law, as stated in the Institutes of Justinian, lib. II., title I., sec. 34.

After speaking of a painting by one man on the tablet of another, and holding it to be absurd that the work of an Apelles or Parrhasius should go without compensation to the owner of a worthless tablet, if the painter had possession fairly, he says, as translated by Dr. Coop"But if he, or any other, shall have taken away the tablet feloniously, it is evident the owner may prosecute by action of theft."

er:

The case of Nesbitt v. Lumber Co., 21 Minn.,

491, is directly in point here. The Supreme Court of Minnesota says: "The defendant claims that because they (the logs) were enhanced in value by the labor of the original wrong-doer in cutting them, and the expense of transporting them to Anoka, the plaintiff is not entitled to recover the enhanced value, that is, that he is not entitled to recover the full value at the time and place of conversion." That was a case, like this, where the defendant was the innocent purchaser of the logs from the willful wrongdoer, and where, as in this case, the transportation of them to a market was the largest item in their value at the time of conversion by defendant; but the court overruled the proposition and affirmed a judgment for the value at Anoka, the place of sale.

ch. 287, prohibiting officers or employés of the United
States from requesting, giving to or receiving from
any other officer or employé of the government any
money or property or other thing of value for po-
litical purposes, under a penalty of being discharged
and, on conviction fined, is constitutional.
2. The jurisdiction of this court, to review the
judgments of the inferior courts of the United
States in criminal cases by habeas corpus, is limited
to the single question of the power of the court to
commit the prisoner for the act of which he has
[No. 6 Orig.]

been convicted.

Argued Oct. 24, 25, 1882. Decided Dec. 18, 1882.
PETITION for a writ of habeas corpus.

of habeas corpus is asked for in this case by the petitioner, in order to relieve him from imprisonment under a judgment of the Circuit Court of the United States for the Southern District of New York; that judgment having been rendered upon his conviction under an indictment charging him, an employé of the United States, with having received money, etc., for political purposes, from other employés of the Government, contrary to the Statute of 1876, chapter 287, section 6, 19 Stat. at L., 169; Rich. Supp., 245.

A further statement of the case appears in the opinion of the court.

Messrs. Edwin B. Smith, T. H. N. McPherson, William Stanley and Stephen G. Clarke, for petitioner:

The Constitution contains no clause and no grant of power, upon which such a law, passed for such a purpose, can rest.

To establish any other principle in such a case as this, would be very disastrous to the interest of the public in the immense forest lands of the Government. It has long been a matter of complaint that the depredations upon these If Congress can, because of his employment, lands are rapidly destroying the finest forests in make criminal any act of a federal employé, the world. Unlike the individual owner, who, outside the discharge of official duty, it may do by fencing and vigilant attention, can protect so as to every act of his life. Either the nature his valuable trees, the Government has no ade-of the relation and the duties it imposes, mustquate defense against this great evil. Its liber- define and circumscribe the power of regulaality in allowing trees to be cut on its land for tion and dictation by the superior, or else it is mining, agricultural and other specified uses, without limitation. has been used to screen the lawless depredator who destroys and sells for profit.

To hold that when the Government finds its own property in hands but one remove from these willful trespassers, and asserts its right to such property by the slow processes of the law, the holder can set up a claim for the value which has been added to the property by the guilty party in the act of cutting down the trees and removing the timber, is to give encouragement and reward to the wrong-doer, by providing a safe market for what he has stolen and compensation for the labor he has been compelled to do, to make his theft effectual and profitable.

We concur with the Circuit Judge in this case, and the judgment of the Circuit Court is affirmed.

The subject-matter sets the bounds, which Congress may not pass.

No act, committed within a State, can be made an offense against the United States, "Unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States."

U. S. v. Fox, 95 U. S., 672 (XXIV., 539); Tennessee v. Davis, 100 U. S., 260 (XXV.,649). Gen. Curtis is not charged with receiving this money in the course of nor in violation of ofcial duty.

It is because the transaction has no relation to official duty, that it is something with which the Federal Government has, properly, nothing to do.

Not having any relation to the execution of a power of Congress, nor to any "matter within the jurisdiction of the United States," U. S. v. James H. McKenney, Clerk, Sup. Court, U. S. Fox, 95 U. S., 672 (XXIV., 539), Congress has Cited-20 N. W. Rep., 156.

True copy. Test:

Ex Parte:

In the Matter of NEWTON MARTIN
CURTIS, Petitioner.

(See S. C., 16 Otto, 371-379.)

Act as to money for political purposes-jurisdiction in criminal cases.

1. The 6th sectionof the Act of August 15, 1876,

no right to command in respect to it, and ought not to be obeyed.

This act is the sole instance, in the entire legislation of the country, of basing a conviction of crime upon the mere fact of the relation of the offender or the party injured to the United States.

1 Abb. U. S., ch. 5, tit. Crimes, pp. 406-461. In every other instance, the purpose has been to guard and promote the interests of the United States. If, incidentally, the functionary (mail-carrier for instance) is protected in the

|

Section 1784, Rev. Stat., restricts the right of certain officers of the United States to be prePolitical office is merely a trust which is to sented with gifts by other officers, or to make be conferred upon whatever conditions the such gifts, or to subscribe to or ask subscripGovernment chooses to impose. If the conditions for the purchase of such gifts. tions are unacceptable to the office holder, he is under no obligation to take the office, and he has no constitutional or other right to require the conditions of the trust he accepts to be subsequently altered or removed. In the language of the court below, "No citizen is required to hold a public office, and if he is unwilling to do so upon such conditions as are prescribed by that department of the Government which creates the office, fixes its tenure and incidents, it is his duty to resign."

Section 1789, Rev. Stat., restricts the right of revenue officers to engage in certain trades or business.

These powers may be applied at the discre- convicted under this Act for receiving money tion of Congress, when it is necessary, if proper means be employed.

Anderson v. Dunn,6 Wheat., 215; McCulloch v. Maryland, 4 Wheat., 316; Low v. R. R. Co., 52 Cal., 63; Metropolitan Bank v. Van Dyke, 27 N. Y., 400; In re Jackson, 14 Blatchf., 245-249; Mc Culloch v. Maryland, 4 Wheat., 421, 423; Legal Tender Cases, 12 Wall., 539 (79 U. S., XX., 308); Hepburn v. Griswold, 8 Wall., 604 (75 U. S.,XIX., 513).

The power to pass this law is a corollary of the power to create offices.

The Legislature can abolish or change an office created by it, and extend or abridge the terms of its incumbents.

In re Bulger, 45 Cal., 553; Collins v. Tracy, 36 Tex., 546.

The power to pass this law follows from the power conferred upon Congress to regulate elections.

Const. Art. I, sec. 4; Ex parte Siebold, 100 U. S., 371 (XXV., 717).

Indictments under the statute against bribery have been sustained by the courts.

U. S. R. S., sec. 5511; U. S. v. Hendrick, 2 Sawy.,476; U. S.v. O'Neill,2 Sawy.,481; U. S. v. Johnson, 2 Sawy., 482.

The constitutionality of the law is to be affirmed, unless it is shown to be clearly in violation of the Provisions of the Constitution.

Cooley, Const. L., 200; Legal Tender Cases, 12 Wall., 457 (79 Ú. S., XX., 287); Commonwealth v.Smith, 4 Binn., 123; Munn v. Illinois, 94 U. S., 113 (XXIV., 77); Fletcher v.Peck, 6 Cranch, 87; People v. Supervisors of Orange, 17 N.Y., 241; Bertholf v. O'Reilly, 74 N. Y., 514. The meaning and object of the statute, therefore, being clear, as it is not prohibited by the Constitution nor repugnant to its spirit; as it is within the implied powers of Congress; as it is a necessary attendant upon the power to regulate elections and create offices and as it imposes a regulation necessary to the public welfare, its enactment is within the discretion of Congress. It is, therefore, constitutional, and the writ should be dismissed, and the petitioner remanded to custody.

for political purposes from other employés of the Government. Upon his conviction, he was sentenced to pay a fine and stand committed until payment was made. Under this sentence he was taken into custody by the marshal, and on his application a writ of habeas corpus was issued by one of the Justices of this court in vacation, returnable here at the present Term, to inquire into the validity of his detention. The important question presented on the return to the writ so issued is, whether the Act under which the conviction was bad is constitutional.

The Act is not one to prohibit_all_contributions of money or property, by the designated officers and employés of the United States, for political purposes. Neither does it prohibit them altogether from receiving or soliciting money or property for such purposes. It simply forbids their receiving from or giving to each other. Beyond this no restrictions are placed on any of their political privileges.

That the Government of the United States is one of delegated powers only, and that its authority is defined and limited by the Constitution, are no longer open questions; but express authority is given Congress by the Constitution to make all laws necessary and proper to carry into effect the powers that are delegated. Art. I., sec. 8. Within the legitimate scope of this grant, Congress is permitted to determine for itself what is necessary and what is proper.

The Act now in question is one regulating in some particulars the conduct of certain officers and employés of the United States. It rests on the same principle as that originally passed in 1789 [1 Stat. at L., 67] at the first session of the first Congress, which makes it unlawful for certain officers of the treasury department to engage in the business of trade or commerce, or to own a sea vessel, or to purchase public lands or other public property, or to be concerned in the purchase or disposal of the public securities of a State, or of the United States (Rev. Stat., sec. 243); and that passed in 1791 [1 Stat. at L., 215], which makes it an offense for a clerk in the same department to carry on trade or business in the funds or debts of the States or of the United States, or in any kind of public property (Id., sec. 244); and that passed in 1812 [2 Stat. at L., 788]; which makes it unlawful for a judge apIn the Act of August 15, 1876, making ap- pointed under the authority of the United States propriations for the legislative, executive and to exercise the profession of counsel or attorney, judicial expenses of the Government,ch.287, 19 or to be engaged in the practice of the law (Id., Stat. at L.,143; 1 Supp. R. S., 245, the follow-sec. 713); and that passed in 1853 [10 Stat. at ing appears as section 6:

Mr. Chief Justice Waite delivered the opinion of the court:

L., 1701, which prohibits every officer of the Section 6. That all executive officers or United States, or person holding any place of employés of the United States not appointed by trust or profit, or discharging any official functhe President, with the advice and consent of tion under or in connection with any Execu the Senate, are prohibited from requesting, giv- tive Department of the Government of the ing to or receiving from any other officer or United States, or under the Senate or House of employé of the Government, any money or prop- Representatives, from acting as an agent or aterty or other thing of value, for political pur-torney for the prosecution of any claim against poses; and any such officer or employé, who shall offend against the provisions of this section, shall be at once discharged from the service of the United States; and he shall also be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not ex-missal from service, an officer or employé of the ceeding $500.

Curtis, the petitioner, an employé of the United States, was indicted in the Circuit Court for the Southern District of New York, and

the United States (Id., sec. 5498); and that passed in 1863 [12 Stat. at L., 765], prohibiting members of Congress from practicing in the Court of Claims (Id., sec. 1058); and that passed in 1867 [14 Stat. at L., 492], punishing, by dis

Government who requires or requests any working man in a navy yard to contribute or pay any money for political purposes (Id., sec. 1546); and that passed in 1808 [2 Stat. at L., 484], pro

1882.

EX PARTE CURTIS.

hibiting members of Congress from being interested in contracts with the United States (Id., sec. 3739); and another passed in 1870 [16 Stat. at L., 631, which provides that no officer, clerk or employé in the Government of the United States shall solicit contributions from other of ficers, clerk or employés for a gift to those in a superior official position, and that no officials or clerical superiors shall receive any gift or present as a contribution to them from persons in Government employ getting a less salary than themselves, and that no officer or clerk shall make a donation as a gift or present to any of Many others of ficial superior (Id., sec. 1784). a kindred character might be referred to, but these are enough to show what has been the practice in the Legislative Department of the Government from its organization and, so far as we know, this is the first time the constitutionality of such legislation has ever been presented for judicial determination.

The evident purpose of Congress in all this class of enactments has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly, such a purpose is within the just scope of legislative power, and it is not easy to see why the Act now under consideration does not come fairly within the legitimate means to such an end. It is true, as is claimed by the counsel for the petitioner, political assessments upon office holders are not prohibited. The managers of political campaigns, not in the employ of the United States, are just as free now to call on those in office for money to be used for political purposes as ever they were, and those in office can contribute as liberally as they please, provided their payments are not made to any of the prohibited officers or employés. What we are now considering is not whether Congress has gone as far as it may, but whether that which has been done is within the constitutional limits upon its legislative

discretion.

A feeling of independence under the law conduces to faithful public service, and nothing tends more to take away this feeling than a dread of dismissal. If contributions from those in public employment may be solicited by others in official authority, it is easy to see that what begins as a request may end as a demand, and that a failure to meet the demand may be treated by those having the power of removal, as a breach of some supposed duty, growing out of the political relations of the parties. Contributions secured under such circumstances will quite as likely be made to avoid the consequences of the personal displeasure of a superior, as to promote the political views of the contributor; to avoid a discharge from service, not to exercise a political privilege. The law contemplates no restrictions upon either giving or receiving, except so far as may be necessary to protect, in some degree, those in the public service against exactions through fear of personal loss.

This purpose of the restriction, and the principle on which it rests, are most distinctly manifested in section 1546, supra; the re-enact ment in the Revised Statutes of section 3, of the Act making appropriations for the naval service for the year ending June 30, 1868, 14 Stat. at L., 492, ch. 172, which subjected an

officer or employé of the Government to dis-
missal if he required or requested a working-
man in a navy yard to contribute or pay any
money for political purposes, and prohibited
the removal or discharge of a workingman for
his political opinions; and in section 1784, the
re-enactment of the Act of February 1, 1870,
ch. 11, 16 Stat. at L., 63, "To protect officials
in public employ," by providing for the sum-
mary discharge of those who make or solicit
contributions for presents to superior officers.
No one can for a moment doubt that in both
these statutes the object was to protect the
classes of officials and employés provided for,
from being compelled to make contributions for
such purposes through fear of dismissal if they
refused. It is true that dismissal from service
is the only penalty imposed, but this penalty is
given for doing what is made a wrongful act.
If it is constitutional to prohibit the Act, the
kind or degree of punishment to be inflicted for
disregarding the prohibition is clearly within
the discretion of Congress, provided it be not
cruel or unusual.

If there were no other reasons for legislation
of this character than such as relate to the pro-
tection of those in the public service against
unjust exactions, its constitutionality would,
in our opinion, be clear; but there are others, to
our minds, equally good. If persons in public
employ may be called on by those in authority
to contribute from their personal income to the
expenses of political campaigns, and a refusal
may lead to putting good men out of the serv-
ice, liberal payments may be made the ground
for keeping poor ones in. So, too, if a part of
the compensation received for public services
must be contributed for political purposes, it is
easy to see that an increase of compensation
may be required to provide the means to make
the contribution, and that in this way the Gov-
ernment itself may be made to furnish, indirect-
ly, the money to defray the expenses of keeping
the political party in power that happens to
have for the time being the control of the pub-
lic patronage. Political parties must almost
necessarily exist under a republican form of
government, and when public employment de-
pends to any considerable extent on party suc-
cess, those in office will naturally be desirous
The statute we are now considering
of keeping the party to which they belong in
power.
does not interfere with this. The apparent end
of Congress will be accomplished if it prevents
those in power from requiring help for such
purposes, as a condition to continued employ-
ment.

We deem it unnecessary to pursue the subject further. In our opinion the statute under which the petitioner was convicted is constitutional. The other objections which have been urged to the detention cannot be considered in this form of proceeding. Our inquiries in this class of cases are limited to such objections as relate to the authority of the court to render the judgment by which the prisoner is held. We have no general power to review the judgments of the inferior courts of the United States in criminal cases, by the use of the writ of habeas corpus or otherwise. Our jurisdiction is limited to the single question of the power of the court to commit the prisoner for the act of which he

235

SUPREME COURT OF THE UNITED STATES.

has been convicted.
163 [85 U. S., XXI., 872]; Ex parte Rowland,
104 U. S., 604 [XXV., 861].

The commitment in this case was lawful and
the petitioner is, consequently, remanded to the
custody of the Marshal for the Southern District
of New York.

True copy. Test:

Mr. Justice Bradley, dissenting:

OCT. TERM,

restrictions, in my judgment, are imposed by Ex parte Lange, 18 Wall., | trammeled by inconvenient restrictions. Such any, the most insignificant, employment under the law in question. Every person accepting the Government must withdraw himself from all societies and associations having for object the promotion of political information or opinJames H. McKenney, Clerk, Sup. Court, U. S. nection, others may do the same, and thus it can ions. For if one officer may continue his conhardly fail to happen that some of them will I cannot concur in the opinion of the court in uted for the purposes of the association. Congive and some receive funds, mutually contribthis case. The law under which the petitioner gress might just as well, so far as the power is is imprisoned makes it a penal offense for any concerned, impose, as a condition of taking any executive officer or employé of the United States, employment under the Government, entire sinot appointed by advice of the Senate (an unim-lence on political subjects, and a prohibition of portant distinction, so far as the power to make all conversation thereon between government the law is concerned), to request, give to or re-employés. Nay, it might as well prohibit the ceive from any other officer or employé of the discussion of religious questions, or the mutual Government any money or property or other contribution of funds for missionary or other thing of value, for political purposes; thus, in religious purposes. In former times, when the effect, making it a condition of accepting any slavery question was agitated, this would have employment under the Government, that a man been a very convenient law to repress all disshall not, even voluntarily and of his own free cussion of the subject on either side of Mason will, contribute in any way through or by the and Dixon's line. At the present time, any effihands of any other employé of the Government, cient connection with an association in favor of to the political cause which he desires to aid and a prohibitory liquor law, or of a protective tarpromote. I do not believe that Congress has any iff, or of greenback currency, or even for the right to impose such a condition upon any citi- repression of political assessments, would render zen of the United States. The offices of the any government official obnoxious to the penalGovernment do not belong to the legislative ties of the law under consideration. For all department, to dispose of on any conditions it these questions have become political in their may choose to impose. The Legislature creates character, and any contributions in aid of the most of the offices, it is true, and provides com- cause would be contributions for political purpensation for the discharge of their duties; but poses. that is its duty to do, in order to establish a com- Neither men's mouths nor their purses can be The whole thing seems to me absurd. plete organization of the functions of govern- constitutionally tied up in that way. The truth ment. When established, the offices are or is that public opinion is oftentimes like a penduought to be open to all. They belong to the Unit- lum, swinging backward and forward to exed States and not to Congress, and every citizen, treme lengths. having the proper qualifications, has the right to danger of becoming purists, instead of wise reWe are not unfrequently in accept office and to be a candidate therefor. formers, in particular directions; and hastily This is a fundamental right of which the Leg-pass inconsiderate laws which overreach the islature cannot deprive the citizen, nor clog its exercise with conditions that are repugnant to his other fundamental rights. Such a condition I regard that imposed by the law in question to be. It prevents the citizen from co-operating with other citizens of his own choice in the promotion of his political views. To take an interest in public affairs, and to further and promote those principles which are believed to be vital or important to the general welfare, is every citizen's duty. It is a just complaint that so many good men abstain from taking such an interest. Amongst the necessary and proper means for promoting political views, or any other views, are association and contribution of money or for that purpose, both to aid discussion and to disseminate information and sound doctrine. To deny toa man the privilege of associating and making joint contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs. The freedom of speech and of the press, and that of assembling together to consult upon and discuss matters of public interest, and to join in petitioning for a redress of grievances, are expressly secured by the Constitution. The spirit of this clause covers and embraces the right of every citizen to engage in such discussions, and to promote the views of himself and his associates freely, without being 236

mark they are aimed at, or conflict with rights and privileges that a sober mind would regard as indisputable. It seems to me that the present law, taken in all its breadth, is one of this kind.

excluding from particular offices those who are
The Legislature may, undoubtedly, pass laws
engaged in pursuits incompatible with the faith-
ful discharge of the duties of such offices. That
is quite another thing.

gent to prevent the corrupt use of money in elec-
The Legislature may make laws ever so strin-
tions, or in political matters generally, or to pre-
vent what are called political assessments on
government employés, or any other exercise of
undue influence over them by government offi-
cials or others. That would be all right.
would clearly be within the province of legisla
tion.

That

so far as it goes, to effect this very thing. Prob-
It is urged that the law in question is intended,
ably it is. But the end does not always sanctify
the means.
this particular mode of restraining an acknowl-
What I contend is, that in adopting
edged evil, Congress has overstepped its legiti-
mate powers, and interfered with the substantial
rights of the citizen. It is not lawful to do evil
that good may come.
in which wrong may be suppressed without re-
sorting to wrongful measures to do it.
There are plenty of ways
doubt it would often greatly tend to prevent the

No