770 



PROVISIONAL COURT FOR LOUISIANA. 



PROVISIONAL COURT FOR LOUISI- 

 ANA. This Court was established by an order 

 of the President of the United States in the 

 following terms : 



EXECUTIVE MANSION, WASHINGTON, Oct. 20, 1862. 

 The insurrection which has for some time prevailed 

 in several of the States of this Union, including Louisi- 

 ana, 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 occupa- 

 tion ; and it being indispensably necessary that there 

 shall be some judicial tribunal existing there capable 

 of administering justice, I hare, therefore, thought it 

 proper to appoint, and I do hereby constitute a Provi- 

 sional Court, which shall be a Court of Record for the 

 State of Louisiana, and I do hereby appoint Charles A. 

 Peabodv, of New York, to be a Provisional Judge to 

 hold said Court, with authority to hear, try, and deter- 

 mine all causes, civil and criminal, including causes in 

 law, equity, revenue, and admiralty, and particularly 

 all such powers and jurisdiction as belong to the Dis- 

 trict and Circuit Courts of the United States, conform- 

 ing 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 neces- 

 sary 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 Attor- 

 ney, Marshal, and Clerk, according to such proceed- 

 ings and practice as before mentioned, and such rules 

 and regulations as may be made and established by 

 said Judge. These appointments are to continue dur- 

 ing the pleasure of tne President, not extending be- 

 yond the military occupation of ths city of New Or- 

 leans, 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, and compensation shall be 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. SEWAED, Secretary of State. 



"WAR DEPARTMENT, "WASHINGTON, October 23d, 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 Lou- 

 isiana. 

 Witness my hand and the seal of the War Department. 



EDWIN M. STAN TON, Secretary of War. 

 Attest, 

 JOHN BOTTS, Chief Clerk. 



This order seems to confer on Judge Pea- 

 body judicial power of every kind in all classes 

 of cases. "To try and determine all causes, civil 

 and criminal, including onuses in law, equity, 

 revenue, and admiralty," is a jurisdiction as 

 comprehensive as sovereignty itself has, and 

 can confer, and it thus appears that the Presi- 

 dent intended to delegate to this court all the 

 judicial powers which he, as a conqueror of that 

 State, and occupying it by the armies of the 

 United States, possessed and had power to give. 

 As the Executive order recites, the insurrection 

 had " subverted and swept away the civil in- 

 stitutions, including the judiciary, and it was 

 indispensably necessary that there should be 



some judicial tribunal capable of administering 

 justice." Not only was the class of cases in 

 which this court should have jurisdiction very 

 extensive and almost without limit, but the 

 laws of the land as theretofore existing having 

 in like manner, as the courts by which they 

 had been administered, "been subverted and 

 swept away," the rules or laws by which the 

 court should be guided were to be fixed upon 

 and adopted by the new governing power, and 

 in the absence of all other enactment on the 

 subject were to be instituted by the court itself. 

 This territory thus held by the arms of the Unit- 

 ed States must be governed, wrongs must be 

 redressed, and controversies decided, peace 

 preserved, and the weak protected against the 

 strong; but the rules by which the conqueror 

 should be guided in his government were pre- 

 scribed by no code of laws or even of morals. 

 He was therefore at liberty to select them him- 

 self, and by the endowment of this court in 

 terms so general, that power was delegated 

 to the judge of the court. 



The range of judicial powers of Judge Pea- 

 body, therefore, was not broader than the field 

 from which he might select the system of rules 

 or laws by which he would be guided in the 

 exercise of those powers. He was simply to 

 administer justice, and as to the code of laws 

 or rules by which he would administer it, that 

 was left for him to decide. 



The decisions of this court are by the terms 

 of the order made final, and are not subject to 

 review by any other tribunal, the language on 

 the subject being, "his judgments to be final 

 and conclusive." This language is clear, and 

 leaves no doubt that the decisions of the pro- 

 visional judge are not subject to review save 

 by the judge himself. 



Without any provision on the subject, there 

 is no doubt that an appeal would, in the nature 

 of things, lie to the President himself from a 

 judgment of this court, and even with this ex- 

 press provision against any appeal, there is no 

 doubt that the President might, in a particular 

 case, or any number of cases, entertain appeals 

 just as he might unsay what he had said, and 

 either modify or wholly do away with that 

 provision of the order at his pleasure. He has, 

 however, in saying that the judgment of the 

 judge thereby constituted should " be final and 

 conclusive," said in effect, that he, the Presi- 

 dent himself, would not entertain appeals from 

 the decisions of this court. Its jurisdiction em- 

 braces, it seems, every possible case that can 

 become the subject of judicial action. The 

 powers of the judge are to decide each case 

 according to his opinion of justice and pro- 

 priety, adopting as the rule of his action such 

 laws or rules as he may approve. The decis- 

 ions he shall make are final, and conclude the 

 rights of the parties in all cases. This court, 

 therefore, appears to be the alpha and omega, 

 the beginning and end of justice for Louisiana. 



The change of administration of the Depart- 

 ment of the Gulf, which took place in De- 



