These two cases are together in the record. The citation is 27 Fed Cas. 768, Case No. 16,146. It comes to us from the Provisional Court of the State of Louisiana in July of 1865. The fact that this comes to us from the Provisional Court makes it significant, because most folks have never heard of this court. Abraham Lincoln established this provisional court by executive order on October 20, 1862. Judge Charles A. Peabody presided over the court.
Augustus Reiter was on trial for the murder of his wife. John Louis was charged with arson. Both were convicted. While the two cases were unconnected in their facts, they were collected together due to the issues raised during trial. In moving to arrest the judgment, Reiter’s attorney raised the claim that the court was an unconstitutional court and therefore had no authority to try the case. Louis’ attorney, in a similar motion, raised the claim that while the court had legitimacy when first constituted, it lost that legitimacy because Louisiana was re-establishing its civil government.
In considering the legality of the provisional court to begin with, Judge Peabody wrote, “In such cases, the first thing to be done in ascertaining the legality or powers of a court, is to consult the constitution and legislation of the government from which it 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 existence 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 county of an enemy held by him jure bell in armed belligerent occupation.” [27 Fed. Cas. 768, 769] He tells us the court derives its authority from the President and reproduces the executive order Lincoln issued to establish the court. He then goes into whether or not the President had the authority to create the court. “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, § 1, par. 1) declares as follows: ‘The executive power shall be vested in a president of the United States of America.’ It also provides (article 2, § 2, par. 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.’ 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 moreover it is conclusively settled by the president, the ultimate arbiter of the fact, by his proclamation to that effect.” [27 Fed. Cas. 768, 770]
Judge Peabody tells us, “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 States had been, by force of the arms of the United States, expelled 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 administered 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 institutions, if not abandoned and extinguished, are at least suspended in their action. They may be transferred to and adopted by the new governing 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.” [27 Fed. Cas. 768, 771] He continues, “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 succeeding, 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 preserved 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 or 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 overthrown, 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 incumbent 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.” [27 Fed. Cas. 768, 771] The President of the United States, then, as commander-in-chief, had not only the authority but also the responsibility to establish the court. Therefore, Judge Peabody rejected the claim the court was unconstitutional.
Judge Peabody next considered the claim that the court no longer had any legitimacy due to the re-establishment of Louisiana’s civil authority. “There is no pretence 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 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.” [27 Fed. Cas. 768, 777-778]
In summing up, Judge Peabody wrote, “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 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.” [27 Fed. Cas. 768, 779] He therefore also rejected Louis’ claim that the re-establishment of civil authority in Louisiana automatically meant the court no longer had legitimacy.
The case is important because of the fact that it shows the operation of the provisional court and provides the constitutional rationale for the court’s legitimacy.