The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-01-11

G.. Clay, AZ Fortress Monroe, charged among
other things with treason, with completely in
the murder Of Mr.. Lincoln, and with organizing
bands OF pirates, robbers, and murderers In
Canada, to burn the cities aud ravage the COM
merce and coasts OF loyal States on the British
frontier. ID. l. Yulee at Fort Pulaski, charged
with treason while holding seat in the Senate
OF the United States, and with plotting to cap
ture the forts and arsenals Of the United
states, and with melting war and rebellion
against the Government. S. X. Mallery,
at Fort Lafayette, charged with treason, and with
organizing and setting on foot piratical eXpedi-
lions against the United States commerce and
marine on the high seas. Other officers OF the
so-called Confederate Government, arrested and
imprisoned, have been released on parole to
abide the action of the Government in reference
to this prosecution, and that for alleged olenses
on their application for amnesty and pardon.
Among these are s. A. Trenholm Secretary of
the Treasury; John A. Campbell, Assistant Secre-
tary of War; James A. seldom. Secretary of War;
John II. Reagan, Postmaster-G General; r. NJ 7.
Hunter, Senator, Alexander II. Stephens Vice
President; and sundry other persons of less note.
EDWIN NJ. STANTON, Secretary of War.
ATToRNEYGENERALs OFFICE, January 4, 1866.
TO the President.-Sir:-I have the honor to
acknowledge the receipt from you of copy OF
the resolution OF the Senate of the United
States, OF date the 2lst of December, 1865 In
that resolution the Senate respectfully requests
to be informed upon what charges and for what
reasons Jefferson Davis is still held in cOnfne
ment and why he has not been put upon trial.
When the war was at its crisis Jefferson Davis,
the Commander-in- Chief of the army of the in
surgents, was taken prisoner, with other proml
nent Rebels, by the military forces of the United
States. 1t was the duty OF the military forces
so TO take them. They have been heretofore,
and are yet held as prisoners of war. Though
active hosthties have ceased, state of war still
exists in the territory in rebellion. Until peace
shall come in fact, and in law, they can right
fully be held as prisoners of war.
| have ever thought that trials for treason
cannot be held before a military tribunal. The
-fa haNFa s-s. sAsA.
The question then arises, Where and when must
the trials thereof be held? In that clause Of the
Constitution mentioned in the resolution OF the
Senate, it is plainly written that they must be
held in the State and district wherein the crime
shall have been committed. | know that many
personsI of learning and ability entertain the
opinion that the ecommander-in-chief of the Rebel
armies should be regarded as eonstructionally
present with all the insurgents who prosecuted
hostilltles, and made raids upon the northern
and southern borders of the loyal States.
Tms doctrine OF constructive presence, carried
out TO its logical consequence, would make all
who had been connected with the Rebel armies
liable to trial in any State and district into
which any portion of these armies had made the
slightest incursion. Not being persuaded OF the
correctness of that opinion, but regarding the
doctrine mentioned as if doubtful, constitu-
tionally, have thought 1t not proper to advise
you to cause criminal proceedings to be insti-
tuted against Jefferson DAVIS or any other insur
gent in the States or districts in which they
were not actually present during the prosecution
OF hOstIlties.
Some prominent Rebels were personally pre-
sent at the invasion OF Maryland and Pennsyl-
Vanla, put all or nearly all OF them received
military paroles upon the surrender OF the Rebel
armies. Whilst think that those paroles are
not an ultimate protection for prosecutions for
high treason, have thought that it would be a
violation of the paroles to prosecute those per-
sons Tor crimes before the political power OF the
Government has proclaimed that the Rebellion
has been suppressed.
1t follows, from what have said, that / am of
the opinion that Jefferson Davis and others OF
the insurgents ought to be tried in some one of
the States or districts in which they may be
charged. Though active hostIhties and fagrant
war have not for some time existed between the
United States and the insurgents, peaceful rela-
tions between The Government and the people
in the States and districts in rebellion have not
yet been fully restored. None of the justices of
the Supreme Court have held circuit courts in
these States and districts since actual hosthties
ceased.
When the courts are open, and all laws can be
peacefully administered and enforced in those
States whose people rebelleG against the Govern
ment, when thus peace snail come in fact and in
law, the persons now held in military custody as
prisoners VI war, and who may not have been
tried and convicted Tor otienses against the
laws of war, should be transferred to the GUS
tody OF the civil authorities of the proper dis
tricts, to be tired Tor such high crimes and
misdemeanors as may be alleged against them.
i think it is the plain duty of the President to
cause criminal prosecutions to be instituted be-
fore the proper tribunals and at ali proper times
against some of those who were mainly instru-
mental IN inaugurating, and most conspicuous
in conducting the late hostllities. / should re-
gard it as q direul calamity, If many whom the
sword has spared, the law should spare also;
but would deem it q more direful calamity still
if the Executive, in performing his constitu-
tional duty of bringing these persons before the
bar ofjustice to answer for their crimes, should
violate the plain meaning of the Constitution or
infringe in the least particular the living spirit
of that instrument.
have the honor to be, most respectfully,
JAMES SPEED Attorney General.