The Union flag. [volume] (Jonesborough, Tenn.) 1865-187?, 1866-01-26

war was at It's crisis Jefferson Davis,
: the commander in.chief Of the army
/ OF insurgents, was taken prisoner,
with other prominent rebels, by the
military forccD Of the United States.
fpit was the duty Of the military so to
take them, They haye been, there.
fore, and are yet held as prisoners Of
war. Though active hostiIitics have
ceased, a state Of war still exists over
tho torrftoryof rebellion Until peace
shah cor1ein fact aud law they can
be lawfully held as prisoners Of war.
have over thought that trials for
high treason csanot bc had beforela,
military tribunal The civil couFts
have alOue Jurisdiction ofathat crime.
Tho question then arises.a when and
where must this trial be held. In the
clause OF the Constitution mentioned
n The resolution Of the Senate it 10
plainly written that they must bo
held in the State and district wherein
the crime shall have been committed.
! know that many persons oi, learn
ing aud ability, entertain the opinion
that tho Commander-in. Chief Of the
rebcl army should beregarded so con-
additionally present, with all the in.
Surgcnts who prosecuted hostilities,
and made raids upon the northern and
southern borders Of tho loyal States.
This doctrine Of constructive presence
| carried out 10 its logicisl co1seouen-
ces, would make all who had been
connected with the rcbeI armies liable
10 trial in any State and district into
which any portion Of those armies
bad made the slightest fncursi0n Not
being persuaded Of the correctness Of
that opinion, bat regarding the doc.
trine mentioned as Of doubtful con.
stitutiOhalty; 1 have thought not
prOperstoi advise you toa course Of
criminal proceedings 20 bo Instituted
against Jefferson Davis, or any other b
insurgent in the States or districts In
which they werenot actually present
during the prosecutions Of hoslillies.
, Soms OF she prominent rebels weFe,
personally present at tho jnyasiUn Of,
Maryland and Ponnsylvania, but al
of them, or nearly all Of them, ,receiy-
cd military paroles upon the surren-
der Of the rebel armies. While / think
that those parties have no ultimate
protection. from, prosecutions for high
treasons, l havo tboughtthat it would
10 violation Of the paroles to prose
cute those persons for crimes before
the political powcr Of The Government
has proclaimed that the rebellion has
been suppressed 1t follows from
what l have said that I am Of the OPP
inion that Jefferson Davis and other
Of the insurgents ought to be tried in .
some one Of the States or districts
in which theyfn person especially conns 4
mitted crimes with which they may be
charged T fri'h sps as9 tal
Though active hostiIities and Gag.
rant,have not for some time existed %
between the United States and tho
insurgents peaceful relationsibetwee
the Government and the people in tho
States and districts in rebellion have
not yet been fully restored. None OF
the Justices Of the Suprsmo Court
have heldcircuit courts in those States
and districts since actual hostililies
have ceased When the courts, are
opencned, and all laws can DO peace.
ably administered and enforced in
those States where the people rebel.
led against the Government, when
thus peace shall have come, IN fact
and in law, the persons now held in
military custody as prisonersof war,
and who may not have been tried and
convicted for offences against the laws
Of war, should be transferred into tho
custody Of the civil authorities ofprop-
or districts. to be tried for suchcrimes.
Prosecutions are 10 be instituted, be-
fore tho proper tribunals. and at prop.
er times, against some Of those who
were mainly instrumental IN augmen.
ting, and most conspicuous In con-
ducting tho late hOstilities. ~ r.afH. 10
2 should regard il rs a direful GALA
nifty if many Of whom the sword haR
spared the law should spare also. but
| would deem IL q more calamity still
il tho Executive 10 performing his
constitutional duty of bringing those
persons before the bar Of jusiceto 10 an.
swer for their crimos should violate
tho plain meaning Of the constitution
or infringe in the least particular on
the living spirit Of that instrnu ont
] have the honor to be, most res
pectfa1y, D-aJAs SPEED. >,
y fsft.a Attorney General.
st-r sra