Year: 1866

AIRY GENERALS OEFIcE, Oct. IL, 1856.


TO the President: ,a r,g ..Ns


Sin: have the honor to state my opinion
upon the question propounded in your letter
of the 9Th inst, as to what further step may
be proper or expedient to be done by the ex.
ecntiye in reference to the custody of Mr.
Davis, and the prosecution now pending
against him in the Circuit Court of the Uni.
ted States of Virginia. am already of the
opinion that there is nothing in the present
condition Of Virginia to prevent the full Ex-
ercise Of the jurisdiction of the civil courts
The actual state of things, and your several
proclamations Of peace, and of the restora-
ton Of civil order, guarantee to the civil au-
thorities Federal and State immunity against
military control or interference. Itseems to
me that in this particular there is no neces-
sity for further action on the part Of the Ex-
ecutive in the way Of proclamation, especial.
ly as Congress, at the late session, required
the Circuit Court Of the United States to be
held at Richmond on the first Monday of
May and the fourth Monday of November in
each year, and authorized special or adjourn.
ed terms of that court to be ordered by the
Chief Justice Of the Supreme Court, at such
time and on such notice as he might pre-
SCRIBE with the same power and jurisdiction
as at regular terms. This is an explicit re-
cognition by Congress that the state ofthings
in Virginia admits the holding of the Uni
ted States Courts in that State. The OBJ
struction you refer to cannot, it seems to me,
be removed by any Executive order. So
far as am advised, it arises as follows:


Congress, on the 22d of May, 1866, passed
an act that the Circuit Court of the United
States for Virginia should be held at Rich
mond on the first Monday Of May and the
fourth Monday Of November in each year,
and further providing that all such and other
which stand continued to any
other time and place should be deemed con-
tinued to the time and place prescribed by
the act. The special or adjourned session,
which was ordered by the court 10 be held
at Richmond in the present month of Octo-
Der, Was considered as abrogated by this act.
This lett the regular term to be held on the
fourth Monday Of November, and if there
has been no further legislation by Congress,
no doubt could exist as to the competency of
the Chief Justice and the District Judge of
that court then to try MIR. Davis, but on the
23d of July, 1896, Congress passed an act to
fix the number of Judges of the Supreme
Court Of the United States, TO change cer-
tain judicial circuits. Among other changes
made in thsir Circuit Court by this act, is a
change of the Fourth circuit, to which their
Chief Justice had been allotted as this Cir
cult Court stood prior to this act. When al
lotted to the Chief Justice il embraced Del
aware, Maryland, District Of Columbia and
Western Virginia. 1t was changed by this
act by excluding Delaware and adding South
Carolina. 1t is understood that d0uUt ex-
lists whether this change in the States com
prising the circuit will not require new at.
Whether this doubt is well found
ed or not, il is certain that the Executive
cannot interfere; for, although under GER
tain peculiar circumstances il has the power
to make an allotment of the Judge OF the
Supreme Court, yet these circumstances do
not require in this case new allotment. If
necessary, it can only be made by the Judges
of the Supreme Court or by Congress, per-
haps only by Congress. r.


Mr.. Davis remains in custody at Fortress
Monroe precisely as be was held in January,
when in answer TO resolution of Congress
you reported communication from the Sec
retary Of War and the Attorney General,
showing that he as held to wait trial in the
civil courts. No action was taken by Con-
gress in reference to the place of custody
No demand has since been made for his
transfer into civil custody. The District At
torney of the United States for the district
of Virginia, where Mr.. Davis stands indicted
for treason, has been notified that the pris-
oner would be surrendered TO the United
States Marshal upon capias under the in-
dictments, but the District Attorney declines
to have tho capias, because there is no other
place within the district where the prisoner
could be SO safely kept, or where his person
al comfort and health could be so well pro.
yided for No application has been made,
within my knowledge, by the counsel for
Mr.. Davis for transfer Of the prisoner to
civil custody recently. An application was
made by his counsel for his transfer from
Fortress Monroe to Fort Lafayette, on the
ground chiefly Of sanitary consideration.
A reference was promptly made TO board
Of surgeons, whose report was decidedly ad-
verse to the change, on the score of health
and personal comfort. ! am unable TO see
what further action can be taken on the part
of the Executive to bring the prisoner to
trial. Mr.. Davis must, for the present re.
main where he is until the court, which has
jurisdiction to try him, shall be ready to act,
or until his custody is demanded under law
ful process of the Federal courts.


would suggest that, to avoid any misun-
on the subject, an order be Is
sued to the commanding officer Of Fortress
Monroe to surrender the prisoner to civil Gus
tody whenever demanded by the United
States Marshal upon process from the Fed
eral Court. send herewith a copy of a
letter from the United States District Attor-
ney for Virginia, to which beg to call your
attention. .r


have the honor to be yours. &C., fT


HENRY STANBERRY,


At,i., Dan B..