The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1866-01-12
ATToESEY-GESRRAL's OFFICE,
To Mk President.

hllbENEt -iTENFRAI : bFFICF, Z
January 1, 1866. )
To lie President:
Sir,-I have the honor to acknowledge the
receipt from you Of a copy of a resolution of
the senate of the United States of date the
2lst December, 1865. In that resolution the
Senate respectfully requests 10 be informed
upon what charges and for what reason JEFF
ferson Davis is still held in confinement, and
why he has not been put on his trial.
When the war was 1T its crisis, Jefferson
Davis, the commander of the army of insur-
gents, was taken prisoner, with other promi-
nent rebels, by the military forces of the United
States. 1t was the duty of the military so to
take them. They have been heretofore, and
are yet, held rs prisoners of war. Though
active hostilities have ceased, n state of war
still exists over the territory in rebellion,
Until peace shall come in fact and in law, they
can rightfully be held as prisoners of war. L
have ever thought that trials for high treason
cannot be held before n military tribunal, The
civil courts have alone jurisdiction OF that
crime. The question then arises, where and
when must the trials thereof be held? In that
clause of the Constitution noticed in the reso-
luton of the Senate, it is plainly written that
they must be held in the State and district
wherein the rhine shall have been COM
mitted." ] know that many persons (ot learn
ing and ability entertain the opinion that the
/ commanders -chief of the rebel armies
should be regarded as constructiyely present
with all the insurgents who prosecuted hos
tilities and made raids upon the northern and
I southern borders oil the loyal states.
This doctrine of constructive presence, car
ried out in its logical consequences, would
make all who had been connected with the
rebel armies liable 10 trial in any State and
district into which any portion of those armies
had made the slightest incursiOn. Not being
persuaded of the correctness of that opinion,
but regarding the doctrine mentioned as of
doubtful constitutionality, l have thought it
not proper to advise You to cause criminal pro-
cecdings to be instituted against Jefferson
ll9Iis or any other jnSIrppDt in States or
districts in which they We're not actually pre-
sent during the prosecution OF hostllities.-
Some prominent rebels were personally present
at the invasions of Maryland and Pennsyl.
vania but all, or nearly all of them, received
military paroles upon the surrender OF the
rebel armies. Whilst l think that those paroles
are not ultimate protection from prosecution
for high treason, | have thought that it would
be Il violation of the paroles TO prosecute those
persons for crimes before the political power OF
The Government has proclaimed that the re-
belliOn has been suppressed. 1t follows, from
what I have said, that l am of the [opiniOnl
that Jefferson Davis and other OF the insur-
gents ought to be tried in some OF the States
or districts in which they in person especially
controlled the crimes upon which they may be
charged. That active hostilitieS and Migrant
war have not for some time existed between
the United States and the insurgents, peaceful
relations between the Government and the
people III the States and districts in rebellion
have not yet been fully restored, none OF the
| JUSTICES OF llt supreme ONl / INV i'IA II
cult courts in these States and districts since
actual hostilities ceased.
When the courts are open and the laws can
be peacefully administered and enforced in
these States whose people rebelled against the
Government when thus peace shall have
come in fact and in law, the persons now held
in military custody as prisoners Of war, and
who may not have been tried and convicted
for offences against the law of war, should be
transferred into the custody of the civil au-
thorities of the proper district, to be tried for
such high crimes and miSdemeanorS as may be
alleged against them.
l think that il is the plain duty of the Presi-
lent TO cause criminal prosecutions to be in
stituted before the proper tribunals, and at
the proper times, against some Of those who
We're mainly instrumental in inaugurating
and most conspicuous in conducting the late
hostilities. / should regard il as 4 dlretul
calamity i fmany whom the sword has spared
the law should spare also but | would deem
it Il more direful calamity still If the EXecu-
tive, in performing his constitutional duty OF
bringing those parties before the bar OF JUS
tice 10 answer for their crimes, should violate
the plain meaning of The Constitution or in
fringe in the least particular the living spirit
of that instrument. have the honor TO be,
most respectfully, JAMES SPEED,
Attprupv- General.