The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-09-27
The Points OF the Davis TrIal-why Mr.
Davis Has Not Been Tried.


Davis Has Not Been Tried.
From the Tribune. NN .i L..
Mr.. johnson repeatedly declared, in his recent
tour, that he had no power over the trial of JEFF
ferson Davis, and vaguely inttmated that the
delay was the fault of the Chief Justice of the
United States. That this accusation was utterly
without foundation we propose TO show
First. The Chief Justice has no more to do
with the trial of JEFF, Davis than any other JUS
ticC, except that it happens that the Chief JUS
tice was allotted or assigned to the circuit in
which Virginia is to accommodate Judge
SwaYne, who desired to be allotted the circuit in
which Ohio is.
court, tries what cases be happens to find on the
docket, If they are ready for trial 1t makes no
difference to him who the parties are; his duty
is TO adm mister the law. .. .I... . -.
Third The Chief Justice has never inquired,
and probably never will inquire, what cases are
to come before him, except in the regular course
and way. He neither seeks nor shuns the re-
spOnsibility of trying Jefferson Davis, or any
Fourth. The Chief Justice has held three
terms Of the Circuit Court for the District of
Mary land since his appointment nearly two
years ago. These were indictments for treason
pending at the first term, and, except in certain
cases where the accused individually have been
pardoned, they are pending yet. The Govern
ment has not thought proper TO proceed to trial
in any OF these cases. 1t the Government had
desired a judicial exposition of the law of trea-
son, it might have been had from the Chief
Justice at either OF those terms, in April and
November, 1865, or in April, 1866.
Fifth. Early last spring, Bradley L. Johnson
double traitor, If treason consists IN levying
war against his own State as well as against the
United States-was arrested in Maryland for
treason, and was held 10 bail by the District
Judge. General Grant requested to have him
discharged without BAIL on the ground that he
was not liable to arrest or trial because he had
been paroled at the time of the surrender OF
Lee or Johnston; and the President thereupon
ordered the discharge through the Attorney
General, and, on motion Of the District Attor-
ney, under direction OF the Attorney General,
the District Judge directed the discharge. Upon
the propriety OF this interference by the Execu-
tive with the course of regular judicial proceed
iugs, it is unnecessary to express an opinion,
though ii affords abundant ground for the re-
fection of thoughtful men. 1t prevented the
expression OF judicial opinion as to the effect
of military paroles upon liabilities to punish
ment Tor treason and other crimes.
Sixth. The Chief Justice held no Court in
Virginia IN 1865, because the the writ of habeas
corpus was suspended, ahdmartial law enforced
within its territory; in his judgment all Courts
in region under martial law must be quasi
military courts, and it was neither right nor
proper that the Chief Justice, or any associate
Justice of the Supreme Court OF the United
States-the highest tribunal of the nation, and
head of one OF the coordinate departments of
the Government-should hold Court subject
to the control or supervision of the Executive
this judgment all lawyers of responsibility, of
whatever political opinions, will concur.
Seventh Soon after the adjournment Of the
Supreme Court in April last, the President
issued proclamation, the effect of which
seemed to the Chief Justice to be the abroga
ton OF martial law and military government,
and the restoration OF the writ OF habeas
corpus in all the States except Texas; and we
understand he determined thereupon to hold
Circuit Court at the ensuing May Term in Vir-
ginia; but various Executive orders, incon-
Sstent with the conclusion that military gov
ernment had ceased soon followed tho proca-
nation, and led to dn apprehension that the
construction put upon 1T was not intended by
the President. The Chief Justice, it is, there
fore, to be presumed, reconsidered his purpose
TO hold Circuit Court. 'l ...I.. .#g H
Eighth. DESTROYS, however, to omit no duty,
the Chief Justice, it is reported, called on the
President in April or May last, and requested
him to issue proclamation (of which the Chief
Justice submitted dratt) declaring in equivo-
cal terms, that martial law was abrogated and
the writ OF habeas corpus restored in all cases
OF which the courts OF the United States had
jurisdiction, and in respect to all process issuing
from such courts. This was not DONE
Ninth, subsequently, however, another pro-
Clamation was issued, affirming the restoration
Ofpeaee throughout the whole country, which
has, as yet. been followed by no order asserting
the continuance OF military government. Under
the proclaim alton, therefore, it seems fair TO
conclude that martial law and military govern
ment are permanently abrogated, Eand the writ
of habeas corpus fully restored; and this con-
Clusion warrants the holding OF courts by the
Chief Justice and Associate Justices as the law
may direct.
Tenth There is no act act of Congress- how
ever, which authorizes the holding OF any Cir
cult Court in Virginia until the November term
beginning the fourth Monday in November
unless the Chief Justice shall order special
term, as he is authorized to do by an act OF the
last session. The Chief Justice would, no doubt,
order special term if the District Attorney and
the Attorney General should represent to him
that such a proceeding is needed for the admin.
istIation of public Justice. .sf4u-. 3 Fa I-...
Eleventh. An act of the last session of Con-
grass changes all the circuits (eXcept the first
and second, which include the districts in New
England and New York;, and reduces the mum.
Der from ten to nine; but it neither makes MOI
authorizes any allotment of the Chief Justice oI
Associate Justices to these new circuits; and il
seems doubtful whether the old allotment gives
anyjurisdiction to hold courts in the disuic
which happen to remain in the same circuit
numerically as at the time of that allotment
while 1t Is quite certain that neither the Chic
Justice nor any Associate Justice can eXercis
jurisdiction in any circuit except by allotmen
or assignment under an act of Congress. 1t i
matter OF extreme doubt there tore, Whethet
the Chief Justice can, after all, hold any cour
inVirginia until alter some further Legislation
bYCongress making or authorizing allotment
tolthe new circuits. o'ia ~ i4l Ia
Twelfth. The absence of the Chief Justice or
Justice OF the Supreme Court from any Circui
does not, however, prevent the holding of Ci
cult Courts; for the law provides expressly tina
in the absence of Justice of the Supreu
Court, q Circuit Court may be held by the Di
trict Judge. Circuit Courts have, accordingl
been held in all the Circuits within the Reb
establishment of the authority of the Unit
States and the appointment OF such Judge
These courts, during military government, we
held, OF course, subject TO military control al