Report on Prisoners
War Department
January 4, 1866
War of the Rebellion Records
War Department, Washington city, January 4, 1866.
The President:

Sir: To the annexed Senate resolution, passed December 21, 1865, referred to me by you for report, I have the honor to

1. That Jefferson Davis was captured by U. S. troops in the State of Georgia on or about the 10th day of May, 1865, and
by order of this Department has been, and now is, confined in Fort Monroe, to abide such action as may be taken by the
proper authorities of the United States Government.

2. That he has not been arraigned upon any indictment or formal charge of crime, but has been indicted for the crime of
high treason by the grand jury of the District of Columbia, which indictment is now pending in the supreme court of said
District. He is also charged with the crime of inciting the assassination of Abraham Lincoln, and with the murder of Union
prisoners of war by starvation and other barbarous and cruel treatment toward them.

3. The President deeming it expedient that Jefferson Davis should first be put upon his trial before a competent court
and jury for the crime of treason, he was advised by the law officer of the Government that the most proper place for
such trial was in the State of Virginia. That State is within the judicial circuit assigned to the Chief Justice of the Supreme
Court, who has held no court there since the apprehension of Davis, and who declines for an indefinite period to hold
any court there.

The matters above stated are, so far as I am informed, the reasons for holding Jefferson Davis in confinement and why
he has not been put upon his trial.

4. Besides Jefferson Davis the following persons who acted as officers of the rebel Government are imprisoned, to wit,
Clement C. Clay, at Fort Monroe, charged, among other things, with treason, with complicity in the murder of Mr. Lincoln,
and with organizing bands of 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. Yulee, 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 against the Government; S. R. Mallory, at Fort Lafayette, charged with treason, and with organizing and
settling 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, John H.
Reagan, Postmaster-General; R. M. T. Hunter, senator; Alexandre H. Stephens, Vice-President, and sundry other
persons of less note.

Edwin Stanton,
Secretary of War.

Attorney-General's Office, January 4, 1866.
The President:

Sir: I have the honor to acknowledge the receipt from you of a copy of the resolutions 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 what
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 ceased 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 trials 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 thereofbe held?

In that cause 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 consequences, would make all who had been connected
with the rebel armies liable to trail 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
Jefferson Davis, or any other insurgent, in States or districts in which they were not actually present during the
prosecution of hostilities.

Some prominent rebels were personally present at the invasions of Maryland and Pennsylvania; but all or nearly all of
them received military paroles upon the surrender of the rebel armies. Whilst I think that those paroles are not ultimate
protection from prosecutions for high treason, I have thought that it would be a violation of the paroles to prosecute
those persons for crimes before the political power of the Government has proclaimed that the rebellion has been

When the courts are open and the laws can be peacefully administered and enforced in those States whose people
rebelled against the Government--when thus peace shall have come, in fact and in law, the persons now held in military
custody as prisoners of war, and who may not have been tried and convicted for offenses against the laws of war,
should be transferred into the custody of the civil authorities of the proper districts to be tried for such high crimes and
misdemeanors as may be alleged against them.

I think that it is the plain duty of the President to cause criminal prosecutions to be instituted before the proper tribunals
and at the proper times against some of those who were mainly instrumental in inaugurating and most conspicuous in
conducting the late hostilities.

I should regard it as a direful calamity if many whom the sword has spared the law should spare also; but I would deem it
a more direful calamity still if the Executive, in performing his constitutional duty of bringing those persons before the bar
of justice to answer for their crimes, should violate the plain meaning of the Constitution, or infringe in the least
particular the living spirit of that instrument.

I have the honor to be, most respectfully,

James Speed,
Edwin Stanton
Secretary of War
Jefferson Davis
Clement C. Clay
Ex U. S. Senator Alabama
David Levy Yulee
Ex U. S. Senator Florida
S. R. Mallory
Ex U. S. Senator Florida
Ex CSA Secretary of Navy
James Speed
U. S. Attorney General
Custom Search
Like us on
Return to President Johnsons Proclamation for the end of the
Civil War

Return to Department of the South