1. The Constitution did not prohibit the creation by military
authority of courts for the trial of civil causes during the civil
war in conquered portions of the insurgent states. The
establishment of such courts was the exercise of the ordinary
rights of conquest.
2. A court established by proclamation of the Commanding General
in New Orleans on the 1st of May, 1862, on the occupation of the
city by the government forces will, in the absence of proof to the
contrary, be presumed to have been authorized by the President.
3. Though
called, in the order establishing it, a
Provost Court, a larger jurisdiction than one over minor criminal
offenses might in fact have validly been given to it by the power
which constituted it.
4. Whether such court acted within its jurisdiction in a case
where one bank of the State of Louisiana was claiming from another
bank of the same state a large sum of money is not a question for
this Court to determine, but a question exclusively for the state
tribunals.
The State of Louisiana, as is known, during the late rebellion
joined the rebel forces. On or about the 29th of April, 1862,
however, the government forces under General Butler -- then in
command of the conquering and occupying army and commissioned to
carry on the war in the Department
Page 89 U. S. 277
of the Gulf, a department which included Louisiana -- took
possession of New Orleans. At the time of his thus occupying the
city, the only money then circulating there was notes issued by the
rebel confederacy -- "Confederate notes." In the confusion of
things for a few days after the capture, it did not appear plainly
to the people generally what would be done about these notes, and
there being no other sort of money whatever in general circulation,
General Butler, on the 1st of May, 1862, in the necessities of the
case, issued a proclamation allowing the circulation of them "until
further orders."
On the day following, by general order, he established a court.
The powers of the court were not defined otherwise than by the
order establishing it. The order said:
"Major J. M. Bell, volunteer aid-de-camp, of the division staff,
is hereby appointed Provost Judge of the City of New Orleans, and
will be obeyed and respected accordingly."
"Captain J. H. French, aid-de-camp and acting inspector general,
is hereby appointed Provost Marshal of the City of New Orleans, and
Captain Stafford, volunteer aid-de-camp Deputy Provost Marshal.
They will be obeyed and respected accordingly."
No direct authorization or approval of this court by the
President was shown, nor any direct evidence that it was not
authorized by him or that he disapproved it.
At different dates between the 5th and 13th of May, 1862, the
Union Bank of New Orleans lent to the Mechanics' and Traders' Bank
there $130,000 in Confederate notes, which still had a circulation
of a certain kind. Whether any specific agreement was made between
the two banks as to the sort of notes in which the money borrowed
should be returned -- that is to say, whether it was agreed that it
should be returned in Confederate notes or whether there was no
understanding or agreement in relation to the payment except that
tacitly understood, that it should be returned in notes as current
at the time of payment as were the Confederate notes when borrowed
-- this was a matter not clear; the great weight of evidence,
however, as the reporter read
Page 89 U. S. 278
it, being that there was no understanding in the case other than
that last mentioned.
On the 16th of May, 1862, General Butler by general order
directed that on the 27th following -- that is to say, within
eleven days -- all circulation of or trade in Confederate notes
should cease within his department. The depreciation of them, of
course, was rapid and great, though the Confederation not yet
having fallen to pieces, the notes had some circulation, though a
circulation at a great discount compared with good money in other
places in the South.
In this depreciated state of them, the Mechanics' and Traders'
Bank, on the 26th of May -- that is to say, the day before the
notes were to cease circulating in New Orleans, and thereabouts --
not then owning any such amount of the notes, tendered to the Union
Bank in Confederate notes the $130,000 borrowed, with interest. The
Union Bank declined to receive them, and soon after brought suit in
the Provost Court to recover in good money the $130,000 lent. That
court dismissed the suit, holding that the loan was payable as the
borrowing bank had offered to pay it -- that is to say, in
Confederate money. However, the parties were summoned afterwards
before General Butler, who heard an argument from the counsel of
the borrowing bank. On a still later day they appeared again before
the Provost Court, when the counsel of the borrowing bank being
about to make an argument to show the rectitude of the former
decision, the provost judge, according to the testimony of the
president of that bank, said that he had been ordered to reopen the
case and grant a new trial; that counsel "need read no law to him,
for the case would be decided under orders." The borrowing bank
accordingly paid the $130,000 and interest in lawful money of the
United States, paying it, however, under protest.
It may be here stated as part of the general history of things
-- though no part of this appeared in the record -- that on the
20th of October, 1862 -- a little less than six months after
General Butler established his court already mentioned -- the
federal occupation in Louisiana having now
Page 89 U. S. 279
become secure and more extended, President Lincoln himself
established at New Orleans, in a formal way, by commission, under
the seal of the United States, what was called the "Provisional
Court," declaring that it should be a court of record
for the
State of Louisiana and appointing Mr. Charles A. Peabody judge
thereof. This court was in form authorized to hear and determine
all causes, civil and criminal. [
Footnote 1]
Page 89 U. S. 280
The lending bank now sued the other bank in one of the inferior
courts of Louisiana to recover the money.
Its petition adverted to certain clauses of the Constitution,
among them to those clauses which ordain that,
"The judicial power of the United States shall be vested in one
Supreme Court and in such inferior courts as the Congress may from
time to time ordain."
And also that,
"The
President . . . shall nominate, and by and with
the advice of the senate . . . shall appoint judges of the Supreme
Court, and all other officers of the United States whose
appointments are not herein otherwise provided for."
And assuming, apparently, that the court established by General
Butler, if not meant to be a mere provost's court -- that is to
say, a court confined to the trial of criminal matters and
therefore without jurisdiction in a civil one such as this suit --
was of necessity meant by the said Butler to be an establishment by
him as a commanding officer of the United States in an occupied
city, of a court of the United States, with a judge of the same
appointed by him, it went on to submit that:
"The ordaining and establishing by General Butler of the said
court, the appointment of Major Bell as the judge thereof by the
said general, and the action and proceedings of the latter in the
premises were acts in violation of the Constitution, and
consequently null and void, conferring no right on the Union Bank
to invoke the authority of the said Bell to obtain from him
judgment in behalf of the said bank against the defendant
compelling it to pay to the said bank the sum adjudged by Bell to
be due to it."
It submitted further:
"That if the court had been one endowed with perfect
jurisdiction, the interference of General Butler in the
administration by its judge of its justice, and causing him to make
decisions 'under orders,' rendered void all that he did."
It then alleged that it did not owe to the Union Bank the money
which it had been made to pay under an order at
Page 89 U. S. 281
once unjust and in violation of the Constitution, and which had
been made effective only through military force, and that all this
being so it was entitled
ex aequo et bono to have back the
money thus taken away.
The petition admitted, as respected the Union Bank, that in all
that it had done it had acted as it thought that it ought to act,
and had been seeking to recover what it deemed to be a just debt by
a proceeding which it deemed a fair one. Accordingly all claim for
damages was waived.
Previously to the case's coming on to be heard before the
inferior state court of Louisiana, that state adopted a
constitution, of which the 149th article was thus:
"All rights, actions, prosecutions, claims, contracts, and all
laws in force at the time of the adoption of this constitution and
not inconsistent therewith shall continue as if it had not been
adopted; all
judgments and judicial sales, marriages, and
executed contracts
made in good faith and in accordance with
existing laws in this state rendered, made, or entered into,
between the 26th day of January, 1861, and the date when this
constitution shall be adopted are hereby declared to be valid,"
&c.
Having heard the case, the state court in which the suit was
brought said:
"Conceding for the sake of argument the incompetence of the
Provost Court to render the judgment it did against the borrowing
bank, the practical effect of its judgment,
viz., the
payment of the money, cannot now be inquired into with a view to
its restitution, for two reasons:"
"1st. There was a valid obligation on the part of the borrowing
bank to pay the amount borrowed, and after the money has been paid,
it is immaterial, in a civil point of view, by what means the
payment was enforced. Had the officers of the Union Bank forcibly
taken the money from the vaults of the other bank, the latter could
not recover it if the taker was a legal creditor to the amount
taken."
"2dly. Whether the Provost Court was or not a competent court in
law, it was a court in fact, and the admission of the plaintiff in
his petition of the good faith of the Union Bank brings the case
within the terms of article 149 of the Constitution
Page 89 U. S. 282
of Louisiana, [
Footnote 2]
and secures for the judgment obtained under such circumstances the
validity which probably it did not previously possess."
The case being then taken to the supreme court of the state on
appeal, that court said:
"The important question is was the judgment which the plaintiff
was compelled to pay an absolute nullity, and can he recover from
the defendant the amount paid by reason of said judgment?"
"This raises the question whether General Butler had the right
after the capture of the city in May, 1862, to appoint a judge to
try civil cases. If he had this right, the judgment was not an
absolute nullity, and the amount paid by the plaintiff cannot be
recovered. If the judge had the right to hear and determine the
case, the plaintiff cannot recover the money paid in satisfaction
thereof, even though it be conceded that there was not sufficient
proof to authorize the judgment or that the debt was for
Confederate money."
"Under the Constitution, the United States has the right to make
war, to raise and to support armies and navies, to suppress
insurrections, and to repel invasions. The measures to be taken in
carrying on war and suppress insurrections are not defined, and the
decision of all such questions is in the discretion of the
government to whom these powers are confided by the
Constitution."
"When the United States captured the City of New Orleans in
1862, the civil government, existing under the Confederacy, ceased
to have authority. As an incident of war powers, the President had
the right to establish civil governments, to create courts, to
protect the lives and the property of the people."
"The question is, had the general commanding the military forces
of the United States which captured the city the right to establish
the provisional court called the Provost Court which rendered the
judgment against the plaintiff? We are of the opinion that he had.
This was an exercise of the war powers of the United States,
presumably with the consent and authorization of the President, the
commander in chief."
"The plaintiff paid a judgment rendered by a competent
Page 89 U. S. 283
court, established by the United States in the exercise of its
war powers (the only authority competent to organize a court in
this city at the time), and has no cause of action against the
Union Bank for the money paid in pursuance of the decree of that
court. The United States had authority to establish this Court, and
the judgment is validated by article 149 of the Constitution of
Louisiana."
The judgment in favor of the Union Bank was accordingly
affirmed.
From that judgment the case was brought here as within section
709 of the Revised Statutes.
The errors assigned were that the Supreme Court of Louisiana
erred:
"1st. In holding that the President had a right to authorize
General Butler to establish a court of civil jurisdiction in New
Orleans in May, 1862."
"2d. In holding that it was to be presumed that the President
did authorize General Butler to establish the court of Judge Bell,
with the civil jurisdiction attributed to it by the opinion of the
court."
"3d. In holding that the court of Judge Bell had jurisdiction to
render its judgment against the Mechanics' and Traders' Bank, and
that the said judgment was not a nullity."
"4th. In holding that, supposing the judgment of the Provost
Court to have been originally void, it was validated, and so made a
bar to the claim of the plaintiff in error, by force of the 149th
article of the Constitution of Louisiana. "
Page 89 U. S. 293
MR. JUSTICE STRONG delivered the opinion of the Court.
The facts of this case, so far as they are necessary to a proper
understanding of the question raised, are the following:
In May, 1862, after the capture of New Orleans by the United
States army, General Butler, then in command of
Page 89 U. S. 294
the army at that place, issued a general order appointing Major
J. M. Bell, volunteer aid-de-camp, of the division staff, provost
judge of the city, and directed that he should be obeyed and
respected accordingly. The same order appointed Captain J. H.
French provost marshal of the city and Captain Stafford deputy
provost marshal. A few days after this order, the Union Bank lent
to the plaintiffs the sum of $130,000, and subsequently, the loan
not having been repaid, brought suit before the provost judge to
recover the debt. The defense was taken that the judge had no
jurisdiction over civil cases, but judgment was given against the
borrowers, and they paid the money under protest. To recover it
back is the object of the present suit, and the contention of the
plaintiffs is that the judgment was illegal and void because the
Provost Court had no jurisdiction of the case. The judgment of the
district court was against the plaintiffs, and this judgment was
affirmed by the supreme court of the state. To this affirmance
error is now assigned.
The argument of the plaintiffs in error is that the
establishment of the Provost Court, the appointment of the judge,
and his action as such in the case brought by the Union Bank
against them were invalid because in violation of the Constitution
of the United States, which vests the judicial power of the General
government in one Supreme Court and in such inferior courts as
Congress may from time to time ordain and establish, and that under
this constitutional provision they were entitled to immunity from
any liability imposed by the judgment of the Provost Court. Thus,
it is claimed, a federal question is presented, and the highest
court of the state having decided against the immunity claimed, our
jurisdiction is invoked.
Assuming that the case is thus brought within our right to
review it, the controlling question is whether the commanding
general of the army which captured New Orleans and held it in May,
1862, had authority after the capture of the city to establish a
court and appoint a judge with power to try and adjudicate civil
causes. Did the Constitution of
Page 89 U. S. 295
the United States prevent the creation of civil courts in
captured districts during the war of the rebellion, and their
creation by military authority?
This cannot be said to be an open question. The subject came
under consideration by this Court in
The Grapeshot,
[
Footnote 3] where it was
decided that when, during the late civil war, portions of the
insurgent territory were occupied by the National forces, it was
within the constitutional authority of the President, as commander
in chief, to establish therein provisional courts for the hearing
and determination of all causes arising under the laws of the state
or of the United States, and it was ruled that a court instituted
by President Lincoln for the State of Louisiana, with authority to
hear, try, and determine civil causes, was lawfully authorized to
exercise such jurisdiction. Its establishment by military authority
was held to be no violation of the constitutional provision that
"the judicial power of the United States shall be vested in one
Supreme Court and in such inferior courts as the Congress may from
time to time ordain and establish." That clause of the Constitution
has no application to the abnormal condition of conquered territory
in the occupancy of the conquering army. It refers only to courts
of the United States, which military courts are not. As was said in
the opinion of the Court, delivered by Chief Justice Chase in
The Grapeshot,
"It became the duty of the National government, wherever the
insurgent power was overthrown and the territory which had been
dominated by it was occupied by the National forces, to provide, as
far as possible, so long as the war continued, for the security of
persons and property and for the administration of justice. The
duty of the National government in this respect was no other than
that which devolves upon a regular belligerent, occupying during
war the Territory of another belligerent. It was a military duty,
to be performed by the President, as commander in chief, and
entrusted as such with the direction of the military force by which
the occupation was held. "
Page 89 U. S. 296
Thus it has been determined that the power to establish by
military authority courts for the administration of civil as well
as criminal justice in portions of the insurgent states occupied by
the National forces is precisely the same as that which exists when
foreign territory has been conquered and is occupied by the
conquerors. What that power is has several times been considered.
In
Leitensdorfer & Houghton v. Webb [
Footnote 4] may be found a notable
illustration. Upon the conquest of New Mexico in 1846, the
commanding officer of the conquering army, in virtue of the power
of conquest and occupancy, and with the sanction and authority of
the President, ordained a provisional government for the country.
[
Footnote 5] The ordinance
created courts, with both civil and criminal jurisdiction. It did
not undertake to change the municipal laws of the territory, but it
established a judicial system with a superior or appellate court,
and with circuit courts, the jurisdiction of which was declared to
embrace first, all criminal causes that should not otherwise be
provided for by law, and secondly original and exclusive cognizance
of all civil cases not cognizable before the prefects and alcaldes.
But though these courts and this judicial system were established
by the military authority of the United States, without any
legislation of Congress, this Court ruled that they were lawfully
established. And there was no express order for their establishment
emanating from the President or the commander in chief. The
ordinance was the Act of General Kearney, the commanding officer of
the army occupying the conquered territory.
In view of these decisions, it is not to be questioned that the
constitution did not prohibit the creation by military authority of
courts for the trial of civil causes during the civil war in
conquered portions of the insurgent states. The establishment of
such courts is but the exercise of the ordinary rights of conquest.
The plaintiffs in error therefore had no constitutional immunity
against subjection to
Page 89 U. S. 297
the judgments of such courts. They argue, however, that if this
be conceded, still General Butler had no authority to establish
such a court; that the President alone, as commander in chief, had
such authority. We do not concur in this view. General Butler was
in command of the conquering and occupying army. He was
commissioned to carry on the war in Louisiana. He was therefore
invested with all the powers of making war except so far as they
were denied to him by the commander in chief, and among these
powers, as we have seen, was that of establishing courts in
conquered territory. It must be presumed that he acted under the
orders of his superior officer, the President, and that his acts,
in the prosecution of the war, were the acts of his commander in
chief.
Again it is argued that even if the Provost Court was rightly
established, it had no jurisdiction over civil causes. It must be
conceded that the order by which the court was created did not
define expressly the nature and extent of its jurisdiction. And it
is also true that a Provost Court ordinarily has cognizance only of
minor criminal offenses; but that a larger jurisdiction may be
given to it, by the power which brings it into being, is
undeniable. Whether a larger jurisdiction was conferred in the case
now under consideration we are not called upon to determine. It is
not a federal question. The Supreme Court of Louisiana decided that
General Butler had a right, after the capture of New Orleans, in
May, 1862, to appoint a judge to try civil cases notwithstanding
the provisions of the Constitution. Having determined that he had
such a right, we have disposed of the question which entitles the
case to be heard here, and it is not for us to inquire whether the
Provost Court acted within its jurisdiction or not. That is a
question exclusively for the state tribunals. In determining, as
the state supreme court did, that the plaintiffs had no such
constitutional immunity as they claim, there was no error. If in
other respects errors were committed, they are not reviewable by
this Court unless they present some other federal question.
Page 89 U. S. 298
Such a question the plaintiffs allege is presented. Assuming
that the judgment given by the Provost Court in favor of the Union
Bank was void for want of jurisdiction in the court, they argue
that when they paid the sum adjudged against them the law raised an
implication of a promise by the Union Bank to refund it, and that
the obligation of this contract was impaired by the 149th article
of the state constitution of 1868. That article ordained that all
judgments and judicial sales, marriages, and executed contracts
made in good faith and in accordance with existing laws in the
state, rendered, made, or entered into between the 26th day of
January, 1861, and the adoption of the constitution, should be
valid. But if the court was lawfully established, as the supreme
court of the state decided, the law raised no such promise as is
asserted, and the validating clause of the constitution therefore
impaired no contract obligation. Besides, we cannot admit that the
legislation of a state may not validate the judgments of a court in
fact, though in giving the judgments the court may have transcended
its jurisdiction.
Nothing more need be added. Sufficient has been said to show
that in our opinion, the plaintiffs have been denied no right or
immunity secured to them by the Constitution and laws of the United
States. If there is any error in the record, it is one of which
this Court can take no cognizance.
Judgment affirmed.
[
Footnote 1]
The following is the order of President Lincoln from which the
Provisional Court in New Orleans derived its existence. The
reporter inserts it, the whole subject of that court being much
referred to in the argument for the plaintiff in error and in the
dissenting opinion:
"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 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 should 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 in Louisiana, his judgments 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 the State of Louisiana. These officers shall be paid
out of the contingent fund of the War Department compensations as
follows: the judge at the rate of $3,500 per annum; the prosecuting
attorney, including the fees, at the rate of $3,000 per annum; and
the clerk, including the fees, at the rate of $2,500 per annum,
such compensation 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."
"[L. S.]"
"ABRAHAM LINCOLN"
"By the President:"
"WILLIAM H. SEWARD"
"Secretary of State"
[
Footnote 2]
See it,
supra, p.
89 U. S.
281.
[
Footnote 3]
76 U. S. 9 Wall.
129.
[
Footnote 4]
61 U. S. 20 How.
176.
[
Footnote 5]
Executive Documents, 2d session 29th Congress, vol. 3, Document
19.
MR. JUSTICE FIELD, dissenting.
I am unable to agree with a majority of the Court in this case.
I do not differ from them so much in the judgment rendered as in
the reasons assigned for it. Had they placed their decision on the
ground that the plaintiff bank owed the money it was compelled by
the decree of the Provost Court to pay, and therefore could not
recover it back, however illegal the action of that tribunal, I
should have made no objection to their judgment. But as they pass
by this ground and not only affirm the legality of the
establishment
Page 89 U. S. 299
of the Provost Court by the commanding general at New Orleans,
which is not seriously controverted, but the validity of the
jurisdiction in civil cases exercised by that tribunal, I must
dissent from their opinion. I can find no sufficient warrant for
any such doctrine as there expressed in the action of the
government during the late war, or in the previous decisions of
this Court.
The case as disclosed by the record is briefly this:
On the 2d of May, 1862, General Butler, commanding the forces of
the United States then occupying the City of New Orleans, by
general order appointed Major Bell, aid-de-camp of the division
staff, provost judge of the city. Soon after this, and previous to
the 13th of May, the Union Bank of Louisiana loaned the Mechanics'
and Traders' Bank of New Orleans $130,000 in Confederate notes. On
the 26th of the month, the borrowing bank tendered payment of this
amount in notes of the same kind, but the tender was refused, the
lending bank claiming payment in either the notes of the borrowing
bank or in United States currency. It appears that the commanding
general had, by proclamation issued on the 16th, prohibited the
circulation of Confederate notes after the 27th of the month. This
prohibition necessarily affected the value of the notes. A dispute
thereupon arose between the two banks as to the character of the
currency in which the loan was to be paid, it being contended on
the one side that Confederate notes were to be received in payment,
and on the other that the money should be refunded in notes as
current at the time as the Confederate notes were when they were
loaned. The lending bank thereupon brought suit for the $130,000
before the Provost Court.
That court dismissed the suit, holding that the claim was
payable in Confederate notes. This was early in July, 1862. Some
days afterwards, the commanding general directed the provost judge
to set this judgment aside and to try the case again. Accordingly,
when counsel for the Mechanics' and Traders' Bank appeared in the
action after this order and attempted to make a defense, he was
informed by the judge that he need not read any law to the court,
that the judge
Page 89 U. S. 300
had been ordered to grant a new trial, and that "the case would
be decided under orders." A judgment for the amount claimed payable
in currency was accordingly rendered in favor of the Union Bank,
and the same was paid under protest. This was on the 24th of July,
1862.
It was to recover this sum that the present action was brought
in a state district court of Louisiana. That court declined to pass
upon the competency of the Provost Court to render the judgment in
question, but held that the Mechanics' and Traders' Bank was
indebted to the Union Bank in the amount for which that judgment
was rendered, and that the same could not be recovered back in the
present action, and further, that the 149th article of the
Constitution of the state of 1868, which declared that all
judgments, with certain exceptions, not material in the present
case, rendered in good faith and
in accordance with existing
laws in the state, between the 26th of January, 1861, and the
adoption of the constitution should be valid, secured for the
judgment in question, to use the language of the court, "the
validity which probably it did not previously possess."
On appeal, the supreme court of the state went further and held
that the commanding general had the right to establish the Provost
Court and invest it with jurisdiction to decide all civil cases,
including the one complained of; that its establishment was the
exercise of the war power of the United States, presumably with the
consent and authorization of the President, and that the judgment
was validated by the 149th article of the state constitution.
The plaintiff combats these positions and contends that the
commanding general had no authority to invest that military
tribunal with jurisdiction in civil cases, and that it was exempted
under the Constitution from any liability imposed by a judgment
rendered in the exercise of any such jurisdiction.
The constitution secures to everyone immunity from liability and
consequent deprivation of property from the unwarrantable exercise
of jurisdiction by tribunals established under the authority of the
United States, whether by Congress
Page 89 U. S. 301
acting under the judiciary article of that instrument or by the
executive, or military officers appointed by him, acting under the
war powers of the government. And the right to inquire in this
Court whether any such unwarranted jurisdiction has been exercised
is not, in my judgment, dependent upon the determination of a state
court as to the validity of the asserted jurisdiction. [
Footnote 2/1]
Had this Court, as already stated, confined itself to an
affirmation of the judgment of the state court on the ground that
the plaintiff bank owed the money borrowed and that it could not
recover it back in this action, although paid under the coercion of
the decree of the Provost Court, I should have acquiesced. But to
uphold the civil jurisdiction of that military tribunal upon the
presumed assent to its investment with such jurisdiction by the
President of the United States when, as I think, the President
refused to permit the exercise of any such jurisdiction during the
war, appears to me to be uncalled for and erroneous.
Provost courts are military courts having a well known
jurisdiction, which is limited exclusively to minor offenses,
tending to disorder and breaches of the peace, by soldiers and
citizens within the lines of an army, and occupy with reference to
such offenses a similar position with that of police courts in our
cities.
The power and jurisdiction of these courts were the subject of
frequent consideration during the late war by the Judge Advocate
General of the army, and by him were brought to the attention of
the Secretary of War and the President. His opinions upon these
subjects, when approved by the Department of War, were adopted as
directions of the executive head of the government for the guidance
of the officers of the army. And it is impossible to read the
opinions without perceiving in almost every line that the
jurisdiction of the tribunals was limited to offenses of a petty
character, and that the government intended that such jurisdiction
should not in any case be enlarged. By
Page 89 U. S. 302
them it was declared that a general commanding a department, in
which the ordinary criminal courts were suspended, was authorized,
under circumstances requiring the prompt administration of
justice, to appoint a provost judge for the trial of minor
offenses, but that the graver violations of the law should be
referred to military commissions; that the provost court was a
tribunal whose jurisdiction was derived from the customs of war,
and was unknown to our legislation; that it had no jurisdiction of
offenses of soldiers triable before a court-martial or military
commission; and that the judgment of the Provost Court at New
Orleans, directing the imprisonment of men at Ship Island and the
Dry Tortugas for desertion, marauding, mutiny, robbery, and
larceny, was without sanction of law and wholly void. "The
jurisdiction of a provost court," said one of these opinions,
"should be confined to cases of police merely, to-wit, such
cases as are summarily disposed of daily by the police courts in
our large cities, as for instance cases of drunkenness, disorderly
conduct, assault and battery, and of violation of such civil
ordinances or military regulations as may be in force for the
government of the locality. The provost judge supplies the place of
the local police magistrate in promptly acting upon the class of
cases described, without at the same time being necessitated (as a
formal military commission would be) to preserve a detailed record
of the testimony and proceedings in each case."
In another case, where an order of a commander of a department
authorized a provost court to settle questions of title to personal
property, it was declared that that was a subject of which no
military court could properly take cognizance, and the department
commander was advised that the jurisdiction of such tribunals as
provost courts, in time of war, could only be extended to matters
of police. [
Footnote 2/2]
Page 89 U. S. 303
In the face of these promulgations from the department of
military justice, approved by the Secretary of War and through him
by the President, how can it be said that the Provost Court in New
Orleans was presumably authorized by the President to exercise
civil jurisdiction? From inquiries which I have made since this
case has been pending, I think I am justified in stating that no
case has arisen in which the exercise of civil jurisdiction by one
of these tribunals has ever been, even impliedly, sanctioned by the
government. Whenever any attempt by them to exercise such
jurisdiction has been brought to the attention of the executive
department, it has been uniformly and promptly condemned.
Besides, the assent of the executive can only be presumed in
support of such acts of a subordinate officer as legitimately fall
within the sphere of that officer's duties, and with the execution
of which he is usually charged. Acts relating to the movement of
troops and the furnishing of supplies to them, directed by the
Secretary of War, may well be presumed to have been authorized by
the President, because the execution of such measures falls within
the sphere of the War Department. But no presumption would arise
that they were thus authorized if the directions proceeded from the
Postmaster General or the New York collector of customs, because to
neither of those officers are such duties usually entrusted.
Now it is no part of the duty of a military commander, whether
putting down an insurrection against the government or engaged in
making foreign conquest, to settle the pecuniary obligations of
citizens to each other or to provide a court for their
determination. His whole duty is to subdue, by force, the
insurrection in the one case and opposition to the extension of the
dominion of his government in the other, and when this is
accomplished, to preserve order in the community until his superior
authorities direct what further proceedings shall be taken. Until
such directions are given, the military commander cannot lawfully
go beyond his simple military duties.
Page 89 U. S. 304
So when a civil government was established in New Mexico, by
order of General Kearney, after that officer had conquered that
province by the forces under his command, he acted pursuant to
special instructions from the President, through the head of the
War Department. He carried the instructions with him, prepared in
advance, so confident was the President that certain conquest would
attend the march of our troops.
"Should you conquer and take possession of New Mexico and Upper
California, or considerable places in either," said these
instructions, issued on the 3d of June, 1846,
"
you will establish temporary civil governments
therein, abolishing all arbitrary restrictions that may exist,
so far as it may be done with safety. In performing this duty, it
would be wise and prudent to continue in their employment all such
executive officers as are known to be friendly to the United
States, and will take the oath of allegiance to them. [
Footnote 2/3]"
I think therefore that the majority of the court are mistaken in
their statement that there was no express order for the
establishment of courts and a judicial system by General Kearney in
New Mexico, emanating from the President or commander-in-chief. The
authority for the establishment of civil government included the
establishment of different departments of such government, judicial
as well as others. [
Footnote
2/4]
The case of
Leitensdorfer v. Webb, [
Footnote 2/5] cited by the majority in support of
their views, does not, therefore, appear to me to touch the real
question at issue. There, General Kearney, having his specific
instructions from the President, and, as this Court stated in that
case,
"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, ordained,
under
the sanction and
Page 89 U. S. 305
authority of the United States, a provisional or
temporary government for the acquired territory."
As to the appointment of Judge Peabody as provisional judge of
New Orleans, which was held valid in the case of
The
Grapeshot, [
Footnote 2/6] a
case cited as conclusive of the question under consideration here,
the appointment came directly from the President. On the 20th of
October, 1862, he issued his order reciting that the insurrection
had temporarily subverted and swept away the civil institutions of
Louisiana, including the judiciary and judicial authorities of the
Union, so that it had become necessary to hold the state in
military occupation, and that it was indispensable that there
should be some judicial tribunal existing there, capable of
administering justice, and that therefore he had thought proper to
establish and did establish a Provisional Court, and appoint a
judge thereof with authority to hear, try, and determine all
causes, civil and criminal, including causes in law, equity,
revenue, and admiralty, conforming his proceedings, as far as
possible, to the course of proceedings and practice of the courts
of the United States in Louisiana, but that the appointment of the
judge should not extend beyond the period of military occupation of
the City of New Orleans or the restoration of the civil authority
in that city and state. [
Footnote
2/7]
Upon the restoration of the civil authority, the Provisional
Court thus established ceased to exist. In July, 1866, Congress
enacted that all suits, causes, prosecutions, and proceedings of
that court, proper for the jurisdiction of the district or circuit
court of the United States for Louisiana should be transferred to
those courts respectively and be heard and determined therein, and
that all judgments, orders, and decrees of the Provisional Court,
in cases thus transferred, should at once become the orders,
judgments, and decrees of the district or circuit court, as the
case
Page 89 U. S. 306
might be, and be enforced, pleaded, and proved accordingly.
[
Footnote 2/8]
We thus have the establishment of the court by the President,
and the recognition of the legality of its establishment by
Congress. Surely there is no analogy between that case and the one
at bar.
No other case is cited in support of the extraordinary judgment
of the Provost Court we are now considering, and I feel confident
that there is no authority in the previous decisions of this Court
for the doctrine announced by the majority in their opinion.
I do not question that it was competent for the President to
authorize the establishment by military officers, or civilians
appointed military governors, of temporary courts, to continue
during the war, with civil as well as criminal jurisdiction to the
extent essential for the security of persons and property, in
territory dominated by our forces, after the overthrow of the
insurgent power of the Confederates. Such was the case with the
military governor of Louisiana, who was specially authorized in his
commission from the President to establish all necessary tribunals
within the state, and whose appointment of judges of the Third and
Fourth District Courts in New Orleans was recognized as valid by
this Court in the cases of
Handlin v. Wickliffe, reported
in the 12th of Wall., and
Pennywit v. Eaton, reported in
the 15th of Wallace. [
Footnote 2/9]
All that I insist upon is that where
Page 89 U. S. 307
such courts were established, the authority from the President
must be shown, and that it cannot be presumed from the mere
existence of the courts and the exercise of jurisdiction by them.
Sometimes, indeed, the general power conferred upon a subordinate
officer carried with it authority to establish such tribunals, as
for example the power conferred upon a military commander to
establish a civil government, carried authority to establish
tribunals with civil as well as criminal jurisdiction in the
territory governed, for the administration of justice. But the mere
possession of military power in a particular district within the
United States by an officer of the army of the United States
carried with it, by itself, no authority to establish tribunals to
dispose of civil controversies between the inhabitants of such
district, and where any such authority is asserted to have existed,
it must be shown to have been granted by the President; it cannot
be presumed, certainly not where the ordinary jurisdiction of the
court excluded any power over civil controversies, as was the case
with provost courts.
But supposing that the provost court in the present case was
rightly invested with civil jurisdiction, there was nothing to
justify its judgment in the case mentioned. It had already given
its judgment that the suit before it of the Union Bank should be
dismissed. There its powers ended. What subsequently it did was
done under the dictation of its military superior, and so, as if in
derision of the proceeding, the provost judge afterwards said to
the counsel of the defendant, that no law need be read to him; that
the commanding general had ordered a new trial, and that "the case
would be decided under orders."
A judgment thus rendered wants all the elements of a judicial
determination, and is entitled to no respect in any tribunal where
justice is administered. The commanding general, we all know, was a
man of eminent ability, and competent to sit in judgment upon any
question of law, however difficult; but he was not judge there; he
was only a military chieftain, and his order had nothing in it
which
Page 89 U. S. 308
took from its character as an arbitrary edict of despotic
power.
The position that the judgment of the Provost Court was
validated by article 149 of the Constitution of Louisiana of 1868
does not seem to me to merit any consideration. [
Footnote 2/10] The article requires for the
validation of the judgment that it must have been rendered
in
accordance with existing laws in the state, and the assertion
that any laws of the state at the time authorized the establishment
of a provost court, or that such court should rehear a case upon
the mandate of a commanding general of the United States, is a
proposition which needs only to be mentioned to be answered.
Besides, it is a novel doctrine in this country that a judgment
affecting private rights of property, not merely defective for want
of compliance with some matter of form, but absolutely void for
want of jurisdiction in the court to render it, can be validated by
subsequent enactment, legislative or constitutional. I know of no
judicial determination recognizing any such doctrine or even
looking that way.
MR. JUSTICE BRADLEY was not present at the argument of this
case, and took no part in its decision.
[
Footnote 2/1]
Trebilcock v.
Wilson, 12 Wall. 192,
79 U. S. 194.
[
Footnote 2/2]
See record of opinions in the office of the Judge
Advocate General, vol. ii, 14; vol. vi, 635, 639; vol. viii, 638;
vol. xii, 386; vol. xiii, 392; vol. xv, 519. An excellent digest of
these opinions was prepared by Major W. Winthrop, of the United
States Army, in 1868, and published by authority of the Secretary
of War.
[
Footnote 2/3]
Executive Documents, 2d session of 29th Congress, vol. iii, 1846
and 47, No. 19.
[
Footnote 2/4]
The ordinance of General Kearney establishing civil government
in New Mexico, with courts of civil and criminal jurisdiction,
provided that the judges of those courts should be appointed by the
President of the United States. Same documents, No. 19, page
30.
[
Footnote 2/5]
61 U. S. 20 How.
176.
[
Footnote 2/6]
76 U. S. 9 Wall.
129.
[
Footnote 2/7]
See the commission of President Lincoln to Mr. C. A.
Peabody,
supra, p.
89 U. S.
279.
[
Footnote 2/8]
15 Stat. at Large 360.
[
Footnote 2/9]
The following is a copy of the commission issued by the
President to General Shepley as military governor of Louisiana:
"
COMMISSION AS MILITARY GOVERNOR"
"WAR DEPARTMENT, WASHINGTON CITY, June 3, 1862"
"Hon. GEORGE F. SHEPLEY &c."
"SIR: You are hereby appointed Military Governor of the State of
Louisiana, with authority to exercise and perform, within the
limits of that state, all and singular the powers, duties, and
functions pertaining to the office of military governor (including
the power to establish all necessary offices and tribunals and
suspend the writ of habeas corpus), during the pleasure of the
President or until the loyal inhabitants of that state shall
organize a civil government in conformity with the Constitution of
the United States."
"By the President."
"[SEAL OF THE UNITED STATES]"
"E. M. STANTON"
"
Secretary of War"
[
Footnote 2/10]
See the 149th article in the statement of the case,
supra, 89 U. S.
281.
