Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-10-14
BYTELEGRAPH.
IIg MINeIs q ggE AseaAID PRESS


noon:
Executive MANSION, WASHINGTON, Oct.
6, 1S66.-SIR: A special term of the Cir
cult Court Of the United States vas appointed
for the first Tuesday Of October, 1866, at
Richmond, Va, for the trial of JEFF. Davis,
on the charge Of treason. It now appears
there viii be no session Of that Court al
Richmond during the present month, and
doubts are expressed whether the regular
term which, by law, should commence on
the 4th Monday of November next, viii be
held. In view of this obstruction, and the
consequent delay in proceeding with the
trial Of jeff Davis, now pending in that
court, and there being, so far as / am in
informed, no good reason why the civil
court of the United States are not compe-
tent to exercise adequate Jurisdiction within
the district or circuit in which the State Of
Virginia is included. l deem it proper to
request your opinion as TO what further
steps, if any, should be taken by the Exc
eutive with view to a speedy trial Of the
accused, according to the Constitution and
laws of the United States.
am, sir, very respectfully, yours,
Signed ANDREw JOHNSON.
ATToRNEY GENERALS OFFICE, Oct. u,
1S66.--Io the President.-SIR: have the
honor to state my opinion upon the question
propounded in your letter Of the 9th inst,
as to what further step may be proper or ex-
pedient to be done BY the Executive in re-
ference to the custody of Mr.. Davis, and
the prosecution for treason now pending
against him in the Circuit Court Of the Uni
ted States, of Virginia. ] am clearly of the
opinion that there is nothing in the present
condition of the jurisdiction of civil courts,
the actual state of things, and your several
proclamafions of peace and the restoration
of civil order, to guarantee to the civil au-
thorities, Federal and State, Immunity
against military control and interference.
1t seems to me that in this particular there
is no necessity for further action on the part
of the Executive by the way of proclama-
ton, especially as Congress, at the late
session, required the Circuit Court of the
United States, to be held at Richmond on
the LIST Monday in May, and the 18th Mon
day in November of each year, and au
thorized special or adjourned terms Of that
Court, to be ordered by the Chief Justice Of
the Supreme Court, at such timea on such
notice as be might prescribe, With the same
power and jurisdiction as az regular terms.
This is an explicit recognition by Congress
that the state of things in Virginia adj
mits the holding of the United States
Courts in that State. The obstructian
you refer to cannot, it seems to me, be re-
moved By any executive order, SO far as
am advised. 1t arises as follows: Congress,
on the 22d Of May, 1856, passed an act pro-
viding that the Circuit Court Of the United
States for Virginia should be held at Rich
mond on The first of May and the 4th Mon
day Of November in each year, and further
providing that ali suits and other proceed
ings, which stand continued to any other
time and place, should be deemed continued
to the place and time prescribed by the act.
The special adjourned session which was
ordered by the Court to be holden at Rich
mond in the present month Of October, was
considered as abrogated BY this act. This
left the regular term to be holden on the
4th Monday in November, and if there had
been no further legislation by Congress, no
doubt could exist as to the competency of
the Chief Justice, and the District Judge OF
that court then to try Mr.. Davis, but on
the 23d Of July, 1866, Congress passed an
act to fix the number of Judges of the Su-
preme Court Of the United States, and to
change certain Judicial circuits; among other
changes made in their circuit courts, by this
act, is change of the 4th circuit, % which
the Chief Justice had been allotted. As this
circuit stood prior to the act when allotted
to the Chief Justice, it embraced Delaware,
Maryland, Virginia, North Carolina, and
West Virginia, it was changed by this act
by excluding Delaware and adding South
Carolina. It is understood that doubts exist
whether this change in the States comprising
the circuit will not require new allotment
Whether this doubt is well founded or not,
it is certain that the executive cannot inter-
fere, for although under certain peculiar cir
cumstances the executive has power to make
an allotment Of the Judges of the supreme
court, yet these circumstances do not exist
in this case; if new allotment is necessary
it can only be made by the Judges of the su-
preme court, or by Congress, perhaps only
by Congress. ,lr 81
Mr.. Davis remains in custody at Fortress
Monroe precisely as he was held in January.
When you reported communication from
the Secretary of War and Attorney General
showing that he was held to await trial in
the Circuit Court, no action was taken by
Congress IN reference to the place Of custody;
no demand has since been made for his
transfer into civil custody. The District
Attorney of the United States for the Dis
trict of Virginia, where Mr.. Davis stands
indicted for treason, has been notified that
the prisoner would be surrendered TO the
United States Marshal upon a capias under
the Indictment, but the District Attorney de-
clined to have the eapidS issued, because
there is no other place within the district
where the prisoner could be so carefully con-
fined, or where his personal comfort and
health could be SO well provided for. No
application has been made, within my
knowledge, by the counsel for Mr.. Davis for
a transfer of the prisoner to civil custody
Recently an application was made by his
counsel for his transfer from Fortress Mon
roe TO Fort Lafayette, on the ground,
chiefly, Of sanitary considerations. A refer
ence was promptly made TO a board of sur
geons, whose report was decidedly adverse to
the change on the score of health and per
sonal comfort. | am unable TO see what
further action can be taken on the part Of
the Executive to bring the prisoner to trial.
Mr.. Davis must for the present, remain
where he is, until the court which has juris-
diction to try him shall be ready to act, or
until his custody is demanded under the
lawful process Of the Federal courts. I would
suggest that to avoid any misunderstanding
on the subject an order be issued to the
commanderof Fortress Monroe, tosurrender
the prisoner to civil custody, whenever
demanded by the United States Marshal,
upon process from the Federal Courts.
send herewith a copy of letter from the
United States District Attorney for Virginia,
to which l call your attention.
have the honor To he etc
HENRY SrANsBERRY,
Attorney General.
OFFICE OF THE U. s. DISTRICT ATToR-
NEY FOR NORFOLK, VA, Oct. 8, 1865
Hon. Henry StansberTy, Attorney General
United Stdtes-SIR: In compliance with
your request, l submit herewith the sub
stance Of the verbal statement made few
DAYS since in answer to your question why
no demand had been made upon the mill
tary authorities for the surrender Of Mr.. Da-
Wis, in order that he might be tried upon
the Indictment formed against him in the
United States Circuit Court held at Nor
folk in May last; two reasons have inhu-
enced me in not taking any step for re-
moving him from custody. The one relates
to his safe keeping, and the other to his own
personal comfort and health. ! have never
had any doubt but that he would be deliver
ed 10 the United States Marshal for the Dis
trict whenever he should have demanded
him on a odpics or any other civil process,
but you can readily understand that SO soon
as he goes into the hands Of the officer upon