The Vermont transcript. [volume] (St. Albans, Vt.) 1864-1870, 1866-01-19
Why JEFF. Davis is not Tried.

The following is the opinion of At
torney General Speed, in regard to
the trial of Davis, and which has been
transmitted to Congress by the Pres
ident:
! have ever thought that trials for
high treason cannot be had before Il
military tribunal. The civil courts
have alone jurisdiction of that crime.
The question then arises, where and
when must the trials thereof be had =:
IL that clause of the Constitution mon
toned in the resolution of the Senate
it is plainly written they must be held
in the State and district wherein the
crime shall have been committed /
know many persons Of learning and
ability entertain the opinion that the
Commander-in- Chief of the rebel arm
les should be regarded as constitutions
ally present with all the insurgents
who prosecuted hostilities and made
raids upon the northern and southern
borders of the loyal States This doe
trine of constructive presence carried
out to its logical consequences would
make all who have been with the rebe
armies liable to trial in any State and
district into which any portion OF
those armies had made the slightest
incursion. Not being persuaded o.
the correctness of that opinion, but re-
garding the doctrine mentioned as d
doubtful constitutionality, | have
thought it not proper to advise you tc
cause criminal proceedings to be insti
tuted against Jefferson Davis or any
insurgent in States or districts il
which they were not actually present
during the prosecution of hostilities
Some prominent rebels were personal
~ present at the invasion of MARYLAND
and Pennsylvania, but all or nearly al
of them received military paroles upor
the surrender of the rebel armies
While l think those persons have NJ
ultimate protection from prosecution,
for high treason, thought it woulC
be a violation of their paroles to pros
ecute those persons for crimes before
the political power of the Government
has proclaimed that the rebellion has
been suppressed.
1t follows from what l have sale
that am of opinion that Jefferson Da
Wis and others of the insurgents ought
to be tried in some one of the States
or districts in which they in person
especially committed the crimes witt
which they may be charged. Thougl
active hostilities and fragrant war hay,
not for some time existed between the
United States and the insurgents
peaceful relations between the
Government and the people in the
States and districts in rebellion hav,
not yet been fully restored. None o
The Justices of the Supreme CouIt
have held circuit courts in these
States and districts since actual hos
tilities ceased. When the courts are
all open and all the laws can be peace
fully administered and enforced il
those States whose people rebelleC
against the Government, when thus
'NNNc Sllill luNc Cpult III tuNt uliu IL
law, the persons now held in military
custody rs prisoners of war, and who
may not have been tried and convicted
of offenses against the laws Of war
should be transferred into the custody
OF the civil authorities of the proper
districts, to be tried for such higl
crimes and misdemeanors as may be
alleged against them.
think it is the plain duty of the
President to cause criminal prosecu
tons to be instituted before the prop
er tribunal and at all proper times
against some of those who We're main
ly instrumental in inaugurating, ano
most conspicuous in conducting ia,