Benjamnin F. Butler, Butler's Book: Autobiography and Personal Reminiscences of Major-General Benjamin Butler

[916] lawyer to consult with him on this question. We talked over the difficulties of this position and the effect. As it would not do to try Mr. Davis by a negro jury in Virginia, and as such a trial, continuing perhaps at great length and occupying the public mind, might cause great bitterness of feeling especially in the South, he asked me if I could devise a way in which it might be best legally brought to trial so as to give him a fair trial, and requested that I should give some attention to that subject.

After reflection and examination of the subject, I suggested to him that this might be done: Davis, while making his escape, was captured as a prisoner of war. He was confined in Fortress Monroe, a garrisoned fort of the United States in the military district of Virginia, where his criminal acts, if any, had been perpetrated, then and ever afterwards under martial law. As the war still existed, the President as commander-in-chief might call a military commission in due form to advise him what should be done in regard to the offences of Mr. Davis against the Constitution and laws both civil and military. That commission should be composed of five, seven, or nine, of the major-generals in the army, to be selected by the President, to pass upon the facts and give him advice as to what he should do. This is all that a military commission can do, and is what was done in the case of Major Andre, a captured prisoner of war in the Revolution, the commission in his case being headed by General Lafayette. And as to the conduct of such a commission on the trial, I supposed that the fact of my being the senior major-general of the army might put me at the head of it. If so, I should conduct it substantially in this way: Charges should be preferred against Mr. Davis, of committing treason in carrying on war against the United States in the district of Virginia, and the overt acts alleged against him should be his reviewing of troops in arms against the United States and giving orders to them in person as the commander in that district. The proof of those facts would be easy and certain even if they were denied. The other fact necessary for a conviction would be his oath of office as Secretary of War of the United States wherein he had sworn to bear true faith and allegiance to the Constitution of the United States.

I assumed that when Mr. Davis was brought before that commission duly convened under proper orders, and allowed counsel of his own