Staunton vindicator. [volume] (Staunton, Va.) 1860-1896, 1866-01-19

treason cannot pc nad before military trl-
bunal. The civil courts have afohe ittrisaic-
ton of that crime. The question thence
arises where and when must the trials there
of be held
In that clause of the Constitution, men
toned in the resoluti, of the Senate, it is
plainly to be seen that they must be held in
the State and district wherein the crime shall
have been committed | know that many
persons of learning and ability entertain the
opinion that the Commander in Chief of the
Rebel armies should be reg; rded as construc-
lively resent with all the insurgents who
prosecuted hostilities and made raids upon
the northern and southern borders of the
loyal States.
This doctrine of constructive presence
carried out to its logical consequences. would
make all who had been connected with the
Rebel armies liable to trials in any States
and districts into WHICH any portion Of those
armies had made the slightest incursions.
Not being pesuaded Of the correctness of
that opinion, but regarding the doctrine
mentioned as of doubtful constitutionality,
have thought it not proper to advise you to
eatsse criminal proceedings to be instituted
against Jefferson Davis or any other insur-
gent in States or districts in which they were
not actually present during the prosecution
of hostilities.
Some prominent Rebels were personally
present at the invasion of Maryland and
Pennsylvania, but all or nearly all of them
received military paroles upon the surrender
of the Rebel armies. Whilst | think those
paroles are not ultimate protection from the
prosecution for high treason, have thought
thatit would be violation of the paroles to
prosecute those persons for crimes before the
political power of the Government has pro-
claimed that the rebellion has been suppress
ed. 1t follows from what / have said that L
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 in person especially committed crimes
with which they may be charged Though
active hostilities and fragrant war have not
for some time existed between the United
States and the insurgents, peaceful relations
between Che Government and the people in
rebellion have not yet been fully restored-
None of the Justices of the Supreme Court
have held Circuit Court, in those States and
districts since actual hostilities ceased. When
the courts are open, and all laws can be
peacefully administered and enforced in those
States whose people rebelled against the Gov
eminent; when thus peace shall have come
in fact and in law, the persons you hold in
military custody as prisoners of war, and
who may not have been tried and convicted
for offences against the laws of war, should
be transferred into the custody of the civil
authorities of the proper districts, to be tri-
ed for such high crimes and misdeneanors as
may be alleged against them.~ / think that
it is the plain duty of the President to cause
criminal proceeding to be instituted before
the proper tribunals and at proper times
against some Of those who were mainly in
strumental in inaugurating and most conspic-
uous in conducting the late hostilities. /
should regard it as a dreadful calamity, if
many whom the sword has spared, the law
should spare also, but / would deem it more
direful calamity, if the Executive in perform
ing his Constitutional duty, of bringing these
persons before the bar of Justice to answer
for their crimes, should violate the plain rea-
soning of the Constitution or should infringe
in the least particular, the living spirit Of
that instrument.
I have the honor to be,
Very respectfully,
JAMES SPEED,
Attorney General.