Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-01-12
The Attorney General and the Trial
I.f OF Jefferson DAVIS.
ATTORNEY GENERALS OFFIcE,(
January 4, 1865.

ATTORNEY GENERALS OFFICE.)
January A, 1866.
To THE PREsIDENT-Sir: | have the
honor to acknowledge the receipt from you
of a copy of a resolution OF the Senate OF
the United States of the 2lst of December,
1865. In that resolution the Senate re-
spectfully request to be Informed upon
what charges and reasons Jefferson Davis
is still held in confinement, and why he
has not been put upon his trial. When the
war was at its crisis, Jefferson Davis, the
Commander-in-C Chief of the army Of insur-
gents, was taken prisoner with, other prom
inent 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
vet held as prisoners OF war. Though
active hostilities have ceased, a staCe OF war
still exists over territory In rebellion, and
until peace shall come in fact and in law
they can be rightfully held as prisoners OF
war, have ever thought that trials for
high treason can not be had before a mill
tary tribunal; the civil courts have alone
jurisdiction of that crime.
The question then arises, where and
when must the trial thereof be held? In
that clause of the Constitution, mentioned
in the resolution of the Senate, it is plainly
written that they must be held in the State
and district wherein the crime shall have
been committed. / know that many per-
sons of learning and ability entertain tue
oninion that the Commander-in-chiefo OF the
rebel armies should be regarded as consti-
tlltiOnally present with all the insurgents
who prosecuted hostilities and made raids
upon the Northern and Southern borders of
loyal States. .{..ft
Z This doctrine of constructive presence,
carried out to its logical consequences,
would make all who had been connected
with the rebel armies, liable TO trial In any
State and district into which any portion, OF
those armies had made the slightest incur
sion. Not being persuaded OF the correct
ness of that opinion, but Eegardmg the doc.
trine mentioned Of doubtful constitutional
ity, I have thought it not proper to advise
voa to cause criminal proceedings to be, in
ssjtuted against Jefferson Davis or any
other insurgent In the States or districts in
which they were not actually present dur.
ing the prosecution Of hostilities. Some
prominent rebels were personally present
at the invasion of Maryland and Pennsyl-I
vania, but all, or nearly all of them, re-.
ceived military paroles upon the surrender
OF the rebel armies, While | think that
those parties have no ultimate protection
for prosecutions for high treason, have
Thought that it would be violation of the
paroles TO prosecute those persons for,
crimes before the political power of the
Government has beea proclaimed by proc
lanati0n that the rebellion has been sup
pressed gt.J991 sEw y y va sL..is.s!
: Il follows fronDwhat i have said, that i
am of the opinion that jefferson Davis and,
Others of the insurgents ought to be tried
in some one OF the States or districts in
which they in person especially committed
crimes with which they may be icharged.---l
Though active hostilities and fragrant civil
war have not for some time existed between.
the nited States and the Insurgents peace
aful relations between the Government and
the peoplefn the States and districtsIinTe-
Sbellion have not yet been fully restored -
None of the Justices of the Supreme Court
have held Circuit Courts in those States and
-atsoicts since actual hoitilities Ieeaseds--
.Whenthe CouFtsare open and all laws can
sbepeaceflilly administered and lenforeedfn
those states whose peoplepebelled against
-siIe Government; when thus peace shall
have come In fact and in law, 1.-THE persons
nov Held In military custody as prisoners
of war, and who may not have been tried
and convicted tor offenses against the laws
of war, should be- etransierfed into the Gus
todN of the civil authpritiesilOf the proFer
districts. TO be tried tor suehgcriInes and
tmlsdemeanors as may be alleged against
them il think itis the plain duty OL the
,Presldentto cause criminal prosecutions TO
he instituted before the proper tribunals, at
All proper times, against some Of those who
were mainly instrumental ininaagrrating'
and most conspicuous In conducting, the
-lave .l1ostiIities. giAhu % ~ fta sIEn.3 ~
3 I should regard it as a dlreful cs1ainity II
The r1Iany whom the sword has spared, the
tihvt ehould spare also but i should deem
lIt q more dlrefuI calamity stillff the Exec