The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-01-16
Constructive TreasOn--Place OF Trial.

From the World
The recent letter of the Attorney General of
the United States, transmitted to the Senate by
the President in reply to resolution inquiring,
among other things, why Jefferson Davis has not
been arraigned on the charge of treason, con
taius the following paragraph s..
The question then, arises, Where and when must
the trial thereof be hedl In that clause OF the Con-
stitution mentioned in the resolution or the Senate,
1t is plainly written that they must be held in the
State and district wherein the crime shall have
been committed" know that many persons OF
learning and ability entertain the opinion that the
Commanderin-C Chief of the Rebel armies should be
regarded as cousttutonaliy present with all the in
SUI gents who prosecuted hostilties and made raids
the nertneTnland southern borders of the loyal
States This doctrine of constructive presence, car
rled out 10 its logical consequences would make all
who had been connected with the Rebel armies liable
to trial in any States and district into which any
cursion Not being persuaded Of the correctness of
that opinion, but regarding the doctrine mentioned
as OF doubtful constitutonality, have thought it
not proper TO advise you to cauve criminal proceed
ihgs TO be instituted against Jefferson DAVIS or any
other insurgents in States districts in which they
were not actually present during the prosecution of
hostiites. '--1E pa 20
We are curious to know the names of the
'many persons of learning and ability" who are
referred TO by Mr.. Speed. .. --
In the case of Bollman and Swartwout two of
the alleged aecomplices of Burr, brought before
the Supreme Court in 1907 on writ of habeas
corpus, that tribunal announced, as American
l. To constitute treason, war must be actually
LEVIED .-A"Gt .l-s.iiil.4I At -a.HI la ~
2. A conspiracy to subvert the Government by
3. II a body OF men be actually assembled for the
purpose OF efecing by force, REASONABLE design,
all who perform any part, however minute and
however remote from the scene OF action and who
are actually eagued in the general conspiracy are
traitors. -
II an ofense be committed on land, the offender
must be tired by the Court having jurisdiction
that locality where the ofense was committed. v
1t was but a short time after the adjournment
of the court which pronounced this opinion
that Burr himself was arraigned at the bar of
the Circuit Court of the United States sitting in
Richmond, and Chief Justice Marshall presiding.
| One count Of the Indictment charged that the
| prisoner, with a number of unknown persons,
| levied war on Blennerhassetts Island in the
| county of Wood, in the District OF Virginia; and
| another count added the circumstance of pro-
| ceeding from that island down the river for the
! purpose of seizing New Orleans by force The
! testimony addueed on the part OF the United
States to prove the overt act laid in the indict-
|. ment made it clear, and the attorney Tor the
! prosecution admitted, that Burr 1sas not present
! when that act was committed, but was great
| distance of, and in another State. In this
| posturei OF the case it was proposed by the
| Government 70 connect the accused with the
| transactions on Bennerhassetts Island by col
! lateral testimony OF opinions expressed, inten-
! tions manifested, and eXtrinsic circumstances
happening out OF the district To this proposal
| objection was made by the defense and the
| stress of the whole case, it afterwards turned
out, lay in this objection. Mr.. Writ spoke of the
objection in these words;- ISL. 4 -aassl r
| ''The motion is q bold and original stroke in
| the noble science of defense. 1t marks the
| genius and hand of a master. For it gives to the
prisoner every possible advantage, while it gives
| him the full benefit of his legal defense. It cuts
off from the prosecution ali that evidence which
goes TO connect the prisoner with the Assem-.
blage on the island, to explain the destination
and objects OF the assemblage, and to stamp
beyond controversy the character of treason
upon it." .r ..... ..
The 'rnaster" alluded to by Mr. Writ was
doubtless the prisoner at the bar, who was
throughout that long and splendid display, on
beth sides, OF mastery management, legal acu-
men, and forensic eloquence, the inspiring and
controlling spirit of the defense For we remem-
ber that in the report of the trial taken in short
hand by Robertson, it was Burr who first an
nounced TO the Court objection to the introduc-
ton OF the collateral testimony.
II The discussion which arose upon the motion
/, lasted week. All the counsel employed spoke
y at length. Wickham opened; Randolph followed
q on the same side; McRae and Writ replied for
the prosecution. Bolts came next for the ac.
Cused; Lee and Martin spoke in turn; and Ran,
dolph closedthe argument of nearly five hundred
printed octave pages. The English Language
nowhere oilers such a full and perfect exposition
of the law of treason. II r.
The Chief Justice, in the beginning of his long
opinion a!ludes to the case OF Bollman decided
In the Supreme Court, aud said:--
''some gentlemen have argued as II the Su