because he was then a Senator, and if he were tried and convicted he would be disqualified from holding office, and that would upset the Republican majority in the Senate. By Mr. STEPHENSON: Q. Mr. Merrick said that?-A. Mr. Merrick said that in this talk among the counsel. Q. Not Mr. Bliss?-A. No; Mr. Merrick. By the CHAIRMAN: Q. Did Mr. Bliss make any response to that suggestion ?-A. Oh, of course we discussed it in all its bearings. We knew that if Mr. Kellogg was indicted and convicted that would wind up the Senate for the Republican party, and Mr. Merrick suggested, as I have stated, that it would not be proper to proceed against Mr. Kellogg to bring him to trial while he was a member of the Senate, but that, as the statute of limitations would soon bar the offense, it was an absolute necessity to get an indictment against him. Colonel Bliss did not appear to agree with that view. I cannot recall exactly what he said, but he showed no disposition to try to get the indictment. Finally the matter was taken up by the newspapers and discussed editorially, and some severe reflections were made upon the counsel. Q. Do you mean that Colonel Bliss did not agree to the suggestion in regard to getting the indictment, or that he did not agree to the suggestion in regard to postponing the trial?-A. He did not agree to the suggestion in regard to getting the indictment. You know that the grand jury of the June term had adjourned without finding an indictment against Mr. Kellogg. They had adjourned just previous to the third Monday in June. The newspapers took the matter up and Walsh commenced to ventilate himself in the newspapers and we saw that we would be chargeable with a dereliction of duty by reason of our neglect to indict. The statute of limitations would bar the offense after the 18th of July. That was the date which we supposed was the only date that we could safely take. We had the meeting in the room back of the court room, where we had lunch. Mr. Merrick had spoken to me about the matter previously. In the conversation in that room Mr. Merrick said to Colonel Bliss that this would be a reflection upon him, that Colouee Bliss's honor was at stake in the matter, and that he should go and ask the judge to recall the grand jury for the June term and bring the Kellogg case before them. In the mean time, as I have said, the grand jury for the June term had been convened, but the judge had told them that there was no business and that he would dismiss them until October, and they had been dismissed. Mr. Merrick insisted that Colonel Bliss should go to the judge and get him to reconvene that grand jury and lay the Kellogg case before them. He said that Colonel Bliss's honor was at stake in the matter, and, in fact, the honor of all of us. Well, the colonel hesitated about it, but finally Mr. Merrick induced him to go to Judge Wiley. I think Mr. Merrick had spoken to the judge about it before Colonel Bliss went to him. At all events, both Mr. Merrick and Colonel Bliss went in and saw Judge Wiley and stated the case to him and asked him to have the grand jury for June term reassembled in order to hear the case against Kellogg, which otherwise would be barred on the 18th of July. Judge Wiley said something about making the application in open court. I was not present and did not hear what was said, but when the court recouvened after recess there was an open application made to the judge to reconvene the grand jury, and he directed that the grand jury should be recalled; and on the 5th of July, 1883, the grand jury again assembled in court. After the members of the jury had answered to their names it was found that there were some who were to be excused, and the jury had to be filled up. The judge had that done, and I think it took the 6th of July to do it. Then, if my memory serves me right, on the 7th the grand jury retired to their room to hear the case, and Colonel Bliss went before them to present it. There was some discussion among the counsel as to who should go before the grand jury. Mr. Merrick insisted that Colonel Bliss ought to do it in order to vindicate himself. Mr. Merrick told Colonel Bliss that he was subjected to newspaper criticism in the matter, and that people would imagine that he had not acted honestly or properly. Colonel Bliss said that he did not care for newspaper criticism, did not mind it, did not care what anybody said; or something of that kind. But Mr. Merrick insisted that it was his duty to go before the grand jury, and finally he consented to go. The grand jury was in session I think one day, and then, much to my surprise, they came in and stated that they had nothing to present. The judge looked at them and said, "Well, you are dismissed until October." Now, the proceedings of the grand jury at that time, whatever they were, are not entered in this minute-book at all. As this same grand jury that had just announced that they had nothing to present were to serve until the following December, of course it would have been quite useless to try them a second time, and it was decided to let the matter go. Q. Do you know what was done by Colonel Bliss in reference to procuring indictments at that thime? Did he inform his associate counsel in regard to the failure, as to how it happened?-A. We talked over the matter. Mr. Walsh accused Colonel Bliss of having stated to the grand jury that it was a serious matter to indict a Senator of the United States, and I think Colonel Bliss made some comment upon that. I think he said that it was. Q. How soon after this grand jury came in and announced that they had no presentment to make was it that there was any consultation between the counsel for the Government in regard to the matter?-A. We were then trying the case, and of course we met every day. Q. What was said in regard to the failure of the grand jury to indict?-A. Well, we considered it a mistake. I don't know that there was much said one way or the other. Q. Did Colonel Bliss make any comment on the failure, or any explanation of it?-A. No. I think he did say that if he had been a grand juror he would have found a bill. The Kellogg matter went over, for of course we could not do anything until we got a new grand jury. We were busy at that time in the second trial of the Brady-Dorsey case, and were devoting all our time to that. In the mean time Mr. Merrick had got into communication with James B. Price. We wanted to get Price's testimony in order to use it against Brady. We were under the impression that Price could give us some instance of the payment of money so as to connect Brady with the improper receipt of money. There was not anything, however, in Price's testimony that would assist us in that case, but we found that his testimony was very strong in relation to Kellogg's connection with the star-route business, and we talked over the subject of having Kellogg brought before a subsequent grand jury. Colonel Bliss was opposed to bringing the matter up, but Mr. Merrick insisted that it should be done. There was some applica tion made to the Attorney-General, and he directed the three of us to come to his house at a certain time, saying that he wanted to see us about the matter of indicting Kellogg. We went to his house one evening and the Attorney-General asked each one of us for an expression of opinion about the Kellogg case. Colonel Bliss expressed the opinion that Kellogg should not be indicted. Mr. Merrick said that he should be. It resulted in the discussion assuming a sort of political aspect, Colonel Bliss accusing Mr. Merrick of being prejudiced on account of his politics. The Attorney-General called upon me for my opinion and I gave it. It was that Price should be used as a witness to indict Kellogg. The Attorney-General said he would look over the testimony and would tell us in a few days what was to be done, and that in the mean time he would send for Mr. Woodward and see what Price's testimony was. Of course the Attorney-General silenced Colonel Bliss on the political aspect of the matter by telling him that he did not want any politics to enter into it; that the law knew no man; that if Kellogg was guilty he should be punished the same as anybody else, and that if, on the other hand, he was innocent, he should not be proceeded against. By Mr. HEMPHILL: Q. Did Colonel Bliss assign any reason why Mr. Kellogg should not be indicted?—A. None other than Mr. Merrick's political prejudices. By the CHAIRMAN: Q. Did he say whether the evidence against Kellogg was sufficient or not?—A. Oh, no. Of course, though, he denounced Walsh. He said Walsh was not to be believed. After we received orders from the Attorney-General to proceed with the indictment against Kellogg, Mr. Merrick directed me to go before the grand jury in order to have the indictment found. I sent for the witnesses and took the case before the grand jury at the March term of 1883. They examined Mr. Walsh and Mr. Price and the other witnesses and ordered a presentment, which was made to the court, and afterward when I got time I prepared the indictment against Kellogg (which is here), and also an indictment against Brady and another one. Before going to the grand jury the question was to be settled as to whether this offense was barred by the statute of limitations. It appeared from the testimony which was before us and upon which we would have to rely in finding an indictment that about the 18th of July, 1879, Price had gone to Kellogg and asked him to get expedition on two routes which Price held as a contractor, and that Price promised to give $20,000 to Kellogg for getting that expedition. In a day or two afterwards Price handed Mr. Kellogg one promissory note for $5,000, due in four mouths from that date, and five post-office drafts each for a payment of $3,000. Those drafts were drawn upon the Auditor of the Treasury for the Post Office Department. The first one was to be paid out of any money due Price on the San Antonio and Corpus Christi route for the quarter ending March 31, 1881. The next was for the quarter following, and so ou for five different quarters; the last one falling due in 1882. The question arose whether the statute applied to the receipt of the promissory note and the drafts, or whether it applied to the receipt of the money, the proceeds of the note and the drafts. In the first place, a post-office draft is not what is known in mercantile circles as a "draft." It reads: The Auditor of the Treasury for the Post-Office Department will please pay to myself or order the sum of $3,000, out of any moneys due me on route 31148, San Antonio to Corpus Christi, &c. Now, these drafts are not negotiable. They are filed in the Post-Office Department at some time prior to the money becoming due, but they are revocable at any time. The statute (section 1782) provides that if any Senator or Representative shall receive or agree to receive, either directly or indirectly, any money or valuable thing as compensation for service rendered in relation to any Government contract, he shall be guilty, and so on. Now, in the first place, "agree to receive” is one term and "receive" is another, and it is generally conceded that the agreement to receive would be merged in the act of receiving. Therefore, if Mr. Kellogg had agreed to receive this money in July, 1879, the agreement would have been merged in the act of receiving the money: and our construction of the statute was that, while we would have had a great advantage in indicting him inside of the statute of limitations, yet we were not debarred from indicting for the actual receipt of the money, the proceeds of these drafts. That is, we contended that the money, the proceeds of every one of these drafts was "received" within the statutory period of three years. By Mr. MILLIKEN : Q. Do you say that the drafts were received, or that the money was received on the drafts, within the statutory period ?-A. Now you are asking me for evidence. The drafts were said to have been received by Mr. Kellogg about the 18th of July, 1879, and the subsequent testimony that we proposed to offer was Q. (Interposing.) I am not asking you anything about the testimony, I am simply asking you whether you say that the drafts were received within the statutory period, or that the money was so received ?—A. I say the drafts were put into the hands of Mr. Kellogg, according to the testimony, about the 18th of July, 1879. The money was paid subsequently, the first payments being in February or March, 1880. Q. Did the time when the drafts were put into his hands bring the indictment within the statutory period? The CHAIRMAN. (Interposing.) The date upon which the drafts were received was barred by the statute. The WITNESS. Oh, yes. This indictment was found on the 18th of April, 1883, and of course at that time all acts done in 1879 were barred. But our theory was that the receiving of the drafts was not the offense; that the drafts were not the compensation; that the compensation was the money, and that the drafts were only the means by which the actual compensation, the money, was to be collected. Therefore we held that every time the money was collected on those drafts and paid to Kellogg, that act made a separate offense under the statute. By Mr. MILLIKEN : Q. Then, Mr. Ker, your opinion as to the running of the statute of limitations differed from that which was given by the court when the case was tried?—A. Well, sir, the court and I agreed upon it at first, but the court differed with me at last. Q. Very well; it is a difference of opinion between you and the court? -A. Yes. The court agreed with me at first but concluded against me at last. Of course I have not anything to do with that opinion, whether it is right or wrong. A lawyer may have his own opinion of the law, and if he stands on his own opinion he ought to be able to explain it satisfactorily. But in this case I did not propose to stand upon my own opinion. By the CHAIRMAN: Q. What are we to understand by your statement that the court agreed with you at first?-A. On the 31st of December, 1883, we went into court. Mr. Walsh was absent, we could not go to trial, and we filed some affidavits asking for a continuance. Mr. J. M. Wilson, one of the counsel for the defense, arose and said to the court: "What is the use of continuing this case? The court has before it everything upon which it can pass, and I now call the attention of the court to the facts of the case and ask the court to decide." By referring to page 17 of the record you will see that Mr. Wilson used this language: Now, mark this language: "Shall receive or agree to receive any compensation whatever, directly or indirectly, for any service rendered or to be rendered." The defendant, Kellogg, took the papers and requested Price to return in a couple of days. Price returned at the time fixed and the defendant Kellogg informed Price that he had seen the Second Assistant Postmaster-General, and that orders would be made to expedite the service on each of the routes and to allow increased pay therefor. Remeinber, that none of this do they say they propose to prove by this witness Walsh. They say they have every other witness present in court to-day. If any such state of facts as that ever existed, if they have anybody who is willing to swear to any such state of facts as that, they have that man in court to-day. "On the 18th day of July, 1879, the Second Assistant Postmaster-General caused two orders to be made to expedite the service on each of said routes, and to allow increased compensation to said Price therefor. Thereupon Price made and signed one promissory note for the payment of the sum of five thousand dollars,” Does that leave any doubt any where that if any such agreement as this was ever made that agreement had then been performed so far as the payment for services 1endered is concerned, and the offense was then and there complete? The COURT. No; the payment was made when the note was paid, I suppose. Mr. MERRICK. That is the point. The payment was made when the drafts were paid and the note was paid. Mr. J. M. WILSON. The agreement was made and was complete. The COURT. The statute covers both agreement and payment. Further, on page 18, Mr. Wilson says: Now, I submit that after this thing had been finally consummated, after all had been done that had been agreed to be done on the part of the defendant and on the part of Price, then Walsh, according to their statement, collected money which belonged to Kellogg and paid it over to him. The COURT. Is not the whole effect of filing these orders in the Department simply a notice to the Department that the contractor's money is to be paid as the order di rects? Mr. J. M. WILSON. No, sir; I think not. I think the legal effect of it is this: That as between the two parties it is an appropriation of the money, just like giving a bank check. It is an appropriation of the account of the party in that bank. The COURT. A bank check is not an appropriation until the money is paid. The COURT. The money rests to the credit of the drawer of the check until it is paid. It is the drawer's money until the check is paid. Now, I think I may safely say that the court did agree with me. My view was that these drafts were only a means of collecting the money; that they did not amount to anything until he received the money; and that every time he did receive the money on the drafts it was a separate offense under the statute. By the CHAIRMAN: Q. Then you drew the indictment on the theory that the offense consisted in the receipt of the money, and that act was not barred by the statue of limitations?-A. Yes, sir; that on the 18th day of July, 1879, Mr. Kellogg had agreed to receive the money; that is one offense mentioned in the act of Congress; that he then obtained the means to collect the money, that is to say, he then got the drafts; that thereafter he received the money upon the drafts, and that every time he used one of these drafts to collect the money he committed the offense of "re ceiving" contemplated by the statute, and that the agreement to re |