# Looters of the Public Domain/Chapter 13

Chapter XIII
SENATOR MITCHELL'S connection with Fred A. Kribs, as described in the preceding chapter, brought about his indictment and subsequent conviction for a violation of Section 1782, of the United States Revised Statutes. Coincidentally, it sounded the death knell to the reign of a corrupt oligarchy that had dominated the political destinies of Oregon for practically one-quarter of a century. This political machine was in the zenith of its glory at the time Francis J. Heney began his crusade against the Oregon land frauds, and when it was hinted that John H. Mitchell, who had so long controlled the political affairs of the State with such supreme autocratic power, was likely to become involved, the idea that any Grand Jury would be found with temerity enough to indict him, or that any trial jury would convict him for his offenses, was 16oked upon generally as a vivid flight of the imagination.
It is hardly necessary to enter into details pertaining to the various phases of the trial and conviction of Senator Mitchell, for the reason that they form a part of the Court records that have already been considered at great length by the press, and because the one most affected is now beyond the grasp of earthly trouble. What will doubtless most interest the public, so far as this particular case in concerned, is the unwritten history attached to the circumstances attending the downfall of a political idol and it is the purpose of this chapter to cater to this idea more than to any other.
Kribs had given the Grand Jury full information regarding his relations with .Senator Mitchell, and furnished complete documentary evidence, including checks, letters and other data to sustain his statements. Judge Tanner, Senator Mitchell's law partner, went before the body during the latter part of January, 1905, in connection with the Kribs payment investigation, and in answer to Mr. Heney's inquiry about the terms of the partnership existing between himself and Senator Mitchell, Judge Tanner produced what purported to be the original partnership agreement. Heney brought it with him to the hotel that night, and was somewhat perturbed over it, because, if it were the genuine agreement, it would result in absolving Mitchell from having received any compensation in the shape of fees i)aid by Kribs, a clause therein stating that Tanner was to receive all the fees for any work the firm performed before the Land Department.
As a result of the tips that Irvin Rittenhouse had given Mr. Heney during the progress of the Hyde-Benson preliminary hearing at San Francisco in 1904, the Government prosecutor had a great deal of confidence in the ability of his private secretary for deciphering questionable typewriting. He handed Rittenhouse the document, at the same time stating that Judge Tanner had testified that it was the genuine contract, and had been written in March, 1901.
No sooner had Rittenhouse inspected the contract than he assured Mr. Heney that the typewriting was certainly not four years old; that it had evidently been done recently, and that the signatures of Mitchell and Tanner thereto in ink were still pale, instead of being jet black, as they would have been had they attained any degree of age. Rittenhouse then read over the contract very carefully, and in doing so came across two mis-spelled words—"salery" and "constituant," to which he called Mr. Heney's attention.
The latter seemed somewhat gratified by this discovery, but said nothing about it at the time, nor did Rittenhouse mention the subject again until later on. Rittenhouse had also directed attention to the fact that all the correspondence passing between the firm of Mitchell & Tanner and the General Land Office during 1901, 1902 and 1903—the period covering the transactions between Mitchell and Kribs—then in possession of the Government, was written with either a light blue or purple ribbon, while the contract submitted to the Grand Jury by Judge Tanner had been written in black. He likewise directed Heney's attention to the water mark in the paper on which the contract was written, indicating that it was ​different from the kind used by the law firm in 1901-2. Subsequent inquiry developed that the style of paper used in the alleged original contract, "Edinample Bond," was not manufactured at the time the document was purported to have been written.
The next day Mr. Heney called Miss Aimee C. Spencer, Miss Edith Bern, and Miss Margaret O'Brien before the Grand Jury. All were at one time stenographers of Mitchell & Tanner, the two former having been regularly employed by the firm, while Miss O'Brien performed special service for Senator Mitchell during his occasional visits to Portland from the National Capital. A. H. Tanner, Jr., was also subpoenaed before the body, as Judge Tanner had stated that his son was then the only regular stenographer in the office, having acted in that capacity during the past six months, but not prior thereto.
About 8 o'clock that evening, while Heney, Burns, Rittenhouse, Puter, McKinley, the Tarpley brothers and Marie L. Ware, were in room 211 of the Hotel Portland, discussing matters in connection with the Mitchell case, Rittenhouse suddenly remarked to Heney:
"How about those misspelled words?"
The Government prosecutor scowlingly replied, "D—n you, I'll dynamite you if you don't keep still about that!" at the same time walking into an adjoining room, and motioning for Rittenhouse to follow. They were joined almost immediately by Burns, who inquired:
"What's that you are talking about?"
"Why, 'Rit' found two misspelled words in this contract here, and I had all the stenographers before the Grand Jury, with Tanner's son," responded Heney, at the same time exhibiting a sheet of paper containing a sentence from
Upon being shown the agreement in the Grand Jury room, Tanner's son had declared under oath that he had not written it, nor had he ever seen it before, and upon the basis of this testimony an indictment was prepared, charging him with perjury. It was at this juncture that judge Tanner, who had also been indicted for perjury in connection with his efforts to shield Senator Mitchell, learning that his son was to be indicted, decided to tell everything and save his boy from criminal prosecution, and the story he told the Grand jury was pathetic enough to arouse every instinct of human compassion.
It was to the effect that the law firm of Mitchell & Tanner was first established in 1891, and continued under various forms of agreement until March 5. 1901, when it became necessary to modify the terms of co-partnership on account of Mitchell having been elected to the United States Senate. A clause of the agreement entered into on that date contained this provision:
   "It is understood and agreed that the interest of each of the parties to this agreement as to all services rendered, all moneys received, and all business done by the firm, shall be equal one-half thereof, except that for any services which may be rendered by said John H. Mitchell in the City of Washington, D. C, either in the Supreme Court of the United States, the Court of Claims, or before Congress or any of the Departments, shall be the individual matter and claim of said John H. Mitchell, and all fees so earned by him in either of said courts or before Congress or any of said Departments, and his salary as Senator, shall be the individual property of said John H. Mitchell, and the firm shall have no interest therein, but for all services rendered by the firm or either member of it in any other place, save and except as above, shall be considered firm business, and the parties equally interested therein."
According to judge Tanner, when the land frauds were under investigation by the Federal Grand Jury in December, 1904, Senator Mitchell became considerably alarmed over the prospects of becoming involved in some of the scandals, and requested permission by wire to appear before the body in his own behalf. Accompanied by Congressman Binger Hermann and Frank C. Baker, Chairman of the Republican State Central Committee, of Oregon, Senator Mitchell left Washington, D. C, about December 18, of the year in question, and on December 20 wired Judge Tanner from St. Paul. Minn., requesting the latter to meet him at Kalama, Washington, upon the arrival of the Northern Pacific train at that point.
Judge Tanner met the party as requested, and Senator Mitchell appeared very anxious to learn the latest land-fraud news, asking particularly if there was any danger of the Government agents having had access to the books of the firm. The day following his arrival. Senator Mitchell and his partner made a careful inspection of the books of the firm, page by page, Mitchell expressing surprise at the manner in which the various entries had been made, and demanded that the old books should be destroyed, declaring that the entries in regard to the Kribs transactions would not only result in his indictment, but conviction as well, if they fell into the hands of the Government. There was a heated discussion on this point between Mitchell and Tanner, the latter insisting that the accounts had been kept in strict conformity with the terms of their partnership agreement, and that Senator Mitchell was fully aware of the manner in which they had been kept. and had never raised any previous objections thereto.
At this conference Senator Mitchell suggested changing the partnership agreement in a manner to exonerate him, and Judge Tanner called his attention to the fact that Harry C. Robertson, Mitchell's private secretary, had typewritten the original document, and "it would hardly be safe unless we could count on him in the matter," as Tanner expressed it. "Well, you fix it up and I will manage Robertson," Senator Mitchell had responded.
Judge Tanner testified further that he told Senator Mitchell upon this occasion that although it would necessitate perjury upon his part—something he had never done before in his life—he would stand by his partner and do what he could to help him. The next day he prepared the fake contract, dating it back to March 5, 1901, and had his son run it off in duplicate on the typewriter. Taking it to the hotel he showed the agreement to Senator Mitchell, who, after perusing it carefully, remarked :
"That is all right. That will fix it all right," whereupon they both signed the two copies. The only change from the original was in the second clause, which was amended to read as follows:
   "It is agreed that the interest of each of the parties hereto as to all the services rendered, all moneys received and all business done by the firm shall be the equal one-half thereof, except for any services which may be rendered by said John H. Mitchell in the Supreme Court of the United States shall be his individual matter, and all fees so earned by him. in said Court, and his salary as Senator, shall be his individual property, and the firm shall have no interest therein; and that for any and all services which may be rendered by said Albert H. Tanner before any of the departments at Washington. D. C, or any of the branches or bureaus thereof, or in the Land Department of the Government, either at Washington. D. C, or Oregon or elsewhere, shall be his individual property, and the firm shall have no interest therein, and said John H. Mitchell shall not be required to perform any services therein except such as he might properly do as a Senator in Congress, for any constituent without charge. "
Up to the time Judge Tanner made the serious mistake of committing perjury in order to shield his old law partner, no man in Oregon enjoyed a more enviable reputation for truth and veracity, or stood higher in public estimation. That he suffered the consequences of his indiscretion in many ways is self-evident, because it is reasonable to suppose that any high-minded person of Judge Tanner's caliber would very naturally feel the utmost humiliation on account of the degradation that had been imposed upon him almost unsolicited. It may be contended that the only open course for any honorable man under the circumstances ​would have been in the direction of placing the Government in possession of all the facts at his command, but it must be reckoned that it is oftentimes difficult to determine just where the lines of demarkation between duty and loyalty should be drawn, and the charitable portion of the world will probably hesitate a long time before measuring" Judge Tanner's act with the weight of condemnation.
He pleaded guilty to the indictment charging him with perjury, and at the trial of Senator Mitchell was one of the most important witnesses for the Government, furnishings complete information relative to the facts narrated, and corroborating Fred A. Kribs' testimony in every essential particular. On June 26. 1906, President Roosevelt granted Judge Tanner a pardon for his offense, and outside of being disbarred from practice for a period of six months by the Supreme Court of Oregon, no further punishment was meted out to him that the public knows anything about.
The section of the United States Revised Statutes under which Senator Mitchell was indicted reads as follows:
   "Section 1782.—No Senator, Representative or Delegate, after his election and during his continuance in office, and no head of a Department, or other officer or clerk in the employ of the Government shall receive or agree to receive any compensation whatever, directly or indirectly, for any services rendered, or to be rendered, to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested, before any department, court martial, bureau, officer, or any civil, military or naval commission whatsoever. Every person offending against this section shall be deemed guilty of a misdemeanor, and shall be imprisoned not more than two years, and fined not more than $10,000, and shall, moreover, by conviction therefor, be rendered forever thereafter incapable of holding any office of honor, trust or profit under the Government of the United States."
The trial of Senator Mitchell under indictment No. 2902, for a violation of the section of the United States Revised Statutes quoted, was begun in the United States Circuit Court for the District of Oregon on June 20. 1905, before United States District Judge John J. DeHaven. of San Francisco, and a jury composed as follows: G. Steiner (foreman), merchant. Salem, Marion County; H. Cleveland, farmer, Salem, Marion County; Ed. Daily, farmer. Kerby. Josephine County; R. L. Oliver, grocer, Pendleton, Umatilla County; Bert Leabo, farmer, McMinnville. Yamhill County; J. A. Baxter, farmer. Dallas, Polk County; J. . P. Clauson, farmer, Riverton, Coos County; S. T. Hobart, farmer, Silverton, Marion County; S. A. Carlton, farmer. Wellen, Jackson County; B. F. Grant, farmer. Harlan, Lincoln County: Frank Warren, farmer, Warrenton, Clatsop County, and W. H. Lewis, farmer, Jewel, Clatsop County.
Francis J. Heney, of San Francisco, who had been appointed United States Attorney for Oregon by President Roosevelt after the summary dismissal of John H. Hall from that office a few months previously, appeared for the Government, while the defendant was represented by ex-United States Senator John M. Thurston, of Nebraska, and Judge Alfred S. Bennett, of The Dalles, Oregon.
The case lasted until July 3, 1905, when it was submitted to the jury, which, after deliberating 7½ hours, returned at 11 o'clock that night, while the din of firecrackers and the blare of skyrockets were heralding the approaching Fourth, with this verdict:
   "Portland, Oregon, July 3, 1905.—In the case of the United States against Senator John H. Mitchell, we, the jury, find the defendant guilty as charged in the indictment, and recommend him to the mercy of the Court for leniency.
   (Signed) G. STEINER, Foreman.
   Washington. D. C. Feb. 5. 1905.
   My Dear Judge:
   I am almost afraid to write a word as those scoundrels will misconstrue everything and distort all that is said. Your friend with letter did not arrive here until today. Your letter only received at 3 p. m. I have made search for my copy of articles of co-partnership of 1901, but am unable to find it. I think it must be among my papers in office.
   Harry, of course, prepared these articles. You will see Harry on his arrival. I found our supplementary agreements of date November 1, 1904, which are all right. Harry has these with him. Now the facts are these, and you must deal with them accordingly. First, under our articles, I was not to have any interest whatever in any business you might do in any of the departments or in any land matters. Second, as a matter of fact, I never knew until now that any charges for any such services had been credited either to me or the firm or that my account had ever been credited with any part thereof. As I was never furnished with any statement of any bank account or of any charges whatever, and I had nothing to do with the books, nor did I see the same, and you will remember several times I cautioned you not to mix me up in any way with any Land Office matters. Third, to this day I do not know what book entries you have made or what you did with any cash, or checks, if you ever received any for land service. Nor was I ever advised by you or did I have any knowledge that any part of any such cash or receipts was placed either to the credit of our firm or myself. Now, Judge, you will agree with me, I am sure, these are the facts, and I am also sure whatever entries you made you never intended I should have any part of such cash or checks, if any, and that you intended that in some way in settling accounts between us no part of any such moneys or checks should be mine, but your individual property. I had supposed, of course, that you had kept all such charges and accounts in your own name. There is no offense on your part in doing business for any honest people in these land matters. I hope, therefore, you will do me the justice at the proper time, in giving the facts just as they are and as I have stated them.
   Harry will, doubtless, identify the co-partnership articles of 1901 as having been prepared by him. See him at once on his arrival. Don't be interviewed until I see you and now, strictly confidential, don't tell Harry, your son, or anyone. Can't you immediately on receipt of this drop everything and come directly here. Bring with you in trunk, but don't let your family or anyone know, all the company's books, day ledger, all of them, also your bank book, as I am extremely anxious to see for myself personally what the books show. Besides, it is important we should talk over with Fulton, who is to help defend me, in regard to the cases. I hope you can come. If so, don't let a soul know you are coming, not even Harry. And if you conclude to come, wire me as follows:
   "John leaves direct for Washington this evening." "TANNER."
   I do hope you can come and immediately, before you are called again before the Grand Jury.
   Sincerely your friend,JOHN H. MITCHELL.
   P. S. Don't show Harry this letter, or tell him anything in it. Don't let him see our books. Tell him nothing.
   P. S. Keep all important papers in safe and office carefully locked, as those scoundrels will get in if possible.
   P. S. Burn this without fail.
"Although hard hit, as a man must be under such awful conditions. Senator Mitchell retained his composure. Tears welled into his eyes and his voice shook, and, as he slowly rose from his seat, after the jury had been polled and Court adjourned, he tottered, and for the brief spell of perhaps a minute the shocking force of the verdict seemed suddenly to unload upon his shoulders every one of those 70 years through which he has passed, and he became old, very old."
Immediately after the verdict had been rendered, Francis J. Heney gave out the following statement; "I congratulate Oregon upon the high standard of its citizenship, as exemplified by the conduct and verdict of the trial jury which has just evidenced to the world that Oregon believes in the enforcement of the laws of our country, and that in Oregon no man is above the law. Every man who sat upon the jury is entitled to have his name emblazoned upon Oregon's perpetual roll of honor."
But little more remains to be told about the case. On July 25, 1905, Judge DeHaven sentenced Senator Mitchell to six months in the Multnomah County Jail, at Portland, Oregon, and also imposed a fine of $1,000. Pending an appeal from the verdict of the jury, Senator Mitchell succumbed to death, passing away in Portland on December 8, 1905, as the result of a dental operation, his ailment being diagnosed as diabetic coma.