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.