even

may be dispensed with, it is certain that there by military authority, of courts for the trial of can be no sale of personal chattels without a civil causes during the civil war, in conquered por

tions States. specific identification of the thing sold. 3. Whether a State Court acted within its jurisWhich of the whole number of bales could the diction or not, is a question exclusively for the purchaser say was his ? For which of them state tribunals!

4. The legislation of a State may validate the could he have been compelled to pay? And judgments of a State Court in fact, though in glv. there is no evidence that Holmes ever received Ing the judgments the court may have transcended

its jurisdiction, the cotton or any part of it, or asserted any possession, though the sale was on credit, and if

[No. 202.] the property was his principal's he was en Argued Feb. 24, 1875. Decided May 3, 1875. titled to remove it at once to a market.

N ERROR to the Supreme Court of the Our attention has been called to the letter

State of Louisiana. addressed by Elgee to Holmes afterwards, which it is argued was itself a sale. It was court, and, more fully, in the dissenting opin

The case is stated in the opinion of the dated Oct. 8, 1863, and was as follows:

ion of Mr. Justice Field. DEAR SIR: It having been agreed on be

Messrs. E. & A. C. Janin and Louis Janin tween you and myself that I sell to you all the cotton of Elgee and Chambers now baled and

for plaintiffs in error: under shed, for the price of fifteen pounds ster: instituted by the Union Bank against the Me

New Orleans, at the date of the proceedings ling per bale, payable in Liverpool, you will

chanics and Traders' Bank, was in the peaceacause the same to be placed to my credit with ble possession of Gen. Butler, and had been James A. Jackson & Co., of Liverpool. CAPTAIN TRUMAN HOLMES, Present.

since May 6, 1862. J. K. ELGEE.

The Venice, 2 Wall., 258, 17 L. ed. 866. This was not found by the court to have circassian, 2 Wall., 158, 17 L. ed. 802; U. 8.

This restored the national territory. The been the contract between the parties. It refers to the former agreement, and evidently 1872, 40'; Woods, Circuit Court J., and the

v. Stark, 11 Am. Law Reg. (N. S.) for Jan., it was intended as a direction where to pay the price of the cotton, if any should be got Wall., 129, 19 L. ed. 651.

cases there referred to. The Grapeshot, 9 out, and if any purchase money should become due. It had no other purpose.

New Orleans was then national territory; it

It was not a delivery order. Much less can it be

had been purged of secession; it was at that regarded as a bill of sale. And there is no North and the West, and with the seat of gov

time in constant communication with the finding that it was accepted. The only contract, therefore, respecting the sale of the ernment: Congress was in session, and there cotton to Holmes upon which the executrix of was daily communication between the two Dr. Vutt can rely, is that found by the court points. Under these circumstances, where was to have been made; a contract for the sale of the necessity to appoint a judge to try civil so much of the 2,100 bales as Holmes should cases between two citizens of New Orleans, in get out in safety to a market, and that con- the Union Bank could not have obtained judg

June, 1862? If it had been a promissory note, tract passed no property in the cotton. This disposes of the whole case.

ment in the ordinary course of the courts, in

The prop: the short delay that occurred between the suit erty in the cotton was in Elgee, and neither of and the judgment before Mr. Justice Bell, ac. the contracts proved devested him of his ownership. The result is that his personal

celerated as he was by "orders” from headment for the entire proceeds of the cotton held 18 L. ed. 281, as we have seen, was for what 198*1 *representatives are entitled to a judg: quarters.

The case of Ex parte Milligan, 4 Wall., 2, in trust for the owner. The judgment of the Court of Claims is fense: “Conspiring against the Government of

the government alleges to be a millitary ofrerersed, and the record is remitted, with in the United States." The whole attempt to structions to dismiss the petitions of Woodruff sustain the pretension to try the prisoner by and Bouchard, and Julia A. Nutt, executrix, and to enter a judgment in favor of the per- plea of necessity and, as will be seen, it failed.

a military commission was predicated on the sonal representatives of John K. Elgee, for the In the proceeding against the Union Bank sum found in the Treasury, the net proceeds of there was no necessity. the sale of the cotton.

But the extraordinary part of the proceeding Dissenting, Mr. Justice Bradley, and Mr. is, that the provost judge, who was doubtless Justice Hunt.

a gentleman and, a good lawyer, although as a decider of cases he was a mere judicial waif,

decided the case in favor of the Mechanics' and THE MECHANICS & TRADERS BANK, Traders' Bank. His judgment was not apPiffs. in Err.,

pealed, nor was error taken to General Butler;

but the General ordered him to open the case THE UNION BANK OF LOUISIANA. and reverse his own decision; and this he did, (See S. C., 22 Wall., 276-308.)

and, as he says, “under orders.” Who was Commanding General, power of to appoint a the judge? Surely not Bell, for his will, his

judge--creation of courts by military au- mind, his judgment were at variance with his thority-jurisdiction.

decree. We think it clear that General Butler 1. The Commanding General of the Army which

was the judge, and that Bell did but record captured New Orleans, and held it in May, 1862, his decree. had authority, after the capture of the city, to es- If this be so we have the military comtablish a court and appoint a judge with power ander of to try and adjudicate civil causes.

a recaptured city ordering one 2. The Constitution did not prohibit the creation, 'citizen to pay a sum of money to another.

V.

as

as

For the law to sustain him see his brief 4 removed the case to the Supreme Court, where Wall. 8, 18 L. ed. 282, et seq. He was, at the the judgment of the inferior court was affirmed, time, supreme legislator, supreme judge and and they have now brought the record here for supreme executive.

And all without any neces- our review. sity whatever. U. N. v. Ferreira, 13 How., 41. The facts of this case, so far as they are

This, then, is simply a judgment, rendered necessary to a proper understanding of the by a court which never had any jurisdiction question raised, are the following: and which, without leaving a record of its pro- In May, 1862, after the capture of New Orceedings, has gone out of existence. We say leans by the United States army, Gen. Butler, that its decree was judicially inoperative, and then in command of * the army at that [*294 the money paid under it, in virtue of the mili- place, issued a general order appointirg Major tary order, subjecting the citizen of New Or: J. M. Bell, volunteer aid de-camp, of the divileans to obedience to its mandates, but paid sion staff, provost judge of the city, and diunder protest, did not devest the Mechanics' rected that he should be obeyed and respected and Traders' Bank of the ownership of the accordingly. The same order appointed' Cap. money so paid; nor did it give the Union Bank tain J. H. French provost-marshal of the city, a right to it.

and Captain Stafford deputy provost-marshal. Gilbert v. Hollinger, 14 Ann., 445; Beard v. A few days after this order the Union Bank Morancy, 3 Rob., 121; Holmes v. Henkin, 6 lent to the plaintiffs the sum of $130,000, and Rob., 54; Dufour v. Camfranc, 11 Mart., 610; subsequently, the loan not having been repaid, Elliott v. Peirsol, 1 Pet., 340; Civ. Code, 2129, brought suit before the provost judge to re2291.

cover the debt. The defense was taken that It is manifest that the national authorities the judge had no jurisdiction over civil cases, never supposed that General Butler had the but judgment was given against the borpower to appoint a provost judge to try cases rowers, and they paid the money under protest. between the citizens of New Orleans. If so, To recover it back is the object of the present why did the President, in October, 1862, ap: suit, and the contention of the plaintiffs is that point Judge Peabody to exercise those judicial the judgment was illegal and void, because the functions ? That the President, Com- Provost Court had no jurisdiction of the case. mander-in-Chief, had the constitutional au- The judgment of the district court was against thority to establish a provisional court in time the plaintiffs, and this judgment was affirmed of war, is conceded. It is so decided in Texas by the Supreme Court of the State. To this v. White, 7 Wall., 700, 19 L. ed. 227; and in affirmance error is now assigned. The Grapeshot, 9 Wall., 129, 19 L. ed. 651. The argument of the plaintiffs in error is

In the latter case the Chief Justice said: that the establishment of the Provost Court, “It was a military duty to be performed by the the appointment of the judge, and his action President, Commander-in-Chief, and in- | as such in the case brought by the Union Bank trusted as such with the direction of the mili- against them are invalid, because in violation tary force by which the occupation was held.” of the Constitution of the United States, which But, because the Constitution gave the power | vests the judicial power of the General Gov. to the President, to appoint judges, it does | ernment in one Supreme Court and in such in. not follow that every commanding general, in ferior courts as Congress may from time to every military district, may do so.

time ordain and establish, and that under this In the case of The Grapeshot, supra, this constitutional provision they were entitled to court, in discussing the authority of the Presi- immunity from any liability imposed by the dent to establish a provisional court in New judgment of the Provost Court." Thus, it is Orleans, refers to Leitensdorfer v. Webb, 20 claimed, a federal question is presented, and How., 176, 15 L. ed. 891, and incidentally to the highest court of the State having decided Jecker v. Montgomery, 13 How., 498; 18 How., against the immunity claimed, our jurisdiction 110, 15 L. ed. 311, and Cross v. Harrison, 16 is invoked. How., 164. Leitensdorfer's case is altogether Assuming that the case is thus brought different from this.

within our right to review it, the controlling In that case the appointment and the au. question is, whether the commanding general thority were received from the President, and of the army which captured New Orleans and it did not originate with General Kearney. If held it in May, 1862, had authority after the General Kearney had of his own mere volition capture of the city to establish a court and apappointed a civil judge, then the case would point a judge with power to try and adjudi. have been like that of Jecker v. Montgomery, cate civil causes. Did the Constitution of and would have been decided, doubtless, in the *the United States prevent the creation [*295

of civil courts in captured districts during Mr. P. Phillips, for defendant in error. the war of the rebellion, and their creation by

military authority ? Mr. Justice Strong delivered the opinion of This cannot be said to be an open question. the court:

The subject came under consideration by this This case originated in the Sixth District court in The Grapeshot, 9 Wall., 129, 19 L. ed. Court of the Parish of Orleans, in the State of 651, where it was decided that when, during Louisiana, where the plaintiffs sued the Union the late civil war, portions of the insurgent Bank, to recover $130,000 which they had paid territory were occupied by the national forces, to the defendants under compulsion of the judg. it was within the constitutional authority of ment given by the Provost Court of New Or- the President, as Commander-in-Chief. to es. leans in 1862, when the city was occupied by tablish therein provisional courts for the hearthe United States forces under General Butler. ing and determination of all causes arising un

Failing in the District Court, the plaintiffs der the laws of the State or of the United

same manner.

States, and it was ruled that a court instituted the trial of civil causes during the civil war in by President Lincoln for the State of Louisiana, conquered portions of the insurgent States. with authority to hear, try and determine civil | The establishment of such courts is but the causes, was lawfully authorized to exercise exercise of the ordinary rights of conquest. such jurisdiction. Its establishment by mili: The plaintiffs in error, therefore, had no contary authority was held to be no violation of stitutional immunity against subjection to the constitutional provision that "The judicial | * the judgments of such courts. They [*297 power of the United States shall be vested in argue, however, that if this be conceded, still one Supreme Court and in such inferior courts Gen. Butler had no authority to establish such as the Congress may from time to time ordain a court; that the President alone, as Comand establish.” That clause of the Constitu- mander-in-Chief, had such authority. We do tion has no application to the abnormal con- not concur in this view. Gen. Butler was in dition of conquered territory in the occupancy command of the conquering and occupying of the conquering army. It refers only to army. He was commissioned to carry on the courts of the United States, which military war in Louisiana. He was, therefore, invested courts are not. As was said in the opinion of with all the powers of making war, except so the court, delivered by Chief Justice Chase, far as they were denied to him by the Comin The Grapeshot, “It became the duty of the mander-in-Chief, and among these powers, as National Government, wherever the insurgent we have seen, was that of establishing courts power was overthrown, and the territory which in conquered territory. It must. be presumed had been dominated by it was occupied by the that he acted under the orders of his superior national forces, to provide, as far as possible, officer, the President, and that his acts, in the so long as the war continued, for the security prosecution of the war, were the acts of his of persons and property and for the adminis- Commander-in-Chief. tration of justice. The duty of the National Again; it is argued that even if the Provost Government in this respect was no other than Court was rightly established, it had no juristhat which devolves upon a regular belligerent, diction over civil causes. It must be conceded occupying during war the territory of another that the order by which the court was created belligerent. It was a military duty, to be did not define expressly the nature and extent performed by the President, as Commander-in- of its jurisdiction. And it is also true that a Chief, and intrusted as such with the direction Provost Court ordinarily has cognizance only of the military force by which the occupation of minor criminal offenses; but that a larger was held.”

jurisdiction may be given to it, by the power 296*] * Thus it has been determined that which brings it into being, is undeniable. the power to establish, by military authority, Whether a larger jurisdietion was conferred courts for the administration of civil as well in the case now under consideration, we are as criminal justice in portions of the insurgent not called upon to determine. It is not a States oocupied by the national forces, is pre- federal question. The Supreme Court of cisely the same as that which exists when for- Louisiana decided that Gen. Butler had a eign territory has been conquered and is oc- right, after the capture of New Orleans, in cupied by the conquerors. What that power May, 1862, to appoint a judge to try civil is has several times been considered. In Leitens- cases, notwithstanding the provisions of the dorfer v. Webb, 20 How., 176, 15 L. ed. 891, Constitution. Having determined that he had may be found a notable illustration. Upon such a right, we have disposed of the question the conquest of New Mexico, in 1846, the com- which entitles the case to be heard here, and manding officer of the conquering army, in vir- it is not for us to inquire whether the Provost tue of the power of conquest and occupancy, Court acted within its jurisdiction or not. and with the sanction and authority of the That is a question exclusively for the state triPresident, ordained a provisional government bunals. In determining, as the State Supreme for the country. Exec. Doc., 2d sess. 29 Cong., Court did, that the plaintiffs had no such convol. 3, Doc. 19. The ordinance created courts stitutional immunity as they claim, there was with both civil and criminal jurisdiction. It no error. If in other respects errors were comdid not undertake to change the municipal mitted, they are not reviewable by this court, laws of the territory, but it .established a ju. unless they present some other federal question. dicial system with a superior or appellate *Such a question the plaintiff's allege [*298 court, and with circuit courts, the jurisdiction is presented. Assuming that the judgment of which was declared to embrace, first, all given by the Provost Court in favor of the criminal causes that should not otherwise be Union Bank was void for want of jurisdiction provided for by law; and second, original ex- in the court, they argue that when they paid clusive cognizance of all civil cases not cog- the adjudged against them the law mizable before the prefects and alcaldes. But raised an implication of a promise by the Union though these courts and this judicial system Bank to refund it, and that the obligation of were established by the military authority of this contract was impaired by the 149th article the United States, without any legislation of of the State Constitution of 1868. That article Congress, this court ruled that they were law. ordained that all judgments and judicial sales, fully established. And there was no express marriages and executed contracts made in good order for their establishment emanating from faith and in accordance with existing laws in the President or the Commander-in-Chief. The the State, rendered, made or entered into beordinance was the act of Gen. Kearney, the tween the 26th day of January, 1861, and the commanding officer of the army occupying the adoption of the Constitution, should be valid. conquered territory,

But if the court was lawfully established, as In view of these decisions it is not to be ques- the Supreme Court of the State decided, the tioned that the Constitution did not prohibit law raised no such promise as is asserted, and the creation by military authority of courts for the validating clause of the Constitution, there

sum

ac

fore, impaired no contract obligation. Besides, tempted to make a defense, he was informed by we cannot admit that the legislation of a the judge that he need not read any law to the State may not validate the judgments of a court court, that the judge *had been ordered [*300 in fact, though in giving the judgments the to grant a new trial, and that "the case would court may have transcended its jurisdiction. be decided under orders.” A judgment for the

Nothing more need be added. Sufficient has amount claimed payable in currency was been said to show that, in our opinion, the cordingly rendered in favor of the Union Bank, plaintiffs have been denied no right or immu and the same was paid under protest. This nity secured to them by the Constitution and was on the 24th of July, 1862. laws of the United States. If there is any er- It was to recover this sum that the present ror in the record, it is one of which this court action was brought in a State District Court of can take no cognizance.

Louisiana. That court declined to pass upon The judgment is affirmed.

the competency of the Provost Court to render

the judgment in question, but held that the Me. Mr. Justice Field, dissenting:

chanics and Traders' Bank was indebted to the I am unable to agree with a majority of the Union Bank in the amount for which that judg. court in this case. I do not differ from them ment was rendered, and that the same could so much in the judgment rendered as in the not be recovered back in the present action; and reasons assigned for it. Had they placed their further, that the 149th article of the Constitudecision on the ground that' the plaintiff Bank tion of the State, of 1868, which declared that owed the money it was compelled by the de- all judgments, with certain exceptions, not macree of the Provost Court to pay and, therefore, terial in the present case, rendered in good could not recover it back, however illegal the faith and in accordance with existing laws in action of that tribunal, I should have made no the State, between the 26th of January, 1861, objection to their judgment. But as they pass and the adoption of the Constitution, should by this ground and not only affirm the legality be valid, secured for the judgment in question, 299*] of the establishment *of the Provost to use the language of the court, "the validity Court by the commanding general at New Or- which probably it did not previously possess." leans, which is not seriously controverted, but On appeal the Supreme Court of the State the validity of the jurisdiction in civil cases went further, and held that the commanding exercised by that tribunal, I must dissent from general had the right to establish the Provost their opinion. I can find no sufficient war: Court and invest it with jurisdiction to decide rant for any such doctrine as there expressed all civil cases, including the one complained of; in the action of the government during the that its establishment was the exercise of the late war, or in the previous decisions of this war power of the United States, presumably court.

with the consent and authorization of the Pres. The case, as disclosed by the record, is briefly ident, and that the judgment was validated by this: on the 2d of May, 1862, General Butler, the 149th article of the State Constitution. commanding the forces of the United States The plaintiff combats these positions, and then occupying the City of New Orleans, by contends that the commanding general had no general order appointed Major Bell, aid de- authority to invest that military tribunal with camp of the division staff, provost judge of the jurisdiction in civil cases; and that it was excity. Soon after this, and previous to the 13th empted under the Constitution from any liaof May, the Union Bank of Louisiana loaned bility imposed by a judgment rendered in the the Mechanics and Traders Bank of New Or- exercise of any such jurisdiction. leans $130,000 in Confederate notes. On the The Constitution secures to every one immu26th of the month the borrowing Bank tendered nity from liability and consequent deprivation payment of this amount in notes of the same of property from the unwarrantable exercise of kind, but the tender was refused, the lending | jurisdiction by tribunals established under the Bank claiming payment in either the notes of authority of the United States, whether by Conthe borrowing Bank or in United States cur- gress *acting under the judiciary article [*301 rency: It appears that the commanding general of that instrument, or by the executive or milihad, by proclamation, issued on the 16th, pro- tary officers appointed by him, acting under the hibited the circulation of Confederate notes war powers of the government. And the right after the 27th of the month. This prohibition to inquire in this court whether any such unnecessarily affected the value of the notes. A warranted jurisdiction has been exercised is dispute thereupon arose between the two banks not, in my judgment, dependent upon the deas to the character of the currency in which the termination of a State Court as to the validity loan was to be paid, it being contended on the of the asserted jurisdiction. Trebilcock v. Wiione side that Confederate notes were to be re- son, 12 Wall., 692-694, 20 L. ed. 461. ceived in payment, and on the other that the Had this court, as already stated, confined money should be refunded in notes as current at itself to an affirmation of the judgment of the the time as the Confederate notes were when State Court on the ground that the plaintiff they were loaned. The lending Bank thereupon Bank owed the money borrowed, and that it brought suit for the $130,000 before the Pro- could not recover it back in this action, al. vost Court.

though paid under the coercion of the decree of That court dismissed the suit, holding that the Provost Court, I should have acquiesced. the claim was payable in Confederate notes. But to uphold the civil jurisdiction of that This was early in July, 1862. Some days after- military tribunal upon the presumed assent to wards the commanding general directed the its investment with such jurisdiction by the provost judge to set this judgment aside, and President of the United States, when, as I to try the case again. Accordingly, when coun. I think, the President refused to permit the er. sel for the Mechanics and Traders' Bank ap. ercise of any such jurisdiction during the war, peared in the action after this order and at appears to me to be uncalled for and erroneous. Provost courts are military courts having a proved by the Secretary of War, and through well known jurisdiction, which is limited ex- him by the President, how can it be said that clusively to minor offenses, tending to disorder the Provost Court in New Orleans was preand breaches of the peace, by soldiers and citi- sumably authorized by the President to exerzens within the lines of an army, and occupy cise civil jurisdiction? From inquiries which with reference to such offenses a similar posi- I have made since this case has been pending, tion with that of police courts in our cities. I think I am justified in stating that no case

The power and jurisdiction of these courts has arisen in which the exercise of civil juriswere the subject of frequent consideration dur- diction by one of these tribunals has ever been, ing the late war by the Judge Advocate Gener even impliedly, sanctioned by the government. al of the Army, and by him were brought to the Whenever any attempt by them to exercise such attention of the Secretary of War and the Presi- jurisdiction has been brought to the attention dent. His opinions upon these subjects, when of the Executive Department, it has been uniapproved by the Department of War, were formly and promptly condemned. adopted as directions of the executive head of Besides, the assent of the Executive can only the government for the guidance of the officers be presumed in support of such acts of a subof the Army. And it is impossible to read the ordinate officer as legitimately fall within the opinions without perceiving in almost every sphere of that officer's duties, and with the line that the jurisdiction of the tribunals was execution of which he is usually charged. Acts limited to offenses of a petty character, and relating to the movement of troops and the that the government intended that such juris- furnishing of supplies to them, directed by the diction should not, in any case, be enlarged. Secretary of War, may well be presumed to 302*] By *them it was declared that a general have been authorized by the President, because commanding a department, in which the ordin. the execution of such measures falls within the ary criminal courts were suspended, was au- sphere of the War Department. But no prethorized, under circumstances requiring the sumption would arise that they were thus auprompt administration of justice, to appoint a thorized if the directions proceeded from the provost judge for the trial of minor offenses, Postmaster-General or the New York Collector but that the graver violations of the law should of Customs, because to neither of those officers be referred to military commissions; that the are such duties usually intrusted. Provost Court was a tribunal whose jurisdic- Now, it is no part of the duty of a military tion was derived from the customs of war, and commander, whether putting down an insurwas unknown to our legislation; that it had rection against the government or engaged in no jurisdiction of offenses of soldiers triable making foreign conquest, to settle the pecuniary before a court-martial or military commission; obligations of citizens to each other, or to proand that the judgment of the Provost Court at vide a court for their determination. His New Orleans, directing the imprisonment of whole duty is to subdue, by force, the insurrecmen at Ship Island and the Dry Tortugas for tion in the one case and opposition to the exdesertion, marauding, mutiny, robbery and lar- tension of the dominion of his government in ceny, was without sanction of law and wholly the other; and when this is accomplished, to void. “The jurisdiction of a Provost Court, preserve order in the community until his susaid one of these opinions, "should be confined perior authorities direct what further proceedto cases of police merely, to wit: such cases as ings shall be taken. Until such directions are are summarily disposed of daily by the police given the military commander cannot lawfully courts in our large cities, as, for instance, go beyond his simple military duties. cases of drunkenness, disorderly conduct, as- *So, when a civil government was es- [*304 sault and battery, and of violation of such civil tablished in New Mexico, by order of General ordinances or military regulations as may be Kearney, after that officer had conquered that in force for the government of the locality. province by the forces under his command, he

The provost judge supplies the place of the acted pursuant to special instructions from the local police magistrate in promptly acting upon President, through the head of the War Departthe class of cases described, without, at the ment. He carried the instructions with him, same time, being necessitated (as a formal prepared in advance, so confident was the military commission would be) to preserve a President that certain conquest would attend detailed record of the testimony and proceed- the march of our troops. ings in each case.”

“Should you conquer and take possession of In another case, where an order of a com- New Mexico and Upper California, or considermander of a department authorized a provost able places in either,” said these instructions, court to settle questions of title to personal issued on the 3d of June, 1846, “you will estabproperty, it was declared that that was a sub- lish temporary civil governments therein, abolject of which no military court could properly ishing all arbitrary restrictions that may exist, take cognizance, and the department command- so far as it may be done with safety. In perer was advised that the jurisdiction of such forming this duty it would be wise and prudent tribunals as provost courts, in time of war, to continue in their employment all such execcould only be extended to matters of police. utive officers as are known to be friendly to See record of opinions in the office of the the United States, and will take the oath of Judge Advocate General, Vol. II., 14; Vol. VI., allegiance to them.” Exec. Doc., 2d sess. of 635, 639; Vol. VIII., 638; Vol. XII., 386; Vol. 29th Cong., vol. 3, 1846 and 7, No. 19. XIII., 392; Vol. XV., 519. An excellent digest The majority of the court are, therefore, of these opinions was prepared by Major w. mistaken in their statement that there was no Winthrop, of the U. S. Army, in 1868, and pub- express order for the establishment of courts lished by authority of the Secretary of War. and a judicial system by General Kearney in 303*] *In the face of these promulgations New Mexico, emanating from the President or from the department of military justice, ap- Commander-in-Chief. The authority for the