The south-western. [volume] (Shreveport, La.) 1852-1870, 1866-01-31
! rrho .ttorn.vgan on the Trial of JEFF. Davis

The Attorney-Gen. on the Trial OF Jen. DAVIS
The following is copy of attorney general speed
letter to the president in relation to The trial OF Jeer
SON Davis which was transmitted to congress III con-
fnrnity to resolution passed by the senate;
ATTORNEY GENERALS OFFICE,
January 4, 1866
r. tbo rresident:-Sir-I have the honor to ae-
knowledge the receipt from you OF copy OF result
tion of the senate of the United States oil tue zlst OF
December, 1865. In that resolution the seitee
requested to be informed upon what charges ana
oosons Jefferson Davis is still held in confinement anu
yybv he was not put upon his trial When the war was
at its crisis jeff Davis the commanderln-chlel Oh the
army of the insurgents, was taken prisoner WIN o!ne
re bells by the military force OF the Unted
States 1t was the duty of the military SO to take
them They have been, therefore, and are yet helu as
rsoners of war Though active hosttles have ceased
sto.e of war still exists over the territory in rebellion
Until neace shall have in fact and in law, they
can be riehtfully held as prisoners 'oi war.
have ever thought that trials for lgh treason cannot
bo b,d before a military tribunal The civil courts
alone have jurisdiction of that crime me qucstioh
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 Mhete tRe
crime shall have been committed.
7 know that many persons of learning and ability
entertain the opinion that the commandef4n-chiet OF
the rebel armies should be regarded as constHutonay
nresent With all the insurgents who prosecutea hos-
ties and made raids upon northern and southern BORDERS
of oya States 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 or district into which any portion OF
those armies had made theelghtest incursion
In not being persuaded of the correctness of that
oninon. but regarding the doctrine mentioned as of
doubtful constitutionay have thought it not proper
to advise you to cause criminal proceedings to be nstiA
uted against jefferson Davis or other insurgents in
States or districts in which they not actually pre-
esnt during the prosecution of h0sttes Some promi-
nent rebels were personally present at the invasion OF
Maryland and Pennsylvania, but all, or nearly all OF
them received military paroles upon Tue SURRENDER VI;
the rebel armies
While think that those parties have no ultimate
protection for prosecution fer 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 been proclaimed that the rebellion
has been suppressed.
It follows from what have said, that am of the
opnion that Jefferson Davis and others of the nsur
gents ought to be tried in Of the States or
districts in which they in person especially committed
the crimes with which they may be Charged, though
active hostie and fragrant acts have not tor some time
existed between the United States and the insurgents
peaceful relations between the government and the
neonle in the States and districts in rebellion have not
vet been fully restored.
None of the justices of the supreme court have held
circuit courts in their States and districts since actual
hostilties ceased When the courts open and all
laws can be peaceaby administered and enforced in
these States whose people rebeed against the govern
men when thus peace shall have come in fact and In
law the persons now held in military custody prs-
oners of war, and who may not have been tried and
convicted for offences against the laws of war; should
he transferred into the custody of the civil authorities
IS tbo rner districts to be tried for such crimes.
Prosecutions to he instituted before the proper tribu-
nails at all proper times, against some OF those VINO
were mainly instrumental in inaugurating and most
conspicuous in conducting the late hostties should
regard it as direfu calamity, by whom the sword has
spared and the law should spare aso but would deem
il more dreful calamity still if the executive in per-
forming his constitutional duty of bringing those per-
sons teore the bar of justice to answer for their crimes
should violate the meaning of the constitution, or
infringe in the least particular the living spirit of that
instrument