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 Argument for Plaintiff in Error. 202 U.S. the disqualifications provided in section 6, article II, of the Constitution. The act of 1864 applies only to the conduct or action of the Senator, as contradistinguished from the conduct or action of the citizen. It is a limitation and restriction upon the conduct and action of the Senator during his term of office, nowhere in the Constitution, expressly or by necessary implication, conferred upon Congress to create. The Senate, by and through the power delegated to it by the Constitution, might properly expel for doing of the things charged in the indictment, as a violation of senatorial dignity, but Congress had no power, by enactment, to make such acts and conduct of the Senator a crime, and delegate to the Judiciary the power to take from the Senator the rights and privileges guaranteed by the Constitution. The judgment of conviction not only imprisons him, but disqualifies him from holding the office for which he was chosen by the State of Kansas, for "six years." United States v. Harris, 106 U. S. 636; 1 Story on Const. § 833; 1 Kent's Com. 235; People v. Hall, 80 N. Y. 121. The act of 1864, and section 5, article I, of the Constitution, are wholly incompatible, and in irreconcilable conflict. It cannot be that the framers of the Constitution intended, by express grant, to confer upon each House the power to be the sole judge of the qualification of its own members, and, by implication, to confer the power upon both House and Senate, by concurrent action, by statute, to disable and disqualify each House from exercising the powers thus expressly conferred. In all of the debates in the constitutional convention, such a contingency was not considered. Evidently, by the express grant conferred by the Constitution, the intention was to lodge the power in each House, to the exclusion of the other. The identical question was decided by Mr. Justice Brewer, when on the supreme bench of Kansas, in the case of State v. Gilmore, 20 Kansas, 554, in which was under consideration 202 U. S. Argument for Plaintiff in Error. a section of the constitution of the State of Kansas, exactly similar to the first clause of section 5, article I, Constitution of the United States. See also State v. Tomlinson, 20 Kansas, 703; Robertson v. State, 109 Indiana, 92; State v. Baxter, 28 Arkansas, 129. It is well settled that section 5, article I, providing that "Each House shall be the judge of the elections, returns and qualifications of its own members," confers upon "each House" powers of a judicial nature,-in the exercise of which its decision is conclusive, and not subject to review by the courts. People v. Mahoney, 13 Michigan, 482; Dalton v. State, 43 Ohio St. 680. Wherever the Constitution has prescribed the qualifications of electors, they cannot be changed or added to by the Legislature, or otherwise than by an amendment of the Constitution. Cooley, Const. Law, 5th ed., 753; Allison v. Blake, 57 N. J. L. 8, 11; Kimball v. Hendee, 57 N. J. L. 207. The act of 1864 uses the words "under the Government of the United States." The Senate is a part of the Government of the United States. Section 1, article I, of the Constitution; section 3, article I. The office of Senator is one of "profit," under the Government of the United States. Section 6, article I, Constitution. A State cannot superadd qualifications of a Senator to those prescribed by the Constitution of the United States. In re Trumbull, Taft Elec. Cases, 148. If the Senator is a state officer, and the act of 1864 is constitutional, then Congress would have the power to make the same applicable to the Governor of each sovereign State and this cannot be done. Kentucky v. Dennison, 24 How. 107. If, therefore, a Senator is not an officer of the United States in the sense of the Constitution, clearly he may not be coerced, or punished for his refusal to obey the requirements of an act of Congress relative to the discharge of his duties as United States Senator. United States v. Germain, 99 U. S. 510; VOL. CCII-23 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 |