MILITAUY COMMISSIONS. 



517 



therefore, in conclusion, they recommend thu adop- 



Ksole,:l, That there is no defect or insufficiency in 



resent istute of the law to prevent or i..- 

 with the trial of Jefferson Davis for the crime of 

 treason, or any other crime for which there may bo 



EU- ground l'r arraigning him before the hi- 

 st rv. 



Jistoloedi/urthtr. That it is the duty of the Exccu- 

 rnincnt to proceed with 

 - connected with the us- 

 ; 'It-lit Abraham Lincoln 



without unnecessary delay, that Jeff'-rson Davis and 

 1 in the proclamation of President John- 

 :\ be |iut upon trial and prop- 

 erly poaisned if guilty, or relieved from the charges 

 \i found to be innocent. 



action having taken place, the following 



i-nsik-d : 



Exi -KS, WASHINGTON, D. C., Oct. 6, I860, 



term of the Circuit Court of the 

 . for the first Tuesday of 



r, I860, at Richmond, Va., for the trial of Jef- 

 Davis on the charge of treason. It now ap- 

 ihat there will bo no session of that court at 

 Uichmond during the present month, and doubts are 

 expressed whether the regular term (which, by law, 

 .-li.iuKl commence on the fourth Monday of Novem- 

 ber next) will be held. 



lu view of this obstruction, and the consequent 

 delay in proceeding with the trial of Jefferson Davis 

 under the prosecution for treason, now pending in 

 that court, and there being, so far as the President 

 nued, no good reason why the civil courts of 

 the United States ure not competent to exercise ade- 

 quate jurisdiction within the district or circuit in 

 which tiic M.I'.O of Virginia is included, I deem it 

 proper to request vour opinion as to what further 

 steps, if any, should be taken by the Executive with 

 a view to u speetly, public, and 'impartial trial of the 

 accused, according to the Constitution and laws of 

 the United States. 



I am, sir, very respectfully, yours, 



ANDREW JOnNSOX. 



To the lion. UE.VRT STAN-BERT, Attorney-General. 

 Reply of the Attorney -General. 



ATTORXKY-flKNERAI.'S OFFICE, October 12, 1S66. 



THE PRESIDENT SIH : I have the honor to state 

 my opinion on the question propounded in your let- 

 ter of the 6th, as to what further may be proper or 

 expedient to be done by the Executive in reference' to 

 the custody of Mr. Davis, and the prosecution for 

 treason now pending against him in the Circuit 

 Court of the United States for Virginia. 



I am clearly of opinion that there is nothing in the 

 present condition of Virginia to prevent the full exer- 

 cise of the jurisdiction of the civil courts. The actual 

 state of things, and your several proclamations of 

 peace and of the restoration of civil order, guarantee 

 to the civil authorities, Federal and State, immunity 

 against military control or interference. It seems to 

 me that in this particular there is no necessity for 

 further action on the part of the Executive in the way 

 of proclamation, especially as Congress, at the late 

 n, 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 

 rear, and authorized special or adjourned terms of 

 that court to be ordered by the Chief Justice of the 

 Supreme Court, at such time and place, and on such 

 notice, as he might prescribe, with the same power 

 unil jurisdiction as at regular terms. 



This is an explicit recognition by Confess that 

 the state of things in Virginia admits the holding of 

 the United States courts in that State. 



The obstructions you refer to, it seems to ine, can- 

 not be removed by any Executive order, so far as I 

 am advised. It arises us follows : 



Congress, on May 22, 1SG6, passed an act provid- 



ing that the Circuit Court of the United States for 

 the State of Virginia should bo held at Uichmond on 

 the first Monday of May and on the fourth Monday 



ol Nov. -inbt riii iMchyuar; and further providing that 

 all suits, ami other proceedings which stand qpn- 

 tinned to any other time and plac", should be deemed 

 f. niiimed to the time and place prescribed by the 

 art. The special or adjourned session which was 

 ordered by the court to be holden at Richmond in 

 the present month of October was considered a 

 abrogated by force of this act. 



This left the regular term to be holden on the 

 fourth Monday of November, and if there had 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 Mr. Davis. 

 Bat on the 23dof July, 18GG, Congress passed an act 

 to fix the number of judges of the Supreme Court of 

 the United States, and to change certain judicial 

 circuits. Among other changes in the circuits made 

 by this act is a change of the fourth circuit, to which 

 the chief justice has been allotted. As this circuit 

 stood prior to this act, when allotted to the chief 

 justice, it embraced Delaware, Maryland, Virginia, 

 North Carolina, and West Virginia. It was changed 

 by this act by excluding Delaware and adding South 

 Carolina. 



It is understood that doubts exist whether the 

 change in the State composing the circuit will not 

 require a new allotment. Whether these doubts are 

 well founded or not, it is certain that the Executive 

 cannot interfere, for although, under peculiar cir- 

 cumstances, the Executive has power to make an al- 

 lotment of the judges of the Supreme Court, yet 

 these circumstances do not exist in this case. A 

 new allotment, if necessary, can only be made by 

 the judges of the Supreme Court, or 'by Congress 

 perhaps only by Congress. 



Mr. Davis remained in custody at Fortress Monroe, 

 precisely as he was held in January last, when, in 

 answer to a resolution of Congress, you reported 

 communications from the Secretary of War and the 

 Attorney-General, showing that he was held to await 

 trial in the civil courts. No action was then taken 

 by Congress in reference to the place of custody. No 

 demand has since been made for his transfer into 

 civil custody. The District Attorney of the United 

 States for the district of Virginia, where Mr. Davis 

 stands indicted for treason, nas been notified that 

 the prisoner would be surrendered to the United 

 States marshal upon a certain capias under the in- 

 dictment, but the District Attorney declines to have 

 the capias issued, because there is no other place 

 within the district where the prisoner could be Kepi, 

 or where his personal comfort and health could be so 

 well provided for. No application has been made 

 within my knowledge by the counsel for Mr. Davis 

 for a transfer of the prisoner to civil custody. Re- 

 cently an application was made by his counsel for 

 his transfer from Fortress Monroes to Fort Lafayette, 

 on the ground chiefly of sanitary consideration. A 

 reference was promptly made to a board of surgeons, 

 whose report was decidcly averse to change, on the 

 score of health and personal comfort. 



I 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 remain where 

 he is, until the court which has jurisdiction to try 

 him shall be ready to act, or until his custody is de- 

 manded under lawful process of the Federal courts. 



I would suggest that, to avoid any misunderstand- 

 ing on the subject, an order be issued to the command- 

 ant of Fortress Monroe to surrender the prisoner to 

 civil custody, whenever demanded by the United 

 States marshal, upon process from the Federal courts. 



I send herewith a copy of a letter from the United 

 States District Attorney for Virginia, to which I beg 

 to caH your attention. 



I have the honor to be, etc., 



IIENUY STANBERY, AttornoT-GeneraJ. 



