Mr. HOWARD. Mr; President. with great respect for the legal attainments and high character of the AttyGen, I must take the liberty to dissent from his view of the law of treason as presented in his letter to the president, and beg the indulgence of the Senate for a moment in stating the grounds for my dissent. Section 3 of article 3 of the Constitution, as framed in 1787, declares that “Treason against the U.S shall consist only in levyinswarmiust them. oradhering to their encmies, giving the maid and comfort. io person shall heconvictedo treasonunlcssnn the testimouy of 2 witnesses of the someovert. net, or on confession in open court, It is quite plain that in this provision 2 kinds of treason are defined; the 1st consists simply and purely in levying war against the U.S. As treason can be committed only by a citizen owing allegiance to the U.S., this kind of treason must be perpetrated by a citizen, who is a rebel and traitor seeking by levying war to overthrow the authority of the Government. It is insurrection or reellion, in the properand technical sense of the laws of nations. The other kind of treason consists not in levying war a inst the U.S. in the form of a rebelion or insurrection, but in adhering to the foreign enemies of the U.S., and in giving aid and comfort to those enemies. The crime in the 1st case is the levying of a rebellious war; in the 2nd case it is the act of adhesion to our foreign enemies, evidenced or demonstrated by rendering those ene mies material aid and securityin prosecution of their hostilities against us. This overt act of adhesion might undoubtedly, and in most in stances would, be committed within the limits of the U.S.; and thereis not the slightest ground to doubt the power of Congress under the unamended constitution to bring the offender to trial at any place they might select for the trial, for in section 2 of article 3 it is provided that. “ The trial of all crimes, excc tin cases ofim eachment shall be byjury and suei trial shall be old in the State wheresaid crimes shall havu beencommit ted; but where not committedwithin an State, the trial shall be at such place or places as the Congress may by law have directed.” By the 6th amendment to the constitution, made in 1780, it is declared that In all criminal prosecutions the accusedshall on ioy the right to aspeedy and public trinl by an impar tial "ury of the State and district wherein the crime shali have been committed, which district shall have been previously ascertainedby law.” rize. Now, as I understand the Attorne General, he must hold that both these kinds o treason for this amendment makes no distinction as to the place or mode of trialare to be tried within the district wherein the crime was committed; and that as to the crime of adhesion to foreign enemies, the clause 1 have cited from the una mended constitution is repealed and annulled by the amendment. His proposition must necessarily lead to this result. The amendment makes no excetion in favor of treasons committed out of the limits of the U.S. It declares, in general terms, that in all criminal prosecutions the trial shall be had in the district wherein the crime shall have been commit ted and if it was not committed within any district the conclusion seems irresistible that it cannot be had at all, and that hence Congress has been striped of the power plainly given by the unamenced instrument. It is impossible to suppose that the learned AttyGen can accept a logical result so dangerous to the public security and interests. Surely he will not upon reflection insist that an American citizen who joins the foreign enemies of the U.S. in a foreign country, and there gives them aid and comfort, thus committing the overt act of treason as defined by the constitution, is not triable and punishable for that high crime. He will not so construe the instrument as to give to every American citizen an open license to join the enemies of his country in foreign lands or on the high seas under which he can ese. of the doom of trai tors. This would be such a narrow, strict construction as would bring upon us the derision of all other nations. I put both kinds of treason upon the same footing as to the place of trial because the constitution so places it. No argument can be urged as to the one kind that is not applicable to the other; and if I have shown the absurdity of the doctrine of actual corporeal presence in the case of an act of adhesion in aforeign country, it is worth our while to consider seriously whether it is notequally faulty as applied to, acts of levying war y rebels. Au overt act oflevyingwar must be commit ted, for the clause requires this overt act to be proved by 2 witnesses. This overt actis the evidence of the treason, of the crime charged, but is not necessarily the crime. On the trial of Colonel Burr fortreasonin 1807, before Chief Justice Marshall, that profound jurist, taking this clear distinction, remarked: “Tho cpunsel for the prosccution have chargedthose engagedin the defensewith considering theovert act as trenson, wherens it ought to be consideredsolelyas the evidenceof the treason; but the counsel for the prosecution seemthemselvesnot to have sufficiently adverted to this clear principle, that though the overt act may not be itself the treason, it is the sole act of that treasonwhich can produce conviction. It is the sole pointin issuebetweentheparties and the only division of that point, [the overt act] if the expression be allowed, which the court is now examining, is the constructive presence of the prisoner at the fact charged.” The fact charged was the levying of war against the U.S. on Blennerhassetts Island, in the Ohio river, but within the State of Virginia. Now, if it be a clear principle that the overt act is not necessarily the treason, but only evidence of it; that is to say, following out the reasoning of the Chief Justice, if the overt act may consist of something which, considered by itself and unconnected With an act of war, is not treason, but becomes evidence of treason only when connected by intention and conspiracy with the act of levying war, and if this overt act may be done, as it is often done, in a State or district different from the one in which the war is actuall levied; ifthe overt act may not necessarily e the whole of the corpusdelicti, (and the Chief Justice asserts this emphatically;) if, in other words, the accused is not or need not be put on trial for the mere overt act except as connected with and forming apart, so to speak, of the c delicti, the levying of war; then undoubtedly the overt act may be committed in one district and the main act oflevying of war in another; so that thisprincipal act draws after it the overt act committed by the accused, thus making both one act and in the cases I have at of the battles in Ohio and on the Canadian rontier, the commander of the rebel forces would be to all intents and purposes present as principal at the act of War. It is utterly impossible to an pose that any enlightened courtwould not hold him to be present according to the ancient and wellestablished principles of criminal law. The rule is that he is present at the commission of a felony who is near enough to the spot to aid and abet in it with the intention to render aid and in a condition to do so. Foster, ldawkins, Hale, all concur, in stating the rule to be that “ In order to render a person an accompliceand a principal in fclony, lic must be aidinghnd nbettin at the fact or ready to atfordassistanceif necessary. Judge Marshall adds the words: “Th at is, at the particular fact which is charged, he must, be ready to give immediate and direct assist aucc and Foster adds, what is the undoubted rule of law: “That when the law requireth the resonesof the accompliceat the perpetration of the act, in order to render him a printlpnl, it doth not require a strict. actual, immediate presence. such npresenoeaswould make him an eyeor car Witnessof what passeth.” No author has undertaken to state at what precise distance the accomplice must be from the scene in order to be present as a principal, for it is in the nature of things impossible to lay down any rule as to the distance or location of the person who is vresent. He must, of course, e leagued in the conspiracy and participate in the common object of the conspira tors, and he must be ready to render assistance if necessary. This is the definition which the law gives of presence. It assumes not to go beyond it, orto establish metes and bounds; and the question whether the circumstances in proof come up to this definition, the question whether they make out presence at the perpe tration of the crime, is not a question of law, but of fact for the jury, not the court, to pass u on. If it be said that the accused must be actually in the district at the time and place of the commission of the act of treason, my reply is that the constitution does not say so., It says his trial shall take place in the State or district wherein the crime was committed; and I have already shown that his being out of the district at the time is really immaterial; at any rate, it is not in itself such negative evidence as to relieve him from the charge of being present, aiding and abetting. In order to commit the crime he must be present; that is, ready and able to render assist ance. Legal presence cannot, therefore, be any more conned within geographical limits than acts of aid and assistance can be so confined; and surely the law does not assume to overrule the laws of nature, and say that an act which, by them, really and in point of fact gives such aid and assistance, does not accomplish that end because done within certain geographical limits. such an idea defeats and destroys the real doctrine of presence as under stood at the common law and as exounded by all courts and accredited writers. T 10being engaged in the general conspiracy, and being ready and able to assist in the perpetration of the crime, are the elements of egal presence; and whether that presence has been made out by the proofs is s. nestion not for the court, but for the jury. very fact and circumstance tending to show that the accused was engaged in the general conspiracy, was ready and was able to contribute aid, and did in some way contribute aidin however remote a degree, and however minutely, as Chief Justice marshall expresses itin the commission of the crime, is admissible evidence to the jury of the guilt of the accused, of his legal presence as principle To deny this is to impair and be ittle the rule, to fritter it away, to do rive it of 1/2 its ellicacy by refusing it app ication to cases which must have been in contemplation of the authors of the constitution and this doctrine of the legal presence of the offender and his guilt as principal in the jurisdiction where the crime is committed is in accordance with the decisions of American as well as English courts. The books of each country abound in cases showing it to be the rule of law that where the crime has been begun in one jurisdiction and is consummated in an other, the act is, in contemplation of law, done where the crime becomes complete; and in case of a shot fired from one foreign country into another, bywhich a person in the latter is killed; or of a shot fired from on board a vessel of one country to that of another on the high seas, by which a person is killed on board the latter; or of the crime of couuterfeiting or forging coin meneed in one State and consummated in another by agents, thouvh innocent, of the of fender; or of poison administered in one jurisdiction and destroying its victim in another; and even of a mortal blow struck in one country, of which the subject dies in anotherall these cases go to show that in law the place of the consummation of the crime is the place where the principal is present and incurs the guilt. An it seems to me the rule is the plain and obvious dictate of good sense and common justice, and stands in need of no labored argument to give it tactical effect. It is true that avis was in Virginia at. the time the battles were fought in Ohio and Pennsylvania, and probably in Richmond. But that he was leagued in the conspiracy to fight those battlesand all others that occurred all will admit, for he was the commander of all the rebel forces. That it was done under his commission and therefore by his procurement there can be no doubt, for he was the responsible head of every rebel military movement. That he was ready and able, though at Richmond, to render aid and assistance to the rebels who carried war into those States; that he actually did it by sending troops and supplies of money and arms, by couriers, spies, and telegraphic dispatches, and all the usual methods practiced by commanders in the field, cannot, I suppose, be doubted and if he was thus ready and able and actually did such acts by way of niding and abetting in those battles, he was in law and common sense as much “ present" at the commission of the crime in those States and as much responsibleas principal in them as was John Morgan. 1866. 569 or RobtELee, his instruments. He was a principal traitor everywhere. The commissions e gave to his subordinates, his instructions to them, whether general or)articular, authorizing acts of hostility, coupled with the irresistible power vested in him as commanderinchief made his presence ubiquitous, extendingit and the guilt implied by it to every act of war by land or sea. The rule itself, devised by reason for the protection of civil society, as laid down by the ancient authors I have cited, feels no stretch, no violence, in being made to cover all such cases, and no construction of the rule falling short of this can come up to the true purposes of the constitution. I be not to be misunderstood; I am speaking of Davis as president and commanderin chicf, having the powers notoriously possessed by him, pervading, despotic, resistless. While I hold him to have been everywhere presentas a principal, in the sense of the rule of law, and conuently triable wherever the “crime was committed" present in Virginia, in Tennessee, in Kentucky, in Ohio, in Pennsylvania, and in Vermont, (if the St.Albans raiders acted under his commission) I do not claim that every other rebel, officer and soldier, was “ constructivel y present”at the same times and places. The AttyGen, in his letter to the president, objects to what he denominates “constructive presence, ” that itimplies, if carried out to its ogical results, that every rebel was presentand responsible for everyact of war committed by any other rebel of whatever grade or condition. 1his, I must say, is a forced inference, and not justified at all, either by the reason of the ruleor the terms in which it is usually expressed. To be present is to be aiding and abetting at the fact and ready to afford assist once; but it is not necessary thutthe party should be an eye or car witness. All that is required is that he should be so situated that he can remder assistance, and that he be willing and intend in to assist. vow, it is notorious that the rebellion has been attended on the rt of Davis, as on our own part, by a division of territory into sundry military Depts, to which were assigned separate Deptal commanders, each with special powers over the troops assigned him, and independent of all others exceptthe commander inchief, and each army has been subjected to the orders of a particular general responsible only to his superior in command. To hold, therefore, that each of those commanders, much less the soldiers under him, was present and responsible for whatever was done by any and all other persons in romoting the warpresent at overt acts of which they knew nothing, and in which they could not participate if they would, is openly to violate the rule itself. It is to confound the distinction between the law and the fact, to force the rule to imply a different state of facts from that which it contemplates. Surely, neither Hood nor his men on the east side of the Mississippi were uilty of being present at the operations of Kir y Smith in another Dept on the west side and why? Simply because they were not ready, able, willing, and intending to aid and assist him. They were not, as to Smiths particular overt acts, his accomplices, while at the same time Davis, who was able and willing and actually rendered aid, was the accomplice of each, and the accomplice of every man who raised his arm against his country during the war. He accepted that bad eminence; Lee accepted the next rank in the randeurofinfamy, crfidy, and murder; Breck inridge another, and ) others still had their separate parts assigned them in the great drama of treason and civilWar. Surely the AttyGen does not mean to say that the rule of law relating to presence, as I have stated it from the books and from the highest adjudications, would make each of these subordinates as well as his men criminally resonsible for what all the others did and yet iy using the expression “constructive presence, ” unknown both to the constitution and to the common law as it respects treason, he leaves it to be inferred that some class or party among us embrace the ab surd opinion that every rebel, high or low, was in contemplation of law present and responsible at the commission of the crime by every other, though in no situation to aid and abet that other; and seems to hold that while this constructive presence is legal absence, actual presence must imply, if not personal presence and immediate personal participation in the overt act, at least persona presence and participation within tie boundaries of the State or district where the crime was actually com. mitted. But properly speaking there is no such thing as constructive presence known to the law of treason, nor, indeed, any other felony. Those alone are present who either committhe criminal act or are leagued in the conspiracy and so situated in reference to that act as to be ready, able, and willing to assist in it. In all felonies except treason those who incite the crime or render assistance afterward, but who are not so situated. at its perpetrntion, are accessories either before or after the fact. But as in treason the crime consists not in such accessoriul acts but only in acts of levying war, there are none but principals, and a principal in felony must of course be one who is present. The term “constructive presence, ” therefore, as employed by the learned AttyGen, if intending anything not implied by the accepted definition of legal presence, means exactly the contrary. Legal presence, I cannot doubt, comprehends, in the case of a commander, all military orders and acts of procuring, or, in other words, causing acts of war to be committed by his soldiers or subordinates, wherever given and done, and render him triable in any judicial district in his Dept where those orders are executed or those acts result in levying war; for this presence results directly from the military authority he holds and exercises. This authority is just as effectual in one place within his Dept as in another. The doctrine of legal presence was devised for the purpose of testing and making out the guilt of a traitor, not to screen him. It was for the great purpose of protecting society and GOVernment from tumult, an archy, and violence, not “to screen the guilty and to varnish crime.” It was devised as a plain, practical rule of common sense by which courts were to hold the man guilty who was really so; not to enable the powerful, the cun ning, and the wary to “entangle justice in the net of law, ” and esca o her falling air by the dexterous maneuver ot darting from one place to another. I cannot resist the conclusion that Davis may be legally tried in any judicial district where hostilities have takenplace; and that each of his subordinate generais may in like manner be tried for all the acts of their respective commands committed in their respective Depts. I see no difficulty in applying the ordinary doctrine of le 1 presence to all these cases. But upon the (frictrine of the Attoriiey General I foresee no prosecutions for treason. I foresee that justice will be cheated of her due of victims whose lives have been a thousan times forfeited to their country by the crimes they have committed against her laws, and all other laws, human and divine; offenders whose condign punishment for treason against that country is demanded by the outraged feelings of every true man in the land, by the dying groans of the myriuds of the loyal who have fallen, by the cries of the widows and orphans left to mourn and to suffer, by the dignity of this nation as one of the family of nations, and by the voice of eternal justice, without whose favor neither a nation nor an individual can prosper. It is true the war has ceased to drench the earth with blood; the rebels have laid down their arms; they are conquered, but with a supercilious sneer at their conquerers, kindly and condescendingly assure them that the “accept the situation, ” that southern indepenence is a failure, and that they are willing and ready again to be represented in Congress; but we all know that at heart they hate and detest the Government they betrayed 4 years ago, and which now holds them in the iron grip of conquest. They hate it, and hate the loyalpeople who uphold it, for the same reason at any criminal who has sought the life of an innocent man hates the man who has brought him to jus tice. They hate it because their failure to shake off its authority has deeply stung their pride and brought a total eclipse upon their vuinglory and their vanity; because, seeing among themselves the desolation of war, and the poverty, starvation, and beggary it has brought to their own doors, the recognize in these the lasting, the unanswerahle evidences of their own folly, weakness, and madness and as they gaze upon the picture their hearts derive comfort only from a closer attachment to the lost cause an to the leaders and demigods they have so long worshiped. It is, sir, utterly vain to think of obtaining a conviction of those leaders at the hands of a jury madeup of such materials. They would be far more likely to brin inaverdict of guilty against the judgeon the Trench, the POTUS, or some of the heads of Dept. At any rate I regard it as wholly out of the question to try and convict Davis or any other rebel leader of the crime of treason in any rebel State, for the plain reason that no impartial jury can be there found to try him. The doctrine of the AttyGen, if it shall be adhered to, practically defeats it; defeats the just expectations of the country, and sets aside all that the President has said about making treason odious. I predict, sir, that no such conviction, no such trial, will ever be had. Treason will not thus be made odious, but will go without day. The President, in his messa e at the opening of the session, very patriotica l remarks that persons who are charged with the commission of treason should have a fair and impartial trial in the highest tribunals of the country, in order that the constitution and laws may be fully vindicated, the truth clearly established and allirmed that treason is a crime, that traitors should be punished, and the offense made in famous. but how can this be done upon the principles oflaw held by the AttyGen? Iowever well intende by the President, this declaration must remain without any practical value whatever so long as it is hampered and loaded down by official construction of the constitution which renders it uselessn construction which has never received the sanction of the Supreme Court, nor fully of any circuit court "of the U.S., because the question has never been fully and fairly presented to them. N o, sir, this style of showing that treason is a crime, and making it infamous, is a mere delusion. It is recommending to be done that which will not be done, and cannot be done under the doctrines now prevailing in the office of the AttyGen; and it only remains for the President to do what is recommended by the resolution under consideration, and at Davis and his fellowprisoners on trial he ore a court, and for a crime as to which he at least needs no professional advice at this time.