What more does he swear? He swears that he tried to carry it out. In other words, that although it had been rejected, that made no difference to him. Mr. Blackmar says they would not do it. Rerdell swears that he tried to: went right along and did his level best; and if the Court had allowed him four challenges he would have challenged four friends of the defendants from the jury.
What more does he admit? That when the Court decided that all of us together only had four, he endeavored to challenge one. Why? Because he believed he was a friend of the defendants; because he believed he would be against the prosecution; and he wanted to get the friends of the defendants away. Why? To the end that the defendants might be tried by an enemy. That is what he was trying to accomplish.
Let us take another step. That proposition reveals the entire man; that takes his hide off; that takes his flesh all off; that leaves his heart bare, naked; you can see what he is made of, and it shows the workings of his spirit, the motions of his mind; and you see in there a den of vipers; you see entangled, knotted adders. And yet that man is put upon the stand stamped by the seal of the Department of Justice, and that department says to twelve men, "Here is a gentleman that you can believe; that gentleman proposes to sell out his co-defendants to us, but we would not buy; he is an honorable kind of gentleman, but we would not buy."
Mr. Merrick. It should be interpolated there--if you will pardon me a moment--that the Government refused to accept Rerdell until he himself had pleaded guilty.
Mr. Ingersoll. I understand that. I say now, Mr. Merrick, that I would not for anything in the world, on a subject of that kind, go the millionth part of an inch beyond the testimony. Although you and I have not been very cordial friends during this trial, and neither have I and Mr. Bliss, yet if I know myself I would not for anything in this world put a stain upon your reputation, or upon the reputation of either of you, by misstating a word of this testimony. I would not do it. I am incapable of it. I admit that the evidence is that the proposition was rejected, but I also insist that the Government knew the proposition had been made, otherwise it could not have been rejected. And so I say that after this man had made that proposition, infamous enough to put a blush upon the cheek of total depravity, the Government put that witness upon the stand, sealed with the seal of the Department of Justice.
Now, we will go another step. He sat with us from day to day, gentlemen, as you know, went in and out with us, as one of the co-defendants. In the meantime--and there is a laughable side even to this infamy--he borrowed money from Vaile. He went to him as a co-defendant, as a friend, and said, "I want a hundred and forty dollars; I want to buy bread and meat to give me strength to swear you into the penitentiary."
And Vaile gave him the money. Would you believe a man like that? You cannot think of a man low enough, you cannot think of a defendant vile enough to be convicted on such testimony.
Now, we will go another step. He wanted to make that bargain with Mr.
Blackmar. Mr. Blackmar swears that he told Mr. Merrick of it, and that Mr. Merrick rejected it; would have nothing to do with it.
At that time Mr. Woodward had two affidavits of Rerdell in his possession--an affidavit of Rerdell, made in September, supplemented by another affidavit, I believe, of November, that he made in the city of Hartford, covering seventy pages. When Mr. Woodward saw Mr. Rerdell sitting with the defendants, pretending to go with them, he (Woodward) had those two affidavits of Rerdell in his pocket. Did the prosecution know that Rerdell had made the two affidavits? I do not say they did, gentlemen. I only go right to the line of the evidence; there I stop.
Another thing: Mr. Blackmar swears that they had a signal to look at the clock, and that night Rerdell would meet him at six or seven o'clock, I have forgotten the hour; but Mr. Blackmar could not sit in his room all the time waiting for him, and so he gave him a certain signal, so that he would know he was to wait that night. Then what happened? Then Mr.
Rerdell came to Mr. Blackmar and gave to him written reports. Of what? I do not know. He sat with the defendants; he gave to Mr. Blackmar written reports. What were they? I do not know. What did Mr. Blackmar do with them? He handed them to Colonel Bliss. What did he do with them? I do not know. Did he read them? I do not know. Did he know that they were in the handwriting of Mr. Rerdell? I do not know. That is for you.
Still another point:
Mr. Bliss, after this jury had been impaneled, stood before them while Rerdell was sitting with us as a defendant, and said:
The ranks of the defendants are closed up, and he--Rerdell--stands before you now as one of the defendants, whose testimony--Meaning the confessions made to MacVeagh and to Postmaster-General James--will be accepted by the Court and by you, &c.
The question arises, Did Mr. Bliss know at that time that Mr. Woodward had in his pockets two affidavits made by Rerdell, one made in September and the other in November? Did he know at that time that Rerdell had given his papers over to Mr. Woodward? Did he know at that time that he had offered to challenge the friends of the defendants from the panel?
And so knowing, did he give us to understand that Rerdell had passed from the influence of the Government and was now acting as one of the co-defendants? Is it possible that Mr. Bliss would furnish Rerdell with a mask behind which he could gather information from the defendants and sell it to the Government for immunity? Is it possible? Those were the circumstances. I do not say that he knew. I do not know.
Gentlemen, I do not believe that it is the duty of a Government to prosecute its citizens. I do not believe that it is the duty of a Government to spread a net for one of the people whom it should protect.
I do not believe in the spy and informer system. I believe that every Government should exist for the purpose of doing justice as between man and man. The mission of a Government is to protect and preserve its citizens from violence and fraud. The real object of a Government is to enforce honest contracts, to protect the weak from the strong; not to combine against the one, not to offer rewards for treachery, not to show cold avarice in order that some citizen may have his liberty sworn away. The objects of a good Government are the sublimest of which the imagination can conceive. The means employed should be as pure as the ends are noble and sacred. The Government should represent the opinions, desires, and ideals of its greatest, its best, and its noblest citizens.
Every act of the Government should be a flower springing from the very heart of honor. A Government should be incapable of deceit. The Department of Justice should blow from the scales even the dust of prejudice. Representing a supreme power, it should have the serenity and frankness of omnipotence. Subterfuge is a confession of weakness. Behind every pretence lurks cowardice. Our Government should be the incarnation of candor, of courage, and of conscience. That is my idea of a great and noble Government.
The next point to which I call your attention is the withdrawal of the plea of not guilty by Mr. Rerdell. You probably remember the occurrence.
I will read to you what he said upon that occasion. I find it on page 2202:
After mature reflection and a full consideration of the whole subject, I have determined to abandon any further defence of myself in this case, and put myself at the mercy of the Court and the Government; and if desired to do so by the counsel for the Government, to testify to all my knowledge of any facts with reference to any of the defendants either against or for them, myself included. Therefore, I now in person ask leave to withdraw my plea of not guilty, heretofore interposed, and enter my plea of guilty, and in so doing put myself upon the mercy of the Court I feel this to be a duty I owe to myself, my family, and to truth. I have arrived at this fixed determination upon my own reflections and responsibilities, and without any previous consultation with my counsel, who, I believe, would not have advised me to this course, and whom I now relieve from all and any responsibility for the course I have adopted.
Now, gentlemen, is it not wonderful that if Mr. Rerdell was about to tell the truth as a witness in this case, he could not even withdraw his plea of not guilty without misstating the facts? Is it not wonderful that he felt called upon at that time to tell several falsehoods? He says that he took this step upon his own responsibility. He says that he did it without the advice of his counsel. He tells you that he believes if he had asked his counsel, his counsel would have been opposed to it. He says he is willing to be a witness for the Government if the Government desires it, leaving you to infer that at that time no arrangement had been made for him to be a witness; that it was all in the regions of uncertainty; that he had withdrawn into the recesses of his own mind, and consulting with himself and nobody else had made up his mind to throw himself upon the mercy of the Government and the Court, and took that step without even allowing his counsel to know what he was about to do.
But he speaks further on the subject. I read from page 2523. I was then examining him:
Q. How did you come to do it?--A. I finally made up my mind to what I would do. I talked it over the evening before with my counsel.
He so states under oath; and yet when he stood up before this Court and withdrew his plea of not guilty, he said he acted without the knowledge of his counsel--I read this to show you that the statement he made to the Court at the time he withdrew his plea was absolutely false. What next? I will go on a little further. The same man Rerdell, after he had made up his mind to go over to the Government; after he had made up his mind to swear away, if it was within his power, the liberty of S. W.
Dorsey, admits, on page 2525, that he endeavored to get five thousand dollars from Mr. Dorsey.
On page 2589 Mr. Rerdell swears positively that he did not know that he was to be used as a witness for the Government until he was called in court to take the stand. Let us look at the evidence of Mr. Bliss on page 2590. I will read you what he said:
Mr. Bliss. Your Honor, we propose to show, in substance, that this witness, for reasons with which we have nothing to do, connected with his own views of his own safety, from an early period was desirous of being accepted by the Government as a witness; that the counsel in the case refused to communicate with him or to have anything to do with him until, in the presence of his own counsel, he was brought to Mr.
Merrick's office, and there the whole thing was explained; and that then for the first time the Government accepted his willingness to be a witness; and they did it under circumstances which held out to him no inducement and which involved no training or anything of the kind by anybody representing the prosecution.
Now, let us go to the next step. I want to be perfectly fair. On page 2591 Mr. Merrick asked Mr. Rerdell this question:
Q. When did you first learn that you would be put upon the stand after pleading guilty?--A. It was the day before my plea was made in court.
Yet when he rose to withdraw the plea he expressed his willingness to go upon the stand for the Government, leaving you to infer that no arrangement had been made, and he afterwards finally swore that he did not know that he was to be called until he was called.
These things, gentlemen, you must remember.
On page 2515 Rerdell swears that on the Sunday after he got out of jail he proposed to Mr. Lilley to have Lilley act for him, and authorized Lilley to say to the Government that if the Government would accept him he would go on the stand and rebut Vaile. He told him that he had in his possession a letter or two of Mr. Vaile's. Rerdell tells you that he made this proposition on the 16th or 17th of September, 1882, which was after he made the affidavit of June, 1881. On the same page he said it was just after Vaile went off the stand. That is my recollection. In the last trial Vaile testified on the 4th of August, 1882. So about that time Rerdell, according to his testimony, went to Lilley and made a proposition to sell out then. When he made the affidavit of July 13, 1882, the trial was then in progress. The very next month, August, while the trial was still going on, that same man, having made the affidavit of July 13, 1882, went to his attorney, Mr. Lilley, and authorized him to say to the Government that Mr. Rerdell would take the stand to swear against Mr. Vaile. Remember another thing, gentlemen. The only thing he offered to do then to insure his own safety was to swear against Vaile.
He did not offer to swear against Dorsey. He did not authorize Mr.
Lilley to tell the Government about the pencil memorandum and the tabular statement and his letter to Bosler and Doisey's letter to Bosler and the Chico letter. Not a word. He simply went and wanted to sell some letters he had that had been written by Vaile. Why did he make that offer? Because that was all he had.
On page 2517 he says that nothing was said about pardon, but he says that Lilley told him that he thought he could get him off. What does that mean? That means pardon. On page 2518 he swears that he saw Woodward in November in Hartford, and Woodward and he wrote out the statement, covering, I believe, about seventy pages of legal cap. Then Mr. Rerdell, on page 2519, swears that he never made an affidavit after that. Then he admits, on the same page, that the day before he came into court he met Mr. Woodward and made another affidavit. That was supplementary to the first. In the meantime he found some new papers. So we find, according to his testimony, these affidavits:
On page 2521 we find that he made an affidavit in June, 1881. Remember, gentlemen, that he swore to that affidavit three or four times.
He made another affidavit in July, 1882, and another in September and November of the same year, and another in February, 1883. And yet he swears that he was not to have immunity.
Now, gentlemen, one point more about his plea of guilty. After having withdrawn his plea of not guilty, after rising in court and solemnly saying that he was guilty, and that he was guilty as charged in the indictment, which says that Rerdell conspired with Brady and Vaile and Miner and John W. Dorsey and S. W. Dorsey and Turner, that they all conspired, and that all the false affidavits and false petitions and false everything else mentioned in the indictment were made for the common benefit of all, then on page 2570 he solemnly swears that he never entered into any conspiracy or agreement with the defendants mentioned in the indictment or any of them for the purpose of defrauding the Government. When I asked him, With whom did you conspire, when did you conspire, and what was the conspiracy? he could not tell; and yet he had stood up in court and admitted that he was guilty, and then on oath denied it. Did he not swear himself that after the division was made in the routes Stephen W. Dorsey had not the interest of a cent in any route that went to Vaile or Miner? Did he not also swear that Vaile and Miner had not the interest of one cent in any route that went to Stephen W.
Dorsey? Did he not swear that they were not mutually interested, and yet did he not stand up in court, and by a plea of guilty say that they were not only mutually interested, but he was one of the interested parties himself? It seems impossible for that man to tell the truth on any subject whatever. On page 2571 he swears he never made any agreement with Vaile to defraud the United States. He stood up in court and admitted, that he had. He swore that he never made any agreement with John W. Dorsey. He admitted that he had. He swore that he never made any agreement with S. W. Dorsey, and yet stood up in court and admitted that he had.
Now let us see whether he expected immunity. He swears that he was taken to Mr. Merrick's office by Mr. Woodward and his counsel. What Mr.
Merrick told him we find on page 2590:
Q. And did I not say that, under the circumstances, the Government would have nothing to do with you unless you pleaded guilty?--A. You did.
Q. And that if you pleaded guilty you had nothing to trust to but the mercy of the Government and the Court?--A. That is what you did, sir, exactly.
Now, on page 2523:
Q. Was it not arranged that Mr. Woodward was to come to your house and then take you to one of the attorneys for the prosecution, for the purpose of arranging the terms and conditions upon which you were to take the stand?--A. It was not.
In another place he swears that it was, and that the arrangement was carried out.
The next point I wish to make, if the Court please, is that whenever what is called an accomplice or an informer turns what is called State's evidence, and whenever he is permitted by the court to be sworn as a witness in a case, there is then upon the part of the Government an implied promise that if he tells the truth he shall not be punished.
I read from the Whiskey cases, 9 Otto, page 595. Mr. Justice Clifford delivers the opinion of the court.
Courts of justice everywhere agree that the established usage is that an accomplice duly admitted as a witness in a criminal prosecution against his associates in guilt, if he testifies fully and fairly, will not be prosecuted for the same offence, and some of the decided cases and standard text-writers give very satisfactory explanations of the origin and scope of the usage in its ordinary application in actual practice.
The Court. What point are you now making to the Court?
Mr. Ingersoll. I am making this point: It appears from the evidence that Mr. Wilshire, the attorney of Mr. Rerdell told him at the time he was making up his mind whether he would go to the Government or not, about the whiskey cases.
I make the point that when an accomplice turns State's evidence the State cannot prosecute him after that if he testifies fully and fairly; that the usage is immemorial, and that there is not an exception in the records of all the cases in the books; consequently that when Mr.
Merrick told him, "You must look simply to the Government and to the Court and you will have just exactly what the law gives you and no more," his remarks meant that the law gave him perfect immunity, provided he went upon the stand and swore truthfully.