The Portland daily press., 1866-10-15
ATTORNEY GENERALS OFFICE,
"a ~ yHosb,p n oyf1sp 1on

AACtE- = W VaShingtOn, Oct1z, 1866.
" To the Presideat-SIR: / have the honor to
state myopinion upon the question. propound-
ed in your letter of the 9th, as to what further
! may be proper or expedient to be done by the
Executive, in reference to the custody of Mr..
7 Davis and the prosecution for treason pending
against him in the Circuit Court of the Uni
ted States for Virginia. / am clearly of the
Z opinion that there is nothing in the present
condition OF Virginia to prevent the fuil exer-
else Of jurisdiction of the civil Courts. The
actual state of things and your several proela-
nations Of peate e and of the restoration of OWL
order, guarantee TO the civil authorities Feder-
al and State, immenityi against military CON
troll or interference. 1t seems to me, that in
this particular there is no necessity fbr further
action on the part of the Executive In the way
of proclamation, and especially as Congress at
the atcsession, required the Circuit Court of
the Omitted States to be- held at Richmond on
the first Monday Of May and the fourth Mon
day of November in each year. and authorizes
. 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 iu-
risdiction as at the regular terms. This is an
explicit recognition BY Congress that the state
of things in Virginia admits the holding of
United States Courts in that State The OBJ
structions you refer to cannot, it seems to me,
be removed by any Executive order So far
as I am advised, it arises as follows: Congress,
ON the 22d Of May, 1866, passed an act prosid-
Virginia, should be held at Richmond, on the
first Monday Of November in cache year, and
further providing that all suits and other pro-
ceedings which stand continued to any other
time, and the place should be deemed scontin-
ued to the place and time prescribed by the
sss sGssa aGSrBsf g Bs 5fas ssssen
in the present month'of October. was consd-
lered as abrogated by this act. This left the
regular term to be holden on the fourth Mon
day of November, and if there had been no
further legislation by Congress no doubt could
exist as to the competency of the Chief JUS
tiee and the @ District Judge Of that Court then
to try Mr.. Davis; but on the 233d 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 circuits.
Among. other changes made in the Circuit
Courts in this act is a change of the fourth
circuit to which the Chief Justice had been al
lotted, as this circuit stood prior to this act
When allotted to the Chief Justice, it embrac-
ed Delaware, Maryland, Virginia, North Car
olina, and West Virginia. 1t was changed
by this act by excluding Delaware and adding
. South Carolina. 1t is understood that doubts
exist whether this change in States comprising
the circuit will not require a new allotment.
Whether this doubt is well founded or not it is
certain that the Executive cannot interfere,
for although under certain peculiar circup-
stances the Executive has power to make an
allotment Of the Judges of the Supreme Court,
yet, those circumstances do not exist in this
! ! case. new allotment, if necessary, can only
/ be made by the judges of the Supreme Court,
or by Congress; perhaps only by Congress-
MIR. Davis remains in custody at Fortress
. Monroe, precisely as he was held in January
last, when, IN answer to q resolution of Com
gress, you reported communications from the
Secretary OF War and the Attorney General,
showing that he was held to await his trial in
the Civil Courts. No action was taken by
Congress in reference to the place of custody
No delay has since been made for his transfer
into civil custody The District Attorney OF
the United States for the District of Virginia,
where Mr.. Davis stands indicted for treason,
has been notified that the, prisoner would be
surrendered to the United States Marshal uD-
on a capias under the Indictment, but the
District Attorney declines to ,havepthe lcapias
issued, because there is no other place within
the District where the prisoner could be safely
kept, 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 transfer Of the
cation was made by his counsel, for his trans
fer from Fortress Monroe to Fort Lafayette.
on the ground chiefly of sanitary considera-
hons A reference was promptly made to a
Board OF Surgeons, whose report was decided
ly against the change, ON the score 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,
untll the court which has Jurisdiction to try
him shall be ready to act, or until his custody
is demanded under lawful process Of the Fed
eral Courts. I would suggest that to avoid
any misunderstanding ON the subject, an order
be issued to the Commandant of Fortress
Monroe, to surrender the prisoner to civil Gus
tody whenever the demand by the United
States Marshal, upon process from the Federal
Courts be made. / send herewith copy of a
letter from the United States District Attor-
ney for Virginia, to which / beg to call yonr
attention have the honor to be, &c,
.- SIS IT. .,slEs.ss sai HENRY STANBURY,
1nftI tI,oT