I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems
that the defendants in this case were commissioners of charities of the
county of Kings, and they were indicted for conspiring together to buy
supplies contrary to law and without duly advertising. Their defence
was that they were not aware that such a law existed; that they were
ignorant of the law. The court below thought that made no difference.
The court above said before they could be guilty of this crime there
must be the intention to commit the crime, and this language is used:
"The agreement must have been entered into with an evil purpose,
as distinguished from a purpose simply to do the act prohibited in
ignorance of the prohibition. This is implied in the meaning of the word
conspiracy. Mere concert is not conspiracy."
So combination is not conspiracy; partnership is not conspiracy; neither
is it the corpus delicti of conspiracy. There must be the evil intent;
there must be the wicked conspiracy not only, but there must be one at
least overt act done in pursuance of it before the corpus delicti can be
established.
"The actual criminal intention belongs to the definition of the offence
and must be shown to justify a conviction for conspiracy. The offence
originally consisted in a combination to convict an innocent person by
perversion of the law. It has since been greatly extended, but I am of
opinion that proof that the defendants agreed to do an act prohibited
by statute, followed by overt acts in furtherance of the agreed purpose,
did not conclusively establish that they were guilty of the crime of
conspiracy."
It would be hard to find a stronger case, in my judgment, than that.
Although they agreed to violate a statute--they agreed to buy supplies
without complying with the statute by advertising--they claimed they
were in ignorance of it, and the question was whether they were guilty
of conspiracy, having no intent to do an illegal act, and the court of
appeals decided that that verdict could not stand.
The Court. Because the court below had instructed the jury that whether
what they did was done in ignorance or with knowledge it made no
difference.
Mr. Ingersoll. Certainly; it made no difference. Everybody is supposed
to know the law.
Now, the next point is, and great weight has been put upon it,
gentlemen, that concurrence of action establishes conspiracy; that if
one does a part and another another part and finally the culmination
comes, that is absolute evidence, or in other words, an inference.
Admitting, now, that they were perfectly honest, if any of these parties
made a bid, that bid had to be accepted by the Government. They had to
act together. The department and the man had to act together to have the
bid accepted. The department and the man had to act together to make the
contract. The department and the man had to act together to get the pay,
and no matter how perfectly honest the transaction was they had to act
together from the first step to the payment of the last dollar.
Now, in a business where they do have to act together, where one
necessarily does one thing, and the other necessarily does another, the
fact that that happens does not even tend to prove that there is any
fraud. Upon this concurrence of action I refer to the case of Metcalfe
against O'Connor and wife, in Little's Select Cases, 497. One of the
men confessed that a large party went to the house where there was a
disturbance and where they tried to take by force a boy from the custody
of a man and woman. Now, the fact that these men did go the house, the
fact that they were there at the time this happened, and the fact that
one of the conspirators or one of the trespassers had confessed that he
went there and that the other went with him for that purpose, the
court decides that you cannot infer the purpose of these men from the
statement of the other; neither can you infer it from the fact that
they were there. You must find out for what purpose they were there
by ascertaining what they did and when they were there, and that
concurrence in actions shows nothing.
The Court. Did you not say that the decision there was that the
conspiracy might be inferred from the combination to do the act?
Mr. Ingersoll. I will just read it and then there will be no guessing
about it:
"This is a writ of error prosecuted by the defendants to a judgment
for the plaintiffs in an action of trespass for an assault and battery
alleged to have been committed upon the plaintiff Ann, the wife of the
other plaintiff.
"We are of the opinion that the circuit court erred in refusing to
instruct the jury, at the instance of the defendants, to find for all
of them, except the defendant Metcalfe. He is the only one of the
defendants proven to have touched the defendant Ann, and against the
other defendants there is no evidence conducing in the slightest degree
to prove them guilty of committing any assault or battery upon her, or
of any intention to do so.
"It is true that it was proved that the other defendants confessed that
they were at the house of Connor when the assault and battery charged
is alleged to have been committed, and it was also proved that Metcalfe
confessed that he and the other defendants had gone there for the
purpose of taking from Connor by force an idiot boy whom he had in his
custody. But the circumstances of the other defendants being at Connor's
house, there is no evidence they were there for any unlawful purpose;
nor can it of itself be sufficient to render them responsible for
any act done by Metcalfe in which they did not participate; and the
confessions of Metcalfe are certainly not legitimate evidence against
the others to prove the unlawful purpose with which they went to
Connor's, and thereby to charge them with the consequences of his act."
Now, to all appearances, they went there together; to all appearances,
they went there for the one purpose, and Metcalfe, the man who really
did the mischief, confessed that they all went there for the one
purpose, but the court held that that was not sufficient.
"Where several agree or conspire to commit a trespass, or for any other
unlawful purpose, they will, no doubt, all be liable for the act of
any one of them done in execution of the unlawful purpose; and when
the agreement or conspiracy is first proved by other evidence, the
confession of one of them will be admissible evidence against the
others. But it is well settled that the confessions of one person cannot
be admitted against the others to prove that they had conspired with him
for an unlawful purpose."
Now, the next evidence that I wish to allude to, gentlemen, is the
evidence of Mr. Walsh, and I will only say a few words, because it has
been examined and it has been ground to powder. Everything in this world
is true in proportion that it agrees with human experience; and you can
safely say that everything is false or the probability is that it is
false in proportion that it is not in accordance with human experience.
Other things being equal, we act substantially alike.
Now, when anything really happens everything else that ever happened
will fit it. You take a spar crystal, I do not care how far north you
get it, and another spar crystal, no matter how far south you get it,
and put them together and they will exactly fit each other--exactly. The
slope is precisely the same. And it is so with facts. Every fact in this
world will fit every other fact--just exactly. Not a hair's difference.
But a lie will not fit anything but another lie made for the
purpose--never. It never did. And finally, there has to come a place
where this lie, or the lie made for the sake of it, has to join some
truth, and there is a bad joint always. And that is the only way to
examine testimony. Is it natural? Does it accord with what we know? Does
it accord with our experience?
Now, take the testimony of Mr. Walsh, and I find some improbabilities in
it. Just let me read you a few:
1. Bankers and brokers do not, as a rule, loan money without taking at
least a note. That is my experience. And the poorer this broker is,
the less money he has, the more security he wants. He not only wants an
indorser but he would like to have a mortgage on your life, liberty, and
pursuit of happiness. That is the first improbability.
2. Bankers and brokers do not, as a rule, take notes that bear no
interest, or in which the interest is not stated. People who live
on interest find it always to their interest to have the interest
mentioned--always. I never got a cent of a banker that I did not pay
interest, and generally in advance.
3. Bankers and brokers do not, as a rule, take notes payable on demand,
because such notes are not negotiable.
4. It is hardly probable that when a banker and broker holds the note
of another for twelve thousand dollars--the note being unpaid--he would
loan thirteen thousand five hundred dollars more, taking another note on
demand in which the rate of interest was not stated.
5. It is still more improbable that the same banker and broker, with
a note for twelve thousand dollars and one for thirteen thousand five
hundred dollars, being unpaid, would loan five thousand four hundred
dollars more without taking any note or asking any security.
6. When such banker and broker called upon his debtor for a settlement,
and exhibited the two notes, and thereupon his debtor took the two notes
and put them in his pocket, it is highly improbable that the banker and
broker would submit to such treatment.
7. It is improbable that such banker and broker would afterwards
commence suit to recover the money, without mentioning to his attorney,
in fact, that the notes had been taken away from him.
8. It is also improbable that the banker and broker would commence
another suit for the same subject-matter and still keep the fact
that the notes had been taken from him by violence, a secret from his
attorney.
9. If Mr. Brady took the notes by force, it is improbable that he
would immediately put himself in the power of the man he had robbed, by
stating to him that he, Brady, was in the habit of taking bribes.
10. It is impossible that Mr. Brady could, in fact, have done this,
which amounted to saying this: "I have taken twenty-five thousand five
hundred dollars from you; of course, you are my enemy; of course, you
will endeavor to be revenged, and I now point out the way in which you
can have your revenge. I am Second Assistant Postmaster-General; I award
contracts, increases, and expedition, and upon these I receive twenty
per cent, as a bribe. I am a bribe-taker; I am a thief; make the most
of it. I give you these tacts in order that I may put a weapon in your
hands with which you can obtain your revenge."
There are also other improbabilities connected with this testimony.
If Mr. Brady was receiving twenty per cent, of all increases and
expeditions, amounting to hundreds of thousands of dollars per annum, it
is not easy to see why he would be borrowing money from Mr. Walsh.
Now, if that story is true, boil it down and it is this, because if he
got this twenty per cent, from everybody he had oceans of money--boil it
all down and it is this: A rich man borrows without necessity and a poor
banker loans without security. These twin improbabilities would breed
suspicion in credulity itself. No man ever believed that story, no
man ever will. There is something wrong about it somewhere, unnatural,
improbable, and it is for you to say, gentlemen, whether it is true
or not, not for me. What is the effect of that testimony? So far as my
clients are concerned it is admitted, I believe, by the prosecution--it
was so stated, I believe, by his Honor from the bench--that it could
not by any possibility affect any defendant except Mr. Brady, and the
question now is, can it even affect him? I call the attention of the
Court to 40th N. Y., page 228. I give the page from which I read:
"To make such admissions or declarations competent evidence, it must
stand as a fact in the cause, admitted or proved, that the assignor or
assignees were in a conspiracy to defraud the creditors. If that fact
exist, then the acts and declarations of either, made in execution of
the common purpose, and in aid of its fulfillment, are competent against
either of them. The principle of its admissibility assumes that fact."
That the conspiracy has been established.
"In case of conspiracy, where the combination is proved, the acts and
declarations of the conspirators are not received as evidence of that
fact, but to show what was done, the means employed, the particular
design in respect to the parties to be affected or wronged, and
generally those details which, assuming the combination and the illegal
purpose, unfold its extent, scope, and influence either upon the public
or the individuals who suffer from the wrong, or show the execution of
the illegal design. But when the issue is simply and only, was there
a conspiracy to defraud, these declarations do not become evidence to
establish it."
"So far then, as the admission of the evidence in this case, of
declarations, subsequent to the assignment, is sought to be sustained as
evidence of the common fraud, on the ground of conspiracy, the argument
wholly fails. A conspiracy cannot be proved against three by evidence
that one admitted it, nor against assignees by proof that the assignor
admitted it; it is a fact that must be proved by evidence, the
competency of which does not depend upon an assumption that it exists."
So to the same point is the case of Cowles against Coe, 21st
Connecticut, 220. I will read that portion of the syllabus that conveys
the idea:
"To prove the alleged conspiracy between the defendant and G., the
plaintiff offered the deposition of R., stating declarations made by G.
to R., while G. was engaged in purchasing goods of him, on credit, and
relative to G.'s responsibility and means of obtaining money through the
defendant's aid; these declarations were objected to, not on the ground
that the conspiracy had not been sufficiently proved, but because the
defendant was not present when they were made; it was held that they
were admissible, within the rule regarding declarations made by a
conspirator in furtherance of the common object."
Now, let us see what the court says about it:
"The remaining question is, whether the declarations of Gale to Edmund
Curtiss and William Ives were properly received. These declarations were
not offered as in any way tending to prove the combination claimed. The
motion shows that they were offered and received after the plaintiff's
evidence on that subject had been introduced. Had they been admitted for
that purpose, or if, under the circumstances, they could have had any
influence with the jury on that point, we should feel bound to advise a
new trial on this account."
All that I have said in respect to Walsh applies to what is known
or what is called the confession of Rerdell. It was admitted by the
prosecution that not one word said by him could bind any other defendant
in the case. But, gentlemen, is there enough even to bind him? Did
he confess that he was guilty of the conspiracy set forth in this
indictment? And I want to make one other point. In this case there
must be not only a conspiracy, but an overt act, and no man can confess
himself into it without confessing that he was a conspirator, and
that he knew that an overt act was to be done; because it takes that
conspiracy and the overt act to 'make the offence. What overt act did
Rerdell confess that he was guilty of--what overt act charged in this
indictment? One. Filing a subcontract; and by no earthly method, by no
earthly reasoning can you come to the conclusion that that could carry
it into conspiracy. He must have confessed that he was guilty according
to the scheme, according to the indictment set forth, and in no other
way. That indictment says that the money was to be divided, that it
was for the mutual benefit of certain persons. Unless that has been
substantiated this case falls. According to the case of the King against
Pomall the scheme of the indictment must be established, otherwise the
case goes. In that case they charged it was one way, and they proved it
was that way, and one of the defendants did not understand it that way
and he was acquitted. Now, suppose they had not proved the scheme as
they charged it, then all would have been acquitted, and unless the jury
believe beyond a reasonable doubt, from the evidence that the scheme
set forth in the indictment here was the scheme, then they must find
everybody not guilty. There is no other way.
What is the next argument? The next argument is extravagance. What
is extravagance? If I pay more for a thing than it is worth that is
extravagance. If I buy a thing that I do not want, that is extravagance,
and if I do this knowing it to be wrong, if I do this understanding that
I am to have a part of the price, that is bribery, that is corruption,
that is rascality. Nobody disputes that. How do you know that a thing
is extravagant unless you know the price of it? For instance, an army
officer is charged with extravagance in buying corn upon the plains at
five dollars a bushel. How do you prove it is extravagance? You must
prove that he could have obtained it for less or that there was a
cheaper substitute that he should have obtained. How are you going to
prove that too much was paid for carrying the mail upon these routes?
Only by showing that it could have been carried for less. What witness
was before this jury fixing the price? How are we to establish the fact
that it was extravagance? We must show that it could have been obtained
for less money. What witness came here and swore that he would carry it
for less? And would it be fair to have the entire case decided upon one
route when it is in evidence that my clients had thirty per cent, of one
hundred and twenty-six routes? Would it be fair to decide the question
whether they had made or lost money on one route? Your experience tells
you that upon one route they might make a large sum of money and upon
several other routes lose largely. A man who has bid for one hundred
routes takes into view the average and says "upon some I shall lose
and upon others I shall make." How are you to find that this was
extravagance unless you know what it could have been done for? They may
say that they subcontracted some of the routes for much less. Yes; but
what did they do with the rest of them? I might take a contract to build
a dozen houses in this city, and on the first house make ten thousand
dollars clear, and on the balance I might lose twenty-five thousand
dollars. You have a right to take these things and to average them. When
a man takes a contract he takes into consideration the chances that he
must run in that new and wild country. It takes work to carry this mail.
You ought to be there sometimes in the winter when the wind comes down
with an unbroken sweep of three or four thousand miles, and then tell me
what you think it is worth to carry the mail. All these things must be
taken into consideration. Another thing: You must remember that every
one of these routes was established by Congress. Congress first said,
"Here shall be a route; here the mail shall be carried." It was the
business then, I believe, of the First Assistant Postmaster-General to
name the offices, and the Second Assistant to put on the service. Take
that into consideration. Every one of these routes was established by
Congress. Take another thing into consideration: That the increase of
service and expedition was asked for, petitioned for, begged for, and
urged by the members of both houses of Congress, and according to that
book, which I believe is in evidence, a majority of both houses
of Congress asked, recommended, and urged increase of service and
expedition upon some of the nineteen routes in this indictment.
The Court. What evidence do you refer to?
Mr. Ingersoll. I refer to the Star Route investigation in Congress.
The Court. That record is not in evidence.
Mr. Ingersoll. I thought that was in evidence.
The Court. No, sir.
Mr. Ingersoll. It was used as if it was in evidence. I saw people
reading from it, and supposed it was in evidence.
The Court. It is not in evidence.
Mr. Ingersoll. Well, we will leave that out. Now, upon these nineteen
routes--this is in evidence--increase and expedition of service were
recommended by such Senators as Booth, Farley, Slater, Grover, Chaffee,
Chilcott, Saunders, and by the present Secretary of the Interior, Henry
M. Teller, and by such members of Congress as Whiteaker, Page, Luttrell,
Pacheco, Berry, Belford, Bingham, chairman of the postoffice committee,
by Stevens of Arizona, a delegate, and by Maginnis of Montana, and
Kidder of Dakota, by Generals Sherman, Terry, Miles, Hatch and Wilcox
In addition to these, recommendations were made and read by judges of
courts, by district attorneys, by governors of Territories, by governors
of States, and by members of State Legislatures, by colonels, by majors,
by captains, and by hundreds and hundreds of good, reputable, honest
citizens. They were the ones to decide as a matter of fact whether this
increase was or was not necessary.
I believe in carrying the mails. I believe in the diffusion of
intelligence. I believe the men in Colorado or Wyoming, or any other
Territory, that are engaged in digging gold or silver from the earth, or
any other pursuits, have just as much right, in the language of Henry
M. Teller, to their mail as any gentleman has to his in the city of New
York. We are a nation that believes in intelligence.
We believe in daily mail. That is about the only blessing we get from
the General Government, excepting the privilege of paying taxes. Free
mail, substantially free, is a blessing.
Now, there is another argument which has been used: Productiveness; but
that has been so perfectly answered that I allude to it only for one
purpose. How would the attorneys for the Government in this case like to
have their fees settled upon that basis? Productiveness. Is it possible
that this Government cannot afford to carry the mail? Is it possible
that the pioneer can get beyond the Government? Is is possible that we
are not willing to carry letters and papers to the men that make new
Territories and new States and put new stars upon our flag? I have heard
all I wish on the subject of productiveness.
Now, gentlemen, that is all the evidence there is in this case, that I
have heard. What kind of evidence must we have in a conspiracy case? You
have been told during this trial that it is very hard to get evidence in
a conspiracy case, and therefore you must be economical enough to put up
with a little. They tell you that this is a very peculiar offence,
and people are very secret about it. Well, they are secret about most
offences. Very few people steal in public. Very few commit offences who
expect to be discovered. I know of no difference between this offence
and any other. You have got to prove it. No matter how hard it is
to prove you must prove it. It is harder to convict a man without
testimony, or should be, than to produce testimony to prove it if he is
guilty. All these crimes, of course, are committed in secret. That is
always the way. But you must prove them. There is no pretence here that
there is any direct evidence, any evidence of a meeting, any evidence of
agreement, any evidence of an understanding. It is all circumstantial. I
lay down these two propositions:
"The hypothesis of guilt must flow naturally from the facts proved, and
be consistent, not with some of the facts, not with a majority of the
facts, but with every fact."
Let me read that again:
"_The hypothesis of guilt must flow naturally from the facts proved,
and must be consistent with them; not some of them, not the majority of
them, but all of them_."
The second proposition is:
"The evidence must be such as to exclude every single reasonable
hypothesis except that of the guilt of the defendant. In other words,
all the facts proved must be consistent with and point to the guilt of
the defendants not only, but every fact must be inconsistent with their
innocence."
That is the law, and has been since man spoke Anglo-Saxon. Let me read
you that last proposition again. I like to read it:
"The evidence must be such as to exclude every reasonable hypothesis
except that of the guilt of the defendants. In other words, all the
facts proved must be consistent with and point to the guilt of the
defendants not only, but they must be inconsistent, and every fact must
be inconsistent with their innocence."
Now, just apply that law to the case of John W. Dorsey. Apply that law
to the case of Stephen W. Dorsey. Let me read further. I read now from 1
Bishop's Criminal Procedure, paragraph 1077.
"It matters not how clearly the circumstances point to guilt, still, if
they are reasonably explainable on a theory which excludes guilt, they
cannot satisfy the jury beyond reasonable doubt that the defendants are
guilty, and hence they will be insufficient."
Just apply that to the case of Stephen W. Dorsey and John W. Dorsey.
I would be willing that this jury should render a verdict with that
changed. Change it. You are to find guilty if you have the slightest
doubt of innocence. Even under that rule you could not find a verdict of
guilty against John W. or Stephen W. Dorsey. If the rule were that you
are to find guilty if you have a doubt as to innocence you could not
do it; how much less when the rule is that you must have no doubt as to
their guilt. The proposition is preposterous and I will not insult your
intelligence by arguing it any further.
Now, then, there is another thing I want to keep before you. When a man
has a little suspicion in his mind he tortures everything; he tortures
the most innocent actions into the evidence of crime. Suspicion is a
kind of intellectual dye that colors every thought that comes in contact
with it. I remember I once had a conversation with Surgeon-General
Hammond, in which he went on to state that he thought many people were
confined in asylums, charged with insanity, who were perfectly sane. I
asked him how he accounted for it. Said he, "Physicians are sent for
to examine the man, and they are told before they get to him that he
is crazy; therefore, the moment they look upon him they are hunting for
insane acts and not sane acts; they are looking not to see how naturally
he acts, but how unnaturally he acts." They are poisoned with the
suspicion that he is insane, and if he coughs twice, or if he gets up
and walks about uneasily--his mind is a little unsettled; something
wrong! If he suddenly gets angry--sure thing! When a man believes
himself to be or knows himself to be sane, and is charged with insanity,
the very warmth, the very heat of his denial will convince thousands of
people that he is insane. He suddenly finds himself insecure, and the
very insecurity that he feels makes him act strangely. He finds in a
moment that explanation only complicates. He finds that his denial is
worthless; that his friends are suspicious, and that under pretence of
his own good he is to be seized and incarcerated. Many a man as sane
as you or I has under such circumstances gone to madness. It is a hard
thing to explain. The more you talk about it the more outsiders having
a suspicion are convinced that you are insane. It is much the same way
when a man is charged with crime. It is heralded through all the papers,
"this man is a robber and a thief." Why do they put it in the papers?
Put anything good in a paper about Mr. Smith, and Mr. Smith is the only
man who will buy it. Put in something bad about Mr. Smith and they will
have to run the press nights to supply his neighbors with copies. The
bad sells. The good does not. Then you must remember another thing: That
these papers are large; some of them several hundred columns, for all I
know--sixty or a hundred. Just imagine the pains it would take and
the money it would cost to get facts enough to fill a paper like that.
Economy will not permit of it. They publish what they imagine they can
sell. As a rule, people would rather heaf-something bad than something
good. It is a splendid certificate to our race that rascality is still
considered news. If they only put in honest actions as news it would be
a certificate that honesty was rare; but as long as they publish the bad
as news it is a certificate that the majority of mankind is still good.
Now, to be charged with a crime and to be suddenly deserted by your
friends, and to know that you are absolutely innocent, is almost enough
to drive the sanest man mad. I want you to think what these defendants
have suffered in these long months. If the men who started this
prosecution, if the men who originally poisoned the press of the
country, feel that they have been rewarded simply because innocent
men have suffered agony, let them so feel. I do not envy them their
feelings.
There is another thing, gentlemen: The prosecution have endeavored to
terrorize this jury. The effort has been deliberately made to terrorize
you and every one of you. It was plainly intimated by Mr. Ker that this
jury had been touched, and that if you failed to convict, you would be
suspected of having been bribed. That was an effort to terrorize
you, and the foundation of that argument was a belief in your moral
cowardice. No man would have made it to you unless he believed at heart
you were cowards. What does that argument mean? I cannot say whether you
will be suspected or not; but, in my opinion, a juror in the discharge
of his duty has no right to think of any consequence personal to
himself. That is the beauty of doing right. You need not think of
anything else. The future will take care of itself. I do not agree with
the suggestion that it is better that you should be applauded for a
crime than blamed for a virtue. Suppose you should gain the applause of
the whole United States by giving a false verdict; how would the echo
of that applause strike your heart? I do not believe that it is wiser
to preserve the appearance of being honest than to be honest with the
appearance against you. I would rather be absolutely honest, and have
everybody in the world think I was dishonest, than to be dishonest and
have the whole world believe in my honesty. You see you have got to stay
with yourself all the time. You have to be your own company, and to be
compelled to know that your company is dishonest, that your company is
infamous, is not pleasant. I would rather know I was honest and have
the whole world put upon the forehead of my reputation the brand of
rascality.
You were also told that the people generally have anticipated your
verdict.
That is simply an effort to terrorize you, so that you will say, "If the
people think that way, of course we must think that way. No matter about
the evidence. No matter if we have sworn to do justice. We will all try
and be popular." You were told in effect that the people were expecting
a conviction, and the only inference is that you ought not to disappoint
the public, and that it is your duty to piece and patch the testimony
and violate your oath, rather than to disappoint the general
expectation. Mr. Merrick told you you were trying these defendants,
but that the people of the whole country were trying you. What was the
object of that statement? Simply to terrorize this jury. What was the
basis of that statement? Why, that not one of you have got the pluck to
do right. It was not a compliment, gentlemen. It was intended for one,
no doubt, but when you see where it was born, it becomes an insult. I
do not believe you are going to care what the people say, or whether the
people expect a verdict of guilty, or not. You have been told that they
do. I might with equal propriety tell you that they do not. I might with
equal propriety say there is not a man in this court-house who expects a
verdict of guilty. With equal propriety I might say, and will say, that
there is not a man on this jury who expects there will be a verdict of
guilty. But what has that to do with us?
Try this case according to the evidence; and if you know that every man,
woman, and child in the United States want an acquittal, and you are
satisfied of the guilt of the defendants, it is your duty to find them
guilty.
If I were on the jury I would, in the language of the greatest man that
ever trod this earth--
Strip myself to death, as to a bed
That longing have been sick for, before I would give a false verdict.
Again, Mr. Merrick said, after having stated in effect that a majority
of the people were convinced of the guilt of the defendants, that the
majority of the men of the United States do not often think wrong. What
was the object? To terrorize you. That is all. This verdict is to be
carried by universal suffrage; you are to let the men who are not on
oath decide for the men who are; to let the men who have not heard the
testimony give the verdict of the men who have heard the testimony. What
else? Again the same gentleman said:
"There is to be a verdict, a verdict of the people for or against us."
What is the object? To frighten you. Let the people have their verdict;
you must have yours. If your verdict is founded on the evidence it will
be upheld by every honest man in the world who knows the evidence. You
need certainly to place very little value upon the opinion of those who
do not know the evidence. Mr. Merrick also suggested--I will hardly put
it that way--he was brave enough to hope that you have not been bribed.
Brave enough to hope that! All this, gentlemen, is done simply for the
purpose of terrorizing you. I tell you to find a verdict according to
the evidence, no matter whom it hits, no matter whom it destroys, no
matter whom it kills. Save your own consciences alive. Your verdict
must rest on the evidence that has been introduced, and all else must
be thrown aside, disregarded, like forgotten dreams. All that you have
read, all the press has printed, must find no lodgment in your brains.
You must regard them no more than you would the noises of animals made
in sleep. You must stand by the testimony. You must stand by the law
that the Court gives you. That is all we ask. These articles in the
newspapers were not printed in the hope that justice might be done. They
were printed in the hope that you may be influenced to disregard the
evidence, in the hope that finally slander might be justified by your
verdict. Gentlemen, you ought to remember that in this case you are
absolutely supreme. You have nothing to do with the supposed desires
of any men, or the supposed desires of any department, or the supposed
desires of any Government, or the supposed desires of any President, or
the supposed desires of the public. You have nothing to do with those
things. You have to do only with the evidence. Here all power is
powerless except your own. Position is naught. If the defendants are
guilty, and the evidence convinces you that they are, your verdict
must be in accordance with the evidence. You have no right to take into
consideration the consequences. When you are asked to find a verdict
contrary to the evidence, when you are asked to piece out the testimony
with your suspicions, then you are bound to take into consideration all
the consequences. When appeals are made to your prejudice and to your
fears, then the consequences should rise like mountains before you. Then
you should think of the lives you are asked to wreck, of the homes your
verdict would darken, of the hearts it would desolate, of the cheeks it
would wet with tears, and of the reputations it would blast and blacken,
of the wives it would worse than widow, and of the children it would
more than orphan. When you are asked to find a false verdict think of
these consesequences. When you are asked to please the public think
of these consequences. When you are asked to please the press think
of these consequences. When you are asked to act from fear, hatred,
prejudice, malice, or cowardice think then of these consequences. But
whenever you do right, consequences are nothing to you, because you are
not responsible for them. Whoever does right clothes himself in a suit
of armor that the arrows of consequences can never penetrate. When you
do wrong you are responsible for all the consequences, to the last sigh
and the last tear. If you do right nature is responsible. If you do
wrong you are responsible.
You were told, too, by Mr. Merrick that you should have no sympathy;
that you should be like icicles; that you should be godlike. A cool
conception of deity! In that connection this heartless language, as it
appears to me, was used:
"Man when he undertakes to judge his brother-man undertakes to perform
the highest duty given to humanity."
Good!
He should perform that duty without fear, without prejudice, without
hatred, and without malice. He should perform that duty honestly,
grandly, nobly.