Statement of the case. 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 æquo 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 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 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 constitu Statement of the case. tion of Louisiana,* 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 * See it, supra, p. 281. Argument against the jurisdiction of the "Provost Court." 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 Lou isiana 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." Messrs. E. and A. C. Janin, for the plaintiff in error : The order establishing the court in question is for a Provost Court simply. The jurisdiction of such a court is of the criminal sort, and is confined to the minor sort of offences.† Now, conceding that General Butler had power to establish, and that he did establish, and rightly, a Provost Court, yet a case of the kind that this was-a suit by one bank cor * See the section in the Appendix. Webster's Dictionary, in verbo, "Provost Marshal." Argument against the jurisdiction of the "Provost Court." poration against another bank corporation, for $130,000was no proper subject for the cognizance of such a tribunal. Can the jurisdiction be maintained on the ground that the court was a civil tribunal? It cannot be, for two reasons: 1st. Because the character of the court is established as that of a criminal court by the very use of the words "provost judge." What a provost judge is, is well known. We have already stated the character of his jurisdiction. He is almost invariably a military officer. Here he was a "major" in the army, and "volunteer aid-de-camp of the division staff." His military character shows that it cannot be meant that his jurisdiction should include civil things. 2d. Because it is indispensable for such a court that it should be established, or at least approved, by the President. There is no record of any civil court during the war being otherwise established. In the case of the "Provisional Court" established at New Orleans in October, 1862-a civil court-after the occupation of that city, during the war, there was a formal establishment of it by President Lincoln, and by a commission, longer and more full than any ever issued to any judge of this court, sent, under the seal of the United States, to Mr. Peabody, the person appointed by the President to be judge. A court thus formally constituted by the President may be sustained on the authority of certain recent cases here, though perhaps it cannot be sustained without difficulty, in view of the plain language of the Constitution, which makes no provision for the establishment of any sort of civil courts in time of war different from those to be established in times of peace. The inferior State court of Louisiana, in which the suit for the recovery of the money paid under protest was brought, perceived the pressure of this part of the case and put its decision denying a recovery, on two grounds, which were consistent with want of jurisdiction in the Provost Court. The Supreme Court was less wise. Admitting, in effect, that a mere provost's court could have no jurisdiction *The Grapeshot, 9 Wallace, 132; Handlen v. Wickleff; Pennewet v. Eaton, 15 Id. 382. Argument against the jurisdiction of the "Provost Court." of such a case as this was, it assumes that this court was a civil court. But still the difficulty remained that there was nothing to show that the President ever authorized its establishment, and that if he did not, the court had no jurisdiction. The court then "jumps" this difficulty, and says that General Butler's act "was an exercise of the war powers, presumably with the consent and authorization of the President;" thus assuming the matter to be proved. Now, we say, contrariwise, that an act done, in irregular times, and in opposition to what the law requires-an act which on its face is one of usurpation and despotism, as this act was-is not to be presumed to have been rightly done, but until proven to have been so done is to be presumed to have been done wrongly. This is true when there is no evidence in the case and all rests on presumption. But here we have evidence, and the evidence is that the establishment of this court was General Butler's own act, and was not authorized by the President in advance of it, nor approved by him after it was done. 1. What were General Butler's own ideas of the necessity of an approval by the President? In Ex parte Milligan,* a brigadier-general had appointed a military court in the State of Indiana (a State at the time, as always before and since, loyal to the Union) to try a man named Milligan for various offences against the laws of war. The civil courts were all in session, and a grand jury was exercising its functions. No hostile army was within the borders of the State, nor expected there. Notwithstanding this, Milligan was convicted and was sentenced to death. A motion was made to this court for a habeas corpus, and the case presented the point whether the man had been sentenced by a competent General Butler-the same eminent person who had established the Provost Court now under considerationhaving reaped the victories of war, and having by this time returned to the bar to reap those, not less renowned, of peace, appeared before this court as special counsel of the * 4 Wallace, 2. |