EXECUTIVE ORDER, ESTABLISHING A PROVISIONAL COURT IN LOUISIANA. 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 shall 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 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 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 in the State of Louisiana. These officers shall be paid out of the contingent fund of the War Department, compensation 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. By the President: ABRAHAM LINCOLN. WILLIAM H. SEWARD, Secretary of State. SEQUESTRATION COMMISSION. GENERAL ORDERS HEAD-QUARters, DeparTMENT OF THE GULF, The Commanding General being informed, and believing, that the district west of the Mississippi River, lately taken possession of by the United States troops, is most largely occupied by persons disloyal to the United States, and whose property has become liable to confiscation under the acts of Congress and the proclamation of the President, and that sales and transfers of said property are being made for the purpose of depriving the Government of the same, has determined, in order to secure the rights of all persons as well as those of the Government, and for the purpose of enabling the crops now growing to be taken care of and secured, and the unemployed laborers to be set at work, and provision made for the payment of their labor, To order, as follows: I. That all the property within the district to be known as the "District of Lafourche," be and are hereby sequestered, and all sales or transfers thereof are forbidden, and will be held invalid. II. The District of Lafourche will comprise all the territory in the State of Louisiana lying west of the Mississippi River, except the parishes of Plaquemines and Jefferson. III. That Major JOSEPH M. BELL, Provost Judge, President, Capt. FULLER (75th N. Y. Vols.), Provost Marshal of the District, be a commission to take possession of the property in said district, to make an accurate inventory of the same, and gather up and collect all such personal property, and turn over to the proper officers, under their receipts, such of said property as may be required for the use of the United States army; to collect together all the other personal property, and bring the same to New Orleans, and cause it to be sold at public auction to the highest bidders, and, after deducting the necessary expenses of care, collection, and transportation, to hold the proceeds thereof subject to the just claims of loyal citizens and those neutral foreigners who in good faith shall appear to be the owners of the same. IV. Every loyal citizen or neutral foreigner who shall be found in actual possession and ownership of any property in said district, not having acquired the same by any title since the 18th day of September last, may have his property returned or delivered to him without sale, upon establishing his condition to the judgment of the Commission. V. All sales made by any person not a loyal citizen or foreign neutral, since the 18th day of September, shall be held void, and all sales whatever, made with the intent to deprive the Government of its rights of confiscation, will be held void, at what time soever made. VI. The Commission is authorized to employ in working the plantation of any person who has remained quietly at his home, whether he be loyal or disloyal, the negroes who may be found in said district, or who have, or may hereafter, claim the protection of the United States, upon the terms set forth in the memoranda of a contract heretofore offered to the planters of the parishes of Plaquemines and St. Bernard, or white labor may be employed at the election of the Commission. VII. The Commissioners will cause to be purchased such supplies as may be necessary, and convey them to such convenient depots as to supply the planters in the making of the crop; which supplies will be charged against the crop manufactured, and shall constitute a lien thereon. VIII. The Commissioners are authorized to work, for the account of the United States, such plantations as are deserted by their owners, or are held by disloyal owners, as may seem to them expedient, for the purpose of saving the crops. IX. Any persons who have not been actually in arms against the United States since the occupation of New Orleans by its forces, and who shall remain peaceably upon their plantations, affording no aid or comfort to the enemies of the United States, and who shall return to their allegiance, and who shall, by all reasonable methods, aid the United States when called upon, may be empowered by the Commission to work their own plantations, to make their own crop, and to retain possession of their own property, except such as is necessary for the military uses of the United States. And to all such persons the Commission are authorized to furnish means of transportation for their crops and supplies, at just and equitable prices. X. The Commissioners are empowered and authorized to hear, determine, and definitely report upon all questions of the loyalty, disloyalty, or neutrality of the various claimants of property within said district; and further, to report such persons as in their judgment ought to be recommended by the Commanding General to the President for amnesty and pardon, so that they may have their property returned; to the end that all persons that are loyal, may suffer as little injury as possible, and that all persons who have been heretofore disloyal may have opportunity now to prove their loyalty and return to their allegiance, and save their property from confiscation, if such shall be the determination of the Government of the United States. By command of Major-General Butler. GEO. C. STRONG, A. A. G., Chief of Staff. JURISDICTION OF COURTS APPOINTED BY MILITARY AUTHORITY TO ADMINISTER JUSTICE. Military courts, being lawfully established by virtue of the war power of the President, as a part of his military government over the territory of a public enemy, with jurisdiction over all persons and things within the district to which the judge's commission is limited, have the right to make and enforce rules for the creation and service of process, and for all other proceedings before them. Their judgments may be rendered subject to appeal, if so directed by the President. The orders and decisions of the judges will be final and conclusive upon all subjects, matters, and persons over whom they have, by the terms of their commissions, exclusive and final jurisdiction. From such decisions and judgments there is no appeal to any judicial court of the United States.* They must be forever recognized by all departments of government as valid and conclusive.† DOES THE CONSTITUTION PROHIBIT SUCH PROCEDURES ? The question may be asked whether courts administering municipal or local laws, condemning criminals without previous indictment, trial by jury, limitation of place in which trial shall be held, and without right of appeal, are not within the prohibitions of the Constitution. The clauses referring to these subjects are as follows: Amendment, Art. V. “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces; or in the militia, when in actual service in time of war or public danger," &c. Amendment, Art. VI. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law," &c. Amendment, Art. VII. "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reëxamined in any court of the United States, than according to the rules of the common law." * Dynes v. Hoover, 20 How. 79 (See Appendix, p. 520); Vallandigham's Case, Appendix, p. 524. † See Notes to Forty-third Edition, on "Military Government and Reconstruction " (p. 427), and “Military Courts," p. 446. ‡ Note to Forty-third Edition. — Since this cdition was in type, the constitutional power of the President to establish provisional courts in rebel States during the war, has been affirmed (1870) by a unanimous decision of the Supreme Court of the United States in the case of The Grapeshot (9 Wallace, 131), Appendix, p. 601. To understand the true meaning and application of the fifth, sixth, and seventh articles of the Amendment above cited, it is necessary to observe that citizens owing allegiance to the government of the United States are by civil territorial war divided into two classes, having different rights and being subject to dif ferent liabilities; first, the inhabitants of loyal States who have upheld the government; and second the inhabitants of rebellious States, who, by inaugurating civil war, have become our public enemies. There are also two classes of loyal citizens; first, those who are in the military or naval service; and second, those who are not. Military courts may be regarded as, first, ordinary courts, organized and acting under provisions of statutes, and administering the laws of war upon persons engaged in our military service; second, as courts established by the war power of the Commander-inChief, while carrying on the domestic government of territorial public enemies in hostile districts held by our military forces. But, however organized or established, such courts exercise no part of the judicial power of the government under the Constitution. Hence it is obvious that the Articles of Amendment above cited have no application to military courts, or to the proceedings thereof; but relate only to the exercise of civil and judicial power conferred on judicial courts. Art. 5th expressly excepts from its prohibitions cases arising in the land and naval forces, or in the militia when in actual service. Art. 6th secures to the accused a speedy and impartial public trial in the State and district where the crime shall have been committed, but only in case * * See Dynes v. Hoover (Appendix, p. 520); Vallandigham's Case (Appendix, p. 524); Milligan's Case (Appendix, p. 536); Comments on this case (Appendix, p. 460); also, p. 278, and Index, title "Supreme Court." |