ISTHMIAN CANAL.

COMMITTEE ON INTEROCEANIC CANALS,

UNITED STATES SENATE,

Washington, D. C., Tuesday, June 19, 1906.

The committee met at 10.30 o'clock a. m.

Present: Senators Millard (chairman), Platt, Kittredge, Hopkins, Knox, Ankeny, Morgan, Taliaferro, Simmons, and Culberson.

The committee met in executive session, upon the conclusion of which the examination of Mr. Cromwell was resumed.

TESTIMONY OF WILLIAM NELSON CROMWELL, ESQ.-Continued.

Senator MORGAN. Mr. Cromwell, I have been designated by the committee to repeat to you the questions which you have hitherto refused to answer; and before doing so I will ask the clerk to read to you the resolution under which we are now proceeding.

The clerk read as follows:

"Resolved by this committee, That the witness, William Nelson Cromwell, be required to answer questions propounded to him as set forth in the record of the proceedings of the committee which he has refused to answer, unless the committee shall excuse him from answering any specific question."

Senator MORGAN. On page 1142 of the record the following statement appears:

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Senator MORGAN. What was the first work that you did in America for the Panama Canal Company?

"Mr. CROMWELL. I must beg to be excused, Senator, from the pursuit of that subject, as that is a professional confidence.

"Senator MORGAN. Is the fact that you had lawsuits, or gave advice, or anything of that sort a professional secret?

"Mr. CROMWELL. In respect of the business of the Panama Canal Company, our relations are professional and confidential and I must beg to be excused from relating their business."

The question is: "What was the first work that you did in America for the Panama Canal Company?" What is your answer?

Senator HOPKINS. Where is the materiality of that question? It has to be material to the subject-matter that we are considering.

Senator MORGAN. I understand that the committee have passed upon that question. In requiring the witness to answer they have passed upon the question of materiality.

What is your answer, Mr. Cromwell?

Mr. CROMWELL. With all respect to the committee, I must decline to answer the question, as such answer would be a violation of my

professional duty. My knowledge and information about the matter was derived in the course of my professional employment, and solely because of such employment. The answer would oblige me to disclose information affecting the interests of my client derived from professional employment, and would compel me to disclose its private business affairs. The answer would disclose private business matters which are not within the power of the committee to investigate.

In declining to answer, I wish again to state that I do so with the profoundest respect for the committee. As you know, and as is shown by the record of the committee, to which I beg leave to refer, I have been repeatedly examined and have answered innumerable questions. So far as concerns the affairs of the Panama Railroad Company, I have felt that the interests of no private clients were involved, and I have answered most fully and exhaustively. I have not refused to disclose information relevant to the inquiry which the committee has been authorized to make, in so far as it does not involve the disclosure of private business matters.

Senator MORGAN. So you refuse to answer the question?

Mr. CROMWELL. For the reasons I have stated, Senator; yes, sir. Senator MORGAN. On page 1143 the following statement appears: "Senator MORGAN. What was the principal work that you first did for the Panama Canal Company in America?

"Mr. CROMWELL. I do not recall what I did at any time in their affairs, and if I did I should not feel at liberty to state their business." What is your answer to that? What was the principal work that you first did for the Panama Canal Company in America?

Mr. CROMWELL. I make the same reply, sir, with the same explanation.

Senator MORGAN. On the same page of the record, I believe it is, the following statement occurs:

"Senator MORGAN. Did you conduct any business for them in America?

"Mr. CROMWELL. I beg to be excused from a reply to that."

Mr. CROMWELL. I make the same reply, sir, with the same explanation.

Senator CULBERSON. Mr. Chairman, I wish to ask as to the course of procedure. Are you simply going to read these same questions to the witness now and take his answer or his refusal and stop, or as these several questions are propounded, are members of the committee to be permitted to ask any questions? Not that I specially desire to ask any questions, but I want to understand the course of procedure.

The CHAIRMAN. I assume that Senator Morgan intends to go along and read the questions and take the answer or the refusal to answer until he arrives at a certain point in the investigation, and then the matter will be taken up by the committee. I presume that is the intention.

Senator CULBERSON. I want to call attention to these two questions just for a moment, so as to get my idea of it before the committee. The first is, What was the first work you did in America for the Panama Canal Company? The second is, What was the principal work that you first did for the Panama Canal Company in America? The witness declines to answer either of them on the ground that it would require him to divulge the confidential relationship between

him and his client. Of course, the question is now whether this witness shall be the sole judge as to whether it does involve confidential relations. He refuses to state what the first work that he did in America in reference to this matter was. He simply closes his mouth and tells the committee that he can not answer, and apparently the committee is going to accept his judgment as to whether or not it does involve the disclosure of professional confidence.

Senator HOPKINS. Does it not, after all, come back to the proposition that the witness himself is the judge? Suppose the committee differ, however, and say that his objection is not well founded. That does not interfere with his standing by his own objection if he wants to do it.

Senator CULBERSON. I understand; but I am talking for the committee. As members of the committee, if it were made clear to us that these matters did involve confidential relationships and exclusively involve those relations, probably no member of the committee would desire to put himself in the attitude of wanting to compel the witness to answer.

Senator HOPKINS. If you will permit me, I think the questions are immaterial, anyway. I do not think that the Senator has a right to ask the witness those questions under the resolution under which we are conducting our investigations; and in addition to the objections that he makes for himself personally, I think the committee have a right to take exception to it on the ground that they are not material to the subject-matter that we are attempting to investigate and determine.

Senator KITTREDGE. Do I understand that Senator Culberson desires to ask the witness any questions?

Senator CULBERSON. No; I do not make any request of that kind. I simply wanted to know the procedure of the committee, whether or not we were going through these questions, asking the witness whether he will answer, and taking a refusal again to-day, or whether the members of the committee will be permitted to interrogate him with reference to these particular matters as they arise. It seems to be the general intention of the committee to pursue the former course that is to say, to have these questions read and to have Mr. Cromwell take his action upon them, whether he will answer or decline to answer, and proceed. I have no disposition to interfere with that procedure at all, but I simply wanted to understand what it was.

Senator SIMMONS. If the matter were before a court of justice and the witness sought to plead his protection, I take it that the court would require the witness to show wherein his answer would necessarily involve the disclosure of a confidential relation; and I think Mr. Cromwell, as the questions are asked him, has the right, in addition to the refusal to answer, to show the committee by any statement he sees fit to make that his answer would involve the disclosure of a matter of privilege. If he does not do that, that is his own fault; but it seems to me that the quickest way to get rid of this matter would be to let Senator Morgan ask him all of these questions, and after he has finished asking all these questions Mr. Cromwell can retire and, in executive session, we can decide whether, in our judgment, anyone of the questions are pertinent, and if pertinent whether it appears to us that it would involve a matter of privilege for him to answer them.

Senator HOPKINS. Or whether we will insist on his answering.

Senator SIMMONS. Yes. If we should find that it is pertinent and that it does not involve a matter of privilege, then, of course, we would insist upon his answer, otherwise we would excuse him under the resolution.

Mr. CROMWELL. I wish to say that every communication and every piece of business which I have had at any time for the New Panama Canal Company has been solely in connection with its interests in the new Panama Canal and has been exclusively of a professional character first, last, and all the time.

Senator MORGAN. I do not choose at this table to go into any discussion with the witness, or with even Senators, in open session in regard to the situation that is now presented. I will take the liberty of stating my view of what the law is as it is now presented, and of our rights, duties, and privileges, and the rights and duties and privileges of Mr. Cromwell, the witness.

The law has settled one proposition by statute here, which is, that whatever of recalcitrancy the witness may show in his refusal to answer the questions that are propounded by the committee, he takes upon himself the risk, I will call it, of answering or refusing to answer the questions, and of being subjected to legal procedure, which is provided for particularly in the statute. On several occasions Congress in both branches, the Senate more particularly, I believe, have attempted to impose penalties upon a witness who refused to answer questions, such as imprisonment, etc., fines, and the like of that. That matter was taken up in Congress and a law was passed which provides that when a witness is recalcitrant in answering questions submitted to him by a committee that he shall be turned over, so far as the Senate is concerned, by the President of the Senate on a reported statement to the authorities of the District of Columbia, so that the grand jury shall pass upon the question of the validity and soundness of his privilege, or the reasons that he may have for justifying his refusal to answer.

That is the law of this case. We have no power at all to impose any fine upon Mr. Cromwell, or any imprisonment, or any other punishment in the nature of a contempt proceeding for his refusal to answer questions. That of course would not apply to a different line of conduct on his part, if anything of that sort should ever supervene, or on the part of any other witness; but in the refusal to answer the question he throws himself upon his rights and responsibilities in connection with the law of the land as enacted by Congress. So that when a question is put to him he has the privilege of taking these risks, if they be risks, and saying, "I refuse to answer" or "I still refuse to answer." The other branch of this question is the question of parliamentary law. I have already adverted to it in the course of our discussions here this morning (in executive session). In the parliamentary practice as set forth in Jefferson's Manual, when the Houses, or a committee of the Houses, or of either House examines a witness and the witness refuses to answer, thereupon the questions are settled, as to the propriety of putting them. Then the witness, after the settlement of the question, is required to answer it; and if he refuses to answer, I have already mentioned what is the power of the law in regard to visiting punishment upon him if his refusal is not justified. These questions have been settled by the vote of this committee. That