Image provided by: University of Oregon Libraries; Eugene, OR
About Morning Oregonian. (Portland, Or.) 1861-1937 | View Entire Issue (July 4, 1905)
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
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.
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
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
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
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
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
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
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
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
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
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
Bean study of law In 1557 at Butler,
Came to Portland. ISV).
Elected City Attorney of Portland.
EWted State Senator, 1M2.
Elected PreMrteat ef Stat Snat.
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.
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
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.
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