JOHN NEWTON WILLIAMSON, PUT. in Err., v.

UNITED STATES.

(See S. C. Reporter’s ed. 425-462.)

Error to circuit court — frivolousness

of Federal question.

privilege of a congressman from arrest em¬ braces arrest and punishment for a criminal offense while Congress is not in session is not so frivolous as not to sustain a direct writ of error from the Supreme Court of the United States to a circuit court.

Error to circuit court — frivolousness

of Federal question.

preme Court to review the conviction of a congressman in a circuit court, presenting a question respecting his alleged constitu¬ tional privilege from arrest, will not be dis-

Note.— As to evidence of other crimes in criminal case — see note to People v. Moli- neux, 62 L.R.A. 193.

Privilege of members of Congress from suit.

In § 6, article 1, of the Constitution of the United States, it is provided that sena¬ tors and representatives “shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same.”

Such privilege has been held to extend to a delegate from a territory as well as to members from states. Doty v. Strong, 1 Pinney (Wis.) 84.

It will not avail a member of Congress fo prevent his arrest on a warrant charging that there is probable cause to believe that he is about to commit a breach of the peace by fighting a duel. United States v. Wise, 1 Hayw. & H. 82, Fed. Cas. No. 16,746a.

As to whether such privilege extends to service of summons in a civil suit, there is a difference of opinion, the decided prepon¬ derance of authority, however, being that it does not. Merrick v. Giddings, Mac- Arth. & M. 55 (in which the question is very fully discussed) ; Howard v. Citizens’ Bank & T. Co. 12 App. D. C. 222; Worth v. Norton, 56 S. C. 56, 45 L.R.A. 563, 76 Am. St. Rep. 524, 33 S. E. 792; Kimberly v. Butler, Fed. Cas. No. 7,777.

And in Bartlett v. Blair, 68 N. H. 232,

207 tf.S.

Williamson v.

missed because the Congress of which the accused was a member has ceased to exist, since, even if the question has thus become a mere abstraction, jurisdiction of the writ of error depends upon the existence of a constitutional question when the writ was sued out, and carries with it the duty of re¬ viewing the whole case.

Writ and process — congressional privi¬ lege from arrest — criminal offense.

by the terms “treason, felony, and breach of the peace,” as used in U. S. Const, art. 1, § 6, cl. 1, excepting these cases from the operation of the privilege from arrest there¬ in conferred upon senators and representa¬ tives during their attendance at the sessions of their respective houses, and in going to and returning from the same.

Conspiracy — to suborn perjury.

to procure the commission of perjury, which embraces an unsuccessful attempt, is pun¬ ishable under the criminal laws of the United States, even though it be conceded that an attempt by one person to suborn another to commit perjury may not be so punishable, since under U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3670, it is clearly criminal for two or more persons to conspire to. commit any offense against the United States, provided only that one or more, of the parties to the conspiracy do

33 Atl. 1004, a motion to quash the writ and service thereof in a civil action, which writ was returnable during the session of Con¬ gress, was denied in the absence of any ad¬ judication by the Supreme Court of the United States, extending the privilege to the service of a summons or like civil process.

On the other hand, in Doty v. Strong, supra, it is held that such privilege should be liberally construed as applicable to civil suits, on the ground that “it is just as nec¬ essary for the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of Con¬ gress, for the purpose of defending his private suits in court, as to be exempt from imprisonment on execution.”

In Miner v. Markham, 28 Fed. 387, which was a Federal case in Wisconsin, the court followed the construction placed upon the term “arrest” by the Wisconsin courts, and held that a member of Congress was ex¬ empt from civil process as well as arrest on his journey to and from a session, and was entitled to reasonable time. This was on the ground that “it has been the law in this jurisdiction from territorial times that the privilege in such a case as that at bar extends to exemption from civil process with or without actual arrest.”

The attendance upon Congress by a mem¬ ber does not entitle him, as a matter of right, to have his suit postponed. Nones v. Edsall, 1 Wall. Jr. 189, Fed. Cas. No. '0,290.

5 2 D. ed.

United States.

an act towards effecting the object of the conspiracy.

Indictment — conspiracy — sufficiency.

suborn perjury need not, with technical pre¬ cision, state all the elements essential to the commission of the crimes of subornation of perjury and of perjury.

Indictment — conspiracy — sufficiency.

ciently charged in an indictment for con¬ spiracy to suborn perjury, where its allega¬ tions plainly import that the unlawful agree¬ ment contemplates a future solicitation of unnamed individuals to enter public lands under the timber and stone act, who in so doing will necessarily knowingly state and subscribe under oath, before a named person, stated to be a United States commissioner of the district of Oregon, material false statements as to their purpose in respect to entering the land, known to be such by the conspirators.

Conspiracy — to suborn perjury.

the time and place of such suborning, need not be agreed upon in the minds of the conspirators, in order to constitute the crime of conspiracy to suborn perjury in proceed¬ ings for the purchase of public land under the timber and stone act.

And a member of Congress is not exempt from the service of a subpoena in a criminal case. United States v. Cooper, 4 Dali. 341, 1 L. ed. 859, Fed. Cas. No. 14,861; Respub- lica v. Duane, 4 Yeates, 347.

The privilege from arrest of a member of Congress does not extend to forty days before and after a session, but is limited to a reasonable time for going and coming. Hoppin v. Jenckes, 8 R. I. 453, 5 Am. Rep.

And in Lewis v. Elmendorf, 2 Johns. Cas. 222, it was held that the benefit of the privilege only applied while attending Con¬ gress, or actually on his journey going to or returning from the seat of government.

A member of Congress not in attendance or going to or returning from its session, but absent on leave during the session, on private business, is not within the constitu¬ tional privilege. Worth v. Norton, supra.

But one who goes to Washington to repre¬ sent a state in Congress is privileged from arrest, though not entitled to a seat, and delay in returning through lack of funds will not affect the privilege. Dunton v. Halstead, 2 Clark (Pa.) 450.

In Coxe v. M’Clenachan, 3 Dali. 478, 1 L. ed. 087, where a member of Congress was surrendered by his bail and demanded dis¬ charge as privileged, the matter was com¬ promised by the bail agreeing to surrender him within four days after the session of Congress.

As to a similar privilege enjoyed by mem¬ bers of state legislatures, see note in Rhodes v. Walsh, 23 L.R.A. 632.

279

Supreme Court of the United States.

Oct. Term,

Evidence — motive or Intent.

timber and stone lands understood their ar¬ rangement with one of the defendants charged with a conspiracy to suborn perjury, and of their purpose in applying for the land, is admissible where no formal contracts were executed between the a . .aged conspirators and the proposed entrymen, the alleged un¬ derstandings being of an ambiguous nature, and proof of the conspiracy depending upon a variety of circumstances tending to show motive or intent.

Evidence — motive.

spect to suitability for grazing purposes, of land sought to be acquired under the timber and stone act, is admissible on a trial for conspiracy to suborn perjury in the pro¬ ceedings, where it is insisted that the mo¬ tive which impelled the formation of the alleged conspiracy was the desire to acquire a large tract of land for sheep-grazing pur¬ poses, which acquisition had become neces¬ sary by reason of the fact that a rival had obtained a leasehold interest in a consider¬ able portion of the land which the alleged conspirators had theretofore used in their sheep-raising business.

Evidence — criminal knowledge or in¬ tent.

and of the acquisition, by like unlawful methods, of state school lands, is admissible on a trial for conspiring to suborn perjury in proceedings for the purchase of public land under the timber and stone act, as tend¬ ing to establish guilty intent, purpose, de¬ sign, or knowledge on the part of the alleged conspirators.

Appeal — prejudicial error — admitting

evidence of other crimes.

perjury in proceedings for the purchase of public lands under the timber and stone act is not prejudiced by admitting evidence of an attempt to acquire and of the acquisition, by like unlawful methods, of state school lands, because it tends to show the commis¬ sion of crimes other than those charged in the indictment, — especially where the trial judge in his charge carefully limited the ap¬ plication of the testimony so as to prevent any improper use.

Appeal — review of verdict — effect of

failure to request Instructions to ac¬ quit.

versed where it plainly appears that there was no evidence whatever justifying such conviction, even though no request was made to instruct the jury on the whole evi¬ dence to return a verdict of not guilty, will not be applied where it is not certified that the bill of exceptions contains the entire evidence, and the appellate court is not oth¬ erwise satisfied that it does, and it is recited in the bill of exceptions that the plaintiff offered evidence during the trial sufficient 280

to go to the jury, tending to prove each and every material allegation of the indictment. Appeal — refusal of requested instruc¬ tions — when not prejudicial error.

in a criminal case, concerning motive and in¬ tent, and the effect of advice of counsel, can¬ not prejudice the accused, where the trial judge in instructing the jury on the subject went as far in favor of the accused as it was possible for him to go consistently with right.

Indictment — construction of ambigu¬ ous allegations.

tions of an indictment charging a conspiracy to suborn the commission of perjury in pro¬ ceedings to purchase public land under the timber and stone act embrace a conspiracy to suborn perjury in respect to the making of final proofs, as well as in making the original applications, must be resolved in favor of the accused.

Public lands — timber and stone lands — final proof — necessity of statement of bona tides.

act of June 3, 1878, § 3 (20 Stat. at L. 89, chap. 151, U. S. Comp. Stat. 1901, p. 1545), exacting on the final application some of the requirements made necessary on the original application for the purchase of land under that act, of any reiteration of the require¬ ments of the statute regarding a specula¬ tive purpose on the part of the applicant, his bona tides, and his intent to acquire the land for himself alone, is equivalent to an express declaration by Congress that these requirements shall not be exacted at the final hearing.

Public lands — regulation by Land De¬ partment.

the General Land Office under the timber and stone act of June 3, 1878, § 3, to pre¬ scribe regulations to carry out the provi¬ sions of that act, does not embrace the power to require an applicant to make oath on final hearing of his bona tides and of the absence of contract or agreement in respect to the title, which Congress has in that act, by express intendment, excluded from the requirements to be observed on such final hearing.

Evidence — motive.

man under the timber and stone act of June 3, 1878, at the time of final hearing, which, under that act, cannot defeat his right to a patent, is inadmissible, on a trial for con¬ spiring to suborn perjury in the proceedings to acquire the land, to show motive in mak¬ ing the original application.

[No. 96.]

Argued December 5, 6, 1907. Decided Jan¬ uary 6, 1908.

207 U. S.

Williamson v. Unites) States.

IN ERROR to the Circuit Court of the United States for the District of Oregon to review a conviction for conspiring to suborn perjury in proceedings to purchase public land under the timber and stone act. Reversed and remanded for further proceed¬ ings.

The facts are stated in the opinion.

Messrs. Charles A. Keigwin and Charles A. Douglas argued the cause, and, with Messrs. W. B. Matthews and E. B. Sherrill, filed a brief for plaintiff in error:

A conspiracy is always, and necessarily, an agreement between two or more persons to do some act or acts in the future. It is the corrupt agreeing together of two or more persons to do, by concerted action, something unlawful, either as a means or an end.

2 Bishop, Crim. Law, § 171.

The common law is not a source of juris¬ diction in the Federal courts, and therefore an offense, to become the subject of an in¬ dictment in the courts of the United States, must be an offense created and defined by an act of Congress.

United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259; Pennsylvania v. Wheeling & B. Bridge Co. 13 How. 563, 14 L. ed. 268; United States v. Britton, 108 U. S. 193, 27 L. ed. 701, 2 Sup. Ct. Rep. 526.

An indictment under the first clause of U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, must, to be valid, allege, as the object of the conspiracy, some offense that is made by statute a crime against the United States.

United States v. Payne, 22 Fed. 426; Re Wolf, 27 Fed. 611; United States v. Adler, 49 Fed. 736; United States v. Taffe, 86 Fed. 113; United States v. Melfi, 118 Fed. 899; United States v. Britton, supra.

At common law, subornation of perjury is the offense of procuring a man to take a false oath, amounting to perjury, who actually takes such oath.

1 Hawk. P. C. Curwood ed. p. 435; 2 Bishop, Crim. Law, § 1197.

The offense against the United States is identical with the common-law crime of subornation of perjury. It is essential, as at the common law, that perjury shall in fact have been committed.

United States v. Dennee, 3 Woods, 39, Fed. Cas. No. 14,947; United States v. Wil¬ cox, 4 Blatchf. 393, Fed. Cas. No. 16,693; United States v. Evans, 10 Sawy. 132, 19 Fed. 912; United States v. Howard, 132 Fed. 325; United States v. Cobban, 134 Fed.

While, at the common law, subornation of perjury was not committed unless the person suborned actually committed per¬ jury, an unsuccessful incitement or solici-

52 L. ed.

tation to commit perjury was punishable aa an indictable attempt.

2 Bishop, Crim. Law, § 1192; Bishop, Directions & Forms, §§ 966, 967; 2 Whar¬ ton, Crim. Law, 1329; 1 Hawk. P. C. Cur¬ wood ed. p. 435.

On a charge of subornation of perjury, the indictment must set out, not only all the facts requisite to constitute the suborn¬ ing, but as well those facts which are es¬ sential to make the suborned testimony amount to perjury.

United States v. Dennee, 3 Woods, 41, Fed. Cas. No. 14,947 ; United States v. Evans, supra; Com. v. Douglass, 5 Met. 244; People v. Ross, 103 Cal. 425, 37 Pac. 379; United States v. Wilcox, supra.

So, where the charge is conspiracy to commit an offense, the indictment must not only aver the fact of conspiring on the part of the defendants, but set out the things in¬ tended to be done, in such way as to show that the alleged purpose, if effected, would amount to the offense specified.

Scudder v. State, 62 Ind. 13; Smith v. State, 93 Ind. 67 ; Landringham v. State, 49 Ind. 186; State v. McKinstry, 50 Ind. 465; State v. Reach, 40 Vt. 113; State v. Roberts, 34 Me. 320 ; Com. v. Prius, 9 Gray, 127; Hartmann v. Com. 5 Pa. 66; Com. v. Hunt, 4 Met. 126, 38 Am. Dec. 346; State v. Hewett, 31 Me. 399; Com. v. East¬ man, 1 Cush. 189, 48 Am. Dec. 596; King v. Turner, 13 East, 228; State v. Rickey, 9 N. J. L. 293; United States v. Melfi; United States v. Taffe; and United States v. Howard, — supra; United States v. Mil¬ ner, 36 Fed. 890 ; United States v. Watson, 17 Fed. 145; Re Wolf, 27 Fed. 606; United States v. Peuschel, 116 Fed. 642; United States v. Britton, 107 U. S. 655, 27 L. ed. 520, 2 Sup. Ct. Rep. 512; United States v. Britton, 108 U. S. 199, 27 L. ed. 698, 2 Sup. Ct. Rep. 531; Pettibone v. United States, 148 U. S. 197, 37 L. ed. 419, 13 Sup. Ct. Rep. 542; United States v. Cruiksliank, 92 U. S. 542, 23 L. ed. 588; United States v. Hess, 124 U. S. 483, 31 L. ed. 516, 8 Sup. Ct. Rep. 571.

An officer, having by statute power to prescribe regulations for the conduct of his official business, may enforce the same in any way possible by the exercise of his of¬ ficial authority; but he cannot, by such power, make the disregard of his require¬ ments a criminal offense, and no indictment will lie for violating an official regulation.

United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764; United States v. Manion, 44 Fed. 800; United States v. Bedgood, 49 Fed. 54; United States v. Blasingame, 116 Fed. 654; United States v. Maid, 116 Fed. 650; United States v. Howard, 37 Fed. 666.

281

Oct. Term,

Supreme Court of

An executive officer, empowered to make regulations for the effective execution of a law, cannot, by such regulations, add to or limit the provisions of the law.

Morrill v. Jones, 106 U. S. 460, 27 L. ed. 267, 1 Sup. Ct. Rep. 423.

In the absence of some express statutory inhibition, any right or claim under the public-land laws is assignable at any stage of its development.

Thredgill v. Pintard, 12 How. 24, 13 L. ed. 877; Sparrow v. Strong, 3 Wall. 97, 18 L. ed. 49; Lamb v. Davenport, 18 Wall. 307, 21 L. ed. 759.

A prohibition against such assignment will not be extended by construction to ap¬ ply at a later stage of the proceeding than is made necessary by the words of the statute.

Myers v. Croft, 13 Wall. 291, 20 L. ed.

Nor can such a prohibition in another act in pari materia be read into an act in which no such prohibition is inserted by the legislature.

French v. Spencer, 21 How. 228, 16 L. ed. 97 ; Maxwell v. Moore, 22 How. 185, 16 L.

ed. 251.

The right to make a soldier’s additional homestead entry is assignable, although an original homestead is not,

Webster v. Luther, 163 U. S. 331, 41 L. ed. 179, 16 Sup. Ct. Rep. 963; Barnes v. Poirier, 12 C. C. A. 9, 27 U. S. App. 500, 64 Fed. 14.

This principle has been recently applied by this court in the construction, respect¬ ing this point, of the timber-culture act.

Adams v. Church, 193 U. S. 510, 48 L. ed. 769, 24 Sup. Ct. Rep. 512.

If evidence is material to the transaction stated in the indictment, it is no objection to such evidence that it tends also to prove the commission of some other offense. But in such a case care must be taken to see that the defendant is tried only for the act with which he is charged, and is not prejudiced by the incidental proof of other wrongdoing.

Reg. v. Trueman, 8 Car. & P. 727 ; Pointer v. United States, 151 U. S. 396, 38 L. ed. 208, 14 Sup. Ct. Rep. 410.

Evidence of facts not directly involved in the transaction to be tried is admissible only where the transaction is of doubtful complexion, and only for the sake of re¬ solving an ambiguity appearing on the face of the transaction itself.

Wood v. L^nited States, 16 Pet. 342, 10 L. ed. 987 ; Castle v. Bullard, 23 How. 172, 16 L. ed. 424; Lincoln v. Claflin, 7 Wall. 132, 19 L. ed. 106; Mutual L. Ins. Co. v. Armstrong, 117 U. S. 591, 29 L. ed. 997, 6 Sup. Ct. Rep. 877; Bottomley v. United 282

the United States.

States, 1 Story, 135, Fed. Cas. No. 1,689; People v. Molineux, 168 N. Y. 297, 62 L.R.A. 193, 61 N. E. 286.

The false swearing which constitutes per¬ jury must be wilful. A bona fide belief in the truth of the facts stated excludes the requisite criminal intent. On any matter which involves conclusions of law, the advice of counsel is always relevant to the question of wilfulness, and, in many cases, the fact that such advice was taken and acted upon is conclusive of innocence.

Com. v. Clark, 157 Pa. 257, 27 Atl. 723; Hood v. State, 44 Ala. 81; State v. McKin¬ ney, 42 Iowa, 205; United States v. Stanley, 6 McLean, 409, Fed. Cas. No. 16,376; United States v. Conner, 3 McLean, 573, Fed. Cas. No. 14,847; 2 Bishop, Crim. Law, § 1047.

The good faith of the defendants was especially relevant, and even more material, to the question of their guilt of conspiracy.

The bona fide belief of the parties and the advice of counsel are relevant, and, in order to justify a conviction, the jury must find that the accused did not act in good faith, but wilfully violated the statute.

State v. Flynn, 28 Iowa, 26; People v. Powell, 63 N. Y. 88.

Persons, in making entries of timber land, were guilty of nothing unlawful because they expected to convey their titles to Gesner, and were moved in the premises by his promise to buy the lands at a certain price.

United States v. Budd, 144 U. S. 154, 36 L. ed. 384, 12 Sup. Ct. Rep. 575.

The impropriety of asking any witness to state his conclusion as to the legal effect of certain facts is so manifest as scarcely to warrant the citation of author¬ ity on the point.

Gentry v. Singleton, 63 C. C. A. 231, 128 Fed. 680; Re Weisenberg, 131 Fed. 524; Hewitt v. Clark, 91 Ill. 60S; Crowell v. Western Reserve Bank, 3 Ohio St. 411; Shepard v. Pratt, 16 Kan. 211; Ives v. Hamlin, 5 Cush. 535; People v. Sharp, 107 N. Y. 461, 1 Am. St. Rep. 851, 14 N. E. 319; Foster v. Murphy & Co. 67 C. C. A. 521, 135 Fed. 51.

Where the record purports to set out the testimony of the several witnesses in succession, with entries showing adjourn¬ ments and other steps in the progress of the trial, it will be inferred that the sub¬ stance of all the evidence is imbodied in the bill of exceptions, although there is no affirmative averment to that effect.

Gunnison County v. E. H. Rollins & Sons, 173 U. S. 255, 43 L. ed. 089, 19 Sup. Ct. Rep. 390.

And this rule applies a fortiori in a crim¬ inal case.

Clyatt v. United States, 197 U. S. 207,

207 U. S.

Williamson v. United States.

220, 49 L. ed. 726, 731, 25 Sup. Ct. Rep.

A bill of exceptions purporting to con¬ tain a recital of evidence, apparently full and in regular order of sequence, may be accepted as a complete statement, in sub¬ stance, of the evidence.

Fields v. United States, 27 App. D. C. 447 ; Klopfer v. District of Columbia, 25 App. D. C. 41 ; McCaully v. United States, 25 App. D. C. 409 ; Rockwell v. Capital Traction Co. 25 App. D. C. 98; 3 Cyu Law & Proc. p. 168.

Although no motion was made to direct a verdict of acquittal, and the sufficiency of the government’s proof to warrant a con¬ viction was not raised at the conclusion of the case, this court will, in a criminal pro¬ ceeding, examine the record to determine whether the proof is adequate and com¬ petent to sustain a verdict of guilty.

Wiborg v. United States, 163 U. S. 632, 658, 41 L. ed. 289, 298, 16 Sup. Ct. Rep. 1127, 1197; Hopt v. Utah, 110 U. S. 574. 28 L. ed. 262, 4 Sup. Ct. Rep. 202; Clyatt v. United States, 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429 ; Allen v. United States, 52 C. C. A. 597, 115 Fed. 3; Ben¬ son v. Gerlach, 20 N. Y. S. R. 939, 4 N. Y. Supp. 273.

Upon an indictment for conspiracy, some overt act must be alleged as done in fur¬ therance of the alleged unlawful scheme, and it is necessary to prove at least one of the overt acts alleged. Proof of other acts, however numerous and however calculated to further the purpose of the conspiracy, will not excuse the prosecution from prov¬ ing the particular act or acts which are as¬ signed in the indictment, and of which no¬ tice is communicated to the defendants.

Bannon v. United States, 156 U. S. 468, 39 L. ed. 496, 15 Sup. Ct. Rep. 467 ; United States v. Smith, 2’Bond, 323, Fed. Cas. No. 16,322; People v. Chase, 16 Barb. 495.

Felonies, in the sense of the Constitution and of Federal statutes, are only such of¬ fenses as were felonies at common law or are by statute declared to be felonies.

Reagan v. United States, 157 U. S. 301, 39 L. ed. 709, 15 Sup. Ct. Rep. 610; Bannon v. United States, 156 U. S. 464, 39 L. ed. 494, 15 Sup. Ct. Rep. 467.

Conspiracy was a misdemeanor at com¬ mon law, and is so under Federal statutes; the fact that it is an infamous offense not making it a felony.

Bannon v. United States, supra; Mackin v. United States, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777 ; Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep.

The phrase “breach of the peace” means only actual breaches of the peace, — offenses

52 L. ed.

involving violence or public disturbance. In cases of other misdemeanors, the parlia¬ mentary privilege applies, as in libel.

King v. Wilkes, 2 Wils. 151 ; Ware v. Loveridge, 75 Mich. 488, 42 N. W. 997; Estes v. State, 2 Humph. 496.

According to the weight of authority, the privilege of members of Congress extends even to immunity from service of process in civil actions.

Holiday v. Pitt, 2 Strange, 985; Barnard v. Mordaunt, 1 Ld. Kenyon, 125; 1 Tidd, Pr. 196; Miner v. Markham, 28 Fed. 387; Juneau Bank v. McSpedan, 5 Biss. 64, Fed. Cas. No. 7,582; Nones v. Edsall, 1 Wall. Jr. 189, Fed. Cas. No.- 10,290; Lyell v. Goodwin, 4 McLean, 29, Fed. Cas. No. 8,616; Bolton v. Martin, 1 Dali. 296, 1 L. ed. 144.

Attorney General Bonaparte and Mr. William R. Harr argued the cause, and, with Solicitor General Hoyt, filed a brief for defendant in error:

The mere assertion of a constitutional privilege, without color of ground to sup¬ port it, is not sufficient to confer jurisdic¬ tion on this court to review the judgment of the circuit court. The claim must be real and substantial. A mere claim in words is not enough.

Lampasas v. Bell, 180 U. S. 282, 45 L. ed. 530, 21 Sup. Ct. Rep. 368.

The privilege extends to arrests in civil cases only.

1 Ratsell, Precedents, pp. 66, 278; Wil¬ kinson v. Boulton, 1 Lev. 163; Wellesley v. Beaufort, 2 Russ. & M. 664; Rawlins v. El¬ lis, 10 Jur. 1039; Bl. Com. Lewds’s p. 166; Bowyer, Const. Law of England, 2d ed. p. 84; May, Law of Parliament, p. 145; Story, Const. § 865; Paschal, Anno. Const, p. 89; Bullitt, Review of Constitution, p. 128; Potter’s Dwarr. Stat. p. 644; Jefferson’s Manuel, If 3; Geyer v. Irwin, 4 Dali. 107, 1 L. ed. 762; 2 Bouvier’s Law Diet. p. 640, note; 1 Words & Phrases Judicially Defined, p. 861 ; People v. Rounds, 67 Mich. 482, 35 N. W. 79; Davis v. Burgess, 54 Mich. 514, 52 Am. Rep. 828, 20 N. W. 542; Bishop, Crim. Law, 7th ed. § 945; Dunn v. Reg. 12 Q. B. 1039, note; O’Connell v. Queen, 11 Clark & F. 251.

The privilege, even in civil cases, is not continuing, but exists only during certain periods.

1 Hatsell, Precedents, p. 40, note; 2 Bou- vier's Law Diet. Rawles’s Rev. p. 75; Heath’s Maxims, 279; 11 Vin. Abr. 2d ed. p. 36; 3 Stubb, Constitutional History of England, Oxford ed. 1880, p. 533; Lark’s Case, Rot. Pari. 4, 357, 1 Hatsell, Prece¬ dents, p. 17; Clerke’s Case, Rot. Pari. 5, 374, 1 Hatsell, Precedents, p. 34; Coxe v. M’Clenachan, 3 Dali. 478, 1 L. ed. 687.

283

Oct. Tebm,

Supreme Court op the United States.

The fact that the mere effort of the in¬ dividual may not be unlawful is no reason why the concerted attempt of several to do such prohibited thing may not be declared to be an offense against the United States. The extent of the authority of Congress in this respect was recognized in Clune v. United States, 159 U. S. 595, 40 L. ed. 271, 16 Sup. Ct. Rep. 125.

In indictments for conspiracy to commit an offense against the United States it is not necessary to state the object of the conspiracy with the same strictness and certainty as is required in an indictment for the commission of the offense itself.

Ching v. United States, 55 C. C. A. 304, 118 Fed. 540; United States v. Stevens, 44 Fed. 141 ; United States v. Wilson, 60 Fed.

When the object of the conspiracy is an *ct in itself unlawful, the means by which it was to be accomplished need not be set out in the indictment.

King v. Eccles, 1 Leach, C. L. 274; Thomas v. People, 113 Ill. 531; People v. Clark, 10 Mich. 310; People v. Bird, 126 Mich. 631, 86 N. W. 127; People v. Arnold, 46 Mich. 271, 9 N. W. 406; Pettibone v. United States, 148 U. S. 197, 203, 37 L. ed. 419, 422, 13 Sup. Ct. Rep. 542.

The timber and stone act does, in pur¬ pose and intent, prohibit an applicant, at any time before the completion of his en¬ try, from making any contract or agree¬ ment by which the title he may acquire shall inure to the benefit of any other person.

United States v. Budd, 144 U. S. 163, 36 L. ed. 387, 12 Sup. Ct. Rep. 575.

The courts of the United States will take judicial notice of the rules and regulations of the Land Department regarding the sale and exchange of the public lands.

Caha v. United States, 152 U. S. 221, 38 L. ed. 419, 14 Sup. Ct. Rep. 513; Cos¬ mos Exploration Co. v. Gray Eagle Oil Co. 190 U. S. 309, 47 L. ed. 1070, 23 Sup. Ct. Rep. 692.

The intention and motive of the entryman was a proper subject of inquiry.

Olson v. United States, 67 C. C. A. 21, 133 Fed. 849.

Testimony as to character of timber lands applied for, and as to school lands, was ad¬ missible because of their bearing upon the motive, intent, or design of the defendants in entering into the alleged conspiracy.

Wolfson v. United States, 41 C. C. A. 422, 101 Fed. 434; United States v. Budd, supra; Moore v. United States, 150 U. S. 60, 37 L. ed. 997, 14 Sup. Ct. Rep. 26; Olson v. United States, supra; Holmes v. Goldsmith, 147 U. S. 164, 37 L. ed. 123, 13 Sup. Ct. Rep. 288; People v. Bentley, 75 Cal. 409, 284

17 Pac. 436; 8 Cyc. Law & Proc. p. 685;

People v. Saunders, 25 Mich. 119.

Mr. Justice White delivered the opinion of the court:

This writ of error to review a criminal conviction is prosecuted directly from this court upon the assumption that rights un¬ der the Constitution are involved. The errors assigned, however, relate not only to such question, but also to many other sub¬ jects. If there be a constitutional question adequate to the exercise of jurisdiction, the duty exists to review the whole case. Bur¬ ton v. United States, 196 U. S. 283, 49 L. ed. 482, 25 Sup. Ct. Rep. 243.

The constitutional question relied on thus arose :

On February 11, 1905, Williamson, plain¬ tiff in error, while a member of the House of Representatives of the United States, was indicted, with two other persons, for al¬ leged violations of U. S. Rev. Stat. § 5440,

U. S. Comp. Stat. 1901, p. 3676, in con¬ spiring to commit the crime of subornation of perjury in proceedings for the purchase of public land under the authority of the law commonly known as the timber and stone act. The defendants were found guilty in the month of September, 1905. On Octo¬ ber 14, 1905, when the court was about to pronounce sentence, Williamson — whose term of office as a member of the House of Representatives did not expire until March 4, 1907 — protested against the court pass¬ ing sentence upon him, and especially to any sentence of imprisonment, on the ground that thereby *he would be deprived of his[4331 constitutional right to go to, attend at, and return from the ensuing session of Congress.

The objection was overruled, and William¬ son was sentenced to pay a fine and to im¬ prisonment for ten months. Exceptions were taken both to the overruling of the preliminary objection and to the sentence of imprisonment. Upon these exceptions, assignments of error are based, which, it is asserted, present a question as to the scope and meaning of that portion of article 1,

§ 6, clause 1, of the Constitution, relating to the privilege of senators and representa¬ tives from arrest during their attendance on the session of their respective houses, and in going to and returning from the same.

At the threshold it is insisted by the gov¬ ernment that the writ of error should be dismissed for want of jurisdiction. This rests upon the proposition that the con¬ stitutional question urged is of such a frivolous character as not to furnish a basis for jurisdiction, or, if not frivolous at the time when the sentence was imposed, it is now so. The first proposition assumes that it is so clear that the constitutional privi-

207 U. S.

1*67.

Williamson ▼. United States.

433—436

lege does not extend to the trial and pun¬ ishment, during his term of office, of a con¬ gressman for crime, that any assertion to the contrary affords no basis for jurisdiction. It is not asserted that it has ever been finally settled by this court that the constitutional privilege does not prohibit the arrest and punishment of a member of Congress for the commission of any criminal offense. The contention must rest, therefore, upon the as¬ sumption that the text of the Constitution so plainly excludes all criminal prosecutions from the privilege which that instrument ac¬ cords a congressman as to cause the con¬ trary assertion to be frivolous. But this conflicts with Burton v. United States, supra, where, although the scope of the privilege was not passed upon, it was de¬ clared that a claim interposed by a senator of the United States, of immunity from ar¬ rest in consequence of a prosecution and con¬ viction for a misdemeanor, involved a 'con¬ stitutional question of such a character as to give jurisdiction to this court by direct

writ *of error. It is said, however, that this ease differs from the Burton Case be¬ cause there the trial and conviction was had during a session of the Senate, while here, at the time of the trial, conviction, and sentence, Congress was not in session, and therefore to assert the protection of the constitutional provision is to reduce the claim “to the point of frivolousness.” This, however, but assumes that, even if the con¬ stitutional privilege embraces the arrest and sentence of a member of Congress for a crime like the one here involved, it is frivo¬ lous to assert that the privilege could pos¬ sibly apply to an arrest and sentence at any other time than during a session of Con¬ gress, even altnough the inevitable result of such arrest and sentence might be an impris¬ onment which would preclude the possibility of the member attending an approaching ses¬ sion. We cannot give our assent to the proposition. Indeed, we think, if it be con¬ ceded that the privilege which the Constitu¬ tion creates extends to an arrest for any criminal offense, such privilege would em¬ brace exemption from any exertion of power by way of arrest and prosecution for the commission of crime, the effect of which exertion of power would be to prevent a congressman from attending a future as well as a pending session of Congress. The con¬ tention that, although there may have been merit in the claim of privilege when as serted, it is now frivolous because of a change in the situation, is based upon the fact that at this time the Congress of which the accused was a member has ceased to exist, and therefore, even if the sentence was illegal when imposed, such illegality- lias been cured by the cessation of the con- 52 L. ed.

stitutional privilege. But, even if the prop¬ osition be conceded, it affords no ground for dismissing the writ of error, since our juris¬ diction depends upon the existence of a constitutional question at the time when the writ of error was sued out, and such jurisdic- diction, as we have previously said, carries with it the duty of reviewing any errors material to the determination of the validity of the conviction. It hence follows that, even if the constitutional question as as¬ serted is now “a mere abstraction,” that *fact would not avail to relieve us of the

duty of reviewing the whole case, and hence disposing of the assignments of error which are addressed to other than the constitu¬ tional question. Besides, we do not consider the proposition well founded, for, if at the time the sentence was imposed it was illegal because in conflict with the constitutional privilege of the accused, we fail to perceive how the mere expiration of the term of Con¬ gress for which the member was elected has operated to render that valid which was void because repugnant to the Constitution.

We come, then, to consider the clause of the Constitution relied upon, in order to determine whether the accused, because he was a member of Congress, was privileged from arrest and trial for the crime ir. ques¬ tion, or, upon conviction, was in any event privileged from sentence which would pre¬ vent his attendance at an existing or ap¬ proaching session of Congress.

The full text of the 1st clause of § 6, arti¬ cle 1, of the Constitution, is this:

“Sec. 6. The Senators and Representa¬ tives shall receive a Compehsation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.

They shall in all Cases, except Treason, Felony, and Breach of the Peace, be privi¬ leged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House they shall not be questioned in any other Place.”

If the words extending the privilege to all cases were unqualified, and therefore em¬ braced the arrest of a member of Congress for the commission of any crime, we think, as we have previously said, they would not only include such an arrest as operated to prevent the member from going to and re¬ turning from a pending session, but would also extend to prohibiting a court during an interim of a session of Congress from im¬ posing a sentence of imprisonment which would prevent him from attending a session of Congress in the future. But the ques¬ tion is not, What would be the scope of the words “all *cases” if those words embraced[430] all crimes? but is, What is the scope of the

285

436-438

Supreme Court of the United States.

qualifying clause? that is, the exception from the privilege of “treason, felony, and breach of the peace.” The conflicting con¬ tentions are substantially these: It is in¬ sisted by the plaintiff in error that the privilege applied because the offense in ques¬ tion is confessedly not technically the crime of treason or felony, and is not embraced within the words “breach of the peace,” as found in the exception, because “the phrase ‘breach of the peace’ means only actual breaches of the peace, offenses involving violence or public disturbance.” This re¬ stricted meaning, it is said, is necessary in order to give effect to the whole of the ex¬ cepting clause, since, if the words “breach of the peace” be broadly interpreted so as to cause them to embrace all crimes, then the words “treason” and “felony” will become superfluous. On the other hand, the gov¬ ernment insists that the words “breach of the peace” should not be narrowly construed, but should be held to embrace substantially all crimes, and therefore as in effect con¬ fining the parliamentary privilege exclu¬ sively to arrests in civil cases. And this is based not merely upon the ordinary ac¬ ceptation of the meaning of the words, but upon the contention that the words “treason, felony, and • breach of the peace,” as ap¬ plied to parliamentary privilege, were com¬ monly used in England prior to the Revolu¬ tion, and were there well understood as ex¬ cluding from the parliamentary privilege all arrests and prosecutions for criminal of¬ fenses; in other words, as confining the privilege alone to arrests in civil cases, the deduction being that when the framers of the Constitution adopted the phrase in ques¬ tion they necessarily must be held to have intended that it should receive its well-un¬ derstood and accepted meaning. If the premise upon which this argument proceeds be well founded, we think there can be no doubt of the correctness of the conclusion based upon it. Before, therefore, coming to elucidate the text by the ordinary principles of interpretation, we proceed to trace the origin of the phrase “treason, felony, and breach of the peace,” as applied to par¬ liamentary privilege, and to fix the meaning

*of those words as understood in this coun¬ try and in England prior to and at the time of the adoption of the Constitution. In the Articles of Confederation (last clause of article 5) it was provided:

“Freedom of speech and debate in Con¬ gress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprison¬ ments, during the time of their going to and from, and attendance on, Congress, ex- 286

Oct. Term,

cept for treason, felony, or breach of the

peace.”

In article 5 of “Mr. Charles Pinckney’s Draft of a Federal Government” it was pro¬ vided as follows (Elliott’s Debates, p. 146) :

“In each house a majority shall constitute a quorum to do business. Freedom of speech and debate in the legislature shall not be impeached or questioned, in any place out of it; and the members of both houses shall, in all cases except for treason, felony, or breach of the peace, be free from arrest during their attendance on Congress, and in going to and returning from it.”

The propositions offered to the convention by Mr. Pinckney, with certain resolutions of the convention, were submitted to a com¬ mittee of detail for the purpose of reporting a constitution. Section 5 of article 0 of the draft of constitution reported by this committe was as follows:

“Sec. 5. Freedom of speech and debate in the legislature shall not be impeached or questioned in any court or place out of the legislature; and the members of each house shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at Congress, and in going to and returning from it.”.

The clause would seem not to have been the subject of debate. 3 Doc. Hist, of Con¬ stitution (Dept, of State, 1900), 500. in Elliott’s Debates (p. 237) it is recited as follows :

“On the question to agree to the 5th sec¬ tion of the 0th article, as reported, it passed in the affirmative.”

*And in the revised draft the section was [4 reported by the committee of revision ex¬ actly as it now appears.

The presence of the exact words of the ex¬ ception as now found in the Constitution, in the Articles of Confederation, and the employment of the same words “treason, felony, and breach of the peace,” without discussion, in all the proceedings of the convention relating to the subject of the privileges of members of Congress, demon¬ strate that those words were then well known as applied to parliamentary privi¬ lege, and had a general and well-understood meaning, which it was intended that they should continue to have. This follows, be¬ cause it is impossible to suppose that ex¬ actly like words, without any change what¬ ever, would have been applied by all those engaged in dealing with the subject of legis¬ lative privilege, unless all had a knowledge of those words as applied to the question in hand, and contemplated that they should continue to receive the meaning which it was understood they then had. A brief con¬ sideration of the subject of parliamentary privilege in England will, we think, show

207 U. S.

Williamson v. United States.

438-440

the source whence the expression “treason, felony, and breach of the peace” was drawn, and leave no doubt that the words were used in England for the very purpose of excluding all crimes from the operation of the parlia¬ mentary privilege, and therefore to leave that privilege to apply only to prosecutions of a civil nature. We say this, although the court of common pleas in 1763 (King v. Wilkes, 2 Wils. 151) held that a member of Parliament was entitled to assert his privilege from arrest upon a charge of pub¬ lishing a seditious libel, the court ruling that it was not a breach of the peace. But, as will hereafter appear, Parliament promptly disavowed any right to assert the privilege in such cases.

In Potter’s Dwarris on Statutes, p. 601, reference is made to expressions of Lord Mansfield, advocating in 1770 the passage of a bill — which ultimately became a law — whose provisions greatly facilitated the prosecution of civil actions against members of Parliament, and restrained only arrests

of their persons *in such actions. The re¬ marks of Lord Mansfield having been made so shortly before the Revolution, and re¬ ferring, as they undoubtedly did, to the decision in the Wilkes Case, supra, are of special significance. Among other things he said:

“It may not be popular to take away any of the privileges of Parliament, for I very well remember, and many of your Lord- ships may remember, that not long ago the popular cry was for an extension of privi¬ leges, and so far did they carry it at that time that it was said that privilege pro¬ tected members from criminal actions, and such was the power of popular prejudice over weak minds that the very decisions of some of the courts were tinctured with that doctrine. . . . The laws of this country

allow no place or employment as a sanctuary for crime, and where I have the honor to sit as judge neither royal favor nor popu¬ lar applause shall ever protect the guilty.

. . . Members of both houses should be

free in their persons in cases of civil suits, for there may come a time when the safety and welfare of this whole empire may de¬ pend upon their attendance in Parliament. God forbid that I should advise any meas¬ ure that would in future endanger the state. But this bill has no such tendency. It ex¬ pressly secures the persons of members from arrest in all civil suits.”

Blackstone, in 1765, discussing the sub¬ ject of the privileges of Parliament, says (Lewis’s ed. *165) :

“Neither can any member of either house be arrested and taken into custody, unless

52 L. ed.

for some indictable offense, without a breach of the privilege of Parliament.”

And, speaking of the writ of privilege, which was employed to deliver the party out of custody when arrested in a civil suit, he said (*166) :

“It is to be observed that there is no precedent of any such writ of privilege, but only in civil suits; and that the statute of 1 Jac. I. chap. 13, and that of King William (which remedy some inconveniences arising from privilege of Parliament), speak only of civil actions. And therefore the claim of privilege hath been usually guarded with an exception as to the case of indictable ’’crimes; or, as it has been frequently ex- [4 40] pressed, of treason, felony, and breach (or surety) of the peace. Whereby it seems to have been understood that no privilege was allowable to the members, their families or servants, in any crime whatsoever, for all crimes are treated by the law as being contra pacem domini regis. And instances have not been wanting wherein privileged persons have been convicted of misdemean¬ ors, and committed, or prosecuted to out¬ lawry, even in the middle of a session; which proceeding has afterwards received the sanction and approbation of Parliament. To which may be added that a few years ago the ease of writing and publishing seditious libels was resolved by both houses not to be entitled to privilege; and that the reasons upon which that case proceeded extended equally to every indictable offense.”

The first volume of Hatsell's Precedents, published in April, 1776, is entitled as “re¬ lating to privilege of Parliament; from the earliest records to the year 1628: with ob¬ servations upon the reign of Car. I. from 1628 to 4 January 1641.” The material there collected has been frequently employed in support of the statement that the terms “treason, felony, and breach of the peace” were employed by the Commons in a broad, and not in a restricted, sense. And in the concluding chapter (V.), after stating (4th ed. 205) “the principal view, which the House of Commons seems always to have had in the several declarations of their privileges,” the author says (p. 206) :

“Beyond this, they seem never to have attempted ;' there is not a single instance of a member’s claiming the privilege of Par¬ liament to withdraw himself from the crimi¬ nal law of the land: for offenses against the public peace they always thought themselves amenable to the laws of their country: they were contented with being substantially se¬ cured from any violence from the Crown, or its ministers; but readily submitted themselves to the judicature of the King’s Bench, the legal court of criminal jurisdic¬ tion; well knowing that ‘Privilege which is

287

440-443

Supreme Court of the United States.

Oct. Term,

allowed in case of public service for the Commonwealth must not be used for the danger of the Commonwealth;’ or, as it is

'expressed in Mr. Glynn’s Report of the 6th of January, 1641, ‘They were far from any endeavor to protect any of their members, who should be, in due manner, prosecuted according to the Laws of the Realm, and the Rights and Privileges of Parliament, for treason, or any other misdemeanor; being sensible, that it equally imported them, as well to see justice done against them that are criminous, as to defend the just Rights and Liberties of the Subjects, and Parlia¬ ment of England.’ ”

May, in his treatise on the Law, Privi¬ leges, Proceedings, and Usage of Parliament, first published in 1844, says (10th ed. p. 112) :

“The privilege of freedom from arrest has always been limited to civil causes, and has not been allowed to interfere with the ad¬ ministration of criminal justice. In Larke’s Case, in 1429, the privilege was claimed, ‘ex¬ cept for treason, felony, or breach of the peace;’ and in Thorpe’s Case the judges made exceptions to such cases as be ‘for treason, or felony, or surety of the peace.’ The privilege was thus explained by a reso¬ lution of the Lords, 18th April, 1626: ‘That the privilege of this house is, that no peer of Parliament, sitting the Parliament, is to be imprisoned or restrained without sentence or order of the house, unless it be for treason or felony, or for refusing to give surety of the peace;’ and again, by a reso¬ lution of the Commons, 20th May, 1675, ‘that by the laws and usage of Parliament, privilege of Parliament belongs to every member of the House of Commons, in all cases except treason, felony, and breach of the peace.’

“On the 14th April, 1697, it was resolved, ‘That no member of this house has any privilege in case of breach of the peace, or forcible entries, or forcible detainers;’ and in Wilkes’s Case, 29th November, 1763, al¬ though the court of common pleas had de¬ cided otherwise, it was resolved by both houses,

“ ‘That privilege of Parliament does not extend to the case of writing and publish¬ ing seditious libels, nor ought to be allowed to obstruct the ordinary course of laws in

[4 4 2] the speedy *and effectual prosecution of so heinous and dangerous an offense.’

“ ‘Since that time,’ said the committee of privileges in 1831, ‘it has been considered as established generally, that privilege is not claimable for any indictable offense.’

“These being the general declarations of the law of Parliament, one case will be suffi¬ cient to show how little protection is prac¬ tically afforded by privilege, in criminal of- 288

fenses. In 1815, Lord Cochrane, a member, having been indicted and convicted of a con¬ spiracy, was committed by the court of King’s bench to the King’s bench prison.

Lord Cochrane escaped, and was arrested by the marshal, whilst he was sitting on the privy councilor’s bench, in the House of Commons, on the right hand of the chair, at which time there was no member present, prayers not having been read. The case was referred to the committee of privileges, who reported that it was ‘entirely of a novel nature, and that the privileges of Par¬ liament did not appear to have been vio¬ lated, so as to call for the interposition of the house, by any proceedings against the marshal of the King’s bench.’ ”

See also Bowyer, Const. Law of England,

2d ed. p. 84.

In what is styled Mr. Long Wellesley’s Case, decided in 1831, 2 Russ. & M. 639, the party named had been taken into cus¬ tody for clandestinely removing his infant daughter, a ward of the court, from the place where such ward was residing under authority of the court. The question for decision arose upon a motion to discharge the order for commitment “on the ground that, as a member of the House of Commons, he was protected from attachment by the privilege of Parliament.” As stated in the report of the case, the committee of privi¬ leges of the House of Commons, which had the matter of the arrest of Mr. Wellesley un¬ der consideration, decided, p. 644, “that Mr.

Long Wellesley’s claim to be discharged from imprisonment by reason of privilege of Parliament ought not to be admitted.”

On the subject of the extent of the privilege, counsel, *wlio as amicus curice contended that [44 3] the order of commitment was invalid, made an elaborate reference to authorities and pertinent statutes. Lord Chancellor Broug¬ ham, however, decided that privilege of Par¬ liament was no protection against an at¬ tachment for what was in its nature a crimi¬ nal contempt. Among other things he ob served that upon principle members of Par¬ liament could not be placed by privilege of Parliament above the law, and held (p.

665) “that he who has privilege of Par¬ liament, in all civil matters, matters which, whatever may be the form, are in substance of a civil nature, may plead it with success, but that he can in no criminal matter be heard to urge such privilege.”

And by text writers of authority in this country it has been recognized from the be¬ ginning that the convention which framed the Constitution, in adopting the words “treason, felony, and breach of peace” as applicable to the privileges of a parlia¬ mentary body, used those words in the sense

207 U. S.

443-445

WnxiAMsow v. United States.

which the identical words had been settled to mean in England.

Story, in his treatise on the Constitution, speaking of the subject, says:

“Sec. 859. The next part of the clause re¬ gards the privilege of the members from ar¬ rest, except for crimes, during their attend¬ ance at the sessions of Congress, and their going to and returning from them. This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange indeed if it were denied to the highest functionaries of the state in the discharge of their public duties. It belongs to Congress in common with all other legislative bodies which exist, or have existed in America since its first settlement, under every variety of government, and it has immemorially constituted a privilege of both houses of the British Parliament. It seems absolutely indispensable for the just exercise of the legislative power in every nation purporting to possess a free constitu¬ tion of government, and it cannot be sur¬ rendered without endangering the public liberties as well as the private independence of the members.

4] #“Sec. 865. The exception to the privilege is that it shall not extend to ‘treason, felony, or breach of the peace.’ These words are the same as those in which the excep¬ tion to the privilege of Parliament is usual¬ ly expressed at the common law, and were doubtless borrowed from that source. Now, as all crimes are offenses against the peace, the phrase ‘breach of the peace’ would seem to extend to all indictable offenses, as well those which are in fact attended with force and violence, as those which are only con¬ structive breaches of the peace of the gov¬ ernment, inasmuch as they violate its good order. And so, in truth, it was decided in Parliament, in the case of a seditious libel published by a member (Mr. Wilkes) against the opinion of Lord Camden and the other judges of the court of common pleas, and, as it will probably now be thought, since the party spirit of those times has subsided, with entire good sense and in fur¬ therance of public justice. It would be monstrous that any member should protect himself from arrest or punishment for a libel, often a crime of the deepest malignity and mischief, while he would be liable to arrest for the pettiest assault or the most insignificant breach of the peace.”

Cushing, in his treatise — first published in 1856 — on the elements of the law and prac¬ tice of legislative assemblies in the United States, declared (9th ed. § 546) that the Commons never went “the length of claim¬ ing any exemption from the operation of the criminal laws;” and the author closed a 52 L. ed.

discussion of the cases to which the privi¬ lege of Parliament was applicable (§§ 559- 563) by expressing an opinion “in favor of the board rule which withdraws the pro¬ tection of parliamentary privilege from of¬ fenses and criminal proceedings of every de¬ scription.” And, considering the privilege as affected by the Constitution of the United States and of the several states, he said :

“567. In the greater number of the con¬ stitutions it is expressly provided that mem¬ bers shall be privileged from arrest during their attendance at the session of their re¬ spective houses, and in going to and return¬ ing from the same, in all cases except ‘treason, *felony, and breach of the peace.’

This, it will be recollected, is the form in which the privilege is stated by Sir Edward Coke, and in which it is usually expressed by the English writers on parliamentary law; and it was undoubtedly adopted in the constitutions as correctly expressing the parliamentary rule on the subject. The in¬ accuracy of the language has already been pointed out, and it has been shown that, in England, the exception embraces all crimi¬ nal matters whatsoever, and, of course, in¬ cludes many cases which do not fall within the denomination either of treason, felony, or breach of the peace. The question there¬ fore arises whether the exception of treason, felony, or breach of the peace, being stated in express terms in these constitutions, is to be understood strictly, and confined to cases coming within the technical definitions of those offenses, or whether it is used as a compendious expression to denote all crimi¬ nal cases of every description. In favor of the latter opinion, it may be said, first, there can be no doubt that the framers of these constitutions intended to secure the privilege in question upon as reasonable and intelligible a foundation as it existed by the parliamentary and common law of Eng¬ land; in short, that, as in a multitude of other cases, they intended to adopt, with the words, the full meaning which had been given to them by usage and authoritative construction; and, second, that the word ‘felony,’ which alone gives rise to any doubt,

‘has derived so many meanings from so many parts of the common law, and so many statutes in England, and has got to be used in such a vast number of different senses, that it is now impos¬ sible to know precisely in what sense we a,re to understand it;’ and, consequently, that unless it is allowed to have such a signification as, with the other words of the exception, will cover the whole extent of criminal matters, it must be rejected al¬ together for uncertainty, or, at least, re¬ stricted to a very few cases. These rea¬ sons, alone, though others might be added,

19 28S)

445-448

Supreme Court of tiie United States.

Oct. Term,

are sufficient to establish the point that the terms ‘treason, felony, and breach of the peace,’ as used in our constitutions, em-

brace *all criminal cases and proceedings whatsoever. In the Federal government, therefore, and in the states above referred to, the privilege of exemption from legal process may be considered the same as it is in England.”

Since from the foregoing it follows that the term “treason, felony, and breach of the peace,” as used in the constitutional pro¬ vision relied upon, excepts from the opera¬ tion of the privilege all criminal offenses, the conclusion results that the claim of priv¬ ilege of exemption from arrest and sen¬ tence was without merit, and we are thus brought to consider the other assignments of error relied upon. They are, all but one, based on exceptions challenging the sufficien¬ cy of the indictment, and alleging the com¬ mission of material error in admitting and rejecting evidence, in refusing requested in¬ structions, and in the instructions given. The only assignment not based upon an ex¬ ception taken at the trial asserts that it is so clearly shown by the record that there is no proof tending to establish the commis¬ sion of the offense charged that it should be now so decided, even although no request to instruct the jury on that subject was made at the trial.

1. As to the sufficiency of the indictment.

With great elaboration it is insisted in argument that the indictment charges no crime, since there can be no such thing as a conspiracy to commit the offense of suborna¬ tion of perjury. While the statutes of the United States cause every person who pro¬ cures another to commit perjury to be guilty of subornation of perjury, it is said there is no punishment by statute, as at common law, for a mere attempt by an individual to in¬ duce the commission of perjury. This being so, t ho argument is that a charge of con¬ spiracy to suborn, etc., perjury, is in the nature of things but a charge of an attempt to suborn perjury, which amounts only to the charge of a conspiracy to do an act which is not a criminal offense. But the proposition wholly fails to give effect to the provisions of the conspiracy statute (U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3070), which clearly renders it criminal for two or more persons to conspire to commit

any offense against the United ‘States, pro¬ vided only that one or more of the parties to the conspiracy do an act towards effect¬ ing the object of the conspiracy. In other words, although it be conceded, merely for the sake of argument, that an attempt by one person to suborn another to commit per¬ jury may not be punishable under the crim¬ inal laws of the United States, it does not 290

follow that a conspiracy by two or more persons to procure the commission of per¬ jury, which embraces an unsuccessful at¬ tempt, is not a crime punishable as above stated. The conspiracy is the offense which the statute defines, without reference to whether the crime which the conspirators have conspired to commit is consummated.

And this result of the conspiracy statute al¬ so disposes of an elaborate argument con¬ cerning the alleged impossibility of framing an indictment charging a conspiracy to suborn perjury, since it rests upon the as¬ sumption that as the conspirators could not, in advance, know when they entered into the conspiracy that the persons would wil¬ fully swear falsely to what they and the conspirators knew to be false, there could be no conspiracy to suborn.

But, even on the supposition that a valid indictment may be framed charging a con¬ spiracy to commit subornation of perjury, the indictment in question, it is urged, is fatally defective by reason of an omission to directly particularize various elements claimed to be essential to constitute the offense of perjury, and other elements neces¬ sary to be averred in respect of the alleged suborners.

This is based upon the assumption that an indictment alleging a conspiracy to suborn perjury must describe not only the con¬ spiracy relied upon, but also must, with technical precision, state all the elements essential to the commission of the crimes of subornation of perjury and perjury, which, it is alleged, is not done in the indictment under consideration. But in a charge of conspiracy the conspiracy is the gist of the crime, and certainty, to a com¬ mon intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy. Looking at the indict¬ ment, *it in terms charges an unlawful con-[448.1 spiracy and combination to have been en¬ tered into on a date and at a place named within the district where the indictment was found, and the object of the conspiracy is stated to be the suborning of a large num¬ ber of persons to go before a named person, stated to be a United States commissioner of the district of Oregon, and, in proceed¬ ings for the entry and purchase of land in such district under the timber and stone acts, make oath before the official that the lands “were not being purchased by them a speculation, but were being purchased in good faith to be appropriated to the own ex¬ clusive use and benefit of those persons, re¬ spectively, and that they had not directly or indirectly made any agreement, or con¬ tract in any way or manner, with any other

2Q7 U.

Williamson v. United States.

448-450

person or persons whomsoever, by which the titles which they might acquire from the said United States in and to such lands should enure in whole or in part to the benefit of any person except themselves, when, in truth and in fact, as eacli of the said persons would then well know, and as they, the said John Newton Williamson, Van Gesner, and Marion R. Riggs, would then well know, such persons would be applying to purchase such lands on speculation, and not in good faith to appropriate such lands to their own ex¬ clusive use and benefit respectively, and would have made agreements and contracts with them, the said John Newton William¬ son, an Gesner and Marion R. Biggs, by which the titles which they might acquire from the said United States in such lands would entire to the benefit of the said John Newton Williamson and Van Gesner, as co¬ partners in the firm of Williamson & Ges¬ ner, then and before then engaged in the business of sheep raising in said count}'; the matters so to be stated, subscribed, and sworn by the said persons being material matters under the circumstances, and matters 'which the said persons so to be suborned, instigat¬ ed, and procured, and the said John Newton Williamson, Van Gesner, and Marion R. Biggs would not believe to be true; and the said Marion R. Biggs, United States com¬ missioner as aforesaid, when administering such oaths to those persons, being an officer [4 4 9]and person authorized by law ‘of the said United States to administer the same oaths, and the said oaths being oaths administered in cases where a law of the said United States would then authorize an oath to be administered.”

These allegations plainly import, and they are susceptible of no other construction, than that the unlawful agreement contem¬ plated a future solicitation of individuals to enter lands, who in so doing would neces¬ sarily knowingly state and subscribe under oath material false statements as to their purpose in respect to entering the land, etc., and known to be such by the conspirators. There is no reason to infer that the details of the unlawful conspiracy and agreement are not fully stated in the indictment, and it may therefore be assumed that the persons who were to he suborned, and the time and place of such subornation, had not been de¬ termined at the time of the conspiracy, ex¬ cept as might be inferred from a purpose to procure the persons to be suborned to come before the United States commissioner for the district of Oregon named in the in¬ dictment. It was not essentia] to the com¬ mission of the crime that in the minds of the conspirators the precise persons to be suborned, or the time and place of such suborning, should have been agreed upon; 52 Li. ed.

and as the criminality of the conspiracy charged consisted in the unlawful agreement to compass a criminal purpose, the indict¬ ment, we think, sufficiently set forth such purpose. The assignments of error which assailed the sufficiency of the indictment are therefore without merit.

to the admission of evidence as to the un¬ derstanding of the applicants concerning their arrangement with Gesner, one of the accused, and the purpose of the applicants in applying for the land; (b) to the ad¬ mission of the final proofs, which embraced a sworn statement, made pursuant to the requirements of a regulation adopted by the Commissioner of the General Land Office, de¬ claring the bona fides of the applicant and that at that period he had made no contract or agreement to dispose of the land; ‘and (c)[450j to evidence respecting the character of the. land and concerning an attempt to acquire and the acquisition by like wrongful methods of state school lands located near the gov¬ ernment timber lands in question.

As we shall hereafter have occasion to consider the instructions of the court con¬ cerning the scope of the indictment as to the final proofs and the law applicable to that subject, we put out of view for the moment the objections just men¬ tioned, under subdivision b, relating to the final proofs and the intention of the appli¬ cants in respect to the land at the time such final proof was made, and therefore pres¬ ently consider the objections in so far only as they concern the other subjects.

The issue being the existence of a con¬ spiracy to suborn various persons to com¬ mit perjury in relation to declarations to be made, under the timber and stone act, as to the purpose for which they desired to ac¬ quire land, etc., and as it is conceded that no formal contracts were executed between the alleged conspirators and the proposed entrymen, and the alleged understandings were of an ambiguous nature, and proof of the conspiracy depended upon a variety of circumstances going to show motive or in¬ tent, we think it was proper to permit the interrogation of the entrymen concerning their understanding of the arrangement with Gesner and their intention at the time when they made their preliminary declarations, as the testimony was relevant to the ques¬ tion of the nature and character of the deal¬ ings of the entrymen with the alleged con¬ spirators, and bore on the question of the purpose or motive which influenced the making of the sworn statement required by law as a condition precedent to the pur¬ chase of the land. As it was insisted that the motive which impelled the formation of the conspiracy was the desire to acquire a

291

450-453

Supreme Court of the United States.

Oct. Term,

large tract of land for sheep-gracing pur¬ poses, which acquisition had become neces¬ sary by reason of the fact that a rival had obtained a leasehold interest in a consider¬ able portion of the land which Gesner and Williamson had theretofore used in their

sheep-raising ‘business, we think the testi¬ mony as to the character of the timber lands in respect to suitability for grazing pur¬ poses, etc. [was competent], and an attempt to acquire and the acquisition of state school lands was, we think, also competent as tend¬ ing to establish on the part of the conspira¬ tors guilty intent, purpose, design, or knowl¬ edge.

The contention that the proof on the sub¬ jects just stated should not have been ad¬ mitted, because it tended to show the com¬ mission of crimes other than those charged in the indictment, and consequently must have operated to prejudice the accused, is, we think, without merit, particularly as the trial judge, in his charge to the jury, care¬ fully limited the application of the testimo¬ ny so as to prevent any improper use there¬ of.

The conclusion above expressed as to the admissibility of the evidence objected to is elucidated by Holmes v. Goldsmith, 147 U. S. 164, 37 L. ed. 123, 13 Sup. Ct. Rep. 292, where it was said :

“As has been frequently said, great lati¬ tude is allowed in the reception of circum¬ stantial evidence, the aid of which is con¬ stantly required, and therefore, where direct evidence of the fact is wanting, the more the jury can see of the surrounding facts and circumstances the more correct their judgment is likely to be. ‘The competency of a collateral fact to be used as the basis of legitimate argument is not to be deter¬ mined by the conclusiveness of the infer¬ ences it may afford in reference to the liti¬ gated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth.’ . . .

\ “The modern tendency, both of legisla¬ tion and of the decision of courts, is to give as wide a scope as possible to the investi¬ gation of facts. Courts of error are speci¬ ally unwilling to reverse cases because un¬ important and possibly irrelevant testimony may have crept in, unless there is reason to think that practical injustice has been there¬ by caused.”

the refusal to give ‘requested instructions, and to portions of the charge of the court. Many of the requested instructions, how¬ ever, are so clearly without merit, because in effect covered by the charge as given, 292

that we do not deem it necessary to par¬ ticularly notice them. The only subjects which we think are sufficiently important to require express notice are —

(a) That, even although no request was made to instruct the jury on the whole evi¬ dence to render a verdict of not guilty, nevertheless it should now be held that the record establishes such an entire absence of proof tending to show guilt that it should be so declared.

(b) That prejudicial error was committed by the trial court in refusing requested in¬ structions to the effect that the jury should acquit if they found that the defendants acted in good faith, under the advice of counsel and in the belief of the lawfulness of their conduct.

(c) Exceptions in respect to the instruc¬ tion given by the court that the indictment covered perjury in the matter of the final proofs, and in instructing the jury that they might convict if satisfied by the evidence, beyond a reasonable doubt, that the defend¬ ants intended that the persons who might be procured or induced to make entries of lands should wilfully and deliberately commit perjury in particulars stated at the time of making their depositions or sworn state¬ ments when they made their final proofs be¬ fore the United States commissioner, and in effect charging that a sworn statement made at the time of final proof concerning the purpose for which the land was sought to be purchased, etc., would constitute perjury if the oath so taken, although not expressly embraced in the statute, was required by a regulation of the Commissioner of the Gen¬ eral Land Office, because such regulation had the force and effect of law. We shall consider the propositions seriatim.

(a) Whilst it has been settled that in a criminal case where it plainly appeared that there was no evidence whatever justifying conviction, this court would so hold, despite

the ‘failure to request an instruction of ac-

quittal (Wiborg v. United States, 163 U. S.

638, 41 L. ed. 291, 16 Sup. Ct. Rep. 1127,

1197; Clyatt v. United States, 197 U. S.

207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429), this case affords no occasion for applying the rule, because it is not certified that the bill of exceptions contains the entire evi¬ dence, and we are not otherwise satisfied that it does, and, further, because it is re¬ cited in the bill of exceptions that “the plaintiff offered evidence during said trial sufficient to go to the jury, tending to prove each and every material allegation of the in¬ dictment.”

(b) Without attempting to review in de¬ tail the requested charges concerning motive and intent and the effect of advice of coun¬ sel, we think the trial judge in instructing the jury on the subject went as far in favor

207 U. S.

Williamson v. United States.

453, 454

of the accused as it was possible for him to go consistently with right, and therefore there is no ground for complaint as to the failure to give the requested charges. The court, after having fully and carefully in¬ structed the jury as to the operative effect of good faith in relieving the defendants from the charge made against them, in ex¬ press terms noticed the question of the ad¬ vice of counsel, and said:

“Having now placed before you the timber and stone law, and what it denounces, and what it permits, if a man honestly and in good faith seeks advice of a lawyer as to what he may lawfully do in the matter of loaning money to applicants under it, and fully and honestly lays all the facts before his counsel, and in good faith and honestly

tThe defendants, each of them, also ex¬ cepted to the giving of said instruction hereinbefore set forth, reading as follows: “Now, when the sworn statement is filed, the register posts a notice of the application, embracing a description of the land, in his office for a period of sixty days, and furnish¬ es the applicant a copy of the same for pub¬ lication in a newspaper published nearest the location of the premises, for a like peri¬ od of time. And it is provided by law, and by regulation duly made by proper authority and having the force and effect of law, that, after the expiration of said sixty days, the person or claimant desiring to purchase shall furnish to the register of the land office satisfactory evidence, among other things, that notice of the application pre¬ pared by the register was duly published in a newspaper as required by the law; that the land is of the character contemplated in the act; that the applicant has not sold or trans¬ ferred his claim to the land since making his sworn statement, and has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person whomsoever, by which the title he may ac¬ quire from the government may enure, in whole or in part, to the benefit of any per¬ son except himself, and that he makes his entry in good faith, for the appropriation of the land exclusively for his own use, and not for the use and benefit of any other per¬ son,” — as not the law and misleading, and directing the attention of the jury to a matter not charged in the indictment.

Defendants, each of them, also then and there expected to the giving of said instruc¬ tion as hereinbefore set forth, reading as follows: “But, as heretofore said, if he is not in good faith, and has directly or in¬ directly made any agreement or contract in any way or manner with any persons by which the title he may acquire from the United States shall enure, in whole or in part, to the benefit of any persons except himself, then he commits perjury in making his sworn statement, and in making a depo¬ sition that he has not done those things; and any person who knowingly and wilfully procures and instigates the person to make 52 L. ed.

follows such advice, relying upon it and be¬ lieving it to be correct, and only intends that his acts shall be lawful, he could not be convicted of crime which involves wilful and unlawful intent; even if such advice were an inaccurate construction of the law. But, on the other hand, no man can wilfully and knowingly violate the law, and excuse himself from the' consequences thereof by pleading that he followed the advice of counsel.”

(c) As the contentions under this head concern the instructions of the court in re¬ lation to the final proof and the effect of the regulations of the Commissioner of the Gen¬ eral Land ‘Office relative to the subject, the [4 54] exceptions taken to the charge in relation to the matter are in the margin. t

such sworn statement or deposition is guilty of subornation of perjury,” — and especially to the words in said paragraph, “and in making a deposition that he has not done those things,” — upon the ground that the same is not the law, and misleading, and directs the attention of the jury to a matter not charged in the indictment.

Defendants also except to the giving of the instruction hereinbefore set forth, which reads as follows: “The essential questions, then, for your determination, are, Does the evidence show, beyond a reasonable doubt, that Williamson, Gesner, and Biggs, or two of them, knowingly and intentionally entered into an agreement or combination to induce or procure persons to apply to purchase and enter the lands as alleged, or some part of the lands charged in the indictment, as lands subject to entry under the timber and stone act, after having first come to an agree¬ ment or understanding with such persons that they would convey the title which they might acquire to Williamson and Gesner, or either of them ? and, next, Does the evidence satisfy you beyond a reasonable doubt that these defendants, so combining and agreeing, intended that the persons, or some of the persons, whom they might procure or induce to make such entries, should wilfully and deliberately, in making their sworn state¬ ments or applications to purchase such lands at the time of making the first paper called a sworn statement, or at the time of mak¬ ing their depositions or sworn statements when they made their final proofs before the United States commissioner applying to pur¬ chase such lands, commit perjury by swear¬ ing falsely that their applications were not made on speculation, but in good faith, to appropriate the lands to the exclusive use and benefit of the applicant or applicants, and that the applicant or applicants had not, directly or indirectly xnade any agreement or contract in any way or manner by which the title to be acquired from the United States should enure, in whole or in part, to the benefit of any persons other than himself or herself?” — and especially to the words therein, “or some of the persons,” and also to the words, “or at the time of

293

454-468

Supreme Court of the Uioted States.

Oct. Term,

Further, as in ordar to dispose of these {4 5 5] objections it becomes ’necessary to consider not only the scope of the indictment, but, moreover, to construe the timber and stone act, and, it may be, to determine the valid¬ ity of the regulation of the General Land Office heretofore referred to, the material portions of the act are in the margin,! as well as the regulation in question.

’Contenting ourselves with referring to the quotation already made from the indict¬ ment, we are of opinion that the particular false swearing to which the indictment re- [4 5 7]lated was alone the ’verified written state¬ ment provided for in $ 2 of the act, to be made on applying to purchase the land, and therefore the indictment did not embrace a [4 58]charge concerning a statement ’or deposition under oath required to be made by any regu¬ lation of the Commissioner of the General Land Office, after the publication of the

notice, and when the period had arrived for final action by the land office on the applica¬ tion to purchase. It seems to us clear that the indictment was thus restricted, since all Jie language in it speaks as of the time of the first statement, no reference is made to any regulation of the Commissioner sup¬ plementing the statute in any particular, and each of the nineteen overt acts charged to hr,ve been committed exclusively relates to the statement required by § 2, and to none other. We are of opinion that the elaborate argument made by the government concerning the use in the indictment of the words “declarations and depositions” can serve only to suggest ambiguity in the in¬ dictment, and possible doubt as to the mean¬ ing of the pleader. But, as of course, in a criminal case, doubt must be resolved in favor of the accused, we hold that the in- dictment does not charge a conspiracy to

sixth, eighteen hundred and sixty-six, en¬ titled “An Act Granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for Other Purposes” [14 Stat. at L. 251, chap. 262], shall be abrogated by this act; and all patents granted shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under and by the provisions of said act; and such rights shall be expressly reserved in any patent is¬ sued under this act.

Sec. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivi¬ sions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation and valuable chiefly for its timber or stone; that it is unin¬ habited; contains no mining or other im¬ provements, except for ditch or canal pur¬ poses, where any such do exist, save such as were made by or belonged to the appli¬ cant, nor, as deponent verily believes, any deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other ap¬ plication under this act; that he does not apply to purchase the same on speculation, but in good faith, to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract in any way or man¬ ner with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should enure, in whole or in part, to the benefit of any person except himself, which statement must be verified by the oath of the applicant before the register or the re¬ ceiver of the land office within the district where the land is situated; and if any per¬ son taking such oath shall swear falsely in the premises, he shall be subject to all the

207 U. S.

making their depositions or sworn state¬ ments when they made their final proofs be¬ fore the United States commissioner,” as misleading, and not the law, and applying to a matter not charged in the indictment, and variant from said indictment.

fTimber and Stone Act.

(Approved June 3, 1878, 20 Stat. at L. 89, U. S. Comp. Stat. 1901, p. 1545.)

Chap. 151. — An Act for the Sale of Timber

Lands in the States of California, Oregon,

Nevada, and in Washington Territory.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That sur¬ veyed public lands of the United States within the states of California, Oregon, and Nevada, and in Washington Territory, not included within military, Indian, or other reservations of the United States, valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale according to law, may be sold to citi¬ zens of the United States, or persons who have declared their intentions to become such, in quantities not exceeding one hun¬ dred and sixty acres to any one person or association of persons, at the minimum price of two dollars and fifty cents per acre; and lands valuable chiefly for stone may be sold on the same terms as timber lands: Pro¬ vided, That nothing herein contained shall defeat or impair any bona fide claim under any law of the United States, or authorize the sale of any mining claim, or the im¬ provements of any bona fide settler, or lands containing gold, silver, cinnabar, cop¬ per, or coal, or lands selected by the said states under any law of the United States donating lands for internal improvements, education, or other purposes : And pro¬ vided further, That none of the rights con¬ ferred by the act approved July twenty- 294

Williamson v. United States.

458, 459

suborn perjury in respect of the making of the final proofs, and therefore that there was prejudicial error committed in the in¬ structions to the jury on that subject which were excepted to.

As, however, the question which we have hitherto passed over, concerning the ad¬ missibility of the final proof to show motive in making the original application, may arise at a future trial, even although it be that the indictment charges only a con¬ spiracy to suborn perjury as to the original application, we proceed to consider that sub¬ ject. To do so it becomes necessary to de¬ termine whether the statute requires an ap¬ plicant, after he has made his preliminary sworn statement concerning the bona tides of his application and the absence of any contract or agreement in respect to the title, to additionally swear to such facts after notice of his application has been pub-

pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title tc the same, and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void.

Sec. 3. That upon the filing of said state¬ ment, as provided in the second section of this act, the register of the land office shall post a notice of such application embracing a description of the land by legal sub¬ divisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication, at the expense of such applicant, in a newspaper published nearest the location of the premises, for a like period of time; and after the expira¬ tion of said sixty days, if no adverse claim shall have been filed, the person desiring to purchase shall furnish to the register of the land office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly pub¬ lished in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied, and without improvements, other than those ex¬ cepted, either mining or agricultural, and that it apparently contains no valuable de¬ posits of gold, silver, cinnabar, copper, or coal; and upon payment to the proper officer of the purchase money of said land, to¬ gether with the fees of the register and the receiver, as provided for in case of mining claims in the twelfth section of the act ap¬ proved May tenth, eighteen hundred and seventy-two [17 Stat. at L. 95, chap. 152], the applicant may be permitted to enter said tract, and, on the transmission to the General Land Office of the papers and testi¬ mony in the case, a patent shall issue there¬ on ; Provided, That any person having a valid claim to any portion of the land may object, in writing, to the issuance of a pat¬ ent to lands so held by him, stating the 52 I j. ed.

lished and the time has arrwed for final ac¬ tion on the application. And this, of course, involves deciding whether the regulation of the Commissioner exacting such additional statement at the time of final hearing is valid. The inquiry concerns only the *2d

and 3d sections of the act. Turning to the 2d section, it will be seen that it re¬ quires the applicant to make a sworn state¬ ment, giving many particulars concerning the land, — its unfitness for cultivation; its being uninhabited; the absence of mineral, etc., etc., — followed by the requirement that the applicant shall declare that he makes the application, not for the purpose of specu¬ lation,, but in good faith, and that he in¬ tends to appropriate the land to his own exclusive use and benefit, and that no agree¬ ment has been made, directly or indirectly, with any person or persons whatsoever by which the title to be acquired from the gov-

nature of his claim thereto; and evidence shall be taken, and the merits of said ob¬ jection shall be determined by the officers of the land office, subject to appeal, as in other land cases. Effect shall be given to the foregoing provisions of this act by regu¬ lations to be prescribed by the Commissioner of the General Land Office.

Circular from the General Land Office Show¬ ing the Manner of Proceeding to Obtain Title to Public Lands under the Home¬ stead, Desert Land, and Other Laws, Is¬ sued July 11, 1899, p. 46:

satisfaction of the register and receiver at time of entry, as required by the third section of the act, must be taken before the register and receiver, and will consist of the testimony of claimant, corroborated by the testimony of two disinterested witnesses.

The testimony will be reduced to writing by the register and receiver upon the blanks provided for the purpose, after verbally pro¬ pounding the questions set forth in the printed forms. The accuracy of affiant’s in¬ formation and the bona tides of the entry must be tested by close and sufficient oral examination. The register and receiver will especially direct such examination to ascer¬ tain whether the entry is made in good faith, for the appropriation of the land to the entry man’s own use, and not for sale or speculation, and whether he has con¬ veyed the land or his right thereto, or agreed to make any such conveyance, or whether he lias directly or indirectly entered into any contract or agreement in any manner with any person or persons whomsoever by which the title that may be acquired by the entry shall enure, in whole or in part, to the benefit of any person or persons except himself. They will certify to the fact of such oral examination, its sufficiency, and his satisfaction therewith.

295

459-401

Supreme Court of the United States.

Oct. Term,

ernment shall enure, in whole or in part, to any person except the applicant. And the section concludes by causing any false statement made in the sworn application to constitute the crime of perjury. Examin¬ ing the 3d section, it will be seen that it provides that upon the filing of said state¬ ment, as provided in the 2d section, it shall Ibe the duty of the local land officer to post a notice of the application in his office for sixty days, to furnish the applicant with a copy of such notice for publication, at the expense of the applicant, in the nearest newspaper for sixty days, and when such period has expired, on proof of the publica¬ tion and of certain facts which the statute expressly enumerates, the applicant shall, upon payment of the requisite charge, in the absence of a contest, be entitled to a patent for the land. Examining the items which the statute requires the applicant to make proof of after showing publication, it is apparent that while some of the things re¬ ferred to in the prior section, and which are required to be stated in the preliminary proof, are reiterated, all requirement is omitted of any statement regarding a specu¬ lative purpose on the part of the applicant, his bona tides, and his intention to acquire for himself alone. When the context of the statute is thus brought into view, we are of the opinion that it cannot possibly be held, without making by judicial legislation a new law, that the statute exacts from the applicant a reiteration, at the final hearing, of the declaration concerning his purpose in [4 0O]acquiring *title to the land, since to do so would be to construe the statute as in¬ cluding in the final hearing that which the very terms of the statute manifest was intended to be excluded therefrom. We say this, because, as the 3d section re-exacts in the final application a reiteration of some of the requirements concerning the character of the land made necessary in the first ap¬ plication, and omits the requirement as to the bona fidcs, etc., of the applicant, it fol¬ lows, under the elementary rule that the inclusion of one is the exclusion of the other, that the re-exacting of a portion only of the requirements was equivalent to an ex¬ press declaration by Congress that the re¬ maining requirements should not be exacted at the final proof. And this becomes par¬ ticularly cogent when the briefness of the act is considered, when the propinquity of the two provisions is borne in mind, — a propinquity which excludes the conception that the legislative mind could possibly have overlooked in one section the provisions of a section immediately preceding, — especial¬ ly when in the last section some of the re¬ quirements of the prior section are re-ex¬ pressed and made applicable to the final 296

statement. Indeed, we cannot perceive how, under the statute, if an applicant has in good faith complied with the requirements of the 2d section of the act, and, pending the publication of notice, has contracted to convey, after patent, his rights in the land, his so doing could operate to forfeit his right. These conclusions are directly sus¬ tained by a recent ruling in Adams v. Church, 193 U. S. 510, 48 L. ed. 769, 24 Sup. Ct. Rep. 512, construing the timber culture act. Under that law an applicant for entry was obliged, among other things, in making his application, to swear to his good faith and to the absence of speculative purpose, in the exact words of the statute now under consideration. But in the tim¬ ber culture act, as in the timber and stone act, the requirement was not reimposed in respect to the final proof. v In the cited case the entryman, who had complied with the statute in making his application, had, between the date of the application and the making of final proof, disposed of his right, and the question was whether by so doing he had forfeited *his claim. In deciding ad-[4 61] versely to the contention that he had, the court said (p. 516) :

“But as the law does not require affi¬ davit before final certificate that no in¬ terest in the land has been sold, we perceive no reason why such contract as was found to exist by the supreme court of Oregon would vitiate the agreement to convey after the certificate is granted and the patent is¬ sued. If the entryman has complied with the statute and made the entry in good faith, in accordance with the terms of the law and the oath required of him upon mak¬ ing such entry, and has done nothing incon¬ sistent with the terms of the law, we find nothing in the fact that, during his term of occupancy, he has agreed to convey an interest to be conveyed after patent issued, which, will defeat his claim and forfeit the right acquired by planting the trees and complying with the terms of the law. Had Congress intended such result to follow from the alienation of an interest after entry in good faith, it would have so declared in the law. Myers v. Croft, 13 Wall. 291, 20 L. ed. 562.”

It is elaborately insisted on behalf of the government that there is a difference be¬ tween the timber culture act and the timber and stone act, resulting from the fact that in the one case in the interim between the entry and the final proof a long time must elapse and much is required to be done by the applicant, while in the other a short time intervenes and substantially nothing is required to be done. But this reasoning,

207 U. S.

Howard v. Illinois C. R. Co.

461-403

in effect, assails the wisdom of Congress in omitting the requirement in the act under consideration, and affords no ground for inserting in the act requirements which Congress has, by express intendment, ex¬ cluded therefrom. Besides, the weakness of the argument becomes apparent when it is borne in mind that the timber and stone act and the timber culture act were enacted by the same Congress and with only a few days’ interval between the two.

It remains only to consider whether it was within the power of the Commissioner of the General Land Office to enact rules and regulations by which an entrvman would 0 2]be compelled *to do that at the final hearing which the act of Congress must be con¬ sidered as having expressly excluded, in or¬ der thereby to deprive the entryman of a right which the act by necessary implication conferred upon him. To state the question is to answer it. As observed in Adams v. Church (p. 517) : “To sustain the conten¬ tions . . . would be to incorporate

. a prohibition against the alienation of an interest in the lands, not found in the stat¬ ute or required by the policy of the law upon the subject.” True it is that in the concluding portion of § 3 of the timber and stone act it is provided that “effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Com¬ missioner of the General Land Office.” But this power must, in the nature of things, be construed as authorizing the Commissioner of the General Land Office to adopt rules and regulations for the enforcement of the statute, and cannot be held to have au¬ thorized him, by such an exercise of power, to virtually adopt rules and regulations de¬ structive of rights which Congress had con¬ ferred. As, then, there was no requirement concerning the making in the final proof of an affidavit as to the particulars referred to, and as the entryman who had complied with the preliminary requirements was un¬ der no obligation to make such an affidavit, and had full power to dispose ad interim of his claim upon the final issue of patent, we think the motive of the applicant at the time of the final proof was irrelevant, even under the broad rule which we have previ¬ ously in this case applied, and therefore that error was committed not alone in in¬ structing the jury that the indictment cov¬ ered or could cover the procurement of per¬ jury in connection with the final proof, and that the jury might base a conviction there¬ on, but in admitting the final proof as evi¬ dence tending to show the alleged illegal 52 h. ed.

purpose in the primary application for the purchase of the lands.

Reversed and remanded.

Mr. Justice Harlan is of opinion that no substantial error was committed, and the judgment should be affirmed.