with whom Mr. Justice White and Mr. Justice Peckham concurred, dissenting,
A conviction of plaintiff in error on an indictment charging substantially the same offenses as are charged in the present case was reversed by this court. 196 U. S. 283. In the opinion then filed it was stated that four Justices of this court (the writer of this being among the number) were of the opinion that the matters charged against the defendant were not made offenses by the statute under which the indictment was found. Nothing was said in that opinion in respect to this matter beyond the simple statement of the conclusions of the several Justices. As one of the four I think the. importance of the case justifies me in stating the reasons which led to that conclusion, and which induces belief that the present conviction is wrongful.
The statute (sec. 1782, Rev. Stat.) forbids a-Senator or other official of the Government to “receive or agree to receive any compensation whatever, directly or indirectly,, for any services rendered,- or to be rendered, to' any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested, before any Department, court-martial,, bureau, officer, or any civil, military, or naval commission whatever.” It was charged in the indictment that there was pending in the Post-"Office Department a proceeding to inquire whether the Rialto Grain and Securities.Company was conducting a scheme for obtaining money by false pretenses through the mails of the United States and whether a fraud order, as it is called, should be issued against said company, and that the defendant, -as a Senator of the United States, unlawfully agreed to *391receive from the said corporation compensation for services rendered by him in relation to such proceeding before that Department. It was not charged that the United States was a party to the proceeding, nor that it would either make or lose any money or property, whatever might be the result, but only that it was directly and indirectly interested. The question is therefore distinctly presented whether a proceeding in one of the Departments of the Government, in which it .does not appear that the United States is pecuniarily interested in the result, will neither make nor lose by the issue of the proceeding, whatever it may be, is one in which it is “ directly or indirectly interested.” Unless the statute.by clear intendment includes the transaction, any extension beyond its meaning so as to include the transaction would be, under the ele-, mentary rule governing the interpretation-of criminal statutes, simply judicial legislation, as it would be by judicial construction making that a crime which Congress has not so made, and thereupon imposing punishment. United States v. Wiltberger, 5 Wheat. 76; Sarlls v. United States, 152 U. S. 570; United States v. Harris, 177 U. S. 305. There is á certain broad sense in which the word “interest” is sometimes used, which describes the relation which the Government has to the acts of all its officials, to all proceedings in courts or in Departments, and indeed to the conduct of all its citizens. It is interested in seeing justice and righteousness obtain everywhere. It is interested in seeing that no wrongful conduct shall prevail. But so is every official and every citizen interested. It is not an interest which separates and .distinguishes the Government from the citizens, but it is that interest which all have, whether government or citizens, in the orderly and just management of affairs, in honorable and right living. It is that interest which a father or head of a family has in the good conduct of all the members of his family. But the word “interest” as found in the law books refers to pecuniary profit and loss, and that Congress used the word “interested” in its common legal acceptation is as clear and certain as anything can be.
*392It is well to. inquire in the first place whether the word “interest” or “interested” has a settled legal meaning. A leading case is that of Inhabitants of Northampton v. Smith, 11 Met. (Mass.) 390, in which was involved the construction of a statute of Massachusetts which provided that when a judge of probate was'interested in any case within his jurisdiction the case should be transferred to the most ancient adjoining county. The probate judge transferred the case on the ground that he was one of the inhabitants of the town ©f Amherst, and that there were in the will which was offered, for probate many bequests to charitable purposes for the benefit of persons described as dwelling in the eight towns enumerated, of which Amherst was one. Mr. Chief Justice Shaw, delivering the opinion of the court, said (p. 394):
“If the term ‘interest’ were used in the loose sense it sometimes is, consisting in a strong and sincere desire to promote all enterprises for the advancement of learning, philanthropy, and geheral charity, or a similar interest,, with all good men, to repress and put down pernicious and mischievous schemes, no man could be found, fit to be intrusted with the administration of justice; for no man can be exempt from such interests.”
And again (p. 395):
“2. It'must be a pecuniary or proprietary interest, a relation by Which, as á debtor or creditor, an heir or legatee, or otherwise,! he will gain or lose something by the result of the proceedings, in contradistinction to an interest ‘of feeling or sympathy or bias, which would disqualify a juror. Smith v. Bradstreet, 16 Pick. 264.
“3. It must be certain, and not merely possible or contingent. Hawes v. Humphrey, 9 Pick. 350; Wilbraham v. County Commissioners, 11 Pick. 322; Danvers v. County Commissioners, 2 Met. 185. It must be direct and personal, though, such a personal, interest may result from a relation, which the judge hotels as the member of a town, parish or other corporation, *393where it is not otherwise provided by law, if such corporation has a pecuniary or proprietary interest in the proceedings.'
• “It may be, and probably is, very true, as the human mind is constituted, that an interest in a. question or subject matter, arising from feeling and sympathy, may be more, efficacious in influencing the judgment, than even a pecuniary interest; but an interest of such a character would be too vague to serve as a test by which to decide so important a question as that of jurisdiction; it would not be capable of precise averment, demonstration and proof; not visible,.tangible or susceptible of being put in issue and tried; and therefore not certain enough to afford a practical rule of action.”
In McGrath v. People ex rel. Linnemeyer, 100 Illinois, 464, it was held that:
“The State is not 'interested, as a party or otherwise/ in a proceeding in the nature of. a quo warranto to try the title of a person to an office into which it was alleged he had intruded, in any such sense as would give the Supreme Court jurisdiction to hear an appeal in such a proceeding,directly from the trial court, under section 88 of the Practice. Act.' The interest which the State must have in a cause, within the meaning of this section, in order to entitle' either party to bring it directly to the Supreme Court from the trial court, .is a substantial interest — as, a monetary interest.”
In Evans v. Eaton, 7 Wheat., 356, a patent case, the question was whether a certain witness was competent, the alleged objection being that he was interested, because "he might use the alleged invention if the patent was adjudged void, and Mr. Justice Story, speaking for the court, said (p. 425):
“The special notice in this case asserts matter, which if true, and found specially by the jury, might authorize the court to adjudge the patent void; and it is supposed that this constitutes such an interest in Frederick in the event of the cause that he is thereby rendered incompetent. But in this respect Frederick stands in the same situation as every other person in the community. If the patent is declared void, the in*394vention may be used by tne whole community, and all persons may be said to have an interest in making it public property. But this results from- a general principle of law, that a party can take nothing by a void patent; and so far as such an interest goes, we think it is to the credit and not to the competency of the witness.”
In State v. Sutton, 74 Vermont, 12, the case and the ruling is disclosed by the following quotation from the opinion:
“This is an indictment under section 5072 of the Vermont Statutes, for defaming this court, and a judgment thereof, and the judges of the court as to said judgment. It is objected that. Judge Watson, who sat below, was disqualified by reason of interest in the event of the cause or matter, for that he is one of the judges alleged to have been defamed. It is a pecuniary interest that disqualifies, and Judge Watson is no more interested in .this case in that respect than he is in every other criminal case that he tries, and that interest is too small for the law’s notice. State v. Batchelder, 6 Vermont, 479. It is said that a judge defamed would be deeply interested to have the respondent convicted, not only that he might be severely punished, but also for the aid it might afford him in the prosecution and maintenance of. a civil action for damages. But such an interest does not disqualify.”
In Foreman v. Town of Marianna, 43 Arkansas, 324, it was held that a judge who was a taxpayer in a town was not disqualified from sitting in a case relating to the annexation of certain territory to the town, the court saying (p. 329):
“A general interest in a public proceeding, which a judge feels in common with a mass of' citizens, does not disqualify. If it did, we might chance to have to go out of the State at times for a judge. The ‘interest’ which disqualifies a judge under the constitution is not the kind of interest which one feels in public prQceedings or public measures. It must be a pecuniary or property interest, or one affecting his individual rights; and the liability or pecuniary gain or relief to the judge must occur upon the event of the suit, not result re*395motely, in the future, from the general operation of laws.and government upon the status fixed by the decision.”
In Taylor v. Commissioners of Highways &c., 88 Illinois, 526, the question was who had the right to appeal from the decision of the commissioners of highways in laying out a new road or vacating an old one, and the court said:
“The word ‘interested’ must receive a reasonable construc- • tion, such as will, on the one hand, protect those who have a direct and substantial interest in the matter, and oh the other hand, protect the commissioners of highways from unnecessary litigation in defending their action as such, at the suit of persons who may imagine they have an interest, when in fact they have no such interest as was contemplated by the legislature. Every citizen of a county, in one sense, has an interest in the public highways. So, too, it may be said, and properly, that every citizen of the State' has an interest in the highways in the different counties of the State. If, therefore, the language of the statute is to be interpreted literally, an appeal might be taken by any citizen of the State. But we apprehend it was not the intention of the legislature that the word ‘interested’ should receive such a liberal construction. It was, doubtless, intended to give the right of appeal to those persons who had a direct and pecuniary interest not shared by the public at large, such as owned land adjoining the new road laid out or the old one vacated.”
In Chicago, Burlington & Quincy Railroad Company v. Kellogg, 54 Nebraska, 138, in deciding whether a trial judge was disqualified, this was the ruling:
“ ‘A judge is disqualified from acting as such . . ■. in any case wherein he is . . . interested.’ But the word ‘interested,’ found in this section of the statute, probably means pecuniarily interested, or, at least, it means that a judge, to be disqualified from hearing a case, must be-in such a situation with reference to it or the parties that he will gain or lose something by the result of the action .on trial. It is not claimed that Judge Beall will gain or lose anything from the result of *396this, action. It is ncit pretended that he'has any pecuniary interest in the matter. The argument seems to. be that, because he rendered a law judgment, he would naturally be desirous that the same should be sustained, and that, therefore, his inclination would be to defeat this suit. It can never be presumed that a judge will permit his desires or inclinations to control his decision in any manner, and. that he tried the case and rendered the judgment which is sought to be vacated by this action does not render him interested and disqualified -within the meaning of said section of the statute.”
See also Commonwealth v. O’Neal, 6 Gray, 343; Sauls v. Freeman, 24 Florida, 209; Bowman's Case, 67 Missouri, 146.
In Bouvier’s Law Dictionary, vol. 1, p. 651, “interest” is defined:
“The benefit which a person has in the matter about to be decided and which is in issue between the'parties. By the term benefit is here undertsood some pecuniary or other ad- - vantage, which if obtained would increase the witness’s estate, or some loss, which would decrease it.”
In Black’s Law Dictionary the definition is (p. 636):
“A relation to the matter in controversy, or to the issue of the suit, in the nature of a prospective gain or loss, which actually does, or presumably might, create a bias or prejudice in the mind, inclining the person to favor one side or the other.”
If the word “interested” was not used in this section in this ordinary legal sense, the words.“ in which the United States is a party, or directly or indirectly interested” are surplusage, because in respect to every proceeding' before a Department or other tribunal the United States as parens patriee has an interest in what Chief Justice Shaw calls the “loose” sense of the term. Indeed, what significance is there in inserting the words from “ contract ” to “interested ” inclusive unless some distinct limitation was intended? If the language was “in relation to any proceeding before any Department, court-martial,” etc., it would express the intent to exclude *397Senators from appearance for compensation in any and all matters before the Departments. Inserting the clause above referred to obviously means a limitation, and no other limitation is suggested except that which limits it to matters in which the Government is pecuniarily interested. Neither do the words “or any other-matter or thing” enlarge the scope of the prohibition so as to take in matters of a different .nature. The rule of construction regarding the effect of such words when following an enumeration of subjects is that they are to be held as meaning any other matter or thing of a like or similar nature to those already naméd, so that all subjects of that kind may be included, and none escape by reason of not being specially named. They do not open the statute to all kinds of matters or things not of the same nature as those already named. Otherwise there would be no sense in the prior enumeration. Hermance v. Supervisors &c., 71 N. Y. 481; People v. New York &c. Ry. Co., 84 N. Y. 565; Thames &c. Insurance Company v. Hamilton, 12 App. Cas. 484.
Doubtless the Government is charged with the supervision of the action of all its officials, but that supervision does not of itself create a pecuniary interest. This court has a supervising control of the lower Federal judicial tribunals. We are interested in seeing that full justice is done in all cases therein. But that duty of supervision and review creates no pecuniary interest, and does not disqualify a single one of us from participating in the consideration of this case.
If it be said that the Government is pecuniarily interested in the postage the amount of which might be affected by the issue of a fraud order, it is enough to say that there is no proof of any such interest. Further, postage is received in payment for services rendered in transportation. If no services are rendered no postage is received^ The issue of a fraud order does not put a stop to the carrying of letters. It simply stops the delivery. It may be that when knowledge of the issue of a fraud orders becomes widespread, the number of letters may be *398diminished, but as heretofore said, diminishing the amount of ■mail matter diminishes likewise the cost thereof. The Government is no more interested in an increase or diminution of the amounts received by railroad and other carriers for transporting’ the mails, or those received by stamp contractors for the manufacture of stamps, than it is in the fees received by marshals, clerks, and other officers for services rendered to individuals. In any event, opposing a fraud order would not; in the language of the' chairman of the House Committee on the Judiciary, hereinafter quoted, be a suit against the Government.
Again, the history of the passage of the bill which culminated in this statute emphasizes the views already expressed. The bill was introduced into the Senate December 23, 1863, by Senator Wade. As prepared it forbade the appearance of a Senator or member of the House of Representatives in any court as well as Department, etc. On February 10, 1864, the Committee on the Judiciary reported in favor of striking out the following words (p. 555):
. “No member of the Senate or of the House of Representatives of the United States shall, during his continuance in office, hereafter appear or act as counsel, attorney, or agent in any cause or proceeding, civil or criminal, in any court, civil, criminal, military, or naval, or before any commission, in which the United States is a party or directly or indirectly interested, or receive any compensation of any kind, directly or indirectly, for services of any description rendered by himself or another in relation to any such cause or proceeding;” and they were stricken out.
On page 561 is this statement by Senator Trumbull, the chairman of the committee:
“This is not a bill to prevent attorneys from practicing in courts of law, but it is a bill to prevent Representatives and Senators in Congress and officers of the Government who are paid for their services from receiving a compensation for advócating claims in the Departments and before the bureaus *399of the Government, and before courts-martial. That is the particular question that is pending.”
On p. 2773 in the proceedings of the House it appears:
“ Mr. Wilson, from the Committee on the Judiciary, reported back- Senate bill. No. 28, relating to members of Congress, heads of Departments and other officers of the Government. The .bill was read. It prescribes penalties for members of Congress, heads of Departments, or other officers engaging as attorneys or counselors in suits against the. Government. The bill was ordered to a third reading; and was accordingly read the third time and passed.”
While much weight must not be given to the declarations of individual Senators, those which are embodied in the reports of the chairman of the judiciary committees are certainly entitled to consideration, and they show clearly that the intent of Congress in this enactment- was to prevent Senators and other officials of the Government from receiving compensation for assisting in the prosecution of claims against the Government. It would be the height of absurdity to suppose anyone believed that a Senator, should be debarred from the right of appearing in any court in cases in which the Government is without a pecuniary interest, and yet that was the scope of the bill as originally presented, if the present construction of the statute is sustained.
Further, while it may be true that executive officers are apt to give undue weight to the wishes of Senators, yet there is nothing in this statute to prevent a Senator from exerting all his influence over them. He may prosecute any claims in behalf of his constituents or others, even though the Government is directly and largely pecuniarily interested. He may appear in any matter or proceeding pending before one of the Departments, and there is nothing in the statute to prohibit it. The only restriction is that he must himself have no pecuniary interest in the matter. The denunciation is against his receiving or agreeing to receive compensation for his services.. Is it not reasonable to believe that if pecuniary interest on his *400part is the only bar to his action a like pecuniary interest on the part of the Government is that interest on the other side intended by the statute?
It is said the language of the section is “ directly or indirectly interested,” but that does not change the fact that the Government must be interested, and interested, as I have shown, refers to some pecuniary- interest. It is directly interested when as the result of the proceeding it may make or lose some of its property, as where a claim is prosecuted in the Department for a tract of land, or for the allowance of ■a contract to a higher rather than to a lower bidder. It is indirectly , interested when the effect of the ruling may result in pecuniary loss to the Government in some other case to be thereafter presented to the Department: It may be that in a pending case the Government is guaranteed against loss, and yet if a certain ruling is established as the ruling of the Department it may affect future cases in which there is no such indemnity to the Government, and in those cases it would be indirectly'interested. But whatever the line of demarkation between “direct” and “indirect” results, the statute is clear that the. Government must be “interested.”
Other matters of moment have been discussed by counsel, but as this is fundamental and upon it rests the whole prosecution, I have preferred to express my views on this matter alone. It seems clear to my mind that the construction now given writes into the statute an offense which Congress never placed there. It "is a criminal case, and, in such a case above all, judicial legislation is to be deprecated.
I am authorized to say that Mr. Justice White and Mr. Justice Peckham concur in these views.