The West Virginia journal. [volume] (Charleston, W. Va.) 1864-1877, 1866-01-24
why JEFF: DAVIS has mot Been
- ~. Tried. -

-. Tried. ~ 4. ~ II J
In reply to the above inquiry, in&the
form oes RESOLUTION from .hsS Senate,
the Secretary sof sW ar: sisys q TIT no lis .
uriso uss of 81 ::and it leem.,3 res
maj main v,8unhl sthei war. 6 formally de-
si.red Il ap 81 Gho following il AZ
.orney Genetal2speed's opinion in re.
gard to his case, as vol as that Of other
prominent rebels: :...,.<,.: :.
/ ! AytoasEs GESrnll's OFFICE Jan: A. 1865.
To the President:
| SIR hayc the:honor TO acknowledge tho
receipt from you Of, the copy OF resolution; Oh
| tho Senate Of the United States OF tho Sist
| December, 1865. In that resolution, the Sen;
i.ate respectfully REQUESTS 10 be informed upon
villa. charges aud, reasons jeff. Da'is'is still
Ael4 in confinement and Why he has not been
i put upGn his trial.
'.tWiicn1 the war WINS at its crisis, JEFF. Davis,
: the Comman der.in.chiefo o: the army Of the
insurgents, VAS taken prisoner, with other
prominent rebels, by the military forces Of tho
/ Unilel 'States. It.wa, the duty OF the military
50 to take them, They have been heretofore,
and are vet held Of prisoners Of war. Though
EaotiyeT hostilities hive ceased, a state OF war
still exists over the territory in rebellion,
and until peace shull come in fact and in law,
they can be rightfnliy held as prisoners OF
war. 't! .'
have ever thought that trials for high
treason can not be had bcforca military tribu-
nal. The ciyil courts hare qlqne jurisdiction
over that crime The qacstion, then, ariscs,
where and when must the trial thereof be
held? In the clause of the Constitution men.
. toned 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 ~
I know that many persons Of learning and
ability entertain the opinion that the conf
mander.in-chief Of the rebel armies should be
regarded as conStructirely present with all
Tho insurgents who prosecuted hostilitics aud
made ruids upon tho Northern and Southern
borders of loynl States. This doctrine Of COIL
structiyc presence, carried out 10 ils logical
corscnuarccs, would make all who had been
connected with the rebel nrmies liable TO
trialin any State and district into which any
norton oflhosc armies had made the slight.
est iucursion. Not being persuaded Of the
correctness Of that opinion, bu: regarding the
\ doctrine mentioned as Of doubtful constitu-
touaIity, have thought it not proper to nd
wise you 10 cause criminal proceedings TO be
instituted against Jefferson Davis CT any 9th.
or insurgent in States or Districts in which
they we're not actually preseut during the
nroseoution of hostililies. Some prominent
rebels were personally present ut the invasion
Of Maryland and Pennsylvania, but all, or
nearly MI Of them, received military paroles
upon the surrender Of the rebel armies. While
I think that those parties have no ultimate
protection from prosecution 70. high treason,
have thought that it would be violation Of
the paroles TO prosecute those persons for
crimcs before tho political power Of the Gov
crnmcnt has proclaimed that the rebellion Inns
been suppressed. 1t follows, from what have
said, that am Of the opinion that Jefferson
Davis, ind others If the insurgents, ought to
be tried IN some one of the States or Districts
in which they in person especially committed
crimes with which they may he charged. FIFE
Though uctivc hostilities have not for some
time existed between the United Stntes and
tho insurgents, peaceful relations between the
Government und tho people in the States ind
'fDstricts in rebellion have not yet been fully
restored None of the Justices Of the Supreme
| ,unNc HctU NoNt 10 IA huooS S'"tSS
or District. since actual hostilites ceased.
| When the Courts urc open and MI laws can be
peacefully administered and enforced in those
States whose people rebel!ed against the Gov
Fernment; when thus peace shall have come, in
fact and in law, tho pergons now held in mill
tury custodyas prisoners of war, nndswho may
not have been tricd.and convicted for otFenses
acainst the laws Of war, should b. transferred
into the custody Of the civil authorities of the
proper districts, to be tried for such crimes
and nislemeunors.as may &c allcdScd against
them.
think tits the plain daty Ct the President
to cause criminal prosecutions 10 &c instituted,
before the proper tribunals and at all proper
times. against some Of these who were mnnly
instrumental in innugurating and mos, COR
spcuous in conducting the Int hostilties.
should regard it rs n dircrul calamity if
maay, whom the sword has spared, the law
should spare 'also but ! would deem il q
more direrul calamity still, if the Executive,
in performing hiss constitutional duty OF
bringing those persons before the bar of JUS.
tice TO answer for their crimes, should violate
the plain meaning Of the Constitution, or in
fringe, in tho least particular, the living
spirit of TINT instrument. .."
l have the honor to be, most respectfully,
-. =, r, JAMES SPEED,
p. : Attorney General.
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