Image provided by: University of Oregon Libraries; Eugene, OR
About Morning Oregonian. (Portland, Or.) 1861-1937 | View Entire Issue (July 4, 1905)
t THE 3IOKI"G- OREGOJTLV, TT7ESDAT, JT7LT 4, 1905. HENEY DECLARES MITCHELL'S ACTS SHOWED A GUILTY KNOWLEDGE that the Government Is seeking to convict him upon a purely statutory and techni cal offense. Theory of the Law. It is a felony, says Senator Thurston. "It is a matter involving great moral terpitude, and the thins Heney was pent here to stop, for Krlbs to steal these lands, but there isn't the slightest moral turpitude In a United States Senator, whom you have placed in that position of trust, aiding Kribs for a fee to steal the lands. That is technical. That does not appeal to your sense of momllty.' And right there suppose we see what the theorv of this law Is. any how. . In order to understand any law and its meaning, Blackstone tells us that we should first look at the mischief before examining the remedy, because all laws are assed to remedy some mischief, some evil that ex ists, and the law Is Intended to put a stop to it if possible. To understand as to whv this law was aimed at Congress men a"nd Senators It Js necessary to un derstand the position of a United States Senator; how that body is constituted, how it works, and then see what evils existed that led Congress to -pass the law. One of the best histories that has over been written In regard to our political constitution in America and our ability to maintain a Republic under our Constitu tion is that of Mr. Bryee. an Englishman, who visited this country and made a study of the subject. He has something to say ..A. tn 4lia T'nitnri Pfrttes 5-pnate rand I shall only read one paragraph), i which I think will give us the clew to tne purpose 01 mis statute, ana iu un iu determine as to whether or not Congress itself thought that there was moral ter pitude attached to this act. Heads From Book. Mr. Bennett: We object to counsel reading from the book. The Court: I think counsel may reed from the book as a part of his argument. Defendant excepts. Mr. Hency: Of course, as the court will tell vou, this book is no evidence of any thing. I read it as an illustration of my argument, because it gives the reasons which I conceive lie at the bottom of the passage of that Kvw: "The Senators, however, indulge in some Bocial pretensions. They are the nearest approach to an official aristocracy that has yet been seen in America. They and their wives are allowed precedence at pri vate entertainments, as well as on puollc occasions, over members of the House, and. of course, over private citizens. Jefferson might turn in his grave If he knew of such an attempt to Introduce European distinctions of rank into his democracy; yet as the of lice is temporary, and the rank vanishes with the office, these pretensions are harmless: it is only the universal social equality of nic coun try that makes them noteworthy. Apart from such petty advantages, the position of a Senator, who can count on re-election. Is the most desirable in the political world of America. It gives as much power and influence as a man need desire. It se cures for him the ear of the public. It is more permanent than the Presidency or a Cabinet office, requires less labor, involves less vexation, though still great Taxation, by importunate ofnee-seekers. Europeans Idealize Senate. "European writers in America have been too much Inclined to idealize the Senate. Admirlne its structure and function, they have assumed that the actors must be worth v of their narw. And there has been fome consiaerable assumption of that sort indulged in by argument of the attorneys for the de fense in this case. 1 say assumed, be cause the reputation for honesty of the defendant in this case was not put in issue. It could not be put in issue by the prosecution unless witnesses were offered as to his srood character in that rocniift hv the" rtefense. Had such wit nesses been otfered. the prosecution would have a richt. if It could, to com bat that testimonv. and to undertake to show that that wasn't true. Coun- J sel. however, has furnished you in his j speech with a crreat doal 01 testimony not under oath on that subject; and It has been all along the lines ot assum ing that the actor must be worthy of his Dart. Now. Mr. Bryce says: i'noy have been eneouraeed in this tendency bv the lan-cuape of many Americans. As the Romans were never tired of re peating that the Ambassador of Pyrrhus had called the Roman Senate an assembly of klnt-s. so Americans of refinement, who are ashamed of the turbulent House of Representatives, have been wont to talk of the Senate as a. sort of Olympian dwelling-place of statesmen and saces. It is nothinc of the kind. It is a company of shrewd and vicorous men who have foucltt their way to the front by the ordinary methods of American politics, and on many of whom the battle has left Its stains. Mgtll0(lg of poHUcj!. Well. now. wc all know what the or dinary methods of American politics are. We have some knowledge of the method by which primaries are handle.l bv political bosses, and some knowledce of the method by which a convention Is afterwards handled by bosses and members of the legislature selected, and we have some knowledge of the manner In which an election Is secured bv a United States Senator in a Legislature. We know that in a laree miiority of instances, not the brlberv monev. hut the bribery of place is offered for votes political appoint ments. We know that in some In stances even money itself is offered. We know that under such conditons we do not cot the hluhest class of citizens as a rule In our public life. The world knows that. The whole United States knows it. Occasionally we do. Now. then, with those conditions. Mr. Brvce savs: ""There are abundant op- because Its most Important business is done in secrecy of committee rooms, or , of executive session; and many Sen- I ators are intrlcuers. There are oppor- : tunlties for mlsusinsr -Senatorial pow ers. Scandals have sometimes arisen from the practice of employing as counsel bofore the Supreme Court Sen ators whose Influence has contributed to the appointment or confirmation of the iudcoF." ,'., Now. vou were told that there is no law acrainst a Senator appearing there, and there Is none; but the evils that are known to exist In that respect seldom, thank God! thotich it is that anv scandal of that sort has oven been whispered in the United States, so far apart from scandal, and high above it. has our Supreme Court kept itself but. nevertheless, there has been some little, and that little was con sidered of sufficient Importance so that a bill was introduced in Concress to prohibit a Senator fr Congressman from anpearinc even before the Su preme Court of the United States. In 1SS6 a bill was brousrht in forbidding members of either House of Congress to appear in the Federal courts a counsel for any railroad company or other corporation which misrht. in re spect of its having received land crants. be affectod bv Federal legisla tion." The evil was such that Concress or some of the Congressmen thoucht that It was advisable to have a bill to prohibit a Senator or Congressman from apnearlnc evpn in the Supreme Court of the United States in any mat ter in which a railroad that had re ceived a errant of land from the United States mlcht have an interest. Opportunities for Corruption. Now says Mr. Bryce, "There are oppor tunities for corruption and blackmalllnc of which unscrupulous men are well known to take advantage. Such men are fortunately few: but. considering how de moralized are the Legislatures of a few states, their presence must be looked for. and the rest of the Senate, however It mav blush for them, is obliged to work with them and to treat them as equals." "The rest of the Sonate. however It may blush for them, is obliged to work wttji them and to treat them as equals." Why? Mr. Bryce tells us: "The contagion of political vice is nowhere so swiftly potent as In legislative bodies, because you can not taboo a man who has got a vote. You mav loathe him personally, but he is the peoples' choice. He has a right to share in the government of the country: you are grateful to him when he saves you on a critical division: you discover that 'he Is not such a bad fellow when one knows him'; people remark that he gives good dinners, or has an agreeable wife, and so it goes on till falsehood and knavery are .covered under the cloak of parly loyalty." Senators 3Iay Not Denounce. And 50 a Senator, and especially one who has been In the Senate for' many years because they have a rule there (and this Is a matter of history) bv which Senators become chairmen of im portant committees by seniority of serv ice, regardless of fitness for the position. and the chairman of an Important com mittee may be able to block important legislation in which you. as an honest man have an interest, and for that rea son, you. as a Senator, are under pres sure: under pressure which makes It im possible to denounce a brother Senator whom you believe to be corrupt, and to say. "You. sir. are a man with whom I want nothing to do." The business of the country, the Important measures in which your state may be Interested, pro hibit you from taking that course: and so much as it may go against your own principles you are bound to at least re main on fair terms with him and to" shut year eyes until it becomes a matter of public duty In some line where you should interfere: to shut your eye to the short comings which may have been brought to your attention. And so I say that we should give comparatively small weight to suggestions such as have been made by Senator Thurston in this case In re gstrds to Senator Mitchell as a Senator. Rule of Congress. You see that Congress had in mind when it passed this act prohibiting Sen ators from appearing before any of the departments, the fact that the influence of a United States Senator, a part of the appointing power as the Senate is. and a part of 'the power that regulates appropriations for the different depart ments; that the Influence of that Sen ator may be so great that a weak man would fall to fee his duty, and would act in accordance with the wishes of that Senator. Instead of In accordance with the facts in the case, and as his con science and duty might otherwise prompt him: Just as Hermann, as shown by Casey's testimony, in January.. 1S3. just before he went out of office, endeavored to expedite the Kribs" lieu selections and ordered them expet'lted. and the clerk to whom 'the order was sent, that sub ordinate evidently knowing thnt Hermann was going out of office, refused to put his initials to the order which he had prepared, which is the customary way of doing business there If the clerk ap proves or has advised the thing which is being done. A clerk prepares a paper in accordance with his views . of what ought to be done in the matter, initials it and sends it to the Commissioner for his signature. What Is to Be Feared? Here was a matter where the Com missioner, undoubtedly In answer to Mitchell's request, did order them ex pedited, and Casey, the nephew of Gen eral Grant, refused to put his Initials to It. because, as he says. he did not be lieve that under the facts they ought to be expedited. That shows you what Is to be feared from a United State Sen ator using Iris influence In any depart ment, as in aid of these Kribs' claims in the face of this cry of fraud: and for that reason Congress passed this law. Now. did it mean that a Senator could make all the money he pleased, could appear before the department as often as he pleased, provided only that he did not actually take the money into his own hands from the party who was paying it. or provided only, that in making the contract his partner did not insert his name in the contract. Is the law to be evaded that easily? Why. It was for the very reason that so many Senators are lawyers and so many lawyers have part ners, that that law provides that It shall be a crime to accept a fee for any service performed before any department, "either by himself or another." If his partner performs a service and he accepts a por tion of the fee. he is Just as guilty as if he performed the service himself. And so. on the other hand, if the partner makes an agreement by which he thinks he Is going to charge the client the whole of the fee for himself, and that the Sen ator (Mitchell) on the other hand. Is go ing to do all of the work but that he (Tanner) is not going to consider It as a part of that for which the fee Is paid, that it is all right. No. .whenever that Senator knows that whatever he is doing before a department is contributing to the result for which the money s being paid to the partner, and that he is get ting his half of those proceeds, he Is vio lating this law beyond all question. What further evidence was there thai Congress considered this a matter Itf- vojving moral turpitude. Senator Thur ston tells you that it Is not so much the punishment by Imprisonment and which I think he has little fear of In this case, even In case of conviction It is not so much the punishment by a 510.000 fine and two years Imprisonment, which means that the court can give any part of either, cither a fine alone and as small a fine as he pleases, or im prisonment alone and as snort Imprison ment as he pleases Mr. Thurston and Mr. Bennett: We ob ject to that statement, your honor, as not being n correct statement of the law. Argues on Penalty. Mr. Honey: I will confine myself to a discussion of the part that Senator Thurston referred to. Senator Thurston says that the part of this punishment that Is worse than death Is that the conviction in this case disqualifies the defendant forever thereafter from hold ing any office of honor, trust or profit in , the United States. He says that Is one of the dearest and most precious privileges of an American citizen. 1 agree with him. and so did every Sena tor and every Congressman agree with him who voted to pass that law alid put It upon the Statute Book. Then why did they attach that penalty to the law? Because In their Inmost hearts and consciences each and every one of them felt and believed that for'a United States Senator to use his influence In the Departments for money In a matter in which the United States was inter-, ested was equivalent to accepting a oriDP. j ney placed that terrible pun-1 ishment upon It because they thought I that the man who committed that act i was unworthy to ever again sit in that body, or even to occupy the most sub ordinate office In the Lnlted States. Tell me that they did not think there was any moral turpitude sbout It! That It was a mere technical offense, when the men who voted for that law placed such punishment as that upon it. and d!4 not leave It to the court to inflict, but made it a part of the law itself, following a conviction as a necessary consequence tell me there Is no moral turpitude In It. in the opinion of the men who passed the law! I tell you they considered it equal to bribery. Wc have in history an example, where the English House of Isords imposed a similar punishment for a crime that to my mind Is exactly sim ilar In all respects: and In that case as in this an appeal was made in as eloquent language as Senator Thurston used to remember the great services that had been performed by the defendant for the nation. And in that instance the services that had been performed by the defendant were so Incomparably superior to those performed by the de fendant In this case, even if we believe all that has been said about him. that his are not worthy to bo mentioned in the same breath. Lord Bacon Found Guilty. I refer to Lord Bacon, one of the great est Chancellors that ever sat upon Its High Court of Chancery; one of the greatest literary writers that ever lived in this or any other age; a man of whom scholars claim that lie is the roal author of Shakespeare, tne greatest work that was ever written In the Eng lish language: that man for whom ap peal was made even by tne King him self, that the Lords Rhould not condemn him. that man was found guilty and condemned and punished with the same punishment that will be Inflicted as a matter of law in this case If a convic tion is found; showing that the great House of Lords of England considered that the. moral turpitude of such an act which In his case was that, of ac cepting a present from a litigant in a case which was before him as a judge, and In which he made the defense that has been made here, that while he ac cepted the present he had nevertheless decided the case according to the law and his conscience was such as required the severest punishment. Who is to say whether the Judge decides the case ac cording to the law and his conscience If it Is known that he has accepted a present from one of the litigants, the one In whose favor he decides? Who is to Inquire into his heart and mind to find out whether the motive with which he decides the case is a corrupt one from the influence of the bribe money, or whether he would have so decided otherwise. Moreover, the harm done is Just as great anyhow because it causes the people to lose faith in their courts and In the laws; and when people lose faith in the laws of their country "-and cease to enforce them in proper cases, that country is on the downhill grade, and its manhood is be coming something that we will not ad- CHRONOLOGY OF IMPORTANT EVENTS' IN SENATOR MITCHELL'S INDICTMENT, TRIAL AND CONVICTION According to the testimony shown at the. trial of Senator Mitchell, the Senator was the first to speak of the now famous "Kribs indictment" and the impending trial. This was on 'December 23. when Senator Mitchell was met at Kalama by his .partner, A. H. Tanner, and discussed, according to the testimony of Tanner, the books of the firm, especially' as relating to the Kribs entries, the possible conduct of Krlbs In his attitude toward the prosecution, and kindred subjects. Up to this time the Government bad not taken up the consideration of the Kribs lands. It was not until January 10 that the Federal Grand Jury began the investigation of the Kribs claims and the connection of Mitchell and Tanner therewith. At the time Senator Mitchell returned from Washington the grand jury was considering the evidence in the Puter case against him, which Is yet to be tried. The true chronology of the trial, considering the main events which led up to It and upon which the principal features have hinged, commenced in the middle of December. 1S04. when the Federal Grand Jury was convened and ru mors began to fly connecting the name of Mitchell and Hermann with the Puter land fraud operations In Oregon. At the outset both Senator Mitchell and Mr. Hermann Indignantly denied any complicity, and refused to pay heed to the gathering storm here, contending that the Interests of the state demanded their presence in Washington. December IS. 104 The rumors of, impending Investigation and Indictment became so persistent that both Sen ator Mitchell and Mr. Hermann announced their intention of coming to Portland to appear before the grand Jury. December 2S Senator Mitchell reached Portland and demanded the right to appear before the jury as a witness in order to explain away the charges that were supposedly being brought against him. December 25 Senator Mitchell appeared before the grand Jury and went through . long examination by that body. December 30-The Senator returned to Washington after defying the Government and the prosecution to con nect him with the Oregon land frauds in any manner. January 10. 1&"6 The grand Jury reconvened after the Christmas holidays and began tne Investigation of the Kribs matter. February 1 Senator Mitchell was indicted for having accepted compensation from Kribs for having performed services before the General Land Office contrary to the Federal statutes. February S Harry C. Robertson, subpenaed by the Government as a witness before the grand jury, left Wash ington Tor Portland. A. H. Tanner, the law partner of Senator Mitchell, was indicted for perjury committed in trying to shield the Senator from connection with the Frederick A. Kribs transactions before the Land Office. February ? Robertson arrived from Washington and gave his testimony before the grand jury, at the same time surrendering the now famous "burn this letter" document sent by Mitchell to Tanner in the keeping of his private secretary February 11 Judge Tanner pleaded guilty to the inidctment of perjury placed against him, in order to save his son from a similar indictment. The grand Jury adjourned for a short time on this date. April 3 The grand Jury was reconvened for the completion of the remaining business yet to be considered, adjourning April S after a five days' session. April 21 The Mitchell plea in abatement was argued before Judge Bellinger and taken under advisement by the court. May 1 Judge Bellinger rendered his decision In the plea of abatement, overruling the arguments of the defense and declaring the indictments good and sufficient. June S Judge Gilbert arrived in Portland from San Francisco to prepare for the land-fraud cases. June 12 was f,et as the day for hearing the demurrers to the Mitchell indictment and the opening of the Mitchell trial. June 11 Judge De Haven reached the city from his home at San Francisco, ready for the convention o court the following morning. June 12 The demurrer to to the Mitchell Indictment was argued by Judge Bennett and Senator Thurston for the defense, and United States District Attorney Heney for the Government, and was taken under advise ment by the court. June 13 Judge De Haven overruled the demurrer, holding the indictment to be good In Intent, though faulty in construction." June 20 was set as the date for the commencement of the trial.- the Jury panel being drawn in open court at the direction of the Judge. June 20. The trial commenced and the Jury was selected and sworn in. June 21. 2?. 23. 24 A. "H. Tanner testified for the Government, and was cross-examined by the defense. June 25 Harry C. Robertson was called as a witness by the prosecution and gave damaging evidence against Mitchell. The Government Tested its case, giving the defense a chance to Introduce evidence counter to the allegations of the indictment. June 27 The defense rested its case, and Mr. Heney commenced the opening argument for the prosecution. June 29 Judge Bennett made the opening argument for the defense. June Senator Thurston, followed Judge Bennett with the second argument in behalf of Senator Mitchell. July 1 Mr. Heney commenced the closing argument for the Government. July 3 Mr. Heney closed his argument, after which Judge De Haven gave his charge to the. jury, and the case was glvon Into Its hands Cor consideration and verdict. At 11 P. M.. the verdict of guilty was read In court and a motion for a new trial made. , . mire. Lord Bacon, that man whose fall cause I tell you that every student of was greater, whose humiliation was a I criminology, every student of law. agrees thousand times greater than this de- in believing that it is not the severity of fendants can ever be. because of the ! the punlsnmenl but the certainty of pun height from which he Ml. that man; Ishment that prevents crime, and If this finally wrote to the committee of the' jury is convinced beyond a reasonable Lords who had the matter In hand and ' doubt that this defendant Is guilty, and confessed his guilt. And thev were so i nevertheless acquits him. out of aym inuch astonished at the Ingenuousness pathy or because of what he may have snd the candor or the confession tnat . done for the state of Oregon in the past, they sent a committee to him to find out 'you are saying to every Senator In the whether it was reallv Ids writing or not: . United States. "Go thou and do llke and when they came to him he said, "it; wise, and you mar expect to receive the Is rav act. my hand, my heart, my Lord, same treatment If put upon trial- ou I beseech you to be merciful to a broken are saying it to eer Concressman as reed." And then that great man. who ; well as every Senator. Moreover, you will live forever in the literature nf Eng- .fe '!" to the great mass of the peo land and this countrj. went from the Pie throughout the L tilted States, that room in humiliation ami shame, and that there is such a thing r.s being above the committee went back to the House of; law- "It is true that if John H. Mitchell Lords aiirt did ii Hun-- it fnrrm rt- if was not a Lnlted btates Senator we put aside the sen-Ices that had been ' cos that had been wouia pot nesiiate to convict nim upon y refusing to listen ' thin evidence, but John H. Mitchell, be-svmnathv- it aid .cause he has been in the United States i to do our dutv in : Senate for 40 years, he Is a thing above performed by him by to the anneals for "We are under oath this case and our duty Is not to the tin- lortunaic person wjiose fan u already i complete, because the world knows his guilt from his coi"feselon"-Jusi as It ; knows the guilt of this defendant from ' the evldeneA In thlo rase "ti-a mt- nnt I to consider him now; we are to consider the future of this country: we are to con sider what the effect of an acquittal will be in the face of convincing evidence upon. tJie future of this great Republic." Wc ate to consider what the effect will be upon the growing eVlIs of this State of Oregon and of the United States. In thnt case if Bacon had been allowed to go without punishment and received Impris onment at the pleasure of the King a tine of and to be disbarred forever from holding any office of honor, trust or profit In the Realm, if he was permitted to go when his guilt was plain, what was there to deter others from doing like wise In. the hope that thev. too might bo let off? Object or Punishment. Now. I have pointed out to vou that the object of nunlRhment Is twiifnM arui twofold only. It Is not the old Mosaic J law. an eye for an eye and a tooth for al loom; it i not upon the theory that we will make the defendant repair the wronr; It fc not that we are going to cxacfrom him penance for what he has done. It Is twofold onlv: First in its object; flrst. the reformation of the de fendant himself. And in this case, as In that of Lord Bacon, that purpose could well be lost sight of. because the age of i.uiu iMwn, nite wiai oi imp defendant. fthe t.Vrx-To nn-w U?,!L!T,ln& (vhJi, luPnJXi IST lh1prrect which the conviction aould have in de- terrlng others from committing an of- tense, and tnat the nurnose of alt law. You and I can nor be safe In our household Roods- unles thieves are pun ished. It will not do to say this crime Is eommon; that stealing I common; it will not do to say because stealing is common and because tve haven't every thief on trial at this moment that we will let thii fellow so. Punleh this one to deter others from doing likewise, be- UNITED STATES SENATORS WHO HAVE BEEN PLACED ON TRIAL CHARGED WITH VIOLATING FEDERAL STATUTES OREGONIAN NEWS BLREAl'. Washington. July3.-In all the history of the United States Government there have been only three prosecutions of Senators, charged with violation of Federal statutes while they have held that high office and all the trials have occurred within the past two or three years. The Senators ivno have thus had to face a jury of their peers are: Burton, of Kansas; Dietrich, of Nebras ka, and Mitchell, of Oregon. Burton and Mitchell wet indicted under the same statute, section 17S1. which forbids any member of Congress from practicing before the Department of the Court of Claims, or from accepting- pay for appearing- bvfore any of the departments In any matter In which the Federal Government is interested. It is Interesting to note that this statute was not enacted until 1S63 when the Government was-in the midst of the great Civil War. It was passed because one member of the upper branch. Senator Simmons, of Rhode Island, had been found to he Interested In ordnance, contracts. The publication of this fact aroused the public so much that Simmons resigned during'the recess of Confess In 1S62, having served five years of his six-year term. The first Indictment under that act was one brought against Senator Ralph Burton, of Kansas, two years ago. for his connection with the Get-RIch-Syndlcate operated by J. J. Ryan, of St, Louis. Burton was charged with having appeared before the Postoftlce Department as Ryan s attprney In an effort to secure a modifica tion of the fraud order iKued against the St. Louis man and with hnving accepted "ioney for his services. Burton has always claimed that he did not know of the existence of the statute and until It was made public in his case, dozens of Senators and Representatives were Ignorant that there was such a law. Burton was con victed in St. Louis and -sentenced to a fine and to be imprisoned. On appeal to the Supreme Court of the United State. the decision of the lower court was reversed on the grounds thac the payment of the money to Burton was made In Washington, although the check in payment was on a Sti Louis bank. Further pro ceedings have not been had in this case. The second Indictment and trial of a Senator was that of Senator Dietrich, of Nebraska, for having rent ed quarters Tor a postoftlce at Hastings. Neb., his home town, to the Government while he was a member of the Senate. Mr. Dietrich was acquitted by the Jury after an exhaustive trial. Subsequently on his demand he was investigated by a committee of Senators and wa acquit ted by them also. The third and last trial of a Senator was that of Senator Mitchell, of Oregon.v for practicing in a land case before the Interior Departmenu All the facts in that case are well known to the people of Oregon and need not be stated here. The one recent indictment and conviction of a member of the House of Representatives for being: inter ested In a-Government contract was that of Congressman Drlggs. of Brooklyn, N. Y.. on account of his in terest In a contract for time clocks. He was sentenced to pay a fine of 510.00U. and imprisonment for a day. He paid the flno and served the allotted term in jail. would not hesitate to convict him upon rRrNcir.vj. evkxts in sknatou MITCHELL'S CAREER. . Bora June 22. I Si.'.. In Waahlastoa Count). Pennnrlvanla. Bean study of law In 1557 at Butler, r. Came to Portland. ISV). Elected City Attorney of Portland. 1661. EWted State Senator, 1M2. Elected PreMrteat ef Stat Snat. 1S6.V E!ecti United Stai Sator. 1572. R?-lected United States Senator. 1SW. Re-elected Unite! Statfn Senator. l&M. Re-elected United States Senator. UI. Indicted Uy Federal grand Jury. Febru ary 1, lli. Found guilty. July 3, 1JKS. and apart from the rest of the people of the Lnlted States who may be charged with crime. We. a Jury of his country men, refuse to convict him upon evidence which we would unhesitatingly receive in another case, because wc think he is above the law. I know. In my heart of heart?, that this Jury will not do that; I know that all you want Is to be con- th defendant L guilty in this case, and that his conviction will follow just as !Mr. n dnvllcht follow lrknA J Kccclvetl the Checks. Now. I have taken up so much time that I hesitate tc go back to this matter, and I will not go back to that date be tween there to any great length, but I want to call your attention to the fact that the defendant came back here on August 2. 12. after he had received all these letters In relation to there matters; Ihe was here on August 2. 1S02. when he J received hi large check for 57?0 for the month of July preceding, and of 5727 for I the month of June preceding. In the , month of June there had been paid the im of 51000. but it was not paid until : Mitchell left Washington. But he had received in the meantime this copy of , the books containing these other pay ments of Benson $250. Burke S300 and the VM from Kribr; he had received It under the circumstances I have pointed out, of all these letters advising him that thesi fees were coming In and were to be paid, and these letters say "they are our fees." and say that there b an additional f?e -due. and all that sort of thing. He had , received that copy of the books. On June 16. arter baring been wired In Mav by :Tnnner to send him ofllclal notice of some kind, that they had all gone to pa tent he could collect the fee from . Krlbs. after having written him that , "Wc have an additional 51000 due In thin matter." he gets that copy of the books !on June 9. and the Kribs fee of 51CC0 had I not vet been paid. But he gets a letter id&led June 15. 1902. following this copy I of the books, sayine "Krlbs hat paid tne I510CO which he owed as a fee; he has paid the 51C00 fee." Now, of course. : Mitchell could not have misunderstood what that fee was for. Pay for Two Month?. Following this up he gets his check of 5727 for the month of June and 57SO for the month of July, and he arrives here on August 1. or Is here on August 2. and examines the books at that time, according to Robertson's testimony; ha asks Robertson to bring them to him and he nas them before him for three hours. Now I have shown you that you could go throush that book and notice the large Items In three minutes from the time that the copy of the book closed up to the tlm he arrived here. Now. he has been told that Krlbs had paid the thousand dollars in the letter of June H. received by him about June 21. Did he. when he took his check on August 2. know that that money had been paid in? Can there be any reasonable doubt of it? But run along from that time on: we bring him back here In 1S03. when he sees the book again, because he looked at his contract and has a copy of It made by Robertson :and then he returns to Washington and more business Is done; more letters pass advising him. and then he arrives here In October of IS04. He gets back here some time early In Oc tober, before October S, now. the Krlbs payment of 5200 on account of these lieu lands Is made October-S. 100i. Mitchell examine? the book for five days, between the 20th of October and the 30th of Oc tober. That Is after the entry appeared In tne book of the payment of 5200 by Krlbs on account of the lieu selection No. . as It says In the book. Mitchell's letter refers to these lists by number: Krlbs No. 4 and Krlbs No. o. So that he says In that, what ho perfectly un derstands, that 5200 has been paid on account of patenting these lieu selec tions. List No. 5. paid on October K. Now why do I say he saw It? Because he was examining the books for Ave davs between October 20 and October 3L With what object in view? To determine whether he would consent that the fees should be divided so that Tanner would get three-fifths and he only two-fifths, whereas they had been getting half and half since he had been in the Senate this last time. iooks Through Books. Now. as I pointed out. he had to look through the books to see where the money was coming from, the large amounts, and I have shown you there were no large amounts of money except from this source; and therefore I have shown that it is utterly impossible to imagine that he did not see them. and see where they came from. Now. on October 31. 1904. he signs that agreement for a different division and on the next day. having examined the books for Ave days he accepts his one-half of that 5200. Did he know It? Did he know what It was for and where it was com ing from? Is there any reasonable doubt of It from the evidence In this case? But then what happened on November 15 after doing this? Right after this things were coming along prettv rapidly, and on November 15. right after doing this, he went back to Washington. He was out here again in a month from that time to come before the grand jury to testify. When he came here it was Jn December, about a month later. Senator Tbttretnn rcnmlT tViA clenifl.anrn anil it. Yi. 1. ril'l l .V . "eigiit. oi me iesmony inai snows inai nothing whatever had "been said about Krlbs or the Investigation of Kribs up to the time Mitchell met Tanner on the train iinH MlrrhAlt hrnitfTit tin f Vio nnn- versatlon himself. That testimony that nothing had been said was brought out by them from Tanner. They said to i&nner. "iou nad neara rumors of what na snooK nis flst at me and was going on?" "Yes." "You told him k wa. a lie. that he didn't know the rumors?" Yes." "Now. don't vouantnlnS of the kind, that he would, know. Mr. Tanner, that there have not Le?r,on ,a stack of a thousand Biblea. been a single rumor about Kribs?" Ana Is almost his exact words, as near "Tes." says Tanner, "that is so. I hadn't Sf can remember. I said, very well, heard anything about It from any source. fnator; yo.u are liable to make yourself Aim of Counsel. vnat were they aiming at? hat did they think they were aolng? The at- torney who asked that question had in What were they almlnsr at? What did muia suieiy somemiiig eise ne was aim- a. mue wn e and says I will fix It anit at' Z111 4?" you what.Jl was. then he did tlx IL'' For once he toSk He was leading Tanner up to the point t some good advice. So he sa d it waS i of saying. "Now. don't you know you lie lie to start with, but finally admitted It when you say tnat you had this con- was not. because he changed It himself versatlon about changing this agreement, i So In his talk with Tanner when tW and that Mitchell would have to flx were looking over the books from beSn Robertson? Don't you know you He. be- ning to end. Tanner said. "He came to cause you afterwards wired him asking the office and said he would like to loot what Robertson knew about the con- over the books of the firm. And I onened tract, and don't jou know that, you He. i the safe and got out these books that r because, as a matter of fact. !,at that have been testifying about here and took time nothing whatever had been said them Into his private office and rave about Kribs, You were not looking for them to him. and he took them and any such thing." They overplayed their I went over them page by page, and I was hand on that, because one of the most ! on one side of the table and he on th significant facts In this case is the fact other. And he pretended to be surprised that although there had been no rumor at the entries In the books." whateer. although Tanner had not I Now. Tanner was not trying to stick iicuiu ic iis":si iuiiiuuiiuii nun tvriu3 I. !n I . I - .1 X C . ne ieit vtasmngion. i am willing ne 'os entries in tne books. Why did should point it out right now. If there i Tanner's mind take It as a pretense on Is a syllable of evidence in this case that 'Mitchell's part? Why. because he felt Intimates anything of the kind I would that It was impossible that Mitchell did like to see it; T cannot And it. and I not know all about those entries after searched for It carefully and diligently "H that had taken place, all the corre yesterday. a good part of tho day. but j spondence. and all the conversations I knew It was not there when he made i that had taken place; after all that he the statement. I do not mean to IntI- felt that It was Impossible. He knew mate that Senator Thurston purposely ! that he had sent a copy of the books misstated testimony, because from his ' to Mitchell; moreover, he felt that when conduct In this case I am absolutely con- Mitchell said what he did say about fldent that he would not , willingly do so; .os entries It was a mere pretense on but the significance and weight of that 1 Mitchell s part, that Mitchell was trying was weighing upon his mind, and he J to make his listener believe what it was had the impression that somewhere in ; tl,at Mitchell wanted the listener to this case there was something that would , .wear to as he shows by hls letter to support . that theory. There Is not a ; Tanner afterwards, when he tells him a word, however. Mitchell leaves here .n,v 'ou know these are the facts, and November 15 and s;oes to Washlagton. I lnat L have never seen them up to now," and not a single word Is said about arter he had been through them item by Krlbs or the Investigation of Krlbs In ,tem .jn December. He write? In Febru the newspaper or elsewhere that reaches ary. I have never seen them up to now," Tanner's ears and Tanner's ears were j and pretended to be surprised by the pretty alert at the time. entries' in the book. Well. now. consider i- ti -.r .. wnRt would be natural for a man to say Kribs Matter Kept Hint Awake. . to another one who was pretending such ,..u. , tl.AMl? tha.t: :Gat heaven?. Sena-. ". ;''" '"", ir. u mere nas open anvfftinjr-. vrn" through the books for the purpose of ; in this business. In the way It haVbeen I7.ak!nplwtn,s n.ew' agreement, having seen , transacted, why haven't you said so long the Kribs matters in th books, knowing ' ago?" And. how could he have said so full well. a. ne did from the beginning, i If he had not known? Tartner assum-s that moneys were received from Kribs that he must have known. "Great heav and went to the firm account, his guilty I ens. If there has been anvthlng wrong In knowledge, hts guilty conscience was 1 It. whv haven't you said so long ago' driving him. and he said to himself, "as The book? have been kept just as the to other matters with which I may be : articles of copartnership provided, and charged, r can deny as hard as the other If you wanted them kept In any other man can swear: but as to matters where way. why haven't you said something eo many letters have passed, as to mat- about It before? Well, he didn't say any ters which I know are In the books, but thing. He didn't make any reply to It don t recollect now. just exactly what He asked me how long it would take tc the wording Is. there Is the great danger. I rewrite the books, and I said, 'and leave Burton has been convicted for the same . out these entries?' and he said 'Yes " offense. There Is great danger. My God. Now. right there is an admission on the I am ruined. The Kribs matter, the part of Mitchell that he did know, that he Kribs matter the Kribs matter" this Is what Is keeping him awake all the wav out on the train, and the very moment ( manner which has been described here, he gets Tanner alone the Krlbs matter what would his replv have been to Tan Is what he brings up. the Krlbs matter ner? "Why. didn't I tell you otherwise? Is what he first speaks of. "Tanner. . Haven't I told you not to mix me up in what Is Krlbs going to do with the Gov- any land business? Haven't I told you uiiuian; ijuiu inert; ue any stronger or better evidence of the guilty conscience of this defendant at that time, and If he had It at that time he must have had it rjerore ne iook tlie payments on No vember 2. 1D0I. because nothing had hap pened to bring It to his attention since. Now. he says. "What is Krlbs going to do with the Government?" Then he says. "How are those entries In the books?" And he wants to see the hooks; then he goes to tne office next dav with Tanner, and goes through the book item by Item with Tanner. Anil they say that conversation there must have been true, because it was not Intended for the pub- He Rare or for the court house: nnd T agree with them. Just as it was proved and just to the extent that it was true and no more than to that extent when Robertson and Mitchell had the con- versatlon ln regard to the Interview Mltchell was going to give out to the newspapers in Washington In February! when Mitchell had put In the statement thnt v, ,.,- -.- u-,.i, i V.i ,:Vl "iT"; never had a talk with him on nnv snK Ject In his life. Not Intended for Papers. When Robertson and Mitchell got alone together, their talk there was not Intend ed for the newspapers, and you can as sume that Mitchell. ju?t as much as you can assume In the case of his talk with Tanner, was talking the truth. And what was he doing? He sent out of the room Mrs. Blerbower and his grandson because ne knew that Robertson knew the facts In regard to the Krlbn matter, and he did not want Robertson to state thoe facts In the presence of Mrs. Blerbower and his grandson to be otherwise than what Mitchell intended to swear they werc whenever he took the stand or went before the grand jury. So he wanted them out of the room, to talk with Robertson alone. It was not Rob ertson who sought that interview to have it alone. Robertson was willing to talk It before anybody whom Mitchell was willing to trust. But what did Mitchell say? They say Robertson called .him a liar, but there Is no such evidence In the case: they say the poor old man needed advice; well, he did need advice and he got good advice, sound advice right then and there from that voting man. advice that was exactly Identical In character to what Mitchell was giving Tanner In the letter. "Don't be Inter viewed; Don't be Interviewed." Nobody could be trusted to hatch up a story and fabricate a defense except himself; he could not trust Tanner to flx one that he thought would suit: he wanted nobody interviewed but himself: he wanted to fabricate the evidence himself, and ther make everybody else swear as he swore. Files Into n Rage. And so when Robertson said to him. "Why. Senator. It won't do to let this go out in this way." what did Mitchell do? Did he thank him for the advice? No. he flew Into a rage, and counsel say that now that they were alone and this was not said for publication. It must be true. What was It? He flew into a rage; he says. It Is true, I never did talk to Kribs: never saw Kribs: It is a He if anybody says I did." Was It a He? Hadn't he seen Krlbs? Can there be any question about it? And yet he tried to stuff that down Robertson's throat? Why? Because he was prepared and ready to swear to It himself, and he wanted to make Robertson swear to It, by making Robertson believe It was true. But Robertson had the moral courage to say to the man for whom he was working as secretary, and earning every dollar the Government wa9 paying him he was not taking board out of this man's hand as a gift, he was filling a Government position In which he had to earn and did earn every dollar that was paid to him Robertson had the moral couraza to say to him. even though he might lose his job by it. "Why. Senator, you should not give this out. because you will be. made out a liar.- you will be made out a liar" not that you are a liar, but "you will be made out a liar, because Kribs knows it, I know it. and Tanner knows it." and wouldn't he be made out a liar If thev all swore to it? Mr. Bennett We object to that on the ground that that was not what the witness said; he didn't say he would be made out a liar. Whereupon a recess- was taken until 2 o'clock P. M. AFTERNOON SESSION. Heney Goes On With Argument. Two o'clock P. M. Mr. Heney resumed his argument: Gentlemen of the Jury I shall close this argument In half an hour, whether I have said all I. want to say or not. t feel that I shall be Imposing on you to take any more time, and I have covered all the facts sufficiently. fnrthS.ntt0ilfcS11 .you.r aenoii a little further to Robertson's- testimony, about S-hLcr J , was , sPakins before lunch. oViih lri.,si. SrRlns8.? b" cpunael that he called Mitchell a liar, and where I say a?.. Ka,s dolns h,s duty and advising verl.? frI. and giving Wm thf ery advice Senator Timro.nn -. u the. t,me- When thty had edfttohlnr"miVe.IUed i ed tO know what n-ns 1.1. ' fha et,i;-.. r . Willi , ""cm. i explained to him that . 1 ,?01isnt " "'a io strong. In fact. I . SRld Senator, if I was vou I would" not 2)5e ?y, statemeht at all." That was good advice. "You know anrf t jrib3 has been a client of the office out ' tn"e several years and has been Day- y1 money in. He flew into a very vio- Ki. " u.u ao so Because I know- better. Tanner Ifrnn-c hfo t.-iw petter and Tanner s stenonrranhor- an j haps others. r.aps others. He studied a Tittle hit Vnn , finally he said he believed Ihe did k' ' seeing Krlbs last Fall I just befo fftft : miu .uucueii wnen ne wa testt. I fHnr. 41.1- .J . . . ' knew all the time. If he did not know if , he had been aetlntr In thi hrhiv m'i i mm i coma noi latce any tees ror any land business? What do you mean by putting It In the books in that way?r And that is what he would have vaid. Instead of that you have the silence of guilt; you have the silent confession; you have him standing mute at a time he should have spoken in clarion tones. An admission that he did know. Mitchell's Subterfuge. And then they attack the testimony of Tanner, who tells you that when he said there was no use In destroying the books. and that Is where the suggestion came fron? the first time, from Mitchell's lips ' l? nV"' ,tna tncre ,s. no use ln destroying ' , "O0'i3 because the contract stands in 1 the w"a"s that Mitchell then said. "We can, rewrite the contract." That Is the testimony. That then he said what? Sen- ator Thurston says this old man needed sm good advice Did he get it? Did this mslnSi frlend,,o 3 wh, as w,J1,n? ,to go the length he did go for him. zive him that when Mitchell suggested that. Tan ner says. "Senator, the best thing you can do Is to make a clean breast of It." Was better or sounder advice ever given any man on earth than that? Wqs more wholesome advice ever given than that? But what did he do? Instead of accepting that advice which Senator Thurston leads us to believe he himself would have given under the circumstances, "make a clean breast of It." Instead of following that advice, he did what the guilty mind al ways docs, resorted to subterfuge, to fab rication and destruction of evidence the sign of a guilty mind nine times out of ten. Mr. Bennett read to you from the book. He objects to anybody else reading from books; he wants a monopoly. He said ho thought he had found in Dickens the source from which I gained my in spiration for the prosecution of this case, and he read to you the argument of Ser geant Buzfuz to the jury upon those let ters. Itf was amusing, and yet Mr. Ben nett wonders why he is ln this case? T can tell him: It is because throughout Oregon he has the reputation of being able either to laugh or cry a case out ot court: anu when he finds that he can do neither one of those two things he Is Hkfl a pigeon with Its wings clipped, and when he attempts to fly he flutters but the least way on the ground. Now. I did take soms inspiration for this argument from the argument of one of the greatest lawyer the world has ever seen. Edmund Burke certainly the greatest of English orators. Upon the trial of Warren Hastings ln th Impeachment proceedings Hastings had been Governor-General of Bengal, I be lieve, and this was also before the Housa of Lords Burke had this to say about some of the evidence which had bees given by Warren Hastings: "As for good acts, candor, charity, just, ice oblige me not to assign evil motives, unless they serve some scandalous pur pose, or terminate In some manifest evil ends. So, Justice, reason and common sense compel me to suppose that wicked acts have been done upon motives cor respondent to their nature. Otherwise, J reverse all the principles of Judgment which can guide the human mind, and accept even the symptoms, the marks and criteria of guilt, as presumptions ot Inno cence. One that confounds good and evil Is an enemy to the good. His conduct upon these occasions may be thought ir rational" they have attributed it here to the mind of an old man "his conduct upon these occasions may be thought irra tional, but. thank God. guilt was never a rational thing: It distorts all the faculties of the mind: it perverts them: it leaves a man no longer in the free use of his rea son: it puts him Into confusion. He has recourse to such miserable and absurd expedients for covering his guilt as all those who are used to sit in the seat of judgment know have been the cause ot detection or half tne villainies in the world." That's it. The guilty mind acts, irrationally. Instead of adopting the