LOUISIANA. 



481 



they have in fact no connection with each other. 

 The same objection to the proceeding 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 authorized to try 

 these defendants, and that its proceedings have not 

 the sanction of law in the premises. Tfhe 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 mat- 

 ter of convenience solely. One of the accused, 

 Reiter, has been indicted 'for murder. The other has 

 been indicted for arson. 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 Court is not authorized in law, and has not 

 jurisdiction to try the case. 



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 pos- 

 sessed by this Court, has been withdrawn or lost 

 whether the Court in fact has been in any way de- 

 prived 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. "This Provisional Court 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 ot 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 occu- 

 pation. On that law must depend the decision of the 

 question presented by this motion, of the validity in 

 law and the powers o"f this Court. 



It was in that law that the President of the United 

 States, pressed by the urgent wants of the com- 

 munity here, found his warrant for the establish- 

 ment 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 Commander-in-Chief of its forces, 

 military and naval. It is conferred by an order, 

 "Establishing a Provisional Court in Louisiana." 

 dated Oct. 20,1862. &<?_AMER. CYC., 1863, p. 770. 

 Provisional Court for Louisiana. 



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 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 authority of 

 the President of the United States to create this 

 Court, and invest it with powers which should em- 

 brace 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, section 

 1, paragraph 1, declares as follows : 



" The executive power shall be vested in a Presi- 

 dent of the United States of America." 



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

 VOL. IV. 31 A 



"The President shall be Commamler-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 ordi- 

 narily have power to establish tribunals for the de- 

 termination of questions civil and criminal, arising 

 in civil life. Was there any thing 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 ordi- 

 narily 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 extend- 

 ing north beyond the northern boundary of the ter- 

 ritory in question, and embracing within its borders 

 that section of territory theretofore known, and still 

 most conveniently designated as the State of Louisi- 

 ana, a war had for some time been waged. It is a 

 matter of public knowledge and notoriety that this 

 war had been pending, and that the country over 

 which the jurisdiction of this Court is in question, 

 had been for a long time previous to, and also since 

 the commencement of this war, inhabited, cultivated, 

 and owned by the same people who had entered into 

 and carried on war with the Government 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 oc- 

 cupation. 



These institutions having been formed, establish- 

 ed, and administered by the Government existing 

 previous to and at the time of the conquest confess- 

 edly 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 forco 

 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 wa's 

 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. They may be transferred to and adopted 

 by the new governing power and may be used and 

 operated by it. However there may be retained ia 

 use by the new governing power some of the features 

 or institutions of the Government which has been 

 supplanted, it is nevertheless wholly another Gov- 

 ernment, and derives its life and all its vital quali- 

 ties 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 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 succeeding, capable of giving and ad- 

 ministering the Government, it follows that it is the 

 duty as well as the right of that power to do it. 



So the Government of the United States having 

 conquered and expelled from the territory of country 



