American citizen. [volume] (Canton, Miss.) 1864-1890, 1866-01-27
and are vet, held as prisoners of war

and are yet, held as prisoners of war
Though active hostlities have ceased, a
state Of war still exists over the territory
in rebellion. Until peace shall come in
fact. and in law, they can be rightfully
held as prisoners of war. / have ever
thought that trials for high treason can
not be had before military tribunal. The
civil courts have alone jurisdiction Of that
crime. The question then arises where
and when must the trial thereof be held.
In that clause of the Constitution men
toned il 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 en-
tertain the opinion that Commanders sin
Chiefs of rebel armies should be regard
ed as constructively present with all the
insurgents who prosecuted hostilities and
made raids upon Northern and Southern
borders of loyal States. This 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 in
which any portion of these armies had
made the slightest invasion. Not being
persuaded of the correctness of that opin-
ion, but regarding the doctrine mentioned
as of doubtful constitutionality, | have
thought it not proper to advise you to
cause criminal proceedings to be inst-
tuted against Jefferson Davis or other in.
surgents in the States or districts in which
they were not actually present during the
prosecution of hostiities. Some promi
nent rebels were personally present a the
invasion of Maryland and Pennsylvania,
bat all, or nearly all of them, received
military paroles upon the surrender Of the
rebel armies. While | think that these
parties have no ultimate protection for
prosecution of high treason, l have
thought that It would be a violation OF
their paroles to prosecute those persons
for crimes before the political power OF
the Government has proclaimed that the
rebellion has been suppressed. 1t fol.
lows 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, COM
mitted crimes with which they may be
charged. Though active hostilities have
not for some time existed between the
United States and the insurgents, peace.
ful relations 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 those
States and districts since actual hostiIiies
ceased. When the Courts are open, and
all laws can be peacefully administered
and enforced 10 those States, whose peo-
pie rebelled against the Government, when
thus peace shall have come in fact and in
law, the persohs now held in military Gus
tody as prisoners of war, and who may
not have been tried and convicted for Of.
fenses against the laws of war, should
be transferred into the custody of the civil
authorities of the proper districts, to be
tried for such crimes. Prosecutions to be
instituted before the proper tribunals at
all proper times against some of those
who were mainly instrumental in inaugu,
rating and most conspicuous in conduct
ing the late hoslilises. l should regard
it as dreful calamity that those whom
the sword has spared, the law should moi
spare also. But would deem It a more
direful calamity still If the Executive in
performing his constitutional duty o.
bringing those persons before the bar ot
Justice to answer for their crimes, should
violate the plain meaning of the COnstitu'
ton or infringe in the least particular the
divine spirit Of that instrument.
have the honor TO be, respectfully,
JAS. SPEED,
Attorney General.