity is unquestionable, and by its lucid statement of facts in minute detail leaves no room to doubt the legal merits of the case. It establishes the great protective rights of the citizen, but, like our own national constitution, it is silent about his powers. It protected Paul against oppression and outrage, but said nothing about his right of suffrage or his eligibility to office.

As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than "the accident of birth"—the fact that we happened to be born in the United States. And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the "natural born" right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

That nativity furnishes the rule, both of duty and of right, as between the individual and the government, is a historical and political truth so old and so universally accepted that it is needless to prove it by authority. Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books which, I think, cannot fail to remove all such doubts—Kent's Com., vol. 2, part 4, sec. 25; Bl. Com., book 1, ch. 10, p. 365; 7 Co. Rep., Calvin's case; 4 Tenn. Rep., p. 300; Doe v. Jones, 3 Pet. Rep., p. 246; Shanks v. Dupont; and see a very learned treatise, attributed to Mr. Binney, in 2 Am. Law Reporter, 193.

In every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. In most countries the old law was broadly laid down that this natural

13

connection between the individual and his native country was perpetual; at least, that the tie was indissoluble by the act of the subject alone.—(See Bl. Com. *supra*; 3 Pet. Rep. *supra*.)

But that law of the perpetuity of allegiance is now changed, both in Europe and America. In some countries by silent acquiescence; in others by affirmative legislation. In England, while asserting the perpetuity of natural allegiance, the King, for centuries past, has exercised the power to grant letters of denization to foreigners, making them English subjects, and the Parliament has exercised at pleasure the power of naturalization.

In France the whole subject is regulated by written law, which plainly declares who are citizens (*citoyens Français*) and who are only the French. (*Français*,) meaning the whole body of the French people.—(See *Les Codes Français*, * titre premier*.) And the same law distinctly sets forth by what means citizenship and the quality of French may be lost and regained ; and maintains fully the right of expatriation in the subject, and the power of naturalization in the nation to which he goes.

In the United States it is too late now to deny the political rights and obligations conferred and imposed by nativity ; for our laws do not pretend to create or enact them, but do assume and recognize them as things known to all men, because pre-existent and natural ; and therefore things of which the laws must take cognizance. Acting out this guiding thought, our Constitution does no more than grant to Congress (rather than to any other department) the power "to establish a *uniform rule* of naturalization." And our laws made in pursuance thereof indue the made citizen with all the rights and obligations of the natural citizen. And so strongly was Congress impressed with the great legal fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the *alienage* of children of our known fellow-citizens who happen to be born in foreign countries. The act of February 10, 1855, 10 Statutes, 604, provides that "persons," (not *white* persons,) "persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: *Provided*, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.

SEC. 2. *And be it further enacted,* That any woman who might law-

whose fathers were or shall be, at the time of their
birth, citizens of the United States,

14

fully be naturalized under the existing laws, married, or who shall be
married to a citizen of the United States, shall be deemed and taken
to be a citizen.''

But for that act, children of our citizens who happen to be born at
London, Paris, or Rome, while their parents are there on a private
visit of pleasure or business, might be brought to the native home of
their parents, only to find that they themselves were aliens in their
fathers' country, incapable of inheriting their fathers' land, and with
no right to demand the protection of their fathers' government.

That is the law of birth at the common law of England, clear and
unqualified; and now, both in England and America, modified only by
statutes, made from time to time, to meet emergencies as they arise.

I have said that, *prima facie*, every person in this country is born
a citizen; and that he who denies it in individual cases assumes the
burden of stating the exception to the general rule, and proving the
fact which works the disfranchisement. There are but a few excep-
tions commonly made and urged as disqualifying facts. I lay no stress
upon the small and admitted class of the *natural born* composed of the
children of foreign ministers and the like, and

1. *Slavery*, and whether or no it is legally possible for a slave to be a citizen. On that point I make no question, because it is not within the scope of your inquiry and does not concern the person to whom your inquiry relates.

2. Color.—It is strenuously insisted by some that "persons of color," though born in the country, are not capable of being citizens of the United States. As far as the Constitution is concerned, this is a naked assumption; for the Constitution contains not one word upon the subject. The exclusion, if it exists, must then rest upon some fundamental fact which, in the reason and nature of things, is so inconsistent with citizenship that the two cannot coexist in the same person. Is mere color such a fact? Let those who assert it prove that it is so. It has never been so understood nor put into practice in the nation from which we derive our language, laws, and institutions, and our very morals and modes of thought; and, as far as I know, there is not a single nation in Christendom which does not regard the new-found idea with incredulity, if not disgust. What can there be in the mere color of a man (we are speaking now not of race, but of color only) to disqualify him for bearing true and faithful alle-

15

giance to his native country, and for demanding the protection of
that country? And these two, allegiance and protection, constitute
the sum of the duties and rights of a "natural born citizen of the
United States."

3. Race.—There are some who, abandoning the untenable objection of color, still contend that no person descended from *negroes of the African race* can be a citizen of the United States. Here the objection is not to color, but *race* only. The individual objected to may be of very long descent from African negroes, and may be as white as leprosy, or as the intermixture for many generations with the Caucasian race can make him; still, if he can be traced back to *negroes of the African race*, he cannot, they say, be a citizen of the United States! And why not? The Constitution certainly does not forbid it, but is silent about *race* as it is about color.

Our nationality was created and our political government exists by
written law, and inasmuch as that law does not exclude persons of
that descent, and as its terms are manifestly broad enough to include
them, it follows inevitably that such persons, born in the country,
must be citizens, unless the fact of African descent be so incompatible
with the fact of citizenship that the two cannot exist together.
If they can coexist, in nature and reason, then they do coexist in
persons of the indicated class, for there is no law to the contrary. I
am not able to perceive any antagonism, legal or natural, between the
two facts.

But it is said that African negroes are a degraded race, and that
all who are tainted with that degradation are forever disqualified for
the functions of citizenship. I can hardly comprehend the thought
of the absolute incompatibility of degradation and citizenship. I
thought that they often went together. But if it be true with regard
to races, it seems to me more cogently true with regard to individuals.
And if I be right in this, there are many sorrowful examples in the legislation
and practice of various States in the Union
to show how low the citizen may be degraded by the combined wisdom
and justice of his fellow-citizens. In the early legislation of a
number of the States the most humiliating punishments were denounced
against persons guilty of certain crimes and misdemeanors—
the lash, the pillory, the cropping of the ears, and the branding of
the face with an indelible mark of infamy. And yet a lower depth:
in several of the States the common punishment of the crime of vagrancy
was sale into bondage at public auction! And yet I have not

16

read that such unfortunates thereby lost their natural born citizen-
ship, nor that their descendants are doomed to perpetual exclusion
and degradation.

I am inclined to think that these objections, as to color and ances-
tral race, arise entirely from a wrong conception of the nature and
qualities of citizenship, and from the loose and unguarded phrase-
ology too often used in the discussion of the subject. I have already
given, at some length, my own views of the word and the thing—
citizenship. And now I will add only a few observations before
drawing your attention to certain authorities upon the subject mostly
relied upon by those who support the objections.

In my opinion it is a great error, and the fruitful parent of errors,
to suppose that *citizens* belong exclusively to republican forms of gov-
ernment. English subjects are as truly citizens as we are, and we
are as truly subjects as they are. Imperial France (following impo-
rial Rome) in the text of her laws calls her people citizens.—(Les
Codes Français, book 1, tit. 1, ch. 1, and notes.) And we have a
treaty with the present Emperor of the French, stipulating for re-
ciprocal rights in favor of the *citizens* of the two countries, respec-
tively.—(10 Stat., p. 996, art. 7.)

It is an error to suppose that citizenship is ever hereditary. It
never "passes by descent." It is as original in the child as it was
in his parents. It is always either born with him or given to him
directly by law.

In discussing this subject it is a misleading error to fail to mark the
natural and characteristic distinction between political *rights* and po-
litical *powers*. The former belong to all citizens alike, and cohere in
the very name and nature of citizenship. The latter (participation
in the powers of government by voting and exercising office) does
not belong to all citizens alike, nor to any citizen, merely in virtue of
citizenship. His *power* always depends upon extraneous facts and
superadded qualifications; which facts and qualifications are common
to both citizens and aliens.

In referring to the authorities commonly adduced by those who
deny the citizenship of colored people, I do not pretend to cite them
all, but a few only of such as I believe to be most usually relied upon.
And I will not trouble you with a detailed examination of the reasoning
employed in each case, for I have already stated my own views of the
principles and laws involved in the question; and where they con-
flict with the arguments upon which the contrary opinion is founded
I still adhere to my own.

17

The first of these authorities of which I will treat is the opinion of my predecessor, Mr. Wirt, upon a case precisely like the present, except that in that case the "free person of color" was a Virginian, and the objections to his competency were founded mainly, if not entirely, upon Virginia law.—(See Opinions of Attorneys General, vol. 1, p. 506, date November 7, 1821.) I have examined this opinion with the greater care, because of the writer's reputation for learning and his known and varied excellencies as a man.

In that case the precise question was, "whether free persons of color are, in *Virginia*, citizens of the United States, within the intent and meaning of the acts regulating foreign and coasting trade, so as to be qualified to command vessels." And thus Mr. Wirt was in a manner invited to consider the question rather in a statal than a national point of view; and hence we ought not to be surprised to find the whole argument for the exclusion based upon local institutions and statal laws.

As a general answer to all such arguments, I have this to say: Every citizen of the United States is a component member of the nation, with rights and duties, under the Constitution and laws of the United States, which cannot be destroyed or abridged by the laws of any particular State. The laws of the State, if they conflict with the laws of the nation, are of no force. The Constitution is plain beyond cavil upon this point. Article 6: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." And from this I assume that every person who is a citizen of the United States, whether by birth or naturalization, holds his great franchise by the laws of the United States, and above the control of any particular State. Citizenship of the United States is an integral thing, incapable of legal existence in fractional parts. Whoever, then, has that franchise is a whole citizen and a citizen of the whole nation, and cannot be (as the argument of my learned predecessor seems to suppose) such citizen in one State and not in another.

I fully concur in the statement that "the description, *citizen of the United States*, used in the Constitution, has the same meaning that it has in the several acts of Congress passed under the authority of the Constitution." And I freely declare my inability to conceive of any second or subordinate meaning of the phrase as used in all those

2

18

instruments. It means in them all the simple expression of the
political status of the person in connection with the nation—that he is
a member of the body politic. And that is all it means, for it does
not specify his rights and duties as a citizen, nor in any way refer to
such "rights, privileges, and immunities" as he may happen to have,
by State laws or otherwise, over and beyond what legally and naturally
belong to him in his quality of citizen of the United States. State
laws may and do, nay must, vest in individuals great privileges,
powers, and duties which do not belong to the mass of their fellow-
citizens, and in doing so they consult discretion and convenience only.
One citizen, who happens to be a judge, may, under proper circum-
stances, sentence another to be hanged, and a third, who happens to
be governor, may grant a pardon to the condemned man, who, as a
citizen, is the undoubted peer of both the judge and the governor.

As to the objection (not in law, but sentiment only) that if a negro
can be a citizen of the United States he might, possibly, become
President, the legal inference is true. There would be such a legal
possibility. But those who make that objection are not arguing
upon the Constitution as it is, but upon what, in their own minds and
feelings, they think it ought to be. Moreover, they seem to forget
that all limitations upon eligibility to office are less restrictions upon
the rights of aspirants than upon the powers of electors. Even the
legislature of the State, however unanimous, have no power to send
to the Senate of the United States their wisest and best man, unless
he be thirty years old. And all the people of the nation, speaking
with one united voice, cannot, constitutionally, make any man Presi-
dent who happens to be under thirty-five. This is, obviously, a
restriction upon the appointing power—that is, in our popular govern-
ment, a restriction upon the people themselves. As individuals we
may like it or dislike it, and flatter ourselves into the belief that we
could make a wiser and better frame of government than our fathers
made. Still it is our Constitution, binding upon us and upon every
citizen from the moment of birth or naturalization.

The Constitution, I suppose, says what it means, and does not
mean what it does not say. It says nothing about "the high char-
acteristic privileges of a citizen of the State" (of Virginia or any
other.) I do not know what they were, but certainly in Virginia, for
the first half of the existence of the commonwealth, the right of
suffrage was not one of them. For during that period no man ever
voted there *because* he was a free white adult male citizen. He voted
on his freehold, in land; and no candidate, in soliciting his election,

19

appealed to the people or the citizens, but to the *freeholders* only, for they alone could vote.

I shall not trouble you with any argument touching the list of dis- abilities declared by the laws of Virginia against free negroes and mulattoes, as stated in the opinion, because they are such only as the legislature, if so minded, might have denounced as well against a portion of its own acknowledged citizens, whose weakness might necessitate submission.

It is said in the opinion that "the allegiance which the free man of color owes to the State of Virginia is no evidence of citizenship, for he owes it not in consequence of an oath of allegiance." This proposition surprises me; perhaps I do not understand it. I did verily believe that the oath of allegiance was not the cause but the sequence of citizenship, given only as a solemn guarantee for the performance of duties already incurred. But if it be true that the oath of allegiance must either create or precede citizenship, then it follows, of necessity, that there can be no *natural born citizen*, as the Constitution affirms, because the child must needs be born before it can take the oath.

The opinion, supported by the arguments upon which I have com- mented, is in these words:

"Upon the whole, I am of the opinion that free persons of color in Virginia are not citizens of the United States, within the intent and meaning of the acts regulating foreign and coasting trade, so as to be qualified to command vessels."

As an authority this opinion is rebutted by the opinion of Attorney General Legaré, above cited.—(4 Op. A. G., 147, date March 15, 1843.) Under an act of Congress which limited the pre-emption of public land to citizens of the United States and aliens who had declared intention to become citizens, according to the naturalization laws, Mr. Legaré was of opinion that a free colored man was competent to pre-empt the land.

In that same opinion Mr. Legaré makes a just distinction between political and civil rights, which, I believe, is common to most nations. The French code expresses it very plainly, thus: "L'exercice des droits civils est ind pendant de la qualité de citoyen, laquelle ne s'acquiert et ne se conserve que conformément à la loi constitutionnelle."

The next authority I shall consider is a decision of the Department of State made in Mr. Marcy's time. November 4, 1856, and evidenced

20

by a letter of that date from Mr. Thomas, Assistant Secretary, to Mr. Rice, of New York. That decision is entitled to great consideration, because upon such political questions the Secretary of State is of high authority. The case was an application for passports to travel in foreign parts, in favor of certain free blacks of some of the northern States, and the time was a few months after the passage of the act of August 18, 1856, (the first act directing the issuing of passports to individuals and restricting the issue to *citizens* of the United States, though the practice is much older.)

The letter, after stating the case, declares emphatically that "if this be so (i. e., if they be negroes) there can be no doubt that they are not citizens of the United States." If this stood alone there could be no doubt of the opinion of the department at that time. But it does not stand alone. The letter, after citing several authorities, and among them one from Tennessee, to which I will have occasion to refer by name, concludes with this qualifying paragraph, which leaves some doubt as to what was the real practical opinion of Mr. Secretary Marcy at that time. The letter, assuming that a passport is a certificate of citizenship, proceeds to say:

"Such being the construction of the Constitution in regard to free persons of color, it is conceived that they cannot be regarded, *when beyond the jurisdiction of this government*, as entitled to the full rights of citizens, but the Secretary directs me to say that though the department could not certify that such persons are citizens of the United States, yet satisfied of the truth of the facts, it would give a certificate that they were *born in the United States*, are free, and that *the government thereof would regard it to be its duty* to protect them, if wronged by a foreign government, while within its jurisdiction for a legal and proper purpose."

It seems to me that the certificate proposed to be given would be, in substance and fact, a good passport, for the act of Congress prescribes no form for the passport, and requires no particular fact to appear upon its face. And I confidently believe that there is not a government in Europe which, in view of our laws of citizenship, would question the validity of a passport which declares upon its face that the bearer is a free natural born inhabitant of the United States.

I turn now to the consideration of the Tennessee case, referred to and relied upon in the letter from the State Department, the State of Tennessee vs. Ambrose, (1 Meig's R., 331,) adjudged in 1838. Ambrose, being a free negro emancipated in Kentucky, moved to and

21

settled in Tennessee. He was indicted for that crime against the
Tennessee statute, made to prevent the ingress of that sort of people.
He demurred to the indictment upon the ground that he was a citizen
of Kentucky, and as such had a right under the Constitution of the
United States (art. 4, sec. 2) to go to and abide in Tennessee in spite
of the State statute. The court in which the indictment was found
sustained the demurrer. The public prosecutor took the case up to
the supreme court, where the judgment below was reversed, and it
was held by the court that Ambrose, under the circumstances, could
not be a citizen of Kentucky, and therefore could not claim the pro-
tection of the national Constitution as against the Tennessee statute.

I must trouble you with a few remarks upon certain passages in
the opinion of the court, which constitute the foundation of the judg-
ment, and without which the judgment itself, having no legal basis
to rest upon, ought not to have any authority as a precedent.

The court, after stating the case and citing from the Constitution,
(art. 4, sec. 2,) "the citizens of each State shall be entitled to all
the privileges and immunities of citizens in the several States," pro-
ceeds: "the citizens here spoken of (says the supreme court of Ten-
nessee) are those who are entitled to 'all the privileges and immunities
of citizens.' But free negroes, by whatever appellation we call them,
were never in any of the States entitled to all the privileges and im-
munities of citizens, and consequently were not intended to be in-
cluded when this word was used in the Constitution."

"In this country," (continues the court,) "under the free government
created by the Constitution, whose language we are expounding, the
humblest white citizen is entitled to all 'the privileges and immunities'
which the most exalted one enjoys. Hence, in speaking of the rights
which a citizen of one State shall enjoy in every other State, as ap-
plicable to white men, it is very properly said that he should be en-
titled to all the privileges and immunities of citizens in each other
State. The meaning of the language is that no privilege enjoyed by,
or immunity allowed to, the most favored class of citizens in said
State shall be withheld from a citizen of any other State. How can
it be said that he enjoys all the privileges, when he is scarcely allowed
a single right in common with the mass of the citizens of the State?

"It cannot be; and therefore either the free negro is not a citizen,
in the sense of the Constitution, or, if a citizen, he is entitled to 'all
the privileges and immunities' of the most favored class of citizens.
But this latter consequence will be contended for by no one. It must
then follow that they are not citizens."

22

These are the foundations of the judgment in the case of Ambrose,
and not only in that but in almost every similar case which I have
had occasion to examine. A good deal of what I have already said
is strictly applicable here, and in trying to show the fallacy of the
reasoning of the court in Tennessee I must take the risk of some
needless repetition.

The leading thought, that indeed which seems to have compelled
the judgment against Ambrose is, in my opinion, a naked assumption,
not supported by any word of written law, nor maintainable by logical
argument. It is assumed that a person to be a citizen at all must
have all the rights, privileges, and immunities which the most favored
one enjoys; all of the most favored class of citizens. Now, if there
be grades and classes of citizens, (which I am not exactly willing to
admit,) it would seem that there must be something to distinguish
the grades; some difference in the rights, privileges, and immunities
of the different classes. And yet the court, while asserting the ex-
istence of different classes of citizens, asserts also their equality,
by declaring that "the humblest white citizen is entitled to all the
'privileges and immunities' which the most exalted one enjoys."
Then what marks the difference of classes? By what line can we
separate humility from exaltation, as applied to a citizen?

In fact, it seems to me that the difficulties which surround the
subject are artificial, created by the habitual confounding of things
different in their nature and origin, and by the persistent abuse of
language. No distinction is drawn between the rights and duties of
a man as a citizen and his rights and duties as a member of society,
without regard to his citizenship. The first are political merely—the
last civil and social only. And the words *rights, privileges, immuni-
ties* are abusively used, as if they were synonymous. The word *rights*
is generic, common, embracing whatever may be lawfully claimed.
*Privileges* are special rights belonging to the individual or class, and
not to the mass. *Immunities* are rights of exemption only—freedom
from what otherwise would be a duty, obligation, or burden. For
instance, the constitution of Tennessee (art. 4, sec. 1) declares that
"all free men of color shall be exempt from military duty, in time of
*peace*, and also from paying a free poll-tax." This is an immunity.

But whether there be or be not grades and classes of citizens,
higher or lower, more or less favored, is wholly immaterial to this
question. For the Constitution speaks of *citizens* only, without any
reference to their rank, grade, or class, or to the number or magni-
tude of their rights, privileges, and immunities—*citizens* simply, with-

23

out an adjective to qualify, enlarge, or diminish their rights and capacities. Therefore, if there be grades and classes of citizens, still, the lowest individual of the lowest possible class is a citizen, and as such fills the requirement of the Constitution.

If we must have grades and classes of citizens, higher and lower, more and less favored, it seems to me impossible to sustain the proposition of the court that the humblest and the most exalted are entitled to equal privileges and immunities. A free, white, natural born female infant is certainly a citizen, and I suppose it would be but reasonable to place her in the lowest class. And I assume that it would not be deemed unreasonable to call that class the highest out of which the President must be chosen. If eligibility to the presidency be a privilege in the lawful candidate—a peculiar right belonging to him, and not to the mass of citizens, then there is some difference; she is not entitled to all his privileges.

Those who most indulge in the assumption that to constitute a citizen at all the person must have all the privileges and immunities which any citizen can enjoy, rarely venture to specify precisely what they mean. Generally, I think, the inference is plain that they mean suffrage and elegibility; and, in that connection, I think I have already shown that suffrage and elegibility have no necessary connection with citizenship, and that the one may, and often does, exist without the other.

Again, "immunities" are enjoyed to a very large extent by free negroes in all the slaveholding States. They are generally exempted by law from the onerous duties of jurors in the courts, and militia men in the field; and these are immunities eagerly desired by many white men in all the States.

In another part of that opinion, the court declares that the word "freemen," as used in the constitution of Tennessee, is equivalent to citizen; and yet the court denies, that the phrase "freemen of color," used in the same constitution, is a proper designation of citizens! I close my remarks upon that case with an extract from the constitution of Tennessee, (which was originally made in 1795, and amended in 1835,) reminding you only that, until 1790, Tennessee was a part of North Carolina and subject to its constitution and laws, and hence the peculiar phraseology of the extract:

"Article 4, section 1. Every free white man, of the age of twenty-one years, being a citizen of the United States and a citizen of the county wherein he may offer his vote six months next preceding the day of

24

election, shall be entitled to vote for members of the general assem-
bly and other civil officers for the county or district in which he re-
sides: Provided, that no person shall be disqualified for voting, in any
election, on account of color, who is now, by the laws of this State, a
competent witness in a court of justice against a white man. All free-
men of color shall be exempt from military duty in time of peace, and
also from paying a free poll-tax."

Finally, the celebrated case of Scott vs. Sandford, 19 Howard's Reports, 393, is sometimes cited as a direct authority against the capacity of free persons of color to be citizens of the United States. That is an entire mistake. The case, as it stands of record, does not determine, nor purport to determine, that question. It was an ordinary suit for freedom, very common in our jurisprudence, and especially provided for in the legislation of most of the slaveholding States, as it is in Missouri. For convenience the form of the action usually is (and is in this case) trespass, alleging an assault and battery and false imprisonment, so as to enable the defendant, (the master,) if he choose, to make a direct issue upon the freedom or slavery of the plaintiff, which is the real point and object of the action, by pleading, in justification of the alleged trespass, that the plaintiff is a slave—his own or another man's.

Such an action, Dred Scott, if entitled to freedom, might have
brought in the State court, without any allegation of citizenship, and
without being, in fact, a citizen. But it seems he desired to bring
his action in the circuit court of the United States in Missouri; and,
to enable him to do that he had to allege citizenship, because Mr.
Sandford, the defendant, was a citizen of New York, and unless the
plaintiff were a citizen of Missouri (or some other State) the national
court had no jurisdiction of the case.

The plaintiff having made his election to sue in the United States
court, the defendant might, if he would, have pleaded in bar to the
merits of the action, but he exercised his election to plead in abatement to the jurisdiction of the court; thus, that the action, if any, "accrued to the said Dred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that, to wit, the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, [not because he was not born there, and born free, but] because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the

25

said Sandford is ready to verify. Wherefore he prays judgment
whether this court can or will take further cognizance of the action
aforesaid.'' To this plea the plaintiff demurred, and the circuit court
sustained the demurrer, thereby declaring that the facts stated in the
plea, and confessed by the demurrer, did not disqualify Scott for being
a citizen of Missouri, and so that the United States circuit court had
jurisdiction of the cause.

The circuit court having taken jurisdiction, the defendant had, of
course, to *plead over* to the merits of the action. He did so, and
issues were joined, and there was an elaborate trial of the facts, which
resulted in a verdict and judgment in favor of the defendant. And
thereupon the plaintiff brought the case up to the Supreme Court by
writ of error.

The power of the Supreme Court over the proceedings and judgments of the circuit court is appellate only, and this for the sole purpose of enabling the court above to affirm what has been rightly done, and reverse what has been wrongly done in the court below. If the error of the court below consist in the illegal assumption of power to hear and determine the merits of a case not within its jurisdiction, of course the court above will correct that error, by setting aside whatever may have been done by that usurped authority. And in doing this the court above has no more power than the court below had to hear and determine the merits of the case. And to assume the power to determine a case not within the jurisdiction is as great an error in the court above as in the court below; for it is equally true, in all courts, that the jurisdiction must first be ascertained before proceeding to judgment.

In this particular case the Supreme Court did first examine and
consider the plea in abatement, and did adjudge that it was a good
plea, sufficient to oust the jurisdiction of the circuit court. And
hence it follows, as a necessary legal consequence, that whatever was
done in the circuit court after the plea in abatement, and touching
the merits of the case, was simply void, because done *coram non*
*judice*.

Pleas in abatement were never favorites with the courts in England
or America. Lord Coke tells us that they must be "certain to a certain
intent, in every particular," and in practice they are always
dealt with very strictly. When, therefore, the Supreme Court affirmed
the plea in abatement in this case, I assume that it is affirmed, in
manner and form, as written, and not otherwise. And this not merely

3

26

because pleas in abatement are always considered *stricti legis*, but also, and chiefly, because the decision tends to abridge the valuable rights of persons natural born in the country, which rights ought not to be impaired, except upon the clearest evidence of fact and law.

Taking the plea, then, strictly as it is written, the persons who are excluded by this judgment from being citizens of Missouri must be negroes, not mulattoes nor mestizos, nor quadroons. They must be of *African* descent, not Asiatic, even though they come of the blackest Malays in southeastern Asia. They must have had *ancestors*, (yet that may be doubtful, if born in slavery, of putative parents, who were slaves, and being slaves, incapable of contracting matrimony, and therefore every child must needs be a bastard, and so, by the common law, *nullius filius*, and incapable of ancestors.) His ancestors, if he had any, must have been of *pure* African blood, not mixed with the tawny Moor of Morocco or the dusky Arab of the desert, both of whom had their origin in Asia. They must have been *brought* to this country, not come voluntarily; and *sold*, not kept by the importer for his own use, nor given to his friends.

In this argument I raise no question upon the legal validity of the judgment in Scott vs. Sandford. I only insist that the judgment in that case is limited in law, as it is, in fact, limited on the face of the record, to the plea in abatement; and, consequently, that whatever was said in the long course of the case, as reported, (240 pages,) respecting the legal merits of the case, and respecting any supposed legal disability resulting from the mere fact of color, though entitled to all the respect which is due to the learned and upright sources from which the opinions come, was "*dehors the record*," and of no authority as a judicial decision.

To show that, notwithstanding all that was said upon other subjects, the action of the court was strictly confined to the plea in abatement, I copy the judgment:

"Upon the whole, therefore, it is the judgment of this court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution, and that the circuit court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction."

And now, upon the whole matter, I give it as my opinion that the *free man of color*, mentioned in your letter, if born in the United States,

27

is a citizen of the United States, and, if otherwise qualified, is com-
petent, according to the acts of Congress, to be master of a vessel
engaged in the coasting trade.

All of which is respectfully submitted by your obedient servant,

EDWARD BATES,

Attorney General.

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 M. STANTON, Secretary of War.

Attest:

JOHN BOTTS, Chief Clerk.

United States Provisional Court

FOR THE STATE OF LOUISIANA.

Before the Hon. CHARLES A. PEABODY, Judge.

UNITED STATES,
vs.
AUGUSTE REITER.

UNITED STATES,
vs.
JOHN LOUIS.

These cases were tried on the indictments against the accused before Judge Peabody and a jury, and were severally convicted; Reiter of murder, and Louis of arson. After the convictions a motion was made in each case in arrest of judgment.

The motions were heard together for the sake of convenience, and at the request of the counsel for the accused.

Ex-Judge WHITTAKER, Counsel for Reiter.

Messrs. DURANT & HOMER, Counsel for Louis.

Mr. GEO. D. LAMONT, Prosecuting Attorney of the Court, Counsel for the Government.

Mr. WHITTAKER, on behalf of Reiter, made and argued the following points:

FIRST.

This Court is without jurisdiction, the party charged not being subject to trial except by a Court constituted under the laws of Louisiana.

2

SECOND.

The offence of which he stands convicted is charged to
have been committed within this Parish, and under the laws
and constitution of this State, he could only be tried by the
Criminal Court known as the First District Court of New
Orleans, which Court has since, and at the time of the trial of
defendant, existed within this Parish and State. (Sec. 67, Acts
of '55.)

THIRD.

No power exists in any tribunal to suspend the Courts of
the State. (Art. 102, Constitution.)

FOURTH.

This defendant has, by law, the right of appeal, and he is
by the action of this Court, deprived of that right. The
judgments and decrees of the Provisional Court being esteemed
to be final and without appeal.

FIFTH.

For the reasons stated, it is deemed that this Court has no
jurisdiction either to try this case or to pronounce sentence
upon the accused under the laws and constitution of Louisiana.

Messrs. DURANT & HOMER, in behalf of Louis, made and
argued the following points:

That the jurisdiction of this Hon. Court has been made, by
the prosecuting attorney, to rest on the following propositions;

That Louisiana seceded from the Union and inaugurated a civil
war against the nation. That the national forces subdued the
rebellion in a portion of Louisiana in April, 1862, and at a date
subsequent to the President's proclamation. That all the in-
habitants of the State were enemies, and to be treated as such,
by all the Departments of the Federal Government, until the
*Executive* declares the war at an end. That by the overthrow
of the rebellious government, the relations of the people to each
other, and their rights of property, remained undisturbed, but
that the conquering power, by the laws of war, had authority to

3

make laws, *establish tribunals*, etc., etc., and administer the ex-
isting laws so far as the same were not inconsistent with the
settled policy of the nation. Hence the establishment of this
Court by the Executive was valid in all respects; and that there
was conferred upon it unquestionable authority to administer
the criminal law of Louisiana, to try and sentence any prisoner,
and to proceed therein as near as possible conformably to her
peculiar jurisprudence.

This argument seems to us fully justified on principle and
authority.

But a question still remains. Has not the Executive, as
Commander-in-Chief of the Army and Navy, and the head of
the war power, sufficiently clearly enunciated the war as at an
end, so far as the Parishes of this State are concerned in the
present proceedings ?

He has re-established the national judiciary here. He has
permitted, if not sanctioned and approved, the selection of mem-
bers of Congress from Louisiana, who have been received and
recognized as such by their own legal Judges of Election.

He has reorganized civil government here, by his order of
Major-General Commanding, and providing "that when elec-
ted, for the time being, and until they are appointed by com-
petent authority," certain State officers "shall constitute the
civil government of the State under the constitution and laws of
Louisiana." (See the Proclamation of 11th January, 1864,
issued "in pursuance of authority vested in me by the President
of the United States," etc.)

These facts, as influencing or curtailing the jurisdiction of the
Court, seem to us material and deserving of mature consider-
ation. The National and State tribunals are open; and this, in
judgment of law, makes it a time of peace; and in a time of
peace the exercise of martial law in point of death is declared
murder. (See the Earl of Lancaster's case, commented on in
1st Hale's Pleas of the Crown, side, pages 344 and 499.)

Now, it is freely admitted by the prosecuting attorney, that
the jurisdiction of this Court is derived solely from the laws of
war. He admits that the defendant here was not tried and con-
victed (nor could he be) under the laws of the United States;

4

but under the laws and constitution of the State of Louisiana, administered by this Court under martial law, Louisiana *being still in a state of insurrection, and the President not having yet proclaimed the war at an end*. But are these alleged facts actually true? Can the Court deny that there is a legally and constitutionally elected Governor of Louisiana, when the highest military authority declares the very contradictory of the proposition? And how is the sentence of death to be carried out but in strict conformity to the sec. 30, *et seq.*, of Criminal Proceedings? (Rev. Stat. of La., p. 164.)

The case is a very grave one. It involves the life of a human being—a most degraded man, if you will; a creature not far removed from the condition of the beast of burden on the sugar plantation. His chains, in which he was born, have just been struck from his limbs, and his first hour of liberty and manhood are devoted to the commission of a horrid and revolting crime. All the prejudices of race and color are arrayed against him, still, he is a member of the family of man; and though we may neither excuse nor palliate his crime, yet we feel that to hang him, is rather to yield to a brutal prejudice than to the dictates of an enlarged humanity.

Mr. GEORGE D. LAMONT, prosecuting attorney of the Court, made and argued the following points.

### FIRST.

Civil war exists between the people of Louisiana and the Government and people of the United States.

### SECOND.

The existence of this war has been officially declared by the Political department of the General Government.

### THIRD.

The judicial, and all other departments of the Government, and all citizens of the United States, as well as foreign nations, are bound by that declaration.

5

FOURTH.

The war having been thus proclaimed, it is not to be consid-
ered at an end until the Government itself declares that result.

FIFTH.

The actual occupation of Louisiana by the military forces of
the United States engaged in suppressing the rebellion, is ac-
companied with an authority, by the laws of war and of nations,
to institute a temporary provisional civil government for the
preservation of order and the enforcement of obligations among
the population thus put under the control of the military power.

SIXTH.

One important and indispensable branch of such civil govern-
ment is, a judicial system for the conservation of the peace of
society, the punishment of crime, and the execution of existing
laws.

SEVENTH.

The laws of Louisiana, since its re-conquest from rebel rule,
still continue in force, except such ones as are inconsistent with
the rights of the United States, or have been modified or sus-
pended for the time being by the occupying power.

EIGHTH.

The military authority of the United States, during the exist-
ence of the insurrection and the military occupation of Louisiana,
vested in the President as Commander-in-Chief, is competent,
on the theatre of war, to suspend such parts of the local laws as
may be found incompatible with the existing state of affairs, or
injurious to the success of our arms.

NINTH.

The constitution and the laws of Louisiana, her local customs,
usages, and institutions, must, in the principle of belligerent
rights, yield to the superior authority of the law martial, until
the war shall be terminated upon her soil.

## 6.

### TENTH.

The President and his military representatives, subject to his express or implied approval, may put in force this Supreme Martial Law, by military orders issued for the purpose.

### ELEVENTH.

Such orders are obligatory, not only on the individuals over whom this Military Government extends, but upon all municipal authorities, persons in office, and Courts of Justice.

### TWELFTH.

The Provisional Court of the State for Louisiana, established by order of the President of the 20th October, 1862, while this State was in insurrection and its people belligerents, and after the federal arms had recovered from the rebel authorities the city of New Orleans and other parts of the State, was justified by the laws of war and of nations, and exercises rightful jurisdiction to the extent of the terms of the order creating it.

### THIRTEENTH.

The efforts of the Commanding General and of the Military Governor, with the President's sanction, to invite back the insurgent population to loyalty, as evidenced by the appointment of local Judges, the election of several State officers, by such persons as the Commanding General deemed safe to intrust with the privilege of voters, the summoning of a convention of delegates to consider of a constitution, afford proof of the desire of the President to mitigate to the greatest possible extent the rigors of a state of war; but they have not yet ripened into a state of peace, nor crushed out the existing rebellion. They combine political statesmanship with military policy, but the military rights continue in full force.

### FOURTEENTH.

The same power that called into exercise these auxiliary agencies, is competent, in its discretion, to supersede and disperse them; and should they happen to become an incumbrance

7

to the military power, instead of an advantage, they might all
be suspended, including Governor, Judges, and Convention.

FIFTEENTH.

The order of Major-General Banks, affirming that the funda-
mental law of the State is martial law, is a constitutional expo-
sition of the present state of things, and must be so regarded
while the war is being waged by the two belligerents within the
limits of Louisiana,

Opinion.

BY THE COURT—PEABODY, *Judge*.

These two cases may without inconvenience or danger of con-
fusion be considered together, although they have in fact no
connection with each other. The same objection to the pro-
ceeding of the Court to pronounce sentence upon the accused
and in arrest of judgment, is made by both the defendants, and
although the objection is urged on different grounds in the two
cases, still the objection is proper to be considered on all the
grounds in each case. It is urged that this Court is not au-
thorized to try these defendants, and that its proceedings have
not the sanction of law in the premises. If for any reason this
be the case, no further steps should be taken. If for any reason
the authority is wanting in one case, it is equally so in the other,
and the Court should refrain from going further in either case.

The accused have been indicted separately and tried separately
on charges wholly different and having no connection the one
with the other, and the consideration of their cases together
rather than separately, now, is a matter of convenience solely.

One of the accused, Reiter, has been indicted for murder, in
causing the death of his wife by violence.

The other has been indicted for arson, in burning a building
used as a mansion or dwelling-house.

Each has been tried before a jury of this parish and been
duly convicted of the offence charged in the indictment, and
each is now before the Court on a motion in arrest of judgment,
and in each case the arrest is urged on the ground that the

8

Court is not authorized in law and has not jurisdiction to try
the case.

The counsel for Reiter claims that the Court, in its constitution
and creation, had not *originally* the warrant of law to try the
accused.

The counsel for Louis concedes that the Court had authority
originally to entertain and try such a case, but insist that for
causes occurring *since*, its authority has ceased; that certain steps
taken in Louisiana toward the re-establishment of a civil State
government have superseded the powers once possessed by the
Court, and that it is now without jurisdiction or power. The
offences of which the defendants stand convicted, by the laws
of Louisiana are punishable with death, and nothing would be
more agreeable to the Court than to proceed with the utmost
caution in considering these objections to its jurisdiction.

The accused have been indicted, tried and convicted under
and pursuant to the law of the State of Louisiana.

The first question to be considered is whether the Court has
ever had, from the nature of its origin and constitution, authority
to try cases like these, and if this question shall be decided in
the affirmative it will remain to examine

The second question, namely, whether the power to try or the
jurisdiction over such a case, once possessed by this Court, has
been withdrawn or lost,—whether the Court in fact has been in
any way deprived of it by subsequent events.

It must be conceded that the Court, in its origin and structure,
is quite out of the usual course and novel. It has not its origin
or foundation in any constitutional or legislative enactment,--is
not the creature of any regularly organized constitutional or
legislative body. Ordinarily the judicial tribunals of the land
are the creations of the legislative departments either of the
State or Federal government, and for the regularity of their
creation and the character and extent of their powers depend
on the action of the legislative branch of the one or the other
of these powers. In such cases, the first thing to be done in as-
certaining the legality or powers of a Court, is to consult the
constitution and legislation of the government from which it

9

claims to hold commission, and in the letter of these is found
the act of its creation and the extent and limit of its powers.

Not so with this Provisional Court, which depends for its ex-
istence on the law of nations, and on that part of the law of
nations relating to war—the law by which parties and neutrals
are guided in their treatment of each other in a state of war;
and that portion of it which relates to and determines the rights
and duties of a belligerent, a conqueror in the territory of an
enemy and holding it in armed occupation. On that law must
depend the decision of the question presented by this motion, of
the validity in law and the powers of this Court.

On that law alone must this Court rely for the power and
jurisdiction it has exercised for a considerable time, in a large
number of cases involving amounts usually very large.

It was in that law that the President of the United States,
pressed by the urgent wants of the community here, found his
warrant for the establishment of this Court in the midst of the
country of an enemy held by him *jure belli* in armed belligerent
occupation.

The authority of this Court is derived from the President of
the United States, the Chief Executive of the nation, and Com-
mander-in-Chief of its forces military and naval. It is conferred
by an order, of which the following is a copy:

“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 tem-
porarily subverted and swept away the civil institution of that
State, including the judiciary and the judicial authorities of the
Union, so that it has become necessary to hold the State in mili-
tary occupation; and it being indispensably necessary that there
shall be some judicial tribunal existing there capable of admin-
istering justice, I have, therefore, thought it proper to appoint,
and I do hereby constitute a Provisional Court, which shall be

2

10

a Court of Record for the State of Louisiana, and I do hereby appoint Charles A. Peabody, of New York, to be 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:

"WAR DEPARTMENT,
Washington, 23 October, 1862.

"I hereby certify that the foregoing is a true copy, duly examined and compared with the original of the Executive Order of

11

"Witness my hand and the seal of the War Department.

"EDWIN M. STANTON,
"Secretary of War,

"Attest—

"JOHN POTTS,
"Chief Clerk."

This order, by its terms, no doubt embraces cases like these
under consideration, as indeed it does, perhaps, all others which
can occur in life, or become the subject of judicial investigation.

The language of the order "to hear, try, and determine all
causes, civil and criminal, including causes in law, equity, rev-
enue, and admiralty," is clear and unquestionable, and embraces
this class of cases, with all others of every description.

The President then sought to give power to this Court to try
and determine cases of this kind, and having made an order to
that effect, has given it that power, if he himself had authority
to confer it. The only question remaining to be answered on
this point, is whether the President had authority to confer such
powers and jurisdiction.

The authority of the President of the United States to create
this Court, and invest it with powers which should embrace
these cases, depends, to some extent at least, on the Constitution
of the United States, which creates the office exercised by him,
and determines its functions. That Constitution, article 2, sec-
tion 1, paragraph 1, declares as follows:

"The executive power shall be vested in a President of the
"United States of America."

It also provides, article 2, section 2, paragraph 1:

"The President shall be Commander-in-Chief of the army and
"navy of the United States, and of the militia of the several
"States when called into the actual service of the United States,"

12

As President, Chief Executive, and Commander-in-Chief of the
army and navy, he would not ordinarily have power to establish
tribunals for the determination of questions civil and criminal,
arising in civil life. Was there anything in the condition of
affairs existing at the time the order was made which could give
him the power to establish them, and if so, what was there in
the condition of affairs then existing to give him power in this
respect not ordinarily possessed by him as one of the attributes
of his office?

Between the Government of the United States and a people
inhabiting a portion of country lying on the Atlantic Ocean and
the Gulf of Mexico, and extending north beyond the northern
boundary of the territory in question, and embracing within its
borders that section of territory theretofore known, and still
most conveniently designated as the State of Louisiana, a war
had for some time been waged. This fact is notorious, and more-
over it is conclusived settled by the President, the ultimate
arbiter of the fact, by his proclamation to that effect. As to its
existence, therefore, as well as the existence of some other facts
to which I shall have occasion to refer, equally well known, no
time will be consumed in attempting to prove them, but they
will be assumed.

It is a matter of public knowledge and notoriety that this war
had been pending, and that the country over which the jurisdic-
tion of this Court is in question, and heretofore known, and in
the order establishing this Court described as the State of
Louisiana, had been for many months held and occupied by
those people and their forces, military and naval. That it had
been for a long time previous to, and also since the commence-
ment of this war, inhabited, cultivated, and owned by the same
people who had entered into and carried on war with the Gov-
ernment of the United States, and that it was still so inhabited
by a people whose relations with the Government of the United
States had for some time been and were still those of enmity.
That it had, in the course of the war, been by force of the arms
of the United States, wrested from the enemy, and was at the
time the order establishing this Court was made, held by the
forces of the United States in armed belligerent occupation.
That the armed belligerent forces of this enemy of the United

13

States had been, by force of the arms of the United States, ex-
pelled from this country, and that they were at the time held
out of it by the armed forces of the United States, and that war
was still waged between those belligerents.

The civil institutions of the country thus held, including the
tribunals for the administration of justice, had been formed and
established by the enemy of the conquering power and were by
it administered at the time of the conquest.

These institutions having been formed, established, and ad-
ministered by the government existing previous to and at the
time of the conquest confessedly hostile to the Government of
the United States, were the only institutions found there at the
time the military authority of the United States was by force of
its arms established there.

By the conquest of the country, in this case as in others, the
previously existing government and the power by which it was
administered were subverted and swept away, and those of the
conquering power were substituted in their places. This is the
necessary consequence of a conquest of a country—a transfer of
the control, government, and sovereignty of it from one party to
another.

The old power is conquered and extinguished and the new
one of the conqueror is instituted in its place. The old institu-
tions, if not abandoned and extinguished, are at least suspended
in their action.

They may be transferred to and adopted by the new govern-
ing power and may be used and operated by it, just as an old
machine, detached from the power that has usually moved it,
and abandoned for use as a whole, may furnish isolated pieces
of machinery which can profitably be introduced into a new
machine having different qualities, moved by a new and wholly
another power, and used to accomplish on the whole, perhaps,
purposes quite different. However there may be retained in
use by the new governing power some of the features or institu-
tions of the government which has been supplanted, it is never-
theless wholly another government, and derives its life and all
its vital qualities from a new source—the new sovereignty in-
stalled by the conquest. A conquest necessarily operates the
extinguishment of the power of the party conquered in the

14

country which is the subject of conquest, and the establishment
there of the power of the conqueror. Without this there is no
conquest of a country, and there can be none.

When the power previously dominant in a country has been
extinguished by that of another party, and rendered incapable
of governing it further, and a new one has been established in
its stead, it is both the right and the duty of the party thus
coming into power to see to it that a government wholesome
and salutary shall be established and administered, and as in
such a case there is only one power, that of the new party suc-
ceeding, capable of giving and administering the government,
it follows that it is the duty as well as the right of that power
to do it.

No country can exist without a government of some kind.
The rights of the inhabitants must be protected—crime must be
restrained and punished—the virtuous must be protected against
the vicious—the weak against the strong—order must be pre-
served, and security to person and estate assured. The party
dominant for the time being has the power to do it, and no one
else has the power, and it follows from the necessity of the case
that he must exercise it.

So the Government of the United States having conquered
and expelled from the territory of country, theretofore known
as the State of Louisiana, the power by which the government
of it had been theretofore administered, and having established
there its own power, was bound by the laws of war, as well as
the dictates of humanity, to give to the territory thus bereft, a
government in the place and stead of the one deposed or over-
thrown, such an one as should reasonably secure the safety
and welfare of the people thus reduced to subjection; in some
manner, not inconsistent, to be sure, with the proper interests of
the governing power, and the maintenance of it in its supremacy
there.

The power established there was the military power of the
United States, and the President of the United States, as we
have seen, the Commander-in-Chief of the forces, military and
naval, of the United States, was at the head of that power, and
had the right and duty to exercise and direct it. It was incum-

15

bent on him, representing for this purpose the sovereignty of the United States, to see that the duty devolving on his government should be properly performed.

He acted in obedience to this duty, and in accordance with this right, when he attempted to establish there a judicial tribunal capable of deciding controversies and administering justice.

But how does this question stand on the authority of adjudged cases.

In the case of Cross et al. vs. Harrison, in the Supreme Court of the United States, in 1853, reported in 16 Howard, at page 164, the Court held that a civil government formed in California, under the direction of the President of the United States, as Commander-in-Chief of the army and navy, shortly after the conquest of the country, and while it was held in military occupation by the forces under him, was an act warranted by the laws of nations, and that the formation of such a civil government was the rightful exercise of a belligerent right over a conquered country.

It appeared that the port of San Francisco had been conquered by the arms of the United States in 1846, and that shortly afterwards, the United States holding military possession of all Upper California, the President authorized the commander of the forces of the United States there, to exercise the belligerent rights of a conqueror, and form a civil government for the conquered territory, with power to impose duties on imports and tonnage, for the support of the government and of the army which held the country as a conquest in possession. This was done, and duties were levied and collected for a time. Afterwards, a treaty of peace was made with Mexico, by which Upper California was ceded to the United States.

After this treaty, and after the cession to the United States of the territory, the Military Governor continued to collect import and tonnage duties as he had done before, but at the rate authorized by acts of Congress in other parts of the United States; and for that purpose appointed the defendant in this suit collector there. He, as such collector, without any legislation of Congress on the subject, collected those duties to a large amount from the plaintiffs, who sought in that suit to recover them back again. The question presented was, whether the United States,

16

after the cession of this territory to it, and in the absence of any
legislation by Congress on the subject, had a right by its Military
Governor to collect those duties. The Governor, it appeared,
collected them of his own motion, and without any instructions
on the subject from his government at home. No question of
the right of the government to levy duties as it pleased, while
the country was held by right of conquest in strictly military
occupation, appears to have been made; but the continuance of
that right after the treaty of peace, and after the cession of the
country to the United States, seems to have been chiefly in
question. The Court sustained the right in the broadest manner,
putting their decision on the ground that the formation of the
civil government when it was done, was the lawful exercise of
a belligerent right over conquered territory. That that govern-
ment being in existence when the territory was ceded to the
United States, its powers did not cease by reason of the cession
of the country to the United States, or of the restoration of
peace, and that it was rightfully continued after peace was made
with Mexico, until Congress should legislate otherwise.

The decision covered the whole ground that the duties were
lawfully collected by the Civil Military Governor of California,
an instrument of the provisional government of the United
States in that country whilst the military occupation was con-
tinued; and that it was so afterwards from the ratification of
the treaty of peace until the revenue system of the United States
was put in practice, under acts of Congress passed for that pur-
pose; in effect deciding that the provisional government of the
United States there was rightful and legal, and that it continued
in force a legal, rightful government through the time the
country was held in military occupation, and after that occupa-
tion ceased, and that it was, in fact, in force until some other
system was provided according to law to supersede it.

For the doctrine that a conqueror in a conquered country may
establish a government, and courts for the administration of
justice, the case of Leitensdorfer et al. vs. Webb, decided by the
Supreme Court of the United States, in 1857, reported in
20 Howard, 176, is an authority directly in point. In that case
the conduct of the government of the United States by General
Kearney, the officer in command of its forces there, was brought

17

in question. It appeared that after the conquest of that country
by the arms of the United States, General Kearney, in command
of the forces there, established a government and provisional
courts for the administration of justice.

Those courts, in the case referred to, were adjudged to be
legal, and their decisions obligatory as warranted by law. The
power to establish the government and the courts was directly
in question, and was directly passed upon by the Court, and was
sustained on the ground of the right of conquest.

In that case, moreover, it appeared that the country conquered
was subsequently, by treaty, ceded to the United States, and it
was claimed that by the act of cession the rights of the United
States to govern the country and enforce the laws made by the
provisional government while it was held in military occupation,
was terminated.

It was not seriously questioned that the United States might,
while it held the country in military occupation, establish and
administer a system of government—make laws by which to
govern the inhabitants and regulate their rights and intercourse
among themselves, and set up courts by which the laws so made
should be administered. That right was deemed to be too
evident to be seriously questioned. It was, however, in issue,
and was necessarily passed upon by the Court. The doctrine
chiefly contended for, was that by the cession of the country
to the United States, the right to govern it by that pro-
visional system adopted, when it was held a conquest of arms, was
terminated, and that the United States had, after the cession,
only the right to govern it like other territory of the United
States, by laws emanating from Congress—the constitutional
law-making power of its own government—enacted in reference
to it as territory of the United States.

This position was not sustained by the Court, but was over-
ruled and adjudged not warranted in law.

The Court say : "Of the validity of these ordinances of that
provisional Government there is made no question with respect
to the period during which the territory was held by the United
States, as occupying conqueror, and it would seem to admit of
no doubt, that during the period of their valid existence and

3

18

operation, these ordinances must have displaced and super-
seded every previous institution of the vanquished or deposed
political power which was incompatible with them. But it has
been contended, that whatever might have been the rights of
the occupying conqueror, as such, these were all terminated by
the termination of the belligerent attitude of the parties, and
that with the close of the contest, every institution which had
been overthrown or suspended would be revived and re-estab-
lished."

"The fallacy of this pretension," the Court proceed to say,
"is exposed by the fact, that the conquered territory never was
relinquished by the conqueror, nor restored to its original con-
dition or allegiance, but was retained by the occupant until pos-
session was matured into absolute, permanent dominion and
sovereignty." The Court then proceed to decide when the
institutions of the provisional Government would terminate.

They say: "We conclude, therefore, that the ordinances and
institutions of the provisional government could be revoked or
modified by the United States alone, either by direct legislation
on the part of Congress, or that of the territorial government,
in the exercise of powers delegated to it by Congress." The ques-
tion there presented was the validity of an ordinance of the ter-
ritorial government, authorizing attachments of property of debt-
ors, enacted by the provisional government, while the country
was held in military occupation, and before the cession of it, but
sought to be enforced by the Provisional Territorial Court after
the cession of the country to the United States, and after the
military occupation had ceased. The Court upheld the law in
its origin, and also in its continuance in force, and the adminis-
tration of it by the Provisional Territorial Court after the cession
of the country, and after the military occupation had ceased.

In the case of Jecker vs. Montgomery, 14 Howard, 498, de-
cided in 1854, the same Supreme Court of the United States
incidentally recognize the legality and powers of those provis-
ional courts, and while deciding that, for reasons peculiar to
cases of prize, and not at all applicable to any others, they
could not legally act in cases of that class, the Court admit their
powers and jurisdiction in other cases: making three decisions
of the Court of last resort of the Government of the United

19

States quite in point. Either of these should be sufficient authority for such a principle, if indeed a principle so plainly proper and necessary, can be thought to need authority of precedent at all.

But at the risk of being tedious and doing work of supererogation, which charges I am persuaded might well be maintained against me, I will add to these authorities already commented on, still another one, which has a bearing quite material on this case at more than one point. I mean the case of the United States vs. Rice, 4 Wheaton, 246. That case, as well as those already cited, decides that by the conquest and military occupation by one nation of a portion of the territory of another, the portion so acquired passes from the operation of the laws and government of the nation to which it had previously belonged, and comes under the laws and government of the nation making the conquest. It also decides that while such territory is held by the conqueror, it is the right of the party so holding it to govern it, and for that purpose to make laws by which to govern it. That while a portion of territory is so held, the laws of the conqueror holding are in force there, and the laws of the party from whom it has been taken are in abeyance not only de facto but also de jure; that while it is so held, the conqueror has de jure as well as de facto all the rights of dominion and sovereignty over it, and may exercise them at his pleasure, and that the former sovereign, overcome or expelled, has no rights there, and his laws have no effect there; that acts done there, with the authority of the conqueror, are legal and proper, but those done in violation of his laws, even though done in obedience to the laws of the sovereign expelled, are not legal, but contrary to law. In short, that, by conquest, the sovereignty and right to rule of the conqueror are introduced and established, and the sovereignty and right of rule in the party expelled are extinguished; and that the duty of allegiance in the people remaining there is transferred in like manner from the vanquished to the victorious party; in fact, that by such an act the change of the sovereignty and allegiance are complete and new rights and duties in both parties are created accordingly. I think that all these conclusions certainly follow from what is decided, if, indeed, they are not all actually decided there.

20

That case, like each of the others cited, was decided by the Supreme Court of the United States—the Court of highest human authority on that subject,—and as the decision was against the United States, and in favor of the authority of Great Britain, its enemy in the war, and was made shortly after the occurrence of the war out of which it grew; and while no department of this government was inclined to magnify the rights of Great Britain or disparage those of its own government, there can be no suspicion of bias in the mind of the Court in favor of the conclusion at which it arrived, and no doubt that the law seemed to the Court to warrant and demand such a decision.

That case grew out of the War of 1812, between the United States and Great Britain. It appeared in September, 1814, the British forces had taken the port of Castine, in the State of Maine, and held it in military occupation; and that while it was so held, foreign goods, by the laws of the United States subject to duty, had been introduced into that port without paying duties to the United States. At the close of the war the place was by treaty restored to the United States, and after that was done the Government of the United States sought to recover from the persons so introducing goods there while in possession of the British, the duties to which, by the laws of the United States, they would have been liable. The claim of the United States was that its laws were properly in force there, although the place was at the time held by the British forces in hostility to the United States, and the laws, therefore, could not at the time be enforced there; and that a Court of the United States, (the power of that government there having since been restored,) was bound so to decide. But this illusion of the prosecuting officer there was dispelled by the Court in the most summary manner. Mr. Justice Story, that great luminary of the American Bench, being the organ of the Court in delivering its opinion, said: "The single question is whether goods imported into "Castine during its occupation by the enemy are liable to the "duties imposed by the revenue laws upon goods imported into "the United States. * * * We are all of opinion that "the claim for duties cannot be sustained. * * * The "sovereignty of the United States over the territory was, of "course, suspended, and the laws of the United States could no

21

"longer be rightfully enforced there, or be obligatory upon the "inhabitants who remained and submitted to the conquerors, "By the surrender the inhabitants passed under a temporary "allegiance to the British Government, and were bound by such "laws, and such only, as it chose to recognize and impose. From "the nature of the case no other laws could be obligatory upon "them. * * * * * * * * *

"Castine was, therefore, during this period, as far as respected "our revenue laws, to be deemed a foreign port, and goods im-"ported into it by the inhabitants were subject to such duties "only as the British Government chose to require. Such goods "were in no correct sense imported into the United States." The Court then proceed to say, that the case is the same as if the port of Castine had been foreign territory, ceded by treaty to the United States, and the goods had been imported there previous to its cession. In this case they say "there would be no pretense to say that American duties could be demanded; and upon principles of public or municipal law, the cases are not distinguishable." They add at the conclusion of the opinion. "The authorities cited at the bar would, if there were any doubt, be decisive of the question. *But we think it too clear to require any aid from authority.*" Does this case leave room for a doubt whether a country held as this was in armed belligerent occupation, is to be governed by him who holds it, and by him alone? Does it not so decide in terms as plain as can be stated? It is asserted by the Supreme Court of the United States *with entire unanimity*, the great and venerated Marshall presiding, and the erudite and accomplished Story, delivering the opinion of the Court that such is the law, and, *as so adjudged in this case*. Nay, more: it is even adjudged that no other laws could be obligatory; that such a country, so held, is for the purpose of the application of the law of its former government to be deemed foreign territory, and that goods imported there (and by parity of reasoning other acts done there) are in no correct sense done within the territory of its former sovereign, the United States.

No part of the remarks of the Court in this case is more fully warranted or proper than the last, to the effect that *the case is too clear to require aid from authority*.

22

The right, therefore, of a conqueror in a conquered country
to ordain a system of government for it, and among other insti-
tutions, to erect Courts of Justice, and maintain them in the
discharge of their proper functions, is as well established and free
from doubt when considered on authority, as it is in principle;
and about as well in each as any proposition which could find
among men an advocate to question it, could in the nature of
things be expected to be.

But it may be said that this reasoning, if correct as to terri-
tory foreign to the conqueror, and as to which his rights and
duties are simply and solely those of a conqueror by force of
arms, is not applicable to the case in question, for this Louisiana
is a part of the territory of the United States, over which the
powers and duties of the President and the other departments
of the government were already fixed, and are dependent on the
constitution and laws of the United States, and limited to the
powers and duties conferred by them; and that those laws do
not give the President the power to establish a Court like this,
and therefore that he has not that power.

It is quite certain that ordinarily he would have no such
power; and hence, instead of looking for it to the Constitution
and laws of the United States alone, I have looked elsewhere
and to other facts than his merely occupying the place of Presi-
dent at the time. I have invoked also the fact that he was by
virtue of that office, as commander of the forces of the United
States, holding in armed belligerent occupation the country in
which the Court was established, and in which its powers and
authority are now brought in question.

Is this country, for the purpose of determining the powers and
duties of the Commander-in-Chief of the army and navy of the
United States, to be deemed domestic, or is it to be deemed
foreign territory?

What are the relations of the forces of the United States, and
of their Commander, to these districts of country as they enter
them, expelling the forces of the enemy?

Is he the Chief Executive of the country of which these dis-
tricts are a part, and is he nothing more, and are his powers and
duties those of Chief Executive only?

Has he in this country subjected to his arms, and while in

23

armed belligerent occupation of it with the forces under his command—has he by law the same powers and duties as he would have in Massachusetts or New York in time of profound peace, and has he no others?

Has war given him no powers in law in addition to those possessed by him in time of peace?

Having in war broken down the hostile power of it, and driven its forces out of it by the military force under his command, has he no new powers there by reason of that fact?

When his subordinate officer, Admiral Farragut, landed there from the deck of the *Hartford*, did he carry with him no right to power not commonly enjoyed by the President in other territory of the United States?

Did his rights as conqueror cease the moment his power in that character was established?

Having entered Louisiana as Commander-in-Chief, at the head of his forces victorious, was he at once remitted to the position, powers, and duties of a peace President in times of peace, and limited to them?

Had he none of the powers or duties of a conqueror in a country subjected to his arms?

What was this country to do for a government when the old hostile one had been reduced and expelled?

Was it to get along without one as best it could? Was it to do this until some new one could spring up to supply the want?

Were all the rights of persons and property, natural and acquired, the right to life, security, liberty, and property, to be at once suspended, and was the rule of physical force to override them all?

The right of a conqueror to govern a country held by him by right of conquest, is well established on authority. The cases which establish this right, however, relate to the conquest of a country foreign to the conqueror, and as to which he has no rights and is under no restraints, except those which come from the fact of conquest alone, and not to one which is of right a part of his own proper domain. In this case, the territory over which the Government of the United States had acquired, as

24

we have supposed, some rights in the nature of rights of con-
quest, belonged of right to it as a part of its own domain, and
it remains to be considered whether that fact makes any differ-
ence in respect to the right by the laws of war to govern a
country conquered.

It may be said that the act of the United States in this case,
had not the usual effect of a conquest of foreign territory—that
instead of acquiring anew the rights of a conqueror, the United
States by this conquest, (as I for the sake of convenience have
called it,) has but removed the obstacles to the enjoyment of its
pre-existing rights, and has not acquired any new ones of a con-
queror.

As we have seen, the foundation of the right of a conqueror to
govern conquered territory, and for that purpose to establish
provisionally civil institutions in it, is necessity, and that chiefly
the necessity of the conquered country and its inhabitants. A
government of some kind they must have, for no community can
exist without it.

The power of the conqueror has overridden and subjected
all other power, and this necessity can be supplied from no other
source than him, for he holds for the time being all power.
Whilst this continues to be the case, what is there in the case
in question of Louisiana, which should make it different from a
foreign country?

The inhabitants of that country owed allegiance to, and were
entitled to the protection of the government of the United States,
it is said familiarly, and this is quite true in the sense in which
the remark is usually made. But did the United States ever at
any time, or under any circumstance, owe the people of this
territory a protection and government which would supply all,
or any considerable part of their wants in this respect?

If the government of the United States should afford to this
country all the protection, and aid—should perform for it all the
governmental offices which it by virtue of the constitution and
laws of the land was ever bound, or had a right to do, how far
would this go towards supplying the wants of the country in
that respect? Is it not quite certain, on looking into the law on
the subject of the relations, rights, and duties of the Federal
Government to the tract of country in question, or any other

25

tract embraced within the State, that with the Federal Govern-
ment in full function and all its duties fully performed, a very
small portion of the governmental necessities of the country
would be supplied?

It is a fact familiar to us all, that under our system of govern-
ment almost all the governmental aid needed by our people is due
to them from the local depositories of power, the State govern-
ments—for most purposes within their own territory, sovereign.
These governments, under our system, are the repositories of
nearly all of the powers of government in ordinary times in famil-
iar use among us, and whether they be applied by the State
itself, by its own officers directly, or be allotted out in parcels to
smaller governmental districts, such as counties or parishes
cities, towns, or villages, to be applied by the officers of those
localities respectively, still the State and not the Federal Gov-
ernment is the reservoir from which they are drawn, whether it
be for distribution or exercise; and the State, and not the Fed-
eral power and officers administer and execute them.

The man of commerce, the seaman a traveler on the highway
of nations, the soldier, whether at home or abroad, the direct
instrument of the Government, and at once its representative
and defender, and the traveler in a foreign land experience and
realize the power and the protecting hand of the Federal Gov-
ernment, its value and beneficence; but in the ordinary walks
of life, at home, among plain people, very few—probably not
one in a hundred—have occasion in a lifetime to invoke or expe-
rience any office or effect enabling or restraining, protective or
punitory, of that government, whose duty relates in ordinary
times and circumstances almost exclusively to the foreign rela-
tions of the country, happily almost always so secure and free
from threatening aspect or cause of anxiety as to attract little or
no consideration.

From which government comes the system of police by which
order in society is maintained from one end of the land to the
other? From which the judicial power—the one in question
here and now—by which, in ordinary cases, crime is punished and
repressed, controversies decided, and the rights of persons and
property established and maintained? and what is certainly

4

26

quite in point, from which source comes the power by which
these very unfortunate criminals now before me would ordin-
arily on a basis of peace be tried, and justice be meted out to
them? What law of the United States, as laid down in the con-
stitution and statutes thereof, did Reiter violate, when (forsaken
of his God) he took the life of his wife, the partner of his bosom,
on that hopeful holy morning of the anniversary of the birth of
our Saviour, in the year of that event one thousand eight hundred
and sixty-two? What law of the United States did Louis—poor
benighted Louis—whose eyes had scarcely been blessed with the
sight of himself free to seek his own security or happiness—
violate, when he applied the fatal torch to the fated house, the
residence of a human being?

It is quite certain that the government of the United States,
remitted to its ordinary constitutional functions within one of the
States as in times of peace, could not supply a government at
all adequate to the necessities of society, and especially could
not have taken cognizance of, or punished at all either of the
offences in question by any tribunal it ever had or had the right
to establish.

The necessity for a provisional government here for nearly all
the purposes for which a government is necessary, and especially
of a provisional tribunal for dispensing justice generally, and in
cases like these now under consideration, was the same as, and
none other than it would have been if this tract of country in
question had been a part of the domain of a government wholly
foreign to that of the United States, and over the territory of
which it had no other rights than those growing out of war and
conquest.

Indeed, it may well be doubted whether, in reference to
governmental rights and duties in matters of this kind, there is
any difference between the citizens of the several States and
those of foreign territory.

Certain it is from what has been said, that this territory is
not, by the nature of our system of government, under the do-
minion of the Federal Government as to most matters of local
administration, but is exclusively under the State and local
government, and the Federal Government was never bound
and never assumed or pretended to furnish government to any

27

section of the States as to their internal or local matters gen-
erally, and has not, and never had the duty, right or power to
do so.

But this district of territory had been in insurrection against
the government of the United States, had openly withdrawn
from all connection with that government under the forms of
law and civil legislation, had allied itself with others hostile and
at war with it, and had, by force of arms, for a considerable time
maintained this attitude external and hostile, resisting success-
fully the efforts of the government to subject it to law and
duty.

However the act of secession was ineffectual in law, this dis-
trict had in fact and practically withdrawn from all relations with
the government of the United States, and had arrayed itself in
armed hostility to it. Its duties remained unchanged no doubt,
but its rights to the filial relation—its rights to receive from
the Federal Government the consideration and care of a parent
rather than the imperious commands of a military master, may
have been much changed by the events which had transpired,
and I think that they had been. Having taken for itself the
attitude of a foreign State, and that too, of one hostile and at
war with the United States, and formed and adapted all its civil
institutions, and in every respect bent itself to that condition,
and claimed and asserted it, and practically maintained it by
force of arms for a time, and having been at this overcome and
subjected to the arms of the government of the United States, it
may very well be that while it has acquired no new rights by
virtue of its pretensions, it has resigned and forfeited old ones,
and is no longer entitled to demand the benefits of a relation it
has renounced and repudiated, however it may have failed in
establishing at that time its freedom from the duties attendant
upon it.

The counsel for the prisoners Reiter and Louis however, take
different grounds on this motion.

The former insists that the whole structure of the Court in its
origin was without warrant in law.

That inasmuch as the constitution and laws of the United
States give no authority to the President to establish such a
Court, he has none, and that his act in attempting to establish

28

it is ineffectual, from want of constitutional and legal power in
him.

While the learned counsel for the accused Louis concede that
the President, as commander of the forces of the United States,
had authority by the laws of war to establish it, and that it had
originally all the powers by him attempted to be conferred, but
insist that these powers have ceased, by reason, as I understand
the argument, of the organization of a civil government here
which supersedes the military. I pass to consider the question
presented by this argument.

If a conqueror in a conquered country have a right to set up
a government in it, when does that right cease? Or, rather, if
he have such a right, and exercise it, when does the power of
the government so set up cease?

I answer, first, it will terminate necessarily whenever the
power which formed it shall terminate, or become unable to sup-
port it. And secondly, whenever that power shall for any cause
voluntarily bring it to an end.

That the power of the Federal Government here has not been
terminated, I need no argument to prove. It certainly has not
been expelled, and it quite as certainly has not been withdrawn.
It remains, we all feel and realize, the great, beneficent, para-
mount, and only power here; able ever to support and support-
ing itself, and furnishing and supporting every governmental
office and function here.

But on this point, as well as the one to which I have cited the cases above referred to, some of those cases speak as authorities, In two of those cases, at least, in which the power of the provisional government and the provisional courts was sustained by the Supreme Court of the United States, it was so upheld in territory belonging, aside from military occupation and of right to the domain of the United States, and over which that government had powers of government, full and complete, for all purposes, as any sovereign or State has ordinarily within its own territory; rights not limited to its external matters alone, or chiefly, as are those of the United States in territory lying within one of the States, but embracing powers for all the details of local administration, legislative, executive, and judicial.

And even there, where the United States had by the Con-

29

stitution, powers of government ample for all purposes, the
power to continue in force a provisional government long after
military occupation had ceased, and when the rights of the
United States there depended not at all on military power, or
belligerency, but wholly on compact between the former sove-
reign and itself—even there, in territory confessedly belonging to
the United States, and in time of peace, and in the absence of
military power or military necessity, the provisional government
and the provisional courts were upheld to the fullest extent, and
were adjudged to continue legally and practically in force as in-
struments of the Federal Government until it should, by its con-
stitutional action, through its legislature, otherwise provide.

In the earlier of those cases, Cross vs. Harrison, 16 Howard's
Reports, 164, the Court say: "Our conclusion from what has
" been said is, that the civil government of California, organized
" as it was, from a right of conquest, did not cease or become
" defunct in consequence of the signature of the treaty or from
" its ratification.

"We think it was continued over a ceded conquest, without
" any violation of the Constitution or laws of the United States,
" and that until Congress legislated for it, the duties upon for-
" eign goods, &c., were legally demanded and lawfully received
" by Mr. Harrison, the collector of the port, who received his
" appointment, &c., &c., from Governor Mason."

These cases, in deciding that a provisional government may
be maintained by the military power of the United States in
territory belonging to it, not held in military occupation, or *jure
belli*, go far to prove that the fact that this country belonged,
for some purposes to the United States, aside from the coming
from conquest and military occupation did not take it from the
application of the general principle that the conqueror in con-
quered territory, has the right to govern it and to establish
government as he may deem expedient; but that such territory,
on the contrary, is on the same footing in that respect as terri-
tory strictly and for all purposes foreign.

There is no pretense that the Federal Government has in any
manner directly brought, or sought to bring, the labors of this
Court to a close. Having established it, and bade it proceed in
the performance of its mission, it will continue (the power

30

which established it continuing) until that power shall revoke
its commission, or otherwise decree its discontinuance.

But it is said that a civil government has been established
here, and that therefore the proper functions of the provisional
one, and among others, the functions of the Provisional Court
have ceased.

It is quite true that some measures apparently tending to the
establishment of a civil government have been taken. Members of Congress were elected in 1862, and were admitted to seats in the national Legislature. Several other officers—a Governor, Attorney-General, and others, have also been elected more recently under the direction of the military authorities. A convention for the revision of the Constitution of the State has been elected and convened.

These things look like measures for the organization of a
State Government, and measures of this kind pursued may in
course of time lead to such a consummation, at the pleasure of
the Federal Government.

That all these things have been done under and by virtue of
the fostering care of the Federal Government, as exercised by
the military arm of it, no one at all acquainted with the facts
will doubt.

Waiving, for the present, however, as unnecessary to be considered here, the question whether these movements have their foundation in and derive their vital principle from the State or from Federal sources—and whether in use, as some of them are, they are in fact instruments in the hands of the defunct State, or of the living Federal power, it is quite certain and sufficient for present purposes that the Federal Government has not voluntarily abdicated and resigned to them all, or generally the functions of government, certainly not those of the Provisional Court.

Such a general surrender alone could have divested the power
of this Court, for there is no pretense that the Federal Government has singled out certain powers, and among them the powers heretofore exercised by this Court, and so parted with them as to be unable to recall or exercise them. The whole argument, on the contrary, proceeds on the idea that civil government, as a whole, has been established here, and all the power to exercise it resigned into the hands of State authorities.

31

In short, that the State is again in possession of all the govern-
mental powers which of right, under our system, belong to the
State, in contradistinction to the Federal Government, and that
the United States retain only what are designed under our
system of government, ordinarily to be exercised by the Federal
Government in all the States in times of peace, and that both
parties are, in fact, remitted to their own positions in the con-
stitutional government formerly occupied by them, and the same
as are now occupied by the loyal States.

At the time this motion was made (and everything must
relate to that time) there was not a Court in the part of Louisiana
within the Federal lines having any reasonable pretense of
authority from any other source than the Federal Government.

The United States District and Circuit Court then in operation
here, were and are the constitutional Courts of that government.
All else were creations of the military power of the Federal
Government.

The learned argument of Mr. Lamont, the prosecuting attorney of this Court on that point was entirely correct.

All the governmental functions in exercise here at that time,
not only Courts of Justice but all others, and all the Judges,
officers and instruments by which they were performed and
operated, were those of the Federal Government, and were ap-
pointed, commissioned, animated, sustained and moved by that
power alone.

The Provisional Court for the State of Louisiana—the Court
of the Federal Government—retains all the powers it ever had,
and will continue to exercise rightfully a jurisdiction com-
mensurate with its charter, so long as the President, or the
Government he represents, shall will it, and shall uphold it
for that purpose; and whatever other institutions may have
been brought, or allowed to come into existence in the mean-
time, this Court will not cease, or go out of existence, or be shorn
of any of its powers or proportions by reason of the fact that
some modicum of them, or of other powers of civil government
have been allotted by the common parent—the Federal Govern-
ment—to other institutions or instrumentalities.

Something was said on the argument about the laws which
these courts should administer. The laws of the conquered

32

country, like everything else connected with its government, are entirely under the control and subject to the will of the conqueror. He makes and adopts them in use at his pleasure. Those found in use at the time of the conquest may be continued in use by him or laid aside at his pleasure. If continued in use, however, they become his, and derive their force and efficacy from him and his adoption of them. In the cases cited above, a new code was made and introduced by General Kearney, representing the government of the conqueror, called the Kearney Code.

In the absence of any provision on the subject, in such a case Courts of Justice are not bound to adhere to any particular system. This Court is commissioned to administer justice, and no code of laws is prescribed for it. It may adopt such rules as may seem wise and expedient, whether corresponding to the system in use here at the time of the conquest, or differing from it. It has always administered justice according to the Code of Louisiana, and so have all other Courts here, not because it was bound by that Code, as law of the State, but because it seemed expedient and wise to continue along under the system found in use here, rather than introduce a new one. That system had had the sanction of the previous State government, and was no doubt suited to the occupations, habits, and wants of the people. The transactions which would become subjects of investigation had been entered into under and in reference to it as the system by which they would be construed and enforced. Moreover, it was already in use, and had better be continued in use and a change avoided, unless for some decided cause a change was deemed necessary.

Having adopted that as the rule in the Courts here, it became law to them as well as to society here, and they were bound to adhere to it and administer justice according to it so long as it continued to be the rule. The Courts here have always done that, and it is not probable that the laws of Louisiana have ever been more closely adhered to in the administration of justice here than they have been during the time of the government of the country by the Federal authorities, since the occupation of it by their forces.

In the cases cited above from California, Cross vs. Harrison,

33

16 Howard R., 164; Leitensdorfer vs. Webb, 20 Howard, 176, and Jecker vs. Montgomery, 14 Howard, 498, the previously existing systems of law were ignored and a new and original system introduced, which course received the sanction of the Supreme Court of the United States in those cases; and in the case cited from Maine, The United States vs. Rice, 4 Wheaton, 254, the British government made a new and different law and administered it while the territory was held by it, and that course received the sanction of the same Court of highest authority, in the case referred to.

I have not cited authority for *overly* anything I have said in this opinion—perhaps not for every doctrine I have declared. I have, however, referred to the Court of highest authority in such cases of any tribunal known among men, and to the decisions of that Court, quite in point, for every principle and doctrine claimed in this opinion, which is not so plain and evident as to make reference to cases for authority unnecessary and inexpedient, and, for the omission to cite them to such points, I have the very high authority of the Supreme Court of the United States, in the case of the United States vs. Rice, 4 Wheaton, 254, above referred to, that in cases like that "too clear to require aid from authority," it is not well to encumber an opinion with them.

In addition to the cases already commented on, I will refer to several more having important bearing on this question, not as establishing any new principle or sustaining any old one not better sustained by more modern and unquestionable authority already referred to, though equally conclusive of the principle with them; but as furnishing, perchance, to some mind, some new view, reason, or illustration of a principle better established on authority by cases already introduced.

Grotius De J. B., ac. P. l. 2, c 5 et seq.; Ib., l. 3, c. 6, s. 4; Ib., l. 3, c. 9, s. 9, 14; Puffendorf, by Barbeyrac, l. 7, c. 7, s. 5; Ib., l. 8, c. 11, s. 8; Bynkershoek Q. J., Pub., l. 1, c. 6, 16; Duponceau's transl., 46, 124; Voet ad Pandect, l. 39, tit. 4, no. 7, De Vectigalibus; Ib., l. 19, tit. 2, no. 28; Ib., l. 49, tit. 15, no. 1; United States vs. Hayward, 2 Gallis, 501; *The Fama*, Rob., 106; *The Foltina*, Dodson, 450; 30 Hogsheads of Sugar, Bentzen, claimant, 9 Cranch., 191; Reeve's Law. of Ship., 98

5

34

et seq.; United States v. Vowell, 5 Cranch., 368; United States v. Arnold, 1 Gallis, 348, S. C., 9 Cranch., 106; Empson v. Bathurst, Winch. Rep., 20, 50, Winch. Entries, 334, cited Poph. 176, S. C. Hutton, 52, Com. Dig. Officer, H.

My conclusions, therefore, are: That at the time of the establishment of the Provisional Court for Louisiana, a considerable part of the territory of that State was held by the forces of the United States, in armed belligerent occupation.

That in a country so held, the authority of the occupying force is paramount, and necessarily operates the exclusion of all other independent authority in it.

That government from some source is a necessity, and while the power to give and administer government is exclusively with a party occupying a country, there can be no doubt that the right and the duty are his to furnish a government and supply that want.

That the actual military occupation of that territory by the United States has continued from that time to the present, and still continues, and the right and duty of government, therefore, continue with the United States.

That the establishment of the Provisional Court for Louisiana, by the President, as Commander-in-Chief of the forces of the United States, while they held the territory in which it was to exercise its functions, was an act warranted by the law of nations.

That so long as the authority of the United States shall continue, the right and the duty of it as the party dominant there to afford to the country a government will continue,

That said Court has, from the time of its foundation to the present time, rightfully exercised its functions in territory in which the government of the United States has been by force of its arms sovereign, and will continue rightfully to exercise them there, so long as its commission shall remain unrevoked and the power of the United States shall continue to support it in the exercise of them.

The United States Provisional Court

FOR THE STATE OF LOUISIANA.

ARGUMENT

OF

GEORGE D. LAMONT, Esquire,

*Prosecuting Attorney of the Court,*

BEFORE THE COURT,

HON. CHARLES A. PEABODY, JUDGE PRESIDING,

ON THE

Authority and Warrant in Law

OF THE

PROVISIONAL COURT FOR LOUISIANA,

BY THE LAW OF NATIONS.

NEW YORK:
W.M. C. BRYANT & CO., PRINTERS, 41 NASSAU ST., COR. LIBERTY.

1864.

ARGUMENT

IN THE CASES OF

AUGUST REITER, CONVICTED OF MURDER,

AND

JEAN LOUIS, A COLORED MAN, CONVICTED OF ARSON,

BEFORE

The Provisional Court for the State of Louisiana:

HON. CHARLES A. PEABODY, JUDGE, &C.

ON THE

JURISDICTION OF THE COURT,

AND THE

PRINCIPLES OF THE MILITARY LAW.

BY

GEORGE D. LAMONT,

U. S. Prosecuting Attorney for the State of Louisiana.

AT THE CITY OF NEW ORLEANS,

June, 1864.

NEW YORK:

Wm. C. BRYANT & Co., PRINTERS, 41 NASSAU ST., COR. LIBERTY.

1864.

NOTE.

In these cases the Counsel of the defendants, after the conviction of their clients, the one of murder, and the other of arson, respectively made motions in arrest of judgment, on the ground that the Provisional Court for the State of Louisiana, established by the President of the United States, October 20, 1862, was not a legal tribunal, authorized either by the Constitution and laws of Louisiana, or of the United States.

Judge WHITTAKER argued the motion for Reiter, and Mr. HORNOR for Louis.

Mr. LAMONT, U. S. Prosecuting Attorney for Louisiana, in reply, made the argument which follows.

MR. LAMONT'S ARGUMENT.

When the architect proposes to rear an edifice which shall
endure for generations, he begins his labors by removing the
superficial earth, until he can plant the foundation stones on
a solid bottom. He then knows that the completed structure
will safely defy the floods that may wash its base and the tem-
pests that shall rage around its walls.

In the argument I now propose to address to this Honorable
Court, I shall endeavor so far to imitate the architect's example,
as to search for a firm foundation of law, upon which may be
securely rested the superstructure of the PROVISIONAL COURT
FOR THE STATE OF LOUISIANA.

The learned counsel on the other side have referred us to the
Constitution and laws of this State, to the Acts of Congress, and
the Constitution of the United States bearing upon the judicial
departments of both those governments, and defining the juris-
diction of their Courts, and argue from these premises that no
judicial tribunal can exist which does not emanate from such
authority.

I concede, in the outset, that the authority of this Court does
not rest upon any part or parcel of the Constitution or statutes
of Louisiana, and that no Act of Congress has recognized its
existence; and further still, that the "judicial power" men-
tioned in the Constitution of the United States, (Art. 3, sec. 1,)
and which must be vested in one Supreme Court, and in such
inferior Courts as the Congress may, from time to time, ordain
and establish, has no application whatever to this PROVISIONAL
COURT. All this is conceded to the fullest extent. But when
this concession has been made, the argument has not yet com-
menced. It is certain, that in time of peace, this Court could

4

not exist. If the learned gentlemen had delivered their argu-
ments before the secession of Louisiana and the other States
with which she united her fortunes and destiny in levying war
against the Federal Government, I should concur in their rea-
soning and pronounce this Court to be acting without lawful
authority.

The learned counsel are compelled, however, to recognize the
present state of war, which, involving Louisiana in its vortex,
has swept out of existence her judicial and political system as it
had before existed, in subordination to the rightful authority of
the Government of the United States.

The question now before the Court must be determined in
view of this altered condition of things and upon the considera-
tion of the nature of belligerent rights. We are to look into
the rights of war, the principles of international law, the recog-
nized authority of an occupying military power, as established
by the usages of civilized nations, in order to ascertain whether
this extraordinary tribunal established by an order of the Presi-
dent, the Commander-in-Chief of the Army and Navy of the
United States, for the administration of civil and criminal jus-
tice, within a portion of the rebellious territory, is warranted by
those principles of public law, put in use by nations engaged in
actual war, when they occupy inhabited territory from which
their superior force has driven the enemy.

The authority of this Court is derived from the military
power alone, and rests upon recognized belligerent rights and
the laws of war.

First, then, are we in a state of war, and is Louisiana any
part of the theatre of its operations? Is the soil of this State,
in the present condition of affairs, to be regarded as hostile
territory? These are the questions which require an answer,
before we can determine the extent of the military authority
which the Government can rightfully exercise within the limits
of this State.

There must exist, somewhere in every government, some de-
partment competent to decide upon the fact of the actual state
of war. Were this otherwise, its impotency would be exhibited
to the world, in the course of events, by the termination of its
existence before it had itself learned to decide whether its life

5

was threatened. It is the business of every government to
guard itself from destruction, whether the danger proceeds from
foreign invasion or domestic violence; to anticipate the fatal
stroke and repel the assault aimed at its existence.

No nation has ever yet flourished in the tide of time, which
has been so fortunate as to escape the calamities of war, either
foreign or domestic. From China, the oldest of existing nations,
to the youngest of the American Republics, each and all have
felt alike, that they are subject to that common fatality of na-
tional existence. The life of many has been trampled out by
the foreign invader, while others have expired or passed over
into new forms of administration through the bloody scenes of
internal commotion and domestic insurrections.

It is no less necessary that the government, whatever or
wherever it be, should be able to recognize the fact of insurrec-
tion or rebellion, than that it should detect the approach of
foreign bayonets. By the plan of Government embodied in the
Constitution of the United States, it is the Political Department
alone which is competent to decide upon the fact of the exist-
ence of war; and that decision once made, binds all other
departments, all other persons, all other nations.

The judicial powers, from their nature, and the mode of their
exercise, are not adapted to such an inquiry, but are bound to
accept as unquestioned fact the decision of the political depart-
ment. When war is declared by Congress, all the Courts of the
United States, and of the individual States, are bound to accept
as true the fact that war exists. And when the President, under
the Constitution and laws with whose execution he is charged,
calls out the national forces, to repel invasion, or to suppress
insurrection, every judicial tribunal is bound by such executive
action to recognize the fact, that insurrection or invasion has
actually taken place. No Judge can issue a subpoena, and ex-
amine witnesses for the purpose of determining whether the ex-
igencies of the occasion demand the executive intervention, for
such a power in the judiciary would balk every executive move-
ment, and add to our other calamities endless confusion and
anarchy. Not only are we taught this by the reason and nature
of things, but our highest judicial tribunal has given its clear
and emphatic sanction to this doctrine, on more than one oc-

6

casion. Proposing, as I do, in addressing this Court, to place its
authority and jurisdiction upon principles which have been estab-
ished by the highest authority, I shall freely use the language
of the Federal Courts, rather than rely upon my own assertions,
well knowing that this Court and the counsel on the other side
will yield a willing assent to judicial authority.

To show, then, before proceeding further, that a state of war
exists, as declared by the political department of our Govern-
ment, which every judicial and other officer is bound to recog-
nize, I read from the decision of the Supreme Court of the
United States, as follows:

(See American Law Register, New Series, Vol. II., p. 334,
&c., April, 1863.)

"War has been well defined to be 'that state in which a
nationrocuts its right by force.' The parties belligerent in
a public war, are independent nations. But it is not necessary,
to constitute war, that both parties should be acknowledged as
independent nations or sovereign States. A war may exist
where one of the belligerents claims sovereign rights as against
the other. Insurrection against a government may or may not
culminate in an organized rebellion, but a civil war always
begins by insurrection against the lawful authority of the
Government. A civil war is never solemnly declared; it be-
comes such by its accidents—the number, power and organiza-
tion of the persons who originate and carry it on. When the
party in rebellion occupies and holds in a hostile manner a cer-
tain portion of territory, have declared their independence, have
cast off their allegiance, have organized armies, have commenced
hostilities against their former sovereign, the world acknow-
ledges them as belligerents, and the contest a war. They claim
to be in arms to establish their liberty and independence, in
order to become a sovereign state, while the sovereign party
treats them as insurgents and rebels, who owe allegiance, and
who should be punished with death for their treason.

The laws of war, as established among nations, have their
foundation in reason, and all tend to mitigate the cruelties and
misery produced by the scourge of war. Hence the parties to a

7

civil war, usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars. 'A civil war,' says Vattel, 'breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. These two parties, therefore, must necessarily be considered as constituting, at least, for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms. This being the case, it is very evident that the common laws of war—those maxims of humanity, moderation and honor,—ought to be observed by both parties in every civil war. Should the sovereign conceive that he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &c., &c.; the war will become cruel, horrible, and every day more destructive to the nation.'

As a civil war is never publicly proclaimed; *eo nomine*, against insurgents, its actual existence is a fact in our domestic history, which the Court is bound to notice and to know. The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated: 'When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of justice cannot be kept open, CIVIL WAR EXISTS, and hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land.'

By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war, either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is au-

8

thorized to call out the militia, and use the military and naval
forces of the United States in case of invasion by foreign nations,
and to suppress insurrection against the government of a State,
or of the United States. If a war be made by invasion of a
foreign nation, the President is not only authorized but bound
to resist force by force. He does not initiate the war, but is
bound to accept the challenge without waiting for any special
legislative authority. And whether the hostile party be a
foreign invader, or States organized in rebellion, it is none the
less a war, although the declaration of it be "unilateral." Lord
STOWELL (1 Dodson, 247,) observes: "It is not the less a war
on that account, for war may exist without a declaration on
either side. It is so laid down by the best writers on the law
of nations. A declaration of war by one country only, is not a
mere challenge, to be accepted or refused at pleasure by the
other."

This greatest of civil wars was not gradually developed by
popular commotions, tumultuous assemblies, or local unorganized
insurrections. However long may have been its previous con-
ception, it nevertheless sprung forth suddenly from the parent
brain a Minerva in the full panoply of war. The President was
bound to meet it in the shape it presented itself, without wait-
ing for Congress to baptize it with a name; and no name given
to it by him or them could change the fact. It is not the less a
civil war, with belligerent parties in hostile array, because it
may be called an "insurrection" by one side, and the insurgents
be considered as rebels or traitors. It is not necessary that the
independence of the revolted Province or State be acknowledged,
in order to constitute it a party belligerent in a war, according
to the law of nations. Foreign nations acknowledge it as war
by a declaration of neutrality. The condition of neutrality
cannot exist unless there be two belligerent parties. In the
case of *Santissima Trinidada*, 7 Wheaton, 337, this Court says,
"The Government of the United States has recognized the
existence of a civil war between Spain and her colonies, and has
awowed her determination to remain neutral between the parties.
Each party is, therefore, deemed by us a belligerent nation,
having, so far as concerns us, the sovereign rights of war." ***
The law of nations is also called the law of nature; it is founded

9

on the common consent as well as the common sense of the
world. It contains no such anomalous doctrine as that which
this Court is now for the first time, desired to pronounce, to
wit, that insurgents who have risen in rebellion against their
sovereign, expelled her Courts, established a revolutionary gov-
ernment, organized armies, and commenced hostilities, are not
*enemies* because they are *traitors*; and a war levied on the gov-
ernment by traitors, in order to dismember and destroy it, is
not a *war*, because it is an "insurrection." Whether the Presi-
dent, in fulfilling his duties as Commander-in-chief, in suppress-
ing an insurrection, has met with such armed hostile resistance,
and a civil war of such alarming proportions, as will compel
him to accord to them the character of belligerents, is a question
to be decided *by him*, and this Court must be governed by the
decisions and acts of the political department of the government
to which this power was intrusted. "He must determine what
degree of force the crisis demands." The proclamation of
blockade is itself official and conclusive evidence to the Court
that a state of war existed which demanded and authorized a
recourse to such a measure, under the circumstances peculiar to
the case. The correspondence of Lord Lyons with the Secre-
tary of State admits the fact and concludes the question. If it
were necessary to the technical existence of a war, that it should
have a legislative sanction, we find it in almost every act passed
at the extraordinary session of the Legislature of 1861, which
was wholly employed in passing laws to enable the Government
to prosecute the war with vigor and efficiency. And finally, in
1861, we find Congress "*ex majore cautela*" passing an act ap-
proving, legalizing, and making valid, all the acts, proclama-
tions, and orders of the President, &c., as if they had been issued
*and done under the previous express authority* and direction of
the Congress of the United States.

Without admitting that such an act was necessary under the
circumstances, it is plain that if the President had in any man-
ner assumed powers which it was necessary should have the
authority or sanction of Congress, that on the well-known prin-
ciple of law, "*omnis ratihabitio, retrotrahitur et mandato equi-
paratur*," this ratification has operated to perfectly cure the
defect, (pp. 336-341.)

2

10

I have quoted thus largely from the decision of the Supreme Court of the United States, to show that the highest judicial tribunal known to our constitution and laws has judicially determined that war exists; and that the judiciary, as respects the existence of a war, are bound to follow the decision of the political department of the government, which has pronounced that fact.

But I quote still further from the same case.

The Court proceeds (p. 341, &c.):

"The appellants contend that the term 'enemies' is properly applied to those only who are subjects or citizens of a foreign State at war with our own. They quote from the pages of the common law, which say: 'That persons who wage war against the king may be of two kinds, subjects or citizens (foreigners?). The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies.' They insist, moreover, that the President himself, in his proclamation, admits that great numbers of the persons residing within the territories in possession of the insurgent government, are loyal in their feelings, and forced by compulsion and the violence of the rebellious and revolutionary party, and its 'de facto government,' to submit to their laws and assist in their scheme of revolution; that the acts of the usurping government cannot legally sever the bond of their allegiance; they have, therefore, a correlative right to claim the protection of the Government for their persons and property, and to be treated as loyal citizens till legally convicted of having renounced their allegiance and made war against the Government by treasonably resisting its laws. They contend, also, that insurrection is the act of individuals and not of a government or sovereignty; that the individuals engaged are subjects of law; that confiscation of their property can be effected only under municipal law; that by the law of the land such confiscation cannot take place without the conviction of the owner of some offence; and, finally, that the secession ordinances are nullities and ineffectual to release any citizen from his allegiance to the National Government; consequently, the Constitution and Laws of the United States are still operative over persons in all the States for punishment as well as protection. This argument rests on the assumption of

11

two propositions, each of which is without foundation on the established law of nations.

"It assumes that where a civil war exists, the party belligerent claiming to be sovereign, cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may.

"Being sovereign, he can exercise only sovereign rights over the other party. The insurgent may be killed on the battle field, or by the executioner, his property on land may be confiscated under the municipal law; but the commerce on the ocean which supplies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, be cause it is 'unconstitutional!'

"Now it is a proposition never doubted that the belligerent party who claims to be sovereign may exercise both belligerent and sovereign rights. See 4 Cranch., 272.

"Treating the other party as a belligerent and using only the milder modes of coercion which the law of nations has introduced to mitigate the rigors of war, cannot be a subject of complaint by the party to whom it is accorded as a grace or granted as a necessity.

"We have shown that a civil war, such as that now waged between the Northern and Southern States, is properly conducted according to the humane regulations of public law, as regards capture on the ocean.

"Under the very peculiar Constitution of this Government, although the citizens owe supreme allegiance to the Federal Government, they owe also a qualified allegiance to the State in which they are domiciled; their persons and property are subject to its laws. Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new Confederacy claiming to be acknowledged by the world as a sovereign State. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States are held in hostility to the General Government. It is no loose unorganized insurrection, having no defined boundary

12

or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies' territory, because it is claimed and held in possession by an organized, hostile and belligerent power.

"All persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their government, and are none the less enemies because they are traitors."

Thus do I present the most indubitable authority to sustain the position, that the State of Louisiana is in a state of insurrection and of war against the Government of the United States. The consequence of this condition of things places all the inhabitants of this State in the attitude of enemies to the United States. In a judicial point of view, every citizen of Louisiana, whatever his private feelings and personal predilections may be, is the enemy of the United States. As, in a foreign war, every citizen of the hostile nation is regarded as an enemy of every citizen of the other nation a party to the contest, so in this civil war, all the people inhabiting the districts proclaimed by the President to be in insurrection, are nothing less than enemies to the General Government. The political power lodged in the President and in the Congress, and in them alone, is competent to modify this state of things and to mitigate the rigors of the state of war, and the judicial department is bound to recognize and to follow, without further inquiry, the example set by the political branches of the Government. The same principle was applied by our Supreme Court, nearly half a century since, to the case of civil war breaking out within a foreign government. If the political power, as vested in the President or in Congress, recognized the revolutionary party as clothed with belligerent rights, the Judiciary of the Union is bound to accept the political decision as controlling its authority in all cases in which that question may be brought before the Courts. The decision of the Supreme Court, announced by CHIEF JUSTICE MARSHALL, that great luminary of our municipal as well as of national jurisprudence, is given in the following precise language (3 Wheaton, 610, &c.):

13

"When a civil war rages in a foreign nation, one part of which separates itself from the old established government, and erects itself into a distinct government, the Courts of the Union must view such newly constituted government as it is viewed by the legislative and executive departments of the Government of the United States."

The state of war, whether civil or foreign, operates as a prohibition of all commercial intercourse between the citizens of the belligerent parties, and the judicial power is wholly incompetent to relax the rigors of such prohibition. But the political branches of the government may modify this state of hostility to whatever extent they shall deem the national interests may require. Accordingly, we find that the act of Congress of July 13, 1861, authorized the President to declare the inhabitants of the rebelling territory to be in a state of insurrection against the United States, and, thereupon, all commercial intercourse should cease, provided, however, that the President might licence and permit it to be continued, as, in his discretion, he should think fit, &c., &c.

There is nothing in this act of Congress that authorizes the Courts to treat the inhabitants otherwise than as enemies, but a modified system of trade is introduced, in order to show to those inhabitants that it is the earnest wish of the Government to mitigate, so far as the public safety will allow, the stern and rigorous rules of war, and to invite a return of loyalty to the general Government. It is clothing the belligerent law with a quality of mercy. So far as Congress and the President have thus modified the laws of war, the Courts are bound to follow, but they cannot add to, or subtract from, the conditions imposed by the political department upon the intercourse between the loyal and insurrectionary populations.

We have now arrived at a stage in our argument where we find the inhabitants of Louisiana, as well as ten other States, in the relation of enemies of the United States—enemies of all the people of those States which adhere to the Federal Government. Look for a moment into the recent history of Louisiana and her implication with the present civil war. On the 26th day of

14

January, 1861, a convention of delegates assembled in this city, which had been called at Baton Rouge, the capital, pursuant to an act of the Legislature, assumed to withdraw and secede from the Government of the United States. They afterwards leagued themselves with the other insurrectionary States, under the title of the Confederate States of America. They joined their fortunes with the rebels in arms against our Government, and disclaimed all further allegiance to the United States. They raised a military power, of both white men and negroes, seized on the Mint, Post-Office, Forts, and other property of the General Government, and expelled every vestige of the Federal authority. Their pretentions were sustained by an armed force sufficient, for the time, to expel the Union authorities, and they became as much enemies as treason and open war could make them. No Federal officer was longer tolerated within the limits of the State. A new order of things had taken place. All this was done in the name of the people of Louisiana. They undertook to maintain, by means of cannon and bayonets, the right of secession, and a new confederacy was inaugurated, made up of these rebellious States, with a President, and a Congress, and with all the outward form of a new government, under a new flag, seeking recognition among the nations of the world. The old constitutional Government, as it had before been administered, was banished from the borders of the new confederacy. That portion of our people who had before professed a peculiar and chivalrous attachment to the Constitution of the United States, had thus rashly broken their bond of allegiance, destroyed the unity of the Republic, and seized upon the outlet of this great river, whose free navigation is of the first necessity to all the people who inhabit its rich valley, or who cultivate the fertile domains drained by its tributaries.

The acts of insurrection compelled the Government of the United States, in self defence, to call its people to arms. In the spring of 1862, the land and naval forces of the United States, forced a passage up the Mississippi, and took possession of New Orleans, amidst the bitter curses of the male and female population. The confederate general with his army, thunderstruck at the sudden apparition of the fleet of Farragut and the bayonets of Butler, ran affrighted from the scene where they had, in con-

15

fident security, so long flourished their treasonable and tainted
rag of rebellion.

What was the condition of things found in this city, and in
those parts of Louisiana, then recovered from this insurrectionary
power? There remained from the wreck of the storm, not one
single officer, executive or judicial, acting under the authority or
yielding allegiance to the Government of the United States.
Since the great object of the Government in accepting the wager
of battle, was to suppress the rebellion and exterminate the
powers that raised and upheld it, it became impossible to re-
cognize or tolerate any of the functionaries of this rebel authority.
Consequently, there remained no other mode of preserving the
peace of society, or maintaining order, except by those instru-
mentalities which the Federal forces brought in their train. To
adopt the language of the Supreme Court, Louisiana had *acted
as a State* in joining her fortunes with the other States in re-
bellion, and her territory was turned into hostile soil. Her
population, in the eye of the law and of common sense, had be-
come enemies of the United States. Her whole official *corps*, from
the highest to the lowest, were simply public enemies. Her
State administration,—the municipality of this city, the metro-
polis of the South,—were acting as component parts of a deep-
laid, wide spread, and well-matured revolutionary organization.
None of these rebel functionaries could be tolerated by United
States authorities, either civil or military, as entitled longer to
exercise official duties. The official dignity of these insurrec-
tionists came to an end when the rebel power was expelled, and
the old flag of the Union once again saluted the eyes of the
citizens of New Orleans. But here was a population set down
in the census of 1860, at some 170,000 souls, without any re-
maining organization for the preservation of order—with no
courts,—no police,—nothing to restrain the brutal passions of
men, or to protect society from the thief, robber and assassin.

What then? Is the thief to ply his trade unmolested—the
robber to range at will—the assassin to thrust his knife with im-
punity? Are the elements of the whole social compact to be
left in a state of chaos come again? Do the reason and experi-
ence of mankind, furnish no solution for this problem? Shall
society be left to prey upon itself until a common ruin over-

16

takes them all? No! The law of nations, the reason of man-
kind—the acknowledged principles which attach to the rights of
belligerents, here come into play.

We may here employ the language of the poet :

We conquer but to save.

Society is not to be left without safeguard. The occupying
military power is charged by the law of nations, with the con-
servation of order. It is bound by the highest of human laws,
—an emanation of divine wisdom itself—to institute the reign
of ORDER,—to protect society from annihilation. We are told
that order is Heaven's first law; certain it is that without instru-
mentalities for the enforcement of order, the fabric of human
society must go to destruction.

It is an acknowledged principle of public law, that the con-
quest of a territory leaves in force all its laws as they before ex-
isted, except such as are inconsistent with the rights of the
conquering power, or suspended by the conqueror's will. The
political laws of the conquered cease, its officers are shorn of
their functions, because these are a part of the hostile system
that is superseded by the conquest of the belligerent. But the
laws of social order, and the obligations of private contract,
between the members of the conquered society, still remain in
force. The authorities on international jurisprudence, seem to
agree unanimously on this question. The Supreme Court of the
United States, have laid down the same principle in numerous
cases. In 1828, this tribunal applied it to a new territory
acquired by the United States. "All the laws which were in
force in Florida, while a province of Spain, those excepted
which were political in their character, which concerned the re-
lations between the people and their sovereign, remained in
force until altered by the Government of the United States."
(See 1. Peters., 511.)

Florida was ceded to the United States by treaty with Spain.
Next, what rights attach to a conquest?

In case of a country conquered by the arms of the United
States from a foreign power, the same Court say: "The forma-
tion of the civil Government in California, when it was done.

17

was the lawful exercise of a belligerent right over a conquered territory. It was the existing government when the territory was ceded to the United States, as a conquest, and did not cease as a matter of course, or as a consequence of the restoration of peace; and it was rightfully continued after peace was made with Mexico, until Congress legislated otherwise under its constitutional power, to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.

Harrison had been appointed collector for the port of San Francisco, by Colonel Mason, military governor of California. The action of the military governor of California was recognized as allowable and lawful by Mr. Polk and his cabinet. We think it was a rightful and correct recognition under all the circumstances, and when we say *rightful*, we mean that it was *constitutional*, although Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California. California, or the port of San Francisco, had been conquered by the arms of the United States as early as 1846. Shortly afterwards the United States had military possession of all Upper California. Early in 1847, the President, as Commander-in-chief of the army and navy, authorized the military and naval commander of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered territory, and to impose duties on imports and tonnage as military contributions for the support of the Government, and of the army which had the conquest in possession. The Government, of which Colonel Mason was the executive, had its origin in the lawful exercise of a belligerent right over a conquered territory. It had been instituted during the war by the command of the President of the United States. It was the Government when the territory was ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restoration of peace. The President might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress might have put an end to it, but that was not done. The right inference from the inaction of both is, that it was meant to be

3

18

continued until it had been legislatively changed." (See 16 Howard, 164.)

The right of the military authority by the laws of war, to erect a civil government in the conquered territory, is declared by the Supreme Court in the case of New Mexico.

The Court say: "Upon the acquisition, in the year 1846, by the arms of the United States, of the territory of New Mexico, the civil government of this territory having been overthrown, the officer, General Kearney, holding possession for the United States, in virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their persons and property, ordained, under the sanction and authority of the United States, a PROVISIONAL or temporary GOVERNMENT, for the acquired territory. By this substitution of a new supremacy, although the former political relations of the inhabitants were dissolved, their private relations, their rights vested under the government of their former allegiance, or those arising from contract or usage, remained in full force and unchanged, except so far as they were in their nature and character found to be in conflict with the Constitution and laws of the United States, or with any regulations which the conquering and occupying authority should ordain. Amongst the consequences which would be necessarily incident to the change of sovereignty would be the appointment or control of the agents by whom, and the modes in which the government of the occupant should be administered—this result being indispensable in order to secure those objects for which such government is usually established. This is the principle of the law of nations as expounded by the highest authority. Accordingly, we find that there was ordained by the PROVISIONAL GOVERNMENT a judicial system, which created a Superior or Appellate Court constituted by three Judges; and Circuit Courts, in which the laws were to be administered by the Judges of the Superior or Appellate Court in the circuits to which they should be respectively assigned. By the same authority the jurisdiction of the Circuit Courts to be held in the several counties was declared to embrace—

19

1st. All criminal cases that shall not be otherwise provided for by law; and,

2d. Exclusive original jurisdiction in all civil cases which shall not be cognisable before the prefects and alcaldes. (Vide Laws of New Mexico, Kearney's Code, p. 48.)

We conclude, therefore, that the ordinances and institution of the PROVISIONAL GOVERNMENT would be revoked or modified by the United States alone, either by direct legislation on the part of Congress, or by that of the territorial government in the exercise of powers delegated by Congress." (See 20 Howard 176.)

The Court has determined that, under our peculiar system the President has not authority to set up a *Prize Court*. And this seems to be the limitation on his military power in time of war, within the territory occupied by the arms of the General Government, and wrested from a hostile power.

There is ample reason for this distinction. A PRIZE COURT is not a tribunal for the administration of municipal laws. It deals with the laws of nations alone, regulating international rights, intercourse, and captures on the high seas. It does not meddle with intra-territorial laws that govern and prescribe the rights of the members of a community on land. A prize tribunal is not competent to regulate or preserve the order of civil society.

All the judicial powers pertaining to prize are expressly vested in the courts authorized in terms by the Constitution, those powers being a part of that "judicial power" which, as the Constitution says, "shall extend to all cases of admiralty and maritime jurisdiction." (Const., Art. 3, Sec. 2.)

In the same decision, which denies to the Executive the power to erect a prize tribunal, it is not only conceded, but directly asserted that he possesses the power to establish a civil government in territory taken from an enemy by war.

This is the language of the Court. (See 13 Howard, 493.)

"All captures *jure belli* are for the benefit of the sovereign under whose authority they are made; and the validity of the seizure, and the question of prize or no prize can be determined in his own courts only upon which he has conferred jurisdiction

20

to try the question. And under the Constitution of the United
States, the judicial power of the General Government, is vested
in one Supreme Court, and in such inferior courts as Congress
shall from time to time ordain and establish. Every Court of
the United States, therefore, must derive its jurisdiction and
judicial authority from the Constitution or the laws of the
United States, and neither the President, nor any military officer
can establish a Court in a conquered country, and authorize it to
decide upon the rights of the United States or of individuals
IN PRIZE CASES, nor to administer the law of nations. The Courts
established or sanctioned in Mexico during the war by the com-
manders of the American forces, were nothing more than the
agents of the military power, to assist it in preserving order in
the conquered territory and to protect the inhabitants in their
persons and property, while it was occupied by the American
army. They were subject to the military power, and their de-
cisions under its control whenever the commanding officer
thought proper to interfere. They were not Courts of the United
States, and had no right to adjudicate upon a question of prize
or no prize."

Thus have we safely arrived to the conclusion that the insur-
rectionary territory in this present civil war is to be regarded,
while the war continues, as enemies' territory; that all the
rights of war attach to the United States authorities wherever
and whenever they expel from any portion of the southern soil
the military power of the so called Confederate States—that in
virtue of this belligerent right, the President, as Commander-in-
chief of the Army and Navy, may set up temporary civil gov-
ernment, to continue until changed by the Executive action or
by some law of Congress—that this temporary provisional gov-
ernment is lawful and constitutional, and is binding upon the
whole world so long as hostilities continue between the belliger-
ent parties—that this civil government thus germinating out of
the military authority, extends for the time being to all civil
and criminal concerns, within the occupied territory, without
exception or limitation, except such as are imposed by the laws
of nature and nations.

Here I might safely rest the case.

21

I have produced the highest judicial authority, for the existence and jurisdiction of this Court—THE PROVISIONAL COURT FOR THE STATE OF LOUISIANA. Now let us recur to the commission for this tribunal, and see how completely it is sanctioned by the authority I have laid before the Court.

The Executive order is as follows:

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: * * * * *

ABRAHAM LINCOLN.

22

Attest:

JOHN BOTTS, Chief Clerk.

The formal introduction of the Court into the State of Louisiana was made by the Military Governor in the ensuing month, by the following 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. LAMONT, 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.*

At the time this order bears date, October 20, 1862, Major-General Butler was in command of the military department of the Gulf, which includes the State of Louisiana. Our military occupation has ever since continued over such portions of the State as we have been able to repossess. Our lines have some-

23

times extended so as to control a great share of the territory or
area of the State, and at other times they have been pushed
back by the rebel power within narrower limits. The fortunes
of war have been various, and the contest still continues. Can
there be a doubt, then, that this Court had a lawful origin, and
that its jurisdiction stands vindicated by the principles of the
laws of war.

But we are told by the learned counsel on the other side,
that, admitting it to have been rightfully instituted, yet that
such changes have since taken place in the affairs of Louisiana,
that the powers of the Court have gradually been superseded
and lost, and that Louisiana is no longer to be regarded as a
rebellious State—that last year representatives from two Con-
gressional districts were admitted to seats in the House of Rep-
resentatives at Washington—that some of the local Courts have
been organized and are now in operation in the city of New
Orleans—that a governor and several other State officers have
been elected by the people, or that part of the people within
the Federal lines—that a Judge of the District Court of the
United States for the Western District of the State, including
this city, has been regularly nominated by the President and
confirmed by the Senate, and is now executing the duties of his
office—and, finally, that a Convention has been called and is
now in session at the City Hall for amending the Constitution
of the State.

My learned brethren, the counsel of the prisoners, contend
that Louisiana is thereby restored to a condition of loyalty to
the Federal Government, and that the powers of this Provisional
Court have been virtually swept away by the current of events,
and that no further necessity remains for its continuance. To
this argument I have several replies to make.

The rebellious attitude of Louisiana as it stood when the
Union forces came and took possession, continues, and will con-
tinue until the President or Congress shall determine other-
wise.

JUDGE TREAT, of the United States District Court at St.
Louis, has discussed this topic in a manner so clear and able
that I will quote his decision, not only as unanswerable in its
reasoning, but as carrying the weight of judicial authority. He

24

says: "The condition of peace or war, public or civil, in a legal
sense, must be determined by the political department, not the
judicial. The latter is bound by the decision thus made. The
act of 1795, and the act of July 13, 1861, vest the President with
the power to determine when insurrection exists, and to what
extent it exists. The United States Constitution vests Congress
with the power to provide for calling forth the militia to execute
the laws of the Union, suppress insurrection, and repel invasion;
to declare war, and make rules concerning captures on land and
water. In the execution of that power, Congress passed the acts
above cited. By the Act of 1795, the Supreme Court say
'the power of deciding whether the exigency had arisen upon
which the Government of the United States is bound to inter-
fere, is given to the President. * * After the President has
acted and called out the militia, is a Circuit Court of the United
States authorized to inquire whether his decision was right?
Could the Court, while the parties were actually contending in
arms for the possession of the government, call witnesses before
it, and inquire which party represented a majority of the peo-
ple? * * If the judicial power extends so far, the guarantee
contained in the Constitution of the United States, is a guaran-
tee of anarchy and not of order. Yet if this right does not re-
side in the Courts when the conflict is raging; if the judicial
power is at that time bound to follow the decision of the politi-
cal, it must be equally bound when the contest is over. * *
At all events it (the power to decide) is conferred upon him (the
President) by the Constitution and laws of the United States,
and must therefore be respected and enforced in its judicial tri-
bunals. (7 How., 43-4; also, see Martin vs. Mott, 12 Wheat,
29-31.) The same doctrine has been uniformly maintained from
the commencement of the Government. The absurdity of any
other rule is manifest. If, during the actual clash of arms, Courts
were rightfully hearing evidence as to the fact of war, and either
with or without the aid of juries, determining the question, they
should have power to enforce their decisions. In case of foreign
conflicts, neither belligerent would be likely to yield to the de-
cision; and in case of insurrection, the insurgents already in
arms against the Constitution and laws would not cease their
rebellion in obedience to a judicial decree. In short, the status

25

of the country as to peace or war, is legally determined by the
political and not the judicial department. When the decision
is made, the Courts are concluded thereby, and bound to apply
the legal rules which belong to that condition. The same power
which determines the existence of war or insurrection, must also
decide when hostilities have ceased—that is, when peace is re-
stored. In a legal sense, the state of war or peace is not a
question in pais for Courts to determine. It is a legal fact, as-
certainable only from the decision of the political department.

* * * The legal status thus determined must remain so long
as the condition of hostility continues. He (the President) has
never made a counter-proclamation, and peace has not been offi-
cially announced. As a legal condition that State is independ-
ent of actual daily strife in arms. A legal condi tiou of hostili-
ties may exist between this and a foreign nation long after the
last battle has been fought between the opposing armies. That
condition ceases when peace is concluded through competent
authority, not before. Within any construction that could be
fairly given to the President's proclamation, no part of that State
maintains as yet a loyal adhesion to the Union and Constitution.
It is the duty of the President, however, to decide that point.
Until he decides to the contrary, the Court must hold that the
legal condition of hostility continues.

The exceptions in the proclamation, so far as made by the
President, Courts can and must enforce. But, if it be correct
that by the terms of that proclamation the President intended
to devolve on the Courts the duty of determining judicially the
status of a State, or part of a State, by an inquiry into
its loyalty, or its occupation, from time to time, by United
States forces, irrespective of a decision thereon by the ex-
ecutive; still Courts could not thus acquire the power.
The limits upon their constitutional and legal functions could
not thus be enlarged. Political power could not be so dele-
gated to them." (See American Law Register, vol. 11, New
Series, p. 419, &c., May, 1863.) This decision, as is already
seen, goes to the extent of holding that each and every part
of all the States declared by the President to be in insur-
rection, are to be regarded as continuing in such state of insur-

4

26

rection until the President decides otherwise by official declara-
tion, or Congress speaks upon the subject in the form of law.

In the case of Louisiana, the President has issued no counter-
proclamation, nor made any official declaration that Louisiana
has ceased to be rebellious territory, or that peace has been re-
stored within her limits, or that she has returned to her loyalty
and allegiance to the Government of the United States. On
the contrary, she is held by the military hand, and the Federal
arms have not yet been able to repossess a half of her territory.
Our forces have just now been compelled to retire from their
advance on the Red River, and on which side soever we turn
our eyes, everywhere we see the signs of existing war.

The Executive order itself declares that, "These appoint-
ments" (that is, this Court and its officers,) "are to continue
during the pleasure of the President, not extending beyond the
military occupation of the city of New Orleans, or the restora-
tion of the civil authority in that city and in the State of Louis-
iana." Neither of these contingencies have yet occurred. The
President has not signified his pleasure that the Court should
cease. The civil authority has not been restored in the city and
in the State.

As to the city, all its officials are appointees of the military
power. The Commanding General orders the acting Mayor to
join his regiment, he having before been detailed to that duty
from the army, and appoints another soldier to supply his place.
Only last month a captain in the army, acting as Mayor *pro
tempore*, with the sanction and signature of the lately elected
Governor of the State, issued the following order, to wit:

MAYORALTY OF NEW ORLEANS.
CITY HALL, 25th day of May, 1864.

Whereas, The city of New Orleans is dependent upon its revenues, and its administration is a *temporary military one*, it is ordered that the seizure of its moneys, rights, credits and property by any Marshal, Sheriff, or Constable, be prohibited, and that the execution of all judgments rendered against the city be stayed until further ordered.

By order,
STEPHEN HOYT,
Capt. U. S. A., Acting Mayor.

(Signed,) D. L. GIBBONS,
Secretary.

Approved.

(Signed,) MICHAEL HAHN,
Governor of Louisiana.

27

All the departments of the City Government run in the same
groove.

Judged merely by the local laws of Louisiana, this city has
not one legal officer.

As to the State, we find the military power of the General
Government has so far failed, after several vigorous attempts, to
drive the armed insurgents beyond the State boundaries.

There is not left a single civil officer in the State or any of
its parishes, whose tenure of office is held pursuant to its own
constitution and laws. Neither are there any Courts in Louis-
iana organized according to the constitution and laws of the
State. It is true the Military Governor, in 1862, appointed cer-
tain persons as District Judges, to hold Courts in the Parish of
Orleans; but the constitution and laws of Louisiana know no
such functionary as a Military Governor, who made these ap-
pointments. The constitution and laws of Louisiana recognize
no Governor but one elected by the people of the State, and one
of his constitutional qualifications must be a citizenship in the
State for four years preceding the election. This Military
Governor himself was an appointee of the President—a Brigadier-
General in this very war. He was only an agent of the mili-
tary power of the Federal Government, and might have been
called a military supervisor, or a military superintendent, with
as much propriety as a military governor. He was an officer
totally unknown to Louisiana law. His Judges were not the
Judges provided for in the constitution and laws of the State,
nor elected by popular vote, as the constitution requires. They,
too, were mere agents of the military authority. Every objec-
tion that has been urged against this Court would tell with
double force against the appointed Judges of a military gov-
ernor. The Judge of this PROVISIONAL COURT is an appointee
of the President, while these other Judges are but the appointees
of an appointee, from the same original source; and all alike
are but the agents of the military power; and if the decisions
of the Supreme Court are to be respected, they all exercise a
rightful jurisdiction so long as the State is held by the military
arm of the Federal Government.

I have heard it said that these local District Judges are, if not
strictly regular, at least Judges de facto; that they were ap-

28

pointed to hold Courts with defined jurisdiction, and, therefore, are good judges until removed. In the sense this argument assumes, it is entirely unsound. A *defacto* officer is one who discharges the duties of the office coming in under color of the municipal law. These Judges, if we look to the constitution and laws of Louisiana, are found to occupy their seats without any claim or pretence, or pretended color of election or appointment under the municipal law. Nobody ever pretended that a Military Governor, appointed by the President, derives any of his power or authority from the local laws of Louisiana. Such an officer is an entire stranger to her municipal system. The appointment by the Military Governor, of these local Judges, is not made under the mistaken idea that he has ever been elected by the people of Louisiana to that office. He holds his place by a military tenure alone, is removable, and has been superseded by the President.

The present officer called Governor of Louisiana has no constitutional tenure of office, although he came in by a sort of election. He is another representative of the same military power. It is true there was an election, when he and half a dozen other officers were declared chosen for the State. But if we look to the constitution and laws of Louisiana, we see that they do not permit such an election at the time these officers were voted for, neither do they prescribe any such qualifications for the voters, as were applied by military orders in that case. All this form and mode of election were proposed, planned, and executed by military law. It was done by the Commanding General of the Department of the Gulf, with the sanction of the Commander-in-Chief of the Army and Navy of the United States. The President and the General in command, had a right by the principles of military law, as laid down by the Supreme Court of the United States, to take these measures as initiatory steps towards recalling back the loyalty of the State. Their object was to show to the People of Louisiana that the President was anxious that they should themselves aid in the work of restoration. It was the dictate of a military policy. These proceedings for an election did not profess to be controlled by the constitution and laws of Louisiana. The Commanding General declared, in general orders, that martial law is the fundamental

29

law of Louisiana. This declaration is true, so long as the Federal military power holds the State, and the President's proclamation remains in force. This is no new-fangled doctrine, but has the highest sanctions, as I have sufficiently shown.

It follows, as a consequence, that the orders of the President, or of the Commanding General, in this state of affairs, take the force of law for the time. Such orders may suspend, during our military occupation, all other laws whatsoever of a municipal character. The constitution and statutes of Louisiana may be, and have been in several particulars, suspended by the orders of Major-General Banks. He has declared that all laws of this State relating to slavery, being inconsistent with the present state of affairs, are inoperative and void. During our military occupation this order is superior to Louisiana law. General Banks, long ago, published an order forbidding the foreclosure of mortgages on plantations. This was in contravention of the laws of the State, but whether wise or unwise, it was entirely valid, and the Courts here are bound to respect it.

It has been a mooted question, whether the secession of several States, and their levying war against the general Government, has operated to carry them out of the Union, and to destroy their existence as States. I beg leave to suggest that the terms, "in the Union" and "out of the Union," have no determinate legal meaning, and it is from the confusion introduced by those vague and indeterminate phrases, that the argument on both sides has become about as obscure as the terms themselves.

What is a State, as the word is applied to one of the United States? Is it so much soil? Is it so much population? Or is it a combination of both? Is it that human society regulated by law, and inhabiting within the defined boundary, in subordination to the Constitution and laws of the United States, as the sovereign of their supreme allegiance? As to the soil, the Government will not concede that any human power can withdraw it from their jurisdiction.

As to the population, inflamed into insurrection, they are, as the Supreme Court say, enemies of the United States. What part of the Union are the enemies of the Republic? And here again we are told by the Supreme Court that the General Government may treat these insurrectionists in a two-fold character,

30

as enemies or belligerents, and as citizens. It is no wonder, then, that a difference of opinion should obtain as to the legal fact, whether a seceded State, warring against the Federal Government, is, or is not, "in the Union."

But this is a question that the PROVISIONAL COURT OF LOUISIANA is not called upon to decide. Whether Louisiana is in the Union or out of the Union, the great fact remains that the political department of the United States has proclaimed her to be in insurrection against its authority and sovereignty, and that we hold parts of the State in military possession, while the war still rages. This is the state of things that gives the military power full scope, and requires for the time being some sort of judicial organization for the preservation of order. It makes no difference, in this view, whether Louisiana is, as people phrase it, in the Union or out of the Union.

Maryland is a State that never has seceded, nor been proclaimed to be in insurrection, yet her civil State has been so severely shocked by the near clash of arms, and sometimes within her limits, she has been so far "within the wind of such commotion," that it became a military necessity to subject her people to many of the severe measures of military law. The Government had a right to do this, as they would have a right to do the same in other localities where the safety of the Republic might require it.

When that wild riot broke out in New York, and arson and murder flourished over the laws, the Federal Government, if convinced that it was a mere accessory of the general rebellion, beyond the reach of local authority, might have proclaimed martial law over that city, and put in exercise such military authority as should be found necessary to prevent the aiders and abettors of rebellion from accomplishing their traitorous purposes.

Had the city of New York followed the recommendation of a late Mayor and seceded from the State, a measure manifestly calculated to help on the rebellion, it would have been within the military discretion and duty of the President as Commander-in-Chief, to have occupied that city with the national forces, and to have secured the persons of the treasonable officials, some of whom afterwards were found in the field with the commissions of rebel generals.

31

I am asked what is the extent of this military authority? I answer, no man has ever yet found where its limit is. As well ask what are, and what will be, the ultimate exigencies of war! What strength must be employed—how long can it legally continue. The exercise of this Supreme Military Power is subject to the judgment of mankind, amenable to the criticism of Christian nations, and the pen of History. I know no other limitation.

It is the exercise of the highest and sovereign national right—with no human superior to rejudge it and revoke it on appeal. Where is the limitation of means a man may put in use in self-defence to save his life?

It has been on the part of the United States, exercised with humanity and with mercy, so much so, indeed, that the principal complaint of loyal people against the President has been, that his benevolence and tender-heartedness have actually impeded the success of military operations.

If this argument I have addressed to the Court is sound, it follows that this PROVISIONAL COURT, and these other local District Courts are sitting here to administer the laws, so far as those laws have not been suspended or put in abeyance, by military authority, and that such military authority, or orders during our military occupation of Louisiana, are obligatory upon all those tribunals.

A distinction might be imagined between the conquest of a foreign territory and the rights growing out of its military occupation, and the condition of a portion of the United States wrested from rebel rule and repossessed by the Federal arms. In sense, reason, and the necessities of the case, no difference exists. The Supreme Court of the United States has met the case and determined, on full deliberation, that the rebel territory, during the war, is, for all purposes of the exercise of belligerent rights, to be regarded as that of enemie's, and that the authority of the United States in this respect, although we claim the rights of sovereignty over the people and the soil, is clothed with every belligerent right it might exercise in a public foreign war. It would be a proposition singular in the extreme, that the usages of mankind and a Christian exercise of belligerent rights should authorize our Government, when they have taken

32

military possession of an alien population and foreign soil, to furnish such a people with instrumentalities for the preservation of order, the suppression of crime, and the enforcement of obligations among the conquered, but that when we find a portion of our own citizens in a similar predicament, we are shorn of the power to preserve society and enforce social order. Human society, whether existing under the régime of war or peace, must be restrained from anarchy by some plan of government and civil administration. Humanity and Christianity demand it; the laws of war authorize it; necessity is the law on which it is based, and an equal necessity applies to both cases. Without this, property and person would be at the mercy of every assailant—the household be invaded by every plunderer—robbery, and rapine, and lust would range at will throughout the community.

As well might you gather the infant school around the uncovered den of the tigress where she nurses her ravening cubs, as leave society in such unprotected condition.

The fact that two congressional districts of Louisiana were last year represented in Congress for a few days, cannot alter this question. The other fact that this State has no representation there now is a sufficient commentary on that point, to say nothing of the further fact that the Rebel Congress at Richmond has during all this time had a full representation both in its pre-tended Senate and House of Representatives from this State. Neither is the opening of the United States District Court in this city for a part of the State any contradiction of the fact that we are at war on Louisiana soil. The latter Court finds its process limited not by the legal boundaries prescribed by act of Congress for its jurisdiction, but by that waving line of bayonets, with the Confederate flag, which confine the Court's authority within limits narrower than those prescribed by the law. Neither is that Court superior to the military law here in force, more than this Court or these other local Courts established by military power. The Supreme Court of the United States holds itself bound by the supreme military law in similar cases, and unless this District Court can show that it is superior to the Government which created it, and to the Supreme Court to which an appeal lies from its decisions, it must be equally obli-

33

gated to recognize and obey this military power so long as the conflict continues on Louisiana soil, and until the political department of the Government proclaims a peace, or otherwise releases the State from the hostile attitude into which she has been put by the President's Proclamation declaring her to be in a state of insurrection.

It would be a paradox to assert that the same population were at the same time to be governed by both civil law and military law,—that both these were supreme,—that one tribunal should defy the military, and the other the civil power,—that by one the constitution and laws of Louisiana should be upheld in full force, and by the other important parts of both should be declared in a state of suspense, inoperative and void. This would be the *felo de se* of society judicially executed. But such absurdity will never be practically exhibited till the Judges have lost their reason.

The same military power, which to save the country, sent the Maryland Legislature to the guard-house, is quite competent to suspend, on the theatre of actual military operations, the functions of a Judge, in case of his recusancy.

The short of it is, that every other authority must yield to this great war power. Such is the law of necessity—the law of self-preservation—the law of the Supreme Court of the United States.

The effects which result from the pressure of hostile military occupation are well illustrated by a case that arose after the war of 1812, between this country and Great Britain. The British forces had seized upon the port of Castine, in the State of Maine, and held possession of the place until the ratification of the treaty of peace. During the military occupancy by the British, certain importations had been introduced into that port without paying duties to the United States, and after the close of the war, our Government brought a suit for the recovery of such duties. The case was carried to the Supreme Court of the United States, and involved the serious question whether the constitution and laws of the United States remained in full force in a portion of our own territory while held in military occupation by a belligerent power in time of war. The Court say (4 Wheaton, 254): "By the conquest and military occupa-

34

tion of Castine, the enemy acquired that firm possession which
enabled him to exercise the fullest rights of sovereignty over
that place. The sovereignty of the United States over the ter-
ritory was, of course, suspended, and the laws of the United
States could no longer be rightfully enforced there, or obligatory
upon the inhabitants who remained and submitted to the con-
querors. By the surrender, the inhabitants passed under a
temporary allegiance to the British Government, and were
bound by such laws, and such only, as it chose to recognize and
impose."

Here is shown, in the clearest light, the nature of the military
law—it supersedes all other laws which the military authorities
may deem inconsistent with their interests and safety. A
foreign belligerent, capturing a portion of American soil, there-
by excludes, by hostile occupation, even the constitution and
laws of the United States, so far as they relate to finance, ad-
ministration, or any branch of political government.

"The judicial power of the United States" as those terms
are employed in the Constitution (Art. 3, sec. 1,) is not vested
in this Provisional Court: that "judicial power" can only be
vested in those Courts named in the Constitution or established
by act of Congress.

But it does not follow, by reason or logic, that a tribunal
may not exist under the protection and authority of the General
Government, exercising judicial functions, without infringing
on the Constitution. There is a species of judicial power which
is not any part of that "judicial power" specified in the Con-
stitution, nor emanating from the military authority. In the
political organization of the Territories, judges are provided
for, and usually appointed by the President and Senate, and
for a term of years, not "holding their offices during good
behavior." (Cons., Art. 3, sec. 1.) The Territorial Courts thus
authorized by Congress are not in any sense those constitutional
Courts referred to in the organic law, for the judges of the latter
must hold their offices during good behavior. The President
may remove a territorial judge, but not one of the judges of
those Courts in which is vested that "judicial power" men-
tioned in the Constitution.

35

The authority of Congress thus to institute these extra con-
stitutional tribunals in the territories has received the sanction
of the Supreme Court, although no express authority for that
specific purpose can be found in the letter of the Constitution
itself.

Although they are extra-constitutional, considered in refer-
ence to the "judicial power," yet they are not by any means
unconstitutional.

Some of these local Courts in the parish of Orleans, have a
concurrent jurisdiction with each other, and one has a concur-
rent jurisdiction with this Provisional Court in criminal cases.
Since this local Criminal Court was set up last fall, I have ab-
stained from bringing parties charged with offences committed
in this parish before this tribunal, for the reason that it was
thought policy dictated such a course. Our Government is
laboring to re-establish, as fast as possible, the old order, in
anticipation of peace and final restoration. It will conduce to
this end to allow these local Courts to habituate the public
mind to this idea of returning allegiance. This, however, in no
way affects the question of the jurisdiction of the Provisional
Court.

A concurrent jurisdiction cannot destroy jurisdiction, and,
moreover, the Military Governor cannot appoint a Judge with
power to supersede the Judge appointed by the President. The
subordinate cannot revoke or annul the orders of his superior.

The modes of procedure in the Provisional Court have been
conformed as far as possible to the usages and practice of the
former State Courts. This is in compliance with the President's
direction.

The two individuals now before the Court have both been in-
dicted by a grand jury, tried and convicted by a petit jury, and
stand arraigned for sentence in the usual form.

This Court is not bound by the nature of its origin, which is
military, nor by the circumstances attending a rebellious popu-
lation, to proceed either by grand or petit juries. In many of
the parishes over which its jurisdiction extends, and which are
within the Federal lines, it would be totally impossible to ad-

36

minister criminal justice by means of juries, and it has, at times,
been next to impossible to do so in this city.

Military tribunals know nothing of juries; these are among
the peculiar institutions of peace.

War, especially such a civil war as has been raging here,
makes a jury trial the most difficult of undertakings. But so
great has been the desire of this Court to assimilate its proceed-
ings to the former established order of things, that it has suf-
fered itself to be complicated with all the machinery.

After allowing the prisoners every chance attending trials by
the usual methods, and defended by able counsel, they have been
convicted—the one of murder, the other of arson.

The commission of the crime in each case was attended by
circumstances of horrible atrocity. REITER butchered his own wife
on Christmas Day, 1862, and LOUIS, not only burned in the
night time the mansion house of a citizen of the Parish of As-
sumption, but murdered its proprietor, together with a young
relative residing in the family, and attempted the life of the
wife and mother of the family with an axe, fracturing her skull
and leaving her for dead—a fourfold crime.

The crime of LOUIS was committed in a parish where no other
Court exists, ordinary or extraordinary, civil or military. If
this Court cannot try him, his enormous crime must go unpun-
ished, and all the parishes in the State, within the Union lines,
except three or four, are left in a like condition.

The crime of REITER, the other prisoner, was committed in this
parish (Orleans). His first trial and conviction in this Court
took place before the local Criminal Court had been set in mo-
tion. A new trial was granted him, because the petit jury had
been allowed, with his counsel's express consent, to separate
during the progress of the trial. He has been tried and con-
victed again. Shortly before the second trial, the late Military
Governor appointed a Judge of the First District Court of this
parish, the Criminal Court for the parish of Orleans. Nothing
in these proceedings has affected the jurisdiction of the Provi-
sional Court for the State of Louisiana.

37

For the reasons given, I submit that the motion made in each of these cases by the learned counsel for the prisoners, for an arrest of judgment, ought to be overruled, and move that sentence be passed, pursuant to the convictions.

I condense this argument into the following heads:

I.

Civil war exists between the People of Louisiana and the Government and People of the United States.

II.

III.

IV.

The war having been thus proclaimed, it is not to be considered at an end until the Government itself declares that result.

V.

The actual occupation of Louisiana by the military forces of the United States engaged in suppressing the rebellion, is accompanied with an authority, by the laws of war and of nations, to institute a temporary provisional civil government for the preservation of order and the enforcement of obligations among the population thus put under the control of the military power.

VI.

One important and indispensable branch of such civil government is, a judicial system for the conservation of the peace of