Rutland weekly herald. [volume] (Rutland, Vt.) 1859-1877, 1866-10-18
THE ATTORNEY. GENERAL's REPLY.
ATTORNEY GENERALS OFFICE, !
October 10 1865.


ATTORNEY GENERALS OFFICE,
October u, 1866.
To the President-Sir Il have the
honor to state my opinion upon the
question propounded in your letter of
the 9th, as to what further may be proper
or expedient to be done by the executive
in reference to the custody of Mr.. Davis,
and the prosecution for treason now
pending against him in the circuit
courts of the United States for Virginia.
7 am clearly Of the opinion that there is
nothing in the present condition of Fir-
einia to prevent the full exercise OF the
jurisdiction of the civil courts. The &C
tual state Of things, and your several
proclamations of peace and OF the re-
storation of civil order, guarantee to
the civil authorities, Federal and State,
immunity against military control or
interference. 1t seems to me that in this
particular there is no necessity for fur
Their action on the part Of the executive
in the way Of proclamations, especially
as Congress, at the late session, required
the circuit court of the United States to
be held at Richmond on the first Mon
November in each year, and authorized
special or adjourned terms CT that court
to be ordered by the chief justice of the
supreme court at such time and on such
notice as he might prescribe, with the
same power and Jurisdiction as at the
regular terms. This is an explicit recog-
milton by Congress that the State of Vir-
ginia admits the holding of United States
courts in that State.
The obstruction you refer to cannot,
it seems to me, be removed by any ex-
ecutive order. So far as / am advised,
it arises as follows: Congress, on the
22d of May, 1865, passed an act providing
that the Circuit Court of the United
States for the State of Virginia should
be held at Richmond on the first Mon
day of May and on the fourth Monday
of November in each year, and further
providing that all suits and other pro.
oeedings which stand continued to any
other time and place, should be deemed
continued to the place and time pre-
scribed by the act. The special or ad.
iourned session which was ordered by
the court to be holden at Richmond in
the present month of October was con,
sidered as abrogated by this act. This
left the regular tern to be holden on the
fourth Monday of November, and if there
had been no further legislation by Con
gress, no doubt could exist as to the
competency of the Chief Justice and the
District Judge of that court then to try
Mr.. Davis.
But on the 28d of July, 1866, Congress
20 hn M n
Judges of the Supreme Court of the
United States, and to change certain
judicial circuits. Among other changes
made in circuit courts by this act, is 8
change of the fourth circuit court, tC
which the chief justice had been allotted
As this circuit stood prior to this act
when allotted to the chief justice, it EN-
braced Delaware, Maryland, Virginia
North Carolina, and West Virginia. L
was changed by this act, by excluding
Delaware and adding South Carolina. Ii
is understood that doubts exist whether
this change in the States comprising the
circuit will not require new allotment
Whether this doubt is well founded o.
not, it is certain that the executive can
not interfere, for although under certain
peculiar circumstances the executive ha'
power to make an allotment of The
Judges of the Supreme Court, yet thes'
circumstances do not exist in this case
A new allotment, if necessary, can onl,
be made by the judges of the Suprem
Court, or by Congress-perhaps Only b.
Congress.
Mr.. Davis remains in custody at Fort
ress Monroe precisely as he was held il
January last, when, in answer to a reso
luton of Congress you reported commu
nications from the Secretary of War ant
the Attorney General, showing that b
was held to await trial in the civi
courts No action was then taken b.
Congress IN reference to the place q
custody. No demand has since bee
made for his transfer into the civil Gus
tody. The District Attorney of tn
United States for the district of Virginia
where Mr. Davis stands indicted 70
treason, has been notified that the pris
oner would be surrendered TO the Unite
States Marshal upon a captas under tn
indictment, but the District Attorne
declines to have the eapias issued bt
cause there is no other place within th
district where the prisoner could be s
safely kept, or where his personal con
fort and health could be 80 well provide
for. No application has been mad