Daily Richmond Whig. [volume] (Richmond, Va.) 1865-1869, 1866-01-12
ATTORNEY GENERALS OFFICE, !
January 1, 1856.

TO the President:
SIR have the honor to acknowledge the receipt
from You OF Il copy Of the resolution of the Senate
of the United States, of date the 2ls OF December
1860. In that resolution the Senate respectfully re-
quest 10 be informed upon what charges anu For
What reasons Jefferson Davis is still held in cOnine
meut and why he has not been pnt upon his trial.
When the war was at its crisis, jefferson Davis, the
Cummandcr-in- Chief of the army of the insurgents,
was taken prisoner, with other prominent Rebels, by
the military forces of the United States. 1t was the
duty of the military 50 10 take them. They have
been heretofore, and are yet, held prisoners OF
war Though active hOstlities have ceased, Il state
of war still exists over the territory in rebellion.
Until peace shall come in fact and IN law they can
rightfully be held Us prisoners OF war.
/ have ever thought that trials for high treason
cannot be had before military tribunal. The civil
courts have alone jurisdiction of that crime. The
question thence arises where and when must the trials
thereof be held
In that clause of the Constitution, mentioned in
the resolution of the Senate, it is plainly TO be seen
that they must be held in the State and district
wherein the crime shall have been committed. /
know that many persons OF learning and ability en-
terrain the opinion that the COmmander-in-Chef Of
the Rebel armies should be regarded cOnStrGc-
lively present with all the insurgents who prosecuted
hOstilites and made raids upon tile northern and
southern borders Of the loyal States.
This doctrine Of constructive presence carried out
to It's logical consequences. would make all who had
been connected with the Rebel armies liable to trials
in any States and districts into which any portion OF
those armies had made the slightest incursiOnS. Not
being persuaded OF the correctness of that opinion
but regarding the doctrine mentioned as OF doubtful
cOnStitutOnality. have thought il not proper 10 adj
wise you To cause criminal proceedings To be insttu
ted against Jefferson Davis or any other inSurgcnt
IN States districts in which they not actually
present during the prosecution of hostilities.
Some prominent Rebels were personally present
1t the invasion OF Maryland and Pennsylvania,
but all or nearly all OF them received military pa
roles upon the surrender OF the Rebel armies
Whilst think those paroles are not ultimate pro-
lection from prosecution for high treason. have
thought that it would be violation of the paroles
to prosecute those persons for crimes before the po
Htcal power OF the Government has proclaimed
that the rebellion has been suppressed. 1t follows
from what have said that am Of the opinion that
Jefferson Davis and Others Of the insurgents. ought
to be tried in some of the States districts in
which they in person especially committed crimes
with which they may be charged. Though active
hostltieS and fragrant war have not for some time
existed between the United States aud the insurgents
peaceful relations between the Government and the
people i'm the States and districts in rebellion have
not vet been fully restored None OF the Justices Of
the supreme Court have held Circuit Court in those
states and districts since actual hoStlties ceased
When the courts are open, and all laws can be peace
FULLY administered and enforced in those states
whose people rebelled against the Government; when
thus peace shall have come in fact and IN law, the
persons YOU hold in military custody aS!prlsOnerS of
war, and who may not have been tired and CON
victed Tor offences against the laws Of war, should
be transferred into the custody OF the civil author-
ties OF the proper districts, to be tried for such high
crimes and msdemeanOrs as may be alleged against
them think that it is the plain duty of the Pres-
lent 10 cause criminal proceeding TO be instituted
before the proper tribunals and at proper times
against some Of those who mainly instrumental
in inaugurltng and most conspicuous IN conducting
tie late hoStities. should regard 1t rs dreadful
calamity if many whom the sword has spared the
law should spare also, but would deem II a more
direful calamity if the Executive in performing his
Constitutional duty OF bringing these persons before
the bar OF Justice to answer for their crimes should
violate the plain reasoning Of the Constitution or
should infringe in the least particular The living
spirit of that instrument
have the honor to be, very respectfully,
JAMES Speed. Attorney. General