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Mr. WILSON. I will say in respect to that, that if you conclude to go into the kind of investigation wbich I have just indicated we will not make any objection to your using the testimony that was taken before the court. We will stand upon no technicalities in respect to this mat. ter; the committee may have that testimony; we will make no objection, and the committee may use it just as if Mr. Price had given it here under examination.
The CHAIRMAN. Assuming that the committee should desire to incorporate into its record the testimony of Mr. Price as given before the court in the case against Mr. Kellogg, and should determine to go no further, would you then desire to introduce any evidence ?
Mr. WILSON. Yes; if that testimony is incorporated in your record, we shall, of course, want to answer it. Mr. STEWART. You cross-examined Mr. Price on the trial, I suppose.
Mr. INGERSOLL. We cross-examined him only upon one point, spec. ially reserving the rigbt to finish the cross-examination ; but of course the court would not allow a case to go on when it was admitted by the prosecution that that was their evidence, and their only evidence, and when it appeared from that evidence that a conviction was absolutely impossible.
Mr. STEWART. I understood that Walsh was summoned as a witness and was not examined. How, then, could the public prosecutor say that Price's evidence was the only evidence in the case? That is something which has puzzled me.
Mr. INGERSOLL. I think I can make that perfectly clear. Mr. Price wade certain statemeuts which he claimed to be the truth. Among other things, be stated that he had delivered to Mr. Kellogg certain postal drafts. Now, it appeared from the evidence-because these postal drafts bad already been introduced-it appeared that they were paid, some in 1880 and some in 1881, and the prosecutor stated that the evidence of Price covered the whole ground; that is, that they might prove the same facts, or try to prove the same facts, by other witnesses, but that when the evidence was all in they expected that the facts shown by the other testimony would be as Price had stated them. Thereupon the court said that if that was the case the question had better be argued at once, because there was no need of wasting all summer in a trial, if a conviction was impossible. It was upon that hint that we spoke. Ad. mitting all the facts which they claimed to have established, and all that they claimed they could establish-for they did not claim that they could establish other or different facts from those set forth by Price, but simply that they had more evidence showing the same facts—we admitted the truth of the facts alleged, for the purposes of the argument, as a demurrer admits the truth of the declaration or indictment.
Mr. STEWART. Your motion was in the nature of a demurrer to an in. dictment?
Mr. INGERSOLL. Yes, sir; and it was made really upon the sugges. tion of the court, because the first witness for the prosecution demonstrated that the case was different from the one mentioned in the indictment, and that they were not even remotely related, except that the name of the defendant was the same in each.
Mr. WILSON. He was the connecting link!
On motion of Mr. Stewart it was resolved that the committee should Totify Mr. Kellogg's counsel of the result of its deliberations as to whether the investigation should extend to the Kellogg case.
WASHINGTON, May 9, 1884. JOHN T. MITCHELL sworn and examined.
By the CHAIRMAN: Question. State your residence and occupation.-Answer. I reside in Washington; I am a merchant. Now, Mr. Chairman, before we proceed any further I would like to have the question determined how far the committee have a right to interrogate me about transactions occurring in the grand jury-room. I have endeavored to inform myself in regard to the question and there seems to be about as mach difference of opinion among legal gentlemen on the outside of the committee as there is among those inside the committee, and I do not desire to place myself in a po. sition to be criticised by gentlemen inside or outside; so that I would like to have the question determined.
After some informal discussion among the members of the committee, The CHAIRMAN said:
In answer to the request of the witness the chair will state the law of the matter as he understands it. In Bishop on Criminal Procedure, section 857, the law is laid down in these words:
Various reasons for this requirement of secrecy have been assigned; one is to keep from an unarrestod defendant the knowledge which would induce him to escape; another is to prevent the indicted persons from meeting the evidence at the trial by perjured testimony; another, to render the witnesses before the grand jury more free in their disclosures. Consequently, when tbe purposes of the secrecy are accomplished, it is the better opinion, contrary perhaps to some cases but maintained in most, that any revelations of the grand juriy's doings may be made which justice demands. The testimony may come from a third person present, from a grand juror himself, or from one who was a witness before the grand jury; he may be even questioned as to what was his own evidence.
In support of this rule laid down by the text writer there is cited the case of the Commonwealth of Massachusetts vs. Mead. 12 Gray, 167. That was a very learned court, of which Mr. Shaw was chief justice, and its opinion is therefore entitled to very great weight. In that case the court held that
The only other question arising in the case is whether the testimony of grand jarors is admissible to prove that one of the witnesses in behalf of the prosecution testified differently on his examination before them from the testimony giveu by him before the jury of trials. As to the competency of such evidence the authorities are not uniform. The weight of them is in favor of its admissibility. On principle it seems to us to be competent. The reasons on which the sanction of secrecy which the common law gives to the proceedings before grand juries rests are said in the books to be three. One is that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors inay be secured. A second reason is that perjury and subornation of perjury may be prerented by withholding the knowledge of facts testified to before the grand jury which, if known, it would be for the interest of the accused or their confederates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape and elude arrest upon it before the presentment is made. To accomplish these purposes the rule excluding the evidence to the extent stated in the Commonwealth 18. Hill, 11 Cush., 140, seems to be established, and it is ein bodied substantially in the oath of office each grand juror takes on entering on the discharge of his duties. But when these purposes are accomplished the necessity and expelliency of retaining the seal of secrecs are at an end. Cessante ratione, cessat regula. After the indictment is fonnd and presented, and the accused is held to answer, and the trial before the traverse jury is begun, all the facts relative to the crime charged and its prosecution are necessarily opened, and no harm can arise to the cause of public justice by no longer withholding facts material or relevant to the issue merely because their disclosure may lead to the development of some part of the proceedings before the grand jury. On the contrary, great hardship and injustice might often be occasioned by depriving a party of important evidence essential to his defense, by enforcing the rule of exclusion having its origin and foundation in public policy, after the reasons on which this rule is based have ceased to exist.
The WITNESS. I want to put in an additional word just there, with the permission of the committee. I asked one of the judges of the supreme court of the District for advice in regard to this matter, and he said he did not feel disposed to advise, because in either case this question might come before him judicially.
Mr. STEWART. He meant that in case you should refuse to answer and should be prosecuted for contempt, he might want to issue a writ of habeas corpus.
The CHAIRMAN. It might come before him, of course. I will state further, as bearing upon this question, that it appears in our record here, from the testimony of one of our witnesses, that in the northern district of Alabama there was an investigation made recently of certain charges preferred by members of the grand jury agaimst Mr. William H. Smith, the United States attorney there, and in that investigation the court caused an examination, under oath, to be made of each member of the grand jury as to what the district attorney had actually done and said in the grand-jury room.
Mr. STEWART. I have no doubt myself that it is a question of privi. lege. I think the committee has a right to ask these questions; but if Mr. Mitchell thinks that his oath of office as a grand juror precludes. him from answering them, he has a right to say so.
The CHAIRMAN. I think that in this Alabama case Attorney-General Brewster instructed the district attorney to have the whole matter investigated, and the members of the grand jury were called before the court and their testimony was heard as to what has occurred in the grand-jury room. Now, in view of these authorities which I hare. cited, it is the opinion of the Chair that the reason for the rule of secrecy no longer exists in the case of this witness, and that the ends of public justice do not require him to withhold from this committee any information he possesses as to what transpired before that grand jary, especially as to the conduct and statements there of the United States attorney, Mr. Bliss, for this further reason: Mr. Bliss himself has already appeared before this committee and stated in detail what he did and said before that grand jury. That statement must either remain entirely uncontradicted or some member of the grand jury must be permitted to testify in reference to it. There can be nodoubt that if Mr. Bliss had been merely a witness before the grand jury, and not the Government counsel, any member of the jury could be called to contradict or explain the testimony that he has given here. Why not extend the rule so as to permit members of the grand jury to explain the conduct and the statements of the district attorney in the grand-jury room! It seems to the Chair that there is no good reason why the rule should not be so extended.
Mr. Stewart suggested that the examination might proceed until some question was asked which the witness might decline to answer.
The WITNESS. Mr. Chairman, do you accept the suggestion made by Mr. Stewart that I shall answer so far as my own judgment dictates ?
The CHAIRMAN. Certainly. If you claim your privilege at any time in reference to any inquiry that may be made of you it will be your duty to so state to the committee, and then it will be a question for the House to determine. Before proceeding with the examination of the witness the chair would be pleased to have an expression of opinion upon this question from the members of the committee present. Mr. FYAN. I concur with you, Mr. Chairman.
Mr. CRISP. I have not investigated this question with a view to testimony given before a legislative committee. I will say, however, that
I have no doubt that where the ends of justice require a member of the grand jury to divulge the secrets of tbe jury-room in a court of law, be can be required to do so; for the reason that I do not believe it was the intention of the law to lock up in the breasts of the grand jury facts, the disclosure of which would tend to advance or further the ends of justice. How far that rulo applies to a legislative committee I will not undertake to say, because I have not investigated that question; it bas not presented itself to my mind at all.
The CHAIRMAN. If you regard this committee as a part of the House of Representatives, which is the grand inquest of the nation so far as the presentment of all persons who may be guilty of impeachable of fenses is concerned, would not the rule extend as well to the House of Representatives, and therefore to this committee, as to a court ?
Mr. CRISP. Possibly it might. As I have said, I have not investigated that question at all, and therefore I would not like to express an opinion about it.
Mr. STEWART. I think the reasons for secrecy have been answered already, and if a court has power, for the furtherance of the ends of justice, to make inquiry as to wbat transpired in the grand-jury room, I think that the supreme legislative authority of the land has certainly a right to make similar inquiry as bearing upon the good faith of an agent or an officer of the Government. Of course, the question of the effect of the oath upon the man's conscience is a question for him to Settle.
The WITNESS. Mr. Chairman, is there any precedent for a case of this kind ?
The CHAIRMAN. I have not seen any. Mr. STEWART. I understand Mr. Mitchell's inquiry to be simply as to what he ought to do under the laws of the land. This is, to some extent, a new question. I do not know that the question ever arose before with reference to a legislative committee; but my personal opinion is, so far as I bave been able to give the matter any thought, that we have a right to make this inquiry.
Mr. HEMPHILL. I think it is rather a dangerous thing to do, but still I think we can do it. I think the great object of the secrecy imposed upon the members of a grand jury is to secure immunity for witnesses from criticism for the testimony that tbey give before the grand jury, and I think the testimony given there ought always to be kept secret; but, as I understand, we are now going only into an investigation of the conduct of the district attorney, and I do not see that the rule I have mentioned would apply in his case particularly, especially as he has undertaken to give his own version of the matter here; and therefore I am in favor of hearing what Mr. Mitchell, the foreman of the grand jury, has to say.
By the CHAIRMAN : Q. State whether you were at any time a member of a grand jury of the District of Columbia.—A. I was.
Q. At what time 1-A. At the March term, in 1882, I think.
Q. During the deliberations of that grand jury did Mr. George Bliss appear before you as counsel for the United States in any cases which you were called upon to consider ?-A. He did.
Q. Please state whether he called the attention of the grand jary to the facts in the case of the United States vs. William Pitt Kellogg, and also in the case of the United States vs. Kellogg, Brady, and Price A. They were incidental questions.
Q. Was there evidence submitted before that grand jury by the dis. trict attorney in the case of the United States vs. Kellogg?
The WITNESS. Now, Mr. Chairman, are you not going a little too far! I think I ought not to answer that question. Mr. STEWART. What is the question ?
The CHAIRMAN. Whether there was evidence presented to that grand jury by Mr. Bliss as Government counsel in the case of the United States r8. Kellogg. I have not asked what the evidence was, but simply whether evidence in that case was presented. [To the witness. What is your answer 1-A. I decline to answer that question, sir.
Q. I will put another question: Did Mr. Bliss appear before that grand jury as the attorney representing the United States 1-A. He did, sir; and before admitting him to the grand jury room as counsel for the United States, I investigated to ascertain whether he had been sworn as assistant district attorney, and finding such to be the fact, he was admitted to the grand jury room.
Q. You may state (as you have already made such returns to the court) in what cases you made presentments at that term ?
A. (Referring to a memorandum.) I find by reference to the court record that in case No. 14,336, the case of Dorsey, Brady, and others, the presentment was made on the 20th of May.
Q. Was that the first indictment against Dorsey, Brady, &c. 1-A. Yes, sir. This that I have here is simply a note of my own. I find that in cases No. 14,357 and 14,358, presentments were made on the 17th day of June.
Q. Were there presentments made in other cases ?
A. I do not recollect in regard to that. These presentments were made on the 17th of June; the indictments were ordered and pre. sented to the court on the same day, and the grand jury were discharged on the same day.
Q. How long was that grand jury in session -A. About three months. It seemed to me about forty years.
Q. Hare you read the testimony of Mr. George Bliss given before this committee in reference to the cases which he submitted to that grand jury 1/A. I have.
Q. Is there any part of that testimony given by Mr. Bliss as to what he did before the grand jury and the evidence which he submitted there, in regard to which you desire to make any explanation or statement?-A. Yes, sir; there are some matters in regard to which I would like to say a few words. From my reading of Mr. Bliss's testimony it appears that in the Dorsey case where the indictment was found there is no question made at all. There is very little reference made to it by Mr. Bliss. What he has to say is mostly in regard to the Salisbury and Price case. In one of his statements, page 164, in reply to a ques. tion, or perhaps in connection with his general statement as to why there was so large a number of witnesses brought here, Mr. Bliss says:
Of course, therefore, we had to be very careful not to bring unnecessary witnesses, and at the same time we wanted to bring, as far as possible, witnesses who would be fair, and it required a great deal of care and occupied a great deal of time to make up the list. Then, too, of course, we must have witnesses to prove our whole case as to a given route. If we brought five or six witnesses here in relation to any one toute, at heavy expense, and missed one whose testimony was necessary to cover a particular point, our chain was broken.