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DIETRICHS CASE
TRE RECENT DECISION OF THE U
8 -CIRCUIT COURT
AN ABLE DISCUSSION OF SAME
Argument Advanced That the Courts
Opinion is Not in Accordance with
I the Federal Constitutien 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 I do not believe
that the court has found Its opinion
according to he federal constitution
The court 1 we some assertions
in which they to me to be en
tirely out of ao Vith 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 we do not all see
principles alike We recall the time
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
born 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 tha fact that he had not
taken certain oaths and that he hai
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 held 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 those courts are
sometimes reversed
But this is q digression from my
subject Those of us who have made
a study of sociology and the funda
mental laws of nations understand
very clearly that the constitution of
the United States is a very great in
strument and that probably there has
never either before or since its estab
lishment been so able a Dody 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 terms but it was written in
plain language and a11 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 original
instrument under which were formed
thirteen separate states but the thir
teen separate 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 All legislative
power herein granted shall be vested
in a congress of the United States
which shall consist of a senate and
house of representatives
This constitution provides that
members of the house be chosen every
second year that he shall have at
tained the age of twenty five years
that he shall be seven years a citizen
of the United States and that he shall
be an inhabitant of the state from
which he is 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 senators or rep
resentatives term of office shall be
gin or end therefore this is leff en
tirely for congress to designate but
it does not say that the term of the
senator shall be six years and the rep- J
resentative shall be chosen every sec
ond year
Here is th 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
lor an unexpired term as the con
stitution defines he has the right to
occupy that office until the beginning
of the regular session of December
1905 Also the court holds that Itfr
Dietrich could not have been com
pelled to attend congress before the
regular tcvm cf December 1901 I
this be true that the senate could not
have compeled Mr Dietrich to attend
an extraordinary session of congress
up to the regular session of December
1901 it then is clearly evident by this
decision that he could not have occu
pied a seat in that body before the
regular session had he preferred to
do so We certainly cannot see any
meaning in the constitution to this ef
fect If this decision be according to
the constitution and law we have a
clear case now in which Mr Dietrich
may contend that he shall hold office
until December 1905 Certainly the
senate or the judiciary would not be
bold enough to contend that Mr
Dietrichs term of office shall be
abridged
Does any person suppose that were
there to be an extraordinary session
or congress between the dates of
March 4 1105 and December 1905
that the United States senate would
countenance the membership of Mr
Dietrich were he not re elected to that
office Yet this is the import of this
decision
But the court contends that the sen
ate could not compel Mr Dietrich to
attend a session of that body before
the regular session of December 1901
The constitution provides that one
third of the senators as nearly as
practicable shall be elected 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
j years there is of necessity a new Con
gress every second year Wo all
know that the Constitution lays down
no rules whereby the Congress is to
be 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 Eaeh
house may determine the rules of its
proceedings and these rules are in
force only through the existence of
the session 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 is
not true that they can But when
a session ot 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 in this organization You can
not question a member in the organi
zation of either nouse as to any quali
fication that he 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 The 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 duly organized it
cannot proceed against one of its
members Every member of the sen
ate before the organization and in
the organization of 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 has 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 proceed to expel
him There is no such thing as ad
mission to either house of congress
The term admission presents the
power 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
chosen
The court argues to some length the
act of accepting an office But cer
tainly if Mr Dietrich had received
these credentials which in fact were
an edict ot the state of Nebraska in
an officiul capacity that these cre
dentials are of lax 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 United States senator does not be
long to congress nor to any power
but the legislature of the state and
tne legislature chooses and 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 when 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
to elect or choose its own members
though it does possess the right to
choose between contestants -or 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 ovfti inhabitants rs a mem
ber of that uodj it is the preference
of that inhabitant to accept or reject
those credentials
But here is another queslljn 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
the senate I do not understand that
this power is in any way given to any
court of the United States The con
stitution says Each house shall be
the judge of elections returns and
qualifications cf its own members
In this case the court has taken upon
itself the power of adjudging cr spe
cifying the qualifications of a member
of congress and has determined the
official capacity of him It must be
borne in rememorance 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
Chas H Dietrich is adjudged not a
member of that body a clear 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
office 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 trial judgment and punishment
according to law
According to the constitution it is
an impossibility for any court to pass
upon the question of the existence of
membership in either houso 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
be 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 office any member of those
bodies and place any contestant in the
office whom they saw fit But those
are not questions belonging to the
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 be 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
jower 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
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 f
jeopardy more than once cannot be
applied in this case More than this
if the court has been in error in the
case Mr Dietrich 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 be 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 me 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
gress By the common law of Eng
land which has become the law of
most of our stales 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 from 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 prescrib
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 acts 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 Certainl
this is a crime prescribed pre
meaning before and scribed a
thing reduced to writing
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