164 Evidence- motive. 28 SUPREME COURT REPORTER. |tions of an indictment charging a conspiracy - 9. Testimony as to the character, in respect to suitability for grazing purposes, of land sought to be acquired under the timber and stone act, is admissible on a trial for conspiracy to suborn perjury in the proceedings, where it is insisted that the motive which impelled the formation of the alleged conspiracy was the desire to acquire a large tract of land for sheep-grazing purposes, which acquisition had become neces15. The omission in the timber and stone sary by reason of the fact that a rival had obtained a leasehold interest in a consider-act of June 3, 1878, § 3 (20 Stat. at L. 89, able portion of the land which the alleged conspirators had theretofore used in their sheep-raising business. Evidence-criminal knowledge or in Appeal-prejudicial error- timber and stone lands final proof-necessity of statement of bona fides. chap. 151, U. S. Comp. Stat. 1901, p. 1545), exacting on the final application some of the requirements made necessary on the original application for the purchase of land under that act, of any reiteration of the requirements of the statute regarding a speculative purpose on the part of the applicant, his bona fides, and his intent to acquire the land for himself alone, is equivalent to an express declaration by Congress that these requirements shall not be exacted at the final hearing. Public lands-regulation by Land Department. 16. The authority of the Commissioner of the General Land Office under the timber and stone act of June 3, 1878, § 3, to prescribe regulations to carry out the provisions of that act, does not embrace the power to require an applicant to make oath on final hearing of his bona fides and of the absence of contract or agreement in respect to the title, which Congress has in that act, by express intendment, excluded from the requirements to be observed on such final hearing. Evidence - motive. 17. Evidence of the motive of the entryAppeal - review of verdict-effect of man under the timber and stone act of June failure to request instructions to ac-3, 1878, at the time of final hearing, which, quit. under that act, cannot defeat his right to a patent, is inadmissible, on a trial for conspiring to suborn perjury in the proceedings to acquire the land, to show motive in making the original application. [No. 96.] uary 6, 1908. 12. The rule that a conviction will be reversed where it plainly appears that there was no evidence whatever justifying such conviction, even though no request was made to instruct the jury on the whole evidence to return a verdict of not guilty, will not be applied where it is not certified that the bill of exceptions contains the entire evidence, and the appellate court is not oth- Argued December 5, 6, 1907. Decided Janerwise satisfied that it does, and it is recited in the bill of exceptions that the plaintiff offered evidence during the trial sufficient to go to the jury, tending to prove each and every material allegation of the indictment. Appeal-refusal of requested instructions when not prejudicial error. 13. The refusal of requested instructions in a criminal case, concerning motive and in tent, and the effect of advice of counsel, cannot prejudice the accused, where the trial judge in instructing the jury on the subject went as far in favor of the accused as it was possible for him to go consistently with Indictment construction of ambigu ous allegations. N ERROR to the Circuit Court of the United States for the District of Oregon to review a conviction for conspiring to suborn perjury in proceedings to purchase public land under the timber and stone act. Reversed and remanded for further proceedings. The facts are stated in the opinion. Messrs. Charles A. Keigwin, Charles A. Douglas, W. B. Matthews, and E. B. Sherrill for plaintiff in error. Attorney General Bonaparte, Mr. William R. Harr, and Solicitor General Hoyt for defendant in error. Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 825-832. *Mr. Justice White delivered the opinion | contrary affords no basis for jurisdiction. It of the court: is not asserted that it has ever been finally settled by this court that the constitutional privilege does not prohibit the arrest and This writ of error to review a criminal conviction is prosecuted directly from this court upon the assumption that rights un-punishment of a member of Congress for the der the Constitution are involved. The errors assigned, however, relate not only to such question, but also to many other subjects. If there be a constitutional question adequate to the exercise of jurisdiction, the duty exists to review the whole case. Burton v. United States, 196 U. S. 283, 49 L. ed. 482, 25 Sup. Ct. Rep. 243. The constitutional question relied on thus arose: commission of any criminal offense. The contention must rest, therefore, upon the assumption that the text of the Constitution so plainly excludes all criminal prosecutions from the privilege which that instrument accords a congressman as to cause the contrary assertion to be frivolous. But this conflicts with Burton v. United States, supra, where, although the scope of the privilege was not passed upon, it was de of the United States, of immunity from arrest in consequence of a prosecution and conviction for a misdemeanor, involved a constitutional question of such a character as to give jurisdiction to this court by direct writ of error. It is said, however, that this case differs from the Burton Case because there the trial and conviction was had during a session of the Senate, while here, at the time of the trial, conviction, and sentence, Congress was not in session, and therefore to assert the protection of the constitutional provision is to reduce the claim "to the point of frivolousness." This, however, but assumes that, even if the con On February 11, 1905, Williamson, plain-clared that a claim interposed by a senator tiff in error, while a member of the House of Representatives of the United States, was indicted, with two other persons, for alleged violations of U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, in conspiring to commit the crime of subornation of perjury in proceedings for the purchase of public land under the authority of the law commonly known as the timber and stone act. The defendants were found guilty in the month of September, 1905. On October 14, 1905, when the court was about to pronounce sentence, Williamson-whose term of office as a member of the House of Representatives did not expire until March 4, 1907-protested against the court pass-stitutional privilege embraces the arrest and ing sentence upon him, and especially to any sentence of imprisonment, on the ground that thereby he would be deprived of his constitutional right to go to, attend at, and return from the ensuing session of Congress. The objection was overruled, and William-gress, even although the inevitable result of son was sentenced to pay a fine and to imprisonment for ten months. Exceptions were taken both to the overruling of the preliminary objection and to the sentence of imprisonment. Upon these exceptions, assignments of error are based, which, it is asserted, present a question as to the scope and meaning of that portion of article 1, 6, clause 1, of the Constitution, relating to the privilege of senators and representatives from arrest during their attendance on the session of their respective houses, and in going to and returning from the same. sentence of a member of Congress for a crime like the one here involved, it is frivolous to assert that the privilege could possibly apply to an arrest and sentence at any other time than during a session of Con such arrest and sentence might be an imprisonment which would preclude the possibility of the member attending an approaching session. We cannot give our assent to the proposition. Indeed, we think, if it be conceded that the privilege which the Constitution creates extends to an arrest for any criminal offense, such privilege would embrace exemption from any exertion of power by way of arrest and prosecution for the commission of crime, the effect of which exertion of power would be to prevent a congressman from attending a future as well as a pending session of Congress. The contention that, although there may have been merit in the claim of privilege when asserted, it is now frivolous because of a change in the situation, is based upon the fact that at this time the Congress of which the accused was a member has ceased to exist, and therefore, even if the sentence was illegal when imposed, such illegality has been cured by the cessation of the con At the threshold it is insisted by the government that the writ of error should be dismissed for want of jurisdiction. This rests upon the proposition that the constitutional question urged is of such a frivolous character as not to furnish a basis for jurisdiction, or, if not frivolous at the time when the sentence was imposed, it is now so. The first proposition assumes that it is so clear that the constitutional privilege does not extend to the trial and pun-stitutional privilege. But, even if the propishment, during his term of office, of a congressman for crime, that any assertion to the osition be conceded, it affords no ground for dismissing the writ of error, since our juris 436 *435 It is in tion is confessedly not technically the crime of treason or felony, and is not embraced within the words "breach of the peace," as found in the exception, because "the phrase breach of the peace' means only actual breaches of the peace, offenses involving violence or public disturbance." This restricted meaning, it is said, is necessary in order to give effect to the whole of the excepting clause, since, if the words "breach of the peace" be broadly interpreted so as to cause them to embrace all crimes, then the words "treason" and "felony" will become superfluous. On the other hand, the gov ernment insists that the words "breach of the peace" should not be narrowly construed, but should be held to embrace substantially all crimes, and therefore as in effect confining the parliamentary privilege exclusively to arrests in civil cases. And this is based not merely upon the ordinary acceptation of the meaning of the words, but upon the contention that the words "treason, felony, and breach of the peace," as applied to parliamentary privilege, were com diction depends upon the existence of a tentions are substantially these: constitutional question at the time when the sisted by the plaintiff in error that the writ of error was sued out, and such jurisdic-privilege applied because the offense in quesdiction, as we have previously said, carries with it the duty of reviewing any errors material to the determination of the validity of the conviction. It hence follows that, even if the constitutional question as asserted is now "a mere abstraction," that fact would not avail to relieve as of the duty of reviewing the whole case and hence disposing of the assignments of error which are addressed to other than the constitutional question. Besides, we do not consider the proposition well founded, for, if at the time the sentence was imposed it was illegal because in conflict with the constitutional privilege of the accused, we fail to perceive how the mere expiration of the term of Congress for which the member was elected has operated to render that valid which was void because repugnant to the Constitution. We come, then, to consider the clause of the Constitution relied upon, in order to determine whether the accused, because he was a member of Congress, was privileged from arrest and trial for the crime in question, or, upon conviction, was in any event privileged from sentence which would pre-monly used in England prior to the Revoluvent his attendance at an existing or approaching session of Congress. The full text of the 1st clause of § 6, arti- all arrests and prosecutions for criminal ofcle 1, of the Constitution, is this: "Sec. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House they shall not be questioned in any other Place." If the words extending the privilege to all cases were unqualified, and therefore embraced the arrest of a member of Congress for the commission of any crime, we think, as we have previously said, they would not only include such an arrest as operated to prevent the member from going to and returning from a pending session, but would also extend to prohibiting a court during an interim of a session of Congress from imposing a sentence of imprisonment which would prevent him from attending a session of Congress in the future. But the question is not, What would be the scope of the words "all cases" if those words embraced all crimes? but is, What is the scope of the qualifying clause? that is, the exception from the privilege of "treason, felony, and breach of the peace." The conflicting con tion, and were there well understood as excluding from the parliamentary privilege fenses; in other words, as confining the privilege alone to arrests in civil cases, the deduction being that when the framers of the Constitution adopted the phrase in question they necessarily must be held to have intended that it should receive its well-understood and accepted meaning. If the premise upon which this argument proceeds be well founded, we think there can be no doubt of the correctness of the conclusion based upon it. Before, therefore, coming to elucidate the text by the ordinary principles of interpretation, we proceed to trace the origin of the phrase "treason, felony, and breach of the peace," as applied to par liamentary privilege, and to fix the meaning of those words as understood in this country and in England prior to and at the time of the adoption of the Constitution. In the Articles of Confederation (last clause of article 5) it was provided: "Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on, Congress, except for treason, felony, or breach of the peace." In article 5 of "Mr. Charles Pinckney's Draft of a Federal Government" it was provided as follows (Elliott's Debates, p. 146): "In each house a majority shall constitute a quorum to do business. Freedom of speech and debate in the legislature shall not be impeached or questioned, in any place out of it; and the members of both houses shall, in all cases except for treason, felony, or breach of the peace, be free from arrest during their attendance on Congress, and in going to and returning from it." The propositions offered to the convention by Mr. Pinckney, with certain resolutions of the convention, were submitted to a com mittee of detail for the purpose of reporting a constitution. Section 5 of article 6 of the draft of constitution reported by this committe was as follows: "Sec. 5. Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each house shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it." The clause would seem not to have been the subject of debate. 3 Doc. Hist. of Constitution (Dept. of State, 1900), 500. In Elliott's Debates (p. 237) it is recited as follows: "On the question to agree to the 5th section of the 6th article, as reported, it passed in the affirmative." *And in the revised draft the section was reported by the committee of revision exactly as it now appears. in England for the very purpose of excluding all crimes from the operation of the parlia mentary privilege, and therefore to leave that privilege to apply only to prosecutions of a civil nature. We say this, although the court of common pleas in 1763 (King v. Wilkes, 2 Wils. 151) held that a member of Parliament was entitled to assert his privilege from arrest upon a charge of publishing a seditious libel, the court ruling that it was not a breach of the peace. But, as will hereafter appear, Parliament promptly disavowed any right to assert the privilege in such cases. In Potter's Dwarris on Statutes, p. 601, reference is made to expressions of Lord Mansfield, advocating in 1770 the passage of a bill-which ultimately became a lawwhose provisions greatly facilitated the prosecution of civil actions against members, of Parliament, and restrained only arrests of their persons in such actions. The remarks of Lord Mansfield having been made so shortly before the Revolution, and referring, as they undoubtedly did, to the decision in the Wilkes Case, supra, are of special significance. Among other things he said: "It may not be popular to take away any of the privileges of Parliament, for I very well remember, and many of your Lordships may remember, that not long ago the popular cry was for an extension of privileges, and so far did they carry it at that time that it was said that privilege protected members from criminal actions, and such was the power of popular prejudice The presence of the exact words of the exover weak minds that the very decisions of ception as now found in the Constitution, some of the courts were tinctured with that in the Articles of Confederation, and the The laws of this country employment of the same words "treason, allow no place or employment as a sanctuary felony, and breach of the peace," without for crime, and where I have the honor to discussion, in all the proceedings of the convention relating to the subject of the sit as judge neither royal favor nor popuprivileges of members of Congress, demon- lar applause shall ever protect the guilty. strate that those words were then well known as applied to parliamentary privilege, and had a general and well-understood meaning, which it was intended that they should continue to have. This follows, because it is impossible to suppose that exactly like words, without any change whatever, would have been applied by all those engaged in dealing with the subject of legislative privilege, unless all had a knowledge of those words as applied to the question in hand, and contemplated that they should continue to receive the meaning which it was understood they then had. A brief consideration of the subject of parliamentary privilege in England will, we think, show the source whence the expression "treason, felony, and breach of the peace” was drawn, and leave no doubt that the words were used | doctrine. . Members of both houses should be free in their persons in cases of civil suits, for there may come a time when the safety and welfare of this whole empire may depend upon their attendance in Parliament. God forbid that I should advise any meas ure that would in future endanger the state. But this bill has no such tendency. It expressly secures the persons of members from arrest in all civil suits." Blackstone, in 1765, discussing the subject of the privileges of Parliament, says (Lewis's ed. *165): "Neither can any member of either house be arrested and taken into custody, unless for some indictable offense, without a breach of the privilege of Parliament." And, speaking of the writ of privilege, which was employed to deliver the party 168 28 SUPREME COURT REPORTER. out of custody when arrested in a civil suit,, of January, 1641, "They were far from any he said (*166): "It is to be observed that there is no precedent of any such writ of privilege, but only in civil suits; and that the statute of 1 Jac. I. chap. 13, and that of King William (which remedy some inconveniences arising from privilege of Parliament), speak only And therefore the claim of civil actions. of privilege hath been usually guarded with an exception as to the case of indictable crimes; or, as it has been frequently expressed, of treason, felony, and breach (or surety) of the peace. Whereby it seems to have been understood that no privilege was allowable to the members, their families or servants, in any crime whatsoever, for all crimes are treated by the law as being contra pacem domini regis. And instances have not been wanting wherein privileged persons have been convicted of misdemeanors, and committed, or prosecuted to outlawry, even in the middle of a session; which proceeding has afterwards received the sanction and approbation of Parliament. To which may be added that a few years ago the case of writing and publishing seditious libels was resolved by both houses not to be entitled to privilege; and that the reasons upon which that case proceeded extended equally to every indictable offense." The first volume of Hatsell's Precedents, published in April, 1776, is entitled as "relating to privilege of Parliament; from the earliest records to the year 1628: with observations upon the reign of Car. I. from The material 1628 to 4 January 1641." there collected has been frequently employed in support of the statement that the terms "treason, felony, and breach of the peace" were employed by the Commons in a broad, And in the and not in a restricted, sense. concluding chapter (V.), after stating (4th ed. 205) "the principal view, which the House of Commons seems always to have had in the several declarations of their privileges," the author says (p. 206): "Beyond this, they seem never to have attempted; there is not a single instance of a member's claiming the privilege of Par liament to withdraw himself from the criminal law of the land: for offenses against the public peace they always thought themselves amenable to the laws of their country: they were contented with being substantially secured from any violence from the Crown, or its ministers; but readily submitted themselves to the judicature of the King's Bench, the legal court of criminal jurisdiction; well knowing that 'Privilege which is allowed in case of public service for the Commonwealth must not be used for the danger of the Commonwealth;' or, as it is expressed in Mr. Glynn's Report of the 6th endeavor to protect any of their members, May, in his treatise on the Law, Privileges, Proceedings, and Usage of Parliament, first published in 1844, says (10th ed. p. 112): "The privilege of freedom from arrest has always been limited to civil causes, and has not been allowed to interfere with the administration of criminal justice. In Larke's Case, in 1429, the privilege was claimed, 'except for treason, felony, or breach of the peace;' and in Thorpe's Case the judges made exceptions to such cases as be for treason, or felony, or surety of the peace.' The privilege was thus explained by a resolution of the Lords, 18th April, 1626: "That the privilege of this house is, that no peer of Parliament, sitting the Parliament, is to be imprisoned or restrained without sentence or order of the house, unless it be for treason or felony, or for refusing to give surety of the peace;' and again, by a resolution of the Commons, 20th May, 1675, 'that by the laws and usage of Parliament, privilege of Parliament belongs to every member of the House of Commons, in all cases except treason, felony, and breach of the peace.' "On the 14th April, 1697, it was resolved, "That no member of this house has any privilege in case of breach of the peace, or forcible entries, or forcible detainers;' and in Wilkes's Case, 29th November, 1763, although the court of common pleas had decided otherwise, it was resolved by both houses, ""That privilege of Parliament does not extend to the case of writing and publish ing seditious libels, nor ought to be allowed to obstruct the ordinary course of laws in the speedy and effectual prosecution of so heinous and dangerous an offense.' "Since that time,' said the committee of privileges in 1831, 'it has been considered as established generally, that privilege is not claimable for any indictable offense.' "These being the general declarations of the law of Parliament, one case will be sufficient to show how little protection is prac tically afforded by privilege, in criminal of fenses. In 1815, Lord Cochrane, a member, having been indicted and convicted of a conspiracy, was committed by the court of King's bench to the King's bench prison. •441 |