Argument for Plaintiff in Error.

202 U. S.

United States v. Mouat, 124 U. S. 307; United States v. Smith, 124 U. S. 532; In re Greene, 134 U. S. 377; McPherson v. Blacker, 146 U. S. 35, 36.

The power of "each House" to judge of the qualifications of its own members, and to establish rules for its proceedings, to punish members, and, "with the concurrence of two-thirds," expel a member, is not strictly speaking a legislative, but a judicial function, and, unless the act of 1864 can be said to be "necessary and proper for carrying into execution" these functions, it is manifestly unconstitutional. Mr. Madison, The Federalist, vol. 1, p. 273, No. 48; Marbury v. Madison, 1 Cranch, 391; 1 Tucker on Constitution, 368.

The nature of the implied power exercised as a means must be legitimate; in other words, no power will be implied as a means to an end which is not legitimate; that is, not within the powers granted by the Constitution. The ancillary legislation must be a necessary and proper means to accomplish an end which is clearly constitutional. See Anderson v. Duan, 6 Wheat. 233.

The express power conferred excludes the idea of any implied power not necessary and proper for carrying into execution the express power.

There is still another view of the act of 1864 which would seem to be an unanswerable reason to sustain the contention that it is unconstitutional. It did not require the concurrence of two-thirds of either or both Houses to pass it. It might become a law with the consent of a bare majority of each House. While the act does not in terms provide for forfeiture of office, or expulsion, it requires a judgment, upon conviction, that the person convicted shall be "rendered forever thereafter incapable of holding any office of honor, profit or trust under the government of the United States. The effect of the judgment, if the act is valid, is to expel the Senator from the Senate. Lowe v. Commonwealth, 3 Metc. (Ky.) 241; 1 Tucker on Constitution, 429.

By the act of 1864 Congress accomplishes a result which

202 U. S.

Argument for the United States.

the Senate may only do "with the concurrence of two-thirds;" and by an act which is not consistent with the letter and spirit of the Constitution. See also Von Holst, Constitutional Law, 102.

The act of 1864 defines a political offense. It is not an attempt to control the conduct of the citizen, but that of the Senator. See Story on Constitution, § 797.

Mr. Charles H. Robb,. Assistant Attorney General, for the United States:

The plea in bar was not well taken. Count three of the former indictment charged receipt from Mahaney, whereas counts three and seven of the present indictment charged receipt from the corporation. But the effect of granting a new trial at the defendant's instance was to nullify entirely the proceedings at the former trial, including the verdict of acquittal on the third count. Trono v. United States, 199 U. S. 521.

No error was committed in limiting the number of peremptory challenges to three; under § 819, Rev. Stat. Congress, having power to do so, denominated the offenses defined by § 1782, R. S., misdemeanors. Bannon v. United States, 156 U. S. 454; Reagan v. United States, 157 U. S. 301; Considine v. United States, 112 Fed. Rep. 342; S. C., 184 U. S. 699; Jewett v. United States, 100 Fed. Rep. 832; Tyler v. United States, 106 Fed. Rep. 137, 138; United States v. Coffersmith, 4 Fed. Rep. 198; United States v. Daubner, 17 Fed. Rep.794.

It not appearing that defendant exhausted his three challenges, he cannot therefore complain. Insurance Company v. Hillman, 188 U. S. 208, 211; State v. Fournier, 68 Vermont, 262, 266; Allen v. Waddill, 26 S. W. Rep. 273; United States v. Marchand, 12 Wheat. 480; Hayes v. Missouri, 120 U. S. 68, 71.

There was sufficient evidence to go to the jury, the present record containing additional evidence to that presented on the former trial. The court is not concerned with its conclusiveness.

The unlawful agreement was made at St. Louis, where Bur

Argument for the United States.

202 U. S.

ton's offer was accepted. Taylor v. Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 424; Garretson v. North Atchison Bank, 47 Fed. Rep. 867; Phenix Ins. Co. v. Schultz, 80 Fed. Rep. 343; Hammond on Contracts, § 42, n. 22.

No error was committed in the admission or exclusion of evidence.

The charge of the court set the entire case, as presented by the evidence, fairly and substantially before the jury. This was sufficient. Railway Co. v. Whitton, 13 Wall. 270, 290; Tweed's Case, 16 Wall. 516.

The agreement to receive, and the receipt of compensation constituted two offenses. Clure v. United States, 159 U. S. 590, 595; United States v. Rendskopf, 6 Biss. 259; Fed. Cas. 16, 165.

Section 1782, Rev. Stat., does not interfere with the constitutional rights of the Senate or of the individual Senator. It prescribes no new qualifications for a Senator, nor does it interfere with the constitutional control of the Senate over him. It merely makes it unlawful for a Senator to do that which he has no moral nor constitutional right to do.

Senators have no constitutional right to appear for hire and against the interests of the Government before any Executive Department or bureau in any matter in which the United States is interested. In fact, that is plainly inconsistent with their Senatorial duties and obligations. With the performance of their constitutional duties as Senators no act of Congress could properly interfere. But when they forsake those duties and engage in matters plainly in conflict with their official obligations they must be amenable to law like other servants of the Government.

The Constitution itself recognizes this amenability of Senators and Representatives. They are privileged from arrest during their attendance at the session of their respective Houses in all cases "except treason, felony, and breach of the peace." Art. I, sec. 6. These words, Mr. Justice Story said, are the same as those in which the privilege of members of the

202 U. S.

Argument for the United States.

English Parliament was expressed, and, as all crimes are offenses against the peace, the phrase "breach of the peace" should be construed in accordance with the parliamentary rule to extend to all indictable offenses. 1 Story on Const. $ 865.

The provision of section 5 article II which authorizes each House to compel the attendance of absent members must be construed in the light of the above provision, which recognizes that members may be arrested for crime and the Senate thereby deprived of their attendance.

Plaintiff in error concedes that a Senator is not above the law the criminal statutory law--but says that "Congress has no constitutional power, by legislation, to place any limitations or restrictions upon his official conduct as a Senator."

Section 1782 places no restriction upon the "official conduct" of a Senator. Section 1782 applies to individuals. It is aimed at all persons holding positions of trust or confidence in the service of the United States. The fact that it specifically refers to a Senator cannot invalidate it. A general law against bribery or other crime would, counsel admit, include a Senator. Would the enumeration of Senators among those included in such a law invalidate it?

The provision of section 1782 that every person offending against the statute "shall, moreover, by conviction therefor, be rendered forever thereafter incapable of holding any office of honor, trust, or profit under the Government of the United States," is not open to constitutional objection. It does not interfere with the authority of the Senate over its members, because the position of Senator cannot be construed to be an office under the Government of the United States within the meaning of that section. Story on Const. § 793.

The decisions of this court hold that those only are officers of the United States in a constitutional sense and in the sense in which those words are employed in the statutes, who hold their places by virtue of an appointment by the President or a court of law or the head of a Department. United States v.

Germaine, 99 U. S. 508; United States v. Mouat, 124 U. S. 307; United States v. Smith, 124 U. S. 532.

There is no distinction between "officers of the United States" and the language of the statute "office under the Government of the United States."

If Congress had intended that the effect of conviction of violating section 1782 should be to unseat a Senator or Representative, it would have said so. Certainly the court will not twist the words used from their usual sense so as to render the statute unconstitutional. Properly read, the statute leaves the status of a convicted Senator as a member of the Senate to the determination of that body. They may or may not expel him, as they see fit. In this respect section 1782 is no different from any other statute. It was surplusage for the court to include this declaration of the statute in its sentence. The disqualification referred to attaches by virtue of the law itself upon conviction.

If the sentence is defective in any respect, opportunity should be given to correct it. In re Bonner, 151 U. S. 242.

MR. JUSTICE HARLAN delivered the opinion of the court.

This criminal prosecution is founded upon the following sections of the Revised Statutes:

"SEC. 3929. The Postmaster General may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personal property by lot, chance, or drawing of any kind, or that any person or company is conducting any other scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, instruct postmasters at any post office at which registered letters arrive directed to any such person or company, whether such agent or representative is acting as an individual or as a firm, bank, corporation, or association of any kind, to return all such