New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-09-26
THE POINTS OF THE DAVIS TRIAL-WHf
MR. DAVIS HAS NOT BEEN TRIED.

Mr. johnson repeatedly declared in his recent tour,
that he had no power over the trial of jefferson Davis
and vaguely ntmated that the delay the fault OF
the ChiefJusce of the United States That this ao-
cusation was utterly without foundation we propose
| to show
! First: Tie ChiefJustce has no more to do with
the trial of JEFF Davis than any other Justice, except
that it happens that the ChiefIustce was allotted or
assigned to the Circuit in which Virginia 49, to ac
commodate Judge Swayne, who desired to be allotted
| the Circuit in which Ohio is
Second: The Chief.Justice, when he holds a Court
tries whaS cases he happens to find on the docket
they are ready for trial 1t makes no difference to
him who the parties are his duty is to administer the
| law.
Taird: The Chief Justice has never inquired, and
probably never will inquire, what cases are to
come before him, except in the regular course and
way He neither seeks nor shuns the responsibility
| of trying Jefferson Davis or any other man.
Fourth: The Chief.Justice has held three terms of
the Circuit Court for the District Of Maryland since
his appointment, nearly two years ago. These were
indictments for treason pending at the first term and
except in certain cases where the accused individually
have been parloned, they pending yet. The
! Government has not thought proper to proceed to
trial in any of these If the Government had de-
sired judicial exposition of the law of treason. 1t
might have been had from the ChiefJusce at either
of those terms in April and November, 1865, or in
| April, 1866.
Fifth Early last Spring, Bradley T. Johnson-a
double traitor treason consists in evyng against
his own State as well as against the United Sates-was
arrested in Maryland for treason, and was held to
bail by the District Judge Gen. Grant requested to
have him discharged without ball. on the ground that
be was not liable to arrest or trial. because ne had
been paroed at the time of the surrender of Lee or
Johnston; and the President thereupon ordered the
discharge through the Attorney General, and, on mo-
ton of the Dist ctAttorney, under direction OF the
Attorney. General the District Judge directed the
discharge Upon the proprety this interference by
the Executive with the of regular judicial pro-
| ceedings it ia unnecessary to express an opinion,
though it affords abundant ground for the reflection of
thoughtful men. 1t prevented the expression OF ju-
dca opinion as to tie effect Of military paroles upon
liabilities 10 punishment for treason and other crimes
Sirth: The Chef-Justice held Court in Virginia in
1865 because the writ Of habeas corpus suspended
and martial law enforced within its territory; in
his judgment all Courts in a region under martial
law must be quasi military courts and it was neither
!
cate Justice of the Supreme Courof the United States
the highest tribunal of the Nation, and head OF one
of the coordinate departments of the Government
should hold a Court subject to the control or super
vision of the Executive department, exercising the
military power In this judgment, all lawyers OF re-
spectabity of whatever political opinions will concur
S,rsnh: Soon after the adjournment of the Supreme
Court IN April last. the President issued proclaml-
nation, tho effect of which seemed to the Chief
! Justice "a be the abrOgation of martial ia" anu
military government, and the restoration OF the VIII
Of habeas corpus in al thu States except Texas and
we understand be determined thereupon to hold
| Circuit Court at the ensuing May Term in Virginia;
but various Executive orders, inconsistent with the
conclusion that military government had ceased, soon
followed the proclamation and led TO All apprehension
that the construction put upon it not intended
by the President The ChiefJustce, it is therefore
to be presumed. reconsidered his purpose to hold
! Circuit Court
Eighth: DESTROYS, however to omit no duty, the
ChefJustice, it reported, called on the President
in April or May last and requested him to issue a
proclamation (of which the Chief-Justice submitted
draft declaring in uneluiyocal terms that mar
tial law abrogate and the writ Of habeas corpus
restored in all cases of which the Courts of the United
States had jurisdiction, and in respect to all process
| issuing from such courts This was not done.
Ninth: Subsequently, however. another procama-
ton was issued, affirming the restoration of peace
throughout the whole country, which has, as yet,
been followed by no order asserting the continuance
Of military government. Under the proclamation,
therefore, it seems fair to conclude that martial
| law and military government are permanently abro
gated and the writ OF Habeas Corpus fully restored;
and this conclusion warrants the holding of courts by
the Chief-Justice and Associate Justices as the law
may direct.
Tenth There is no Act of Congress, however,
which authorizes the holding of any Circuit Court in
Virginia until the November Term-beginning the
fourth Monday in November-unless the Chief-Justce
shall order a Special Term, he is authorized to do
by an Act of the last session The ChiefJustce
would no doubt, order Special Term if the District
Attorney and the Attorney General should represent
to him that such proceeding is needed for the adj
mnistraton Of public justice.
ELerenth: An Act of the last session of Congress
changes all the Circuits except the first and second,
which include the Districts in New England and New
York; and reduces the number from ten to nine but
il neither makes nor Authorizes any allotment of the
ChiefJustce or Associate Justices TO these Cir
Cults: and il seems doubtful whether the old ao;-
ment gives any Jurisdiction TO hold courts in the Dis
trict which happen to remain in the same Circuits
numerically as at the time of that aotment while it
is quite certain that neither the ChefJustice any
Associate Justice can exercise jurisdiction in any Cir
cult except by allotment or assignment under an Act
of Congress II is matter of extreme doubt, there
fore, whether the ChiefJustce can, after all, hold