Page:Southern Historical Society Papers volume 29.djvu/78
62 Southern Historical Society Papers.
and clear language, asked the conrt what was to be done with the indictment and whether it was to be tried. This last question he said he probably had no right to ask, but he claimed the right to that speedy and public trial guaranteed by the Constitution, and wanted to know when and where that trial was to be had.
Major J. S. Hennessey, Assistant United States District Attorney, said Mr. Chandler, the District Attorney, was absent, and that he was unprepared to answer, and the matter was laid over until the next morning. The next day Mr. Chandler was still absent, and Mr. Hennessey read a paper, in which he set forth that Mr. Davis was not in the custody of the court and was beyond its control; that the District Attorney was so much engaged with official duties he could not attend; and, thirdly, that Mr. Davis was too unwell to stand a long trial at that season of the year. For these reasons he moved the court to lay the matter over until the first Monday in the next October.
Mr. James T. Brady, of New York, replied that it was true that, in a technical sense, Mr. Davis was not in the custody of the court, but that was a plea for Mr. Davis to make if he wanted delay. On the contrary, he waived any such plea and demanded a speedy trial; and that as to the heat of the weather, Mr. Davis could stand it in Richmond as well as at Fortress Monroe, and his counsel would all willingly serve him under any circumstances.
Judge Underwood stated that the Chief-Justice was to preside at the trial and that he could not be present until the first Tuesday in October, to which day the cause was adjourned.
On the yth of June, 1866, Messrs. Charles O' Conor, of New York; Mr. Thomas G. Pratt, ex-Governor of Maryland, representing Mr. Davis; and Mr. Speed, the Attorney-General, representing the Gov- ernment, waited on Chief-Justice Chase at his residence to ascertain whether he would entertain a motion to release Mr. Davis on bail. The Chief-Justice, without any formal application for bail, announced that he considered it improper for him to act in this matter so long as the State of Virginia was under military rule, and that he would not act until the writ of habeas corpus was fully restored and martial law abrogated. His opinion on this subject, prepared by himself, is set out in full in General Johnson's report.
Mr. O' Conor and Mr. Shea, of New York, as counsel for Mr. Davis, also made an application subsequently to Judge Underwood in the Attorney-General's office in Washington. He also declined on somewhat the same grounds as those given by Judge Chase.