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 The theory of the Government, as evidenced by the testimony brought out at the different trials, was that the defendants Williamson and Gesner were in the sheep business, and that they had a summer range at a place known as the "Horse Heaven" country in Crook County, Oregon, about twenty miles from the town of Prineville, where they resided, and where Dr. Gesner had for many years been a practicing physician. All the odd sections of the township which constituted their summer range were owned by a wagon road company and for a number of years prior to 1902 Williamson and Gesner had leased several of the odd sections of land from it. They owned the land upon which their shearing plant was located at the summer range and did not own any other land in that vicinity. The wagon road company had uniformly refused to sell any of its lands there. In May, 1902, defendants learned that a rival sheep firm by the name of Morrow & Keenan had contracted to lease practically all of the odd sections of land in the township, and they immediately protested to the agent of the wagon road company against its leasing to their rivals, and insisted that they were entitled to have a lease for all of such odd sections of land themselves. The agent of the wagon road company decided, however, that he must stand by his agreement with Morrow & Keenan. Thereupon Williamson & Gesner immediately employed the County Surveyor to run the lines of the different sections of land in the township for the purpose of determining whether or not the springs and small streams of water located therein were upon the odd or even sections. A rough survey demonstrated that the most valuable springs and streams were upon the even sections of land, which still belonged to the United States.

The township constituted the best summer sheep range in that part of Oregon. It was partially covered by scraggly timber, which had no market value at the time, if at all. In many places there were long stretches of splendid grazing land upon which there was not a stick of timber of any account. The defendants, Williamson and Gesner, immediately planned to secure all of the even sections of land which contained springs or running water so as to control this entire summer range. In June, 1902, they applied to the bank of Prineville for a loan of $3,000, which they secured, and a few months later they applied to the bank at The Dalles, Oregon, for a loan of $6,000, which they also got. All of this money was advanced by them to the applicants in payment to the Government for their respective purchases of land. Gesner employed Biggs to attend to the matter of securing applicants for him and of filing them upon the land. Biggs was a practicing attorney and was a United States Court Commissioner at Prineville. According to the prosecution, the evidence showed that forty-five applicants filed upon lands selected for them in the township within a period of about two months.

On Saturday morning, October 14, 1905, Judge William H. Hunt, of Montana, who had presided at the last trial, imposed sentences as follows: J. N. Williamson, to pay a fine of $500 and be imprisoned in the Multnomah County jail ten months; Dr. Van Gesner, to pay a fine of $1,000 and be imprisoned five months, while Biggs got off with the same sentence imposed upon Williamson.

After various appeals, in which the verdict was sustained by the Circuit Court of Appeals, two of the defendants—Gesner and Biggs—submitted to their penalties, while Congressman Williamson appealed his case to the United States Supreme Court on constitutional grounds. Counsel for Williamson protested against the Court passing sentence upon him, and especially to any sentence of imprisonment, on the ground that thereby he would be deprived of his constitutional rights as a Congressman. This was based upon the first clause of Section 6, Article I, of the Constitution, which provides:

"Section 6. The Senators and Representatives shall receive a compensation 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 privileged from arrest during their attendance at the sessions 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." Page 342