The Works of Robert G. Ingersoll, Complete Contents / Dresden Edition—Twelve Volumes

by Robert Green Ingersoll

Do you know that if I were prosecuting a man, trying to take from him his liberty, trying to take from him his home, trying to rob his fireside and make it desolate, and if I should succeed and afterwards know that I had made a misstatement of the evidence to the jury, I could not sleep until I had done what was in my power to release that man; and after he was released, or even if he were not released, I would go to him when he was wearing the prison garb, and I would get down on my knees and beg him to forgive me. I would rather be sent to the penitentiary myself, I would rather wear the stripes of eternal degradation, than to send another man there by a misstatement or a mistake that I had made. That is my feeling. I may be wrong.

It may be that I am guilty, according to Colonel Bliss, of sneering at everything that people hold sacred. But I do not sneer at justice. I believe that over all, justice sits the eternal queen, holding in her hand the scales in which are weighed the deeds of men. I believe that it is my duty to make the world a little better, because I have lived in it. I believe in helping my fellow-men. I do no not sneer at charity; I do not sneer at justice, and I do not sneer at liberty. And why did he make that remark to you, gentlemen? Is it possible that for a moment he dreamed that he might prejudice your minds against the case of my client, because, I, his attorney, am not what is called a believer? Is it possible that he has so mean an opinion of a Christian that a Christian would violate his oath when upon the jury, simply to get even with a lawyer who happened to be an infidel? Is that his idea of Christianity? It is not mine; it is not mine. I stand before you to-day, gentlemen, as a man having the rights you have, and no more; and I am willing to work and toil and suffer to give you every right that I enjoy. And I know that not one of you will allow himself to be prejudiced against my client because you and I happen to disagree upon subjects about which none of us know anything for certain. I do not believe you will. And yet, that remark was made, gentlemen—I will not say that it was made, but may be it was—hoping that it would lodge the seed of prejudice in your minds, hoping that it might bring to life that little adder of hatred that sleeps unknown to us in nearly all of our bosoms. I have too much confidence in you, too much confidence in human nature to believe that can affect my client.

Now, gentlemen, there is no pretence, there is no evidence that every subcontractor did not get the per cent, mentioned in his subcontract, except one, and that was Mr. French, on the route from Kearney to Kent; and the evidence there is that Miner settled with him, I believe, and gave him a certain amount of money in lieu of expedition. That is the solitary exception.

Now, gentlemen, I come to a most interesting part of this discussion, and I hope we will live through it. In the first place, what is a conspiracy? Well, in this case, they must establish that it was an agreement entered into between the persons mentioned in this indictment, or two of them, to defraud the Government. How? By the means pointed out and described in the indictment. While it may not be absolutely necessary to describe the means, I hold that if they do describe them, tell how the conspiracy was to be accomplished, they are bound by their description; they must prove such a conspiracy as they describe. If a man is indicted for stealing a horse and the color of the horse is given, it will not do to prove a horse of another color. If they describe the offence they are bound by the description.

Now, this is a conspiracy entered into, as they claim, by the persons mentioned in the indictment, to do a certain thing. What is the object of the conspiracy? To defraud the Government. And, gentlemen, I believe the Court will instruct you that the conspiring is the crime. The object of the conspiracy is to defraud the United States. What are the means? According to this indictment false petitions, false oaths, false letters, false orders. What I insist on is that the means cannot take the place of the object; that the means cannot take the place of the conspiracy described. When you describe a conspiracy by certain means to defraud the Government, and set out the means so that the Second Assistant Postmaster-General is a necessity, then you cannot turn and shift your ground, and say that it was not the conspiracy set out in the indictment, but that it was a conspiracy to do some of the things recited as means in the indictment; you cannot say that it was not a conspiracy entered into with the Second Assistant Postmaster-General, but was a conspiracy entered into with some others to make a false petition or a false affidavit. The ostrich of this prosecution will not be allowed to hide its head under the leaf of an affidavit. They must prove, in my judgment, the conspiracy that they describe in the indictment, and none other.

Now, what else? You must be prepared, gentlemen, when you make up a verdict, if you say that there was a conspiracy, to say when it was entered into and who entered into it. And I suppose when you retire, the first question for you to decide will be: Was there a conspiracy? Has any conspiracy been established beyond a reasonable doubt? If you say yes, then the next question for you to decide is, who conspired? Who were the members of that conspiracy?

After you do that there is one other thing you have to do: You have to find that one of the conspirators, for the purpose of carrying the conspiracy into effect, did something; that is called an overt act. You have to find, that at least one of them did something to effect the object of that conspiracy. You must remember, gentlemen, that the overt act must come after the conspiracy. In other words, you cannot commit an overt act and make a conspiracy to fit it; you must have the conspiracy first, and then do an overt act for the purpose of accomplishing the object of that conspiracy. The conspiracy must come first, and the overt act afterwards. You all understand that now.

Now, this indictment is so framed that the earliest time within the life of the statute of limitations for an overt act is the 23d day of May, 1879. Why? The indictment charges that as the day, the conspiracy was entered into. Any overt act in consequence of that conspiracy must have been done after the 23d of May, 1879. Now, get that in your heads, level and square. The conspiracy, according to this, is not back of the 23d of May, 1879, and any overt act done, in order to be considered an overt act, must be done after the date of that conspiracy. If they prove any act done before that time, it shows that it was not an overt act belonging to the conspiracy mentioned in the indictment. If it is an overt act at all, it is an overt act of another conspiracy entered into before the date mentioned in this indictment, and consequently will not do for an overt act in this case. Now, I want you all to understand that.

I forget how many overt acts are charged in this indictment; some sixty or seventy, I think. And understand me, now, gentlemen, no matter what date they fix to an overt act in the indictment, no matter whether there is any date to it or not in the indictment, if it turns out to have been done before the time fixed for the conspiracy it is dead as an overt act: it is good for nothing. The overt act is the fruit of the conspiracy; the conspiracy is not the result of the overt act. Now let me make a statement to you, so that you will understand it.

Every petition, every letter, every affidavit, upon which orders for expedition were based, was filed before the 23d of May, 1879, except on two routes—Toquerville to Adair-ville and Eugene City to Bridge Creek. If that is true, then not a solitary petition filed in this case can be considered as an overt act; and a conspiracy without an overt act is nothing; it simply exists in the imagination; it is an agreement made of words and air, and never was vitalized with an act done by one of the conspirators for the purpose of giving it effect. Recollect that every petition, every affidavit, every letter filed, was filed before the 23d day of May, with the two exceptions I have mentioned. That is the date when the conspiracy came into being. And consequently an overt act must be after that time.