War of the Rebellion: Serial 121 Page 0844 PRISONERS OF WAR AND STATE, ETC.

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pirates, robbers, and murderers in Canada, to burn the cities and ravage the commerce and coasts of loyal States on the British frontier; D. L. Yulle, at Fort Pulaski, charged with treason while holding a seat in the U. S. Senate, and with plotting to capture the forts and arsenals of the United States, and with inciting war and rebellion agains the Government; S. R. Mallory, at Fort Lafayette, charged with treason, and with organizing and setting on foot piratical expeditions against the United States commerce and marine on the high seas.

Other officers of the so-called Confederate Government, arrested and imprisoned, have been released on parole to abide the action of the Government in reference to their prosecution and trial for alleged offenses, on their applications for amnesty and pardon. Among these are G. A. Trenholm, Secretary of the Treasury; John A. Campbell, Assistant Secretary of War; James A. Seddon, Secretary of War; John H. Reagan, Postmaster-General; R. M. T. Hunter, senator; Alexander H. Spephens, Vice-President, and sundry other persons of less note.


Secretary of War.

[Inclosure Numbers 2.]



SIR: I have the honor to acknowledge the receipt from you of a copy of the resolution of the Senate of the United States of date the 21st of December, 1865. In that resolution the Senate respectfully requests to be informed upon wht charges and for what reasons Jefferson Davis is still held in confinement, and why he has not been put upon his trial.

When the war was at its crisis Jefferson Davis, the commander-in-chief of the army of the insurgents, was taken prisoner, with other prominent rebels, by the military forces of the United States. It was the duty of the military so to take them. They have been heretofore and are yet held as prisoners of war. Though active hostilities have cease a state of war still exists over the territory in rebellion. Until peace shall come in fact and in law they can rightfully be held as prisoners of war.

I have ever thought that trial for high treason cannot be had before a military tribunal. The civil courts have alone jurisdiction of that crime. The question then arises: Where and when must the trials 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 "wherein the crime shall have been committed." I know that many persons (of learning and ability) entertain the opinion that the commander-in-chief of the rebel armies should be regarded as constructively present with all the insurgents who prosecuted hostilities and made raids upon the northern and southern borders of the loyal States.

This doctrine of constructive presence, carried out to its logical consequence, would make all who had been connected with the rebel armies liable to trial in any State and district into which any portion of those armies had made the slightest incursion. Not being persuaded of the correctness of that opinion, but regarding the doctrine mentioned as of doubtful constitutionality, I have thought it not proper to advise you to cause criminal proceedings to be instituted against Jef-