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

registered letters to the postmaster at the office at which they were originally mailed, with the word 'Fraudulent' plainly written or stamped upon the outside thereof; and all such letters so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster General may prescribe. "By the act of March 2, 1895, c. 191, this section was "extended and made applicable to all letters or other matter sent by mail." 26 Stat. 465; 28 Stat. 963, 964.

"SEC. 4041. 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 for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, forbid the payment by any postmaster to said person or company of any postal money orders drawn to his or its order, or in his or its favor, or to the agent of any such person or company, whether such agent is acting as an individual or as a firm, bank, corporation, or association of any kind, and may provide by regulation for the return to the remitters of the sums named in such money orders. 26 Stat. 465, 466, c. 908. "SEC. 1782. No Senator, Representative or Delegate, after his election and during his continuance in office, and no head of a Department, or other officer or clerk in the employ of the Government, shall receive or agree to receive any compensation whatever, directly or indirectly, for any services rendered, or to be rendered, to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested, before any Department, court martial, bureau, officer, or any civil, military, or naval commission whatever. Every person offending against this section shall be deemed guilty of a mis

Opinion of the Court.

202 U.S.

demeanor, and shall be imprisoned not more than two years, and fined not more than ten thousand dollars, and 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." 13 Stat. 123, c. 119. The plaintiff in error was indicted in the Circuit Court of the United States for the Eastern District of Missouri for a violation of section 1782, the offense being alleged to have been committed at St. Louis. The accused was found guilty, and on writ of error the judgment was reversed by this court and a new trial ordered, upon the ground, among others, that according to the facts disclosed in that case the offense charged was not committed in the State of Missouri where the accused was tried. Burton v. United States, 196 U. S. 283.

Subsequently, the defendant was tried under a new indictment (the present one) charging him with certain violations of section 1782. The indictment contained eight counts. Stating the case now only in a general way, the first, second, fourth, sixth and eighth counts charged, in substance, that the defendant, a Senator of the United States, had agreed to receive compensation, namely, the sum of $2,500, for services to be rendered by him for the Rialto Grain and Securities Company, a corporation (to be hereafter called the Rialto Company), in relation to a proceeding, matter and thing, in which the United States was interested, before the Post Office Department, those counts differing only as to the nature of the interest, which the United States had in such proceeding, matter and thing; some of the counts alleging that the United States was directly, others that it was indirectly, interested in such proceeding, matter and thing. The third, fifth and seventh counts charged that the defendant did receive compensation to the amount of $500 for the services alleged to have been so rendered by him, those three counts differing only as to the nature of the interest, whether direct or indirect, which the United States had in the alleged proceeding, matter and thing before the Post Office Department.