202 U.S. Argument for Plaintiff in Error. stitutional right to be tried in the State and District where the agreement was made, contrary to §2, art. III, of the Constitution and of the Sixth Amendment thereof. Tayloe v. Merchants' Ins. Co., 9 How. 390; Patrick v. Bowman, 149 U. S. 411; 12 Ency. Law and Prac. 239, 240; Burr's Case, Marshall's Const. Dec. 82, 165; Palliser v. United States, 136 U. S. 256; Horner v. United States, 143 U. S. 212; Sands v. State, 26 Tex. App. 580; United States v. Fowkes, 53 Fed. Rep. 13; United States v. Dietrich, 126 Fed. Rep. 664; Eliason v. Henshaw, 4 Wheat. 225; National Bank v. Hall, 101 U. S. 43; Railway Co. v. Rolling Mills, 119 U. S. 151; Chitty on Contracts, 11 Am. ed., p. 15, note f; Christian Co. v. Bienville Co., 106 Alabama, 124; Tennessee Co. v. Pierce, 81 Fed. Rep. 814; Seitz v. Brewers' &c. Co., 141 U. S. 510. The agreement of the defendant with the Rialto Company was for service by the month, and no service in the Department having been rendered during the period covered by the payment made March 26, there was no offense in the receipt of that payment. Davis v. Preston, 6 Alabama, 83; Matthews v. Jenkins, 80 Virginia, 463; La Coursier v. Russell, 82 Wisconsin, 265; Benedict v. United States, 176 U. S. 357; In re Hans Nielsen, 131 U. S. 188. The defendant was not subject to trial and punishment as for separate offenses in agreeing to receive and receiving compensation for the services charged in the indictment to have been rendered by him. 2 Bishop's New Criminal Procedure, 55; 1 Bishop's New Criminal Procedure, § 436; State v. Jones, 106 Missouri, 802. The juror William V. Jones was disqualified because he had formed and still retained an opinion as to the guilt or innocence of the defendant, an opinion which was the result of reading the reports of the former trial, which reports he believed to be true, and the challenge to him should have been sustained. Lewis v. United States, 146 U. S. 370; Williams v. United States, 93 Fed. Rep. 396. The letters of Houts, Evans, Allen, Warner and Fravel, Argument for Plaintiff in Error. 202 U. S. and the accompanying circulars and booklets, all of which were read in full, to the jury, were incompetent and irrelevant as against the defendant, as he had no knowledge of them whatever, and their contents were not necessary to show the fact that some matter was pending in the Department against the Rialto Grain and Securities Company. Tappan v. Beardsley, 10 Wall. 427. The endorsements on the jacket subsequent to March 26, 1903, the report of Inspectors Price and Piatt of August 20, 1903, and the letter of Assistant Attorney General Robb of September 9, 1903, were competent and material evidence for defendant to disprove the charges of the indictment that he had agreed to induce and had in fact induced the Postmaster General to issue no fraud order against the company and to stop investigation of it, and also to show that the investigation being made by the Department was with reference to the indictment and prosecution of the officers of the Rialto Company. The evidence of Francis C. Hubner should have been stricken out, as it established nothing and permitted the jury to conjecture that there had been an interview between the defendant and the Assistant Attorney General for the Post Office Department relative to the affairs of the Rialto Company. The instruction of the court as to what would constitute service by the defendant in the Department is not responsive to the charge of the indictment, and authorizes a conviction on account of matters not alleged in the indictment, and said charge is erroneous in other respects. The court also erred in refusing to give instructions asked by defendant. Flachskamm v. United States, 127 Fed. Rep. 674. The court at St. Louis had no jurisdiction to try counts three and seven, nor is such jurisdiction conferred by § 731, Rev. Stat. The District of Columbia is not a "judicial circuit" or "judicial district" within the meaning of § 731. The act of 1864, Rev. Stat. § 1782, under which the indictment was found, is unconstitutional. It is in conflict with the fundamental idea on which our whole Federal Govern 202 U. S. Argument for Plaintiff in Error. ment is founded, viz: that the Federal Government is a government of limited powers, with duties defined and restrictions imposed, and no authority is lodged anywhere to change those duties or restrictions, except the power reserved by the people. The framers of our Government, in order to prevent the concentration of power into the hands of one man or one body of men, created three departments,-not necessarily to work in harmony together, but each to act wholly independent of the other. It was the intention, as shown by the debates in the constitutional convention and the Constitution itself, to establish an impassable gulf separating these three great departments of the Federal Government. One department shall not encroach upon or in any way coerce the other. To that end there should be no blending of governmental functions, except where it was absolutely necessary, and then the Constitution clearly and zealously guarded the independence of each department, thus emphasizing the basic principle that the great powers of government were so eternally separated each from the other that there could be no conflict between them. The legislature should make, the judiciary interpret, and the executive should administer, the laws. The President, the members of Congress, and the judges of the Supreme Court are the only officers of the Federal Constitution. All other officers of those several departments are creatures of the legislature, or what this court has styled congressional officers, as distinguished from constitutional officers. The office of the legislative official may be enlarged, modified or abolished by Congress. This is not true of a constitutional office. It is permanent, fixed, and above and beyond the control of Congress. It is also above and beyond the power of the Executive or Judicial Departments. It gets its life from and can only be changed by the Constitution. Every citizen, be he official or in private station, is alike amenable to the law, but the constitutional official, acting as an official, cannot be called to an account, or punished for any official act, except in the mode as defined and prescribed Argument for Plaintiff in Error. 1 202 U. S. in the Constitution creating him. The recognition of this principle is absolutely necessary to protect him in his independence as an official, and to protect the great constitutional bodies in their independence. The Constitution defines how the President, a member of this court, and a member of Congress can be punished for any official misconduct, and by such constitutional provisions limits the manner of purishment; and Congress has no power to add to or take from the express provisions so made for that purpose. The denial of this proposition would place it in the power of Congress to destroy the independence of each Department, and nullify the Constitution, and that is just the effect of the law under which this prosecution is brought. A member of Congress may be punished in such manner as each House may determine as to its "own members," and the right to expel extends to all cases where the offense is such as, in the judgment of "each House," is inconsistent with the trust and duty of "its own members." It would be an anomaly in a constitutional government, with three coördinate branches of such government, as created by the Federal Constitution, if the legislative branch, under whatever pretext, could enact a law making any act of the President, or any act of a Justice of the Supreme Court, a misdemeanor, and delegate the jurisdiction and power to an inferior judicial tribunal to try the President, or a Justice of this court, for a violation of such law, and subject him to fine, imprisonment and removal from office as the result of a verdict of a jury. The mere statement of the proposition would seem to be sufficient to condemn it as absurd, and the shield of the Constitution is no greater protection for the President, -for the Justice of the Supreme Court,-than for the Senator, each and all of whom are created by the Constitution. The Government of the United States is one of enumerated powers, The national constitution being the instrument which specifies them,—and in which authority should be found 202 U.S. Argument for Plaintiff in Error. for the exercise of any power which the National Government assumes to possess. Cooley, Const. Lim., 7th ed., 11; Martin v. Hunter's Lessee, 1 Wheat. 304, 343; Ableman v. Booth, 21 How. 519. By the Constitution, there has been delegated express power to each House to punish its own members, in such manner as, in its wisdom, is just and proper, and, by "the concurrence of two-thirds, may expel a member." When the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied. prohibition against legislative interference to add to the condition, or to extend the penalty to other cases. Cooley, Const. Lim., 7th ed., 99; Lowe v. Commonwealth, 3 Met. (Ky.) 241; Falloon v. Clark, 61 Kansas, 127; Brown v. Grover, 6 Bush. (Ky.) 3; Thomas v. Owens, 4 Maryland, 190; Commonwealth, v. Williams, 79 Kentucky, 42; Sheehan v. Scott, 145 California, 684. See also Morris v. Powell, 125 Indiana, 287; McAfferty v. Guyer, 58 Pa. St. 109. The act of 1864 superadds disqualifications to those expressly contained in the Constitution, and prescribes a mode of procedure and a punishment not expressly authorized by the Constitution, or conferred by necessary implication. Indeed, the express power conferred is an implied prohibition against the exercise by Congress of that most extraordinary legislation, the basis of this prosecution. No legislation is appropriate which should conflict with the implied prohibitions upon Congress. They are as obligatory as the express prohibitions. Ex parte Virginia, 100 U. S. 361. When Senator Burton was chosen Senator of the United States, he was chosen for six years. He had all of the qualifications prescribed by the Federal Constitution. He was only required to consult the organic laws as to his duties and obligations as a Senator. He had the constitutional right to hold the office for six years, subject only to the delegated, enumerated and express power of the Senate to expel him, and subject to |