586 



LOUISIANA. 



occupation of the city by the Federal forces, a 

 court was established called the Provost Court 

 of the army of the United States, having at 

 first, as its name imports, power only to decide 

 questions relating to the army, officers or sol- 

 diers. From time to time other questions were 

 referred to this court, relating to persons not 

 connected with the army, and particularly to 

 matters of police and the punishment of crimes 

 generally, and the jurisdiction over cases of 

 this kind from frequent repetition of the refer- 

 ences of them to it became habitual. Before 

 the summer after the conquest had expired, 

 this court exercised unquestioned jurisdiction 

 of all criminal cases arising in the city of New 

 Orleans. Shortly after this acquisition of ju- 

 risdiction, civil matters, in the absence of courts 

 endowed for that purpose, were referred from 

 time to time to this court. 



The major-general commanding the depart- 

 ment, and his staff under him, being in posses- 

 sion of the power, were of course appealed to 

 by the wronged or distressed. This was done 

 naturally, without reflecting further than to 

 see that they seemed to have the power of 

 government and to restrain and redress wrongs. 

 They had it, and they alone had it, and as 

 conquerors, they had the right and theirs was 

 the duty to exercise it. The right and duty 

 in such a case come directly from the posses- 

 sion of the power and the necessity for its ex- 

 ercise, and this is very manifest when the mat* 

 ter is viewed in a practical light. They follow 

 so necessarily and naturally that they are never 

 questioned. Where society by conquest and 

 the suspension of its civil institutions is re- 

 duced to its elements, nothing is plainer than 

 that it is the duty of those who have the 

 power, however obtained or held, to protect 

 the weak against the strong and to maintain 

 order and the rights of citizens among them- 

 selves. This right and duty in such a state of 

 wants and means are as apparent as is in 

 the simplest case the connection of cause and 

 effect. 



In August following the conquest of the 

 city, General George F. Shepley, of Maine, 

 was appointed Military Governor of Louisiana, 

 and among other things he immediately set 

 about providing a system of courts for the 

 State. Most of the judges of the courts that 

 had been in operation there, and the other 

 officers of them, were dfsloyal, and having fled 

 the country on its capture were still absen- 

 tees in the Confederacy so-called, and could 

 not have been continued in office even if they 

 had been willing to remain. Governor Shop- 

 ley therefore had substantially to erect new 

 courts. He found it easier and more natural 

 to erect such as they had before had, and ac- 

 cordingly ho appointed John S. Whittaker 

 Judge of the Second District Court of the par- 

 ish of Orleans. The old Second District Court 

 had been a court of probate and successions, in 

 addition to possessing the ordinary powers of a 

 local court in civil matters. This action seemed 



like setting in motion that old court under 

 the new motive power of the Federal Govern- 

 ment. It was in fact, perhaps, more properly 

 speaking, the establishment of a new court by 

 the Executive of the Federal Government, with 

 the jurisdiction and powers theretofore pertain- 

 ing to the court previously bearing that name. 

 This court therefore had all the powers per- 

 taining and belonging to the old court of that 

 name, among which were those of a Probate 

 Court. It had also power to hear and decide 

 civil cases generally, where the defendant re- 

 sided in the parish of Orleans or was a non- 

 resident of the State. Where a defendant re- 

 sided in the State, however, and not in the 

 parish of Orleans, this court could not entertain 

 a suit against him, that having been under the 

 jurisdiction of the constitutional State court to 

 whose jurisdiction this court had been ap- 

 pointed to succeed. 



The Sixth District Court of the parish of 

 Orleans was also put in motion shortly after 

 the capture of the city. 



Kufus K. Howell, the incumbent of that 

 bench, had always been a loyal man, and hav- 

 ing early taken the oath of allegiance to the Fed- 

 eral Government, was allowed to resume his func- 

 tions and continue his court under the govern- 

 ment of the Federal arms. He continued under 

 his old commission which he had received from 

 the State of Louisiana before her attempted 

 secession, and had held and acted under after 

 the act of secession and during tho Confeder- 

 ate rule. Here was one commission that had 

 been held from the State of Louisiana while 

 she was yet loyal and free from secession, con- 

 tinued through the day and rule of secession 

 into the time of the capture and government 

 of the State by the Federal army, and still held 

 and its functions exercised by that same firm 

 man and worthy judge under Federal rule. 



This court, like the one before mentioned, 

 retaining and exercising all the powers it had 

 possessed, as originally constituted, had gener- 

 al jurisdiction in civil cases, where the defend- 

 ant was a resident of the parish of Orleans, or 

 was a non-resident of the State, and was serv- 

 ed'with process within it. 



The Fourth District Court of the parish of Or- 

 leans was also established, and Jud<re J. Hie- 

 stand was appointed to its bench. This court, 

 in addition to the general jurisdiction in civil 

 cases, possessed by the other district courts of 

 the parish of Orleans, entertained appeals from 

 justices' courts, the hearing of which constitu- 

 ted a large part of its business. 



These three civil courts were all of them con- 

 stituted by Governor Shepley, in September, 

 and October, 1862, and entered upon the dis- 

 charge of their duties about the 1st of Novem- 

 ber, that being the time when the courts in 

 New Orleans, from usage immemorial, resunu 

 their session after the vacation of summer. 



These were the only courts of civil jurisdic- 

 tion in the State, and their jurisdiction wns 

 limited as against defendants resident of the 



