« AnteriorContinuar »
and almost personal controversy with Mr. Kellogg, when you were engaged as counsel against him on the question of his right to a seat in the Senate, but also by the fact that you believe him to be a scoundrel, and the fact that your political feeling comes into the matter-are you not allowing yourself to be warped in that way " Mr. Merrick said that he bore that all in mind and had been guarding against it, and had been very careful. I don't know whether I said it or not, but I did not believe that Mr. Merrick could free himself from his political influ. ence in that respect; and I was influenced in that judgment in a measure by this : Either then or subsequently the point came up that the prosecution of Mr. Kellogg would change the Republican majority in the Senate, and then there arose the suggestion: "He will be indicted, but we will not try him until after he goes out of the Senate ;” and I think I said, I know I at least felt strongly, that if Mr. Kellogg was guilty enough to be indicted for violating the laws of the United States, he was too guilty to be deliberately left to make new laws for the United States during the remainder of his term. The idea of indicting him and then deliberately arranging to leave him in the Senate during his term of office seemed to me an absurdity.
Q. Did you suggest that it was a very serious thing to interfere with the safety of a United States Senator in that way I-A. No, sir.
Q. Neither to the counsel nor in the grand-jury room -A. No, sir. A colored member of the Hutchinson grand jury said something about its being a serious thing to indict a United States Senator, and I replied that it was, but that Senators might be guilty as well as other people.
By the CHAIRMAN: Q. Did you yourself consider the political effect of his indictment!A. No, sir; probably I did not, because I say frankly I knew perfectly well that he could not be tried or convicted before his term would expire.
Q. I mean in the sense of withholding or persuading the other coun. sel to withhold the prosecution ?-A. No, sir. There has been some reference to Mr. Kellogg being my friend. I never knew him until he walked into my room with this letter from Mr. Brewster. I had seen him going out of Mr. Cook's office, but I did not recall him. I never was any friend of his. I never had anything to do with him in any matter except this. Once subsequently he stopped me in the street, and once he spoke to me in the cars, and then there was this call which he made upon me in New York.
By Mr. VAN ALSTYNE: Q. That is, you have had five interviews with him in your lifetime!A. Yes, sir; and never any interview except when he came to me and wanted to talk to me about this matter and I wanted to get rid of him.
Q. Did you suggest to your associates anything about the political effect of having Mr. Kellogg indicted 1-A. I suggested it no further than this, that in talking with Mr. Merrick, I said to him that if Kellogg was indicted people would say it was done through him (Merrick) in consequence of his political hostility to Kellogg. This was in conversation between Mr. Merrick and myself. Do not understand that there was anything offensive about it at all. It was as pleasant and kindly as could be; no offense given or taken on either side.
Q. Did you suggest to anybody that he should consult Mr. Chandler with regard to the political effect of this indictment-A. Not there.
Q. That did not weigh in your mind at all ?-A. I did not mean that it should. I am an earnest Republican, but I did not mean that it should.
Q. At least you did not manifest it to any one -A. No, sir. If any. body took that inference from anything I did or said, they took a wrong inference. We adjourned that conference with the understanding that Mr. Woodward's pumps were to be put on to Price. I understood and I still believe that it was part of that arrangement that when Woodward got that additional statement, we were to be again brought together and have a chance to examine it, because the views I entertained had been accepted by the others so far as to agree that the first statement of Price was not sufficient to justify his acceptance as a witness, and I considered that it was a part of our understanding that I was to have an opportunity to see the new statement after it was obtained by Mr. Woodward. I went to New York and when I came back on the 2d of January-I think, Monday-I was met by a le ter from Mr. Woodward saying that he was directed by the Attorney-General to inform me that Price was accepted as a witness.
Q. Did you understand at the conference with the Attorney-General that any one of the counsel were to see him again with reference to the acceptance of Price 9-A. I thought we were all to be brought together again to see him and to confer about it.
Q. Yon did not understand that that conference at the Attorney. General's house was a finality 1-A. No, sir; I was confident that it was not, aud I say that I am confident now that that was not the understanding, because there was an admission practically on the part of the other counsel that Price's first statement was not sufficient, and I understood that we were to see his new statement, which was to be obtained by Mr. Woodward.
By Mr. STEWART: Q. That might be true, and yet you might leave the final decision to the Attorney General 1-A. Certainly.
By Mr. VAN ALSTYNE: Q. Was it not the understanding that the question, whether you should proceed further with the indictment of Kellogg was to be left entirely with the Attorney-General 1-A. Of course the Attorney-Gen. eral had the right to do anything he chose about it.
Q. But was not that the agreement -A. No, sir; my understanding was that that was not the agreement; my recollection was very clear about it. When I came back and found this state of things I felt that, directly or indirectly, faith had been broken with me, and I am frauk to say that I thought that Mr. Merrick bad somehow or other been concerned in it, that my associates had got from the Attorney. General, in my absence, this determination to use Price, and that it bad been done with a definite purpose, and I was pretty wrathy about it. I wrote a note to Mr. Merrick to say that I should not be in court that day, and intimated or stated the reason. My recollection would be that there came back a note to me from Mr. Merrick, and that I replied to that. I then went down to the Post-Office Department, and after the court adjourned Mr. Merrick came in. We had a conversation, in which I did not intimate to him that I thought there had been any underhand work, because I did not want to be offensive, but it was obvious that Mr. Merrick thought I had that idea, and therefore, in the course of the conversation, he told me distinctly that he had had nothing to do with the determination. He stated that he understood that our meeting at
H. Mis. 38, pt. 2— 46*
the Attorney-General's house was to be final so far as the counsel were concerned, and that the determination of the question was to be left to the Attorney-General alone. I said that I did not understand anything of the sort; that I did not understand that that meeting was final; that I thought we were to come together again after the new statement was obtained from Price; that I still maintained that opinion, but that, whether I did or not, if this decision had been given by the Attorney. General without any special disregard of me, why that ended the matter. So I went into court next morning, having been out of court but one day.
Q. Did you urge as one of the reasons for your view that the statute of limitations had run against the offense, as you understood it!-A. Not distinctly that the statute had run, as I understood it, but I urged that it was a question of the statute of limitations.
Q. Explain what you mean by that.-A. Well, it was very clear that the statute of limitations had run, provided you dated the offense from the time when the postal drafts were alleged to have been delivered to Kellogg. It was equally clear that it had not run if you dated from the time when the drafts had matured, and the question as to which period the statute was to be taken to cover was a question about which, as I thought, there was considerable to be said on both sides. I will be frank about it, and say that my impression was that upon an indictment properly drawn you could establish the view that the statute of limitations ran from the date of the payment of the money, provided Price's testimony was consistent with that, if Price's testimony was that he agreed with Kellogg to give him so much money, and then gave him those drafts on which the money was subsequently received; but if, on the other hand, Price's testimony was that he agreed to give Kel. logg the postal drafts, and Kellogg took them with all the uncertainties hanging over them-for instance, with the contingency that the service might be cut off, and that therefore he would get nothing-if Price's testimony was to that effect, it seemed to me that the statute would run from the receipt of the drafts. There were various questions of that kind. I looked the matter up, and I think I made quite a brief upon it. My general idea was that Price would bave testified so that the statute would not have barred the indictment.
The CHAIRMAN. I think if you will refer to page 209 of our record you will see that in your former testimony you took a different view.
The WITNESS. I have a memorandum here that in some portion of my previous testimony I made a mistake as to the statute of limitations; that I expressed the opinion that the statute had run. I find the memorandum here before me, referring to page 210 of the record of this committee. I was wrong in saying that it was a settled thing that the statute of limitations had run as against Kellogg at that time, but we thought it had. In point of fact, the statement was that it might be claimed that it had run, and we had more or less discussion about it; but I cannot say how much detail was gone into on that question.
Q. Then there was no question at the time the Hutchinson grand jury was in session as to whether the statute had run ?--A. At that time the statute had not run on either view of it. We got that grand jury reconvened, so as to get an indictment before the statute would run. It would run on the 1 th, I believe.
Q. Before it would run on any feature of the case 1-A: Yes, sir. And now, as I am talking about that, let me say that Mr. Ker is mistaken in stating that he prepared any indictment for the previous grand jury in which the name of Kellogg was concerned.
Q. You mean the Hutchinson grand jury -A. Mr. Ker says that he prepared one for the March grand jury. He says that twice over. I think that is an inadvertence on his part, because he is asked then how he got Kellogg's name, and he says he got it froin the papers. Now, you will bear in mind that there never were any Government papers that contained Kellogg's name. The only papers that bad it were those that Walsh produced, and Walsh's testimony is direct and affirmative that he did not produce those before the Mitchell grand jury.
By Mr. STEWART : Q. Did not Kellogg sign a request for expedition, and did not his name appear upon that 1-A. It possibly did. If there was any member of Congress from the West or Southwest who did not sign such requests, he onght to be brought out as a curiosity.
Q. Did General Logan sign auy? - A. I don't remember.
Q. Did Mr. Springer? -A. I suspect that Mr. Springer's name can be found on some of the papers.
The CHAIRMAN. I think not.
The WITNESS. On the Dorsey trial we were met by the fact that these requests were brought in signed by many distinguished gentleinen, Secretary Teller and Senator Bowen and General Sherman and others. Those papers were brought in, piles of them, and part of the force of the claim made by the other side was in the fact that Brady appeared to bave acted upon the strength of the requests of these legislators, whose wisdom and integrity was to be presumed.
By Mr. VAN ALSTYNE: Q. What you mean is this, that when Mr. Ker says that he drew tbat indictment against Brady and Price and Kellogg, and submitted it to you, he is in error ?-A. No; I say that he could not have drawn such au indictment for the March grand jury. Undoubtedly when the grand jury was reconvened, the tiine was short and the indictment was then drafted as Mr. Ker has described, and undoubtedly it was destroyed when the Hutchinson grand jury refused to indict.
Q. But at that time Brady and Price had been already indicted, and do you say you were going to couple their names again in a new indictment against tiom and Kellogg?-A. I do not know how that may have been, but you will see that there was no official paper that bore Kel. logg's name on it from which he could have been indicted, and Walsh had not produced his papers or talked with the Government counsel at the time Mr. Ker drew his indictmeuts for the March grand jury; 80 that Mr. Ker must be in error about that.
Q. Is it not a fact that your eridence upon that subject is more the result of argument in your own mind than recollection of a fact I-A. Of course I can have no personal knowledge of what Mr. Ker actually did. Mr. Ker may bave drawn the indictment. I can only say that I never heard of an indictment with Kellogg's name in it being drawn for the March grand jury, and I do not believe that there was any.
Q. But you say that more as a matter of argument than as a matter of remembrance ?-A. No; I remenaber that I never saw any such in. dictment, and never heard of it.
By the CHAIRMAN : Q. Mr. Ker requests me to ask you whether Mr. Woodward did not prepare a brief for the March grand jury, on which Brady and Price and Kellogg were to be indicted -A. No, sir; I saw no such brief. There was never any such brief that came to my knowledge.
Q. You have stated that in discussing the propriety of accepting Price as a witness, you took the ground that if he was accepted it would let Brady off I-A. No, I did not say it would let Brady oft, further than that, inasmuch as Price was indicted for conspiracy with Brady, if we accepted Price as a witness, then practically—not legally, but practicallywe could not have convicted Brady on that indictment; for, although it is of course technically possible under an indictment of two conspira. tors to accept one of them as a witness, and go on and secure the con. viction of the other, yet while that is legally possible, I do not believe that in practice it can be done. The effect of that concatination of things upon the jury would be such that you could not get a verdict.
By Mr. STEWART: Q. Were Brady and Price indicted only for conspiracy Were they not indicted for something else 1-A. In connection with these routes, only for conspiracy.
By the CHAIRMAN : Q. How were you to prove the conspiracy if both the conspirators were indicted 1-A. We were to prove the conspiracy just as we proved it in the Dorsey case, from concurrent circumstances, and also from Walsh's testimony. That is all. But the evidence there was not so strong as it was in a case where you had an aggregation of routes.
Q. When you had accepted Price as a witness, and he had testified to those facts which you have stated in regard to the matter, would not that testimony make a stronger case against Kellogg than you would have had if you had prosecuted both Price and Brady !-A. Undoubtedly it would have made a strong case, provided you had not been troubled by the technical objection which, no matter what the ruling might be, would practically be in your way, that you had only one conspirator. I do not recall facts fully, but on that statement I should say so.
By Mr. STEWART: Q. Don't you think it was a judicious thing to use Price after the indictment was filed against Brady 1-A. To use him in what trial!
Q. In the trial of the case in which Brady was indicted with Price.A. A judicious thing if the case was to be tried, certainly. But the case has not been tried, and I understand is not going to be.
By Mr. VAN ALSTYNE: Q. He was really accepted in the Kellogg case ?-A. I suppose he was to be a witness in any case that he could testify in.
By the CHAIRMAN : Q. Was not Price a witness before the grand jury that returned the indictment against Brady and Price !-A. I do not know.
Q. Do you know how many indictments were found on Price's testimony-A. No; I was not before the grand jury; I had nothing to do with it.
Mr. Ker said something about my asking him to put the true date into the Kellogg indictment. He has got that a little wrong. A gen. tleman came to me and made a request, and I went straight to Mr. Ker; that is, I spoke to Mr. Ker about it as soon as I saw him. Mr. Nathaniel Wilson came to me and said substantially that he thought it would be fair treatment if that indictment should be so drawn as to set out the whole transaction, so as to enable them to raise the question of the statute of limitations by demurrer to the face of the indictment. I stated that to Mr. Ker, and told him that it was the request of Mr. Kellogg's counsel. Mr. Ker said that he did not see how it could bo