In a private letter of July 26, 1862, to Hon. Reverdy Johnson, then in New Orleans investigating General Butler’s relations with foreign consuls, Mr. Lincoln, noticing a reference to the restlessness of the people under the rule of General Phelps, asks the Maryland Senator to pardon him for believing the complaint “a false pretense.” A way to avert the inconveniences arising from military occupation was for the people of Louisiana “simply to take their place in the Union upon the old terms.”[[55]] Writing two days later to Cuthbert Bullett, a Southern gentleman who appears to have enjoyed his personal esteem and confidence, the President, after mentioning difficulties in the way of establishing civil authority in the State, suggested a method of avoiding them: “The people of Louisiana who wish protection to person and property,” he wrote, “have but to reach forth their hands and take it. Let them in good faith reinaugurate the national authority, and set up a State government conforming thereto under the Constitution. They know how to do it, and can have the protection of the army while doing it. The army will be withdrawn so soon as such State government can dispense with its presence; and the people of the State can then, upon the old constitutional terms, govern themselves to their own liking.”[[56]] If, however, Union men exerted themselves no further than criticism of the Federal Government, it was more than intimated that there were to be expected greater injuries than military necessity had yet inflicted.
The pressure of events appears even then to have been forcing the President in the direction of emancipation. To August Belmont, of New York, who enclosed the complaints of a New Orleans correspondent, Mr. Lincoln, July 31, 1862, repeated in substance what had already been written to Mr. Bullett, and added: “Those enemies must understand that they cannot experiment for ten years trying to destroy the government, and if they fail still come back into the Union unhurt. If they expect in any contingency to ever have the Union as it was, I join with the writer [Mr. Belmont’s correspondent] in saying, ‘Now is the time.’”[[57]]
The appointment in August, 1862, of General George F. Shepley as military governor may be regarded as the first act in the restoration of a loyal government for Louisiana. His selection, though probably intended as a private commendation of the judgment of General Butler, who had already designated him as Mayor of New Orleans, was never considered by that officer adequate atonement for the public censure implied in his removal, December, 1862, from command of the Department of the Gulf.
Upon the Federal occupation of New Orleans and adjacent territory all functions of the disloyal government therein immediately ceased. As controversies were constantly arising the establishment of courts had become a necessity. At first these questions were for the most part adjudicated by General Butler himself, but the pressure of military and other affairs compelled him soon to refer their settlement to civilians or to army officers especially chosen for the purpose. This uncertain system of justice, though immeasurably better than none, led to the institution of courts each of which was known by the name of the officer holding it. Accused persons were brought to trial, and judgments executed by soldiers detailed for such duty. No formal record of proceedings in these tribunals appears to have been kept, though memoranda of judgments rendered were, no doubt, made by an officer who came eventually to be designated as clerk.
For the decision of questions relating exclusively to the force under his command General Butler some time in June, 1862, organized a tribunal known as the Provost Court of the Army of the United States, over which Major Joseph M. Bell presided. Questions in no way connected with the military, especially matters of police and the punishment of crimes, were often submitted for its determination. Aggrieved persons, without reflecting upon the consequence of their acts, naturally appealed for redress to the holder of power. Thus the authority of this institution silently extended, and by the autumn of 1862 it exercised unquestioned jurisdiction over all criminal cases arising in the city of New Orleans.[[58]] In the absence of courts for adjudicating civil questions they, too, were referred to its consideration. All functions of government having been suspended by the capture of the city, it became the duty of the Federal commander, and his right by the laws of war, to provide, among other things, for the administration of justice.
One of the early acts of General Shepley after his appointment as Military Governor was to establish a system of courts for the State. Most of the former officials having fled after the surrender, he was compelled practically to create new tribunals, and this task he greatly simplified by reviving those institutions of justice with which the people of Louisiana were already familiar. John S. Whittaker was accordingly appointed Judge of the Second District Court of the parish of Orleans. Besides possessing in civil matters the ordinary powers of a local court the old tribunal of that name had been a court of probates and successions. The new exercised all the powers of the old court. It should be remembered, however, that the latter derived its authority from the laws of Louisiana, while the former owed its existence to the war powers of the Federal Executive. Its jurisdiction extended to civil cases generally where the defendant resided in the parish of Orleans or was a non-resident of the State.[[59]]
Judge Hiestand was appointed to the bench of the Fourth District Court of the parish of Orleans. Besides possessing the general authority of other district courts in that parish it entertained appeals from justices’ courts; indeed, these constituted a large part of its business.[[60]]
The Sixth District Court of the parish of Orleans, revived soon after the capture of the city, is, because of the incumbent of that bench, Judge Rufus K. Howell, of greater interest than either of the preceding. Under a commission received from the State of Louisiana before its attempted secession he continued to preside over that tribunal while the disunion party ruled New Orleans, and performed his functions up to the very hour of its surrender to the Federal authorities. Having early taken the oath of allegiance to the national Government he was permitted to resume his functions.[[61]] Like the tribunals mentioned, this court retained and exercised all the powers that it possessed as originally constituted.
These courts, instituted during September and October, 1862, entered upon the discharge of their duties about the 1st of November following. They were the only tribunals of civil jurisdiction in Louisiana, and that jurisdiction was limited, as against defendants resident of the State, to citizens of the parish of Orleans. As to inhabitants beyond the limits of that parish there was no court in which they could be sued. Though the Federal forces held several counties in this condition, their tenure fluctuated with the fortunes of war. A court was therefore needed whose jurisdiction would expand with the advance, and contract with the retreat, of the Union armies. The Provost Court was not deemed adequate, and indeed was never designed to meet such contingencies. To supply this deficiency a tribunal of very extensive powers, designated as “a court of record for the State of Louisiana,” was constituted by Executive order on October 20. Of this flexible institution Charles A. Peabody, of New York, a friend of Secretary Seward, was made provisional judge. Besides being empowered to select a prosecuting attorney, a marshal and a clerk, and to make rules for the exercise of his jurisdiction, he was authorized “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.” These officers were to be paid out of the contingent fund of the War Department, and a copy of the Executive order, certified by the Secretary of War, was “held to be a sufficient commission” for the Judge.
This institution, made up as to its personnel in the North, was sent from New York with the great expedition of General Banks constituted and organized for immediate business to Louisiana. Though Judge Peabody, accompanied by Augustus de B. Hughes, Isaac Edward Clarke and George D. Lamont, who had been chosen, respectively, clerk, marshal and prosecuting attorney, arrived in New Orleans December 15, 1862, the opening of court was delayed till the 29th of that month by a change of administration in that Department.[[62]]