Mr. J. M. WILSON. I will simply say, gentlemen of the committee, that our attitude in respect to this matter, as I understand it, is simply this: We have not anything to say as to what the scope of your inquiry ought to be. We are not here to oppose any direction that you may see fit to give this investigation. We are not here to throw any obstacle in the way of your making any investigation that you deem it your duty to make under the authority or the direction of the House of Representatives; but we are here, as Colonel Ingersoll has suggested, to ask of the committee that if the investigation takes a direction which shall involve the bringing out of any statement by any witness or witnesses affecting the honor or the integrity of Mr. Kellogg, we may have the privilege of examining such witness or witnesses, and, in so far as any such witness may give testimony reflecting upon Mr. Kellogg's honor or integrity, we desire to introduce evidence to disprove such statements. More than that I do not see that I can say. We think it is due to Mr. Kellogg that he should have that opportunity. I bave just read the resolution under which you are proceeding. It is not necessary that I should read it or comment upon it here, but we would like to have the committee determine the question as to what is to be the scope of this inquiry, and if it opens the door to any testimony in the direction that Colonel Ingersoll has alluded to, and to which I also have referred, we beg of the committee that we may have an opportunity to meet that class of testimony. Outside of that we have nothing to do with this case. I think that in the spirit of entire frankness it may probably be well to say that the only witnesses of this character whom we anticipate your calling are Mr. Walsh and Mr. Price, and the reason why we an ticipate their testifying is that Mr. Price's affidavit has been published, in which he is said to make certain statements. We know nothing of the affidavit except as we see it in the newspapers, and we know nothing of Mr. Price's testimony except as we heard it in the recent trial. As to Mr. Walsh, we have heard him testify, and we therefore know something as to what will be the drift of his testimony. Those are the two witnesses to whom we especially refer, and if Mr. Walsh is called, and you go beyond an inquiry as to the direct conduct of the Government officials or those who are charged with that investigation, and go out into the realm of the facts of the case, then it is as to that line of examination that we desire to cross-examine and produce further testimony. As to matters that Mr. Walsh might testify to concerning his relations with the Government officials or with the Government counsel, we have nothing to do with them. We do not pretend to know any thing about that, and we care nothing about what may have occurred between Mr. Walsh and the Government counsel or officials. Those are controversies and quarrels as to which we have nothing to do. But whenever he gets beyond that, and you go into an investigation to determine the guilt or innocence of Mr.Kellogg, then we desire to be heard.

The CHAIRMAN. I will state that the committee caused a subpœna to be served upon Mr. Price while he was in this city, but he left the city without giving the committee any notice; sending by a friend of his a certificate to the effect that he was in a very bad condition of health. Further than that we know nothing of his whereabouts at the present time. While the committee was in session here awaiting his presence, supposing him to be in the city, it was suggested that it might be more convenient for the committee to make use of the testimony which Mr. Price had given in court in the case against Mr. Kellogg. That question, however, was not determined; but it is probable that in case Mr. Price's attendance could not be obtained we would be compelled to resort to the record of the evidence which he gave in court.

Mr. WILSON. I will say in respect to that, that if you conclude to go into the kind of investigation which 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 matter; 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, specially reserving the right 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 made certain statements which he claimed to be the truth. Among other things, he stated that he had delivered to Mr. Kellogg certain postal drafts. Now, it appeared from the evidence-because these postal drafts had 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. Admitting 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 indictment?

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?

Mr. INGERSOLL. Yes, sir.

On motion of Mr. Stewart it was resolved that the committee should notify Mr. Kellogg's counsel of the result of its deliberations as to whether the investigation should extend to the Kellogg case.

Adjourned.

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 much 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 position 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 unarrested 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 the 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 jurors is admissible to prove that one of the witnesses in behalf of the prosecution testified differently on his examination before them from the testimony given 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 may be secured. A second reason is that perjury and subornation of perjury may be prevented 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 r8. Hill, 11 Cush., 140, seems to be established, and it is embodied 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 expediency of retaining the seal of secrecy are at an end. Cessante ratione, cessat regula. After the indictment is found 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 privilege. 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 have. 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 jury, 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 the 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 rule applies to a legislative committee I will not undertake to say, because I have not investigated that question; it has 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 what 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 be fore with reference to a legislative committee; but my personal opinion is, so far as I have 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 they 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?-A. At the March term, in 1882, I think.
Q. Were you foreman of that grand jury?-A. Yes, sir.

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 jury to the facts in the case of the United States vs. William Pitt Kellogg, and