DIETRICH’S CASE; TRE RECENT DECISION OF THE U. S. CIRCUIT COURT. AN ABLE DISCUSSION OF SAME — Argument Advanced That the Court’s Opinion is Not in Accordance with the Federal Constitution—What the Constitution Provides. (By Walter Johnson of Nebraska ) In the case of Charles H. Dietrich as defendant, wherein he was prose cuted as a United States senator for the taking of a bribe, 1 do not believe : that the court has found its opinion according to the federal constitution. The court has made some assertions, in which they appear to me to lie en tirely out of accord with this funda mental law. i have the highest regard for the court and do not believe that they | have made their decision as an eva sion of the law. But it must be borne in remembrance that wo do not all see principles alike. We recall the tine1 when there, was elected to the office of governor of the state of Nebraska a person who was not a citizen of the United States but who was foreign horn. The supreme court of Nebraska decided that he could not hold the office to which he was elected because he was not a citizen. The decision of the supreme court of Nebraska was founded on the fact that he had not taken certr.iu oaihs and that he had j not complied with certain statutory laws and therefore was not a citizen. This case was appealed to the su preme court of the United States and then the court of Nebraska was re versed. The supreme court hold that, though he had not complied with statutory laws, oatns and court rec ords. being that he had defended the laws of the government on numerous occasions, he was a citizen. Therefore we have a right to question an honor-: able court, because thoae courts arc sometimes reversed. Dili linn ir* c. lujiroijiuu subject. Thoio of in who have maile i a study of sociology and the funda-1 mental laws of nations understand j very clearly that the constitution of i the United States is a very great in-: strument and that probably there has i never, either before or since its eslab- j lishment, been so able a body of men together as those who formulated it. And it must be borne in remembrance that the chairman of that convention was not a lawyer, but a man who thoroughly understood the principles of society. The constitution was not written in technical teims; but it was written n plain language, and ail decisions un der this constitution, by the supreme court, have construed it as to its meaning rather than by technical terms. The constitution was not an originni instrument under which were formed thirteen separate states, but the thir teen Roparate states formulated the constitution as a fundamental law un der which those thirteen states might exist, with certain rights reserved. The first and foremost principle of the constitution was, ‘'Ail legislative power herein granted shall he vested in a congress of the TTnlted States, which shall consist of a senate and house of representatives.” This constitution provides that members of the house lie chosen every second year; that he shall have at tained the age of twenty-five years' that he shall lie seven years a citizen of the United States and that he shall he an inhabitant of the state from v.-hirh be ip chosen. The senate is composed of two sen ators from each state, chosen by the legislature thereof, who shall be thirty years of age, nine years a citizen of the United States and an inhabitant of the state from which he is elected: chosen for six years. The constitution does not designate the time at which a senator’s or rep resentative's term of office shall be gin or end. therefore this is left en tirely for congress to designate: but it does net say that the term of the senator shall be six years and the rep- | resentativc shall he ciiosm every sec ond year. Here is the vital issue in the case of Mr. Dietrich: if. as the court holds Mr. Dietrich was not a senator until December 2, 1901, and he was elected for an unexpired term, as the con stitution defines, he has the right to occupy that office until the beginning of the regular session or Decernlier. 1905. Also the court holds that Mr. Dietrich could not have been com pelled to attend congress before th< regular term of December, 1901. If this be true that the senate could not have compelled Mr. Dietrich to attend an extraordinary session of congress ur> to the regular session of December 1901. it then is clearly evident by this decision that ho could not have occu pied a seat In that body before the regular session, had he preferred to do so. We certainly cannot sec an\ meaning In the constitution to this ef fect. If D’is decision he according to the constitution and law* we have a clear case now in which Mr. Dietrich mav contend that he shall hold office until December. 1905. Certainly the senate or the judiciary would not lie bold enough to contend that Mr. Dietrich's term of office shall be abridged. Does any person suppose that were there to be an extraordinary session oi congress between the dates of March 4 1905. and December, 1905. that the United States senate would countenance the nicoiborshio of Mr Dietrich were he not re-elected to that office? Yet this is the import of this decision. Hut the court contends th«t the sen ate could not eoinnet Mr. Dietrich to attend n session of that body before the regular session of December, 1901 The constitution provides that on© third of th* senators as nearly as practicable, shall be fleeted every sec ond year. This in substance defines the length of a session of Congress, though it does not technically do so But whereas one-third of the member ship of that body expires every two years, there is of necessity a new Con gress every second year. We oil know that the Constitution lays down no rules w’hereby the Congress is to lie governed, except as to the time of convention. One session of the Con gress cannot In anywise govern a suc ceeding session of that body. "Each house may determine the rule? of its proceedings," aril these rules are in force only through the existence of the sessiou of congress which makes them. If the present session of con gress could legislate for the succeed ing session, it would be possible to establish a despotism. Hence it i3 not true that they can. But when a session of congress begins, the first thing in order Is the organization, and hence a rule cannot be laid down un til that organization is effected. Ev ery member of the senate presents his credentials, and every member has a vote lu this organization. You can not question a member in the organi zation of either nouse as to any quali fication that ho may lack. There is no power that has the right to ques tion any member of congress in the organization of those bodies, outside of those bodies themselves, and they cannot question until their organiza tion is effected. Suppose that some member shall be elected to the senate who is under thirty years of age; this, the constitution does not per mit, but in what way could you pro ceed to correct the error: i no ju diciary could not proceed with an action, as the senate is the judge of the qualification of its members; and until the senate is dttly organized it cannot proceed against one of its members. Every member of the sen ate before the organization, and in the organization cf that body, stands exactly in the same relationship. One member has no power of objection in and before the organization of that body over another member, because no member lias the power to pass on the qualifications of another member, and nowhere to place his objections until organization Is complete. Any person elected to either house of congress possesses the same au thority as any other member, though his constitutional qualifications may be deficient, and he is a member until the body to which he belongs shall, in organized form, psocecd to expel him. There is no such tiling as "ad mission" to either house of congress. The term "admission" presents the pow'er of administration, of which there is no such power over the ex istence of either house of congress. If, on the receipt of certain creden tials from a state to one of its inhab itants. as a member of the senate, and these credentials empower him to pro ceed in the organization of that body, and an action of that body is required to expel him. is It not reasonable to adjudge him a member from the very time he accepts those credentials, which empower him to assist in or ganizing the body to which he is ■hosenV The court argues to some length the act of accepting an office. But cer tainly if Mr. Dietrich had received these credentials, whicti in fact were an edict of the state of Nebraska, in an official capacity—that these cre dentials are of iar more force, and the acceptance of them, than the oath which is required of him, we do not doubt. In fact, the credentials are the very force of his office. This should be borne in mind, that the making of a uimea states senator ujbh not uu long to congress nor to any power, but Ihe legislature of the state, and tne legislature chooses ami commis sions a person of its own preference as such officer, and at the issue and acceptance of the credentials he is an officer in conformity with those cre dentials, and wnen he accepts them, he accepts the responsibility of them, and is a part of the senate, and the office is occupied until he shall re sign. or his term of office shall expire, or he shall be excluded from that body. It is not a part of the official capacity of the United State senate tf> elect or choose its owh members, though it does possess the right to choose between contestants for that office, but not to elect from the inhab itants at large. The power of elec tion or choosing the senator belongs entirely to the legislature of the state; and when the state designates one of its own inhabitants as a mem ber of that body, it is the preference of that inhabitant to accept or reject those credentials. But here is another question which arises in this case. The court has taken the power, cr has used the pow er, of determining the qualifications, and official existence ot a member of Ihe senate. I do not understand that this power is in any way given to any court of the United Stales. Tiie con stitution says, "Each house shall lie the judge of elections, returns and qualifications of its own members." In this case the court has taken upon dselt the power of adjudging or spe cifying Ihe qualifications of a member of congress and lias determined the official capacity of him. It must be berne in rememurance that the sen ate is a court in itself, and in that court lies the power of construing the constitutiion as pertaining to its own membership. There is no appeal trom its decisions, and no court pos sesses the power, in the constitution, to intervene in the affairs of that body, relating to its membership. Is not the decision ot the court, wherein Uhas. H. Dietrich is adjudged not a member of that body, r. cl:ar inter vention of the powers of that body? The court has taken up a question over which it has no power or author ity. If Mr. Dietrich is to answer to the charge of bribery or other high crime, it must come before the senate if he is chaiged as a senator. The constitution says "The president, vice president, and all civil officers of the United States, shall be removed from oflice on impeachment for, and con viction of treason, bribery, or other high crimes and misdemeanors.” And again it says, “The senate shall have the sole power to try all impeach ments.” Again it says: “Judgment in cases of impeachment shall not ex tend further than to removal from of fice, and disqualification to hold and enjoy any office of honor, trust or profit, under the United States; but the party convicted shall neverthe less be liable and subject to indict ment, tria', judgment and punishment according to law.” According to the constitution, it is an impassibility for any court to pass upon the question of the e:.istence of membership in either house of con gress. The constitution plainly lays down these things. If it were pos sible for a court to determine the membership of those bodies, it would bo possible through them to invalidate every law of the: land. It would also be possible to disorganize the very ex istence of the organization of those bodies. It would be possible to re move from oflice any member of those bodies and place any contestant in the office, whom tliyy saw fit. But these are not questions belonging to t lie judicial branch of the government. Congress possesses all these rights and from that body there is no appeal. The senate possesses the right to question the number of votes which any of its members may have received in the respective legislatures; also the process of taking those votes; the re turns, and to question into every de tail concerning their election. But these questions belong to those bodies exclusively, and concerning them no court has the right to interpose. Whenever the courts undertake to determine the. beginning of, or the ending of, a term of the senate and house of representatives, it infringes on the question which belongs only to those bodies to decide. If Mr. Die trich is to be arraigned as a United States senator, he must be arraigned before the senate. But no penalty can bo attached by the senate, except a removal from office and a hindrance from holding any office under the United States. The courts,have no right to say that a senator cannot hold any office under the United States. Thus it is seen that the power of the court and the tower of the senate does not. overlap, or their powers do not conflict. The senate may impeach, on the charges of “treason, bribery, or other high crimes, and misdemeanors.’ But it cannot impose a penalty except those related in the constitution, over which the courts cannot exercise au thority. But the courts may, after im peachment, indict, and the person so convicted by the senate is “subject to trial, judgment, and punishment, ac cording to law.’’ The question of being placed in jeopardy more than once, cannot be applied in this case. More than this, it the court has been in error in the case, Mr. Bietrich has not yet been in jeopardy, because he has recourse to the courts that his case has been in error. If Mr. Dietrich shall be indicted for any charge at all by the courts, he must he indicted without regard to the office which he holds. The law under which he was indicted, was a usurpation of power on the part of the congress which made that law, because they were giving away a power which belonged to all future congresses, and were surrendering a part of the constitution. One congress cannot legislate for another congress relating to those questions which be long to the existing congress. In this law. the past congress has merged its own rights into that of the judici ary. Now, if there is any danger which imperils this government, it is the act of merging the powers of the three respective branches. The found ers of this republic were wise in deed. Where the powers of the sen ate as a court end, the powers of the Judiciary begin. Hence the senate cannot apply penalties in case of im peachment, but that is left for the court to do. It appears to mo, that the case of Mr. Dietrich was an error from begin ! ning to end. But. in conclusion I might recall an assertion of the court which is evident misconstruction. The court says, "Under the laws of the United States, there are no crimes, save those that are declared by con i gress. By the common law of Eng land, which has become the law of most of our slates, offenses known and recognized at common law have be come offenses here. But under the distinct and separate government of the United Sttaes, as contradisting uished front state government, there is no common law crime; there are none save those that are prescribed by congress.” Now, if there was ever an assertion that can be disproved, it is a part of this statement. “There are none save those that are proscrib ed by congress.” The constitution prescribed and established crime before there was a congress or before that body ever con vened. The constitution estab lishes or prescribes “treason, brib ery. or other high crimes and misde meanors,” and provides a penalty so far as official capacity may be con cerned, but further than that, the sen ate cannot impose penalty. The con stitution goes so far as to define the very ads of treason. “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies; giving them aid and comfort.’ Certainly this is a crime "prescribed,” “pre” meaning before, and "scribed” a thing reduced to writing. WOMEN^tXEE^COLDS Colds Invariably Result in Catarrh Which Sets Up a Host of Distressing Diseases. PE-RU-NA Bbth Protects and Cures a Cold—Read Proof Miss Rose Gordon, 2.102 Oakland Avo., Oakland Heights, Madison, Wis., writes:— “A few years ago I caught a severe cold, which resulted In chronic bronchitis And caturrh. Our family physician pre scribed medicines which Rave temporary relief only. 1 began taking Peruna nnd Improved at once. Two bottles cured me. I recommend Peruna to all sufferers, und am most grateful to you for your valulile medicine.*'—Miss Itose Oordou. Washington, D. C., «Ot* II street, K. W. 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