Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1866-01-18
ATTORNEY GENERALS OFFICE, !
January 4, 1866. !
EDwIN NJ. STANTON,
Secretary Of War.
10 lie PreSi1ent.

10 The President:
SIR: have the honor to acknowledge the re-
ceipt from YOU a copy of the resolution Of the
Senate of the United States of date the 2lst
December, 1865. In that resolution the SEN
ate respectfully requests to be informed upon
what charges and for what reasons Jefferson
Davis is still held in confinement, and why he
has not been put on his trial.
When the war was at its crisis, Jefferson
Davis, the commander of the army of the in
surgentS. was taken prisoner, with other prom
inent rebels, by the military forces of the Uni
ted States. 1t was the duty Of the military so
to take them
They have been heretofore, and are vet held
rs prisoners of war. Though active hoStilites
have ceased, a stale Of war still exists over the
territory in rebellion. Until peace shall come
in fact and in law, they can rightfully be held
as prisoners of war. have ever thought that
trials for high treason cannot be held before
military tribunal. The civil courts have alone
jurisdiction of that crime The question then
arises, where and when must the trials thereof
be held? I'm that clause of the Constitution
noticed 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" l know that many
persons (Of learning and ability entertain the
opinion that the COmmander-in-chief of the
rebel armies should be regarded as construc-
lively present with all the insurgents who
prosecuted heStihtieS, and made raids upon the
Northern and Southern bozders of the loyal
States.
This doctrine of constructive presence, car
ned outn lss logical consequences, would make
all who had been connected with the rebel az
mics liable to trial in any State and district
into which any portion of these armies had
made the slightest incurSion. Not being per-
SuadCd of ths correctness of THAI opinion. but
regarding the doctyine mentioned as of doubt
full conStitutionality, have thought it not pro-
per to advise YOU to cause criminal proceedings
to be instituted against Jefferson Davis or any
other irsurgent in States or districts in which
they were not actually present during the pros
ecuhon of hoStilities. Some prominent rebels
were personally present at the invasion of
Maryland and Pennsylvania; but all, or near
" all OF them, received military paroles upon
the surrender Of the rebel armies. Whilst
think that those paroles are not ultimate pro-
lection from prosecution for high treason,
have thought that it would be a violation of
the powers to prosecute those persons forcrimes
before the political power of the Government
has proclaimed that the rebellion has been sup
pressed. 1t follows, from what have said.
that am of the opinion that Jefferson Davis
and other Of the insurgents ought TO be tried
in some one of ths.States or districts in which
they in person especially controlled the crimes
upon which they may be charged Though
active hostilities and fragrant war have not for
some time existed between the United States
and insurgents, peaceful relations between the
Government and the people in the States and
districts in rebellion have not vet been fully
restored. None of the Justices of the Supreme
Court have held circuit courts in these States
and districts sipee actual hcstilitics ceased.