The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-10-15


to speedy, public and impartial trial OF
the accused according to the Const.tu'
ton and laws of the United States.
am, sir, very respectfully yours, g.
ANDREW JOHNSON.
To Hon. Henry Svanbery, Attorney
General -'-----''
ATTORNEY GENERAL's OFFICE,
= Oct. II, 1866. !
SIR: have the honor to state my
opinion upon the question propsnnded
in your letter of the 9th, as to what fur
ther may be proper or expedlent TO De
done by the EXECUTIVE IN reference TO
the custody of Mr. Davis and the prose-
cution of treason now pending against
him in the Circuit Court of the United
States of Virginia. am clearly OF the
opinion that there is nothing in the
present condition of Virginia to prevent
the full exercise of the jurisdiction OF
the civil courts. The actual state OF
things, and your several proclamations
of peace and of the|restoration 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 further 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 Monday in
May and the fourth Monday in Noyem,,
Der of each year, and authorized
special or adjourned terms OF 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 regular terms This is an exploit
recognition by Congress tho. .tL..,,.
IF things in YIgnia admits tne T,srS n State
The distractions you refer to cannot, 1t
seems to mo, be removed by any execu'
tive order, so far as / am advised. II
arises as follows; Congress, on the 22nd
ofMay, 1866, passed an act providing that
the Circuit Court Of the United States
for Virginia should be held at Richmond
on the first Monday of May, and the
fourth Monday of November in each
YEAR, and further providing that all suits
and other proceedings which stand con.
tinued to any other term and place,
should be deemed continued to the place
and time prescribed by the act The
special or adjourned session, which was
ordered by the Court to be holden at
Richmond in the present month OF Ooto-
Der, was considered as abrogated by this
act. This left the regular term to be
holden on the fourth Monday of Nevem-
Der, and if there had been no further
legislation by Congress, no doubt could
exist rs to the competency OF the
Chief Justice and the District Judge OF
that Court then to try Mr.. Davis But
Oh the 23nd of July 1866, Congress passed
an act to fix the number Of Judges OF
the Supreme Court of the United States
and to change certain judicial circuits,
Among other changes made in the Cir
cult Court by this act is change OF the
fourth Circuit to which the Chief Justice
had been allotted. AS this circuit
stood prior to this act, when allotted to
the Chief Justic, it embraced Delaware,
Maryland, Virginia, North Carolina and
West Virginia. 1t was changed by this
act by excluding Delaware, and adding
South Carolina. 1t was understood that
doubts exist whether this change in the
States comprising the cirCuit will not
REQUIRE new allotment, Whether this
doubt is we'll founded or not, 1t is certain
that the Executive cannot lntetere, Tor
although under certain peculiar clrcum-
stances the Executive has power to
make an allotment of the Judges of the
| Supreme Court, yet these circumstances
do not exist in this case, and new al,
lotment, efnece jity can only be made by
the Judges of the Supreme Court, or by
Congress, perhaps only by Congress
Mr.. Davis remains in custody at Fortress
Monroe, precisely as he was held in Jan
uary, when in answer to resolution Of
Congress your reported communication
from the Secretary of War and the At.
torney General, that he was held to
await trial in the civil courts. No action
was then taken by Congress in reference
to the place of custody, no demand has
since been made for his transfer into
civil custody. The District Attorney of
the United States for the District of Vir.
ginia, where Mr.. Davis stands indicted
for treason, has been notified that the
prisoner would be surrendered to the
United States Marshal upon capias
under the indictment, but the District
ATTORNEY declines to have the capias
issued because there is no other place
within the District where the prisoner
could be so safely kept or where his per
sopal comfort and health could be go
well provided for No application
has been made within any knowl-
edge of the counsel, for MI
Davis for a transfer of the prisoner
to civil custody. Recently an applica-
tion was made by his counsel for his
transfer from Fortress Monroe to Fort
Lafayette, chiefly on the grounds of
sanitary considerations. A reference
was promptly made TO board OF sur
geons, whose report was decidedly ad.
Verse to the change, on the score of
health and personal comfort. / am un'
able to see what further action can be
taken on the part of the Executive to
bring the prisoner to trial. Mr.: Davis
must, for the present, remain where he
is nntil the Court which has jurisdic-
tion 70 try him shall be ready to act, or