I insisted that we had the right then to produce them, and the Court
decided that we had not.
Mr. Ingersoll. That is exactly what I say.
The Court. The Court did not give any intimation at that time, but
after that point in the trial had passed, several days, several weeks,
I think, the attention of the Court was called to this question, and the
Court remarked, in the course of the opinion, that it understood the
law to be that after a party, upon whom notice had been given to produce
books, had failed to produce the books, and the other side had given
secondary evidence, then the Court would not allow the party having the
books to produce them for the purpose of contradicting the secondary
evidence.
Mr. Ingersoll. That is all I claim.
The Court. But there was no such offer made, so far as I recollect.
Mr. Ingersoll. Why should we make the offer after your Honor had decided
that we could not do it?
Mr. Merrick. I will answer the question. Because whether it would have
been accepted or not was a question for the counsel for the Government
when the offer was made. And again, the learned counsel will recollect
that after the notice was given, when S. W. Dorsey was on the stand on
cross-examination, I demanded those books and those stubs, and he asked
leave to consult his counsel. The Court denied that request, and then
there was a peremptory refusal to produce any book or any paper.
The Court. Oh, yes. Mr. Ingersoll and Mr. Davidge repeatedly announced
to the Court that they were not going to produce books to assist the
prosecution.
Mr. Ingersoll. Yes; I said that twenty times, and the Court, as I
understood it, held that after we had refused to produce the books and
driven the other party to secondary evidence, we could not then produce
the books.
The Court. You made no offer to produce the books.
Mr. Ingersoll. I resisted the opinion of the Court and made the best
argument I could, but the Court said that was not the law.
The Court. The remark of the Court arose upon an argument on the part of
Mr. Ingersoll, and if I am not mistaken, upon the effect of the refusal
to produce the books and papers, Mr. Ingersoll contending that there was
no presumption against his client on account of the refusal to produce
the books and papers, and that the jury ought to be instructed that the
only effect of refusing to produce the books and papers was to leave the
case upon the secondary evidence.
Mr. Ingersoll. I am not referring to that discussion, nor to that
decision of your Honor; I am referring to the decision you made during
the trial.
The Court. That was the only occasion since this trial began, in
which the Court referred to that rule of law which denied the right
to introduce primary evidence for the purpose of contradicting the
secondary evidence, after the primary evidence had been withheld in the
first instance.
Mr. Ingersoll. Of course, I am not absolutely certain, I never am; but
I will endeavor to find in the record exactly what you said on that
subject.
And now, in order that we may be perfectly correct, and in order to
show, too, how easy it is to be mistaken, Mr. Merrick just said upon
that very subject of the books and papers, that while Mr. Dorsey was
upon the stand, he asked leave to consult his counsel. If Mr. Merrick
will read the testimony he will find that Mr. Dorsey made that remark
when he was asked about the affidavit of June 20, 1881.
Mr. Merrick. You are right.
Mr. Ingersoll. That just shows how easy it is to make a mistake when it
comes to a matter of recollection.
Mr. Merrick. I think it was upon a question of the insertion of the
change in the character of the affidavit--its being addressed to the
President; and when I asked him if he had not made that change he asked
leave to consult his counsel. For the moment I thought it was upon the
books. But the substance still remains, that, on the question of the
books, I asked him on his cross-examination--and the counsel will state
his recollection to be the same--about the stubs and the books, and
called upon him to produce them, and the counsel replied, "We will not."
Mr. Ingersoll. I presume I did. I made that reply a good many times.
Mr. Merrick. Will the counsel be frank enough to state when that
decision was made?
Mr. Ingersoll. Which decision?
Mr. Merrick. When he was on the stand on cross-examination.
Mr. Ingersoll. And I said we would not produce them?
Mr. Merrick. After the testimony in chief and Rerdell was gone.
Mr. Ingersoll. Then I said we would not produce them. And now I will say
that the decision of the Court was made before that time that we could
not produce them, and if I do not show it then I will publicly take it
back.
The Court. I do not think you can show it.
Mr. Ingersoll. If I do not, then I will beg your Honor's pardon, and if
I do--if I do--Now, I think what happened afterwards in this case with
that very witness justifies the course that we pursued. He also stated
at the time that we had, I believe, some twenty thousand pages of
letters on all possible subjects to a great number of people. We
knew that there was a spirit abroad--and some of it in a part of the
prosecution--to find something against somebody else somewhere. We made
up our minds that our private books and correspondence never should be
ransacked by this Department of Justice. We took the consequences, and
we are willing to take them. We say that the inference from our refusal
is an inference of fact, and must be decided by the jury, and is not an
inference of law.
We have been asked a good many times why we did not put James W. Bosler
on the stand. The prosecution subpoenaed Mr. Bosler. They appeared
to have an affection for him. They subpoenaed him, and he came here.
Afterwards they issued an attachment for him. They had him, arrested at
midnight and brought here. He gave some testimony, and you will find it
on page 2611.
Mr. Merrick. I do not know that there was an attachment.
Mr. Ingersoll. You know you have a right to prove things by
circumstances. Now, it is said that he put the marshal out of the house;
I think that is evidence tending to show that an attachment was issued.
Mr. Ker. And kept him out with a club.
The Court. I understood also that Mr. Dorsey kicked somebody else out of
his house about the same time.
Mr. Ingersoll. Oh, yes; it has been a very lively term of court.
There were two very important things that they were to prove by Mr.
Bosler, and they were patting him on the back here for weeks. Friendship
sprang up between them. It was a very young plant at first, but the
Bosler ivy grew upon the oak of the prosecution. I saw him sitting here,
everything delightful. The prosecution, I hoped, began to flatter itself
that Mr. Bosler was on their side; I hoped that was so. Finally they put
Mr. Bosler on the stand. What did they want to prove by him? That Dorsey
wrote a letter to him on the 13th of May, 1879, telling how much money
he had given to Brady; that is one thing they wanted to prove by him.
The second thing was that Rerdell had written a letter to Bosler,
I believe, on the 20th of May or 22d of May, 1880, stating that he
(Rerdell) had been subpoenaed to go before the Congressional committee
and take his books and papers; that he got very much frightened; that
he had taken the advice of Brady and got a very valuable suggestion from
Brady, which he was going to follow. They wanted to prove that by Mr.
Bosler.
Rerdell had already sworn that Dorsey sent a letter to Bosler on the
13th of May, 1879. Rerdell had sworn to the contents of that letter;
that the contents were that he had paid Brady so much money, &c., which
you remember, and then that he, in 1880, had written a letter to Mr.
Bosler, and I believe he pretended to have a copy of it. Now, here comes
Bosler's testimony, on page 2611.
Q. Have you made a search among your papers to find a letter alleged to
have been written to you by Stephen W. Dorsey, and dated on or about the
13th of May, 1879?--Yes, sir.
That is the letter that Rerdell swore about.
Q. Have you searched?--A. I have.
Q. Did you find it?-A. No, sir.
Q. Have you made search for a letter purporting to have been written by
him to you, and dated on or about the 22d of May, 1880?--A. Yes, sir.
Q. Did you find that letter?--A. I did not.
The Court: Was there ever such a letter?