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.
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If you do not derive prompt and satisfac
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ASK YOUR DRUGGIST FOR A FREE PE-RU^NA ALMANAC EVERY DRUGGIST HAS THEM
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Just the thing for dying out pastures
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Naturalizing a Russian.
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Omaha, Neb.
W. N. U., Omaha. No. 6—1004
