Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-10-15


the consequent delay in proceeding with
the trial of Jefferson Davis, now pending
In that court and there being, so far as 1
am Informed, no good reason why the civil
courts of the United States are not compe-
tent to exercise adequate jurisdiction with
in 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 Exec
utive with view to speedy, public and
impartial trial of the accused according to
the Constitution and laws of the United
States.
am, sir, very respectfully, yours,
ANDREW JOHNSON.
To Hon. Henry Stanbery, Attorney Gen
eral
ATTORNEY GENERALS OFFICE,
WASHINGTON, Oct. II, 1866.
To THE PREsIDENT-Sr: | have the
honor to state my opinion upon the ques-
tion propounded in your letter of the 9th,
as to what further may be proper or expe-
dient to be done by the Executive in refer
ence to the custody of MIR. Davis and the
prosecution for treason now pending
against him in the Circuit Court Of the
United States ofVirginia. l am clearly Of
the opinion that there is nothing in the
present condition of Virginia to prevent
the full exercise of the jurisdiction of the
civil courts. The actual state of things,
and your several proclamations of peace
and OF the restoration of civil order guar
antee to the civil authorities, Federal and
State, immunity against military control or
interference. 1t seems TO me that in this
particular there is no necessity for further
action on the part of the Executive in the
way of proclamation of peace, especially as
Congress, at the late session, required the
Circuit Court of the United States to be
held at Richmond on the first Monday of
May and .he fourth Monday of November
in each year, and authorized special or ad-
journed terms of that court to be ordered
by the Chief Justice of the Supreme Court,
at such time and on such notice as he
might prescribe, with the same power and
Jurisdiction as at regular terms. This Is
an explicit recognition by Congress that
the state of things in Virginia adm IS the
holding of the United States Court in that
State. The obstruction you refer TO can
not, 1t seems to me, be removed by any Ex-
executive order. So far as l am advised it
arises as follows: Congress on the 22d of
May, 1866. passed an act providing that the
Circuit Court of the United States
for Virginia should be held at
Richmond on the first Monday of May and
the fourth Monday OF November in each
year, further prov iding that all suits and
other proceedings which stand continued
to any other time and place should be
deemed continued to the place and time
prescribed by the act. The special or ad-
journed session which was ordered by the
court to be holden at Richmond in the
present month of October, was considered
as abrogated by this act. This lett the reg
ular term to be holden on the fourth Mon
day of November. and ii 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 OH
, the 23d of July, 1866, Congress passed an
act to fix the number of Judges of the
Supreme Court of the United States
and to change certain judicial cir
cults. Among other changes made in the
Circuit Courts by this act is change of the
Fourth Circuit to which the Chief Justice
had been allotted. AS this circuit stood
prior to this act, when allotted to the Chief
Justice, it embraced Delaware, Maryland,
Virginia, North Carolina, and West Vir-
ginia. 1t was changed by this act by ex-
cluding Delaware and adding South Caro-
line. 1t Is understood that doubts exist
whether this change In the States compris-
ing the circuit will not require new al
lOtment. Whether this doubt is well found
ed or not, it is certain that the Executive
cannot interfere, tor although under certain
peculiar circumstances the Executive has
power to make an allotment of the Judges
of the Supreme Court, yet the circum-
stances do not exist in this case. A new
allotment. If necessary, can only be made
by the Judges of the Supreme Court
or by COngress-perhaps only by
Congress. Mr.. Davis remains in
~
he was held in January, when, in answer
to resolution Of Congress, you reported
communications from the Secretary of War
and the Attorney General showing that he
was held to await trial in the civil courts.
No action was then taken by Congress in
reference to the place of custody. No de-
mand has since been made tor his transfer
into civil custody. The District Attorney
of the United States tor the District of Vir-
ginia, where Mr.. Davis stands indicted for
treason, has been notified that the prisoner
would be surrendered to the United States
Marshal upon capias under the indict-
ment; but the District Attorney declines to
have the capas issued, because there is no
other place within the District where the
prisoner could be so safely kept, or where
his present comfort aud 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 Monroe to Fort
Lafayette, on the ground chiefly, Ofhealth-
full consideration. A reference was prompt
ly made to a surgeon, whose report was
decidedly adverse to the change on the
ground of health and personal 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 Jurisdiction to try him
shall be ready to act, or until his custody
is demanded under lawful process of the
Federal Courts. would suggest that, to
avoid any misunderstanding on the sub
ject, am order be issued to the Commandant
of Fortress Monroe to surrender the pris-
oner to civil custody whenever demanded
by the United States Marshal upon process
from the Federal Courts. I send herewith
a copy of letter from the United States
District Attorney for Virginia, to which I
beg to call your attention. have the fav-
[Signecl HENRY srANBrRY,
Attorney General.
[Copy.l
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