Year: 1873

1t is little curious how soon great events
fade from the memory. The Charleston Dai-
ky Ne,cs publishes narrative said to have
been disclosed by Judge Clifford, of the su-
preme Court of the United States, at dinner
table, assigning the reason for the aban-
donment of the prosecution Of Jefferson Davis
for treason. 1t is alleged that soon after the
war Judge Clifford, Attorney-General Speed
and eminent members of the bar were called
together at Washington to consult on the SUBJ
iect that this consultation resulted in the
abandonment Of the prosecution for the fol-
lowing reason, which we quote:


"After the council had adjourned, and
Judge Clifford had returned to his home, Mr..
Headley enquired the result Of their delibera-
tions, and Judge Clifford made striking and
characteristic reply in something like the fol-
lowing language: Remarkable as the fact
may appear, we find that the laws of the Uni
ted States are not so constructed as to afford
any certainty of furnishing high treason or
rebellion, and Mr.. Davis, if arraigned under
them, cannot be brought to conviction. Per-
haps it is that the men who framed our funda-
mental law and system Of government, and
who were then fighting forliberty with halters
about their necks, did not pay much attention
to the question Of Furnishing in the future the
acts which they were committing themselves ,"


The facts in this case were these Jefferson
Davis was arrested and held in custody by
the military authorities. While so held, a
cabinet consultation was held on the question
submitted by President johnson, whether he
should be tried by military or civil court.
A majority of the cabinet voted in favor of a
trial by a civil court. Attorney General
Speed was instructed to take the necessary
steps for the transfer of the prisoner from the
custody of the military to the civil authorities.
He was indicted by the United States grand
jury both in Washington city and in Virgin
ia. The United States District Court of Vir-
ginia was selected as the proper tribunal for
his trial. He was accordingly brought to
Richmond by the military authorities and put
in custody Of the United States marshal. On
motion of his attorneys, he was admitted to
bail, and afterward discharged under the be-
lief that he was embraced in the provisions of
general proclamation of amnesty.


The only subject connected with his trial
ever seriously discussed was the question of
the practicability of securing an impartial
jury for his trial in any district where he had
been or could be indicted. 1t was believed
to be impossible to secure such jury in Rich
mond, and very doubtful if it could be done
in Washington, on account Of the sympathy
in favor of the "lost cause" 1t was thought
that if indicted in any one of the loyal States,
where no such difficulty need be apprehended,
a serious question of law would arise under
that provision of the constitution requiring
the trial of criminals in the district where the
offense was committed, as Jefferson Davis had
not personally committed any overt act Of
treason in any of these loyal States. His
offense in such State might be held to be, at
the utmost, only that Of completely or con-
structive treason.


And, in addition, the policy of transferring
a criminal from the district where he person
ally committed the crime to another district,
where he could be held to be only construct
lively present as an offender, would be bad in
policy, bad as precedent, and ought to be
avoided.


There never was any question of his guilt
or the suficiency of the law for his punish
ment on the part of the president or of any
member of his cabinet. But it was not be-
leived that a jury, selected in the usual mode
in Richmond at that time, would convict JEFF
ferson Davis of treason, on account of the
condition of public opinion at the seat of the
recent rebel government. But the final cause
of the abandonment of the prosecution was
the supposed legal effect Of an amnesty proc
lamation.