supreme court - theodore roosevelt court appellate division--fourth department. william barnes,...

SUPREME COURTAppellate Division--Fourth Department.

WILLIAM BARNES,Plaintiff-Appellant,

against

THEODORE

CASE ONVol. IV-Page

ROOSEVELT,Defendant-Respondent.

APPEAL.1937 to End.

IVINS, WOLFF & HOGUET,

Attorneys for Plaintiff-Appellant,27 William Street,

New York City.

BOWERS & SANDS,

dttorneys for Defendant-Respondent,

46 Cedar Street,New York City.

THE REPORTER CO., WALTON, N. Y.New York Office: 253 Broadway, Room 205; 'Phone 6575 Barclay.Brooklyn Office: 375 Fulton Street, RQom 58. Phone 2300 Main.

1917

Index.

Statement Under Rule 41 .............Notice of Appeal ...................Sum m ons ..........................Amended complaint .................Amended answer ...................Order changing venue ...............Extract from Clerk's Minutes .........Judgm ent ..........................Order denying motion for a new trial ..Motion to dismiss complaint at the open-

ing .........................Opening to the jury by Mr. Ivins in be-

half of plaintiff ...............Opening to the jury by Mr.Van Ben-

schoten in behalf of defendant ..Testim ony .........................Motion to dismiss complaint at close of

plaintiff's case .................Motion for direction of verdict in favor

of plaintiff ...................Charge to the jury ..................Plaintiff's exceptions and requests to

charge .......................Defendant's exceptions and requests to

charge ......................V erdict ...........................Motion to set verdict aside ..........Exhibits not printed in the testimony ..

PageI

2

34

7-120

121-123

124

125

126-127

129-I40

141-159

159-184

184-2265

I9!

2267-2285

2286-2304

2304-2310

2310-2313

2314-2318

2318

2319-2576

PageStipulation that case contains all the evi-

dence and settling case ......... 2577Order settling case and ordering it on file. 2577Stipulation waiving certification ....... 2577Affidavit of no opinion ............... 2578Order filing case in the Appellate Division 2579

PLAINTIFF'S WITNESSES:

Adler, Simon L.D irect ....................... 1892

Ahern, Frederick M.D irect ....................... 1911

Allen, Herbert E.Direct ...................... 2041-2042

Cross ....................... 2042

Argetsinger, George F.D irect ...................... 1870-71

Baumes, Caleb H.D irect ....................... 2032

Barnes, WilliamD irect ....................... 1873-1891Direct ....................... 1893-1910

Direct ....................... 1913-1925

Direct ....................... 1939-1968Cross ....................... 1973-20I8

Cross ....................... 2051-2128Cross ....................... 2129-2175Re-direct .................... 2184-2216R e-cross ..................... 2217

Belmont, AugustD irect ....................... 1714-1721

Cross ...................... 1721-1722

Brackett, Edgar T.D irect ....................... 1771-1787

Cross ....................... 1787-1792

Brown, Charles F.D irect .............. ........ 1937

Brown, Elon R.D irect .......................C ross .......................R e-direct ....................

Bryant, ClarenceD irect ......................C ross .......................

Cheney, Ellsworth J.D irect ......................C ross .......................

Coats, Herbert P.D irect ......................

Cobb, George H.D irect .......................

Coffey, William S.D irect ......................C ross .......................

Colne, William W.D irect ......................C ross .......................

Connell, James E.D irect .......................C ross .......................

Constantine, Henry A.D irect ............. ........C ross .......................

Cross, James T.D irect .......................

Ebbets, Edward A.D irect .......................

Erb, NewmanD irect ......................C ross .......................

Filley, Frederick C.D irect ......................C ross .......................

Gleason, Lafayette B., Sur-rebuttal:D irect ......................C ross .......................

. Page

1722-17531754-1770

1770-1771

2050-2051

2051

2032-33

2033

1936-1937

1891-1892

2023

2024

2175-2177

2177

2024

2025

20342034

1871-72

1911

1839-1841

1841-1843

2035

2035

2261-622262-65

R e-direct ....................Goodman, Abram

D irect ......................C ross .......................

Gray, Fred J.D irect ......................C ross .......................

Haines, Harry W.D irect ......................

Hammond, Fred W.D irect ......................C ross .......................

Hart, AldenD irect ......................C ross .......................

Hewitt, Charles J.D irect ......................

Higgins, Frederick A.D irect ......................

Hinman, Harold J.D irect ......................C ross .......................R e-direct .....................

Hoff, Almeth W.D irect ......................C ross .......................

Hutchinson, John W., Jr.D irect ......................C ross .......................

Keys, William T.D irect ................. ..C ross .......................

Kopp, HarryD irect ......................C ross .......................

Macdonald, AlexanderD irect ......................

MacGregor, ClarenceD irect ......................

Page2265

2178-2179

2179

20362036

1912

I813-1817

i818

2031

2031

1936

1938

1850-18541854-18681868-1869

2049-20502050

18oi-i804

1804-1810

2019-2021

2021

2036-2037

2037

1910

2037-2038

V.

C ross .......................McGrath, John W.

D irect ......................Murray, Andrew F.

D irect ......................Nolan, William E.

D irect ......................Odell, Benjamin B.

D irect ......................C ross .......................

Ormrod, William L.D irect ......................

Pappert, August V.Direct .... * .................C ross .......................

Parker, James F.D irect ......................C ross .......................

Phillips, Jesse S.D irect ......................

Pierce, Henry A.D irect ......................C ross .......................

Platt, Frank C.D irect ......................C ross .......................

Roosevelt, TheodoreD irect ......................

Shannon. ThomasD irect ......................

Shea. JamesD irect ......................C ross .......................

Sheehan, William F.D irect ......................C ross .......................R e-direct ....................

Shlivek, MaxD irect ......................

Page2o38

184

2183-2184

i869-187o

1826-1834

1834-I837

1935

2038

2039

2029-2030

2030

1934-1935

2o48-20492049

1931-19331933-1934

193

2177-2178

20392040

1700-1709T710-1714

1714

2040

Vi.

C ross .......................R e-direct ....................

Smith, Alfred E.D irect ......................

Smith, Thomas K.D irect ......................

Stetson, Francis L.D irect ......................C ross .......................R e-direct .....................

Stivers, John T.D irect ......................C ross .......................

Sweet, Thaddeus C.D irect .......................C ross .......................

Thomas, Ralph W.D irect ......................

Thorn, Frank BretD irect ......................

Towsley, Alfred W.D irect ......................C ross .......................

Travis, Eugene M.D irect ......................C ross .......................

Wainwright, Jonathan M.D irect ......................

Walters, J. HenryD irect ......................C ross .......................R e-direct ....................

Waring, Samuel C.D irect ......................D irect ......................

Waters, Frank A.D irect .......................C ross .......................

Page2040-2041

2041

1810-1812

1912-1913

1687-16941694-16981698-1700

2022

2023

1819-18231823-1825

1925-1926

1893

1837-18381838-1839

2025-2027

2028-2029

1926-1931

1843-18481848-18491849-1850

2042-2043

2043 -2044

2043-20442044

Waters, Robert B.D irect ......................

Wilson, Thomas B.D irect .......................C ross .......................

Winters, John C., Jr.D irect ......................C ross .......................

Wollman, William J.D irect ......................C ross .......................

Yale, John R.D irect ......................C ross ....................

Yeomans, AlbertD irect ......................C ross .......................

Young, Frank L.D irect ......................C ross .......................

DEFENDANT'S WITNESSES:

Agnew, George B.D irect ......................C ross .......................R e-direct ....................R e-cross .....................

Arndt, Walter T.D irect ......................

Bressler, Frederick U.D irect ......................Cross . .......................

Burd, George B.D irect ......................C ross .......................

Coates, William B.D irect ......................C ross .......................

Page

1939

.2046-2047

2047

2128-2129

2129

1793-17941794-1801

2044-20462046

2047-2048

2048

218o-2182

2182-2183

802-815816

817-818818

1055-1058

1067-1075

1076

1395-13981398-1399

i ilO-I I161i6

L-rarey, Franklin S.D irect ......................

Recalled:D irect ......................

Davenport, Frederick M.D irect ......................

C ross .......................R e-direct ....................

R e-cross .....................Dickinson, Jacob J.

D irect ......................

C ross .......................Dolan, Michael V.

D irect ......................

Cross ....................Recalled:

D irect ......................Foster, Fred C.

D irect ......................D irect ......................C ross ......................C ross .......................R e-direct ....................

France, Royal W.D irect ......................C ross .......................R e-direct ....................R e-cross .....................

Greenalch, WallaceD irect ......................

C ross .......................

Guggenheim, Simon, Rebuttal:Direct ....................C ross .......................R e-direct ....................

Hennessy, John A.D irect ......................

Hinman, 'Harvey D.D irect ......................

Page

IO98-I I02

1297-1303

942-948949-950

951951-952

1049-10521052-1055

959-10401266-1269

1304-I3O6

1124-1130

1138-1155

1155--11571353

1353-1355

905-907907

907907-908

io6I-IO67io67

2235-2236

2237

2237

923-929

869-902

PageCross ....................... 902-904Re-direct .................... 904

Recalled:D irect ...................... 929-931Cross ....................... 931-936

Home, Henry J.Direct ...................... 1403-1407Direct ...................... 1436-1465Direct ...................... 1564-1581Cross ....................... 1581-1583

Hotchkiss, William H.Direct ...................... 1272-1295

Cross ....................... 1295-1296Huff, Thomas S.

Direct ....................... 1198-1203Cross ....................... 1203-1205

Irwin, RoscoeDirect ...................... 955-958

Loeb, William, Jr.Direct ...................... 819-864Cross ....................... 864-865

Rebuttal:Direct ........ .............. 2217-2227

Cross ...................... 2227-2234Re-direct .................... 2234-2235Re-direct .................... 2237-2239

Lyon, WilliamD irect ........................ 332-333D irect ...................... 340-350D irect .... ................. 1131-1135

McFarland, AndrewD irect ...................... 865-868

McMillen, Henry C.Direct ........................ 936-942

Mullens, Charles H.D irect ...................... 1542-1553

Newcomb, Josiah T.D irect ...................... 952-954Cross ....................... 954

Nusbaum, William J.D irect ......................

D irect ......................D irect ......................

Platt, Edward T.D irect ......................D irect ......................C ross .......................Cross ....................

Richards, William M.

D irect ......................D irect ......................

Roosevelt, Franklin D.D irect .......................C ross .......................R e-direct ....................

R e-cross .....................Roosevelt, Theodore

D irect ......................D irect ......................D irect ......................D irect ......................C ross .......................R e-direct ....................Re-cross ..................

Re-re-direct ..................Re-re-cross ...................

Recalled:Direct ....................C ross .......................R e-direct ....................

Rebuttal:D irect ......................C ross .......................

Schuyler, Philip Van R.D irect .................. .

Vreeland, Herbert H.D irect ......................C ross ..................... ..

Page

1215-1229

1356-1369

'54'

1041-10491157-1174

1174-1'781269-1272

l059-IO6O1553-1564

1187-11951195-1196

1196

197

194-249256-332

333-339354-356356-657657-792793-796

796-797

797

13o6-13271350

1350-1352

2239-2259

2259-2260

798-802

908-922

922-923

Wachsman, IsidorD irect ..............

Warner, Arthur T.D irect ........

Winchester, Charles M.D irect ........D irect ........Direct ........Direct ........Direct ........Cross .........Re-direct ......

Recalled:Direct ........Cross .........Re-direct ......Re-cross .......

Again recalled:D irect ................... ..

INDEX OF EXHIBITS.

Page

1103-1109

.............. 1388-1395

.............. 249-255

.............. 1076-1097

.............. 1135-I137

.............. 1178-II86

.............. 1230-1249

.............. 1249-1262

.............. 1262-1265

.............. IA08-1412

.............. 412-I415

.............. 1415-1435

.............. 1436

1505-1541

Folio Page

Plaintiff Exhibit I, attached to-answer.Newspaper article of July 22,

1914.Adm itted .................. 561P rinted ....................

Defendant Exhibit II, attached to an-.wer. Extracts from report of

the Bayne Committee.Parts admitted ............. 1051

Printed (as part of answer)Portions admitted printed

separately ................Defendant Exhibit III, attached to an-

swer. Article from Collier'sWeekly, September 14, I912.Portions admitted ........... 1057

Printed (as part of answer) ..

34

38

2324

Folio Page

Portions admitted printedseparately ................ 2341

Defendant Exhibit IV, attached to an-swer. Article from Collier'sWeekly, August 3, I912.Portions admitted ........... 1059

Printed .................... lo6Portions admitted printed

separately ................ 2344Defendant Exhibit V, attached to an-

swer. Article from McClure's,September, I9IO.Admitted ................. 857Printed .................... io8, 286

Defendant Exhibit VI, attached to an-swer. Article from N. Y. CityEvening Mail, July 24, 1913.Poi tions admitted ......... Io6iPrinted . ................... 1 15Portions admitted printed

separately ................ 2347Plaintiff Exhibit (no number). Ar-

ticle alleged to be libelous, writ-ten and distributed to the pressby defendant, July 22, 1914.Adm itted .................. 561Printed .............. I ...... 187

Defendant Exhibit i. Letter fromplaintiff to defendant, datedApril 20, 19o8.Adm itted .................. 740Printed ................... 247

Defendant Exhibit 2. Letter from de-ant to plaintiff, dated April 22,

19o8.Admitted ................. 74oPrinted .................... 248

Defendant when excluded;Plaintiff when admitted.

xlii.Folio Page

Exhibit 3 (also numberedExhibit 42). Letter from de-fendant to plaintiff, dated Au-gust 21, 1908.

Offered in evidence and ex-cluded ................... 7 73

Admitted ................ 1540Printed ................... ... 2319

Defendant when excluded;Plaintiff when admitted.

Exhibit 4. Letter fromplaintiff to defendant, datedAugust 21, 1908.

Offered in evidence and ex-cluded ................... 773

Admitted .................. 1540Printed ................... 2321

Defendant Exhibit 5. Letter fromplaintiff to defendant, datedJuly 4, 1910.Adm itted .................. 815

Printed .................... 272

Defendant Exhibit 6. Letter fromplaintiff to defendant, dated De-cember 22, 1899.Admitted ................... ioo4Printed .................... 335Struck out ................ 5056Readmitted ................. 6446

Defendant Exhibit 7. Letter from de-fendant to plaintiff, dated De-cember 23, 1899.Admitted ................. 1oo9

Printed .................... 337Struck out ................. 5056Readmitted ................. 6446

Defendant Exhibit 8. Stock ledger ofJ. B. Lyon Company.Admitted .................. 1O19

Not printed.

Folio Page

Plain tiff Exhibit i i. Photographiccopy of affidavit of defendantregarding residence, March 21,

1898.Admitted .................. i io6Printed .................... 2352

Plaintiff Exhibit 12. Photographiccopy of affidavit by defendantregarding residence, March21, 1898.Adm itted .................. 1112

Printed ...................... 370Plaintiff Exhibit 13. Muster-in roll

of defendant as Lieutenant-Colonel in the ist Regiment,United States Vol. Cavalry,dated May 6, 1898.A dm itted .................. 1114Printed .................... 372

Plaintiff Exhibit I3 (second). Copyof letter from defendant toJohn J. Chapman, photograph-ed from New York Sun, Sep-tember 25, 1898.Admitted ................. ' '35Printed ..................... 379

Plaintiff Exhibit 14. Letter fromLemuel E. Quigg to defendant,dated September IO, 1898.Admitted .................. 1148

Printed .................... 2354Plaintiff Exhibit 15 (first). Letter

from defendant to Lemuel E.Quigg, dated September 12,

1898.Admitted .................. 1148P rinted .................... 2362

Folio Page

Plaintiff Exhibit I6 (first). Tele-gram from Lemuel E. Quigg,dated September 14, 1898.Admitted .................. 1148Printed .................... 2364

Plaintiff Exhibit (no number). Letterfrom defendant to John E.Roosevelt, dated March 25,

1898.Admitted .................. 1163Printed .................... 388

Plaintiff Exhibit 15 (second). Letterfrom Thomas C. Platt to de-fendant, dated August 16, 19oo.A dm itted .................. 121 IPrinted ..................... 2364

Plaintiff Exhibit 16 (second). Letterfrom defendant to Thomas C.Platt, dated August 20, 1900.

Admitted .................. 1211Printed .................... 2366

Plaintiff Exhibit 17. Letter fromThomas C. Platt to defendant,dated May 6, 1899.Admitted .................. 1232

Printed .................... 2368Plaintiff Exhibit 18. Letter from de-

fendant to Thomas C. Platt,dated May 8, 1899.Adm itted .................. 1232

Printed .................... 2375Plaintiff Exhibit 1g. Franchise tax

bill, showing original Ford Billand the amendments thereto.A dm itted .................. 1251


fendant to plaintiff, datedJanuary 29, 1907.Admitted .................. 1323Printed .................... 4 42

Folio Page

Plaintiff Exhibit 21. Letter from de-fendant to plaintiff (undated).Admitted .................. 1356

Printed .................... 453Plaintiff Exhibit 22. Let'er from de-

fendant to plaintiff, datedMarch 27, 1899.Admitted .................. 1365.Printed .................... 2388

Plaintiff Exhibit 23. Letter from de-fendant to plaintiff, dated April5, 1899.Adm itted .................. 1365Printed .................... 2388

Plaintiff Exhibit 24. Letter from de-fendant to plaintiff, dated Feb-ruary 20, 1899.Admitted .................. 1365

Printed ................... . 2389Plaintiff Exhibit 25. Letter from de-

fendant to plaintiff, dated.March 31, 1899.Admitted .................. 1365Printed .................... 2390

Plaintiff Exhibit 26. Letter from de-fendant to plaintiff, dated Oc-tober I8, 1899.Adm itted .................. 1365Printed .................... 2390

Plaintiff Exhibit 27. Letter from -

defendant to plaintiff, datedJanuary II, I9oo.Admitted .................. 1365Printed .................... 2391

Plaintiff Exhibit 28. Letter from de-fendant to plaintiff, datedJanuary 24, 1900.Admitted .................. 1365Printed .................... 2391

xvii.Folio Page

Plaintiff Exhibit 29. Letter from de-fendaht to plaintiff, datedFebruary 21, I9OO.Admitted .................. 1365Printed ....................

Plaintiff Exhibit 30. Letter from de-fendant to plaintiff, datedApril 14, 1900.A dm itted ..................P rinted ....................

Plaintiff Exhibit 31. Letter fromplaintiff to defendant, datedNovember 15, 1898.Adm itted ..................

1365

1365A 11 L . .. .. .. .. .. .. .. .. .. .

Plaintiff Exhibit 32. Letter from de-fendant to plaintiff, datedDecember I6, 1898.Admitted .................. 1365Printed ....................

Plaintiff Exhibit 33. Letter fromplaintiff to defendant, datedDecember 21, 1898.Admitted .................. 1365P rinted ....................



Plaintiff Exhibit 36. Letter fromplaintiff to defendant, datedOctober 13, 1899.Admitted .................. 1370

P rinted ....................

2392

2392

2393

2394

2395

2395

2396

2397

XVIII.Folio Page

Plaintiff Exhibit 37. Letter fromplaintiff to defendant, datedMarch 24, 1899.Admitted .................. 1370Printed .................... 2398

Plaintiff Exhibit 38. Letter fromplaintiff to defendant, datedJanuary io, 19oo.Admitted .................. 1370Printed .................... 2399

Plaintiff Exhibit 39. Letter fromplaintiff to defendant, datedJanuary 23, 1900.Adm itted .................. 1370Printed .................... 2399

Plaintiff Exhibit 40. Letter fromplaintiff to defendant, datedFebruary 20, 1900.Adm itted .................. 1370Printed .................... 2400

Plaintiff Exhibit 41. Letter fromplaintiff to defendant, datedApril 13, 1900.Admitted .................. 1370Printed .................... 2401

Plaintiff Exhibit 42 (also numberedExhibit 3). Letter from de-fendant to plaintiff, dated Au-gust 21, 1908.Admitted .................. 1540Printed .................... 2401

Plaintiff Exhibit 43. Letter fromplaintiff to defendant, datedAugust 24, 1908.Admitted .................. 1540Printed .................... 2403

xix.Folio Page

Plaintiff Exhibit 44. Letter from de-fendant to plaintiff, dated Au-gust 24, 1908.Admitted .................. 1540Printed .................... 2405

Plaintiff Exhibit 45. Letter from de-fendant to the Honorable Her-bert E. Parsons, dated August21, 1908.

Adm itted .................. 1540Printed .................... 2406

Plaintiff Exhibit 46. Letter fromHonorable Herbert E. Parsonsto defendant, dated August 24,1908.Admitted .................. 1540Printed .................... 2408

Plaintiff Exhibit 47. Letter from de-

fendant to the Honorable Her-bert E. Parsons, dated August27, 1908.'Admitted .................. 1540Printed .................... 241 I

Plaintiff Exhibit 48. Letter fromthe Honorable Herbert E. Par-sons to the defendant, datedAugust 28, 1908.Admitted .................. 1540Printed .................... 2414

Plaintiff Exhibit 49. Telegram fromdefendant to Honorable LemuelE. Quigg, dated September ii,1898.Admitted .................. 1561Printed .................... 521

Plaintiff Exhibit 50:(i) Letter from defendant to the

Honorable Thomas C. Platt,dated October 21, 1898.Admitted .................. 1563Printed .................... 2417

Polio Page

(2) Letter from defendant to theHonorable Thomas C. Platt,dated December 27, 1898,Admitted .................. 1563Printed .................... 2417

(3) Letter from defendant to theHonorable Thomas C. Platt,dated January 4, i899.Admitted .................. 1563Printed .................... 2418

(4) Telegram from the HonorableThomas C. Platt to the defend-ant, dated January 4, i899.Admitted .................. 1563Printed .................... 2419

(5) Letter from defendant to theHonorable Thomas C. Platt,dated January 12, 1899.Admitted .................. 1563Printed .................... . 2419

(6) Letter from defendant to theHonorable Thomas C. Platt,dated January 23, 1899.Admitted .................. 1563Printed .................... 2421

(7) Letter from the HonorableThomas C. Platt to the defend-ant, dated January 25, 1899.Admitted .................. 1563Printed .................... 2422

(8) Letter from defendant to theHonorable Thomas C. Platt,dated January 27, 1899.Admitted .................. 1563Printed .................... 2423

(9) Letter from defendant to theHonorable Thomas C. Platt,dated January 31, 1899.Admitted .................. 1563P rinted .................... 2424

Folio Pag

(io) Letter from defendant to theHonorable Thomas C. Platt,dated February i, 1899.Admitted .................. 1563

Printed .................... 2425

(ii) Letter from the HonorableThomas C. Platt to the defend-ant, dated February 2, 1899.Admitted .................. 1563Printed .................... 2425

(12) Letter from defendant to theHonorable Thomas C. Platt,dated February 8, 1899.Admitted .................. 1563Printed .................... 2426

(I3) Letter from defendant to theHonorable Thomas C. Platt,dated February io, 1899.Admitted .................. 1563Printed .................... .. 2428

(I4) Letter from defendant to the

Honorable Thomas C. Platt,dated March 30, 1899.Admitted .................. 1563Printed .................... 2430

(i5) Letter from defendant to theHonorable Thomas C. Platt,dated March 3', 1899.Adm itted .................. 1563Printed .................... 2431

(6) Letter from the HonorableThomas C. Platt to the defend-ant, dated March 31, I899.A dm itted .................. 1563Printed .................... 2432

(7) Letter from defendant to theHonorable Thomas C. Platt,dated April I, 1899.Admitted .................. 1563Printed .................... 2433

xxii.Folio Page

(18) Letter from the HonorableThomas C. Platt to the defend-ant, dated April I, 1899.Admitted .................. 1563Printed .................... 2433

(i) Letter from defendant to the*Honorable Thomas C. Platt,dated April 3, 1899.Admitted .................. 1563Printed .................... 2434

(20) Letter from defendant to theHonorable Thomas C. Platt,dated April 4, 1899.Adm itted .................. 1563Printed .................... 2435

(21) Telegram from the HonorableThomas C. Platt to the defend-ant, dated April 5, 1899.Adm itted .................. 1563Printed .................... 2436

(22) Letter from the HonorableThomas C. Platt to the defend-ant, dated April 6, 1899.Adm itted .................. 1563Printed ............... ..... 2437

(23) Letter from defendant to theHonorable Thomas C. Platt,dated April 12, i899.Adm itted .................. 1563Printed .............. ..... 2438

(24) Letter from defendant to theHonorable Thomas C. Platt,dated April 14, I899.Adm itted .................. 1563Printed .................... 2439

(25) Letter from defendant to theHonorable Thomas C. Platt,dated May 12, 1899.Adm itted .................. 1563Printed .................... 2440

xxiii.Folio Page

(26) Letter from defendant to theHonorable Thomas C. Platt,

dated July i, 1899.Admitted .................. 1563

Printed .................... 2442

(27) Telegram from defendant tothe Honorable Thomas C. Platt,

dated July 17, 1899.Admitted .................. 1563Printed .................... 2443

(28) Telegram from the HonorableThomas C. Platt to the defend-ant, dated July 21, 1899.Admitted .................. 1563Printed .................... 2443'

(29) Letter from the HonorableThomas C. Platt to the defend-

ant, dated July 21, 1899.Admitted .................. 1563Printed ................... 2444

(30) Letter from the defendant tothe Honorable Thomas C.Platt, dated July 29, 1899.Admitted .................. 1563

Printed ................... 2445

(3i) Letter from defendant to theHonorable Thomas C. Platt,dated August 1, 1899.Admitted .................. 1563

Printed ..................... 2446


ant, dated August ii, 1899.


(33) Letter from defendant to the

Honorable Thomas C. Platt,

dated August 21, 1899.Admitted .................. 1563Printed ................... 2447

XXi' .

Folio Page

(34) Telegram from William Loeb,Jr., to the Honorable ThomasC. Platt, dated August 24, 1899.Admitted ................. 1563Printed ................... 2448

(35) Letter from defendant to theHonorable Thomas C. Platt,dated August 24, 1899.Admitted ................. 1563Printed ................... 2449

(36) Letter from the HonorableThomas C. Platt to the defend-ant, dated August 25, 1899.Admitted ................. 1563Printed ................... ... 2450

(37) Letter from defendant to theHonorable Thomas C. Platt,dated August 26, 1899.Admitted ................. 1563Printed ................... 2452

(38) Letter from the HonorableThomas C. Platt to the defend-ant, dated August 29, 1899.Admitted ................. 1563Printed ................... 2453

(39) Letter from the HonorableThomas C. Platt to the defend-ant, dated September 6, 1899.Admitted ................. 1563Printed ................... 2453

(40) Letter from defendant to theHonorable Thomas C. Platt,dated November 6, 1899.Adm itted .................. 1563Printed ................ ..... 245-

(4I) Letter from defendant to theHonorable Thomas C. Platt,dated November I I, 1899.Admitted ................. 1563Printed ...................... 2455

xxv.

Folio Page

(42) Letter from the HonorableThomas C. Platt to the defend-ant, dated November 13, 1899.Admitted ................. 1563Printed ..................... 2455

(43) Letter from defendant to theHonorable Thomas C. Platt,dated November 14, 1899.Admitted .................. 1563Printed .................... 2456

(44) Letter from defendant to theHonorable Thomas C. Platt,dated November 27, 1899.Admitted ................. 1563Printed ..................... 2457

(45) Letter from the HonorableThomas C. Platt to the defend-ant, dated December I, 1899.Admitted .................. 1563Printed ................... 2459

(46) Letter from defendant to theHonorable Thomas C. Platt,dated December 13, 1899.Admitted .................. 1563Printed ................... 246o

(47) Letter from the HonorableThomas C. Platt to the defend-ant, dated December 16, 1899.Admitted .................. 1563Printed .................... 2461

(48) Letter from defendant to theHonorable Thomas C. Platt,dated December 18, 1899.Admitted .................. 1563Printed ..................... 2462

(49) Letter from defendant to theHonorable Thomas C. Platt,dated December 19, 1899.Admitted .................. 1563Printed ................... 2463

xxvi.Folio Page

(50) Letter from defendant to theHonorable Thomas C. Platt,dated January 24, 1900.


(5I) Telegram from defendant tothe Honorable Thomas C.Platt, dated January 26, I9OO.Admitted .................. 1563Printed ................... ... 2466

(52) Letter from defendant to theHonorable Thomas C. Platt,dated January 26, i9oo.Admitted .................. 1563Printed ................... 2466

(53) Letter from the HonorableThomas C. Platt to the defend-ant, dated January 27, 1900.

Admitted .................. 1563Printed ................... ... 2467

(54) Letter from defendant to theHonorable Thomas C. Platt,dated January 29, I9OO. "

Adm itted .................. 1563Printed ................... 2468

(55) Telegram from defendant tothe Honorable Thomas C.Platt, dated January 31, 1900.Admitted .................. 1563Printed ................... 2469

(56) Letter from defendant to theHonorable Thomas C. Platt,dated January 31, 1900.Admitted .................. 1563Printed ................... 2469

(57) Letter from defendant to theHonorable Thomas C. Platt,dated February i, 1900.

Admitted .................. 1563P rinted ................... 2470

xxvii.Folio Page

(58) Letter from the HonorableThomas C. Platt to the defend-ant, dated February 3, 1900.


(59) Letter from the HonorableThomas C. Platt to the defend-ant, dated February 5, 1900.


(6o) Letter from defendant to theHonorable Thomas C. Platt,dated February 7, 1900.Admitted .................. 1563Printed ................... 2475

(6I) Letter from the defendant toHonorable Thomas C. Platt,dated February 27, 1900.



ant, dated February 28, i9oo.Admitted .................. 1563Printed ................... 2477

(63) Letter from defendant to theHonorable Thomas C. Platt,dated April i6, I9OO.Admitted .................. 1563Printed ................... 2478

(64) Letter from defendant to theHonorable Thomas C. Platt,dated May i, I9oo.Admitted .................. 1563

Printed .................... 2479(65) Letter from the Honorable

Thomas C. Platt to the defend-ant, dated May 5, 1900.


xxviii.Folio Page

(66) Letter from defendant to theHonorable Thomas C. Platt,dated May 7, 1910.Admitted .................. 1563Printed ................... 2482

(67) Letter from the HonorableThomas C. Platt to the defend-ant, dated May 15, 1900.Admitted .................. 1563Printed ................... 2484Enclosure: Letter from theHonorable Lemuel E. Quiggto Honorable Thomas C. Platt,dated May 14, 1900.Admitted .................. 1563Printed ................... 2484

(68) Letter from defendant to theHonorable Thomas C. Platt,dated May 18, 19oo.Admitted .................. 1563Printed ................... 2486

(69) Letter from defendant to theHonorable Thomas C. Platt,dated June 6, 19oo.


(70) Letter from the HonorableThomas C. Platt to the defend-ant dated June 8, 19oo.


(7) Letter from defendant to theHonorable Thomas C. Platt,dated June 24, 1900.Admitted .................. 1563Printed ................... 2488

(72) Letter from the HonorableThomas C. Platt to the defend-ant, dated June 25, 1900.Admitted .................. x563Printed ................... 2489

xxix.Folio Page

(73) Letter from defendant to theHonorable Thomas C. Platt,dated June 26, I9OO.


(74) Letter from the HonorableThomas C. Platt to the defend-ant, dated July 26, I9OO.Admitted .................. 1563Printed ................... 2490

(75) Letter from defendant to theHonorable Thomas C. Platt,dated July 29, 19oo.


(76) Letter from defendant to theHonorable Thomas C. Platt,dated July 31, 1900.


(77) Letter from the HonorableThomas C. Platt to the defend-ant, dated August 1, 19oo.


(78) Letter from the defendant tothe Honorable Thomas C.Platt,, dated August 9, i9oo.Admitted .................. 1563Printed ................... 2493

(79) Letter from defendant to theHonorable Thomas C. Platt,dated October 7, 1900.Admitted .................. 1563Printed ................... 2494

(8o) Telegram from defendant tothe Honorable Thomas C. Platt,dated December 6, 19oo.

Admitted .................. 1563

Printed ................... 2495

XXX.Folio Page

(81) Telegram from the HonorableThomas C. Platt to the defend-ant, dated December 6, 19oo.


(82) Telegram from defendant tothe Honorable Thomas C.Platt, dated December 7(1909?).Admitted ................. 1563Printed ................... 2496

(83) Letter from defendant to theHonorable Thomas C. Platt,dated March 27, 1901.Admitted .................. 1563Printed .................... 2497

(84) Letter from the HonorableThomas C. Platt to the defend-ant, dated March 29, 1901.


(85) Letter from defendant to theHonorable Thomas C. Platt,dated March 30, 1901.Admitted .................. 1563Printed ................... 2499

(86) Letter from the HonorableThomas C. Platt to the defend-ant, dated April 2, 1901.

Admitted .................. 1563Printed .................... 2500

(87) Letter from defendant to theHonorable Thomas C. Platt,dated April 3, 1901.Adm itted .................. 1563Printed ................... 2501

(88) Letter from defendant to theHonorable Thomas C. Platt,dated April 9, 19ol.Admitted .................. 1563Printed .................... 2501

xxxi.

Folio Page

(89) Letter from the HonorableThomas C. Platt to the defend-ant, dated April II, I9OI.


(90) Letter from defendant to the

Honorable Thomas C. Platt,dated July 3, 190.


(9i) Letter from the HonorableThomas C. Platt to the defend-ant dated July 5, i901.Admitted .................. 1563Printed .................... 2504

(92) Letter from defendant to theHonorable Thomas C. Platt,dated July 8, i9oi.Admitted .................. 1563Printed ................... 2505

(93) Letter from defendant to theHonorable Thomas C. Platt,dated November i6, i9oi.Admitted .................. 1563Printed . ................... 2505

(94) Letter from the HonorableThomas C. Platt to the defend-ant ,dated November 18, I9OI.Admitted .................. 1563Printed ................... 25o6

(95) Letter from defendant to theHonorable Thomas C. Platt,dated November 19, I9OI.Admitted .................. 1563Printed ................... 2507

(96) Letter from the HonorableThomas C. Platt to the defend-ant, dated November 22, 1901.


xxxii.Folio Page

(97) Letter from the defendant tothe Honorable Thomas C. Platt,dated December I8, 1905.

Admitted .................. 1563Printed ................... 25o8

Plaintiff Exhibit 51 (for identifica-tion). Autobiography of de-fendant, pages 64-70 inclusive.Offered in evidence and ex-cluded .................... 1781Printed ................... 2509

Plaintiff Exhibit 52. Letter from de-fendant to plaintiff, dated Sep-tember I6, 19o8.Admitted .................. 1790Printed ................... 597

Plaintiff Exhibit 53. Letter from de-fendant to plaintiff, dated No-vember 4, 1908.Admitted .................. 1790

Printed ................... 599Plaintiff Exhibit 54. Letter from

plaintiff to defendant, datedJanuary 3, 1904.Admitted ................. 1799


fendant to plaintiff, dated Jan-uary 15, 1904.Admitted ................. 1799Printed .................... 2518

Plaintiff Exhibit 56. Letter from de-fendant to plaintiff, dated May2, 1904.Admitted ................. 1799Printed .................... 2519

Plaintiff Exhibit 57. Letter from de-fendant to plaintiff, dated Sep-tember 26, 1904.Admitted ................. 1799Printed .................... 2519

xxxiii.Folio Page

Plaintiff Exhibit 58. Letter from de-fendant to plaintiff, dated No-vember 9, 1904.

Admitted ................. 1799Printed ................... 2520

Plaintiff Exhibit 59. Letter fromplaintiff to defendant, datedNovember I6, 19o4.


Plaintiff Exhibit 6o. Letter fromplaintiff to defendant, datedNovember 16, 19o4.


Plaintiff Exhibit 6I. Letter fromplaintiff to defendant, datedDecember io, 19o4.


Plaintiff Exhibit 62. Letter from de-fendant to plaintiff, dated De-cember 12, 1904.Admitted ................. 1799Printed .................... 2523

Plaintiff Exhibit 63. Telegram fromdefendant to Howard N. Fuller,dated February 14, 1907.Admitted ................. 1799Printed ................... 2524

Plaintiff Exhibit 64. Letter from de-fendant to plaintiff, dated April22, 19o8.Admitted ................. ' 799Printed ................... 2525

Plaintiff Exhibit 65. Letter fromplaintiff to defendant, datedApril 24, 1908.Admitted ................. 1799Printed .................... 2526

xxxiv.Folio Page

Plaintiff Exhibit 66. Letter fromplaintiff to defendant, datedMay 20, 19o8.Admitted ................. 1799Printed ................... 2527

Plaintiff Exhibit 67. Letter from de-fendant to plaintiff, dated May22, 1908.


Plaintiff Exhibit 68. Letter fromplaintiff to defendant, datedJune 25, 19o8.Admitted ................. 1799Printed . ................... 2529

Plaintiff Exhibit 69. Letter from de-fendant to Plaintiff, dated July3, 1908.Admitted .................. 1799Printed ................... 2530

Plaintiff Exhibit 70. Letter fromplaintiff to defendant, datedJuly 14, 1908.Admitted .................. 1799Printed .................... 253i

Plaintiff Exhibit 71. Letter from de-fendant to plaintiff, dated July8, 191o.

Admitted ........ ......... 1799Printed ................... 2532

Plaintiff Exhibit 72. Letter from de-fendant to plaintiff, dated Au-gust 4, 1910.Admitted ................. 1799Printed ................ .... 2533

Plaintiff Exhibit 73. Photographiccopy of letter from AbrahamLincolon to Thurlow Weed,dated March 15, I865.Admitted .................. 1823Printed .................... 6o9

xxxv.Folio Page

Plaintiff Exhibit 74 (for identifica-tion). Portion of an articlefrom New York Herald, datedAugust 27, 1910.Marked for identification .... i 86oNot offered in evidence.

Plaintiff Exhibit 75 (for identifica-tion). Portion of an article fromNew York Times, dated Sep-tember 8, 191o.

Marked for identification .... 1861

Not offered in evidence.Plaintiff Exhibit 76 (for identifica-

tion). Portion of an articlefrom New York Times, datedSeptember 3, 1910.Marked for identification .... 1864

Not offered in evidence.Plaintiff Exhibit 77 (for identifica-

tion). Item from New YorkTimes, dated September 20,

191o.

Marked for Tdentification .... i866Not offered in evidence.

Plaintiff Exhibit 78. Portion of anarticle from New York Times,dated March 28, 1912.


Plaintiff Exhibit 79. Portion of anarticle from New York Times,dated June 4, 1912-Admitted ................. 1879Printed ................... 630

Plaintiff Exhibit 8o. Portion of anarticle from New York Times,dated June 5, 1912.Admitted ................. 1894Printed ................... 632

xxxvi.Folio Page

PW'ntiff Exhibit 81. Three lines ofan article from New YorkTimes, dated June 4, 1912.


Plaintif Exhibit 82. Portion of an

article from New York Times,dated June 4, 1912.


Plaintiff Exhibit 83 (for identifica-tion). Portion of an articlefrom New York Times, datedJune 4, 1912.

Marked for identification .... 1896Not offered or printed.

Pla 'ntiff Exhibit 84 (for identifica-tion). Portion of an articlefrom New York Herald, datedJune 4, 1912.

Marked for identification .... 1896Not offered or printed.

Plaintiff Exhibit 85. Portion of anarticle from New York Times,dated June 23, 1912.

Admitted .................. 1902

Printed .................... 635Plaintff Exhibit 86. Portion of an

article from New York Times,dated July 24, I912.


Plaintiff Exhibit 87. Portion of anarticle from New York World,dated August 30, I912.

Admitted ................. 1911Printed ................... 6. 38

xxxvii.Folio Page

Plainiff Exhibit 88. Portion of anarticle from New York T-rib-une, dated August 7, 1912.

Admitted ................. 1915

Printed ................... 638Plaintiff Exhibit 89. Portion of an

article from New York Times,dated October 4 , 1913.Admitted ................. 1918

Printed ................... 639Plaintiff Exhibit 90 (for identifica-

tion). Portion of an articlefrom Brooklyn Daily Eagle,dated October 4, 1913.Marked for identification .... i9i9Excluded .................. 640

Plaintiff Exhibit 91. Portion of anarticle from New York Times,dated July I, 1914.Admitted ................. 1922

Printed ................... 641Plaintiff Exhibit 92. Portion of an

article from New York Times,dated September 17, I91O.Admitted ................. 1929

Printed . ................... 643Defendant Exhibit 93 (for identifica-

tion). Report of Henry H.Bender, Treasurer of the Re-publican Campaign Committeeof contributions to New YorkState Republican CampaignFund.Excluded ................ 2053

Defendant Exhibit 94. Letter from de-fendant to Honorable ThomasC. Platt, dated November 23,19oo.Admitted .................. 2171Printed ................... 2537

XXXViii.

Folio Page

Defendant Exhibit 95. Letter from de-fendant to Honorable ThomasC. Platt, dated May 4, 1900.

Admitted ............ 2230Printed ................... 2539

Defendant Exhibit 95 (second) foridentification. Copy of speechby Mr. Root regarding defend-ant's residence.Excluded ................. 2340Not printed.

Defendat Exhibit 96. Portion of aletter from Charles H. Whit-man to Charles H. Duell, datedFebruary 19, 1914.Admitted ................. 2362

Printed ................... 2540Defendant Exhibit 97. Portion of an

article from New York World,dated July 22, 1914.Admitted ................. 2373Printed ................... . 791

Defendant Exhibit 98. Portion of anarticle from New York Times,dated October 4, 1913.Excluded ................. 2376Not printed.

Defendant Exhibit 99. Subpoena ducestecum, served by defendant onP. Van R. Schuyler.Marked for identification .... 2395Not offered in evidence.

Defendant Exhibit IOO. Subpoenaduces tecum, served by defend-ant on P. Van R. Schuyler.Marked for identification .... 2395Not offered in evidence.

xxxix.Folio Page

Defendant Exhibit. IOI. Bag contain-ing papers brought to court byP. Van R. Schuyler.Marked for identification .... 2397Not offered in evidence.

Defendant Exhibit 102. Portion ofJournal of the State Senateof April 8, 19o8, showing thevote on the Agnew-Hart RaceTrack Bills.Admitted ................. 2424Not printed.

Defendant Exhibit 103 for identifica-tion. Parts of a letter fromAndrew McFarland, as Sec-retary, etc., to the plaintiff,dated April i6, 19o8.Offered and excluded ....... 2600Not printed.

Defendant Exhibit IO4. Parts of a let-ter from the plaintiff to An-drew McFarland, Secretary,dated, April 24, 1908.Admitted ................ 2600Printed ................... 867

Defendant Exhibit 1o5 (for identifica-tion). Tabulation of printingbids.Marked for identification .... 2949Not offered in evidence.

Defendant Exhibit io6. Volume 2 ofthe Proceedings of the Com-mon Council for the City ofAlbany of 19o9.Marked for identification .... 3005Admitted in evidence ....... 4347Not printed.

Defenrdant Exhibit io 7 (for identifica-tion). 59th Annual Report ofthe Bureau of Water of theCity of Albany for the yearending September 30, 1909.Marked for identification .... 3005Not offered in evidence.

Defendant Exhibit io8. Check ofArgus Company, dated Janu-ary 22, 1910.

Admitted ................. 3018Printed ...................

Defendant Exhibit io9 (for identifica-tion). Proceedings of Boardof Contract & Supply of theCity of Albany for the year1909.Marked for identification .... 3021Not offered in evidence.

Defendant Exhibit 1io (for identifica-tion). Annual Report of theBoard of Education and of theSup't of Schools of the City ofAlbany for the year I9io.Marked for identification .... 3053Not offered in evidence.

Defendant Exhibit i ii. Proceedings ofBoard of Education of the Cityof Albany for the years 19o9

and I91O.Marked for identification .... 3053Admitted in evidence ....... 4350Not printed

Defendant Exhibit I12. Proceedings ofthe Common Council of theCity of Albany for the year1910.Marked for identification .... 3053Not offered in evidence.

Folio Page

ioo6

1450

Folio Page

Defendant Exhibit 113. Argus Com-

pany Job Book No. 25.

Marked for identification .... 3o6I

Page 156 admitted .......... 3094Page I56 printed ........... 1032

Defenda t Exhibit 114. Argus Com-

pany Job Book No. 26.Marked for identification .... 3071

Entry admitted and read in evi-

dence .................. 3072Page 493 admitted .......... 3095

Page 493 printed ........... 1033

Defendant Exhibit I i 5 (for identifica-tion). Report of Departmentof Public Safety.

Marked for identification .... 3073Not offered in evidence.

Defendant Exhibit i16. Proceedingsof the Board of Contract &Supply.

Marked for identification .... 3076

Page 449 read in evidence ... 1027

Defendant Exhibit 117. Report of the

Bureau of Engineering for the

year ending October 31, 1911.Marked for identification .... 3081Not offered in evidence.

Defendant Exhibit 118. Annual reportof the Comptroller of the Cityof Albany for the year I911.


Defendant Exhibit ii9 (for identifica-

tion). Proceedings of the

Common Council with the Mes-

sages of the Mayor and the Re-

port of the City Officers of the

Folio Page

City of Albany for the year1911.Marked for identification .... 3o81Not offered in evidence.

Defendant Exhibit 12o. Job Book 27of the Argus Company.Marked for identification .... 3090Items admitted and read in evi-dence ..................... 3111 1030

1037Defendant Exhibit 121 (for identifica-

tion). Copy of the AnnualMessage of the Mayor of Al-bany for the year 191o.Marked for identification .... 3206Not offered in evidence.

Defendant Exhibit 122. Stock certifi-cate Book of J. B. Lyon Com-pany.Marked for identification .... 3252

Certificates 21, 22, 50, 51, 52,

53, 64, 65, 70, 71 admitted ... 1o89Summaries printed .......... io88

io89Defendant Exhibit 123. List of Stock-

holders attached to Book.Excluded .................. 3253Not printed.

Defendant Exhibit 124. Warrant ofthe Department of PublicWorks to the Journal Com-pany, dated February 23, 1910,

and accompanying correspon-dence.Admitted ................. 3331Printed ... ............... ... 1111

Defendant Exhibit 125 (for identifica-tion). Judgment roll in Peoplev. Albany Journal Co.Marked for identification .... 3353

xliii.Folio Page

Excluded .................. 3370 1124Not printed.

Defendant Exhibit 126 (for identifica-tion). Judgment in Peopleof 'State of New York v. Al-bany Journal Company.Marked for identification .... 3353Not offered in evidence.

Defendant Exhibit 127 (for identifica-tion). Case on appeal to theCourt of Appeals in People v.Albany Journal Co.Marked for identification .... 3353Not offered in evidence.

Defendant Exhibit 128. Proceedingsof the State Printing Boardfor the year 19o6 to date.Marked for identification .... 3375Page of the above book headed"Official Computation of theBids as presented to theBoard at its meeting May 21,1907." Admitted .......... 1128

Printed ................... . 1 128

Defendant Exhibit 129. Page of Ex-hibit 128 headed "Minutes ofthe Meeting of the StatePrinting Board, held June 13,1907."Admitted ................. 3385Printed ................... . 1 129

Defendant Exhibit 13o. Recapitulationof the bids for the legislativeprinting for the year 1899-1900.Admitted ................. 3390Printed ................... . 1 148

Defendatt Exhibits 131 to 141 in-clusive. Copies of the Tabu-

Folio Page

lations and Recapitulations ofBids made in the years I9OOto 1913.Admitted ................. 3390Not printed.

Defendant Exhibit 142. Recapitulationof the bids for legislative print-ing in the years I9IO-I9I i.

Admitted ................. 3390Printed ................... .145

Defendant Exhibits 143--15o inclusive.Tabulations and recapitulationsfor Departmental Printing invarious years.Admitted ................. 3390Not printed.

Defendant Exhibit 151. Stipulation offacts in the case of People v.Journal Co.Marked for identification .... 3390Ist and 2nd paragraphs ad-

m itted ................... 3390Printed ................... 11313rd and 4th paragraphs ad-

m itted .................. 3629Printed ................... 1211

5th and 6th paragraphs ad-. m itted ................. 4635

Printed .................... 15467th and 8th paragraphs ad-

m itted .................. 4640Printed ................... 1547

Defendant Exhibit 152. Minutes ofthe State Printing Board.Marked for identification .... 3413(Page 5 of the above Exhibit,

being minutes for June 9,1909.)

Admitted ................ 3413Printed . ................... 1138

Folio Page

Defendant Exhibit 153. Assignmentand power of attorney fromOliver A. Quayle to CharlesM. Winchester and J. B. Lyon

Co.Admitted ................. 3423

Printed ................... . 1142

Defendant Exhibit 154. Minutes of the

State Printing Board.Marked for identification .... 3433

Portion, being minutes of meet-ing held May 24, 1910.


Defendant Exhibit 155. Minutes of the

meeting of the State PrintingBoard held September 21,

1911.


Defendant Exhibit 156. Contract be-

tween State Printing Board andJohn A. McCarthy, dated Oc-

tober 19, 1899.Admitted ................. 3446

Struck out ................ 3455

Not printed.Defendant Exhibit 157. Assignment

from John A. McCarthy to

James B. Lyon, dated October

19, 1899.Admitted ................. 3447Struck out ................ 3455Not printed.

Defendant Exhibit 158 (for identifica-tion). Affidavit made by John

A. McCarthy.Excluded .................. 3455

Printed ................... . 1150

xlvi.Folio Page

Defendant Exhibit 159. Contract be-tween State Printing Boardand Argus Co. for the years19o4 and 19o5.Admitted ................. 3457Not printed.

Defendant Exhibit 16o. Assignmentfrom Argus Co. to J. B. LyonCo.Admitted ................. 3457Not printed.

Defendant Exhibit I6I. Contract be-tween State Printing Board andJ. B. Lyon Co. for Depart-mental Printing for the years19o6-19o8.Admitted .................. 3458Not printed.

Defendant Exhibit 162.(i) Letter from plaintiff to Hon-

orable Thomas C. Platt datedJuly 14, 1899.Admitted in evidence ........ 3481Printed .................... 1161Struck out ................ 5o56Readmitted ................ 6445

(2) Letter from Honorable Thom-as C. Platt to plaintiff, dated,July 25, 1899.Admitted in evidence ........ 3481Printed ................... . 1 162Struck out ................ 5o56Readmitted ................ 6445

(3) Letter from plaintiff to Hon-orable Thomas C. Platt, datedJuly 29, 1899.Admitted in evidence ........ 3481Printed ................... 1 1 63Struck out ................. 5o56

xlvii.Folio Page

Defendant Exhibit 163 (for identifica-tion). Letter from plaintiff toHonorable Thomas C. Platt,dated April 26, 1895.Excluded ................. 3493Printed (at request of defend-

ant) .................... 1165Defendant Exhibit 164 (for identifica-

tion). Letter from plaintiff toHonorable Thomas C. Platt,dated June 29, 1894.Excluded .................. 3497Printed (at request of defend-ant) ..................... 1166

Defendant Exhibit 165. Letter fromplaintiff to Honorable ThomasC. Platt, dated November 21,1894.Admitted ................. 3503

Printed ................... . I 169

Defendant Exhibit 166. Letter fromplaintiff to Honorable ThomasC. Platt, dated November 27,1894.Admitted ................. 3503

Printed ................... . 1179

Defendant Exhibit 167. Letter fromplaintiff to Honorable ThomasC. Platt, dated December 22,

1894.Admitted ................. 3503Printed ................... 1172

Defendant Exhibit i68. Copy of a let-

ter from plaintiff to Hon. Ed-gar T. Brackett and Hon. Ed-

win A. Merritt, Jr., datedMarch 30, 1911.Admitted ................. 3575

xlviii.Folio Page

Printed ................... 1193Original admitted as Exhibit

233 ....................... 5333Defendant Exhibit 169 (for identifica-

tion). General Ledger of theJournal Co.Marked for identification .... 3643

Pages 94 and 95 of GeneralLedger admitted ......... 4075

Pages 195, 196, 197, 382 and383 admitted ............ 4095

Page 523 admitted .......... 4099Pages 9I, 92, 93, 273, 274,

275, 434, 432 admitted .... 4502Not printed; substance read in

in each case.Plaintiff Exhibit 170 (for identifica-

tion). List of contractsawarded for Legislative andDepartmental Printing from1896 to 1915.Marked for identification .... 3753Not offered in evidence.

Defendant Exhibit 171 (for identifica-tion). Report of the Super-intendent of Insurance for theyear 1911.Marked for identification ....Excluded ..................

Not printed.Defendagnt Exhibit 172 (for identifica-

tion). Letter from Senator

George B. Burd to William H.Hotchkiss, dated February 2,1911.Marked for identification .

3826

3832

3840Excluded ................... 3841Not printed.

xlix.Folio Page

Defendant Exhibit 173 (for identifica-tion). Copy of bill preparedby William H. Hotchkiss forintroduction in the State Legis-lature.Marked for identification .... 3848Not offered in evidence.

Defendant Exhibit 174. Letter fromWilliam H. 'Hotchkiss to the J.B. Lyon Co., dated June 14,1911.Admitted ................. 3855Printed .. ................. 1286

Defendant Exhibit 175. Letter from theJ. B. Lyon Co. to William H.Hotchkiss, dated June 15, 1911.Received in evidence ........ 3856Printed ................... 1287

Defendant Exhibit 176. Bill preparedby William H. Hotchkiss on thesubject of printing the reportsof the Insurance Department,January, 1912.Admitted .................. 3868Portion printed ............. 1290

Defendant Exhibit 177 (for identifica-tion). Book of accounts of theJournal Company.Marked for identification .... 390Not offered in evidence.

Defendant Exhibit 178 (for identifica-tion). Book of accounts of theJournal Company.Marked for identification .... 3903Not offered in evidence.

Defendant Exhibit 179. Minute Bookof the Journal Company.'Marked for identification ..... 3904

Folio Page

Adm itted .................. 4115Portions printed ............ 1373

followingDefendant Exhibit i8o (for identifica-

tion). Book of the Argus Co.Marked for identification .... 3915Not offered in evidence.

Defendant Exhibit 181 (for identifica-tion). Book of the Argus Co.Marked for identification ..... 3916Not offered in evidence.

Defendant Exhibit 182. Article fromNew York World, dated May4, 1913.Admitted .................. 3961Portion printed ............. 1321

Defendant Exhibit 183. Articles fromthe New York World, datedMay 3, 1913.Admitted .................. 3961Printed .................... 1324

Defendant Exhibits 183 (a) to (e) in-clusive (for identification).Five boxes containing the con-tracts made by the State ofNew York with various con-cerns for Legislative printingfor the years 1899 to 1914 in-clusive.Marked for identification ..... 4o65

Defendant Exhibit 184 (for identifica-tion). Book containing stubsof checks used in paying divi-dends by the Journal Co.Marked for identification ..... 4068Not offered in evidence.

Defendant Exhibit 185. Blank dividend

check of Journal Co.Admitted .................. 4070Printed .................... 1357

Folio Page

Defendant Exhibit I86 (for identifica-tion). Book containing stubsof checks used in paying divi-dends by the Journal Co. fromJanuary 17, 1913.Marked for identification ..... 4o9iNot offered in evidence.

Defendant Exhibit 187 (for identifica-tion). Bill regarding StatePrinting dated April 28, I9Ii.

Excluded .................. 4189Not printed.

Defendant Exhibit 188 (for identifica-tion). Bill covering StatePrinting dated April I8, I9ii.

Excluded .................. 4189Not printed.

Defendant Exhibit 189 (for identifica-tion). Bill regarding Stateprinting dated April i8, 1ii.Excluded .................. 4189Not printed.

Defendant Exhibit 19o. Page 405 ofbook entitled "Proceedings ofthe Board of Contract and Sup-ply of the City of Albany forthe year 9II."

Admitted ................. 4199Not printed.

Defendant Exhibit I9i. Five books-

(claims presented to Board ofSupervisors, Albany County,in 1907, I9O8, 19IO and I912)printed by Journal Company,admitted to show waste inprinting.Marked for identification .... 4311Admitted .................. 4322Not printed.

lii.Folio Page

Defendant Exhibit 192 (for identifica-tion). Proceedings of theCommon Council of the City ofSyracuse (specimen of print-ing).Marked for identification .... 4349

Not offered in evidence.Defendant Exhibits 193, 194, 195 (for

Identification). Three books,Ecclesiastical Records of theState of New York, Vols. 4,5, 6 (specimens of printing).Marked for identification .... 4393

Excluded ................ 4478Defendant Exhibit 196 (for identifica-

tion). Stub from check bookof J. B. Lyon Co., No. A-9158;check being a payment fromLyon Co. to Journal Co. of$500.Excluded .................. 4587Not printed.

Defendant Exhibit 197 (for identifica-tion). Stub from check book ofJ. B. Lyon Co., check being apayment from that Company tothe Journal Company.Excluded ................. 4590Not printed.

Defendant Exhibit 198. 20 checks of

J. B. Lyon Co. used in makingpayments to Journal Company.Admitted ................. 4594(Substance of checks datedJanuary 15, 1904; January IO,

195o; February 27, 19o6; ApriliI, 19o6; June 7, 19o6; Feb-

ruary 5, 1907; February 8,

Folio Page

1907; January 13, i9 o8; Feb-ruary 7, 19o8; February 13,

19o8; January 8, I9Io; Jan-

uary 22, I9IO; February 7,i9io; May 28, 191o; February17, I91I; April io, 1911;April 29, 191; June 5, 1911;February io, 1912; March i,1912, read in evidence and

printed) .................. 1532following

Defendant Exhibit 199 (for identifica-tion). Transcript from J. B.Lyon Co. ledger of accountwith Journal Company.Excluded .................. 4609

Defendant Exhibit 200 (for identifica-tion). Book of Claims pre-sented to the Board of Super-visors for the County ofAlbany for the year 1911.Marked for identification .... 4616Not offered in evidence.

Defendant Exhibit 201. Receipted billof Journal Company forprinting the Clerk's Manual inthe year 1905, rendered to theClerk of the Senate JanuaryII, 1905.Admitted .................. 4648Printed ................... 1551

Defendant Exhibit 202. Receipted billof Journal Company for print-ing the Clerk's Manual in theyear 1905, rendered to theClerk of the Assembly JanuaryII, 1905.Admitted ................. 4648Printed ................... 1553

Folio Page

Defendant Exhibit (no number). Sim-ilar bills *for the years 19o5-191o, inclusive.Admitted ................. 4650

Not printed.Defendant Exhibit 203 (for identifica-

tion). Receipted bill of J. B.Lyon Company for printingClerk's Manual (no date).Excluded ................. 4654Not printed.

Defendant Exhibit 204. Receiptedbill from the Journal Companyto the City of Albany forprinting 200 copies BuildingCode, dated December io,1909.Admitted ................. 4662Summary printed ........... 1555

Defendant Exhibit 205. Receipted billfrom the Journal Company tothe City of Albany for printing300 copies Building Code, datedJanuary 7, 1910.Admitted ................. 4662Summary printed .......... 1554

Defendant Exhibit 206. Receiptedbill from the Journal Companyto the City of Albany for 200

copies Building Code, datedJanuary 7, 1910.Admitted ................. 4662Summary printed .......... 1555

Defendant Exhibits 207, 208 and 209

(for identification). Contractsbetween the City of Albany andthe Argus Company for theprinting of the Common Coun-cil proceedings in 19o8, 19o9and 191o.

Folio Page

Offered in evidence ......... 4665Excluded .................. 4677

Defendant Exhibit 21o. Receipted bill

from the Journal Company tothe City of Albany for 250

copies of the Report of theBureau of Water, dated May26, 1911.Admitted ................. 4679Summary printed (as read inevidence) ................. 156o

Defendant Exhibit 211. Receipted billfrom the Journal Company tothe City of Albany for bindingcontract specifications for ioocopies of the Report of theBureau of Engineering, re-ceipted February 23, 1910.Admitted ................. 4679Summary printed (as read inevidence) ................. 156o

Defendant Exhibit 212. Receipted billfrom the Journal Company tothe City of Albany for print-ing 300 copies of the Report ofthe Bureau of Water, datedApril 29, 1909.

Admitted ................. 4679Summary printed (as read inevidence) ................. . 1560

Defendant Exhibit 213. Receipted bill

from the Journal Company tothe City of Albany for printing251 copies of the Annual Re-ports of the Bureau of Fire,receipted May 6, 19o9.Admitted ................ 4679Summary printed (as read inevidence) ................. 1560

Folio Page

Defendant Exhibit 214. Receipted billfrom the Journal Company tothe City of Albany for printing250 copies of the Report of theBureau of Police, receiptedMay 3, 1909.Admitted ................. 4679Printed (as read in evidence) . 1561

Defendant Exhibit 215. Receipted billfrom the Journal Company tothe City of Albany for printing250 copies of the Annual Re-ports of the Bureau of Fire, re-ceipted July 14, 1910.Admitted ................. 4679Summary printed (as read inevidence) ................. 1561

Defendant Exhibit 216. Receipted billfrom the Journal Company tothe City of Albany for print-ing 250 copies of the AnnualReport of the Bureau of Police,receipted July 14, 1910.

Admitted ................. 4679Summary printed (as read inevidence) ................. 1561

Defendant Exhibit 217. Receipted billfrom the Journal Company tothe City of Albany for printingi,ooo copies of the Annual Re-port of the Board of Education,receipted May 19, 19Io

Admitted ................. 4679Summary printed (as read in evi-

dence) ................... 1561Defendant Exhibit 218. Keceipted bill

from the Journal Company tothe City of Albany for printingvarious improvement bills,dated May 14, 1912.

Folio Page

Admitted ................. 4684

Summary printed (as read in

evidence) . .................. 1562


from the journal Company to

the City of Albany for printingvarious improvement bills, re-

ceipted June 3, I9 I 2.

Admitted ................. 4684


evidence) ................. 1562

Defendant Exhibit 220. Receipted billfrom the Journal Company to

the City of Albany for printing

various items, receipted June 3,1912.

Admitted .................. 4684


evidence) ................. 1562


from the Journal Company to

the City of Albany for printingvarious notices to taxpayers, re-

ceipted June 6, I912.

Admitted ................. 4684


evidence) ................. 1562


the City of Albany for printingvarious items, receipted June 3,

1912.

Admitted ................. 4684


evidence) ................. 1562


the City of Albany for printing

and binding 250 copies of the

Annual Report of the Bureau

1viii.Folio Page

of Police, receipted May 8,1911.Admitted ................. 4684Summary printed (as read inevidence) ................. ... 1562

Defendant Exhibit 224. Receipted billfrom the Journal Company tothe City of Albany for printingand binding 250 copies of theAnnual Report of Bureau ofFire; receipted May 8, 191I.Admitted .................. 4684Summary printed (as read inevidence) ................. . 1563

Defendant Exhibit 225. Receipted billfrom the Journal Company tothe City of Albany for printingioo copies of the City Budgetfor 1911; press work, cutting,indexing, etc.; receipted June 8,1911.Admitted ................. 4684Summary printed as read inevidence) ................. 1563

Defendant Exhibit 226. Receipted billfrom the Journal Company tothe City of Albany for printing75 copies of the Report of theCommissioner of Charities forfor 191o, receipted February24, 1911.Admitted ................. 4684Summary printed (as read inevidence) ................. 1563

Defendant Exhibit 227. Receipted billfrom the Journal Company tothe City of Albany for printingand binding 15o copies of the

Folio Page

Annual Report of the CityComptroller, receipted June 6,1911.Admitted ................. 4684Summary printed (as read inevidence) .................. 1563

Defendant Exhibit 228. Receipted billfrom the Journal Company tothe City of Albany for printingand binding ioo copies of theReport of the Bureau of En-gineering, receipted December12, 1911.

Admitted ................. 4684Summary printed (as read inevidence) ................. 1563

Defendant Exhibit 229 (for identifica-tion). Clerk's Manual (As-sembly) for 1905.Marked for identification .... 4691Not offered in evidence.

Defendant Exhibit 230 (for identifica-tion). Clerk's Manual for19o6.Marked for identification ..... 4691Not offered in evidence.

Defendant Exhibit 231 (for identifica-tion). Book of Claims pre-sented to the Board of Super-visors of Albany County in1912.

Marked for identification .... 4700Plaintiff Exhibit 232. Telegram from

Chauncey M. Depew to EdgarT. Brackett, dated March 28,19II.Admitted .................. 5330Printed ................... 1777

Folio Page

Plaintiff Exhibit 233. Letter (orig-inal), from plaintiff to Honor-able Edgar T. Brackett andHonorable Edwin A. Merritt,Jr., dated March 30, 1911.

Admitted .................. 5333Printed (Copy) ............ .I93

Defendant Exhibit 234. Editorial fromAlbany Evening Journal, ofMarch 28, 1911.

Admitted .................. 5581Printed .................... I861

Defendant Exhibit 235. Editorialfrom Albany Evening Journal,of February I, 1911.

Marked for identification .... 5590Admitted .................. 5934Printed ................... 1978

2185

Defendant Exhibit 236 (for identifi-cation). Editorial from Al-bany Evening Journal, ofMarch 29, 191I.


Plaintiff Exhibit 237. Editorial fromthe Albany Evening Journal,dated May I6, 1899.


Plaintiff Exhibit 238. Editorial fromAlbany Evening Journal, datedMay 24, 1899.Admitted .................. 5698Printed ................... 1900

Plaintiff Exhibit 239. Telegram from

William Loeb to plaintiff, datedMarch 14, 1908.Adm itted .................. 5741Printed .................... 1914

Polio Page

Plaintiff Exhibit 24o. Editorial from

the Albany Evening Journal ofApril 9, 19o8.Admitted .................. 5757Printed ................... 1920

Plaintiff Exhibit 241 (for identifica-tion). Letter from plaintiff toEzra P. Prentice, dated Octo-ber II, I9IO.

Excluded .................. 5861Printed ................... 2568

Plaintiff Exhibit 242 (for identifica-tion). Speech by Henry J. Al-len in the Republican Conven-tion of June, 1912.

Excluded .................. 5898Printed ................... 2569

Defendant Exhibit 243. Editorial from

the Albany Evening Journal of

January 13, 1911.Admitted .................. 5937Printed ................... I98O

Defendant Exhibit 244. Editorial fromAlbany Journal of January i8,1911.


Defendant Exhibit 245. Editorial fromthe Albany Evening Journal ofFebruary 6, 1911.


Defendant Exhibit 246. Portion of

Editorial from the AlbanyEvening Journal of April I,1911.Admitted .................. 5967Printed ................... 1990

Plaintiff Exhibit 247. Editorial fromthe Albany Evening Journaldated April 7, 1911.


Defendant Exhibit 248. Editorial fromthe Albany Evening Jottrnal,dated April 28, 1899.Admitted .................. 6290

Printed ..................Defendant Exhibit 249 (for identifica-

tion). Article in the AlbanyEvening Journal of November18, 1899.Excluded .................. 6368Printed (as question asked wit-ness) .....................

Defendant Exhibit 250 (for identifica-tion). Editorial from the Al-bany Evening Journal of No-vember 8, 1913.Marked for identification .... 6376Printed (as question asked wit-ness) ....................Not offered in evidence.

Defendant Exhibit 251. Telegram fromplaintiff to Mutual Life Insur-ance Company, dated May 6,1901.Marked for identification .... 65o6Not offered in evidence.

Defendant Exhibit 252. Telegram fromplaintiff to Mutual Life Insur-ance Company, dated May 4(year not given).Marked for identification .... 6506

Not offered in evidence.Exhibit 253 (for identifica-

tion). Summary of a circularissued by the Republican State

Folio Page

2097

2124

2127

lxiii.Folio Page

Committee signed by the plain-tiff soliciting contributions tothe Campaign Fund of I912.Marked for identification .... 6513Offered in evidence but notruled on by court.

Plaintiff Exhibit 254 (for identifica-tion). Portion of an articlefrom the New York Times,April io, 19o8.Excluded .................. 66i 5Printed ................... 2573

Plaintiff Exhibit 255 (for identifica-tion). Portion of an articlefrom the New York American,April 9, 1908.Excluded .................. 6615Printed ................... 2573

Plaintiff Exhibit 256 (for identifica-tion). Portion of an articlefrom the New York Times,April II, 19o8.Excluded .................. 6615Printed ................... 2575

1937

Plaintiff's [Fitness, Charles F. Brow, Direct 5809

Q. And through how many years? A. 191o to

1914, both inclusive.

Q. Do you know the plaintiff, Mr. Barnes? A.

I do.

Q. You were present in the Session of 1911, when

a United States Senator was elected? A. I was.

Q. Did you have a talk during that session with Mr.

Barnes in relation to the election of United States

Senator? A. I did not.

Q. He didn't talk with you or you with him? A.

No.

Q. Did he make any request of you, directly or in- 5810

directly as to how you should vote or what your action

should be in the matter? A. No; he never did.

No cross-examination.

CHARLES F. BROWN, called as a witness for

the plaintiff, being duly sworn, testified as follows:

Examined by Mr. Barnum:

0. You live where? A. Cortland.

Q. Your occupation is what? A. Insurance agency.

Q. You represented your district in the Assembly 5811

or Senate? A. In the Assembly.

Q. Are you a member still? A. I am not.

Q. You were there in what years? A. Five years,

1908 to 1912 inclusive.Q. Do you know Mr. Barnes, the plaintiff? A. I

do.Q. Did you have any talk with him during the 1911

session with reference to the election of United States


Q. No conversation whatever between you with

reference to it? A. None whatever.


1938

5812 Plaintiff's Witness, Frederick A. Higgins, Direct

The Court: I assume that all the Senatorsand Assemblymen were Republicans?

Mr. Barnum: Yes, they are. I guess thegentlemen on the other side know that.

FREDERICK A. HIGGINS, called as a witnessfor the plaintiff, being duly sworn, testified as follows:


5813 Q. You live where? A. New York City.Q. Your occupation is what? A. I haven't any at

all at the present time.Q. You were engaged in what business? A. Well,

some years ago in the paper manufacturing business.Q. Do you know Mr. Barnes, the plaintiff? A.

Yes, sir.0. You are a Republican in politics? A. Yes, sir.Q. And you represented-you were in the Senate

or Assembly? A. I was in the Assembly in 191o and191I from the 23rd Assembly District of New York.

Q. And you are not- A. I am not in the Assemblyat the present time. I have not been in the Assembly

5814 since 1911.Q. During the session of 1911, did you have any

conversation with Mr. Barnes with reference to the

election of United States Senator? A. No, sir; I did

not.Q. No conversation about it at that time at all?

A. No, sir.


1939

Plaintiff's Witnesses, Waters, Direct-Barnes, Jr., 5815Direct

ROBERT B. WATERS, called as a witness forthe plaintiff, being duly sworn, testified as follows:

Enamined by Mr. Barnum:

Q. You live where? A. Green Island, AlbanyCounty, N. Y.

Q. Your occupation is what? A. Newspaperworker.

Q. By that you mean what, a newspaper worker?A. Well, I am the assistant business manager of theTroy, New York, Times. 5816

Q. You were in the Assembly or Senate in 1911?A. In the Assembly.

Q. And how long were you there, for how manyyears? A. Five years, 1907 to 191i, inclusive.

Q. Do you know Mr. Barnes? A. Yes, I do.Q. The plaintiff? A. Yes.Q. During the session of 1911, did you at any time

have any conversation with him with reference to theelection of United States Senator? A. I did not.

Q. No conversation between you whatever on thatsubject? A. Nothing. whatever.

No cross-examination.5817

WILLIAM BARNES, JR., the plaintiff, recalled

for further direct-examination, testified as follows:

By Mr. Ivins:

Q. Mr. Barnes, Mr. Royal W. France testified thatin the month of December, 1911, you had sent a mes-sage to the Brooklyn Young Republican Club of whichhe, France, was chairman of the committee on Statepolitics: did you ever send such a message to Mr.France? A. I can't recall any such message.

1940

5818 Plaintiff's Witness, William Barnes, Jr., Direct

Q. This is reported or testified to as having beenin the month of December, 1911, and after the pas-sage of the Blauvelt Primary Bill. A. So I under-stand it.

Q. Mr. France was asked to state the conversationwhich took place between you and him, and testifiedas follows: "Mr. Barnes stated that he had sent forme to discuss with me the subject of direct primaries.He said that he had opposed the Hinman-Green bill;and that he thought the attitude of the BrooklynYoung Republican Clubin favor of the Hinman-Green

5819 bill and direct primary legislation generally, had beenall wrong. He said that legislation of this characterwas not practicable, because it exposed the candidateto too much publicity; that the double campaign forthe same office threw too much limelight on the can-didate and that he (meaning you) could ruin the rep-utation of any man living if he (meaning you) threwenough limelight on it.

"I told him (meaning you) that because he heldsuch views as that was one of the reasons why wedisagreed with him; that we thought there were a greatmany men whose reputations could stand any amountof limelight, and that was the kind of man whom we

5820 wanted to get into public office."He (meaning you) said that he could show the

whole foolishness of the proposition in any event; thathe could get the riff-raff of the Democratic Party andtake them down and vote them in the Republican Pri-maries, or that he could vote Republicans in the Demo-cratic Primaries and nominate such rotten candidatesthat he would disgust the voters with the entire propo-sition."

I wish you would repeat to the jury exactly whatconversation took place between Mr. France and your-self? A. It would be entirely impossible to repeat the

exact conversation.

Plaintiff's IWitness, W1'illiam Barnes, Jr., Direct 5&21

Q. I don't ask for the exact conversation. I ask

for the substance of the conversation, as you remem-

ber it. A. The substance was this, I told Mr. France

what I had told to many, that I was opposed to the

proposition-

Mr. Bowers: I move to strike that out, that

I had told it to many-

The Court: That may go out.

The Witness (resuming): That I was opposed to

the law that was then upon the statute book.

Q. You mean the Blauvelt law? A. That was the 5822

primary law; yes; passed in October, 1911. That I

opposed it because it represented the same principles

as were involved in the Hinman-Green Bill of i9io,

and the Cobb Compromise Bill of 191o; that the prin-

ciple of committee designation with the ratification

primary afterwards, was a false principle and would

lead to all kinds of difficulties. I said that it was sus-

ceptible of the very operation which he testified that

I said I could do; I said I or any man could do it;

any man active in political life could have brought

about a condition where a committee of a party nom-

inated or designated a candidate for office, with the

ratification primary afterwards; it would be entirely 5823

possible for an active man, in either political party to

so injure the candidate put up by their opponents, that

that man would be handicapped in the race that he

would have to make for the election. I don't think

there is anything more.

Q. He testified as follows: "The Court: He may

give the rest of the conversation. A. He said that

the system of direct primaries was subversive of party

organization and party organization was essential to

the maintenance of our institutions." I will now di-

vide my question in two. Did you say that the sys-

1942

5824 Plaintiff's 1I"itness, William Barnes, Jr., Direct

tern of direct primaries was subversive of party or-ganization? A. I said that it would tend in that direc-tion; it could not be subversive.

Q. Did you say that the party organization was es-sential to the maintenance of our institutions? A.I did.

Q. That date was fixed by Mr. France as of the7th of December, 1911? A. That is about the cor-rect date.

Q. That was after the defeat of the Hinman-GreenBill, of the Meade-Phillips Bill, of the Cobb Bill, was

5825 it not? A. It was.Q. And it was after the passage of the Blauvelt

Bill? A. That is right.Q. Which Blauvelt Bill contained the provision with

regard to the designation by committees of candidatesin the primaries? A. The Blauvelt Bill provided thatall candidates for public office should be nominatedat a primary where the voters would vote directly forthe candidate.

Mr. Bowers: I object to stating the detailsof that bill; the bill speaks for itself.

The Court: That may stand.

5826 The Witness: And that prior to this primary daythat all political committees should have the power todesignate the candidates for all public office, except forState offices, and that those candidates would have thepreferential places on the official primary ballot, withthe party emblem indicative of that regularity.

By Mr. Ivins:

Q. Has the Blauvelt Bill been repealed?

Mr. Bowers: I object to it.

The Witness: It has.

1943

The Court: Sustained. 5827Mr. Bowers: I move to strike out that an-

swer.The Court: It may go out.Mr. Ivins: May I send for the volume of the

Session Laws showing the repeal of that bill?The Court: I do not rule it out because the

question is improper in form. I allow it to beanswered on that ground, but I think it is im-material.

Mr. Ivins: The evidence is here, clearly, thatthis bill which was passed, was tried, tried out,introduced on the suggestion of Governor Dix.The principle in the bill was opposed by this 5828witness and it was tried out and found to be afailure and went off the statute books becauseof that very reason, thereby testifying preciselythe opinion which the witness had expressed.

The Court: I think I will sustain the ob-jection.

Mr. Ivins: Does your Honor mean to holdthat it is immaterial with regard to the opinionof this witness-and you have admitted theopinion as testified to by Mr. France, the opin-ion as testified to by the witness-that it is im-material, that the State by its Legislatureadopted identically the same principle-and 5829rule it out?

The Court: My ruling would seem to implyit.

Mr. Ivins: Do I understand your Honor'sruling to imply that the position taken by thewitness at that time involved anything of moral

wrong or moral turpitude?Mr. Bowers: I object to that.Mr. Ivins: I think I have a right to that.

The Court: Well, I am hardly on the standto be cross-examined, but however I will state

1944

5830 Plaintiff's IT'itness, William Barnes, Jr., Direct

that my ruling does not imply that or imply

anything like that.Mr. Ivins: That is what I thought.The Court: I cannot go over my ruling. I

remember the purpose of all my rulings, I ruled

distinctly that there was nothing in regard tothe Hinman-Green Bill or to the Hart-AgnewBill, in regard to the primary bill or in regard

to the Allds election which in any way showedany improper conduct on the part of the plain-tiff.

5831 Mr. Bowers: We have not claimed that.The Court: I ruled that much of that testi-

mony, just how much reference to the recordwill show, but that much of the testimony re-lating to those various occurrences would belet in the case, not as showing any improper

conduct on the part of the plaintiff, but asbearing upon the question of his dominance inthe party.

Mr. Bowers: That is undoubtedly it.The Court: Now, whether any specific ques-

tion, piece of evidence, I ruled in or out, I donot know now. The record will show.

5832 By Mr. Ivins:

Q. His Honor has stated the testimony with re-gard to your action, Mr. Barnes, with respect to theHinman-Green Bill was stricken out except so far asconcerned the question of your domination of the

party, the Republican Party at that time. Such being

the case, I will ask you to state just what you did in

respect of the passage of the Hinman-Green Primary

Bill, so-called.

Mr. Bowers: I object to that. I think coun-

sel should not be permitted to put a statement

1945

Plaintiff's Witness, WJilliam Barnes, Jr., Direct 5833

in the form in which it is put. Your Honor

has made such declarations as you deem proper

to the jury, but for the counsel to start off with

a statement on his part as to what you ruled,

and so on, I submit it is manifestly improper.

The Court: I think I shall make my own

statements to the jury. The jury will take anystatements of the law from me and not from

the attorneys in the case.Mr. Bowers: Do you think it is proper for

us to make a statement of that kind?

The Court: I think you better ask me to 5834

make the statements and not make them your-

selves. I will make my own definite rulings

and give you an exception if they are wrong.

I think you better simply ask the witness the

questions in the ordinary way.

Mr. Ivins: I thought I was doing it in the

ordinary way.The Court: Oh, hardly.

Mr. Ivins: In view of what your Honor has

just said.The Court: Hardly.Mr. Ivins: In the hearing of the witness and

in the hearing of the jury. 5835

The Court: I said myself what I chose to

say to the jury. I do not think that attorneys

on either side need repeat,' for the purpose of

paraphrasing or even stating in the same lan-

guage, what I said to the jury.Mr. Ivins: I will withdraw my question.

Q. Do you remember when Mr. Roosevelt went to

Africa? A. Shortly after his retirement from the

Presidency in March, i909.

0. Do you remember when he returned to the

United States? A. I think it was in June, i9Io.

1946

5 36 Plaintiff's Witness, William Barnes, Jr., Direct

Q. Was there any convention of the RepublicanParty held in the interim? A. State Convention, no.

Q. Who was chairman of the convention during theperiod between the President's, or rather Mr. Roose-velt's going to Africa in I9o9, and his return in Juneof 1910?

The Court: Chairman of the State Com-mittee ?

Mr. Ivins: Chairman of the State Com-mittee.

5837 A. Timothy L. Woodruff.Q. I now call your attention to Exhibit 71, dated

the Outlook, July 8, I9IO, signed by Theodore Roose-velt and addressed to you. Do you remember havingreceived that? A. I do remember receiving it, yes.

Mr. Ivins: Has that been read to the jury?Mr. Bowers: Every letter has been read.

By Mr. Ivins:

0. When next, after the receipt of that letter ofJuly 8, I9IO, did you see the defendant in this case?A. I think it was the i 5 th of August, the date ofthe meeting of the State Committee to choose a tem-

5838 porary Chairman of the State Convention, whatever

day that was.Q. Where did you see him? A. In New York at

the Manhattan Hotel.Q. Who was present? A. Mr. William L. Ward.Q. Will you state what occurred between yourself

and the President, I mean Mr. Roosevelt, at that time?

The Court: What date?

The Witness: The I5th. It must be in the record

there some place.

The Court: August 15, 1910.

1947

Plaintiff's witness, [Villiam Barnes, Jr., Direct 5839

A. I came to the room where Mr. Ward and Mr.Roosevelt had luncheon, and Mr. Roosevelt took ex-ception-

Mr. Bowers: I object. It calls for a conclu-sion.

By Mr. Ivins:

Q. Just say what Mr. Roosevelt said. A. Well,I cannot state all of the words.

The Court: The substance of it.

By Mr. Ivins: 5840

Q. State it in substance as well as you remember.A. He told me that I took the direct nomination mat-ter entirely too seriously, it was not a serious matterat all. I replied that he had been out of the countryfor fifteen months, that we had gone on with the pro-gram along this particular line-by that I meant themembers of the Legislature, the Republican StateCommitteemen and others-and that we intended tofight the battle out at the State Convention, so thatthe party might make that year an authoritative dec-laration, clean cut, thoroughly understood, and thatthe question would be settled once for all as to wherethe Republican Party stood on this question. I ob-jected to the proposal of legislation to be made whenit was not in accordance with the platform of the Re-publican Party which had been adopted in 19o8, whichdistinctly declared for the preservation of the conven-tion system. He then stated that he did not under-stand my action of the morning in voting for Mr.Sherman for temporary chairman on the ground thatI had indicated my dissatisfaction with the policy pur-sued by President Taft. He stated that he thought Ishould have supported him for temporary chairman.I said that I did not support him for temporary chair-

1948


man of the convention, Mr. Sherman having then justbeen selected, because I was not sure, I was not en-tirely clear as to what his ideas were and that, as the'temporary chairman of the State Convention is knownto be the man whose expressions are taken as theexpressions of the convention, and, that as I hadread his speech at Osawatomie; that I did not believein his doctrine there expounded called the -"NewNationalism," and that I could not, as a Republican,therefore have voted for him as temporary chairmanof the convention. I think that covers the-

5843 Q. Does that cover the entire conversation? Whatdid he reply, if anything, to that? A. He made somereferences to President Taft which are not material,

I think.Q. Was the meeting with Mr. Ward and Mr.

Roosevelt by appointment? A. You mean how did Icome to go there?

Q. Yes. A. I received a letter from Mr. Roose-velt, a note, in the morning before the meeting of theState Committee, asking me to come to the Outlookoffice. I sent a note back stating that I knew, throughMr. Ward, that he was to lunch with Mr. Ward atthe Manhattan Hotel, and that I would come there

5844 when the meeting was over.0. Did you subsequently take part in the conven-

tion of I9IO? A. I was a delegate from the FirstAssembly District of the County of Albany.

Q. Did you place anyone in nomination for thetemporary chairmanship? A. I did not, personally.

Q. Who was placed in nomination for the tempor-

ary chairmanship? A. The procedure is this: The

State Committee-

Mr. Bowers: I object to the procedure. Ithink he should state what took place.

1949

Plaintiff's W'itness, TVilliain Barnes, Jr., Direct 5845

By the Court:

Q. The State Committee just selected the tempor-ary chairman? A. The State Committee had selectedMr. Sherman to be temporary chairman, and Mr.Woodruff, chairman of the State Committee, pre-sented his name to the Convention and asked for othernominations, which is the procedure.

By Mr. Ivins:

Q. Were other nominations made? A. Mr. Roose-velt was put in nomination.

Q. What was the result of the vote on those nom- 5846

inations? A. I cannot give the exact figures, but itwas in the neighborhood of 550 for Mr. Roosevelt to430 or 4oo-well, I will be more accurate-450 to420 for Mr. Sherman.

Q. So that Mr. Roosevelt became the temporarychairman of the Convention? A. Yes, sir; he did.

Q. Who became the permanent chairman of theConvention? A. Elihu Root.

Q. What part did Mr. Roosevelt take in the pro-ceedings of that Convention? A. All official proceed-ings-I have no knowledge of any other.

Mr. Bowers: Is this material to any issue 5847that remains?

The Court: I suppose it is a question now ofthe domination of the plaintiff in the party.

He may answer.

A. Mr. Roosevelt made an address. As temporarychairman of the Convention appointed the severalcommittees which were provided for by the rules ofthe State Convention: Committee on Resolutions todraw the platform, Committee on Credentials, Com-mittee on Permanent Organization. He performed

1950

b848 Plaintiff's Witness, William Barnes, Jr., Direct

all the regular functions, of temporary presiding of-ficer of the State Convention.

By Mr. Ivins:

Q. Did he subsequently take any action on the floorof the Convention? A. I should like to answer thefirst question, if I may, more fully. Mr. Roosevelt, inappointing the Committee on Resolutions, did not ac-cept, in every case, the man recommended by the dele-gation from the Congressionl District, which hadbeen the custom for many, many years, selecting a

5849 man from the district in which Mr. Sherman livedwhom I confidently believed.

Mr. Bowers: I object to what the witnessbelieved.

The Court: Leave that part out.

By Mr. Ivins:

Q. And did he select, as the member of that com-mittee, the man who had been recommended by thedelegation which Mr. Sherman represented? A. Hedid not.

Q. And do you remember who he selected? A. Mr.Hart, Merwin K. Hart, I think. I will have to look

5850 that up.Q. Say that name louder. A. Merwin K. Hart. I

am under the impression that Mr. Hart was appointed,however, from the Staten Island District. I am notsure. I would have to look that up.

Q. Now, have you finished your answer to myquestion? A. Yes, sir.

Q. What part did Mr. Roosevelt thereafter take inthe proceedings of that Convention on the floor? A.He made an address on the report of the Committeeon Resolutions. The Committee on Resolutions-

1951

Plaintiff's JT'itness, THilliain Barnes, Jr., Direct 5851

there was a majority and minority report. The ma-jority report presented by Mr. Prendergast, the mi-nority report presented by Mr. Wadsworth. And Mr.Roosevelt took the platform and defended the ma-jority report, in a long speech in opposition to the con-vention system, why there should be a change in themethod of making nominations.

Q. What position did you take in respect to thatreport? A. I made a speech in favor of the minorityreport.

Q. Which report was adopted? A. The majorityreport, by about the same vote as the temporary chair- 5852manship was determined. I think the minority re-port had more votes than Mr. Sherman for tempor-ary chairman.

Q. The nominee of that Convention for Governorwas Mr. Stimson, was it? A. Henry L. Stimson.

Q. Did you place anyone in nomination? A. I didnot.

Q. Do you remember whether Mr. James B. Mc-Ewen of Albany was placed in nomination? A. Hewas not. I voted for him.

Q. You voted for him although he was not in nom-ination? A. The delegates from the County of Al-bany and Columbia voted for James N. McEwen. 5853

0. And Mr. Stimson was nominated?

Mr. Bowers: We have had that a greatmany times.

Mr. Ivins: Well, I have got to get my story,and I do not care about your "great manytimes"-I have got to examine my witness.

Mr. Bowers: I object to it being stated inthat last question, your Honor-

The Ccurt: That may stand now.

The Witness: May I have the question now?

1952

5854 Plaintiff's fTitness, Tf'illiam Barnes, Jr., Direct

The Court: Mr. Stimson was nominated. You an-swered it.

A. He was.

By Mr. Ivins:

Q. Vas there a chairman of the State Committeeelected at, or as an immediate result of that conven-tion?

Mr. Bowers: Well, that calls for a conclu-sion.

5S55 The Witness: May I-I should like to correct my

testimony in one regard.The Court: Very well.The Witness: The question asked by Mr. Ivins in

regard to, the action taken by Mr. Roosevelt subse-quent to his retirement as temporary chairman, I didnot finish. I stated that he made a speech on the floorof the convention in favor of the majority report,and would have gone on to state that he placed Mr.Stimson in nomination making the nominating speechin behalf of him. He was the nominator. I knowof no other action which he took.

By Mr. Ivins:5856

Q. That was not done by him as temporary chair-man? A. No. In the permanent organization, Mr.Roosevelt placed Mr. Stimson in nomination.

0. After Mr. Root had taken the chair? A. Thechair.

0. When did the State Committee next meet? A.The State Committee was elected, a new State Com-mittee was elected at that Convention, as was the cus-tom, I fancy it met about four or five days later.

Q. And when the State Committee was elected atthat Convention, who was elected chairman of theState Committee? A. Ezra P. Prentice.

1953

Plaintiff's WVitncss, fTilliam Barnes, Jr., Direct 5857

Q. How long did Ezra P. Prentice continue in of-

fice? A. Until the 21st of January, 1911.

Q. Was there an Advisory Committee, or an Ex-

ecutive Committee elected at that meeting? A. I have

testified that the Executive Committee is appointed.

Mr. Prentice appointed an Executive Committee with

himself as chairman.

Q. \Were you appointed on that committee? A.

I was not.Q. Did you then resign from the State Committee?

A. I wrote a letter to Mr. Prentice in which I set

forth- 5858

Mr. Bowers: The letter is the best evidence

of that.Mr. Ivins: Yes.

Q. The answer is "Yes" you did resign? A. Yes,

I did.

Q. How long did Mr. Prentice continue to be chair-

man of the State Committee? A. January 21, 1911.

Mlr. Bowers: He has testified to that.

Mr. Ivins: No, he has not.

Mr. Bowers: He remained until January 21,

19 11, all right, take it again. 5859

By Mr. Ivins:

Q. Who succeeded Mr. Prentice? A. I did.

Q. On the same date, January 21, 1911 ? A. That

is the day.Q. And how long did you continue to be the chair-

man of the State Committee? A. Until my term of

office expired, about the first of April, 1912, when I

was re-elected and served until the 29 th day of Sep-

tember, 1914.0. Is that term of office determined by law or reso-

lution and custom? A. It was determined by the

1954

5860 Plaintiff's W~itness, WIilliam Barnes, Jr., Direct

rules of the party committee until the enactment ofthe Dix or Blauvelt Primary Law of October, 1911.I am wrong about that-until the enactment of theGlynn Primary Law of 1913.

Letter marked Exhibit 241.

By Mr. Ivins:

Q. I show you exhibit, copy of a letter addressedby you to Ezra P. Prentice, October i i, 191o (Exhibit24), and ask you if you recognize that as a copy ofthe letter sent him? A. That is correct.

5861 Mr. Ivins: I now offer that in evidence.

Mr. Bowers: I object to the evidence. It isabsolutely immaterial and irrelevant to any is-sue here.

Mr. Ivins: It dwells directly upon the ques-tion of dominance, his retirement.

Mr. Bowers: You can hardly determine thatby the form of the letter.

Mr. Ivins: His reason for retirement andthe official communication.

The Court: I think I will sustain the objec-tion. I do not think it is material.

5862 Exception to plaintiff.(See Book of Exhibits, page 2568.)

By Mr. Ivins:

0. Do you remember the occasion of the electionof the United States Senator by the Legislature of1911? A. I do.

0. Were you chairman of the State Committee atthe time of the first vote for United States Senatortaken by the Legislature? A. No, I was not.

Q. Who was? A. Mr. Prentice.Q. I wish you would now state what your physical

condition was the 1st of January, and the 14th ofFebruary, 1911.

1955

Plaintiff's W1itness, TWilliam Barnes, Jr., Direct 5863

Mr. Bowers: I object to that as immaterial

and irrelevant.The Court: He may answer.

Exception to defendant.

A. My physical condition was all right up to the

day or two after I was elected chairman of the State

Committee, which was the 21st of January. I then

was taken with an attack of quinsy and did not leave

my room, my house, until I went to New York to go

to the Lincoln dinner of the Republican Club on the

I 4 th day of February of that year. 5864

Q. After the Lincoln dinner what did you do? A.

I went to Havana.

Q. How long were you there? A. From two to

three weeks.

Q. Do you remember when you returned from

Havana? A. It must have been about the Ist of

March, or shortly thereafter. I have not got the-

Q. During that time the voting on the Senatorship

had been in progress, had'it not? A. It had.

Q. Did you at any time, prior to your return from

Havana, speak with any member of the Legislature

with regard to, or give any advice or instructions to

any member of the Legislature with regard to his vote

on the Senatorship? A. No. 5865

Q. When you say Havana, you do not mean Ha-

vana in this State, do you? A. Cuba.

Q. Did you ever have any conversation with Mr.

Murphy at any time with regard to the election of

United States Senator? A. No.

Q. Do you know Mr. Murphy? A. I met him once

at a dinner called the "Amen Dinner."

Mr. Bowers: I move to strike out the an-

swer as not responsive. We are entitled to yes

or no.

1956

5866 Plaintiff's TUitness, William Barnes, Jr., Direct

The Court: He may answer.Exception to defendant.Mr. Ivins: I can ask the question six or

eight times until I get the answer.The Court: I will let the answer stand.

By Mr. Ivins:

Q. What is the "Amen Club" dinner? A. I sup-pose it is an association of men, newspaper men andothers, who used to go to the Fifth Avenue Hotel inthe old days when the Fifth Avenue Hotel and the

5867 Hoffman House were the respective Democratic andRepublican headquarters.

Q. That dinner was held annually, was.it not? A.It is, yes.

Q. And you met Mr. Murphy there as one of theguests at the dinner? A. Yes, sir.

Q. Were you introduced to him? A. I was intro-duced to him or he to me.

Q. Who introduced you? A. I can't remember.Q. Did you have any talk with him? A. No.Q. Have you ever seen or talked with him since?

A. No.Q. Have you ever since that time seen or talked

5868 with him on any subject whatever, directly or indi-rectly, by or through his or your agent, in writing,orally, or by telephone? A. No.

Q. We have had some testimony here with regard

to the occurrence of the Lincoln dinner, so-called, on

February i4 th; and Mr. Roosevelt testified as to aconversation between you and himself, and as to a

letter which he at first had said was a letter from Mr.

Weed to Mr. Lincoln, but subsequently changed his

testimony and said that it might have been from Mr.

Lincoln to Mr. Weed. Do you remember such a con-versation? A. Yes.

1957

Plaintiff's Witness, Villiam Barnes, Jr., Direct 5869

Q. Will you tell us just how the conversation aroseand just what it was, and just what your relation tothat letter was? A. Before the dinner began Mr.Roosevelt and I met in the gathering room. Seeingme he said, "I want to talk with you. Tell Mr. Loebto place you next to me at the table." I declined onthe ground that the seats had been arranged. Wewent into dinner and I sat some eight or ten seats fromMr. Roosevelt. During the dinner one of the waiterscame to me and said, "Mr. Roosevelt wants-

Mr. Bowers: I object to what the waiter 5870said.


By Mr. Ivins:

Q. Did you receive a message from Mr. Rooseveltduring the dinner? A. I did.

Q. What was the message?

Mr. Bowers: I object to that.

A. To come and sit next to, him.

The Court: That is not important. It doesnot do any harm.

By Mr. Ivins: 5871

Q. Did you then go and sit next to Mr. Roosevelt?A. I did.

Q. Who was there beside Mr. Roosevelt?

The Court: At dinner, do you mean?Mr. Ivins: At the dinner?

A. Dr. Gunsaulus of Chicago.Q. Who had made the principal Lincoln speech on

that occasion? A. Dr. Gunsaulus.Q. Did you then have with you the letter from Mr.

Lincoln to Mr. Weed? A. I had a typewritten copy

1958

58 2 Plaintiff's Vitness, William Barnes, Jr., Direct

of the letter, which I had brought with me, in theevent or possibility that I might be called upon to makesome remarks, as I had just been elected chairman ofthe State Committee.

Mr. Bowers: I move to strike out the latter

part of the answer.The Court: That doesn't do any harm.

By Mr. Ivins:

Q. To whom did you show that letter? A. Dr.

Gunsaulus.5873 Q. Did you show it to Mr. Roosevelt? A. He took

it out of my hand.Q. Did you ask him to incorporate it in his speech?

A. I did not.Q. What did he say to you with regard to that let-

ter? A. He said, "It is a most interesting letter. Ishould like to show it to Dr. Abbott," and then put itin his pocket.

0. Did you read the newspapers of the followingmorning? A. I did.

Q. Do you remember what those newspapers con-tained with reference to Mr. Roosevelt's use of thatletter ?

5874 Mr. Bowers: I object-that should be an-

swered yes or no.The Court: I think I will sustain the objec-

tion.Mr. Ivins: It goes directly to the credibility

of Mr. Roosevelt.The Court: Oh, no; I don't see that it does.

Mr. Ivins: I think it does.The Court: I will sustain the objection.

Mr. Ivins: Mr. Roosevelt took the letter and

he didn't take it to Dr. Abbott; he gave it to

1959

Plaintiff's IFitness, William Barnes, Jr., Direct 5875

the newspaper men; he gave a report or in-terview to the newspaper men to the effectthat he had been asked by Mr. Barnes to in-corporate it in his speech.

Mr. Bowers: I think it has no proper bear-ing.

The Court: Suppose you claimed that Mr.Roosevelt stole the letter, and that Mr. Roose-velt forged a number of sentences, or addedto the letter, and that he then sold the letterso forged, to the New York Tribune; wouldit have any effect one way or the other on 5876Mr. Roosevelt's credibility in this case?

Mr. Ivins: I think if we proved that itwould certainly show that Mr. Roosevelt's cred-ibility was not worthy of attention.

The Court: You know well enough thatyou cannot prove outside, collateral, mattersby a witness, and show an independent crime,if you will, to affect the credibility of a partyto the action. I will sustain the objection.

Exception for plaintiff.Mr. Ivins: Does your Honor permit me to

put in evidence the newspapers of the follow-ing morning containing Mr. Roosevelt's inter- 5877view?

The Court: I will permit you to put in any-thing that is not objected to.

Mr. Ivins: And if it be objected to?The Court: Then I shall sustain the objec-

tion.Mr. Ivins: Then I won't put it in.

By Mr. Ivins:

Q. Now, Mr. Barnes, there has been considerabletestimony in this case with regard to your activitiesin connection with the contemplated or proposed elec-

1960

587S Plaintiff's T'itness, William Barnes, Jr., Direct

tion of an independent Democrat to succeed Mr.

Depew in the Senate, and I wish you would tell in

your own way, if it be not objected to, precisely what

you did in that connection? A. In the first place

I was in entire accord-

Mr. Bowers: I object.

The Court: Just state what you did in regard tothe Senators and Assemblymen?

The Witness-Toward the end of March, 1911, the

Senatorship situation had developed-

5879 Mr. Bowers: I object to his stating con-

clusions. I think he should state what he did.Mr. Ivins: I think he has a right to state

what the situation was.

By the Court:

Q. You may state what you understood the situa-

tion to be at the end of March?

Exception for defendant.

A. Inasmuch as the President at the time had called

an extra session of Congress to meet early in April,

and that two months of the Legislative Session had

5880 passed and no Senator had been elected to take the

place of Senator Depew, whose term of office ex-

pired on the 4 th of March, 1911, and as opinion had

grown distinctly in favor of action of some kind, I

felt that as Chairman of the State Committee, and

this situation developing shortly after my return from

Cuba, that it was wise and proper that I should en-

deavor to do what I could to bring about the election

of a Senator, and, of course, a Senator in opposition

to the management of the Democratic Party.

I talked with Mr. Stetson, who came to Albany to

my house. Mr. Frank H. Platt, the son of Senator

1961

Plaintiff's T1'itncss, Williain Barnes, Jr., Direct 5831

Platt, came there and talked over the matter. I talkedit over with various members of the Senate and ofthe Assembly, most of whom have been here andtestified, and probably you have their testimony. Itwas extremely difficult-

Mr. Bowers: That I object to as a conclu-sion.

Objection sustained.

The Witness: I talked with Mr. Stetson. He cameto me at the house in State Street; he came with alist of names which he said Mr. Franklin Roosevelt 5882and the others with whom he had been in touch per-haps would favor, and asked what I thought of them.They were Mr. Glynn, Mr. Littleton, Mr. John D.Kernan, and Mr. Thomas Mott Osborne. I am veryconfident he had the names on a slip of paper. Isaid that I would not attempt to enter into negotia-tions of any kind with the Republican Senators andAssemblymen if Mr. Glynn was to be agreed upon.I told Mr. Stetson that as far as Mr. Littleton wasconcerned that I feared that if the Republicans joinedwith the Independent Democrats, if any there were,that he would not remain an Independent Democratafter he was elected, but would join hands with Tam-many. Mr. John D. Kernan I said I was perfectlywilling to suggest tQ the Republicans. Mr. ThomasMott Osborne I said I was entirely willing to pre-sent to the Republican leaders or members.

I then sent for Mr. Elon R. Brown, whom I knewwas a close friend of Mr. Osborne's, to find outwhether Mr. Osborne would accept an election froma few Independent Democrats and the Republicans,if such a consummation could be accomplished. Hecame and reported that Mr. Osborne would.

I then sent for Senator Brackett and Mr. Merritt,and asked them if they vould come to the house.

1962


They did, and I suggested to them that possibly thesenatorial deadlock could be broken by the electionof an Independent Democrat. I expressed my atti-tude at that time as to the Independent Democratswhen it came to the test, but that was not the issue.Senator Brackett was very much in favor of havingit done; thought it was an excellent plan. Mr. Mer-ritt was opposed to the proposition, but indicated thatif the others thought it was a good thing to do, thatas the Republican leader, and being Speaker-or notSpeaker; being Republican leader, that he would talk

58S5 with them and see what could be brought about.That was about the 27th or 26th of March. Sen-

ator Brackett went to the Republican Senators andMr. Merritt to the Republican Members of the As-sembly, and from time to time told me how these menfelt. Mr. Merritt told me that the Republicans fromthe Counties of Onondaga and Monroe, Mr. Yale andPutman, and possibly others that I am not sure of,would not go into the arrangement. Senator Platt ofSteuben, came and told me that he would not go in.I know that Senator Walters of Onondaga took ex-ception to any such arrangement. If they were goingto vote for a Democrat they would choose their own.

I remember that the matter hung fire from that5 S~t~day down to the night of March 28th. I remember

Mr. Merritt's stating to me that the difficulty withthe members was that they were all right when theytalked with him, but as soon as they went away theywouldn't do it; when they came back the next timehe found them the other way. The night of March2,th, I think, Mr. Hinman came to my house-

Q. What Mr. Hinman? A. Mr. Harold J. Hin-man of Albany. And then again the attitude ofthe various Senators and Assemblymen was discussed,and also the problematical action of the so-called Inde-pendent Democrats.

1963

Plaintiff's Witness, William Barnes, Jr., Direct 5887

The next morning I discovered that the fire inthe Capitol had taken place during the night, andthere was utter and complete confusion in relation

to the Senatorship and every way. The Capitol burnedall that day at least before it was put out, conse-quently the day of March 29th was unimportant.

On the 3oth of March I wrote a letter to SenatorBrackett and to Mr. Merritt, as the respective leaders

of the Republicans in the Senate and the Assembly,which letter I gave to the newspapers, and which hasbeen produced here in evidence. I wished to set

forth- 5888


The Witness: I set forth in that letter-

Mr. Bowers: I object to his stating the con-tents of the letter.

The Court: The letter has been read.Mr. Ivins: The letter has been read and

shows for itself.

The Witness: I think it was that night of the 3oththat Mr. Sweet was in my house, and we felt verymuch-

Mr. Bowers: I object to the way they felt. 5889

The Witness: He called up Mr. Franklin D. Roose-velt, then Democratic Senator, and one who had notjoined in the Democratic caucus, as to whether therewas a continuation of the negotiations for a union

which had been begun prior to that time. He told me

that Mr. Roosevelt said he would let him know in the

morning-Senator Roosevelt; that he had thought the

matter was going to be fixed up. The next morning

I became convinced-

Mr. Bowers: I move to strike that out.

1964


The Witness: The next morning I do not recallthat I took personally any action in the situation.Senator O'Gorman was elected by the vote of theDemocrats, all of whom came together, and such ne-gotiations and attempts-

Mr. Bowers: I object to his going into that.

By the Court:

Q. Senator O'Gorman was elected, and you hadno other interviews with members in regard to theSenatorial situation? A. That closed the situation.

5891 By Mr. Ivins:

Q. Do you remember that Senator Roosevelt him-self voted for Senator O'Gorman?

Mr. Bowers: I think that is immaterial.The Court: Concededly he did. He said he

did.

By Mr. Ivins:

Q. I will now turn to the National Convention forthe nomination of a President, held in Chicago inJune of I912. Were you a delegate to that conven-tion? A. I was chosen a delegate to the Republican

5892 Convention of 1912.

Mr. Bowers: I object to that. He shouldanswer yes or no.

The Witness: Yes.

Mr. Ivins: You don't desire my friend theplaintiff to be as loquacious as your defendantwas.

Mr. Bowers: I am quite willing he shouldbe, and I make no objection to it. The more

he talks the better I like it, but I don't want

1965


to be trying issues that have nothing to do withthe case.

Mr. Ivins: You tried a good many whichhad nothing to do with the case, and I didn'tobject.

Mr. Bowers: Am I to be forced into thisdiscussion ?

The Court: I don't think so. Simply askyour questions, Mr. Ivins.

By Mr. Ivins:

Q. What position did you hold in that convention? 5894

Objected to as immaterial, irrelevant.Objection overruled. Exception for defend-

ant.The Court: I assume that you are going to

show some relation with the defendant.Mr. Ivins: I am going to show the relation

with the defendant, and the malice of the de-fendant, and the cause of the defendant'smalice.

The Court: He may answer.Exception for defendant.

A. I was a delegate at large from the State ofNew York. 5895

Q. Did you hold any position on any committee?A. I was a member of the Committee on Resolutionsfrom the State of New York, each State having onemember.

0. Whom did you favor in the convention?

Mr. Bowers: I object to that as immaterialand irrelevant.


A. William H. Taft.

1966


Q. Vho was the chairman of that convention? A.Elihu Root.

Q. Was Mr. Roosevelt a candidate before that con-vention?

Mr. Bowers: The answer, I suppose, is yesor no.

Mr. Ivins: You can answer yes or no.

A. He was voted for.Q. He was voted for in the convention? A. Yes.Q. Do you know Mr. Henry J. Allen, of Kansas?

5897 A. I think not, personally.Q. Did you meet him in the convention? A. I

saw him; I may have met him.Q. Did you hear him make a speech in the con-

vention? A. I did.

Mr. Ivins: I ask you to mark this.Page in book marked "Exhibit 242."

Mr. Bowers: I object to this as immaterialand irrelevant, and not tending to prove anyfact which is pertinent to this case.

Mr. Ivins: I offer it as showing that Mr.Allen read in that convention a letter chargingthe convention with fraud, the letter emanat-

5898 ing from Mr. Roosevelt as the source and originof the controversy between these parties andthe occasion of the malice.

The Court: I will sustain the objection. Ido not think that it shows a personal malicetoward the plaintiff.

Exception for plaintiff.(See Book of Exhibits, pages 2569-2570.)

By Mr. Ivins:

Q. When did you last talk with Mr. Roosevelt?A. At the Lincoln dinner.

1967


By the Court:

Q. Is that the conversation you have already given?A. Yes, on February I4th, 1911.

By Mr. Ivins:

Q. Mr. Loeb has testified to having met you at theoffice of J. S. Bache & Company, at luncheon, in thewinter of 1911. -Do you remember meeting Mr. Loebthere? A. No, he is mistaken.

Q. You never met him there in 1911? A. I nevermet him there in 1911; I was not there at luncheonin 1911. 5900


By Mr. Ivins:

Q. Were you ever there at luncheon in 1911 ? A.I was not.

Q. Do you remember ever having met Mr. Loebat Mr. Bache's office? A. Yes, I do.

Q. How frequently? A. Once.Q. In what year was that? A. Well, I can't re-

member, but it can't be over a year and a half ortwo years ago.

Q. It was subsequent to the election of the UnitedStates Senator, was it? A. Yes. 5901

Q. Was it six months or a year subsequent?

Mr. Bowers: He has just said it wasn't overa year and a half or two years ago.

A. It must have been after the election of 1912.

0. After the election of 1912? A. Yes.Q. You have heard the testimony of several wit-

nesses here to the effect that the meeting was afterthe election of 1912? A. I have.

Q. Do you concur with that testimony?

1968

5902 Plaintiff's IVitness, William Barnes, Jr., Direct

Mr. Bowers: I object.The Court: He has said already that was

so, that it was after the election of 1912.

By Mr. Ivins:

Q. Do you remember Mr. Loeb's testimony as tohaving had a conversation with you with regard toan arrangement between yourself and Mr. Murphyin respect to the election of a United States Sen-ator? A. I had no such conversation.

Q. I asked you if you remembered having heard

5903 him testify to it? A. Oh, yes.Q. Did you have any such conversation? A. I did

not.

Mr. Ivins: That is all.The Court: Is that all with this witness?Mr. Ivins: Yes.

The Court: Gentlemen of the Jury: It isnecessary for me now to explain the rulingswhich I made while you were out of the room.

I have held, as you will remember, that thisarticle is libelous per se. It is libelous per sebecause it charges a corrupt alliance betweenMr. Barnes as head of the Republican Party

5904 with Mr. Murphy as head of the DemocraticParty with relation to the State government.I used the word "corrupt," as I have explainedseveral times to you already, not as meaningnecessarily something connected with pecun-iary gain.

I have also held that the article is libelousper se because it charges Mr. Barnes withworking through an alliance between crookedbusiness and crooked politics.

In those two respects, therefore, I have heldthat this article is libelous; because it charges

1969

this corrupt alliance, first, and because it 5905charges that Mr. Barnes worked through analliance between corrupt business and corruptpolitics, secondly.

In justification of that libel (and when I sayjustification I mean as tending to prove thetruth of the libel itself) I have permitted inevidence, first, testimony with regard to theSenatorial situation in 1911; permitted evi-dence which the defendant claims tends toshow that Mr. Murphy and Mr. Barnes im-properly, treacherously perhaps, joined to-gether with regard to the election of the UnitedStates Senator'. That is all the evidence in 5906the case bearing upon that particular libel.

I have also permitted evidence in the caseupon the question of Mr. Barnes profiting orruling or working through an alliance betweencorrupt business and corrupt politics. Thatevidence consists in the first place of allegedadmissions made by Mr. Barnes with regardto contributions from members of both politi-cal parties under the agreement, express or im-plied, that by reason of those contributionsthey were to be protected so far as the Legis-lative and Executive Departments of the gov-ernment were concerned. 5907

I permitted evidence, secondly, to be offeredwith regard to the printing situation in Al-bany. You will see what that evidence hadto be to justify the charge. The charge wasthat Mr. Barnes worked through an alliancebetween corrupt business and corrupt politics,or crooked business and crooked politics Ithink are the words used. It would not beenough, therefore, to show that there wasfraud in the printing situation at Albany. Thatmight show that there was corrupt business.

1970

5908 It would not be enough to show that Mr. Barneswas acquainted with that fraud or profited byit. The charge was that he worked throughan alliance between corrupt business and cor-rupt politics. Therefore, in addition to thosetwo things there must be evidence in the casethat by the use of political influence this cor-ruption, if there was corruption, in the Albanyprinting matter, known (if it was known) toMr. Barnes, was brought about.

Now, I have held while you were absentthat there has been a failure to make that con-nection; that with regard to that situation the

5909 defendant has not been able to produce suffi-cient evidence to justify you in finding thatthere was corruption in the printing situation,that that corruption was known to and profitedin by Mr. Barnes, and that it was broughtabout by reason of Mr. Barnes' political influ-ence. Therefore I have taken from your con-sideration that question. I have held that asa matter of law the proof offered in that re-gard is not sufficient to allow you to say thatthe libel is justified.

So, too, in regard to various other piecesof evidence in the case. There is evidence thatMr. Barnes 4isapproved of, opposed the Hart-

5910 Agnew Race-Track Legislation, and evidence

perhaps that he induced the Senator from Al-bany or asked the Senator from Albany or ad-vised the Senator from Albany to vote againstit. There is evidence that he opposed the Pri-mary Bill. There is some evidence with re-gard to his position in the Allds matter, orthere may be some evidence (I am not quitesure) on that point. With regard to all thosematters I have held that you can not find anycorruption or crime on the part of Mr. Barnes

1971

with regard to his position. He had a perfect 5911right to oppose the Race-Track legislation. Hehad a perfect right to oppose or to supportSenator Allds. He had a perfect right to op-pose the primary legislation. There is noth-ing in his action there I have held which inany way reflects upon what he did; nothing inthat evidence which would justify you in find-ing that the libel charging him with corruptcombination with Tammany Hall or with us-ing a corrupt alliance between business andpolitics was justified.

Perhaps I had better repeat, therefore, asto what I have left in the case, so that you 5912will understand precisely what there is.

I have held that this article is libelous per sebecause it charges Mr. Barnes with havingmade a corrupt alliance with Mr. Murphy inthe State government. I have held that it islibelous per se because it charges that Mr.Barnes has made use of an alliance betweencrooked business and crooked politics. Asjustification of those two charges I have leftin the case evidence of alleged admissions madeby Mr. Barnes as to contributions receivedunder an implied pledge, and evidence as toMr. Barnes' position and action in the Sena- 5913torial contest.

In ruling in that way, you understand, ofcourse, that I express no opinion as to thetruth of the evidence in the case or as to thetruth of those charges. I am going to leaveit for you to say whether there was such animproper receipt of contributions, or whetherthere was an improper alliance with regard tothis Senatorial matter. But I have strickenout this other evidence because I regard it asinsufficient to go before you, and I am going

1972

5914 to ask you gentlemen to disregard, put fromyour minds entirely this evidence which I havestricken from the case.

I have told the attorneys for the plaintiff,therefore, that I would not permit them to ex-amine Mr. Barnes with regard to any of thesematters which I have stricken out. They areimmaterial. I will not permit them to ex-amine him with regard to the printing situa-tion or with regard to these other matters whichI ask you to disregard.

I should say to you also that in striking outthis evidence no reflection is cast upon the at-

5915 torneys for the defendant or their conduct inoffering it to the Court. There was a greatdeal of it; it was complicated; it consisted ofa great many disconnected circumstances whichhad to be taken together and the proper in-ferences drawn from them, and no one couldtell at the beginning whether or not it wouldfinally become competent. The defendant'sattorneys offered it believing that it would bemade competent, believing still that it is com-petent and that I erred in striking it out. Butat least, whether I am right or wrong, thereis no reflection to be cast upon them or upon

5916 their side of the case by reason of my action.

Mr. Bowers: We don't have to takean exception to this statement?

The Court: No. You don't need eitherof you to take an exception to this state-ment. You will take your exceptions whenI charge the jury.

Recess to two o'clock P. M.

1973

Plaintiff's Witness, William Barnes, Jr., Cross 5.917

Afternoon session, Friday, May 14, 1915.

WILLIAM BARNES JR., the plaintiff, recalled.

Cross-e.xamination by Mr. B'owers:

Q. If you will be a little more specific as to whereyou were in the months of January, February andMarch, 1911. To begin with, where were you onthe Ist of January? A. The first of January I musthave been in Albany.

Q. In Albany. How long did you remain in Al-bany? A. I suppose about a week or ten days, two 5918weeks. I can't remember exactly.

Q. Did you remain in Albany until after you had

been elected Chairman of the State Committee? A.No; I went to New York about a week before elec-tion.

Q. How long did you stay in New York? A.Until I was chosen chairman.

0. Did you attend a meeting when you were chosenchairman? A. I did.

0. Then as I understand it, you were in Albanyfrom January Ist until about the 14th? A. Yes,sir.

Q. Then you went to New York for a week, and 5919then you returned to Albany? A. Yes, sir.

Q. How long did you stay in Albany then? A.That was the time I was ill with quinsy; I stayed

there until I went to the dinner of the organizationof the Republican Club.

Q. You stayed in Albany until you went to the

dinner of the Republican Club which was given inNew York? A. Yes, sir.

Q. What date was that? I understood you to say

.that was the i4:th of February? A. I think that is

the date.Q. Was it a Lincoln Birthday celebration? A. I

think that was given that year on the i4th.

1974

5920 Plaintiff's WIitness, William Barnes, Jr., Cross

Q. Then how long were you in New York? A. Idon't know. I went to Cuba three or four days there-after.

Q. And you returned from Cuba I think you saidabout the Ist of March? A. Yes, sir.

Q. Then you went to Albany? A. I assume so.Q. And were in Albany all through that month?

A. No; I was at the office of the State Committee,back and forth.

Q. \Where is the State Committee, New York? A.43 West 39th Street.

5921 Q. You went back and forth between Albany andNew York all through March. Is that right? A.Yes, sir.

Q. During that period of time, except when youwere in Cuba, I suppose you were attending to yourordinary business affairs, as a journalist and as StateCommitteeman, is that right? A. Certainly.

Q. Now, you stated very frankly your connectionin certain particulars in your direct-examination withthe Journal Company; at least, in 1899, you acquireda controlling interest in the stock, and from that timeon you remained the president of the company? A.Yes.

5922 Q. And had charge of its editorial policy? A.Yes, sir.

Q. You did a certain amount of writing yourself?A. I did.

0. And you exercised what you deemed sufficientsupervision over the rest? Is that right? A. Ex-actly.

Q. That course you continued concerning that pa-per, whether you were in Albany or whether you werenot? That is, you kept your supervision and gen-eral management of it? A. Yes, sir.

Q. Were you more concerned in the editorial de-partment of the paper or the business policy of the

1975

Plaintiff's Witness, William Barnes, Jr., Cross 5923

paper? A. My principal activities were in writingand supervising the policy of the paper.

Q. The policy of the paper, naturally, that meansto supervise the news department, seeing that it waswell run and the editorial also? A. Yes, sir.

Q. And the management of the paper, by that Imean, and I have no doubt you understood it so,that was the circulation, and the business that it did,in the way of advertising and whatever business itdid? You gave more attention, as I understand you,

to the editorial policy and the general news characterof the paper than the actual business manipulation. 5924

Is that right or wrong? A. It is pretty hard to sayhow much I gave to one and how much to the other.

Q. You gave what was necessary to either, didyou? You gave what was necessary to both? A. I

suppose so.Q. Was there any doubt about that? A. The word

"necessary" may mean a good many things.

0. What you deemed necessary? A. I certainlydid what I did.

0. You managed the paper? A. Yes, sirQ. According to your ability in both departments

then, giving it personal touch where necessary andsupervision, where that was sufficient? Is that right? 5925A. Yes, sir.

Q. Is that right? A. Well, I can't say. As Presi-

dent of the Journal Company I performed the usual

functions of the president of the company. I was

editor of the paper, and general manager of its edi-

torial and news policy; was particularly at the officemost every day except when I was chairman of the

State Committee, when I was not. At that time, I

was back and forth from New York to Albany.

0. Even then you gave supervision to the paper,

in the editorial policy? A. Certainly.

1976

5926 Plaintiff's TVitness, William Barnes, Jr., Cross

Q. Now, as to the business part of the paper, didyou give that attention? A. Attention, certainly.

Q. Did you give it as much attentior as you didto the editorial and news department? A. I can'tanswer that question. It would be impossible tomake a mathematical-

Q. You very frankly stated in answer to your coun-sel that you as the man in control, did not permitthose who were employed to suffer or bear burdens,but that you took it on yourself; is that right? A.I spoke of the editorial policy.

5927 Q. That is to say, you assumed the responsibilityfor that work, whatever it was? A. I stated thatI would not let them suffer because of their connectionwith the paper.

0. That means because of any articles that theywrote? A. Yes; libelous articles; anything of thatkind.

Q. Now, then, wasn't there another reason forthat? Isn't the public somewhat interested in know-ing that the paper is well conducted and managed withjudgment and care, that its editorial policy does notvascillate from day to day? It is almost necessary,isn't it, for an important paper to be in that posi-

5928 tion? A. That would be my idea of it; a greatmany papers are not so conducted.

0. That is your idea of the way a paper shouldbe conducted, isn't that right? A. Yes, sir.

Q. And you put that idea into practice to the bestof your ability all these years, with the Journal? A.Tried to pursue a consistent policy.

Q. And you did it according to those ideas, didn'tyou? A. Yes, sir.

Q. There is no doubt that the paper is a paperof very considerable influence in the State of New

York. I will say that; I have no doubt you will ac-

quiesce in it? A. I do.

1977


Q. Not only for its news policy but also for itseditorial management? A. Yes, sir.

Q. It has in a way been a power in a part ofthe State, doubtless in the Republican Party. Thatis right, isn't it? A. I don't know how much influ-ence it has had.

Q. It is intended to have influence, we will say,then? A. The object of an editorial article is, ofcourse, to influence the mind.

Q. That has been so since the early days, evenbefore you became closely acquainted with the paper?It was an important part of the newspaper life of ,5930the State? A. In the early days, of course Albanywas a very much larger city in proportion than itis today.

0. That and the Argus were very important papersfor years and years back? A. Yes.

0. And one of them sustained in great part theRepublican Party and the other the DemocraticParty? A. Yes; that is correct. The Argus sup-ported Mr. McKinley in 1896.

0. It has broken away at times, but I mean to saythat that was the history of those papers. One wasregarded as the Democratic organ published at Al-bany and the other the Republican organ? A. Yes, 5931sir.

0. And I am sure that it went back to the daysbefore the Republican Party was in existence whenThurlow Weed was there? A. It was a Whig paper.

Q. That is the general course that you have pur-sued and were pursuing from 191 I, in your manage-ment of that paper, its editorial and news part? A.Certainly.

Q. Will you kindly look at the paper I show you,marked Exhibit 235, and tell me if the article headed"Dignified Republican Position" and containing this

statement:

1978

5932 Plaintiff's Witness, William Barnes, Jr., Cross

"It has been suggested by members of the Republi-can minority that they are wasting time in voting

for Senator Depew; that it would be a good idea to

vote for Mr. Shepard, Mr. Schurman or some other

man whose character has not yet been abused because ofhis occupancy of public office. The Hon. James A.

Emerson is credited with remarking yesterday that the

Republican members of the Legislature were the laugh-

ing-stock of the state. No one had seen it in that lightexcept Senator Emerson.

"The duty of the Republican members of the Legis-

5933. lature is to vote for a Republican candidate for

Senator, the caucus nominee. Their position todayis entirely tenable and proper. If they should beginto gyrate and make an exhibit of personal antagonismand personal ambition similar to that Which the De-

mocrats are showing, they would justly become, as

well as the Democrats, the laughing-stock of the

state." Was that publication made at the date there

specified and is it an editorial of the Journal? A.

It certainly is.Q. And what is the date? I think I said February

Ist? A. February Ist, 1911.

Mr. Bowers: I will offer that article in evi-

5934 dence. It has been marked.Mr. Ivins: There is no objection.

Mr. Bowers: I will read the rest of the ar-

ticle:

"Dignified Republican Position.

"One of the important functions to be exercised,

probably the most important function of his office as

a member of the Legislature, which each senator

and member of the Assembly of 1911 is called upon

1979

Plaintiff's IWitness, Villiam Barnes, Jr., Cross 5935

to perform, is to vote for a candidate for UnitedStates senator in accordance with the perogativevested in him by the constitution of the United States.

"The Legislature of New York is made up of onehundred and fourteen Democrats, eighty-four Re-publicans, two members of the Independence LeagueParty, and one Independent Democrat.

"Ninety-one Democrats caucused on various possiblecandidates for the United States senator, and Mr. Will-iam F. Sheehan received a majority of the votes andbecame the candidate of all the Democrats. TheRepublican members of the Legislature caucused and 5936selected Senator Depew, and he became the caucuscandidate of the Republicans. Twenty-three of theDemocratic members have refused to abide by thedecision of the caucus, and have voted for variouscandidates against Mr. Sheehan."

The rest of it I already read.

By Mr. Bowers:

Q. I bring to your attention an article which I havehad marked Exhibit 243. 5937

Newspaper article marked Exhibit 243.

Q. (Continued.) And ask you whether that is aneditorial published in the Albany Evening Journal ofFriday, January 13, 1911? A. You don't mean meto read it?

Q. No; there is no doubt of its being so? A. Cer-tainly.

Mr. Bowers: I offer it in evidence.Mr. Van Benschoten reads article from the

Albany Evening Journal, Friday Evening, Jan-uary 13, 1911, to the jury.

1980

5938 Exhibit 243

"The Old Hypocrisy.

"That officials chosen by the people should performthe functions for which they were elected under theconstitution and the laws, and no other, is their plainduty.

"That the people should educate themselves to re-gard their public officers as their servants for thispurpose is their plain duty.

"For public officers and the people to adhere tothese ideals of the American form of governmentis not easy, because between the passion of personal

5939 ambition and the pride of opinion, sense of officialduty recently has been lost.

"The contest between William F. Sheehan and Ed-ward M. Shepard to represent the state of New Yorkin the United States Senate has aroused vital interest,and, as one of the candidates appears to be largely inthe lead, against him is directed the acrimony of thosewhose pride of opinion is apparently about to be out-raged. It is provided by the constitution of theUnited States that the Legislature of the state ofNew York shall choose United States senators, yetnewspapers assuming to be conservative, have ex-pressed the following opinions:

5940 "Front the New York 'Evening Post.'

"-To reject a man like Mr. Shepard and to takeup a man like W. F. Sheehan is, in the first place, toinsult the Democratic governor, to hamstring hisadministration, and to advertise the Tammanyizingof the state. It is also a notification to the Demo-crats of Ohio and New Jersey and Mlaine that theycan expect no co-operation from New York in the

effort to put forward reputable men in order to pre-

pare for the presidential election of I912. In the

next electoral college, New York may have, under the

Exhibit 243 5941

new census, as many as forty-five votes. They are ab-solutely essential to any hope of Democratic success. ** * It is not a question of Governor Dix attempting to

dictate to the Legislature. He need not declare him-self for any particular candidate. But the mere in-stinct of self-preservation, to say nothing of the re-sponsibilities of leadership and a desire not to seehis party wrecked before it leaves the harbor, shouldimpel him swiftly to make it clear that he is stronglyagainst allowing the senatorship to go as a Tammanypicking and stealing, and the election of a man whosesuccess would be to the party throughout the nation 5942a signal of despair and defeat. Is Dix at the capi-tol going to show less manhood and less patriotismthan Gaynor at the city hall in defying Murphy?

"From the Ne-w York 'Times.'

"Governor Dix may with perfect propriety, forthe guidance and the good of his party, declare who,in his judgment, should be elected Senator.

"These should be scanned. If the Democraticcaucus, representing a majority of the Legislature ofthe state of New York, was about to select EdwardM. Shepard as its choice for United States senator,and Governor Dix should intervene so that a sufficient 5943number of those favoring Mr. Shepard in deferenceto his wishes should change their point of view tosupport Mr. Sheehan, Governor Dix would be chargedwith usurpation and coercion by the newspapers abovenamed, but now they call upon him to 'save' theDemocratic Party and the nation from the terriblecatastrophe of the election of Mr. Sheehan.

"Who is the judge to say that Mr. Sheehan is lessfit to be senator of the United States than is Mr.Shepard? It is provided that the Legislature shall-determine that matter. But it is assumed that Mr.*Shepard is 'good' and that Mr. Sheehan is 'bad.'What is the record?

1982

5944 Exhibit 243

"Mr. Sheehan is generally remembered politicallyas a part of the last Democratic administration ofaffairs in this state which went out of power with-out great mourning on the part of the people. Hewas engaged in the passage through the Legislatureof a bill which took from Mayor Bishop of the Cityof Buffalo the power to appoint a police commis-sioner, and lodged the power with Comptroller Gavinof that city, in order that the political operations ofthat department might be sympathetic with theSheehan following in Buffalo and opposed to the

5945 Cleveland following. Such legislation in those dayswas frequently enacted, but intelligent, righteous pub-lic indignation was aroused against it, so that today aproposal of that character would be laughed out ofthe Legislature as a joke. Mr. Sheehan was a pro-duct of the Democratic politics of that time. He wasa forceful and ready fighter against men who usedthe same weapons that he found effective, and hewon and lost in the kind of warfare which any activeman in political life at that time was bound to recog-nize or be eliminated. Since that time he has prac-ticed law in the City of New York. He was largelyinfluential in securing the nomination of Alton B.Parker for President in 19oo, upon a gold standardplatform, in order to protect the Democracy fromthe absurdities of Bryan. He is a practical man, inthe Roosevelt definition of that term.

"Who is Edward M. Shepard? A student of poli-tical history, a Democrat who has supported the Re-publican ticket many times within recent years, whowas Richard Croker's candidate for Mayor of NewYork in 19Ol, but was snowed under, who as a law-yer organized the Central Leather company, an off-shoot of the 'Beef Trust' and is today its counsel.

.When counsel to the board of rapid transit com-

1983

Exhibit 243 594 T

missioners of the city of New York, he advocatedat Albany the passage of a law which in effect grantedthe Pennsylvania Railroad company a perpetual fran-chise in the city of New York,-a franchise whichunquestionably was in the interest of progress andthe people of New York-but shortly thereafter re-signed as counsel to the board of rapid transit com-missioners and became counsel to the PennsylvaniaRailroad company at an annual retainer, it is said, of$25,ooo and counsel fees. But Mr. Shepard is knownas a reformer, while Mr. Sheehan is known as a poli-tician. 5948

"In statements issued to the public, both Mr.Sheehan and Mr. Shepard, with the exception of thesops to Cerberus which they threw regarding the in-come tax and the popular election of United Statessenators, indicate that their attitude toward publicaffairs in this country is similar, and must necessarilyobtain, if this government is to survive. No patrioticAmerican citizen could do otherwise than subscribe tothe platform of principles which both these candidateslaid down upon which to make their presentment tothe public mind. Each apparently believes that theDemocratic party is tired of the hysteria of the pastfew years and wants men of constructive and con- 5949servative quality in the United States Senate. NeitherMr. Shepard nor Mr. Sheehan in his platform ofprinciples or in his personality represents the Bryanor the Hearst idea in politics. We doubt very muchwhether either of them could rally great supportin a Democratic primary state-wide as against Mr.Hearst. We are sure that Mr. Shepard's supportwould be insignificant. His character as a man, hisapproach towards public affairs, his personality, allare unappealing to the natural Democratic voter.Mr. Sheehan is far more to his liking, but his con-

servative tendencies, his willingness to protect capital

1984

5950 Plaintiff's [Fitness, William Barnes, Jr., Cross

from destruction, his natural antagonism to hypo-crisy and demagogy would leave him, unless sup-ported by a strong party organization, helpless in adirect primary before the cheap demagogic argumentsof a Hearst.

"There is something ludicrous in this situation. Itis amusing to see Mr. Thomas M. Osborne, chief ad-visor of Governor Hughes, attempting now to dictateto the Democratic caucus. Mr. Osborne, like manyothers, is a type of that class of politicians who be-lieve that the constant reiteration of a moral principle

5951 justifies their control of all political situations, nomatter which political party is in power. In this re-spect Mr. Osborne is simply a type which professesto represent the independent vote, which it is claimedwould be outraged if Mr. Shepard was not electedsenator. Governor Dix apparently intends to mindhis own business. Being too busy, has already madeWoodrow Wilson and Eugene N. Foss back numbersin political life. The hypocrite in politics is as activearound the executive chamber as he was under theadministration of Governor Hughes, but apparentlyis not receiving the same encouragement. This initself ought to be a satisfaction to every liberty-loving

5952 man in the state of New York."

By Mr. Bowers:

Q. I show you a paper which has been markedExhibit 244-

Copy of editorial marked Exhibit 244.

Q. (Continued.) And ask you whether that is aneditorial published in the Albany Journal of Januaryi8th, 1911? A. Yes. It is.

1985

Exhibit 244 5953

Mr. Bowers: I offer it in evidence.Mr. Ivins: No objection.Mr. Bowers (reads):

"An Exploded Theory.

"When Thomas M. Osborne resigned his office of

public service commissioner, he wrote a letter to

Governor Hughes, in which he said, in effect, that

he believed he would be more useful to the cause of 5954

good government if from that time on he devoted all

his energies to the uplift of the Democratic party,

so that if that party came into power at the then com-ing election, he would be there to guide its destinies

and protect the honor of its name."Mr. Osborne's first essay since election is to take

twenty-four men out of the Democratic caucus andtie up the Democratic majority so that the fires ofparty discord are now burning brightly throughout

the state. Mr. Osborne would save the Democratic

party from itself, divest it of the skin of its naturalexpression and clothe it in a garment of such delicate

color of pale blue or light pink, as would make the 5955

Hon. Timothy D. Sullivan guffaw vociferously. Mr.

Osborne and his kind represent that element in the

Democratic party who are Democrats when it pleases

them, but who at heart have no sympathy with the

mass of the Democratic voters, and who believe that

the party should be constantly cleansed and purified

by them. It is quite natural that the great majority

of the Democratic voters, all self-respecting citizens,

do not take kindly to this constant political bath, and

courteously ask Mr. Osborne for his credentials as

Head Washer.

1986


"Those Democratic members of the Legislatureelected from districts which are normally Republicanmay believe it was some inherent merit in them whichsecured for them Republican votes. If they do, theyare greviously mistaken. The Republican votes castfor Democratic candidates in the fall of I9io wererebukes to Republican management or Republi-can candidates and were in no sense a relinquishmentof the party faith. The theory upon which Mr.Roosevelt acted, that to hold together the Republicanparty was to take up Democratic doctrine, has been

5957 exploded. It did not work well with the Republican

party; a kindred doctrine cannot work well with theDemocratic party.

"Party government, party responsibility, are thereal safeguards of republican institutions."

Paper marked Exhibit 245.

By Mr. Bowers:

Q. Was the Thomas Osborne referred to in thoselast two articles the same Thomas Osborne whosename was suggested to you by Mr. Stetson? A. The5958same man.

Q. I. show you an article, I don't know whether itis an editorial or news article-an editorial, and askyou if you can identify that as an editorial publishedin the Journal: "No need for apology," the secondarticle? A. That is a copy of the page. It is all right,I think.

Q. Shall we take that as a news article or an edi-torial? A. It is an editorial.

Mr. Bowers: I offer it.Mr. Van Benschoten reads editorial from the

Albany Evening Journal of February 6, 1911,to the jury.

1987

Exhibit 245 51(59

"No Need for Apology.

"The Hon. Charles F. Murphy in a quoted state-ment says as follows:" 'I would like to make clear that I was never at

any time pledged to Mr. Sheehan before the caucus.That was shown by the fact that at the many confer-ences held on the Friday, Saturday and Sunday be-fore the caucus on the Monday the Sheehan men offeredto withdraw their candidate if the men behind Mr.Shepard would withdraw his name. This suggestionwas made in the interest of party harmony. I had 5960nothing to say in the situation one way or the other.I merely wanted to see brought about the harmonythat was being worked for, but the Shepard men re-fused to withdraw, with the result that Mr. Sheehan'sname was presented to the caucus and he waselected.'

"Such a statement may be useful in bringing abouta termination of the deadlock in the United Statessenatorship matter, which admittedly is not advantage-ous to Democratic prospects; but why, in the inter-est of party harmony prior to the caucus, shouldeither Mr. Sheehan or Mr. Shepard have withdrawnfrom the contest? There were at that time but two 5961candidates for the senatorship and there were 114Democratic members in the Legislature, and unlessthey were equally divided, fifty-seven to fifty-seven,between Mr. Sheehan and Mr. Shepard, there can beno logical reason advanced why Mr. Sheehan or Mr.Shepard should have retired in the interest of har-mony.

"Had it developed that Mr. Shepard and Mr.Sheehan each received fifty-six votes of the 114 Demo-cratic ones a request upon Mr. Shepard to withdrawin the interest of harmony would have been absurd.It turned out that Mr. Sheehan had some sixty votes

1988

6,962 Plaintiff's 11Vitness, William Barnes, Jr., Cross

out of 114, so that request upon him to withdraw inthe interest of harmony must have been absurd.

"Sheehan, Shepard, Parker, Kernan, Van Sant-voord, or the other men whose names have been votedon for the United States senator, all look alike tothe people of the state. There is no merit that onepossesses over another, which has any particular sig-nificance, inasmuch as they all stand for the samekind of Democracy, conservative, hard-headed Democ-racy; not socialistic Democracy, not progressive-Rooseveltian Democracy; but plain, hard and fast

5963 Democracy, which would appeal to William L. Marcyor Martin Van Buren.

"If the issue were joined in Albany between aDemocrat representing that spirit of demolition whichhas kept the party alive or dead, whichever it may be,since 1896, and a Sheehan or a Shepard, there mightbe reason for great party interest in this contest. Asit is, it is merely a tempest in a teapot; a small, nastyrow about 'bosses' and 'insurgents,' and the possibi-lities of future careers emanating from .the hope thatin an appearance of courage, regardless of motive,there must come political popularity and reward.

"We are ashamed of Mr. Murphy. We thoughthe was a boss worthy of the name. His statementis weak. Why should he apologize for Mr. Sheehan'scandidacy ?"

By Mr. Bowers:

Q. The Mr. Murphy there referred to is the sameMr. Murphy who is referred to. in the article in suitin this action, is he not? A. He is.

The Court: Did you say, Mr. Barnes, you did notidentify the last one?

1989


The Witness: Yes, I did. I think I made a mistake.He read two articles from the same sheet, I think.

By Mr. Bowers:

Q. I do not think so. It is all in one? A. I iden-tify it, anyway.

By the Court:

Q. You did identify them? A. Yes, sir.

Editorial marked Exhibit 246.

By Mr. Bowers: 5966

Q. I show you Exhibit 246 and ask you if thatis an editorial from the Albany Journal of Saturdayevening, April I, 1911? A. That is correct.

Mr. Bowers: We offer that.Mr. Ivins: I object to that on the ground

that it is after the fact, purely historical incharacter. It has no relation to the questioninvolved here.

The Court: March 22?

Mr. Bowers: April ist.Mr. Ivins: That March 22, refers to Thur-

low Weed, some half century before.The Court: I think that the only part that

is of any importance is that part that I have

marked.Mr. Ivins: I object to it as irrelevant and

immaterial, incompetent, after the fact, his-

torical in character, having no reference tothe subject-matter. I take my exception.

The Court: I admit only the part which

states that Mr. Murphy was the leader of the

State, the Democratic leader.Mr. Bowers: We note an exception to the

refusal to admit the rest.

1990


The Court: Very well.Mr. Van Benschoten (reading): Extract

taken from an editorial in the Albany Even-ing Journal, Saturday, April 1, 1911. Theeditorial is entitled "What the Contest hasDeveloped."

"Mr. Charles F. Murphy was recognized at Ro-chester as the head of the Democratic state organiza-

5969 tion and the leader of the Democratic party in thisstate. He was commended for his wisdom in theselection of a conservative and careful Democrat asthe candidate of the party for governor. Electorsknew, when they chose Mr. Dix for governor, anda Democratic Legislature, that they were placing inthe hands of Mr. Murphy extraordinary power. Mr.Murphy early exhibited false conceptions of what lead-ership means, in the violence with which he an-nounced Mr. Sheehan's candidacy when he left forAlbany in triumph with a host of retainers from theGrand Central station."

5970

By Mr. Bowers:

Q. You had knowledge, did you not, of Mr. De-pew's nomination as the Republican candidate forGovernor at the time it was made?

The Court: For Senator.

By Mr. Bowers:

Q. For Senator, at the time it was made? A. Cer-tainly.

Editorial marked Exhibit 247.

1991

Plaintiff's WFitness, William Ba'nes, Jr., Cross 5971

By Mr. Bowers:

Q. You knew, did you not, that in the absenceof another caucus it was the duty of the Republicanmembers of the Legislature to continue to vote forSenator Depew? A. I think you will have to repeatthat.

Q. (Question read by stenographer.) A. It cer-tainly was.

Q. Now, I ask you whether it was your view atthat time, in 1911, that "When a man elected to of-fite as a Republican, or as a Democrat, becomesan insurgent, he thereby confesses that he obtained his 5972office under false pretenses, since, if he had declaredhis intention to stand for individualism in politics,before the nomination was made, he would not havebeen nominated; or if he had made such declarationafter the nomination, but before the election, he wouldnot have been elected ?" A. What is the question?

Q. I want to know whether that was your view atthat time concerning the insurgents? A. Is that aquotation from the Albany Evening Journal?

Q. I intended to read it as such? A. That I do notknow.

Q. I thought perhaps it would refresh your recol-lection or you would recall it without- 5973

Mr. Ivins: I object to that as being entirelyspeculative, hypothetical, immaterial, irrele-vant, calling for a conclusion, and referring toan article in a newspaper dated after the event,and wholly historical, and philosophical in itscharacter.

The Court: He does not refer to the articlein the newspaper, he asked him if that washis view at the time of the election.

Mr. Ivins: He does not state during the year1911.

1992


The Court: That was the time of the elec-tion.

Mr. Ivins: He should cover the particularperiod.

The Court: Well, he may answer.

By Mr. Bowers:

Q. You are entirely at liberty to look at this paperand refresh your recollection? A. Is the question, didI believe that when I wrote it?

Q. Yes.

5975 The Court: Not whether you believed itwhen you wrote it or not, did you believe itbefore that time, or during the election forUnited States Senator?

A. Did I believe it? I certainly did.

By Mr. Bowers:

Q. That article was intended to refer, was it not,to the Democratic insurgents in the Senatorial cam-paign at Albany in 1911 ? A. It was intended to referto any movement or any men in a Legislative bodywho do not co-operate with the party by whom theyare elected.

5976 Q. The principle was intended to stand for that?A. The principle involved in Legislative bodies andconventions.

Q. It was announced at the time, was it not, ofthe particular action of the Democratic insurgents inthat campaign? A. That made it pertinent.

Q. The date of this article was April 7th, 1911.You may look at it. Is that right? A. Yes, that isright.

Q. You were there in Albany, or in New York dur-ing the time of the publications which I have brought

1993

Plaintiff's WTitness, WFilliam Barnes, Jr., Cross 5977

to your attention this afternoon? A. I think therewas one of them when I was away.

Q. Now, we will take the dates? A. I do not knowthat it makes any difference. I am entirely respon-sible for them, Mr. Bowers.

Q. I would like to ask whether you held, throughthe month of January-through the year 191i, thisview. When a man accepts a nomination-

Mr. Ivins: If you will permit me, I object tothe cross-examination of this witness as to hisviews. His views are not an issue here. Theother witnesses have not been examined in 5978regard to their views. I cannot recall him andhave him go through an extended line of ex-amination in regard to his views.

The Court: Did not you examine the de-fendant somewhat lengthily about his views?

Mr. Ivins: In so far as he testified to them.I gave him all the line he wanted and after hehad testified I cross-examined.

Mr. Bowers: You allowed him all the linehe wanted and he was glad to take it.

The Court: I allowed a very liberal cross-examination of the defendant, and I am goingto allow a very liberal cross-examination of 59)79the plaintiff.

By Mr. Bowers:

Q. Was it your view, in 1911, that if a man ac-cepted nomination from a party he thereby took uponhimself the obligation to stand for the policies andprinciples for which the party stands and to followthe course taken by the majority. Did you hold thoseviews in that year? A. When a member of the Legis-lature takes-

Q. No, when a man takes any office, accepts anynomination and allows his name to be used, is it your

1994


view that it is his duty thereupon to stand not onlyfor the policies and principles of his party, but tostand as the majority determine? A. As a generalprinciple, of course.

Q. And further, was it your view in that year,that if a man is not willing to assume that obliga-tion he has no right to accept the nomination? A.That principle is good, yes.

Q. The principle is good, is not it, and you heldthat principle in those days? A. Certainly.

Q. That was applied to Republicans, Democrats,

5981 Socialists, any political party? A. It should applyto everybody.

Q. Is it further your view that he could not, afterbeing elected to office, assume the right to take an in-dependent attitude towards matters as to action uponwhich the majority of his party have agreed? Didyou hold those views in 1911 ? A. That is too gen-eral for a direct answer.

Q. I will make it more specific. Was it your viewin 1911, that a man having been elected a member ofthe Legislature, either Republican or Democrat, wasbound to have accepted the caucus action of his partyon any question, on any political question? A. Oh,

5982 no, I do not say that.Q. Was it your view that he was bound to have

accepted the judgment of the majority on such a politi-cal question as the election of a United States Sena-tor? A. Why, certainly.

Q. Was it your view at that time that as a repre-sentative of the party from which he had received hisnomination, he had not the right to set his individual,honest preference against the will of his party asso-ciates on such R. matter as the election of a UnitedStates Senator? A. I have already testified that that,as a general principle, of course is the correct prin-

ciple.

1995

Plaintiff's WVitness, WVilliam Barnes, Jr., Cross 5983

Q. And that principle was applied in this article andmade pertinent by reason of the attitude of the in-surgents in the Democratic Party in the Senatorialcampaign of 1911 ? A. Certainly.

Q. You heard the testimony of Elon R. Brown,Senator Brown, yesterday? A. I was not here whenMr. Brown testified. I have not read his testimony.

Q. And you know Mr. Brown? A. I do.Q. Have you heard what his testimony was? A.

I think not. No, I do not think I have, at all.Q. Do you recollect whether Mr. Brown called up-

on you in the early part of February, 1911, concern- 5984ing the Senatorial campaign? A. He talked with me.

Q. Well, he talked with you? A. I think he cameto the State Committee office.

Q. He came to you? A. I think so.Q. And did he talk with you concerning that cam-

paign? A. He told me that-Q. No, just answer yes or no? A. Talked about

what?Q. Did he talk with you concerning the Senatorial

campaign? A. That was the subject, yes.Q. Now, did he open the subject? A. I think so.Q. You had not sent for him? A. No.Q. That was before you went south, before you 5985

went to Cuba? A. I think so.Q. If I- A. I do not see how it could have been.Q. If I were to tell you that Mr. Brown's testimony

was to the effect that it was early in February, wouldthat assist your recollection? A. That might have

been right after the dinner. I was in New York three

or four days.Q. You mean right after the Lincoln Dinner on the

I4 th? A. Yes, sir.Q. And within three or four days? A. I should

think so.

1996


Q. Your best recollection is that you did not go toCuba before the I8th of February? A. It was threeor four days after the dinner.

Q. The dinner was on the I 4 th, we will say, andthat would have been the 17th or 18th? A. I shouldthink in that neighborhood.

Q. You think he may have called between the I4 thand I7th, possibly, and he may have called earlier?A. It was not in New York. It was in Albany.

Q. I thought you told me you were in New Yorkand Albany, off and on. A. Not at that time. That

5987 was in March.Q. I see where I am mistaken. Were you in Al-

bany the first ten days of February? A. Yes, sir.Q. You went to New York about the I 4 th? A.

Yes, about the time to go to the dinner. I think Iwas ill three weeks.

Q. Your best recollection is that you must haveseen him while you were down there for the dinner?A. I think he may have seen me in March, when Ireturned from Cuba, or he may have seen me betweenthe 14th and i8th.

0. If he saw you in February it must have beenbetween the 14 th and 18th? A. Yes, I think so.

5988 Q. Do you remember what he said to you? A. Ido not remember it very well.

Q. Do you remember the subject-matter? A. Well,it was with regard to Mr. Carlisle.

0. That is right. A. Mr. Osborne wanted him tosee what could be done for Mr. Carlisle, to see if theRepublicans would do anything.

Q. This Mr. Osborne you referred to is the samegentleman- A. Yes, the same gentleman.

Q. The gentleman referred to as the man "too goodfor his party," I think it was, referred to in theseeditorials? A. Thomas Mott Osborne, of Auburn.

1997

Plaintiff's WI'itness, William Barncs, Jr., Cross 59S9

Q. l\r. Brown called and asked you about Mr.

Carlisle at the request of Mr. Osborne, is that what I

understand your recollection is? A. I think so.

Q. Well, what did he say? A. I cannot very much

remember about that. He said-I do not think I cantestify to what he said.

Q' Did you know who Mr. Carlisle was? A. I

do.Q. Did you then? A. Yes.

Q. Did you know him as a Democrat? A. I did.

Q. Now, was not the subject-matter of Mr. Brown's

visit to you to suggest to you that the Republicans 5990

should vote for Mr. Carlisle for United States Sena-

tor? A. I think he came as a messenger, I think

from Mr. Osborne.Q. Asking- A. That is, he was Mr. Osborne's

agent.

Q. Well, call him Mr. Osborne's agent. A. He

came with a message from Mr. Osborne.Q. Now, was that message asking whether, in some

way or another, Republican legislators could be in-

duced to vote for Mr. Carlisle, Mr. Elon R. Brown's

partner; was that the subject of the message? A.

Yes, for Mr. Carlisle.

Q. What did he say? A. He came as an agent 5991

from Mr. Osborne to see whether I would do anything

with the Republican members of the Legislature to

assist in the election of Mr. Carlisle.

Q. Now, what reason had he to suppose you could

do anything with the Republican members of the

Legislature in that regard?

Mr. Ivins: I object to that.

The Court: That will hardly do.

Mr. Ivins: Calling for the conclusion of the

mind of a third party.Mr. Bowers: I will put the question in an-

other form.

1998


Q. Was the message simply that you were to dosomething, they wanted you to do something? A.

Certainly.Q. What was it that you were wanted to do? A.

To see whether I could influence the Republican mem-

bers of the Legislature.Q. To vote for Mr. Carlisle? A. Why, certainly.Q. Had you ever received a request of that kind

before from anybody? A. I think I received one ortwo every day about something.

Q. Something to be done in the way of legislation?5993 A. In regard to this Senatorship matter. Whenever

I was there it was the subject of -constant discussion.Q. Up to that time had you received any messages

of the character that I have spoken of, suggesting thatthe Republicans- A. I cannot answer.

Q. When you say "every day" you received mes-sages do you limit that to the Senatorial contest? A.

Oh, no. I did not say messages, either. If I did, Imeant to say advice.

Q. What did you mean to say? A. I meant to say

it was the subject of constant-Q. Constant what? A. Consultation, advice, etc.,

as to what course I should pursue.5994 Q. What course you should pursue? A. Yes, that

I would pursue.Q. As what, as member of the Legislature? A. I

don't know. I did not pursue it.Q. You were constantly subject to inquiries made

concerning the Senatorial election? A. Personal con-

versation, yes.Q. You used the word, did you not, "messages,"

or "inquiry"? A. I mean personal conversation, such

as Mr. Brown's. Mr. Brown came as agent of Mr.

Osborne, and I testified to what-what I say is that

probably during the month of March I was constantly

1999

Plaintiff's I Fitness, William Barnes, Jr., Cross 5995

advised by almost everybody who came to the office,that I should do something in this matter.

Q. That is what you meant by -'our first answer tome? A. That is what I meant.

Q. Had you ever received messages at any othertime about any subject of legislation? A. Messages?

0. Yes. communications of this kind, requests asto legislation? A. Requests in regard to legislationfrom anybody?

Q. Yes? A. At any time?0. Yes? A. Certainly I have.0. To what extent? Has it been a bore? I mean 5996

to say, has it occurred to a very considerable extentthat you have received such applications? A. Vell,a great many times. I testified yesterday in regard tothe Agnew-Hart Bill, I had a message-

0. Was it a usual thing that you should receivecommunications, requests. bearing upon the questionof legislation, to do things for people, to assist them?A. Ver- constantly. yes. When I was in Albany andsince.

0. Now, this particular message, did not exciteany particular-did not remain in your mind. I judge?A. It did.

Q. It did remain in your mind? A. It did. 59970. And vou went to Cuba after that? A. I cannot

avy whether it was after or before.0. If it was in February, you went afterwards?

A. Very likelh.

0. You called Mr. Brown up about the 24 th of

March? A. I suppose so.0. Do you remember whether you did call him up?

A. I do not know whether I called him or not. I

know I sent for him and asked him to come and see

me.0. Did he come to see you? (No answer.)

2000


Q. Was that one of the first steps that you tookto break up the Senatorial deadlock? A. I shouldthink so.

Q. Did I understand, from your evidence, that yousaw Mr. Roosevelt after he was elected Governor fre-quently or infrequently? A. In the year 1899, in-frequently.

Q. Am I to understand from your evidence thatyou saw him once at Oyster Bay? A. In October,1898, September, I think it was.

Q. September, 1898. But you did not see him5999 again until you called upon him one day at his brother-

in-law's house? A. Oh, he came in the office of theState Committee when I was the Executive Chairman.

Q. You saw him there often? A. Not very often.Q. Did you become fairly well acquainted? A.

Not very well acquainted.Q. Well, did the time ever come when you became

fairly well acquainted? A. I think so.Q. Well, now, you went to Albany that winter, and

you lived in Albany? A. Yes, sir.Q. I think you said you met him once or twice at

dinner? A. Yes, sir.Q. Once at his own residence, the Executive Cham-

6000 bers rather-did he live at the Executive Chamber?A. Executive Mansion, yes.

Q. You met him there? A. Yes, sir.Q. You saw him at the Capitol? A. I so testified,

yes.Q. Now, did you see him frequently or infrequently

at the Capitol? A. I said infrequently.Q. I judged from your testimony yesterday that

you had some conversation with him that winter, thewinter of 1899? A. Yes, sir.

Q. He went into office on January Ist, what year?A. 1899.

2001

Plaintiff's WVitness, William Barnes, Jr., Cross 6001

Q. And during that winter and spring you had

certain conversations with him? A. That is correct.Q. Now, did you have talks with him in which you

and he expressed your respective views on matters in

which you were both interested, or did he do all thetalking? A. I do not think that any such conversa-

tions took place to amount to anything at all in 1899.

Q. No discussions concerning any differences of

views that existed between Mr. Roosevelt and SenatorPlatt? A. I think just to the contrary.

Q. Just to the contrary. There was some evidencethat you gave that he used to talk and you used to 6002listen, do you remember that? A. I do.

Q. And on what subject was that talking done towhich you listened?. A. Was the date fixed for that?

Q. Was there a date fixed? A. Yes.Q. I think not. A. I was testifying to conversa-

tions that were held in-especially after the Presiden-tial election of 19o8.

Q. You were testifying to conversations that tookplace after the year 19o8? Now, do not let me mis-lead you. I have in mind some evidence, which I

will try and find, where, as I recall it, and I may bemistaken, you said that Mr. Roosevelt talked and you

listened. Now, was there anything of that kind said? 6003

Because you know I may have dreamed it? A. Yes,

I so testified.Q. And what was the subject that you, had in mind

when you gave that testimony? A. Well, the primary

legislation, that was discussed. Not primary legisla-

tion, but the subject of direct primaries.Q. Was that what you had in mind when you gave

that testimony about his talking? (No answer.)

Q. I do not attempt to limit you as to the period.

I will see if I can assist you further. Did you testify

that you knew of no issues between Mr. Roosevelt and

2002

6004 Plaintiff's 11itness, William Barnes, Jr., Cross

Senator Platt? A. I certainly did, yes. There wasno issue. That is what I testified.

Q. You say there was none? A. There was noissue.

Q. Vhen you used the expression, "I asked you ifyou ever talked with him about any such thing," thatwas the question put by your counsel, and your lastanswer had been: "I have already testified that I knewof no issues." Does that assist you at all? (No an-swer.)

Q. Apparently it does not. I will put another

6005 question, and see if I can help you. "Did you discusswith Mr. Barnes"-I suppose that means Mr. Roose-velt, "those matters to which you have referred to asissues with Mr. Platt"?

Mr. Ivins: Will you correct your record inthat respect?

Mr. Bowers: It should be Mr. Roosevelt.Mr. Ivins: It should be Mr. Roosevelt.

By Mr. Bowers:

Q. "Did the defendant ever talk to you about hisissues with Mr. Platt?" That is the question thatMr. Ivins put to you. "A. He talked with me about

6006 his relations with Mr. Platt." And you answered toMr. Ivins: "I have already testified that I knew of noissue." A. Certainly I had not. Issues and relationsare not the same thing.

Q. That is what I want to know. When you tes-tified that you knew of no issues, you had in mind, did'you, that the word used was a mistaken word? A.The word "issue" involves a division.

Q. Involves what? A. Involves a division.Q. A division. Now, then, we will drop the word

issues, as Mr. Ivins did, and put you the question he

did: "I ask you if you ever talked with him, that is,

2003

Plaintiff's !I'itncss, Wlilliam Barnes, Jr., Cross 6007

Mr. Roosevelt, about any such thing?" And you an-

swered: "Well, I cannot testify that he did not talk to

me." Will you be good enough to tell me what you

meant by that? A. I cannot recollect exactly what I

said. Of course, Mr. Roosevelt did talk to me in

relation to Senator Platt at that meeting on the 15th

of-some time in February, I think it was in February.

It was five or six weeks after the inauguration.

Q. You need not trouble yourself with the dates at

the moment. We will deal with generalities. Is it

the fact that Mr. Roosevelt did talk with you about his

relations with Senator Platt? A. He did advise with 6008

me in regard to his course as Governor, his relations

with Senator Platt, to get from me what information

I had in regard to affairs in Albany.

Q. Now, you recollect that he did do all that; is

that right? A. Yes, I think that occurred. I was

very much interested-

Q. Just answer the question. Have you finished?

A. Yes.Q. Are those the only subjects that you can recall

at this moment and that you talked with Roosevelt

about that winter of 1899? A. I talked with him-

about the biennial sessions, I think.

Q. Did you talk with him about some appointments? 6009

A. I did.

Q. Did you make one or more requests of that char-

acter? A. I made more than one, of course.

Q. Even in those days there were a great many

people asking you, holding the position you did, to

assist them in obtaining political appointments? A.'

They did.Q. You have always had to deal with that more or

less since you were interested in politics? A. Until

lately.

2004

601 0 Plaintiff's Witness, William Barnes, Jr., Cross

Q. You are actively interested, aren't you? Thereis no escaping that, is there? A. It is extremely dif-

ficult.Q. And you had conversations with him on the sub-

ject of appointments also? Now, what I want toreach is, did you have one or more than one conversa-

tion with Mr. Roosevelt on these different matters towhich you have testified? A. I saw Mr. Rooseveltvery little that winter, two or three times outside ofthe dinners at the Executive Mansion, and Mr.Pruyn's.

6011 Q. Now, stop and think for a moment. You weregood enough to talk with him about his relations withMr. Platt. Did he at the time tell you that he had anydifferences with Mr. Platt? A. No.

Q. Did he tell you that they were of different viewsupon any question? A. He may have; I can't remem-ber whether he said he had a different view. Thesubject was general, as to his relations.

Q. As to his relations with Mr. Platt? A. Yes.Q. You say he asked you to give him what knowl-

edge you had acquired in any way in Albany. Didhe ask your advice in any way, or your assistance?A. I am more inclined to think he told me.

6012 Q. You are more inclined to think he told you?A. What he was going to do.

Q. And did not ask your opinion about it? A. Ithink he asked my opinion and then he told me whathe was going to do.

Q. Did he tell you any one thing which he was go-ing to do? A. I think he told me he was going to get

along with Senator Platt and at the same time conduct

his office as Governor.Q. How did he happen to tell you that? A. Be-

cause I suppose he assumed that I thought it was im-

possible.

2005

Plaintiff's Witness, lllijam Barnes, Jr., Cross 6013

Q. How is that? He assumed you thought it

would be impossible? A. That that would be im-

possible.Q. For him to get along with Senator Platt and yet

do his duty as Governor? A. Yes.

Q. And you did not think it would be impossible?

A. I did not.

Q. You thought that they would come to an agree-

ment? A. I couldn't see how they could help it.

Q. You knew there was a difference on the fran-

chise bill? A. Where?Q. Between him and Senator Platt? A. It is not 6014

in evidence.

Q. I know it is not in evidence. A. I don't mean

in this case.

Q. Didn't you know that there was a very serious

difference between Mr. Roosevelt and Senator Platt

concerning Mr. Roosevelt's advocacy of the franchise

bill? A. I knew that Senator Platt did not favor the

Ford Franchise Tax Bill that provided for local as-

sessments.Q. Is that all that you ever knew upon that subject?

A. Why, I knew very little about it, except I knew

there was never any public difference. That is all I

knew. 6015

Q. There was never any public difference; wasn't

the subject which Mr. Roosevelt discussed with you

that there need not be any public difference, and didn't

he say to you that he was going to get along with

Senator Platt and do his duty as Governor and yet

have no public difference? A. I can't remember that.

Q. Isn't that the substance of what you and he

talked about when he talked to you? A. I could not

swear that he said that, no.

Q. You have heard read in this case a letter from

Senator Platt, or signed by Senator Platt, to Theodore

2006

6016 Plaintiff's U 'itness, William Barnes, Jr., Cross"

Roosevelt, then Governor of the State of New York,calling him to account for a position that he had takenon the Franchise Tax Bill? You have heard that readhere in this case, haven't you? A. I have forgotten

the letter.Q. It was put in by your own counsel, wasn't it?

A. I can't remember everything that Mr. Ivins does.Q. I know that would be a hard job. The letter

was one that would invite attention, it seems to me.Let me call your attention to a clause or two and seewhether it would refresh your recollection: "I think

6017 my dear Governor, that you put this party in a mostunfortunate position and that you did it without due"-this is dated May 6th, I899-that you did it with-out "consideration of the understanding we arrived atwhen we decided upon the appointment of this speciallegislative committee." Does that assist you to recallwhether you have heard this letter read? A. I re-member the letter was read. I didn't recollect thatletter.

Q. I will see if I can reach what I wish to reach insome other way. When Mr. Ivins was inviting ananswer from you, you said as follows: "Q. I ask youif you ever talked with him about any such thing?"

6018 And you answered, "Well, I can't testify that he didnot talk to me." A. Such a thing as what?

Q. He had been referring to issues which you saynow should be relations. You said, "I can't testifythat he didn't talk to me. Q. He didn't talk to you?A. I can't testify that he did not." Will you be goodenough to tell me what you meant by that answer,that you can't testify that he did not? Did you mean

that you were not sure whether he did talk to you, or

that you had no recollection on the subject? A. I

mean that I can't distinctly testify to anything Mr.

Roosevelt may have said to me eighteen years ago.

2007

Plaintiff's Iuitness, IJ'illiani Barnes, Jr., Cross 6019

Q. That is what you mean by that answer? A. Icannot cover every point of what he may have said.

Q. Then Mr. Ivins went on, "You can't testify thathe didn't talk to you?" And you answered, "No."That is true according to the best of your recollectionat the present moment? Is that right? A. Whatwas that question?

Q. "You can't testify that he didn't talk to you?"And you answered, "No." That is true, from whatyou have just spoken of, after eighteen years haveelapsed? A. I think I answered that, "Yes."

Q. The answer here is "No" (showing witness 6020transcript) ? A. That is correct.

Q. Did you mean by that simply that after eighteenyears you have really no recollection -upon that sub-ject? A. I did not.

Q. What did you mean? A. I mean, as I said be-fore, that in order to accurately testify, I would haveto say no to that question, or else I would have to saythat I could tell every single thing he ever said aftereighteen years.

Q. Why would you have to tell every single thing?A. If I said yes to that question.

Q. You say you can't say- A. That testimonyis simply inclusive, I don't think you quite compre- 6021hend my point.

Q. Probably I don't. Then what did you mean bythe answer: "I cannot testify that I was absolutelysilent"? A. Because I cannot testify that I was ab-solutely silent.

Q. Well, now, then, taking the best recollection that

I can get from you at this moment, did you talk with

Mr. Roosevelt that winter on a variety of subjects

that he testifies you stated to him? A. That is not

what I have testified.Q. You have testified that you did talk with him on

appointments? A. Yes.

2008


Q. And talked with him about biennial sessions?A. Yes, sir.

Q. And talked with him about his relations withMr. Platt? A. At this interview at his house.

Q. Once? A. That is all I can recall.Q. That is all you can recall? A. Yes.Q. Somebody said-Mr. Ivins, I think, at one time

said you kept a diary. Is that a fact? A. I havekept a diary in my lifetime.

Q. Did you have a diary that winter? A. Thewinter of 1899?

6023 Q. Yes? A. Yes.Q. Have you looked it over to see how often you

may have seen him? A. I have.Q. Do you mean to say you kept a diary of all that

you did that winter? A. I kept a political diary.Q. What do you mean by a political diary? A.

That is, I mean matters connected with whom I sawand who saw me.

Q. Would you enter in that diary such things asdining out or visiting? A. It was a record for myinformation.

Q. A record for your information? A. Yes.Q. It ought to be quite easy for you to tell me

6024 whether you saw Mr. Roosevelt only once that winteror whether you saw him more than once? A. I toldyou how many times I saw him. I told you thatI called at the Executive Chamber.

Q. That was once? A.- In January, that I went tothe Executive Mansion.

Q. That is twice? A. That I dined at Mr. Pruyn's

house.Q. That is three times? A. And also at the Ex-

ecutive Mansion.Q. Four times? A. And once in April that I can-

not testify to from memory.

2009

Plaintiff's Writness, TTilliam Barnes, Jr., Cross 6025

Q. That is five times? A. I know that I had noconversations at the Executive Chamber or Capitol.

Q. None at all? A. With Mr. Roosevelt, exceptthe most perfunctory.

Q. What do you mean by the most perfunctory?A. I mean that I may have called upon him and asked

him a question: "Mr. Jones asked me to write to you.

Have you replied to him?" Or something of thatkind, and I would go out.

Q. How many of those visits did you make to theCapitol? A. I don't think I made over two or three.

I usually saw Mr. Young. 6026Q. And not Mr. Roosevelt at all? A. Yes.Q. Now, do I understand that the talk that you had

with reference to his relations with Mr. Platt waslimited to times when you were at the Executive Man-

sion? A. That is my judgment.

Q. That is your best judgment? A. Yes.Q. Was that the evening that you dined there? A.

No. We were alone.Q. The evening you went in answer to a note? A.

Yes.Q. Did you have quite a long talk with him on that

evening? A. I cannot say how long it was.Q. Do you know the subject-matter of that particu- 6027

lar conversation? A. I know why he sent for me.

Q. Do you remember what you talked about that

night? A. We talked principally about the election

of 1898. That was my burden.Q. Did you talk at all that evening about his rela-

tions with Senator Platt, or was that some other oc-

casion? A. No; it was then.

Q. All then? A. I know he talked with me about

that.Q. At that time? A. Yes, that was natural.

Q. So that you discussed the matter of his relations

with Senator Platt that evening, and also the last elec-

2010

6928 Plaintiff's Witness, [Villiam Barnes, Jr., Cross

tion in Albany County? Is that right? A. I thinkwe talked about what we were most interested in.

Q. You were most interested in the Albany elec-tion? A. I was interested in our defeat in 1898. Hewas interested as to how he was going to get alongwith Senator Platt.

Q. Did he tell you at that time that he had any rea-son to anticipate any difficulty with the Senator? A.No.

Q. You say that at that time there was no discus-sion of the Franchise Tax Bill? A. No.

6029 Q. And no discussion except upon those two sub-jects? A. As I say, I cannot testify to anything elsethat was talked about.

Q. Was it at that time that you told him about Mr.Brady having spent money in Albany County? A. Isaid Mr. Brady was very active in 1898.

Q. Did you say anything about his having spentmoney in 1898? A. I could hardly testify to that.

Q. Did you say so in your evidence of yesterday?A. I said that I told Mr. Roosevelt that Mr. Bradyhad been very active in 1898, yes.

Q. And that is all you said, according to your pres-ent recollection? A. I don't remember.

6030 Q. Is that all you can recall? A. About what?Q. About your conversation with Mr. Roosevelt

concerning Mr. Brady? A. Yes, that is all I can re-call.

Q. What you recall is in relation to the election of1898, and that Mr. Brady's activity was largely re-sponsible for the loss of the county? A. Yes.

Q. What did you mean by his activities? A. Imean that there had been a Democratic quarrel inAlbany County going on since-before 1892. At anyrate, Mr. Brady was very much interested in the re-election of Mr. Edward Murphy, Jr., to the United

2011

Plaintiff's 11itness, U'illiani Barnes, Jr., Cross 6031

States Senate, and there were two factions of theDemocratic Party in Albany County, one of them led

by Judge Herrick, and the other by a combination ofmen; the most active of them at that time was Mr.

McCabe. In the fall of 1898 these Democrats all got

into an agreement, and finally compromised one withthe other and put up a very strong ticket, Mr. Brady

and Judge Herrick operating together, as I understood

it, and the result of which was the defeat of the Re-publican State ticket in the County and the Countyticket; and every man that Mr. Brady could influenceor could get hold of at that time he did, in order to 6032help along the election of Van Wyck and of Murphy,

that is Edward Murphy, Jr.Q. Did you tell all that to Mr. Roosevelt? A. I

cannot tell how much I told him of that. I know I

was very aroused over the matter at that time. Ifelt very sorry and apologetic. As I say, I was then

chairman of the Executive Committee; I had justtaken up the work and I was a very young man, and Ifelt that I might be held responsible. Nothing thatamounted to anything, but at that time it was a greatdeal.

Q.- Did you know Mr. Brady? A. Yes.Q. How long had you known him? A. How long 6033

have I known him?Q. How long had you known him in 1899? Be-

fore that how long had you known him? A. I methim just after I bought the Journal, a year or two.

Q. Did you ever have any business relations with

him? A. In what connection?Q. In any connection? A. Business relations with

him?Q. Yes? A. Mr. Brady owned thirty 3hares of

Journal Company stock.Q. When did he buy it? A. I don't know.

2012


Q. Did he buy it before you went to Albany? A.

Before what?Q. Before you went to Albany? A. No.

Q. Did he buy it afterwards? A. Yes.

Q. Whose stock was it he purchased? A. 1 don't

know; I think it was new stock.

Q. You don't know from whom he bought it? A.

No.Q. You didn't have any business relations with

him otherwise than relations growing out of his pur-

chase? A. No, I had no business relations with him.

6035 Q. He was largely interested- A. I think, in

1894, Mr. Brady bought five thousand of the Journal

Company bonds, the summer of 1894.

Q. Of 1894? A. The summer of 1894.

Q. Was that all the business relations you ever had

with him? A. Yes, I think it was.

Q. Who were putting out those bonds, the J.urna!

Company? A. Yes.Q. Did you see Mr. Roosevelt in the month of

April, 1899, at all? A. I can't tell you. I think not.

I think I might have seen him in the Executive

Chamber.Q. Did you receive a letter from him on the 5th day

6036 of April, 1899? A. I can't recall now. It is possible

that I did.Q. I don't know whether you did or not, because

this is only what purports to be a copy which I have

here (showing witness paper). A. Yes, that is evi-

dently a letter.Q. Does that assist your recollection as to whether

you saw him in April? A. Why, it shows that I called

at the Executive Chamber and did not see him.

Q. It says that you called at the Executive Man-

sion?


2013

Plaintiff's Vitness, [Filliam Barnes, Jr., Cross 6037

By Mr. Bowers:

Q. "When I came back yesterday, I found you had

gone. I wish you would let me know when you would

like to see me, or else arrange a meeting some time

when there is not such a jam." Does that assist your

memory at all as to seeing him in April? A. Subse-

quent thereto ?Q. Yes. A. I don't think I did.

Q. Then, as I understand your evidence finally, you

only saw him on a certain limited number of oc-

casions in the year 1899, in the spring of 1899; is

that right? A. Yes, a limited number. 6038

Q. I understood you to tell the jury yesterday that

you at one time had a talk with him on political or-

ganization, and you gave him your views of a politicalorganization; is that right? A. Yes.

Q. And that is the view which you told us yester-

day you had expressed to many people? A. I did.

Q. You have stated to me all the business relations,I understand you to say, that you ever had with Mr.

Brady? A. Yes. I never had any business relations

with Mr. Brady except when he bought this stock andbonds.

Q. Mr. Brady was largely interested, was he not,

in various corporations in Albany? A. It was so gen- 6039

erally understood.Q. He was largely interested- A. He was presi-

dent of the gas company.Q. And he had large traction interests, didn't he?

A. I don't know whether he did or not. It was so

reputed. I cannot testify he did. I know he was

president of the gas company.

Q. How did it happen that you talked to Mr. Roose-

velt on the subject of the management of a political

organization? A. How did I come to speak about it,

or he speak to me about it?

2014

6040 Plaintiff's Uitness, William Barnes, Jr., Cross

Q. Well, why did he ask you about it? A. I thinkbecause he was interested in politics and so was I.

Q. Do you recall that you said yesterday that youmay have had several conversations with Mr. Roose-velt? A. I have had several conversations with Mr.Roosevelt.

Q. And that you stated to him, as you had statedto a great many other men, your views as to themaintenance of party government? Do you remem-ber what you said on that subject yesterday? A. Ido.

6041 Q. Now, you say that that was the result of yourboth being interested in political matters; is that right?A. Well, the expression of opinion on my part I cantestify to. I cannot testify to an expression of opin-ion, or the cause of it, in his mind.

Q. You don't recall how it came about? A. Itcame about in the natural course of events, I suppose.

Q. It would have been in the natural course ofevents if he had asked you concerning the FranchiseTax Bill, and you had replied that he should not op-pose it, because there were business men who wereinterested in the Republican Party; that would havebeen natural, whether true or not, according to your

6042 views? I say, that would have been the natural thingto have occurred? A. For him to have asked meabout it?

Q. If he told you he was going to press the FordBill, press the franchise legislation, and if you hadopposed it, and told him that you didn't think heought to do it, it would have been very natural foryou to have given him the reasons? You can concedethat, can't you? A. I can concede that, of course.

Q. Now, think. Wait a moment. Answer that yesQ. (Question read.) A. The answer is yes.

or no. A. What is the question please?

2015

Plaintiff's Witness, I'illiam Barnes, Jr., Cross 6043

Q. It would not have been very unnatural, underthose circumstances, to have given him your viewsupon political matters generally, would it? A. No.

Q. I understand, however, that you did at sometime say to him, in some of the several conversationsthat you had, that no political organization could pos-sibly continue its operations unless it is financed or isconducted by men who give up their entire time toit? That is right, isn't it? A. In substance.

Q. There was some talk about financial contribu-tions being made to political organizations? You cananswer that yes or no? A. Yes. I can't say at that 6044'time. I can't say in 1899; it might have been in1904.

Q. But when you were answering yesterday, youwere referring to 1899 or 19oo, weren't you? A. Idon't think so. I think it was 1899.

Q. Did you never have any talk with Mr. Roose-'velt about political corporations in 1899 or 190o?A. What is a political corporation?

Q. About contributions, I mean, to political organ-izations? A. The only conversation that I had onthat subject with Mr. Roosevelt that I can recall isin relation to Mr. Brady's financial help to the Demo-cratic Party in 1898 and Mr. Pruyn-well, I am notsure about that. Mr. Pruyn supported Mr. Roose-velt.

Q. You had this talk with him about financial con-tributions made by Mr. Brady and by Mr. Pruyn?A. I don't recall in regard to Mr. Pruyn; I know Idid in regard to Mr. Brady.

Q. Then I will call your attention to the languageyou used yesterday: "I said that Mr. Brady had beena very liberal and active contributor to the Demo-cratic Party." Is that right? A. That was my un-

derstanding.Q. And that as far as Mr. Pruyn was concerned,

you believed he had contributed to the Republican

2016


County Committee quite regularly. Did you so tes-

tify yesterday? A. Yes.

Q. You did testify that both of those gentlemen had

contributed, one to the Democratic Party and the

other to the Republican Party, but you deny that what

Mr. Roosevelt said was true, that they had both con-

tributed to the Republican Party? A. Certainly.

Q. That was the effect of the evidence you gave

yesterday? A. Yes. Mr. Brady had never contrib-

uted, to my knowledge.

Q. You wrote a letter to the Governor in the au-

6047 tumn of 1899, in which you said, in substance, that

if a State Printing House was established, it might

be your financial ruin. Do you remember that letter?

A. Yes.

Q. That letter was written for the purpose of urg-

ing him not to invite the Legislature to pass a bill

that would establish a State Printing House?

Mr. Ivins: I object to that. The letter speaks

for itself.The Court: It does not speak for the ob-

ject the witness may have had in writing it.

He may answer.Exception for plaintiff.

6048 A. That was the purpose of the letter, yes; cer-

tainly.Q. And you saw him on that subject? A. I cannot

swear to it.Q. What is your best recollection? A. Well, I

don't recall it.Q. You have no recollection? A. I can't recall-

I cannot visualize discussing that subject after this

letter.Q. As a matter of fact, he did recommend the es-

tablishment of a printing house in his message to the

Legislature? A. I so understand.

2017

Plaintiff's IVitness, !Tilliam Barnes, Jr., Cross 6049

Q. You knew that at the time, didn't you? A.

Yes, I must have; certainly.Q. Do you say yes, or must have? A. Yes.

Q. Did you communicate with any person other

than Mr. Roosevelt upon that subject? A. I wroteto Senator Platt.

Q. Advising against it? A. Yes; advising againstthe proposal.

Q. What was your objection to a State PrintingHouse being established? A. Because it would be

very detrimental to the business of the Journal Com-

pany. 6050Q. What was the business of the Journal Com-

pany? A. As well as every other publishing house inthe city.

Q. Your interest was in the Journal Company,wasn't it, or were you looking out for everybody inAlbany? A. I have answered the question.

Q. The Journal Company was engaged in publish-ing a newspaper at that time, wasn't it? A. The

Journal Company published a newspaper, yes.Q. The Journal Company had no job printing plant

of any size, did it? A. No.Q. It was, however, doing job printing business?

A. I think it was. In 1899? Yes, I think it was do- 6051ing some work.

Q. There is no doubt of it, is there? A. I want

to make it correct, that is all.Q. A State Printing House wouldn't have hurt

the newspaper part, would it? A. Very much.Q. In what way? A. In the raising of prices.

Q. The raising of prices? A. In regard to wages.

Q. Wages? A. Yes.Q. That is the harm you feared? A. That is one

of the harms.Q. Otherwise than that, would it have hurt the

newspaper? A. It would, of course, hurt the Journal

2018

6052 Plaintiff's lUitness, [Villiani Barnes, Jr., Cross

Company to have had the State Printing House, noquestion about that; prevented us bidding for Stateprinting work-prevented the Journal Company frombidding for State printing work.

Q. How? A. If you establish a State PrintingHouse-

Q. There will be no State printing to bid on? A.No.

Q. Had you any special interest at that time in anyother corporation than the Journal engaged in theprinting business? A. No; I had no interest in any

6053 other corporation.Q. None whatever? A. No.Q. You had some interest in Lyon at that time?

A. I had some interest in Lyon?Q. Yes. A. What do, you mean by that?Q. I mean, were you engaged in business with Lyon

or did you have any contract with Lyon-any rela-tions with J. B. Lyon? A. Yes.

Q. What was the nature of those relations?

Mr. Ivins: Won't you fix the date?Mr. Bowers: December, 1899.

Q. Yes? A. Mr. Lyon and I were the owners of a

6054 State printing contract for the year 1899.Q. Who had that State printing contract in the first

instance? A. The bid was awarded to John A. Mc-Carthy, publisher of the Albany Press-Knickerbocker.

Q. How did it come into your hands and Mr. Lyon'shands? A. I purchased it from Mr. McCarthy.

Q. You purchased it? A. I did.

Mr. Ivins: I wish to call the attention ofthe Court to the fact that I have drawn outnothing of this kind. This is direct-examina-tion.

Adjournment to Monday morning.

2019

Plaintiff's Witness, William T. Keys, Direct 6055

Morning session, Monday, May 17, 1915.

Mr. Ivins: We have agreed to interrupt the

examination of Mr. Barnes to take the testi-mony of fifteen or twenty members of the Leg-islature.

Mr. Bowers: I have no objection to the in-terruption.

WILLIAM T. KEYS, called as a witness for the 6056

plaintiff, being duly sworn, testified as follows:


Q. You live where? A. Scottsville, N. Y., Mon-roe County.

Q. And your occupation is what? A. Merchant.Q. Did you represent some Assembly District in the

1911 Assembly? A. The Fifth Monroe District.Q. You were and now are a Republican? A. Yes,

sir.Q. Do you know Mr. Barnes, the plaintiff? A. I

have met Mr. Barnes.Q. Whom did you vote for in the joint session of 6057

the Legislature in 19I 1? A. Chauncey M. Depew. I

Q. Did you vote at any time for anybody else? A.

I did not.Q. Did you have any talk with Mr. Barnes about

your vote with reference to the Senatorship? A. One

morning in front of the place known as Benson's or

the "Tub."Q. How long before the election of O'Gorman was

that? A. About the same week or the week before,

as I recall it; the last week in March or first week

in April.

2020

6058 Plaintiff's Witness, William T. Keys, Direct

Q. Do you remember whether it was before or afterthe fire, the Capitol fire? A. Before the fire. Atleast, that is my recollection of it.

Q. Who was present at the conversation, if any-body? A. I think Senator Emerson from WarrenCounty.

Q. Anybody else? A. There were several othersat that time, but I don't just recall who they werenow.

Q. What was the conversation that you had withMr. Barnes at that time?

6059 Mr. Bowers: I object to that as immaterial

and irrelevant.Objection overruled. Exception.

A. The substance of it was that Mr. Barnes ad-vocated-


By the Court:

Q. In substance, what did he say to you? A. Hesaid he thought it would be a good idea for the Re-publican members to form a fusion with the insurgentsor Independent Democrats for the election of an Inde-

6060 pendent Democrat for the United States Senate.

By Mr. Barnum:

Q. Anything else? A. He thought it would havea tendency to break the influence of Tammany up-State.

Q. Did he say that? A. That is what he said tome.

Q. Did you have any talk with him at any othertime? A. I did not.

Q. Did he, at any other time, talk with you in any

way? A. He did not.

2021

Plaintiff's 11itness, William T. Keys, Cross 6061

Q. Directly or indirectly? A. I never met Mr.Barnes throughout my legislative career, except thatone time.

CROSS-EXAMINATION by Mr. Bowers:

Q. When were you elected to the Assembly? A.The fall of i9io.

Q. Had you ever been in the Assembly before? A.I had not.

Q. You went to Albany in January? A. JanuaryIst, yes. 6062

Q. And you attended the caucus concerning thenomination of a candidate for United States Sena-tor? A. I did.

Q. And Mr. Merritt nominated Mr. Depew? A.As I recall it.

Q. And you voted in his favor? A. I did.Q. And from that time on, you voted at every leg-

islative balloting for United States Senator in favorof Mr. Depew? A. I did.

Q. You say there were several other persons pres-ent at the time Mr. Barnes had this talk with you?A. Several on the street.

Q. Had you been holding a conference? A. Wewere to have a conference there, but we didn't haveany meeting; there weren't enough members present.

Q. You cannot fix the date? A. Except that itwas the last of March or first of April.

Q. How many days before Senator O'Gorman waselected? A. My recollection is, the same week. Ithink Tuesday morning of the same week and Sena-tor O'Gorman was elected on Friday night, as I re-call it.

Q. That would be about the 28th of March, Tues-day 28th, Wednesday 29 th, Thursday 3oth, Fridaythe 31st. A. I don't know; I haven't got a calendar

with me, but it was about that time, I know.

2022

6064 Plaintiff's WI'itness, John D. Stivers, Direct

JOHN D. STIVERS, called as a witness for theplaintiff, being duly sworn, testified as follows:


Q. You live where? A. At Middletown.Q. That is in what county? A. Orange County.Q. And are you at the present time representing

that district in the Senate? A. I am.Q. And have been for how long? A. This is my

second term.Q. Were you in the Legislature of 1911? A. I

6065 w'.s"Q. Senator or Assemblyman? A. Assemblyman.Q. Representing what district? A. The Second

District of Orange County.Q. How long had you been in the Assembly at

that time? A. The 191o session-I was there.Q. Your occupation is what? A. I am a newspaper

publisher.Q. Do you know the plaintiff? A. I am acquainted

with him; yes, sir.Q. Did you participate in the joint session or the

proceedings of the joint session of the Legislature in1911 ? A. I did.

6066 Q. Participated in the caucus? A. I did.Q. And thereafter did you continue to vote for Mr.

Depew at all sessions? A. I did.Q. During that legislative session did you have a

conversation with Mr. Barnes as to the election of aSenator? A. I did not.

Q. Did you have any conversation with Mr. Barneseither before or since that time with reference to the

election of the United States Senator? A. No.

2023

Plaintiff's Witness, W illiam S. Coffcy, Direct 6067


Q. As I understand you, you went to the Legisla-

ture in 1911 and attended a caucus concerning the

United States Senator? A. Yes.

Q. Mr. Merritt nominated Mr. Depew? A. Mr.Merritt, I believe, nominated Mr. Depew.

Q. And you voted in his favor? A. I voted for

Mr. Depew.Q. And from that time until Senator O'Gorman

was elected, you continued to vote for Senator Depew?

A. I did; yes, sir. 6068

WILLIAM S. COFFEY, called as a witness for



Q. You live where? A. Mount Vernon, West-chester County.

Q. And your occupation is what? A. Attorney.Q. Were you in the Assembly of 19I ? A. I was.Q. Republican? A. Yes, sir.Q. Do you know the plaintiff, Mr. Barnes? A. I 6069

have an acquaintance with him; I don't know him

personally.Q. During the joint session in regard to the elec-

tion of United States Senator, did you have any talk

with Mr. Barnes on that question? A. No, sir.

Q. At any. time did you have any talk with Mr.

Barngs in reference to your vote for the United StatesSenatorship? A. No, sir.

Q. Did you attend any of the conferences that were

held along the last of March at which Mr. Barnes was

present? A. No, sir.

2024

6070 Plaintiff's Witness, James E. Connell, Direct


Q. When were you elected to the Assembly first?A. 19IO.

Q. You served in the I91O Legislature? A. Yes,

sir.Q. In 1911, you went to Albany and attended the

caucus as to the United States Senatorship? A. Yes,sir.

Q. Mr. Merritt nominated Mr. Depew? A. That ismy recollection.

6071 Q. And you voted for Mr. Depew? A. Yes, sir.Q. And then you continued at the joint sessions

of the Legislature until Mr. O'Gorman was elected, tocast each day your vote for Mr. Depew? A. Yes,sir.

JAMES E. CONNELL, called as a witness for the


Exvamined by Mr. Barnum:

Q. You live where? A. Baldwinsville.

6072 Q. Your occupation is what? A. Merchant.Q. You were in the 1911 Assembly? A. Yes, sir.Q. And as a Republican, Mr. Connell? A. Yes,

sir.Q. You were in the Assembly two years, were you?

A, Yes, sir.Q. What two were they? A. 191o and 1912.

Q. Do you know the plaintiff, Mr. Barnes? A. I

do not.Q. Have you ever met him? A. No.Q. Never had any talk with him during the two

years that you were there? A. No.

2025

Plaintiff's Witness, Eugene M. Trazqs, Direct 6073

Q. Then, of course, you had no talk with him aboutan election of United States Senator? A. Not aword.


Q. You went to the Legislature in 1911 and at-tended the caucus for the nomination of United StatesSenator? A. I did.

Q. Mr. Merritt nominated Mr. Chauncey M. De-pew? A. Yes, sir.

0. And you voted for Mr. Depew? A. I did. 6074Q. And thereafter until Judge O'Gorman was

elected United States Senator, you continued to voteat all sessions of the Legislature when the subjectwas under consideration, for Mr. Depew for UnitedStates Senator? A. Yes, sir.

EUGENE M. TRAVIS, called as a witness for theplaintiff, being duly sworn, testified as follows:

E.amined by Mr. Barnum:

Q. You live where? A. I'live in Brooklyn. 6075Q. Your occupation is what? A. State Comptroller.

Q. What is your other line of business? A. Fruit

dealer.Q. You have been State Comptroller since the ist

of January? A. Yes, sir.Q. Previous to that you were in the Senate? A.

Yes, sir; for six years.Q. And continuously? A. Yes.

Q. Commencing when? A. In 1907.

Q. You know the plaintiff, Mr. Barnes? A. Yes,

2026

6076 Plaintiff's Witness, Eugene M. Travis, Direct

Q. You were there and participated in the 1911 elec-tion for United States Senator? A. Yes, sir.

Q. Did you have any talk with Mr. Barnes in ref-erence to the election of Senator at that time? A.Yes.

Q. When and where? A. At his house, at a con-ference.

Q. Who were present at the conference, Mr. Travis?A. Mr. Merritt, Senator Walters, Senator Brackett;I think Ray Smith was there; there were two or threeothers whose names I have forgotten.

6077 Q. Was Mr. Frank H. Platt there? A. Yes; Sen-ator Platt was there.

Q. When was this conference, as nearly as you canfix the date? A. It was the day of the fire in the Capi-tol.

Q. Was that the day after the fire broke out or theday before? A. The day after.

Q. It was at that conference that was held afterthe one in Judge Rudd's chambers? A. I don't know asto that one; I was not present. You mean the ses-sion of the Legislature in the City Hall?

Q. Yes. A. It was that afternoon; the Legislaturemet that day in the City Hall.

6078 Q. Now, will you state, if you please, what thatconference was, as far as Mr. Barnes was involved init, as to this Senatorship? A. Mr. Barnes said-

Mr. Bowers: I make the same objection as toprevious similar questions.

The Court: Same ruling.Exception.

A. Mr. Barnes evidenced a great desire-

Mr. Bowers: I move to strike that out, whathe evidenced.

The Court: Strike it out.

2027

Plaintiff's Il'itness, Eugene M. Travis, Direct 6079

By Mr. Barnum:

Q.. What did he say? A. Mr. Barnes said he was

very anxious to elect an Independent Democrat, and

expressed a desire to have all the Republicans vote for

some Independent Democrat; and Mr. Thomas Mott

Osborne's name was mentioned as one who would

probably receive the support, the vote of the largest

number of Republican members of the Legislature.

Q. Anything else that you remember? A. He asked

me if I thought we could secure the votes of all the

Republicans from Long Island, I being the only Re-

publican Senator from Long Island at that time. And 6080

I said that I was quite sure that we could get them

all but two, and possibly all but one. And that if

we could delay the matter a day or two, we probably

could get them all. There was one Assemblyman who

didn't seem to be willing to vote for Mr. Osborne un-

til he had talked the matter over with some people in

his own district.

By Mr. Bowers:

Q. Did you state that? A. Yes.

By Mr. Barnum:

Q. Did you state that at that time? A. Yes, sir. 6081

Q. If there is anything further in the talk, give it?

A. After there had been considerable discussion by the

different men present, as I recall it, Mr. Barnes said,

"Seemingly, we cannot get enough votes to elect Mr.

Osborne." He said he was very, very sorry.

Q. Was there anything further said that you re-

member? A. No, sir.

Q. Did you have any further talk or any other talk

with Mr. Barnes at any other time about the matter?

A. No, sir.Q. Just on that one occasion? A. That is all.

2028

6082 Plaintiff's Witness, Eugene M. Trazis, Cross


Q. You say Mr. Barnes stated that seemingly enoughvotes could not be had to elect Mr. Osborne? A.Yes, sir.

Q. What was the result of that discussion finally?Was the matter abandoned or not? A. It was aban-doned as far as-we were short three or four votes.

Q. As you understood, then, the matter of joiningwith the insurgents to elect Mr. Osborne was at thattime abandoned? A. I think so.

6083 Q. That is your best recollection? A. Yes; as faras I was concerned, it was abandoned.

Q. As far as you were concerned, you are certainit was abandoned? A. Yes, sir.

Q. Yet on the 3oth of March, a letter was writ-ten by Mr. Barnes, addressed to Mr. Brackett andMr. Merritt, for the benefit of the Republican Legis-lators, urging them to join with the insurgents, was

there not? A. I don't know.Q. You don't remember that letter of March 3 oth?

A. No, sir.Q. Did you never hear that Mr. Barnes wrote on

March 3oth a letter addressed to Senator Brackett-

6084 Senator Brackett was in the Senate with 'you? A.Yes, sir.

Q. And the leader, was he not? A. Yes, sir.Q. And Mr. Merritt was in the Assembly? A. Yes,

sir.0. And the leader of the Republicans? A. Yes.

Q. Did you ever hear that he addressed a letter to

those two gentlemen, recommending that the Republi-

can Senators should join with the minority Demo-

crats in the election of a United States Senator? A.

If I did I have forgotten it.Q. It is entirely out of your mind at the present

moment? A. Yes, sir.

2029

Plaintiff's IWitness, James S. Parker, Direct 6085

Q. In fact, it would have been rather an extraordi-nary letter in view of your belief-

Objected to-The Court: Objection sustained.

Q. You have been interested in political life for agood many years? A. Somewhat, yes, sir.

Q. You have been in the Legislature for some time?A. I was there six years.

Q. Now, you attended a caucus for United StatesSenator that year?. A. Yes, sir.

Q. And you recollect that Mr. Depew was nominated 606'by Mr. Merritt? A. I don't recall that.

Q. Well, at any rate, from the time of the caucusuntil the day when Judge O'Gorman was elected, asUnited States Senator, you continued to vote forChauncey M. Depew? A. Yes, sir.

JAMES S. PARKER, called as a witness for theplaintiff, being duly sworn, testified as follows:


Q. You live where? A. Salem, N. Y.Q. Your occupation is what? A. Farmer.Q. You were in the Assembly in 1911? A. I was.Q. Were you and are you a Republican? A. I am

and was.Q. At that time? A. Yes, sir.Q. How long had you been inthe Assembly? A. I

was in the Assembly for 1904, 1905, 1907, 19o8, 19io,1911 and 1912.

Q. Do you know Mr. Barnes? A. Yes, sir.Q. Did you participate in the election of United

States Senator in the joint session? A. I did.

2030

6088 Plaintiff's Wjritness, James S. Parker, Cross

Q. Did you have any talk with Mr. Barnes in ref-erence to the matter in any way? A. Never.

Q. Directly or indirectly, did you have any wordor communication from him? A. Indirectly.

Q. When was that? A. At a conference of Republi-cans held at what is called the "Tub."

Q. Mr. Barnes was not present? A. Not present.Q. At that time? A. No; he was quoted.

Mr. Barnum: I understand that your Honordoes not permit us to go into the conversationwhen Mr. Barnes was not present?

6089 The Court: I think so.

By Mr. Barnum:

Q. But there was no talk with him personally? A.None whatever.

Q. Did you attend a number of conferences? A.Never but one.

Q. Just the one? A. Just the one, and Mr. Barneswas not present.


Q. You recollect that Mr. Merritt nominated Sen-6090 ator Depew in the Republican caucus? A. I couldn't

swear to that.Q. Whoever did nominate him, you recollect that

you voted for him? A. Yes, sir.Q. Did you vote for him in the Legislature until

Senator O'Gorman was elected, on the 31st of March,1911? A. Yes; I did.

2031

Plaintiff's [Fitness, Alden Hart, Direct, Cross 6091

ALDEN HART, called as a witness for the plain-

tiff, being duly sworn, testified as follows:


Q. You live where? A. Gloversville.Q. Your occupation is what? A. Merchant.

Q. You were in the Assembly of 191 ? A. Yes,

sir; 1911.Q. You were a Republican? A. Yes, sir.

Q. Did you know Mr. Barnes? A. No, sir.Q. Have you ever had any talk with him? A.

No, sir. 6092Q. How long were you in the Assembly? A. Two

years; 1911 and 1912.

Q. You don't know Mr. Barnes personally? A.

No, sir.Q. You participated in the Senatorial Election of

1911? A. Yes, sir.Q. Did you attend any of the conferences along

toward the last of March? A. No, sir.


Q. You first went to Albany in 1911 ? A. Yes, sir.

0. And one of the first things that you did was to

attend a caucus of Republicans on the question of

nominating a United States Senator? A. Yes, sir.

Q. Do you remember that Mr. Depew's name was

proposed? A. I think so.Q. And you voted for him? A. I am not sure; but

I think I did.Q. Now, then, you continued to vote for him until

the 3 1st of March, 19TI? A. Yes, sir.

2032

6094 Plaintiff's Witnesses, Bawnies, Direct-Cheney, Direct

CALEB H. BAUMES, called as a witness for the



Q. You live where? A. City of Newburgh, Orange

County.Q. Your occupation is what? A. I am a lawyer.

Q. You are in the Senate or Assembly? A. In the

Assembly.Q. Of 1911? A. Yes, sir.

Q. You were and are a Republican? A. Yes, sir.

6095 Q. How many years were you in the Assembly? A.Five.

Q. What years were they? A. i909, i9io, 1911,

1912 and 193.Q. Do you know the plaintiff, Mr. Barnes? A.

Slightly.Q. You participated in the Senatorial Election in

1911 ? A. I did; yes, sir.Q. Did you have any talk with Mr. Barnes at any

time with reference to that election? A. No, sir.

0. Either before or while the thing was on or since?

A. Never.

No cross-examination.6096

ELLSWORTH J. CHENEY, called as a witness

for the plaintiff, being duly sworn, testified as fol-

lows:


Q. You reside where? A. Sandusky, Cattaraugus

County.Q. Your occupation is what? A. Merchant and

farmer.

2033

Plaintiff's Witness, Ellsworth J. Chency, Cross 6097

Q. Merchant and farmer? A. Yes; combined.Q. You were in the Senate or Assembly? A. As-

sembly.Q. What years? A. 19o9, 191o, 1911 and 1912.

Q. And you were and are a Republican? A. Yes,sir.

Q. Do you know the plaintiff, Mr. Barnes? A. Ihave met him.

Q. Did you have any talk with Mr. Barnes duringthe session of 1911, with reference to the election ofthe Senator? A. No, sir.

Q. Did you attend any of the caucuses that were 6098held? A. I did not.

Q. Have you ever had any conversation with Mr.Barnes upon legislative subjects? A. No, sir; whileI was in the Legislature.


Q. You attended the caucus that nominated Mr.Depew? A. Yes, sir.

Q. Voted in his favor? A. No, sir.Q. You didn't vote in his favor? A. I think I voted

for Mr. White in the caucus, if my memory servesme right. 6069

Q. Mr. Depew had a majority of the votes? A.Yes, sir.

Q. And from that time you continued to vote ateach meeting of the Legislature where voting wastaken on the United States Senatorship for Mr. De-pew? A. I did.

2034

6100 Plaintiff's Witness, Henry A. Constantine, Direct,Cross

HENRY A. CONSTANTINE, called as a witnessfor the plaintiff, being duly sworn, testified as fol-lows:


Q. You live where? A. Niagara Falls, N. Y.Q. Your occupation is what? A. Lawyer.

Q. Were you in the Assembly in 191I ? A. I was.Q. You were there how many years? A. Two

years; 1911 and 1912.

6101 Q. And at that time you were and now are a Re-publican? A. Yes, sir.

Q. Do you know the plaintiff, Mr. Barnes? A. Yes,sir.

Q. During the year 191i election for Senator, didyou have any talk with Mr. Barnes in reference to it?A. I did not.

Q. No talk with him directly or indirectly on thematter, in any way? A. No, sir.


Q. You went to Albany first in January, 1911, as an

6102 Assemblyman? A. Yes, sir.Q. Early in January you attended a caucus of the

Republicans, on the question of United States Sena-tor? A. I did.

Q. Mr. Depew was named by Mr. Merritt? A. Idon't recall that. I remember that he was nominated,but I don't recall Mr. Merritt nominated him.

Q. You voted in his favor? A. Yes, sir.Q. And you continued to vote for him until Senator

O'Gorman was elected in the Legislature? A. Yes,

sir.

2035

Plaintiff's TVitncss, Frederick C, Filley, Direct, Cross 6103

FREDERICK C. FILLEY, called as a witness forthe plaintiff, being duly sworn, testified as follows:


Q. You live where? A. Troy, Rensselaer County.Q. Your occupation is what? A. Lawyer, Assistant

District Attorney, Rensselaer County.Q. At the present time Assistant District Attorney?

A. Yes, sir.Q. Were you, in 1911, Assemblyman? A. I was.Q. And you were there for how many years? A.

I was in the Assembly from 19o6, through 1911, in- 6104clusive.

Q. And as a Republican? A. Yes, sir.Q. You know Mr. Barnes, do you? A. Yes.Q. Have known him how long? A. Ever since I

went to the Legislature.Q. During the 1911 Session, did you have any con-

versation with him? A. I did not.Q. Did you have any conversation with him on any

other subject in 1911 ? A. I never had any conver-

sation with Mr. Barnes, other than to say, "Goodmorning."

Q. None of the time that you were in the Assembly?

A. Never. 6105


Q. You attended the Senatorial caucus in 1911 ? A.I did.

Q. Voted in favor of Mr. Depew? A. Yes, sir.Q. And continued to vote for him in the Legislature

until Judge O'Gorman was elected? A. Yes, sir.

2036

6196 Plaintiff's IJTitnesses, Gray, Direct, Cross-Kopp,Direct

FRED J. GRAY, called as a witness for the plain-tiff, being duly sworn, testified as follows:


Q. You live where? A. Ogdensburg.Q. Your occupation is what? A. Lawyer.

Q. Were you in the Assembly in 1911? A. I was.Q. And you were there for how many years? A.

Six years, altogether.Q. And what were they? A. Beginning in 19o6 and

6107 finishing in the beginning of 1912.Q. Do you know the plaintiff, Mr. Barnes? A. I

do.Q. During the 191I Session, did you have any talk

with Mr. Barnes? A. No.Q. About the Senatorial matter? A. No.Q. Did you have any talk with him about any other

matter? A. I don't recall any, during that year.


Q. You voted for Mr. Depew from the time of thecaucus right through until Senator O'Gorman was

6108 elected? A. Yes, sir.

HARRY KOPP, called as a witness for the plain-



Q. You reside where? A. New York City.Q. Your occupation is what? A. Lawyer.Q. Were you in the 1911 Assembly? A. I was.Q. As a Republican? A. Yes, sir.Q. You were there as an Assemblyman for how

many years? A. Three years.

2037

Plaintiff's Hitness, Clarence MacGregor, Direct 6109

Q. What were they? A. 191o, 1911 and 1912.

Q. Do you know the plaintiff, Mr. Barnes? A. Ido.

Q. Did you have any talk with him in 19 11, about

the Senatorship? A. I did not.Q. Were you present at any conference in reference

to the matter? A. I was not.


Q. You voted for Mr. Depew in the caucus and in

the Legislature, until the election of Senator O'Gor- 6110man? A. I did.

CLARENCE MACGREGOR, called as a witnessfor the plaintiff, being duly sworn, testified as fol-

lows:


Q. You live where? A. Buffalo.Q. Your occupation is what? A. Lawyer.

Q. You were in the I9II Assembly? A. I was.Q. You were in the Assembly how many years? 6111

A. Five years.Q. What were they? A. 19o8, 19o9, 191o, 1911

and 1912.Q. And as a Republican? A. Yes, sir.Q. Do you know the plaintiff, Mr. Barnes? A. I

do.Q. Did you have any talk with him in 1911 with

reference to the Senatorship? A. None.Q. Were you present at any conference at which

Mr. Barnes was present? A. I was not.Q. Did you attend any of the conferences in rela-

tion to the election of United States Senator other

2038

6112 Plaintiff's Witness, August V. Pappert, Direct, Cross

than the caucus? A. The meeting at the "Tub"; thatis the only one that I recollect.


Q. You voted for Mr. Depew in the caucus? A.

No; I did not, not at first; I voted for Edward H.Butler.

Q. Did Depew have a majority? A. He did.

Q. Was nominated by the caucus? A. Yes, sir.Q. From that time you voted for him at every

6113 mceting of the Legislature until Senator O'Gormanwas elected? A. Yes, sir.

AUGUST V. PAPPERT, called as a witness for



Q. You live where? A. In Rochester, N. Y.

Q. Your occupation is what? A. Lawyer.Q. Were you in the 1911 Assembly? A. Yes. sir.Q. You were there how many years.? A. Three

6114 years.Q. What were they? A. 1911, 1912 and 1913.Q. Do you know the plaintiff, Mr. Barnes? A. I

do.Q. During the year 1911 Session, did you have any

talk with him about the Senatorship matter? A. No.

Q. Did you have any talk with him about any other

matter? A. No.


Q. You went to Albany and went to the caucus

of the Senate on the Senator question and somebody

nominated Mr. Depew, is that right? A. Yes, sir.

2039

Plaintiff's IFitness, James Shea, Direct 6115

Q. Did you vote in his favor or against him? A.In his favor.

Q. And thereafter you voted in the Legislature for

him for United States Senator until Senator O'Gor-man was elected? A. Yes.

JAMES SHEA, called as a witness for the plain-


Examined by Mr. Barnum:6116

Q. You live where? A. Lake Placid, N. Y.

Q. Your occupation is what? A. Marketman.Q. You were in the Assembly in 1911? A. Yes,

sir.Q. As a Republican? A. Yes, sir.Q. Were you there at other years? A. Yes, sir.

Q. What? A. I was elected in 1907 and served

four years continuously. i9o8, 1909, 191o and 1911.Q. Do you know Mr. Barnes, the plaintiff? A.

I do.Q. During the 1911 session, did you have any con-

versation with Mr. Barnes in reference to the Sen-

atorship? A. No. 6117Q. No talk whatever with him? A. No.

Q. Did you attend any of the conferences along the

last of March? A. I did.Q. The one at the "Tub"? A. No; I didn't at-

tend that.Q. I don't know as you call it a caucus. It was a

meeting-


By Mr. Barnum:

Q. Mr. Barnes wasn't there, was he? A. No, sir.

2040

6.118 Plaintiff's [Fitness, Max Shlivek, Direct, Cross


Q. Mr. Depew was the caucus nominee for the Re-

publicans and you voted for him until Senator O'Gor-

man was elected? A. I voted for him but not at

the caucus.Q. Yes; I didn't ask you that. I said he was the

caucus nominee? A. Yes, sir.Q. And thereafter you voted for him until the final

vote was cast, until Judge O'Gorman was elected?

A. I did.

6119 Q. You obeyed the caucus, is that right? A. That

is right.

MAX SHLIVEK, called as a witness for the plain-


Examined by Mr. Ba'rnum:

Q. IWhere do you live? A. New York City.

Q. Your occupation is what? A. Attorney at law.

Q. Were you in the Assembly of 1911? A. I

was.Q. Were you there other years? A. I was there

6120 during 1911 and 1912.

Q. And as a Republican? A. As a Republican.


do.Q. Did you have any conversation with Mr. Barnes

with reference to the United, States Senatorship? A.

I did not.Q. At any time? A. At no time.


Q. You went to Albany first in 1911 ? A. I did.

2041

Plaintiff's I[itness, Herbert E. Allen, Direct 6121

Q. Attended the caucus? A. I did.Q. A United States Senator was nominated? A.

I did not vote for-Q. I said, was a United States Senator nominated?

A. Yes, sir.Q. Did you vote for Depew? A. At the session,

yes.Q. At the caucus? A. At the caucus, no.Q. You voted for him at the session from that time

until the United States Senator was elected? A. Idid.

Q. You obeyed the caucus, is that right? A. If 6122that is what you call it, yes.

Q. Don't you call it that? A. Well, I followed theresult of the caucus.

RE-DIRECT EXAMINATION by Mr. Barnum:

Q. Whom did you vote for in the caucus? A. Idid not vote at all.

Q: Were not you present at the caucus? A. Iwas present. As I remember it, Mr. Depew was nom-inated, Mr. Roosevelt was nominated and Mr. White,and perhaps one or two others, but I did not vote.

Q. For anybody? A. For anybody. 6123Q. In the caucus? A. In the caucus.

HERBERT E. ALLEN, called as a witness for theplaintiff, being duly sworn, testified as follows:


Q. You live where? A. Clinton, N. Y.Q. Your occupation is what? A. Hardware mer-

chant.Q. You were in the Assembly of 1911 ? A. I was.

2042

6124 Plaintiff's WFitness, Samuel Waring, Direct

Q. As a Republican? A. Yes, sir.Q. Were you there other years? A. I was there in

1910, 1911, 1912 and 1913.Q. Do you know the plaintiff, Mr. Barnes? A.

Yes, sir.Q. Did you have any conversation with Mr. Barnes

in reference to the election of United States Senatorin 1911? A. I did not.

Q. Either before or after the election? A. Atno time.

6123 CROSS-EXAMINATION by Mr. Bowers:

Q. You attended the caucus? A. I did.Q. Which nominated Mr. Depew? A. Yes, sir.Q. From that time on you continued to vote for

him in the Legislature, until Judge O'Gorman waselected? A. I did not vote for him in the caucus.

Q. I did not ask you that. You attended the cau-cus? A. I did.

Q. You voted against him? A. Yes, sir.Q. And he was nominated? A. Yes, sir.Q. From that time on you voted for him? A. Yes,

sir.6126 Q. At all these meetings of the Legislature? A. I

did.Q. Is that right. A. That is right.Q. Until Judge O'Gorman was elected? A. Yes,

sir.

SAMUEL C. WARING, called as a witness forthe plaintiff, being duly sworn, testified as follows:


Q. You live where? A. New Paltz, Ulster County.Q. Your occupation is what? A. Farmer.

2043

Plaintiff's [Fitess, Frank A. [Taters, Direct 6127

Q. Were you in the Assembly in 1911? A. I was.Q. Were you any other years? A. 1911 and 1912.

Q. And as a Republican, Mr. Waring? A. Yes,sir.

Q. Do you know the plaintiff, Mr. Barnes? A.Yes, sir.

Q. Did you have any talk with him at any timein reference to the election of United States Senator?A. I did not.

Q. At no time? A. At no time.

CROSS-EXAMINATION by Mr. Bowers: 6128

Q. Did you attend the caucus that nominated Mr.Depew? A. I did.

Q. Did you vote for him or against him? A. Forhim.

Q. And you thereafter voted for him in the Leg-islature until Judge O'Gorman was elected? A. Idid.

FRANK A. WATERS, called as a witness for the

plaintiff, being duly sworn, testified as follows: 6129


Q. You live where? A. Medina, N. Y., Orleans

County.Q. Your occupation is what? A. Farmer, at the

present time.Q. You are not mixed up in the law business? A.

No, sir.Q. Were you at one time in the Assembly? A. I

was.Q. What years? A. 19II and 1912.

Q. As a Republican? A. Yes, sir.

2044

6130 Plaintiff's Witness, John R. Yale, Direct

Q. Do you know the plaintiff, Mr. Barnes? A. Imet him at one time.

Q. During 1911, did you have any talk with Mr.Barnes in reference to the election of United StatesSenator? A. No, sir; I never met him up to thattime.

Q. When did you first meet him? A. I think itwas along in May or June of that year.

Q. 1911. Then at no time before or after theelection of Judge O'Gorman, did you have any talkwith Mr. Barnes with relation to the election? A.

6131 I did not.

CROSS-EXAM/INATION by Mr. Bowers:

Q. You went to Albany and attended the caucusof the Republicans on the question of the UnitedStates Senator? A. Yes, sir.

Q. And you voted for or against Mr. Depew? A.I voted for Mr. Depew.

Q. And thereafter you continued to vote for himin the Legislature until Judge O'Gorman was elected?A. I did.

6132

JOHN R. YALE, called as a witness for plaintiff,being duly sworn, testified as follows:

By Mr. Barnum:

Q. You live where, Mr. Yale? A. Brewster, Put-

nam County.Q. And your occupation is what? A. Farmer.Q. You were in the Assembly of 1911? A. I

was.Q. You were there how many years? A. Twelve

years.

900~

Plaintiff's Witness, John R. Yale, Direct 6133

Q. What years are they? A. Beginning 1902 ande 0 in 1'913.


Q. You were there, then, during the entire yearx91 ? A. I was.

Q. Did you have any talk in the year 1911 withMr. Barnes with reference to the election of UnitedStates Senator? A. I did.

Q. When was it, Mr. Yale? A. Well, I think theearly parlt of the week in which followed the elec-tion of Senator O'Gorman, Wednesday or Tuesday, 6134

as near as I can remember; I am not positive aboutthat.

0. Previous to the caucus in January, had you hadany conversation with Mr. Barnes in reference to theSenatorship? A. No.

Q. So that some time in the last of March, 1911,was the first time you had had any talk with himabout it? A. Was the first.

Q. Where was that conversation, Mr. Yale? A.At Mr. Barnes' house in Albany.

0. Were there others present? A. No, sir.Q. What was the conversation, Mr. Yale?

Mr. Bowers: I understand him to say it was 6135after the election of Judge O'Gorman. MaybeI am wrong.

The Court: Before the election?

A. The first part of the week, Senator O'Gorman

was elected the latter part of the week.

By Mr. Barnum:

Q. What was the conversation? A. Mr. Barnes

telephoned me at the hotel and asked me to come to

his house. I went up there, he said it was time, forthe best interests of the Republican Party, that the

2046

6136 Plaintiff's Witness, Thomas B. Wilson, Direct

Republicans should join with the insurgent and inde-

pendent Democrats and try to elect a United States

Senator.Q. Anything else said that you remember? A.

Well, I said some things. I told Mr. Barnes I w~uld

not consent to it, I would vote for any Republican in

the caucus, but I should pick my Democrat if I was

released from my caucus obligation. The name of

Thomas Mott Osborne was spoken of. I told Mr.

Barnes I would not support Thomas Mott Osborne.

Q. Anything else, Mr. Yale? A. That is all that

-137 I have any recollection of.Q. Did you have any other conversation with him

at a later time? A. No, sir.


Q. Judge O'Gorman was elected on Friday night.

was not he? A. Yes, I think so, to the best of myrecollection.

Q. And this conversation was the first of thatweek? A. Yes, sir.

Q. You were in the Republican caucus that nom-

inated Senator Depew I suppose? A. I was.

6138 Q. You voted for Senator Depew up to the time

Judge O'Gorman was elected? A. I did.

THOMAS B. WILSON, called as a witness for


By Mr. Barnum:

Q. You live where, Mr. Wilson? A. I live at

Hall, Ontario County.0. Your occupation is what? A. Farmer.

Q. Were you in the Assembly in i911 ? A. I was.

2047

Plaintiff's IT'itness, Albert Yeo mans, Direct 6139

Q. As a Republican? A. Yes, sir.Q. You were there in the Assembly how many

years? A. Two years.Q. What two years? A. 1911 and 1912.

Q. Do you know the plaintiff, Mr. Barnes? A. 'Ido.

Q. You participated in the election of United StatesSenator, in 1911 ? A. I did.

Q. During the year 1911, did you have any talk

with Mr. Barnes in reference to- the election of theSenator? A. I did not.

Q. At any time? A. No, sir. 6140


Q. You attended the Republican caucus which nom-inated Mr. Depew? A. Yes, sir.

Q. Did you vote for him in the caucus? A. I did.

Q. And you voted thereafter in the Legislaturefor him until Judge O'Gorman was elected? A. Yes,sir.

ALBERT YEOMANS, called as a witness for 6141plaintiff, being duly sworn, testified as follows:

By Mr. Rarnum:

Q. You live where? A. Woolworth, WayneCounty.

Q. Your occupation is what? A. Fruit grower.

Q. Were you in the Assembly in 1911? A. Yes,

sir.Q. Were you there more than one year? A. Three

years.Q. What years were they? A. III, 1912 and

1913.Q. As a Republican? A. Yes, sir.

2048

6142 Plaintiff's Witness, Henry A. Pierce, Direct

Q. Did you know Mr. Barnes, the plaintiff? A.Yes, sir.

Q. During the year 1911, did you have a conversa-

tion with him with reference to the election of United

States Senator? A. No, sir.Q. Neither before nor after the caucus? A. Never.

CROSS-EXAMINATION by Mr. Bovers:

Q. You went to the caucus which nominated Mr.

Depew. Did you vote for Mr. Depew? A. Yes,

6143 sir.Q. And thereafter in the Legislature you voted

for him until Judge O'Gorman was elected? A. Yes,sir.

HENRY A. PIERCE, called as a witness, being

duly sworn, testified as follows:

By Mr. Barnmum:

Q. You live where, Mr. Pierce? A. Castile, Wyo-

ming County.

6144 Q. Your occupation is what? A. Banker.Q. Were you in the i91I Assembly? A. Yes,

sir.Q. Were you there more than one year? A. I

was there two years, 19 i and 1912.

Q. As a Republican? A. Yes, sir.

Q. Do you know the plaintiff, Mr. Barnes? A.

No, sir.Q. No acquaintance with him at all? A. Yes, I

saw him in the Convention when he sat on the plat-

form. That is all.Q. Have no speaking acquaintance with him? A.

No, sir.

2049

Plaintiff's Witness, Almeth W. Hoff, Direct 6145

Q. Have you ever talked with him in your life?A. No, sir.


Q. You went to the Assembly in 1911 first? A.Yes, sir.

Q. And attended the caucus for United StatesSenator? A. Yes, sir.

Q. Mr. Depew was nominated? A. Yes, sir.Q. Did you vote for him? A. Yes, sir.Q. Thereafter you continued to vote for him in 6146

the Legislature for United States Senator until JudgeO'Gorman was elected? A. Yes, sir.

The Court: I suppose any of these Legisla-tive witnesses that you have examined maygo?

Mr. Barnum: Yes, I think so.The Court: The other side do not care to

keep them?Mr. Ivins: That is the purpose.

ALMETH W. HOFF, called as a witness for plain- 6147


By Mr. Barrom:

Q. You live where? A. Brooklyn.Q. Your occupation is what? A. Attorney at law.Q. You were in the Assembly of 1911 ? A. Yes,

sir.Q. You were there how many years? A. That

was my first year. I am still there.Q. You have been a member continuously since

then? A. Except the year 1913.

2050

6148 Plaintiff's Witness, Clarence Bryant, Direct

Q. Do you know the plaintiff, Mr. Barnes? AYes, sir.

Q. During the year i911, did you have any talkwith him with reference to the election of UnitedStates Senator? A. No, sir.

Q. Any talk at any time with reference to it? A.None whatever.


Q. Was that your first year in the Assembly? A.6149 Yes, sir.

Q. You attended the Republican caucus on UnitedStates Senator? A. I did.

Q. Mr. Depew was nominated? A. He was.Q. Did you vote for him? A. I did.Q. Thereafter you voted for him as United States

Senator in the Legislature until Judge O'Gormanwas elected? A. I did.

CLARENCE BRYANT, called as a witness for the


6150 By Mr. Barnum:

Q. You live where? A. Leroy, in Genesee County.Q. Your occupation is what? A. Insurance.Q. Were you in the Assembly in 1911? A. I was.Q. As a Republican? A. Yes, sir.Q. Were you there other years? A. I was there

in 1911, I912 and 1913.Q. Do you know the plaintiff, Mr. Barnes? A. I

do not.Q. Never spoken to him? A. I think I was intro-

duced to him, but I never have had any conversationwith him.

2051


Q. When were you introduced, Mr. Bryant? A.I think at the Rochester Convention.

Q. 1912? A. Yes, sir.Q. Is that the only time you have ever had any

talk with Mr. Barnes? A. Yes, sir. I never had anytalk then except to say, "how do you do."


Q. When did you first go to the Legislature? A.1911.

Q. You attended the Republican caucus for Sena-tor? A. I did. 6152

Q. Mr. Depew was nominated? A. Yes, sir.Q. Did you vote for him? A. Yes, sir.Q. And you thereafter voted for him in the Legis-

lature for United States Senator until Judge O'Gor-man was elected? A. I did.

WILLIAM BARNES, the plaintiff, recalled for

further cross-examination:

Cross-exanmination continteed by Mr. Bowers:

Q. You recollect, Mr. Barnes, that I called yourattention Friday afternoon to editorials in the Jour- 6153nal, one of which was published on January 13, 1911-you were in Albany or New York at that time? A.I must have been.

Q. Another on the i8th of January, you were inAlbany or New York at that time? A. I was in NewYork.

Q. Another on the Ist of February, where wereyou then? A. I must have been in Albany.

Q. Another on the 6th of February? A. I musthave been in Albany at that time.

Q. And on the 28th of March? A. I was in Al-bany.

2052


Q. And on the Ist o'f April? A. I cannot saywhether it was exactly on the ISt of April-

Q. I asked you this question because I understoodyour counsel to say some of those articles were writ-ten while you were in Cuba. It is evident they wereall written while you were in Albany or in New York,if I have given you the dates correctly? A. And ifthose are all the articles.

Q. And if they are all the articles that I referredto? A. Yes, sir.

Q. Is that right? A. Yes, sir.6155 Mr. Ivins: I have made no such statement.

Mr. Bowers: Did not you?Mr. Ivins: No.

By Mr. Bowers:

Q. I take it from an article that was put in evi-dence by your counsel on your- direct-examination,that you were not politically friendly to GovernorHughes, am I right? A. I exercised my right ofcriticism.

Mr. Bowers: I move to strike the answerout as not responsive. He can give me yes orno.

6156 The Court: It may go out.Mr. Ivins: I think it is proper to stand.The Court: No, that may go out. I think

he may say whether he was politically friendlyto Governor Hughes or not.

Mr. Ivins: I may be friendly in respect tosome things and not in respect to others.

The Court: He may say so then if that isthe situation.

Mr. Ivins: We have all been for the defend-ant before this.

2053

Plaintiff's V itness, William. Barnes, Jr., Cross 6157

A. The answer to the question is yes, I was poli-tically friendly-

By Mr. Bowers:

Q. You were politically friendly to GovernorHughes? A. I was.

Q. Did you ever regard him as a bulldozer? A.I did not regard Governor Hughes as a bulldozeruntil he sent his message to the Legislature in i9IO,asking them to pass a bill they had already defeated-it had already defeated.

Q. And yet the records that you put in evidence, 6158

by your counsel, to which I have reference, wasan article published in the Albany Evening Jour-nal on the 9 th day of April, 19o8, was it not? A. Ido not recall.

Q. Well, I will read to you-is the Journal filehere?

Mr. Barnum: I think so.Mr. Bowers: I want to be sure that the date

is right that is in the minutes.

Q. Perhaps I can refresh your recollection as towhether it was published in 19o8 by this question.The Agnew-Hart racing bill was defeated in the 6159Senate on the 8th day of April, 1908? A. It was.

Q. On the following day an article was published-do you recall that on the following day an article waspublished headed, "The Day of Bulldozing Has GoneBy" and proceeding, in the first paragraph, "ThePercy-Gray Bill was enacted in 1895 and was declaredconstitutional by the Court of Appeals. Do we un-derstand Governor Hughes to claim that his judg-ment is more to be relied upon than that of the court?"I show you the article. A. Am I to look at it ormay I read it?

2054


Q. You may do both. What is the heading ofthat article? A. "The Day of Bulldozing Has GoneBy."

Q. And the date of it? A. April 9, 19o8.

Q. As early as that, then- A. No, it is not. Itis April 8th. 9 th, that is right.

Q. As early then as April 9 th, 19o8, the editorialin the Journal charges him with bulldozing, chargesGovernor Hughes with bulldozing, did it not?

Mr. Barnum: I object to it, the paper is thebest evidence.

6161 The Court: He may answer.

Q. (Question read by stenographer.) A. The onlyevidence here I can see of that is this statement.

Q. Read it? A. "The day has gone by when Gov-ernor Hughes could bulldoze the Legislature of thisState into any act that he considered to be moral."

Q. Do you regard that as a charge that the dayhad gone by when Governor Hughes could bulldozethe Legislature into any act which he considered to bemoral?

Mr. Ivins: I object to that. Any referenceto what he considered to be moral or anything

6162 else.The Court: I will sustain the objection. He

just answered that question.Mr. Bowers: He read it from the copy.The Court: That was an answer to it.

By Mr. Bowers:

Q. I will ask you is not the article headed "TheDay of Bulldozing Has Gone By"?

Mr. Barnum: I object to it. The article isthe best evidence.

The Court: He may call his attention tothat.

2055


By Mr. Bowers:

Q. Did you charge in that article that in one breath

Governor Hughes says the race track bill must pass

because the Percy-Gray Law is unconstitutional? A.

I do not quite understand your question. This ar-

ticle says-I can only read the article, that is the only

matter that I can put in evidence.

Q. Have you no recollection as to whether or not

you ever, at or about that time, charged that Gover-

nor Hughes had alleged that the Percy-Gray act was

unconstitutional? A. I beg your pardon?

Q. Have you no recollection as to whether at or 6164

about the 9th day of April, 19o8, you charged that

Governor Hughes had claimed that the Percy-Gray

act was unconstitutional? A. Why, it was generally

discussed that it was unconstitutional.

Mr. Bowers: I move to strike out the an-

swer.The Court: Strike it out.

A. I know of no such charge except the statement

here.

By Mr. Bowers:

Q. Is that the only recollection that you have as 6165

to such a charge being made at that time by you? A.

The charge being that he said-

Q. Yes? A. He considered-Q. Yes? A. The Percy-Gray Law unconstitu-

tional.Q. Yes? A. I cannot recall making the charge.

Q. Well, then look at the article. In plain English

it says, does it not, in one breath, he says that the

race track bill was passed because the Percy-Gray

Law is unconstitutional. That is distinct and plain

in the article, is not it? A. It certainly is.

2056

6166 Plaintiff's Vitness, William Barnes, Jr., Cross

Q. You know that Governor Hughes sent a mes-sage upon that subject to the Legislature in the monthof January, 19o8?

Mr. Ivins: Objected to as immaterial.The Court: As I say, I am going to allow a

very liberal cross-examination, but I do notquite see what this Percy-Gray Law has to dowith the case.

Mr. Bowers: Neither did I until Mr. Ivinsintroduced the article.

The Court: Did they introduce the article?6167 Mr. Bowers: Yes. I did not introduce it,

they introduced it.The Court: They introduced this article?Mr. Bowers: Certainly.The Court: Then you can cross-examine, if

that is so.Mr. Barnum: That is not my recollection.Mr. Bowers: At page 2901, "Mr. Ivins: I

now offer it in evidence." The evidence beforethat is this: "I ask you to look at the AlbanyEvening Journal of April 9, the day after thedefeat of the Agnew-Hart Bill at the regularsession (handing witness paper marked Ex-

61 68 hibit 240). What in relation to this article?See if it contains an editorial comment on thatarticle ?

"The Witness: It does."Mr. Bowers: I do not object to your read-

ing it.

"By Mr. Ivins:

"Q. Did you write or instruct the writing ofthat article? A. I did.

"Mr. Ivins: I now offer it in evidence."

The Court: Well, if it is offered in evidenceyou can cross-examine him about it. I see it

2057


was offered in evidence without objection, or it

would probably not have been received.

Mr. Bowers: Very likely not, but they

wanted to show it and it was entirely agree-able to us.

Now, we have got the original article that

was offered and the stenographer will read my

last questiof_.(Question read by stenographer as follows:

"You know that Governor Hughes sent a mes-

sage upon that subject to the Legislature in the

month of January 19o8?") 6170

Mr. Barnum: Objected to as incompetent,immaterial and irrelevant.

The Court: He may answer.

Exception to plaintiff.

A. The question is: Do I know that the message, or

did I know then?

By Mr. Bowers:

Q. Did you know on the 9 th day of April, 1908,

that Governor Hughes had, in his annual message, to

the Legislature at the opening of its session in that

year- A. I should very much doubt it.

Q. Requested them to take up the consideration of 6171

the Percy-Gray, so-called, racing law? A. I cannot

answer.Q. Now, Mr. Barnes, we will take it up from an-

other standpoint. It was concerning an act of the

Legislature that you were asking Mr. Grattan to vote

in a certain way?

Mr. Ivins: I object to it; that has been ruled

out.Mr. Bowers: In the first place, it has not

been ruled out, and in the second place, that is

an article which they put in evidence and with

2058


which I certainly can refresh this witness'srecollection.

The Court: It was left in as bearing on thequestion of dominance.

Mr. Bowers: I know it was.Mr. Ivins: Dominance, and that alone. Domi-

nance of one member of the Legislature.Mr. Bowers: That is perfectly right, that is

what it is left in for.The Court: He may answer.Exception to plaintiff.

6173 (Question read by stenographer as follows:"It was concerning an act of the Legisla-ture that you were asking Mr. Grattan to votein a certain way?")

A. It was concerning a bill pending before theLegislature.

By Mr. Bowers:

Q. And before which house was it pending? A.The Senate.

Q. The act had passed the Assembly? A. Yes, sir.The bill had passed the Assembly.

Q. What was the bill about? A. The bill was6174 about-it was a measure to repeal what was known

as the Percy-Gray Bill.Q. At that time there was a good deal of discus-

sion, public discussion, concerning that particular bill,was there not? A. There was.

Q. You were interested concerning the bill, eitherin favor of or against it?

Mr. Ivins: I object to that unless we havesome definition of interest.

The Court: He may answer.Mr. Bowers: I think the witness understands

the English language pretty well.

2059

Plaintiff's Witness, William Barnes, Jr., Cross 617 5

Mr. Ivins: Well, you do not.Mr. Bowers: Well, I know that, but that is

unfortunate for me. I am trying to learn fromyou gentlemen.

The Court: Did you answer?The Witness: I have not answered it.

The Court: Read the question.(Question read by stenographer as follows:

"You were interested concerning the bill, eitherin favor of or against it?")

A. I remember. 6176

By Mr. Bowers:

Q. I object. I asked for yes or no. A. Interest.Well, I should say yes to that.

Q. What do you say? A. I say, Yes, I was in-terested in the sense of interest in public matters. Any-body would be interested.

Q. Now, you were opposed to the passage of thebill, repealing the Percy-Gray Act? A. At whattime?

Q. On the 8th day of April? A. I was.Q. 19o8? A. I was.Q. You had been for how long before? A. I had 6177

no function in that matter. As editor of the AlbanyEvening Journal-

Mr. Bowers: I move to strike that out.

The Court: No. He simply asked you how longyou had been opposed to the bill prior to the 8th dayof April?

The Witness: I cannot answer that.

By Mr. Bowers:

Q. You want to say you cannot answer-which do

you mean that you cannot tell me whether you had

2060


been opposed to the bill for a day or a week or amonth? A. The reason why I cannot answer it isbecause I must find out who, you mean by "I."

By the Court:

Q. Whether he means you individually? A. Thatis what I want to get at.

Q. He means you individually, not the Journal. A.What is the question?

Q. How long before the 8th day of April had youbeen opposed to the repeal of the Percy-Gray Act?

61-19 A. Well, it depends entirely on what you mean by "I,"At one time I thought one way about it and at an-other time I thought another way about it.

Mr. Bowers: I move to strike out the an-swer.

A. I cannot answer the question categorically. Ifyou want the answer that way, I should say I cannotanswer.


The Court: That last part may stand. Thefirst part may go out. "I cannot answer it

6180 categorically." That may stand.

By Mr. Bowers:

Q. Did you openly declare at one time that you hadopposed the bill from the time the Governor advisedits passage? A. There is a letter in evidence whichI wrote to Dr. McFarland of a committee of citizensof Albany in reference to this matter in which Istated my personal position with regard to this bill.

By the Court:

Q. Did you state in that letter that you had been

opposed to the repeal of the bill from the time the

2061

Plaintiff's IVitness, IVilliam Barnes, Jr., Cross 6181

Governor proposed it, or don't you remember? A.I cannot distinctly remember.

By Mr. Bowers:

Q. You then have no recollection at the presentmoment as to whether you were opposed to the pas-sage of that legislation from any specific date? A.I took no active interest in the proposal to defeat themeasure until after I had gone to New York at therequest of Mr. Roosevelt to see Mr. Belmont.

Mr. Bowers: I move to strike out the an-swer as not responsive. 6182

The Court: It may go out.

By Mr. Bowers:

Q. Do you remember making an address in Albanyshortly before the Republican National Convention in19o8 in which you expressed your views concerningthis bill?

Mr. Ivins: I object to that on the groundthat it is entirely immaterial whether he wasor was not opposed to it.

The Court: I think it was on the direct-examination, was it not, that it was broughtout? Some alleged interview with the defend- 6183ant in which the defendant asked him to goand oppose the bill, and that he objected to op-posing it and that the defendant urged him andhe finally went. I think it is competent oncross-examination as bearing on that piece ofevidence.

Exception to plaintiff..(Question read by stenographer as follows:

"Do you remember making an address in Al-bany shortly before the Republican National

2062

6184 Plaintiff's Titness, William Barnes, Jr., Cross

Convention in 19o8, in which you expressedyour views concerning this bill ?")

Mr. Ivins: I object to that on the groundthat it was after the date of the conversationwith the President.


A. Made an address in Albany prior to the NationalConvention of 19o8? I do not think so.

By Mr. Bowers:

Q. Do you remember making a speech at the Uncon-_6185 ditional, an organization called the Unconditional?

A. I do not recall I made any speech.Q. Do you remember the Unconditional, what it is?

A. The Unconditional is a Republican club in AlbanyCot;nty of forty or fifty years' standing.

Q. Did you not make a speech in which you statedthat it was proposed by the Governor in his annualmessage to the Legislature that the statute commonlyknown as the Percy-Gray law, which was enacted inthe year 1895, and signed by Governor Morton, shouldbe repealed? A. If the Journal says that, I unques-tionably made that statement.

Q. Upon that day the Albany Evening Journal op-6186 posed the passage of the law, that is the repeal, upon

the ground that its passage would not conduce to pub-lic morality, but would increase rather than lessen theevil which it was intended to destroy, do you remem-ber that? A. I don't remember making a speech.

Q. Will you be good enough to look at the file of theAlbany Journal of April 28th and tell me whether youdid make such a speech at the Unconditional Club(showing witness paper)? A. I do not recall thespeech at this moment, but I must accept the testimonyof the Journal in relation to it.

Q. What is the position then in which that leavesus; that you did make the statement that I have read

2063

Plaintiff's Witness, IVilliarn Barnes, Jr., Cross 6187

and asked you if you made? A. I cannot certify tothe accuracy of the report, I cannot certify to what Isaid at that time, but I can say in general that that re-port is apparently correct, as correct as most news-

paper reports. I cannot go any further than that.Q. Do you mean to say that with your recollection

refreshed by reading the speech that you are now un-

able to tell me whether you ever made the speech? A.I want to visualize it. Where was it?

Q. "Reminding his hearers that the voters of thecommunity may always register their approval or dis-approval of public leaders, or public members at the 6188primaries, William Barnes, Jr., at the annual dinner ofthe Unconditional Republican Club last evening againmade clear his attitude toward the anti-race track mes-sage of Governor Hughes." Does that assist you?A. Does it give the place?

0. It says at The Unconditional Republican Club?A. I mean the hotel or the place?

0. No; I don't think it does. That is all, I can't as-sist you any further as to the particular place wherethe dinner was held. That is a club well known toyou? A. Yes.

Q. It is a club at which you had made speeches?A. I doubt that very much. 6189

Q. You doubt very much whether you made thatspeech? A. I have made speeches at The Uncondi-

tional Club since that time, but I doubt if I made one

before.Q. How about this speech, did you make this

speech? A. I have already answered the question.Q. You have answered that question? A. I am

not trying to avoid any statement.Q. You have already answered the question, but I

did not understand your answer, because perhaps I am

not sufficiently gifted in English, so I will put it in this

form. Is your recollection refreshed so that you can

2064

6190 Plaintiff's Witness, IIilliarm Barnes, Jr., Cross

state whether or not you made that speech which ispublished in the Albany Journal, and which I thinkyou have examined at some considerable length? A.Is the date April 27th?

Q. I don't care what time it was made, at or aboutthat time. It is published in the Journal of the 28th.You can answer that yes or no? A. I made a speechat the Unconditional dinner of which that purports tobe a correct copy; I cannot certify that it is a correctcopy, or the correct words that I used. It is probablyvery nearly correct.

6191 Q. Then we can take it that it is very nearly cor-rect? A. If you are satisfied with that.

0. NOu went on, didn't you, and spent most of yourspeech in criticizing Governor Hughes for his actionon the Percy-Gray bill? A. Yes.

Q. And that went into the question of constitu-tionality, didn't it? A. It did.

Q. And you charged, did you not, that GovernorHughes had claimed that the act was unconstitutional?A. That the Percy-Gray law in his opinion was tin-constitutional.

Q. You charged that distinctly, did you not? A.Yes.

6192 0. To make, perhaps, the matter a little easier forboth of us; this article in the Journal that was pub-lished on the 9 th was written by your direction or byyou, was it not? A. I have so testified.

Q. Then it was? You have so testified? A. Ihave.

0. Now, to go back to that article, I ask youwhether it is not the fact that you claimed from thetime Governor Hughes recommended in his annualmessage to the Legislature the passage of the repealof the Percy-Gray law, that you asserted that heclaimed that it was unconstitutional? A. From theIst of January?

2065


Q. Yes, or the 5 th of January? A. Whenever themessage was?

Q. Yes. A. I cannot give you, that date.Q. You say in this speech that upon the date that

Governor Hughes proposed in his annual message tothe Legislature that the statute commonly known asthe Percy-Gray law should be repealed, the AlbanyEvening Journal opposed the passage of that law?A. That is a statement of fact.

Q. Isn't it a statement of your opinion in the mat-ter, too? A. Certainly, it is a statement of the opin-ion of the Albany Evening Journal. 6194

Q. And isn't the opinion of the Albany EveningJournal on that subject your opinion? A. Not neces-sarly, connected with any political act.

Q. Was the position which you took in that article,and in the article of April 9th, and the article pub-lished early in January, opposing the legislation thatGovernor Hughes suggested-what had you to dowith that article? A. What had I to do with it? Itwas published in the Evening Journal, and, as I saidbefore, I am the responsible editor, unless there issomething creeps into the paper that is not properfrom my point of view, then, of course, I would dis-own it. 6195

Q. What position do you take as to that article,do you disown it, or are you responsible for it? A.Which one?

Q. The one that you referred to in your speech?A. What is the question?

Q. (Question read): What position do you takeas to that article, do you disown it or are you re-sponsible for it? A. I think I should have an oppor-

tunity to read the article. It is over eight years sinceit was printed.

Q. Do you think under your statement in this

speech to which I have called your attention that you

2066


can now tell me whether you were at that time in ac-cord with the position the Journal took as to Gov-ernor Hughes' recommendation as to legislation con-cerning the Percy-Gray bill? A. I have tried to ex-plain that. It seems to me very simple. I am re-sponsible for articles that appear in the Albany Even-ing Journal as I am the editor of it. It has no rela-tion whatsoever to any political act of mine.

Q. I don't know that I quite understand you. Youhave stated that you were the editor and responsiblefor all articles in the Journal, have you not? A. I

6197 understand-Q. Can't you answer yes or no? Have you stated

you assumed responsibility for editorial articles in theJournal by whomever written? Will you answer thatyes or no? A. No, I have not testified to that.Q. You haven't? A. Not exactly that. Responsi-

bility as against prosecution which might be madeagainst employees. That is the testimony I gave.Q. Perhaps you forget that on my examination on

Friday I asked you whether you extended that to thepublic; I asked you whether you extended your rea-sons for protection for the employees to the publicand for the benefit of the public, and if we might rely

6198 on the editorial policy of the Journal, and do you re-meffiber how you answered it? A. I can't rememberexactly.

Q. Do you remember- A. Of course, that coversthe point. I am not trying to avoid responsibility forthis article.

Q. Do you accept it, or do you not? A. I cer-tainly accept, the responsibility as the editor of theAlbany Evening Journal of what editorials are printedin it, but I won't be responsible'for every article thathas been printed in it to be held up as against meindividually, that is my only point.

2067

Plaintiff's [Fitness, TTilliam Barnes, Jr., Cross 6199

Q. I am now asking you individually whether youmade the statement in the spirit to which I have re-ferred? A. Why, certainly.

Q. Did you, or did you not intend by that to in-dicate that your views were against the passage ofthat act which the Governor recommended? A. Myown personal views?

Q. Yes. A. Not necessarily.Q. Did you not in this speech go on for a column

and a half or two columns in criticism of the legisla-tion that Governor Hughes had demanded in that re-gard? A. Certainly. 6200

Q. And did you not there give your reasons as towhy you had opposed the passage of that bill as anindividual? A. I certainly did, as an individual.

Q. As your recollection is now refreshed were notyou opposed to the passage of that bill from the verytime the Governor suggested its passage? A. I wasnot.

Q. You were not personally? A. I was not.Q. And you had never taken any steps, editorial or

otherwise, to express your hostility to that bill? A.The Albany Evening Journal expressed opposition tothat bill.

Q. From the start? A. It did. 6201Q. And you knew it, didn't you? A. Certainly I

did.Q. In this article which you directed there is a

statement which you may look at, in the paragraphnext to the last: "It is certainly a novel argument

for the Governor to make that a bill should be re-

pealed because it is unconstitutional when it has been

on the statute books for thirteen years and has been

held by the highest court in the State to be constitu-

tional." Do you remember that language? A. I

think I testified that I either wrote the article or di-

rected its publication, which covers the article.

2068


Q. Then may we assume that that paragraph waswhat you personally believed? A. I should not thinkthat that would follow.

Q. You would not think that that would follow?Is that your answer? A. Yes.

0 Did you or did you not write or direct that thatparagraph should be inserted in that editorial? A. Idid hot.

Q. Then what am I to understand from your testi-mony that you wrote or directed the article, or thatyou did not write or direct the article? A. I mean

6203 that either I wrote that article (which I very muchdoubt) or that I telephoned to the office to the editorand asked him to write an article in relation to theevents of the day before, or that he may have writ-ten it of his own accord without consultation withme at all. I happen to know that I was not in theAlbany Evening Journal office on the day of April9, 1908. I think that this article stands for itself;that it is a consistent, well put together article, cover-ing the points at issue which were at that time undergeneral discussion, and which a daily newspaper mightvery properly consider from any point of view whichit desired to take.

6204 Q. Then, as I understand you now, you do not as-sume the responsibility for the statements that I havejust read to you contained in that article? Would youmind answering that yes or no? A. What does re-sponsibility mean?

Q. I ask you to answer yes or no? A. Give methe meaning of responsible?

Q. Don't you know what the word responsiblemeans? A. There is legal responsibility, and there isfinancial responsibility, and moral responsibility.

Q. Well, there is moral responsibility here. Doyou assume the moral responsibility for that state-ment? A. Will you show me any moral propositioninvolved in it?

2069

Plaintiff's I1itness, Jfilliam Barnes, Jr., Cross 6205

Q. I ask you this simple plain question: Did youread that article? A. When?

Q. At any time? A. I can't answer because I don'tknow whether I wrote it.

Q. If you wrote it you wrote the paragraph that Ihave read, didn't you? A. Certainly.

Q. Yesterday you allowed that article to be put inevidence before the jury by the statement on yourpart that you either wrote it or directed its writing, didyou not? A. Certainly. I have said so all along.

Q. Do you mean to say that that imposes no re-sponsibility, financial, legal, moral or otherwise, upon 6206you in that article? A. It opened me to a suit forcriminal libel.

Q. Is that the only thing you are afraid of or thatyou are worried about? A. I am not worried aboutanything.

Q. Are you worried at all about being held to hav-ing had in your mind the views that that editorialexpresses? A. No.

Q. Now, Mr. Barnes, you know, as a matter of fact,that the Governor never claimed that that act was un-constitutional, don't you? A. I do not.

Q. You know, don't you, that the Percy-Gray actwas an act which imposed a financial loss solely for 6207betting done at the race tracks? A. I do. Wait amoment. I won't be sure about that.

Q. Very well? A. Financial loss only?0. Yes? A. I am not quite sure.Q. Don't you remember that the Percy-Gray Act

provided that no other punishment should attach tobetting at race tracks except the loss of the moneybet? A. That is right.

O. Whereas pool selling, or betting at pool rooms,was a crime under the laws of the State at that time?You remember that, don't you? A. It is a crime atthe present time, isn't it?

2070


Q. It was then? A. A crime or a misdemeanor?Q. It was a felony, wasn't it? Don't you know

that the great issue between Governor Hughes and theLegislature at that time was whether the act shouldbe repealed which permitted acts to be done at a racetrack without imposing criminal liability which at anyother place would impose criminal liability? Don'tyou remember that? A. That was involved. I thinkthat was a statement that was discussed by people in-terested in the matter.

Q. XWasn't that a fact, that that was what the

6209 Governor claimed, that the Percy-Gray law did that?

Mr. Ivins: I object to that.The Court: What he understood about his

claim he may state.

By Mr. Bowers:

0. Isn't that what you understood the Governorclaimed? A. I can't say so.

Q. Didn't you understand that the Governor furtherclaimed that the Court of Appeals had held the Percy-Gray Law to be constitutional because the Constitu-tional Convention had left it to the Legislature tocarry out its mandate, and that therefore the Legisla-

6210 ture, so far as the constitutionality of the law wasconcerned, was left with a discretion in the matter?


By Mr. Bowers:

Q. Didn't you understand that?


A. I know that to be the truth. I didn't understandwhether Governor Hughes presented it or not. Thatis unquestionably the fact.

Q. Did you not know that the Constitution of theState which was adopted in 1894 provided that pool

2071

Plaintiff's Vitness, William Barnes, Jr., Cross 6211

selling, or any other kind of gambling should not

thereafter be allowed within the State, and that the

Legislature should pass appropriate laws to prevent

offenses against any of its provisions? A. I did.

Q. You knew, didn't you, that Governor Hughes

claimed that the Percy-Gray Law was an evasion of

that provision of the Constitution?


A. I do.Q. And to that you expressed yourself as opposed,

or at least your Journal expressed itself as opposed, 6212

from the moment Governor Hughes suggested it? Is

that right? A. Suggested the repeal of the Percy-Gray Law?

Q. Suggested the repeal? A. The Evening Journal

editorially opposed the proposed repeal.

Q. That is right? A. Correct.Q. Do you remember the paragraph in that editorial

which was offered in evidence by your counsel, at the

conclusion: "It is a matter of great congratulationthat there were eight Republican Senators yesterday

who stood out and saved their party from the narrow

and illiberal spirit which is behind the Agnew-Hart

bills"? Do you notice that paragraph? A. I do. 6213Q. Did you read that at the time? A. I cannot

recall.Q. Did you write it? A. I have already testified

that I cannot state whether I wrote that article or

whether I directed it, and that covers all the para-

graphs in it.Q. Let me ask you whether you at that time felt

that it was a matter of great congratulation that the

eight Republican Senators had stood out?


The Court: He may answer.Exception -for plaintiff.

2072


A. The question is whether I felt-Q. Yes? A. I should say yes.Q. No doubt if it is there? A. Not if I said yes.Q. But it took you some time to say it. Were you

doubtful? A. I wanted to be sure.Q. Now are you sure that you did hold those

views? A. I have answered that question. I don'tknow what you mean by "those views."

Q. Then I will explain to you, if I may. Who werethose eight Republican Senators? A. Were not theirnames put in evidence in the early part of the trial?

6215 Q. Possibly, but I have forgotten. Do you remem-ber any of them at all? A. Senator Wemple I re-member, Senator Grattan.

Q. If that is all you can recall say so? A. No.Senator Cassidy, I think.

Q. Any more you can remember? A. (No answer.)Q. I won't waste any more time on that. How

many votes were given against the bill? A. 25.

Q. It was lost by a vote of 25 to 25, wasn't it? A.That is right.

Q. And the rest beyond the eight, were Democrats,were they not? A. I think so; yes.

Q. Seventeen Democrats' votes? A. Well, there6216 might have been an Independent or two, that is the

reason I hesitated.Q. Was Senator Grady against the bill? A. I

don't remember, Grady was in the Senate, and if allthe Democrats voted no, he must have voted no.

Q. Don't you know that he voted no? A. I do not.Q. Did you know Senator Grady? A. I did.Q. How long had you known him? A. That was

in 1908?Q. Yes?

Mr. Ivins: I object to it on the ground thatthe testimony with regard to Senator Grady

2073


has been stricken out except so far as it may

possibly bear on the question of dominance;

and your Honor has held that the course of the

plaintiff, in respect to that legislation, as I un-

derstand, was entirely within his rights, and

entirely proper, and that he had a right to dis-

cuss it with anybody. The evidence was ruled

out except so far as concerning the matter of

dominance.The Court: He may answer.

Exception for plaintiff.

A. I first met Senator Grady in 1882 when I was 6218

a reporter in the State Senate.

Q. That is, you mean to say you had known him

since 1882? A. Well, 19o8 and 1882-twenty-six

years.

Q. What I wanted to know was how long you had

known him. Had you known him since 1882? A.

Yes.

Q. Was he then a Senator in the State Senate? A.

He was.Q. And he was a Senator in the State Senate for

many years thereafter? A. He was.

Q. Off and on? A. Off and on, I think.

Q. He was the leader of the Democrats, wasn't he, 6219

in 19o8?

Mr. Ivins: I object to that on the ground

that the Democratic leadership has been ruled

out. We have tried to prove who was the

Democratic leader and your Honor has declined

to permit us to prove it.The Court: He may answer.Exception for plaintiff.

A. He was what is known as the leader of the min-

ority in the Senate.

2074


Q. And he held that position for how many years?A. I cannot answer that.

Q. You remember it was for a great length of time,don't you? A. It might have been; I am not verysure about it; five or six years. I don't know howlong it was. Senator McCarren was the leader then.

Q. In 1884? A. Oh, no, long after that.Q. Was Grady the leader of the Democratic min-

ority in 19o8? A. I think he was.Q. Have you any doubt of it? A. He was removed

from leadership in 1911.6221 Mr. Bowers: I move to strike out that an-

swer as not responsive.The Court: It may go out.

A. He must have been leader in t9o8 then.Q. Did he not lead the opposition on the floor of

the Senate to the proposed bill repealing the Percy-Gray law? A. I don't know.

Q. You don't know? A. No. I never talked withMr. Grady on' the subject. "

Mr. Bowers: I move to strike out the latterpart of the answer as not responsive.

The Court: That may go out.6.222 Q. Did you not know 'at the time that you talked

with Senator Grattan that his vote would defeat thatbill? A. I was very confident when I asked SenatorGratten to vote against the measure that it would re-sult in its defeat,


The Court: The answer may stand.Exception for defendant.

The Witness: I will strike out of the answer "very,"and I can't say confident, because I cannot predict. I'

felt quite sure.

2075

Plaintiff's Wl'itness,. l'illiam Barnes, Jr., Cross 6223

Q. You were in Albany at that time? A. I was.Q. And you were in the habit of reading the Albany

Evening Journal when you were in Albany? A. Yes.Q. And looking after the editorials and news ar-

ticles? A. Yes.Q. And you were interested sufficiently to advise

Senator Grattan how he should vote? A. I was.Q. And on \Vednesday, April 8, was there not an

article published in the Albany Journal bearing uponthe passage or defeat of this hill? A. There musthave been if the paper was published.

Q. And do you not recall that it was stated in that 6224article that Senator Grady had led the fight againstthat bill? A. I do not recall it.

Q. Refresh your recollection by looking at this ar-ticle? A. If it says so I need not look at the paper.

Q. I will read to you, and see if you will accept whatI read as correct: "The anti-race track bills reachedthe final stage in the Senate today. There was agreat crowd of spectators. The first bill to be takenup was the second referred to above." I won't takeup the time to read all the details. "Senator Grady,who last week led the fight against the bill fired the firstgun by a motion to strike out the enacting clause, themost direct method of killing the bill. Senator Grady 6225began by attacking Gxernor Hughes for his speechMonday night before the Lincoln League." Then theygo into detail. Is your recollection refreshed by myreading that sufficiently to state whether you knewthat Senator Grady was leading the fight against thatbill? A. It is refreshed from the fact that when youread me this statement I suppose it is true, of course.

0. That is all? A. I have no knowledge of thematter personally.

Q. It does not bring back to your mind the knowl-edge that you had at that time? A. No.

Q. Did vou know Senator McCarren? A. I did.

2076

6226 Plaintiff's WIitness, W1"illiam Barnes, Jr., Cross

Q. How long had you known him? A. Ten ortwelve years.

Q. This article proceeds, "The attack upon Gov-ernor Hughes was continued by Senator McCarren,

who said that the Executive was entirely incorrect inhis plea that the present bills would stop gambling."Do you remember that? A. I think not; no.

Q. How did you happen to know Senator Grady?Because you were a newspaper reporter and it was

part of your business-in 1882? A. Yes.Q. Is that right? A. Yes.

6227 Q. Your acquaintance continued with him all thetime he was in the Legislature? .\. I testified that Imet Senator Gradv in 1882. 1 never had any acquaint-ance with him.

Q. You never had any acquaintance with him? A.Not what I call acquaintance.

Q. You used to see him about, didn't you? A. Icertainly saw Senator Grady if I was in the SenateChamber. What I mean is that Senator Grady and Iwere not friends.

Q. That may be. When viu met him you spokewith him, didn't you? Is that right? A. I certainly

spoke to him when I saw him.

6228 Q. And the same thing is true of Senator McCar-ren? A. Yes.

Q. Did Senator 'McCarren, at any time, have anytalk with you concerning this Hart-Agnew bill? A.He did.

Q. Vhere did that conversation take place? A. At

mv house in Albany.Q. He went to your house in Albany? A. He did,

he came there.Q. Concerning the passage of this bill? A. That

was the object of his visit.Q. .\nd wvas that about the same time that the bill

was defeated? \. It was then it was defeated.

2077

Plaintiff's Witness, Wfilliam Barnes, Jr., Cross 6229

Q. How long before it was defeated? A. I shouldthink about four days.

Q. Did he discuss with you the possibility of defeat-

ing this bill? A. He did.

Q. And you discussed it with him? A. He statedto me-

Q. Just answer my question first. You discussedthat with him, did you not? Just answer that yes or

no? A. I made replies to his statements.

Q. Now you may tell me what he said?

Mr. Barnum: Objected to as incompetent, 6230immaterial and irrelevant.

The Court: I don't quite see, Mr. Bowers,

how this is any answer-Mr. Bowers: This is entirely at the present

moment a cross-examination on matters that

they brought out by this witness in one form

or another.The Court: This is a conversation with Sen-

ator McCarren just before the bill was passed?Mr. Bowers: Yes. It is quite an important

matter, it seems to me; that we should have

that fact, as bearing on the good faith of this

witness and his credibility.The Court: He may answer. 6231Exception for plaintiff.

By Mr. Bowers:

Q. Now, you may tell me what he said? A. Sen-

ator McCarren told me that he had made a very care-

ful canvass of the Senate in relation to this measure,

and if Senator Grattan would vote against the bill

he felt confident that the result would be a vote of

25 to 25, which would defeat the measure; and asked

me whether I would not talk with Senator Grattan

about the matter and see whether he would be willing

2078

62:12 Plaintiff's lf'itness, William Barnes, Jr., Cross

to vote against the bill, as his attitude was simply

undetermined. I told Senator McCarren-

Q. I didn't ask what you told him and I object to

your stating it. I am going to ask for the other, butI object to your proceeding beyond my question.

Mr. Ivins: I insist that he should be allowedto answer.

The Court: It is hi s right to ask after any

part of the conversation, if he don't want thewhole of it. You can bring out the rest of iton re-direct.

6O33 Mr. Ivins: I except. He has asked for theconversation as a whole.

Mr. Bowers: I did not ask for the conversa-

tion. I asked what McCarren said.

By Mr. Bowers:

Q. Knowing, therefore, that Senator Grattan'svote-

Mr. Ivins: I object to that. That involves

a conclusion.The Court: Wait until the question is fin-

ished.Mr. Ivins: No.

6;34 The Court: Wait until the question is fin-ished and then make your objection and I will

rule on it.Mr. Ivins: I take an exception.

Mr. Bowers: To what?Mr. Ivins: He has no right to begin his

question by asking "Knowing, therefore."

The Court: Sit down, Mr. Ivins. When he

has finished the question you may object.

By Mr. Bowers:

Q. Knowing, therefore, the matters which Senator

McCarren had stated to you did you make a reply to

him?

2079


Mr. Ivins: I now object.The Court: The question is improper in

form. You may ask him what reply he madeto Senator McCarren.

By Mr. Bowers:

Q. What reply did you make to Senator McCar-ren? A. I told him that I would see Senator Grat-tan and talk with him about the matter; that he wasvery much opposed to doing it; that I didn't want tobecome involved in the proposition at all, but that Iwould talk with the Senator and see what he would 6236do, find out what he would do.

Q. And did you thereupon have a conversation withSenator Grattan as to the question of his vote uponthat bill?

Mr. Barnum: I object to that as immaterial.The Court: He may answer.Exception for plaintiff.

A. No; not thereupon.Q. Thereafter, then, if you like that better? A.

I think I saw Senator Grattan about two or threedays after. He came to my house and I talked thismatter over with him.

Q. Did he come to your house by accident or by- 6237appointment?

Mr. Ivins: I object to that.The Court: He may answer.Exception for plaintiff.

A. I asked him to come.Q. Did you ask him to come for the purpose of

talking with him about his vote upon that bill? A.I did.

Q. You knew at that time that he had announcedin the Senate his being in favor of the Hart-Agnew

Bill?

2080


Mr. Barnum: That I object to as imma-terial.

A. That is not true.

The Court: When an objection is made by yourcounsel, Mr. Barnes, if you want advantage taken ofit, you. must not answer.

The Witness: I beg your pardon.

Mr. Barnum: I move to strike out the an-swer.

The Court: No. It may stand now.6239 Exception for plaintiff.

Q. Is it, or is it not the fact that you had knowl-edge at the time you sent for Senator Grattan that hehad declared in a speech in the Senate that he wasin favor of the legislation that had been advised byGovernor Hughes?

Mr. Barnum: I object to that as imma-terial.

The Court: He may answer.Exception for plaintiff.

A. No.6240 Q. Had you knowledge or information at that timethat Senator Grattan had expressed himself concern-

ing the stand that he intended to take upon that bill?A. Yes.

Q. And that stand was in favor of or against?

Mr. Barnum: That is objected to.

By Mr. Bowers:

Q. The stand of which you had information wasthat he was in favor of or against the legislation?

Objected to as immaterial and calling for aconclusion.

2081


Objection overruled. Exception for plain-tiff.

A. My understanding was that he had stated in

the Senate that if the amendment to the bill whichprovided that it should take effect on the Ist of Sep-tember rather than immediately was not carried, thathe intended to cast his vote in favor of the bill, un-amended.

Q. I will ask you the question again. Did you un-derstand that Senator Grattan had expressed himself

as being in favor of or against the bill? 6242-Mr. Barnum: I object to it as repetition.Mr. Bowers: I didn't understand his an-

swer.(Answer read.)The Court: I think that is an answer.


Afternoon session, Monday, May 17, 1915.

WILLIAM BARNES, recalled:

By Mr. Bowers:

Q. Had you seen Senator McCarren at any time 6243

prior to the interview of which you spoke? A. Youmean this one in connection with this matter?

Q. Yes. A. No.Q. Did you see him afterwards? A. No; I might

have seen him; I had no interview with him.Q. You only had that one interview with him? A.

That is all.Q. He was in the State Senate? A. He was.

0. From Brooklyn? A. Yes, sir.Q. He was a leading Democrat, wasn't he?

Mr. Barnum: I object to that as immate-

rial.

2082

6244 Plaintiff's Witness, Villiam Barnes, Jr., Cross

Objection overruled.

A. Well, I don't know how much of a leader hewas; he had been defeated in the State Conventionof 19o6.

Q. He was a Democrat? A. He was a DemocraticSenator.

0. You have your views as to leadership as you ex-press them here. Was he one of the leading men inthe Democratic Party in the Senate?

Mr. Barnum: I object to that as incompetent,

6245 irrelevant and immaterial.Objection overruled. Exception.

A. I cannot testify that anybody except the leaderwas the leading man.

0. Who was the leader? A. Mr. Grady.Q. You were conversant with the political situation

there at Albany at that time? A. I don't know howconversant I was; I was not very conversant with it.

Q. More or less? A. More or less.Q. Wasn't he commonly known as a pretty strong.

forceful man? A. He was.0. What was his business? A. I haven't any idea.Q. You said he had been defeated at one time? I

6246 didn't quite catch what you meant by that. A. At theBuffalo Convention Senator McCarren was defeatedby Mr. Murphy and Mr. Hearst working in unisonwith Mr. McCabe.

0. What year was that? A. 19o6.0. Now, we got down to the point, I think, in

which you saw Mr. Grattan. You had a talk withMr. Grattan? A. Yes, sir.

Q. How close to the date of the defeat of the bill?A. Well, I saw him more than once. I saw him thelast time on the morning of the vote.

Q. Had you seen him before that concerning thechange in his vote? A. There was no change in hisvote.

2083


Q. He hadn't voted, you mean? A. Exactly.Q. Had you seen him on more than one occasion

concerning how he should vote on the final passage ofthe Agnew-Hart bill? A. I think I could remembertwo.

Q. Now, the result was that he did vote against the

bill? A. He did.Q. And you had an interview with Mr. Agnew,

didn't you? Mr. Agnew called upon you? A. Yes.

Q. Concerning that subject? A. Yes; that is cor-rect.

Q. Now, after that bill was defeated there was a 6248special session called, was there not, by the Governor?

Mr. Barnum: I object to that as immaterial.Objection overruled. Exception.

A. There was.Q. In what month was that called? A. I think it

was about the middle of May.Q. There was a good deal of discussion in the pub-

lic press during all that period of time concerning thisbill, was there not? This particular bill? A. I thinkthere was; yes, sir.

Q. There was a vacancy, was there not, in one ofthe western districts? A. There was. 6249

Q. And that vacancy was filled? A. It was.Q. During that period? A. That is correct.Q. And Governor Hughes went out there and made

speeches?


A. I think so.

By Mr. Bowers:

Q. Is there any doubt about it? Isn't that yourrecollection? A. Well, I don't recall it.

Q. You don't recall it? A. I don't. I had verylittle interest in it.

2084


Mr. Bowers: I move to strike out that last

part.The Court: That may go out.

Q. Was the act passed at the special session? A.The Agnew-Hart bill was passed.

Q. And did Mr. Grattan vote for or against it?A. He voted as he had voted before.

Q. How was that? A. "No."Q. "No" means against it, doesn't it? A. Yes. It

does.Q. The concluding clause of this editorial of April

62.51 8, which was put in evidence by Mr. Ivins is as fol-lows: "It is a matter of great congratulation thatthere were eight Republican Senators yesterday whostood out and saved that party from the narrow andilliberal spirit which is behind the Agnew-Hart bill."Do you remember that paragraph? A. I recall itnow that you read it; yes.

Q. At the last hearing, Friday last, you gave meyour views as to the duty of a man elected to theSenate or Assembly, to comply with the vote of themajority. Do you remember? A. I remember thetestimony,

Q. You remember the testimony you gave? A.6252 Yes; some of it.

Q. Now, of course, the Governor of the State is inquite a different position; he is alone, and there is nodivision of his responsibility, is there?

Mr. Barnum: I object to that as immaterial.The Court: That we will assume.Mr. Bowers: Very good; thank you.

Q. The Governor of the State had recommended tothe Legislature the passage of the Agnew-Hart bill?


2085

Plaintiff's W~itness, William Barnes, Jr., Cross 6253

A. Yes, well-he recommended it in the early mes-sage; I don't remember whether he sent a special mes-sage for the Agnew-Hart bill in particular.

Q. He had recommended the passage of the billwhich should repeal the Percy-Gray Law? A. I don'tknow whether he specifically sent a message on theAgnew-Hart bill.

Q. But he had recommended a resolution to repealthe Percy-Gray bill? A. Yes, sir.

Q. It was against that recommendation that theseeight men stood out, wasn't it?

Mr. Barnum: I object to that as a conclu- 6254

sion, incompetent and immaterial.Objection overruled. Exception.

A. Yes, sir.Q. It is your view, isn't it, that the Governor was

quite within his rights in recommending legislation tothe Legislature? A. He has that right.

Q. And it was a cause of congratulation accordingto your views that there were eight Republican Sena-tors that stood out against the Governor's views in thatmatter ?

Mr. Barnum: I object to that as repetition.Objection overruled. Exception. 6255The Court: Of course, you put that editorial

in evidence and I will allow this examinationsimply on that.

Mr. Barnum: My recollection is that heasked that twice before.

The Court: He asked if it was in the edi-torial. Now he is asking if that is his personalview, as I understand it.

A. Is the question, was it my personal view?Q. Yes. Can you answer it yes or no? Is it really

a matter of doubt in your mind?

2086


Mr. Ivins: May I be permitted to ask whythe counsel asks three or four questions insuccession?

Mr. Bowers: So as to get an answer to one.Mr. Ivins: Before the witness has a right

to consider what his answer is.The Court: The witness has a right to con-

sider what his answer should be.

The Witness: The answer must be yes.

By Mr. Bowers:

6257 Q. Why do you say it must be? A. Why, I take

it as a conclusion from the article; I have no personalrecollection.

Q. Do you mean to say you have no personal recol-lection of the view which you then held upon that sub-ject? A. I know exactly what my views were on thatsubject.

Q. Were your views upon that subject, stated atthat time, that these eight men-that it was a matterfor congratulation that there were eight RepublicanSenators who stood out against the Governor's viewson that particular question? A. I beg your pardon.I couldn't follow that.

6258 (Question repeated by stenographer.)

A. I have answered that question.Q. I think not. You said it was a conclusion to

be drawn. You have no recollection of the article. Iwant to know now what your memory is of your viewsat that time, as to whether it was a matter of con-gratulation that these eight men stood out, is what Iam asking? A. I can't answer that absolutely.

0. That is all on that subject. Did you hear Mr.Belmont's evidence? A. Yes.

Q. Did you hear him testify- A. I didn't hear allof that. I think I heard most of it.

2087


Q. Did you hear some questions that I put to him?A. I can't remember them now.

0. Did you hear him testify as follows: "Let meask you if this is a substantial statement of what tookplace between you and Mr. Roosevelt: 'I, on one oc-casion, said to Mr. Barnes, that my former Race Com-missioner, Mr. Belmont, had called upon me and statedthat he had been a strong supporter of Mr. Hughesin the election.' You had been that? (A) Yes, sir.(Q.) 'And that he was very much opposed to the race-track legislation; and he wanted to know if I couldput him-he wanted to know, I think, my views on the 6260race-track legislation, and if I could give him an op-portunity to state his opposition.' (A.) That is correct.(Q.) 'Basing it primarily upon the fact that such legis-lation would destroy the breeding farms for thorough-breds in the United States?' (A.) That is correct.(Q.) 'And giving me, of his own accord, the assurancethat he would not countenance any improper methodsof opposing the legislation?' (A.) Correct. (Q.)'And would withdraw from his opposition if he becameconvinced that such improper methods were used?'(A.) Yes, sir." A. I remember that perfectly.

Q. You wrote a letter which was put in evidence atpage 315 of the record, addressed to Mr. Roosevelt, 6261as follows:

Mr. Ivins: What is the date of it?Mr. Bowers: April 20, 19o8.

"In view of the newspaper articles which have beenprinted regarding certain legislation at Albany, I thinkit is possible you may have a wrong impressionregarding the action which has been taken by me. Therumors which were circulated came out of the fertileminds of newspaper men and Senator Agnew con-fronted me with the story, although he had no groundfor so doing from any action of mine." In what pa-

2088

6262 Plaintiff's Witness, William, Barnes, Jr., Cross

pers wete those newspaper articles published? A.The New York newspapers.

Q. Have you any of them in your possession? A.I have not at the present time.

Q. You haven't them? A. I haven't procuredthem.

Q. "I do not think it hardly necessary for me towrite you this, but I thought, as I said above, a wrongimpression may have been conveyed to your mind. Ihave done what I believe is right in the matter, andalthough I have been severely criticized for it, I would

6263 do so over again were I in the same position. I believeit will work out all right and while I may be injuredso far as our best people are concerned, it makes littledifference what injures me and what does not, so longas I am able to keep my head above water." Did yousend that letter? A. I did.

Q. And you received a reply to it, in which Mr.Roosevelt said: "I have received thru Southwick yourletter of the 2oth. You need not be in the least afraidof my failing to understand your position. I am con-fident that whatever course you follow is one that youbelieve to be the wise and proper course to take. WhenAgnew sent word to me requesting me to act in the

6264 particular matter under discussion, I simply answeredthat I had not attempted to, interfere one way or theother, and would not attempt to interfere one, way orthe other, as regards any legislation at Albany. Whenthe whole trouble is over, do come down here and letme go over the general political situation with you."Did you receive that letter? A. Yes, sir.

Mr. Ivins: You didn't read all that letter.Mr. Bowers: "Good luck always! Sincerely

yours, Theodore Roosevelt."

Q. Did that close the correspondence? A. I thinkso on that subject.

2089

Plaintiff's Witness, WVilliazn Barnes, Jr., Cross 6265

Q. Your relations with Mr. Roosevelt were pleas-

ant at that time? A. They were.

Q. You told me the other day that there was no

close friendship between you in 1899. Do I recol-

lect right? A. I would not say there was a close

friendship; no. There was a political relation. A

campaign coming on; I just met Mr. Roosevelt.

Q. Did I understand you to say Friday there was

no close friendship between you and Mr. Roosevelt in

1899? A. I didn't mean to say personal.

Q. Was there a friendship of any kind between you

and Mr. Roosevelt? A. Friendly relations. 6266

Q. Did they increase as years went on? A. Afterhe became President.

Q. Did they? A. I should say yes.

Q. They continued to increase until when? A.

Why, until a meeting of the State Committee in I9IO,when we voted for Mr. Sherman against Mr. Roose-velt for temporary chairman, in the convention.

Mr. Bowers: I move to strike out the last

part of the answer as not responsive.ThC Court: That may go out.Mr. Barnum: "Until the meeting of 1910"

stands.The Court: Yes. 6267

By Mr. Bowers:

Q. In your conversation with Mr. McCarren, did

you and he go over the list of Senators whom he

believed would vote in opposition to the Hart-Agnew

bill? A. No; I didn't; he didn't.Q. Did he tell you who they were? A. He did

not.Q. Did he tell you anything which you didn't know

concerning the probable vote of the different Senators?

A. Yes; he did.

2090

6268 Plaintiff's IVitness, !I'illian. Barnes, Jr., Cross

Q. For example, did you know that seven Repub-licans were going to vote against the bill at that time?A. I did not.

Q. Did he tell you that they were? A. No.Q. Did he tell you that any of them were? A. No.Q. Did he tell you how the Democratic Senators

were going to. vote? A. He did not.Q. He simply told you that there were so. many

votes that would be given against the bill. Is that it?A. He said there were twenty-four votes in his judg-ment against the bill without Grattan's.

6269 Q. And did he tell you that without specifying whothey were? A. That is it exactly.

Q. May I ask you this question: Did you or did younot tell him that you would advise Mr. Grattan tovote against the bill?

Mr. Barnum: I object to that; he has beenover that conversation.

The Court: He gave that conversation thismorning.

Mr. Bowers: I don't think it was definite onthat point.


6270 A. I said I would see him.

By Mr. Bowers:

Q. Did you tell him what you would advise himto do? A. No.

0. Did he leave without any knowledge as to whatyou would do? A. Absolutely.

Q. No doubt about it in your mind? A. Not theslightest.

Q. How long did you think it over? A. Well, Ican't answer that. I saw Mr. Grattan within two orthree days. The vote was imminent.

Q. That is enough. A. In fact, I think the votewas set down for a day certain.

2091

Plaintiff's Witness, WJ'illiam Barnes, Jr., Cross 6271

Q. You testified at page 2906 as follows: "Gov-ernor Hughes sat next to me at that dinner from thebeginning to the end of the dinner. During the even-ing I said to him: 'I think you are making a mistakeon the proposed race-track legislation.' His reply was'I disagree with you.' I said it would cost the Repub-lican party twenty-five thousand votes at the comingPresidential election. He said: 'We will gain two forevery one we lose.' I said: 'From whom?' 'Why,from the Democrats' was his reply." Is that right?A. That is correct.

Q. "I said, 'Men who would not vote for you.' He 6272

then turned and said: 'Well, my conscience wouldnever be clear if my term of office should expire andthat iniquitous law should remain upon the statutebooks.' " A. That was the substance of what he said.I think very nearly his words.

Q. And you said: "I thought we were discussingvotes. If it is your conscience, it is no affair of mine."Is that correct? A. That is correct.

0. At that time had the Agnew-Hart bill beenpassed? A. No.

Q. You were then asked the question, "Mr. Dick-inson"-you remember Mr. Dickinson, the journalist?A. I do. 6273

0. "He told me he had reminded the Governor thatat the convention which nominated him for Governor,the issue as to race-track legislation carefully had beenavoided, it was not in the platform; hence he askedthe Governor why he had precipitated such an issueupon the party since he was not obligated by platformdeclaration, and the Governor said it was a matter ofconscience with him. Mr. Barnes' reply, as he relatedit to me, was: 'Well, if it is conscience and not votesyou are thinking of, there is no common ground uponwhich we can stand.'" And thereupon you were

asked: "Did you ever say any such thing to Mr. Dick-

2092

6274 Plaintiff's Witness, Williaim Barnes, Jr., Cross

inson?" And you said: "That is absolutely false."Is that right? A. Yes, sir.

Q. Do you consider there is any very great differ-ence between what he said on this question of con-science, and the statement you testify you made? A.I think there is every difference in the world. Thequestion asked me-

Q. You may answer that yes or no? A. I have an-swered it.

Q. You think there is every difference in the world,I take it. Now, when the Governor said to you that it

6275 was a matter of conscience with him, you answered:"It is no affair of mine" ? A. As to his conscience.

Q. As to his conscience? A. Certainly.0. You knew, did you not, that Mr. Brady was

very largely interested in the tractions in the State ofNew York?

Mr. Barnum: I object to that as incompe-tent, irrelevant and immaterial.

Objection overruled. Exception.

A. I did not.

By Mr. Bowers:

6276 Q. I show you an article published in the AlbanyJournal of Wednesday, July 23 rd, 1913, apparently

an editorial which contains the statement: "He (re-ferring to Brady) developed unusual executive abilityand the quality for organization. He became a mag-nate of public utility corporations." Will you lookat that and tell me whether your memory will be re-freshed by that? It is the article headed "Anthony M.Brady." A. In what respect do you wish me to-

Q. Now as to his being interested in public utilitiescorporations? A. You asked me whether he was in-terested in tractions. I don't think he was. His busi-ness was gas.

2093


Q. Don't you know he was interested in BrooklynRapid Transit? A. That is true.

Q. No doubt about that, is there? A. No.Q. Wasn't he interested in the Albany Traction

Company? A. I don't think so.

Mr. Ivins: There is no evidence in this casethat at that time Mr. Brady was interested inthe Brooklyn Rapid Transit, and I don't thinkhe was.

Mr. Bowers: Well, your client has just saidthat he was.

6278The Witness: I couldn't say from knowledge; com-

mon knowledge.

. The Court: The witness was asked on direct-examination if he knew that Mr. Brady wasinterested in traction matters.

Mr. Ivins: No; municipal gas.The Court: He said he didn't know. I think

that was on the direct, unless I am mistaken.Mr. Bowers: I think that was on cross. I

think I asked the question on cross-examina-tion on Friday. But I think I am justly en-titled to an answer to it, in view of the estab-lished fact in this case as to what Mr. Brady 6279

said to Mr. Roosevelt.The Court: There is no question before the

jury now.

By Mr. Bowers:

Q. Did you not know that Mr. Brady was interestedin Utica traction? A. I did not.

Q. That article was written, I suppose, concerningthe public utilities on general information that youhad?

2094


Mr. Barnum: I object to it as it involves asupposition on the part of the counsel.

A. That is an obituary.

Mr. Barnum: I move to strike out the an-swer.

The Court: No; your client must stop when

an objection is made if he wishes a ruling to bemade.

By Mr. Bowers:

6281 Q. You knew that Mr. Sheehan was one of the at-torneys for the Brooklyn Rapid Transit?

Mr. Barnum: I object to that as incompe-tent, irrelevant and immaterial.


A. I did not.

By Mr. Bowers:

Q. Did you know Mr. William C. Whitney in hislifetime? A. No.

Q. Did you know Mr. Thomas F. Ryan? A. Yes,sir.

.Did you know Mr. Ryan in 1899 and 19oo? A.6282 No; I did not.

0. When did your acquaintance with him com-mence?

Objected to as immaterial. Objection over-ruled. Exception.

A. I think in 19o9 , in that neighborhood; some-where near there.

Q. In your direct-examination at page 2881, youtestified, referring to party organization: "Did youever have any conversation with Mr. Roosevelt onthat subject? A. I certainly did. Q. What was it?

2095

Plaintiff's Witness, JI'illiam Barnes, Jr., Cross 6283

A. We may have had several conversations." Thenyou went on and stated certain views you had as toparty organization. I want to know whether the ex-pression, "We may have had several conversations,"means a mere guess or whether it means a recollectionon your part? A. In 19o8?

Q. I am talking about 1899. A. Oh, I don't thinkin 1899. It was later.

Q. Just before that you had testified as follows atpage 2880: "Now, I find on turning to page 309 ofthe record that the defendant in this case testified tofurther conversation with you at the time of the Fran- 6284chise Tax legislation, and that in those conversationsyou stated that it was essential to protect big businessbecause unless they were protected, they would notmake contributions to the party failing to protect them,and that, without contributions, it was impossibleto carry on the organization and without or-ganization and without leaders or bosses, partygovernment was impossible. He, Mr. Rooseveltin speaking here-he, referring to you, usedthe phrase: 'The people are not fit to governthemselves. They have got to be governed by theparty organization, and you cannot run an organiza-tion, and you cannot have leaders unless you have 6285money.' Did you ever have any such conversationwith Governor Roosevelt?" to which you answered:"No. I would like to ask the Court a question, in re-gard to that question you just asked me. You askedme whether I had any such conversation. 0. Yes.Did you ever have any conversation with Mr. Roose-velt on that subject? A. I certainly did. 0. Whatwas it? A. We may have had several conversations."You understood, did you not, that your answer waswith reference to conversations at the time of theFranchise Tax? Now, I wish to know whether youmeant to have answered a mere guess, or whether it

2096

6286 Plaintiff's Witness, Williamz Barnes, Jr., Cross

was your best recollection, your last answer that youmade, that it was several conversations? A. Theconversations that I had-

Q. Will you please answer that yes or no, whetherit was a guess or whether it was your recollection? Ithink you can tell me yes or no to that. A. It is myrecollection in one instance; possibly might have beenothers.

Mr. Bowers: Now, I move to strike thatout.

62S7 By the Court:

0. You recollect clearly what you mean in one in-stance? A. Yes, sir.

By Mr. Bowers:

Q. Now then. when the expression is used "We mayhave had several conversations" you recollect one, isthat it? A. I recollect one conversation.

Q. Now then, why did you use the expression "Mayhave"? Was it because you felt there might have beenmore conversations? A. I didn't understand thatthat was limited to the year 1899.

Q. It is clearly so. A. I didn't understand it so.6288 I thought it meant of a lifetime. That was my under-

standing of it.Q. Then your answer was intended to mean that

at some time or other during the period of youracquaintance with Mr. Roosevelt, you had that char-acter of conversation on more than one occasion? A.Yes, sir.

Q. Is that it? A. Yes, sir.Q. After all, the only conversation you referred

to, was a statement of your views of party govern-went, which you have stated on many occasions tomany persons? Is that right? A. The only one thatI have any recollection of, with Governor Roosevelt.

2097


Q. That is enough.

Newspaper article marked Exhibit 248.

Q. I show you an article marked Exhibit 248, and

ask you whether you recognize the article to be an

editorial from the Albany Evening Journal of April

28, 1899? There is only one paragraph I mean to

ask you about. A. All right. I see it is marked.

Q. That is an editorial published in the Albany

Evening Journal of April 28, I think 1899. That is

an "8" I think.

Mr. Bowers: I will read from that editorial 6290

as follows: I offer the portion which will beread in evidence.

Mr. VanBenschoten reads portion of editorial

from the Albany Evening Journal, dated April

28, 1899.

"The franchise tax bill has been passed in deference

to the somewhat excited public opinion which exists

today because certain men who were far-seeing enough

to risk their capital in the days when the business hori-

zon was not particularly bright in what have now come 6291

to be called 'public utilities,' have made large sums

of money."The formation of large corporations through the

amalgamation of a number of corporations with capi-

talizations running up into the hundreds of millions

has furnished as fruitful a source of inspiration for

the speeches of the political demagogue as the ency-

clopedia furnished for the speeches of a former Presi-

dent of the United States. It is wise policy for the

state or the municipality not to give away that for

which it can obtain a consideration; but it should not

2093


be forgotten in this connection that in order to bejust the state should pay its share of deficits. Itmight be well for those who in these days of gloriousprosperity wish to curtail the profits of capital to re-call that only a few years ago a 'public utility' couldnot have been sold at a premium anywhere in thiscountry and that if any municipality or the state haddesired any improvement along these lines it wouldhave been compelled to pay a subsidy therefor. Thepeople of New York are grappling with the rapidtransit question. It is a problem of serious moment to

6293 them, and yet there never will be proper rapid transitfacilities in the City of New York unless someone orsome number of men is guaranteed an opportunityto make a profit commensurate with the risk whichthey will run if they invest their money in such anenterprise. They might wish to exact also a guaranteefrom the state that it would not steal their propertyfrom them when it become profitable."

By Mr. Bowers:

Q. Mr. Barnes, I understand you to define your

6294 ideas of leadership to be the man who controls the

State convention, am I right or wrong? A. In State-of course the leader is the man who leads.

Q. Would you mind answering my question. Youwill help me very much. Tell me whether I am rightor wrong in understanding your answer? A. In theState ?

Q. Yes, in the State?. A. Yes, in the political partyin the State.

Q. Under that definition I understand you claimthat Theodore Roosevelt was leader in 19o6? A. Yes,.sir.

2099

Plaintiff's Witness, William Barnes; Jr.j Cross 6295

Q. 19o8? A. Yes, sir.Q. I9io? A. Yes. si .Q. He did not attend the first two of those cori-

ventions? A. No, sir.Q. He did the third? A. Yes, sif.Q. You base your claim that he was ieader ori

the fact that his advice was followed at those thre6conventions? A. Yes. sir, I do.

Q. In the 19o6 Convention he favored the nomina-tion of Governor Htughes? A. I suppose he did.am told he did. 1 do not think he told me so.

Q. That is what you base your opinion upon, that 6296he was the leader? A. I do not think Mr. Rooseveltever told me.

Q. I understand that. I did not expect it was bypersonal conversation. You based your opinion onwhat you nelieved to be the truth, is that it? A. Cer-tainly.

Q. And yov believe- A. I was trying to remem-ber if any person told me in relation to it. PossiblySenator Root.

Q. I did not ask you that, Mr. Barnes. I am unlytrying to find cut your mind. You claim that Mr.Roosevelt was leader in i9o6, because he dominatedthe 19o6 Republican Convention, is that right? A. I 6297have stated-

Q. No, would you mind answering me, whether Iam right or wrong, it will help me so much? A. Ido not wish to do any injustice in relation to thematter. Mr. Roosevelt, as I understand, favored thenomination of Governor Hughes, and he was non-inated by the delegates. I could not use the word"dominated" because it would not be the proper wordfor that convention.

Q. Is it your opinion that Mr. Roosevelt was theleader ini 19o6? A. Oh, yes.

Q. And is that opinion based upon the fact that hisadvice was followed at the convention? A. Yes, sir.-

2100

6298 Plaintiff's Witness, TWilliami. Barnes, Jr., Cross

Q. And is that based upon the fact that you un-derstand the advice he gave was that GovernorHughes should be nominated? A. Yes. Mr. Hughes,at that time.

Q. Did you attend that convention as a delegate?A. I did.

Q. Were you in favor or opposed to Mr. Hughes?A. Why, I was in favor of him.

Q. You were? A. Voted fo- him.Q. You voted for him? And he was elected? A.

Was nominated and elected.

6299 Q. He was the only man oil the ticket who waselected? A. He was.

Q. You understood Mr. Roosevelt did nothing ex-cept favor the nomination, he did not go, to, the con-

ention? A. No.Q. He did not make any speeches? A. No, he was

not at the convention. He was President.Q. He did not go to the convention? A. Certainly

not.Q. He did not speak in the convention? A. No.Q. You were informed that he favored Hughes'

nomination? 'A. I was.Q. Now, he did not attend the 19o8 convention?

6300 A. No.Q. You have expressed the opinion that he was

leader in 19o8? A. I have.Q. You base that upon the opinion you formed

that he dominated the convention? A. Yes, sir.Q. I will not use the word "dominated"; you do

not like it. That his advice was followed in the con-vcntion? A. It was.

Q. And that advice was given on the question ofnominating Governor Hughes? A. Yes, sir.

Q. And it was accepted? A. It was.Q. And Governor Hughes was nominated? A.

It was accepted by a majority o'f the convention.There was a controversy.

210.1

Plaintiff's fl'itness, l4illiam Barnes, Jr., Cross 6301

Q. Well, majority rules in such a matter? A. Cer-

tainly, in the convention.

Q. You were favorable to, or opposed to Governor

Hughes in the 19o8 convention? A. I seconded the

nomination of Mr. Wadsworth.

Q. Were you opposed to Governor Hughes? A.Certainly I was. I was in favor of Mr. Wadsworth.

. Q. After Governor Hughes was nominated you

moved that the nomination be made unanimous? A.Yes, sir, I did.

Q. And President Roosevdt wrote you a letter of

thanks upon that subject? A. Yes, that is true. 6302

Q. He was not at the convention, himself? A. No.

sir.Q. He made no speech in the convention? (No

answer.)Q. Of course he did not, he was not there to make

a speech was he, in 19o8? A. No, but he used the

telephone constantly.Q. Used the telephone? A. Yes, sir.

0. Well, we do not call that speech making, do we?Do you remember writing a letter in 1894 to Senator

Platt, which contained the following language: "I

have heard from Mr. Fassett today in relation to Col.

Baxter, and he says that the Colonel undoubtedly 6303

will stick to his determination not to give -the Jour-

nal Company the stationery business and appurten-

ancest:hereto." -What did you refer to by "giving

the stationery business and the appurtenances there-

to" ?

Mr. Ivins: I object to going into this print-

ing business-it has been ruled out-unless it

be stated on what ground it is gone into.

Mr. Bowers: On the ground of credibility

and character.Mr. Ivins: If, under the guise of credibility

and character, it is going to be sought-the in-

2102

6304 Plaintiff's W1'itness, WFilliam Barnes, Jr., Cross

sinuation to reintroduce the testimony whichyour Honor has stricken out, then I shall haveto object to it.

Mr. Bowers: No man obeys a ruling betterthan I do.

The Court: Of course you gentlemen under-stand that I have ruled out evidence as to thisprinting business in so far as it is admitted toclaim that there is justification in this libel.

Mr. Bowers: I obey it, sir.The Court: Of course it is true that you

6305 may ask the witness with regard .to any mo-ment of his career with the purpose of showingthat he had committed some crime, and is,therefore, unworthy of belief on the stand.Of course you are also bound by the answerin that regard, and of course, also, you opena door for a re-direct examination so that, nec-essarily, going into this business will verymuch lengthen the case. But it is competentif you wish to do it.

Mr. Bowers: I think I appreciate all thoserules to which you refer.

The Court: The question of time is perhaps6306 the one that most affects me.

Mr. Bowers: I do not think that it will ex-tend it very greatly.

The Court: Very well. It is competent.Mr. Bowers: Of course I deal with incompe-

tent matters; in a sense, many matters are in-competent; I mean to say they were to savetime if we could drop them. After all wehave had to give a certain amount of time tomatters which are properly to be enquired con-cerning. I regard this as an important mat-ter.

-2103

Plaintiff's W itness, U"illiam Barnes, Jr., Cross 6307

The Court: It is a matter entirely for yourjudgment. It is competent as bearing on thecredibility of the witness if you wish to gointo it.

Mr. Ivins: And if this be gone into it willreopen the question to re-direct examinationby us.

The Court: Yes, it gives you a chance foryou to explain the situation if you wish to onthe re-direct examination, the evidence thatI held you could not give before.

Exception to plaintiff. 6308

A. The clerk of the Assembly has the power to buysupplies; he had that power then and has that powernow; a small amount of supplies, printing work andstationery which he may give to whomever he pleases,under the law. I do not recall this letter, but it isdoubtless genuine. I wrote to Senator Platt in thehope that the new clerk would give the Journal Com-pany that business. The clerk apparently intended tosend it elsewhere:

By Mr. Bowers:

Q,. On November 2j, 1894, you wrote again toSenator Platt and used this language: "I have for- 6309warded to Col. Baxter a letter signed by our threemembers of Assembly, requesting him to give theJournal Company the stationery and printing workconnected with the office of the clerk of the Assembly."That refers to the same stationery as mentioned inthe preceding letter, does it not? A. It refers to thework which the clerk had the power to give out underthe law.

Q. Who was Mr. Colvin? A. I know of severalMr. Colvins.

2104

631 0 Plaintiff's If"itness, William Barnes, Jr., Cross

Q. Was there a Mr. Colvin who was a State offi-cial? A. Addison B. Colvin who was State treas-urer, was elected in 1893.

Q. This expression is used in the same letter ofNovember 27th: "AIr. Colvin has given me his wordthat he will vote to designate the Journal and ofcourse Mr. Palmer cannot be swerved by any con-sideration." To what did that refer? A. The desig-nation, under the law, of a paper to publish such no-tices-newspaper published at Albany to publish cer-tain notices provided by the law of the State. There

6311 was another Republican newspaper in Albany at thattime.

Q. I only wanted to know to what it referred. Icall your attention to another letter written by youto Senator Platt, December 22, 1894, which containsthis paragraph: "The organization has pulled outthe various candidates for clerk in order to give Bax-ter a clear field, and then Mr. Baxter deprives meof a legitimate piece of patronage because I sup-ported Mr. Morton for Governor." To what did thatrefer? A. That referred to this work which he asclerk of the Assembly had power to give out underthe law.

6312 Q. You regarded that as a legitimate piece of pa-tronage? A. It was so considered.

Q. What do you mean by the word "patronage"?A. Patronage is anything that is given by favor.

Q. I did not hear the. answer? A. Patronage isanything that is given by favor.

Q. In other words, this work which you were seek-ing, was work that, in your opinion, was a legitimatepiece of patronage to be given as a favor to the Jour-nal? A. Such was the opinion of the State of NewYork because it was its law.

Q. And that was your opinion of the matter? A.I did not contend against the State opinion.

2105

Plaintiff's WVitncss, WVilliam Barncs, Jr., Cross 6313

Q. Now, in another letter written to Senator PlattI call your attention to another paragraph in a letteradd-essed to Mr. Platt and written by you dated July14, 1899: "For six years men assumed to be friendlyto you have systematically prevented me from gettinganything in the printing line in Albany." To whatdid you refer in that regard? A. I cannot recall in

detail.Q. Generally? A. State work that was at that time

given out.Q. And could be given- A. Could be given-Q. As a matter of favor? A. Could be given un- 6314

der the law to the Journal Company.Q. Had you made any effort to get it? A. I ap-

parently made effort to get the 1894 work.Q. Again you say in that letter: "Whenever these

printing controversies come up, I am inclined to betesty, for the reason that since the Republican Partycarried the State in 1893, I have never been able tosecure a single contract from the Republican Stateofficers, but have uniformly been ruled out by somefriend." Did that refer to the fact that you hadsought to obtain contracts for the Journal and hadbeen uniformly ruled out? A. That is what it states.

Q. Was that a matter of complaint on your part? 6315A. Purely a matter of statement:

Q. What effort did you make to get such printing?A. I do not recall. It is twenty-one years ago.

Q. In that letter you say at page 1715 of the testi-mony: "Now, as to Mr. Quigg's letter to you. Firsthe errs when he says I did not communicate with theComptroller or Attorney General. I was in almostdaily conference with Mr. Davies, and tried severaltimes to see Col. Morgan, but failed." For what pur-pose were you in armost daily communication with theAttorney General? A. I called upon Mr. Davies, whowas then Attorney General, in relation to the bids

2106

6316 Plaintiff's I Fitness, William Barnes, Jr., Cross

which had been offered for the contract known as theLegislative printing. I wanted him, if it was pos-sible-I said to him that I hoped that the J. B. LyonCompany would get the contract. There was somelikelihood that the contract might be given to a Mr.McCarthy who had no printing plant and who I feltwould establish, through himself or through some-body else, another printing house in the city. I ex-plained to Mr. Davies that that would be disadvan-tageous to the printing business both for myself andothers. I hoped that there was some way, inasmuch

6317 as there had been-apparently there were some irregu-larities, that the Lyon Company might get the con-tract. If, in the event that that was not so, that Itrusted he would not give the contract to Mr. Mc-Carthy. That is, not him, but I meant the PrintingBoard. That was the substance of the conversation.

Q. At that time you had no interest in the LyonCompany? A. I had not.

Q. I want to ask yoi whether you felt that thesevarious matters touched upon in these letters, Stateprinting, there was any reason why you should havethem given to you, as a matter of patronage? A. Inever said-

631S Q. Over any other person? A. I never said in re-gard to these matters. This is a matter of bidding.

Q. I will go back to the other matter, in referenceto the designation cif the State paper, and in referenceto the stationery, what was the reason that you feltthat they should have been given to you as a matterof favor? A. They had, the Clerk had the right, un-der the law, to give out the work and I saw no reasonwhy I should be discriminated against in favor ofanybody -else. Somebody had to do it.

Q. Was there any reason why there should be dis-crimination in your favor? A. I see none.

2107

Plaintiff's H'itness, Il'illiamn Barnes, Jr., Cross 6319

Q. Did you intend to imply that there was any?

A. I did not.Q. As against anybody else, you did not? A. I

did not imply that.Q. In the case of the Lyon Company bid, the Lyon

Company bid was very much higher than the Mc-Carthy bid, was not it? A. I don't know.

Q. Well, you did know at the time, did not you?A. Well, I do not recall. I know it was higher.

Q. Do not the printing records show the Lyon Com-pany's bid $235,ooo and the McCarthy $141,000, inround numbers? A. I never saw that record at that 6320time.

Q. It was a matter with which you felt you oughtto familiarize yourself if you were going to apply tothe Attorney General, was it not? A. I think not.I simply was advising him of what I thought. It wasnot my duty. It was his duty.

Q. You did not think it was necessary to considerthe difference in the bids in giving your advice? A.I may have so considered, but I do not believe at thetime I knew.

Q. Afterwards you say you became interested inthe McCarthy contract? A. What is the question?

Q. Afterwards you say that you became interested 6321in the McCarthy contract? A. Yes, sir.

Q. It was assigned to whom? A. It was assignedto James B. Lyon.

Q. And he carried it out, did he not? A. Youmean the official-

Q. To whom was his contract assigned? Who

carried it out? A. It was carried out by James B.Lyon.

Q. And did you continue interested in it? A. No.

Not after I-well, I closed my connection with the

matter.

2108

6322 Plaintiff's WFitness, lWillian Barnes, Jr., Cross

Q. You stated on Friday that you were interestedin it? A. I did so state, yes.

Q. And did you say as owner, or as one of theowners? A. Do you wish me to explain the situationor do you want me to answer yes or no?

Q. I want you to answer yes or no? A. I was theowner of-I was the owner of the-I was-well, Ihad a verbal agreement to sell the contract to me at acertain price. That was the situation.

Q. Well, was it sold to you? A. I sold the contract-when I made this agreement-they offered to sell

6323 this contract to me.Q. Who offered to sell it to you? A. Mr. Mc-;

Carthy.0. Well, he offered to sell it to you; did you buy

it? A. I took the option and I sold it to Mr. Lyon.Q. Then he became the owner of it? A. He did.Q. And youi never had any interest in it, is that it.?

A. That is not correct.Q. Then the interest ceased at a certain time? A.

That is correct.Q. After you sold it to him? A. That is correct.Q. Is that right? A That is correct.Q. And now, then you had a claim against him for

6324 $2o,ooo for services? A. That was not for serv-ices.

Q. What was it for? A. I was the owner of theMcCarthy bid upon a contract and I sold it to Mr.Lyon for $2o,ooo and an interest which I subse-quently closed up with him in the neighborhood of$II,OOO.

0. What you assigned to the Journal Company wasa claim that you hed against J. B. Lyon for salaryfor the two years commencing October 1, 1889, andending September 30, 1891, amounting to $2o,ooo,is that right? A. Mr. Lyon drew that contract and

wanted me to sign it rather than to-as my agree-

2109

Plaintiff's Il'itness, II illiani Barnes, Jr., Cross 6:325

ment with him was entirely verbal-rather than topay the money, as I supposed would be done. Hesaid he wanted that contract signed that way.

Q. A contract by which he obligated himself topay you $2o,ooo for salary? A. Exactly.

Q. What service had you rendered him? A. Itold you he owed me money aid I sold him the con-tract.

Q. You sold him the contract for $2o,000? A. Icertainly did.

Q. He loaned you the $20,000? A. No, sir.Q. What was the contract for salary for? A. That 6326

was the $20,000 that Mr. Lyon owed me.Q. Is not that the $20,000 he paid you for the

contract? A. That is what I said.Q. Why would it be in the form of salary? A.

That I do not know. Mr. Lyon did that.0. But you assigned the claim afterwards? A.

Very true.Q. As a matter of fact, was the claim of $20,000

against Mr. Lyon for services you had rendered tohim in obtaining that contract, or was it because yousold it to him at the sum of $2o,ooo beyond what youhad paid for it? A. Why, it is absolutely-the latter.I had an option. Mr. Lyon had nothing to do with 6327it. Mr. McCarthy offered to sell it to me, came tome and wanted me to buy th e contract, and I made himan offer and he accepted it.

Q. And you sold it then, you say, for $20,000 toLyon? A. Yes, sir.

Q. And he put the obligation in the shape of salary?A. That is it exactly.

Q. And you acted upon that afterwards, by as-signing that claim to the Journal Company? A. Idid.

Q. He did not pay you in cash, then? A. No,

2110

6328 Plaintiff's l'itness, WUilliam Barnes, Jr., Cross

Q. It was an obligation that remained outstand-ing? A. Evidently.

Q. You said there was more than $2o,ooo thatwas due you? A. I beg your pardon.

Q. Did you say there was more than $2o,ooo thatwas due you on that transaction? A. Yes, T saidthat. WNVhen I made the arrangement and I sold thecontract to him, it was for $2o,ooo and some interestin the contract. That interest he did not definitely,as I remember, specify.

Q. You kept some interest in the contract? A. I

6329 kept some interest in the contract.Q. For how long? A. I should think it was not

over four or five months.Q. What date was it that you sold it to Mr. Lyon?

A. Sold what?Q. The contract that you obtained from McCarthy.

A. I have already stated that the contract was verbal.Q. The contract between the State and McCarthy

was not verbal, was it? A. Certainly not.Q. How long was it that you kept your interest

after you had assigned the contract to McCarthy?A. I cannot remember. I think it was-you see, Iacquired-

6330 Q. If you do not remember that is sufficient. Iwant to ask you whether the greater part of the busi-ness of the Journal Company at all times has not beendoing business with the State, City or County in theway of job printing? A. It has not.

Q. A large part of it has been, has it not? A. Ishould not think so.

Q. On July 15, 1898, you were authorized to as-sign a claim against the State for $4,565, were notyou? A. Why, if it is in the minutes. Of course,the President is authorized to do it, I suppose. I

cannot recall in 1898.

2111

Plaintiff's If itness, Iilliant Barnes, Jr., Cross 6331

Q. I am reading from the minutes. On Septem-

ber 2, i9oi, a claim of the State of New York for$8,009.02, is that right? The book shows it. A. Icannot tell you.

Q. Will you accept my statement? A. The bookis the only evidence on the matter of-

Q. Will you accept my statement to that effect?A. If the book makes the statement, certainly, Mr.

Bowers.Q. You look at the book and tell me whether on

that date you assigned a claim for so much againstthe State? A. Why, certainly. That is transferred 6332

to the County Bank, a resolution of the Board ofDirectors.

Q. Look at ii45, on February 3, 1903. A. 1145.

What is the question?0. Did you assign a claim against the State, City

or County to somebody or were you authorized to?A. Yes, sir; that is the record here.

Q. What was it, how much and against whom?

Mr. Ivins: I do not see how you can attack

this witness's credibility or even his materiality-it has all been gone over by the bookkeepers,

they were here for two weeks, it has all beenruled out. It has been read to the jury. 6333

Mr. Bowers: It is not in evidence.Mr. Ivins: You want to get it in evidence;

it is not pertinent.Mr. Bowers: I know it. If I have the right,

I have, if I have not, I have not the right.Mr. Ivins: If this was with regard to the

credibility of the witness, well and good, but

that is obviously not the purpose for which

this is to be put in. It is being put in for

the purpose of filling the vacancy which has

been created by your Honor's ruling out the

2112

:6334 Plaintiff's I'itncss, W!'illiam Barnes, Jr., Cross

two weeks of evidence that has been given,reading before the jury all of these books andpapers.

The Court : You cannot seriously object. AsI say the defendant is bound by the answersof this witness, and you have now given-youhave now the opportunity to explain what wasdenied to you before.

Mr. Ivins: There is nothing to explain.Mr. Bowers: I may be asking my questions

in a way-

6335 Mr. Ivins: You might as well ask him toexplain the solar system as bearing on thisquestion. It has no relevancy to it, and yourHonor has so ruled. I don't want to explainthe solar system because he drags it in.

- The Court: Of course, it is competent asbearing on the credibility of the witness. Youcan ask a witness if on such and stich a datehe committed murder, and if he says yes thatbears on his credibility. Or you can ask a wit-ness regarding facts which would lead the juryto infer that on such and such a date he com-mitted murder, and if they do infer it, it bears

6336 on his credibility. Of course if he denies itthey are bound by his answers.

Mr. Ivins: If they are bound by his answersthere is all the less reason for my making anyexplanation. But your Honor has ruled itout.

The Court: No, I have not ruled out ques-tions asked of the party himself which theyclaim tend to show that his evidence is notcredible; but any evidence that he gives thatyou want to explain you can, and any answerthat he makes that they don't like and which hedoesn't care to explain they are bound by.

The following was read from this record:

2113

Plaintiff's ll itness, fJ'illiamn Barnes, Jr., Cross 6337

"Q. Did you assign a claim against the State, City

or County to somebody, or were you authorized to?A. Yes, that is the record here.

"Q. What was it, how much and against whom?"

By Mr. Bowers:

Q. At page 145. A. Yes.Q. Read what it was and for how much? A. It

is a resolution passed by the board authorizing thepresident to assign to the Albany County Bank the

claim of the Journal Company against the State ofNew York for printing challenge and registry books, 6338

amounting to $9,586.56.Q. Will you turn to page 157? What date was

that at page 145? A. February 3, 1903.

Q. Now, turn to page i57, and give me the dateand the item? A. July 5 th, 19o5. On motion ofMr. Davis-

Q. September 15th is the item I would like. A.September i 5 th: on motion of Mr. Lindsay, Mr.Barnes, as president, was authorized to assign to the

National Exchange Bank of Albany a claim againstthe State of New York for printing the Session Laws(that ought to be advertising the Session Laws), for1905, amounting to $3,282.75. 6339

Q. Turn to page 172. Never mind that. Page183.

The Court: You say, Mr. Bowers, that youoffer this evidence from this witness, takingthis evidence alone, as tending to show that the

witness has committed some crime?Mr. Bowers: No, I don't.The Court: Which renders him unworthy of

belief ?Mr. Bowers: No, I don't. I say on the

question of credibility that I have a right to

2114

6340 ask these questions. That doesn't at all go tothe extent that I have got to show that hehas been guilty of a crime, as I understand thelaw.

The Court: No, but it has got to go so farthat the Court can say that if true it wouldtend to affect his credibility.

Mr. Bowers: It is not for the Court, Ithink.

The Court: It is largely a question for theCourt: the Court has large discretion as towhat it will admit as to credibility.

Mr. Bowers: Yes, that is true. You have

6341 asked me the question if I propose to prove acrime. I do not. I do not by any of thesequestions. What I intended to bring to the at-tention of the jury was that the correspond-ence and the case of the McCarthy contractand his visits to State officials, all show a situ-ation which justifies the jury in forming a con-clusion that it does tend to affect his characterand does tend to affect his credibility. Now, Ifancy that it is in the discretion of the Court,and if you feel that discretion is to be exercisedI must accept it. But I cannot assent to theproposition (although of course your Honorcan determine that), that I am called uponwhere I ask a witness a question which affectshis credibility, and particularly in a case of thiskind, that I am bound to only questions whichtend to show that there has been a crime.

The Court: You cannot show specific mat-ters as bearing on the question of damages. Ifyou are going to show-

Mr. Bowers: To tell the real truth, I amnearly done with this particular subject. Iknew I was bound by his answers and I only

2115

intended to ask questions where the answers 6343could only be in one way.

The Court: If you are going to show bythis evidence or attempt to show that the plain-tiff has been guilty of any crime, I will let yougo on with it.

Mr. Bowers: I am not.The Court: If you are going to show that

the plaintiff has been guilty of such seriousmoral delinquency as would fairly entitle thejury to question his credibility, then I will letyou go on.

Mr. Bowers: I am not by this particular

evidence. 6344The Court: Then I will sustain the objec-

tion.Mr. Bowers: I will note an exception.Mr. Barnum: Then may we ask that the evi-

dence already given on that subject go out.The Court: What do you mean?Mr. Barnum: This printing evidence.Mr. Bowers: The last printing evidence or

all the printing evidence?Mr. Barnum: All the printing evidence.

The Court: No. I will let what I have al-lowed in so far stand. I don't know howmuch there is of it exactly. 6345

Mr. Bowers: This last I consider the leastmaterial of any I have asked.

Mr. Ivins: We have confined our motion

to strike out the evidence which has been sought

to be put in with regard to the assignment of

certain contracts to certain banks, so far as

the same appear on the face of the minutes.

The Court: Just now?Mr. Ivins: Just now.The Court: That may go out.Exception for defendant.

2116


By Mr. Bowers:

Q. Do you remember some evidence that was givenin the case on the passage-or the defeat rather of theHinman-Green bill? A. In general, yes.

0. You remember that testimony that was giventhat you were at the capitol when the final vote wastaken on that bill?

Mr. Ivins: I object to this on the groundyour Honor has held that the testimony withregard to the passage of the Hinman-Green

6347 Bill does not impute any immorality or irregu-larity on the part of the witness or any of theparties to it, and that was stricken out, excepton one point.

The Court: The one point of dominance.Nfr. Ivins: Yes.The Court: If the plaintiff admits that he

was dominant in 1911-Mr. Barnum: This was in I9IOThe Court: No; 19I i; that was the time

when the Senatorial Election took place. Ifhe admits he was dominant in 19 11 when thatelection took place, we will stop this evidencehere. If not, he has a right to cross-examinehim for the purpose of proving the dominancewhich existed in 19io and which presumptivelycontinued.

Mr. Ivins: He was elected in the last partof January, 1911.

The Court: I have allowed in evidence proofas to what transpired as to the Hinman-GreenBill; that, as I understand it, was in I9IO.

Mr. Barnum: That is correct.The Court: As proving that the plaintiff

was dominant at that time in the party. If the

2117

Plaintiff's IWitness, IJ'illiam Baries, Jr., Cross 6349

plaintiff was dominant in 191o, the presumptionis that his dominance continued.

Mr. Ivins: I am perfectly willing to havethem prove by this witness, if they can, thathe was dominant in i9io, but I disagree withyou entirely as to its continuance. When rcame up here I was in good health and nowI have got a bad cold.

The Court: That may be, but the presump-tion is, notwithstanding that specific instance,that when you once prove the existence of afact the fact is presumed to continue.. You 6350may go ahead.

By Mr. Bowers:

Q. I want to ask you whether Mr. Grady was inthe Senate in I9IO? A. Certainly.

Q. Was Mr. McCarren in the Senate in i9io? A.I don't think so; I think he was dead.

Q. Did Mr. Grady take part in the defeat of theHinman-Green Bill? A. Yes; he voted against theHinman-Green Bill.

Q. Did you see him at the Senate at any timeduring the consideration of the Hinman-Green Bill?A. About the compromise on the Meade-Phillips? 6351

Q. Yes. A. I saw Mr. Grady once. That is, Idon't mean to say he was not within the line of ob-servation.

Q. Did you see him on the night the bill was passed?A. I saw him on the night of June 3oth. That wasthe only time I saw him.

Q. And was that at night or in the afternoon? A.I think it was in the evening.

Q. What was he doing at that time? A. He waspassing through the corridor from the LieutenantGovernor's anteroom into the Senate.

2118

6352 Plaintiff's ftFitness, William Barnes, Jr., Cross

Q. Was he alone? A. Yes. Well, there were otherpeople all over the place.

Q. Did you speak with him?

Mr. Ivins: I object to farther inquiry onthat subject. I have tried to introduce evidencehere with regard to dominance on the Demo-cratic side, and produced Mr. Smith, who wasDemocratic leader, and your Honor ruled outhis testimony; and to prove Mr. Grady's re-lation or dominance, if there was any, is nomore admissible, in my mind, than what I

6353 sought to prove by Mr. Smith, who was pres-ent on the same occasion, and who is living.

The Court: No. You tried to prove, as Iunderstood it, by Mr. Smith, that Mr. Barnes,as head of the Republican Party, had not madean agreement with Mr. Murphy, as head of theDemocratic Party, to keep the Republican votefirm for Depew, so that Mr. Murphy mighthave a free hand in the election of a Demo-cratic Senator. You offered to prove that byhaving Mr. Smith deny that he knew or heardof any such arrangement. And I held that theonly competent evidence as to the non-

6354 existence of that agreement would be a denialby Mr. Barnes of the existence of the agree-ment, a denial by Mr. Murphy that there wasany such agreement made with him, a denialby the Republican members of the Senate andAssembly that they had been influenced by Mr.Barnes in any way. I held that a denial by aDemocratic member that he had been influencedby Mr. Barnes or by Mr. Murphy was not rele-vant to prove or disprove the existence of suchan agreement. This is a very different propo-sition.

2119


Mr. Ivins: Of course, if I misunderstood

your Honor I missed my point.Exception for plaintiff.

By Mr. Bowers:

Q. Did you speak with him? A. I did not.Q. What action was taken that night? A. A reso-

lution was passed providing for an adjournment, that

is, the Assembly resolution was passed by the Senate,providing for an adjournment the next day sine die.

Q. You were opposed to this Hinman Bill? A.

Certainly. 6356Q. And in favor of the Meade-Phillips Bill? A.

Yes.Q. You were at the Senate that night? A. Yes.0. When that action was taken? A. When the

resolution from the Assembly was adopted.Q. Mr. Grady was also opposed to the Hinman Bill

and in favor of the Meade-Phillips Bill?

Mr. Ivins: I object to that.The Court: He may answer.Exception for plaintiff.

A. He voted-I don't know whether he voted in

favor of the Meade-Phillips Bill or not; he must have; 6357it passed by the action of the Democrats; he must

have voted for it.Q. In the original complaint in this case you claimed

damages as against the defendant as affecting your

political influence and activity, did you not? A. I

never read either complaint.Q. You verified them without reading them? A.

I left it to the attorneys.

Mr. Ivins: I object to that. The prayer

of the complaint is no part of the cause of

action, and it cannot be put in evidence or read

in evidence. It has no relevancy whatever.

2120

6358 Plaintiff's W1itness, [I'illiam Barnes, Jr., Cross

Mr. Bowers: I don't think counsel shouldstate the facts to the witness. It is not theprayer of the complaint but the first paragraphof the complaint. The witness has already an-swered as far as that is concerned.

I offer in evidence this original complaint,the fourth paragraph-no; strike that out. Iwill not put that in evidence. I will ask this:

Q. Will you look at the fourth paragraph and statewhether or not the complaint does not charge, "Forthe purpose of defaming and injuring the legitimate

6359 political influence and activity of the plaintiff in theperformance of his duty and citizenship." Whetherthe complaint contains that statement, the originalcomplaint? A. It is here.

MIr. Bowers: I desire to offer this com-plaint in evidence for the purpose of showingthat that was the only claim for damages thatwas made.

Mr. Ivins: I object to it.Objection sustained.Exception for defendant.

By Mr. Bowers:

6360 Q. I want to know whether you recollect that you

testified as follows before a Legislative Committeeat the City of Albany, in the month of October, 1911 :

"Q. Were you aware, Mr. Barnes, of this transferby McCarthy to the Lyon Company? A. No, I wasnot." Do you remember so testifying?

Mr. Ivins: I object.Objection sustained.

By Mr. Bowers:

Q. "Never knew it?"

2121

Plaintiff's Witness, William Barnes, Jr., Cross 6.361

Mr. Ivins: I object.

Same ruling.Exception for defendant.

Mr. Bowers: The purpose of this evidence

is as to whether this conflicts with the evidence

he has given now.

Mr. Barnum: He cannot contradict his own

witness.Mr. Bowers: As cross-examination.

The Court: Do you mean you are trying to

contradict something he has said on cross-ex-

amination? 6362

Mr. Bowers: Something he said before that

committee, for the purpose of bringing to his

attention the situation which really exists as

to the two matters on which he has given evi-

dence here today.The Court: Printing matters?

Mr. Bowers: The McCarthy contract.

The Court: I will sustain the objection. As

I have said before, if you intend to prove by

this evidence that the plaintiff has committed

some crime or has been guilty of some moral

wrong which would justify the jury in doubt-

ing the credibility of his testimony, you may 6363,

go into this evidence, otherwise not.


Mr. Bowers: I am not going to claim what

I may fail to prove.

By Mr. Bowers:

Q. Mr. Barnes, do you recollect that a letter was

written when this action was brought or shortly after

this action was brought, asking that you consent to

change the place of trial from the County of Albany?

Mr. Ivins: I object to that as entirely im-

material.

2122


The Court: Of course, I don't know. Hemay answer that.


By the Court:

Q. You made an affidavit? A. Will you state thequestion again?

Mr. Ivins: He asks whether he remembersa letter was written. He doesn't even say fromwhom or to whom.

6365 By Mr. Bowers:

Q. Do you remember that a letter was written bythe defendant's attorneys in this action, to your at-torneys, asking whether you would assent to changingthe place of trial from the County of Albany to someother county?

Mr. Ivins: I object to it as immaterial.The Court: How is that material?Mr. Bowers: It is material as bearing on

the question of his desire to keep the trial inthe County of Albany.

The Court: He had a perfect right to desireto keep it there. I will sustain the objection.

6366 Exception for defendant.Mr. Ivins: He was compelled by the Code

either to go there or to go to Mr. Roosevelt'scounty, and the result is our good fortune inbeing here.

Mr. Bowers: You didn't want to get here,though.

By Mr. Bowers:

Q. I call your attention to an article appearing inthe Albany Evening Journal of Saturday, Novemberi8th, 1899, on the question of Mr. Payn, and ask youif you identify it? A. I see the article.

2123

Plaintiff's Witness, ffilliam Barnes, Jr., Cross 6367

Q. Did you testify on your direct-examination that

you understood from the beginning of Mr. Roose-

velt's term of office that there was no question but

what he would remove Mr. Payn? A. I did.

Q. Or rather- A. That he would not reappoint

him.

Mr. Bowers: I offer in evidence the article

in this edition of the Evening journal, bearingupon Mr. Payn.

Mr. INins: I object to it as irrelevant and im-

material.

Article marked for identification Exhibit 249. 6368

The Court: In the first place, is this offered

in contradiction of his testimony on the direct-

examination as to what he knew about Mr.

Payn?

Mr. Bowers: That is the purpose.

The Court: He identifies it as being an edi-

torial in the Evening Journal. Does he identify

it as being his own personal editorial?

Mr. Ivins: It is not an editorial to begin

with. It is on the editorial page, and it states

on its face it is a rumor.The Court: Of course it is not competent 6369

at present.Mr. Bowers: He gave a general answer Fri-

day afternoon that he stood responsible for all

of these articles in the Journal.Mr. Ivins: Oh, no.

Mr. Bowers: Wait till I finish. Last Fri-

day afternoon I asked him the question very

distinctly what the purpose was, and he said

in the first instance to protect his sub-editors

from actions for libel and so forth. I also

asked him whether he did not pursue the same

2124

6370 Plaintiff's lWitness, Jf'illianv Barnes, Jr., Cross

course and assume the same responsibility forthe general benefit of his paper towards thepublic, and I understood him to answer withthe utmost distinctness that he accepted fullresponsibility.

The Court: Of course he accepts full re-sponsibility, but that doesn't show that he isfamiliar with everything that appears in thepaper.

By Mr. Bowers:

6371 Q. Then I will ask you: Do you remember thatthis article was published: "The term of Superin-tendent of Insurance Louis F. Payn of Chatham willexpire February ii. Superintendent Payn's appoint-ment three years ago was vigorously opposed by agreat many Republicans, but his administration ofthe affairs of the office has won for him many compli-ments, and last winter the Senate took occasion pub-licly to congratulate him upon the manner in whichhe had administered the affairs of the department. Ithas been rumored that Governor Roosevelt will notreappoint Mr. Payn. It also has been rumored thatin case Governor Roosevelt does not reappoint Mr.

6372 Payn, the Senate will refuse to confirm anyone whomhe does nominate." Do you, remember that article?

Mr. Ivins: I object to the question. Insteadof asking a question predicated upon this mat-ter, the counsel has taken advantage of thesituation to read the article to the jury.

Mr: Bowers: You did that for two weeks.Mr. Ivins: I did nothing of the kind.

By the Court:

Q. Do you remember that article? A. I do not.

2125

Plaintiff's (Fitness, W('illiam Barnes, Jr., Cross 6373

By Mr. Bowers:

Q. You don't remember it? Now that I have re-

freshed your recollection by bringing it to your at-

tention, do you remember whether there was to your

knowledge at that time a statement made from any

source concerning Superintendent Payn's non-reten-

tion in office?

Objected to as immaterial and irrelevant.

Objection overruled. Exception for plaintiff.

A. What is the question?

0. Do you remember any statement being made of 6374

whichyou had knowledge on the iSth day of Novem-

ber, 1899, to the effect that there was some ques-

tion as to Mr. Payn's retention, and to the effect that

he had filled the office well? A. No, I have no recol-

lection of that matter.

Q. Do you remember stating to- a representative

of the New York Times on Friday, February ioth,

19 11, in substance as follows: "Why, I don't see how

anyone concerned can change his attitude," replied

Mr. Baiknes, being asked about the Senatorial situa-

tion."Murphy cannot very well shift from his position

while the insurgents must stick where they are. Both 6373

sides are committed to their candidates and they can-

not very well 'change without loss of prestige. It is

the same with the Republican Legislators. They can-

not change from Senator Depew."

"Is there any chance of the Republican and Demo-

cratic Legislators uniting on a compromise candidate ?"

Mr. Barnes was asked.

"Absolutely no chance whatever," he replied. "The

proposition is absurd." Do you remember such an

interview? A. I do not.

Q. Did you see it in the Times of February iith?

A. I don't recall it at all.

2126

6376- Plaintiff's IWitness, William Barnes, Jr., Cross

Q. Will you look at Exhibit 25o, and tell me whetheryou remember the editorial which first appears inthat exhibit, being a copy of the Albany Evening Jour-nal of Saturday, November 8th, 1913? A. In rela-tion to Judge Werner?

Q. Yes.

Mr. Ivins: I wish the Court would call theattention of the witness to the fact that thisquestion calls for a categorical answer, yes orno. I would like to see the article.

Mr. Bowers: I am going to let the witness6377answer first.

Mr. Ivins: I don't know what he will an-swer.

Mr. Bowers: We will hear the answer first.

A. What is the question?Q. Did you write that article? A. I can't recall.

I think I could if I read it carefully.Q. Read it carefully, please. I would like to know.

Mr. Ivins: I want to see it.Mr. Bowers: I object to your seeing it until

he has answered the question.Mr. Ivins: I think I have a right to see the

6378 document.The Court: It doesn't make any difference.Mr. Ivins: If your Honor thinks it doesn't,

I don't.The Court: When they offer it in evidence

you can certainly see it.

A. I should doubt it very much.

By the Court:

0. You don't remember that you did, then? A.No, I don't. It doesn't read like my- (interrupted).

2127


By Mr. Bowers:

Q. Do you know where you were at that time? A.

I think I was in New York. It was right after elec-tion.

Q. November 8th, 1913. Did you see that articleat the time it was written? A. I don't recall it atall.

Q. You have read the whole article and don't recallit at all? A. No, I don't recall it at all or any partof it.

Q. Do you recollect making any statement of thekind contained in that article bearing upon the de-fendant in this case, who was then in South America?

Mr. Ivins: I object to that unless I can see

the article.The Court: That will hardly do. That

doesn't give the other side an understanding ofwhat the question is. The other side have aright to see the article so they can object ifthe question is improper. Never mind whatthe language of the article is. Why don't youask him if he made any statement concerningthe defendant so and so?

Mr. Ivins: I don't object to that, if he asks 6381whether he made a certain statement in a gen-

eral way and in a proper way.

By Mr. Bowers:

Q. Did you make a statement on or about the 8thof November, 1913, as follows:

"This victory for the Republican judicial ticket more-

over serves opportunely to stand against the diaphan-ously disguised anarchistic doctrine which a formerPresident of the United States-horrible dictu-yes-

terday proclaimed anew in the capital of Argentina

2128

6382 Plaintiff's [Fitness, John C. Winters, Jr., Direct

where there is none to make fitting reply to him, to

tell the people of that country that his attempt tocreate revolt against the judicial branch of the gov-

ernment of the United States has aroused such indig-nation among loyal Americans as they hold againstthose who frankly advocate anarchism"?

Mr. Ivins: I move to strike that out as im-proper and utterly immaterial.

The Court: I don't see how that is material,unless you are going to show that that state-ment was made and came to the'defendant's

'6383 attention before this article was published.

Mr. Bowers: No. I don't believe: he everheard of it.

Mr. Ivins: I object to it.Objection sustained. Exception for defend-

ant.The Court: The other side tell me that they

have one Legislative witness. Perhaps you bet-

ter let him be sworn before we adjourn, andMr. Barnes' examination may be suspended un-til morning.

6384

JOHN C. WINTERS, JR., called as a witness for

the plaintiff, being duly sworn, testified as 'follows:


Q. You live where? A. Mt. Morris, New York.Q. Your occupation is what? A. Canner; canned

fruit packer.

'Q. Were you in the Legislature of 191 i ? A. Yes.

Q. In the Assembly or in the Senate? A. Assem-

bly.Q. As a Republican? A. Yes.

2129

Plaintiff's P'itncss, IJ'illiamn Barnes, Jr., Cross 6385

Q. How long were you in the Assembly, how many

years? A. Two.Q. What two? A. I9II and 1912.

0. Do you know the plaintiff, Mr. Barnes? A. By

sight.Q. During the Legislative session of 1911 did you

have any talk with Mr. Barnes with reference to the

election of United States Senator? A. No, sir.

Q. Have you had any talk with Mr. Barnes at

any time? A. No.

Q. With reference to the election of United States

Senator? A. No, sir. 6386


0. How long were you in the Legislature? A. 1911

and 1912.

Q. You went there first in January, 191i? A.

Yes, sir.

Q. Did you attend the Senatorial caucus? A. Yes.

Q. Was Mr. Depew nominated? A. Yes.

0. And did you vote for him? A. Yes.

0. And did you thereafter vote for him in the

Legislature for United States Senator until Judge

O'Gorman was elected? A. Yes, sir.

Adjourned to tomorrow morning. 6387

Morning session, Tuesday May 18, 1915.

WILLIAM BARNES, the plaintiff, recalled for fur-

ther cross-examination.

By Mr. Bowers:

Q. Was the $i i,ooo interest reserved by you in the

contract finally paid?


Ubjection sustained.

2130

6388 Mr. Bowers: May I be heard on that ques-tion ?

The Court: Yes; unless it is the same rul-

ing that I made yesterday.Mr. Bowers: I don't think it is the same

ruling which you made yesterday. You ruledyesterday that I could not go on as to thequestion asked as to the business done by theJournal Company with the State. The otherevidence you left in, the evidence as to theLyon contract, if I remember it.

The Court: I will leave it largely in your

hands.6389 My ruling is as regards all that evidence that

it is competent if you expect to show, as I saidyesterday, some criminal act on the part ofMr. Barnes, or some act showing moral tur-pitude at the time that would justify thejury in disregarding his evidence. Now youknow what you are going to show and I willleave it entirely to you.

Mr. Bowers: I do not know exactly what Iam going to show. Assuming that I get whatI believe to be the truth then I do know what Iam going to show, and it will involve one orthe other.

6390 The Court: You may go on if you expect toshow that.

Mr. Ivins: I take my exception.Mr. Bowers: I want to say this in that

regard. When this question first came up it

was in answer to a question that I put, and thefirst question that I put was as to certain cor-

respondence. Now, your Honor thereuponstated your views upon the subject, and it was

stated perhaps more strongly as that did not

touch the question of moral delinquency, which

2131

your Honor afterwards held. Now, I did go 6391on after what your Honor has said upon thatsubject and asked certain questions bearingupon certain letters that were written by theplaintiff, and those letters finally led to thequestion being put as to the award of contractsby the State Printing Board, and to the state-ment being made by the witness that he calledupon Mr. Davies, who was then Attorney Gen-eral, in relation to the bid which had beenoffered for the contract known as the Legis-lative printing. The statute, as I understandit, made Mr. Davies a member of that Board;he says that he wanted him if possible, that 6392he hoped the Lyon Company would get thecontract; that there was some likelihood thatthe contract might be given to Mr. McCarthywho had no printing plant, and so forth. Otherquestions were asked which indicate thatthere was a difference of nearly $ioo,ooo inthe Lyon bid and the McCarthy bid. Furtherquestions were asked him which showed thatthis witness had transferred what he claimed -

wvas an option on the McCarthy bid to Mr. Lyonfor the consideration of $31,ooo, $20,000 of

which was to be paid by a contract in writingwhich provided that it was for services, and 6393$i i,ooo of which was reserved, and no specifi-cations have been obtained by me, whether ornot that $i i,ooo have been paid. There was

thereafter raised and is before this jury andyour Honor at the present moment, a situationwhich involves in my judgment, matters which

always bear upon the weight to be given by thejury to the testimony of this gentleman. Howmuch further that goes of course in the answers

that are given-for example, this witness says

.2132

6394 that although there was a written minute ofthe board of which he was a member, show-ing that $20,000 was to be paid to him fortwo years' services; yet that was paid over byLyon and was really $20,000 that he owedhim on account of selling him this contract.

I submit that then it must be and is ofright left to the consideration of the jury asto which is the true situation. If it be thetrue situation that the $20,000 were for theservices that he rendered in going before thePrinting Board, there would be very clearmoral dereliction. If the $20,ooo and the $i i,-

'6395 ooo reserved were for some other purpose, adifferent situation might arise.

But I respectfully submit that we have pre-sented sufficient evidence upon that question thatI will not be wrongly exercising the discretionthat your Honor says that I may exercise, if Iproceed with that question and get the completefacts as bearing upon this, witness's credibility.And therefore it is that I have made the state-ment or will make it now to your Honor thatI believe that when the full truth is receivedthat there will be matter obtained from thelips of this witness which will justify the jury

6396 in considering it upon the question of his cred-ibility.

Mr. Ivins: At the close of the day yester-day, the last three or four questions which wereasked in regard to printing matter were strickenout. Counsel has already in from this witnes§the answer to the question which he himselfput, namely: that this payment was not forservices for appearing before the members ofthat board; that it was a profit on an option fora resale of the contract; that he has proved dis-

2133

tinctly and clearly by this witness already. If 6397he wants to go over it again and again and

again and again, I don't care how long hegoes over it. It is a question for the patienceof the Court and the patience of the jury. But

if he insists directly or indirectly because ofthe conviction in his own mind that by plough-ing and reploughing this field, he is going toget in the testimony with regard to printing Ishall have to object.

Mr. Bowers: I have no idea of getting inany of the printing evidence that was excluded.On the contrary, if I put in any here at all itwill have to be put in now. For instance, the 6398letter which this gentleman wrote in 1899, we

assume has been stricken out, or at least hasbeen taken from the consideration of the jury,upon the printing point; and therefore, if Iam'going to make use of it I have got to putit in the second time. So also the extracts fromthe letters read the other day. I am not ad-verting to any of the old evidence. I have nbidea of trying to put in the printing evidence;and therefore I readily acquiesced yesterdayin ceasing the line of questions as to the amountof Stat printing done by the journal, and Iintend to limit myself in this examination to 6399

the answers that I get from this witness, as-

sisted by certain memoranda to help him tell

the exact facts. I am not going to reopen the

case, and there will be nothing further except

to take his answer, and what I intend to say

is simply that these Platt letters and the Mc-

Carthy contract, and all-of which is referred

to in the Platt letters-

Mr. Ivins: Those letters are in evidence and

you are making this witness your own witness.

2134


Mr. Bowers: Do you stipulate- that thoseletters are in evidence?

Mr. Ivins: Every letter in evidence is there.Mr. Bowers: Are the printing letters, the

letters written to Mr. Platt, the correspondencebetween this witness and Mr. Platt all stipu-lated in the case so that I can use them?

Mr. Ivins: No. I insist that they clearly re-late to your Honor's ruling in regard to theprinting, and I shall object to their admissionon that ground.

6401 The Court: They are riot offered yet. Ithink as I say I can-I cannot tell what youexpect to get exactly or what you will get.If the purpose for which you ask for this testi-mony comes within the line of my ruling I mustleave it to your discretion to ask these ques-tions. I cannot tell what they will amount to.I think you may answer. I think I will changemy ruling.

Mr. Ivins: Exception.

By Mr. Bowers:

Q. The question is was the $ii,oao interest re-6402 served by you in the McCarthy contract finally paid?

A. I cannot testify that the amount is exactly $i I,ooo.Q. Certainly not. A. It was.Q. And at what date was it finally paid? A. I

cannot state exactly; probably early in r9oo.Q. Did you first see Mr. Davies before or after

the bids were opened?

Mr. Ivins: I object to that.Objection overruled. Exception.

A. It must have been after.Q. You say it must have been after. What is your

recollection in that regard and on what do you base

2135

Plaintiff's lVitness, William Barnes, Jr., Cross 6403

your answer? A. I can see no reason why I should

see him when there was nothing before him.

0. Is your best recollection that there was some-thing before him when you went to see him? A.The bids.

By the Court:

Q. The printing bids? A. The printing bids. Ofcourse, I am not sure about that; it is a long timeago.

By Mr. Bowers: 6404

Q. You saw him as you stated in your letter daily?A. Oh, no, I didn't see him daily.

Mr. Ivins: I object to that on the groundthat the letter is in evidence.

By Mr. Bowers:

Q. I ask you whether you wrote on July 29, 1899,

to Thomas C. Platt, the letter which appears at page

1714 of the minutes? A. I did; that is in my hand-writing from Nantucket.

Mr. Bowers: I offer that in evidence.

The Court: I will receive it. 6405Exception.Mr. Ivins: It is immaterial and irrelevant.

The Court: Has this letter already been read

to the jury?Mr. Bowers: It was read in evidence and

had no exhibit number of itself. The letter

appears at page 1714 of the record. In that

letter you say among other things as follows:

"Now, as to Mr. Quigg's letter to you. First.

he errs when he says I did not communicate

with the Comptroller- or Attorney General. I

2136

64 )6 Plaintiff's U 'itness, [U'illiam Barnes, Jr., Cross

was in almost daily conference with Mr. Da-vies, and tried several times to see Colonel Mor-

gan but failed."

Q. Does that refresh your recollection as to whetheryou were in daily conference with him? A. I havealready answered that question.

Q. I thought you said you didn't see him daily?A. I can't testify whether I saw a man daily seventeenyears ago.

Q. But you wrote the letter? A. The letter is in6407 evidence. I have not denied it.

Q. You wrote the letter? A. Yes.Q. You wrote what you believed to be the truth?

A. "Almost daily." It may mean whatever it maymean. I can't define.

Mr. Bowers: I move to strike that out asnot responsive.

The Court: It may stand.Mr. Bowers: It is a rule of evidence that

where a record is made in the usual course ofbusiness, in a letter or in an entry of any kind,and the witness has entirely forgotten it, andhe says he has made a truthful entry, it is ac-

6408 cepted as evidence.The Court: Yes.Mr. Bowers: Now, then, I ask this witness

at the time that he wrote that letter upon thissubject, what he believed to be the truth, and Iget an answer-


The Witness: Certainly.

By Mr. Bowers:

Q. Now, I call your attention to Exhibit 130.

Mr. Ivins: That. has been stricken out.

2137

Plaintiff's 11"itness, Tf'illiam Barnes, Jr., Cross 6409

The Court: As a matter of fact, I don't sup-pose that either the letter or this has yet beenstricken out. You gentlemen were going to goover the record and determine just what I wasto strike out and I will assume that they wereboth stricken out.

Mr. Bowers: Upon that subject, I wouldlike to say this. I have felt that we ought to,before this case is summed up, have determinedexactly what was out and what was in. Butit seems almost impossible to do it. And Iunderstood it, although I don't understand 6410your Honor to say so, that your Honor feltthat counsel ought to know enough to knowwhat went out and what did not, and that ifwe erred in that way when we addressed thejury. that would be corrected. And I have ac-cepted that as possibly the only situation thatwe can deal with at this time. In my opinionthat would have cut me off from making anyreference to these letters even on the questionof credibility. And in my opinion in order tobe able to use these letters or documents bear-ing upon this question, it becomes my duty tooffer them on the question of credibility, and 6411then I will be justified in referring to them.

The Court: Very well. We will assume thatthey are out for that purpose.

Mr. Ivins: I object to the question, that theydon't touch on the question of credibility.

The Court: You don't expect me to speak ifthey are considered out?

Mr. Ivins: No.

By Mr. Bowers:

Q. Now, coming back to the question which is un-der discussion, I call your attention to Exhibit 130

2138

6412 Plaintiff's lWitness, i'illiam Barnes, Jr., Cross

and ask you whether you have looked at it and it re-freshes your recollection as to these bids-

The Court: May I look at it once more?

What are they, bids made to the PrintingBoard?

Mr. Bowers: Yes, sir.

By Mr. Bowers (continuing) :

Q. As to the bids that were made before the Print-ing Board at the time of the McCarthy bid, answer

yes or no. A. I testified yesterday that I didn't know6413 about those figures at all.

By the Court:

Q. You don't know then whether those were thebids that were made? A. No, I don't.

Mr. Bowers: Now then I offer this paperin evidence the second time. There can be noobjection to its competency. It was receivedas a copy of these bids.

The Court: It is not objected to on thatground.

Mr. Ivins: I object to it on the ground thatMr. Barnes has testified he has no knowledge

6414 of it; that there is no way in which it is com-petent as it bears simply on the printing mat-ter, and refers to the work of State_-officialswhich has been ruled out, and concerningwhich Mr. Barnes, as the witness of the de-fendant has himself testified that he has noknowledge and therefore-

Mr. Bowers: No recollection?Mr. Ivins: No. He said no knowledge.The Court: How is it competent against

Mr. Barnes unless you connect it with him in

some way?

2139

Plaintiff's Witness, IJ'illiam Barnes, Jr., Cross 641.5

Mr. Bowers: It is only competent as show-ing what these bids were.

By Mr. Bowers:

Q. Do you remember what were the bids made bythe different bidders? A. Certainly not.

Q. Do you remember that there were seven bid-ders? A. I can remember it from reading it now.

Q. Does this refresh your recollection? A. I neverdid know.

Q. Did you know the amount of the Lyon Com-pany bid? A. I did not. 6416

Q. Did you know the amount of the McCarthy bid?A. I did not.

0. Do you mean to say that you went there to ad-vise Mr. Davies, as you say you did, without knowingthe amount of the bids?

Mr. Ivins: I object to that. He has nottestified he went there and advised Mr. Daviesabout anything.

By Mr. Bowers:

Q. You testified yesterday that you called uponMr. Davies who was then Attorney-General, in rela-tion to the bids which had been offered for the con- 6417

tract known as the legislative printing. "I said to himthat I hoped the Lyon Company would get the con-

tract. There was some likelihood that the contract

might be given to McCarthy, who had no printing

plant, and who I felt might establish through himself

or somebody else another printing house in the city."

Now, do you mean to say that you went and made

that statement to Mr. Davies without any knowledge

as to whether there were any bids except the McCar-

thy bid and the bid of the Lyon Company? A. I

knew there were several bids in.

2140

6418 Plaintiff's IVitness, William Barnes, Jr., Cross

Q. Do you mind answering my question yes orno? A. Did I know there were other bidders?

Q. I put it again? A. Yes.Q. You did know there were other bidders? A. I

knew there were more bidders than McCarthy andLyon.

Q. Do you mean to say that you went to Mr. Daviesin the manner you did without any knowledge of thedifference in the amount of the bid by McCarthy andby the Lyon Company? A. Yes; I did. I knew itwas higher; I didn't know what the figures really were.

641 Q. Did you know which was the higher? A. 1,knew that Lyon was higher.

Q. You knew that Lyon was higher? A. Yes, sir.Q. How did you get that information? A. Com-

mon knowledge; what I mean, discussing the matterwith Mr. Lyon.

Q. Talking with Mr. Lyon? A. I talked with Mr.Lyon.

Q. Did he ask you to go there? A. Yes.Q. When was it that he asked you to go there, be-

fore the bids were opened or afterwards? A. I can'tremember.

Q. When he asked you to go there did he tell you

6420 what the Lyon Company bid was? A. Well, I don'tremember whether he told me the figures or not; butI know that he wasn't the lowest bidder.

Q. Did you know that the Lyon Company bid waslarger than the McCarthy bid? A. Yes, sir.

Q. Did you know that it was very much larger?A. No.

Q. You would be surprised to hear that it wasnearly $ioo,ooo larger? A. That is true; I was verymuch surprised to see those figures.

Q. Quite a difference as between bids of $241,-000-

2141

Plaintiff's [Vitness, JFilliam Barnes, Jr., Cross 6421


Mr. Bowers: I will drop the question. You

had a good objection.

By Mr. Bowers:

Q. Did you particularly urge. him not to give the

bid to McCarthy? A. I urged him not to give the bid

to anybody except someone that had a printing house,

that was my contention.

Mr. Bowers: I move to strike that out as

not responsive.The Court: That may go out. 6422

By Mr. Bowers:

Q. Did you urge him not to give the bid to McCar-

thy? A. Not particularly.

Q. Sure? A. Well, I mean not McCarthy alone;

there was a Buffalo man had a bid in there.

Q. Did you urge him not to give it to McCarthy or

the Buffalo man? A. I think so,

Q, Didn't you testify yesterday that you urged

him in the event that he would not give it to the Lyon

Company that you trusted he would not give the con-

tract to McCarthy? A. I did.

Q. McCarthy was a resident of Albany? A. He 6423

was.Q. A man you knew? A. Yes, sir.

0. A man who was printing a newspaper there?

A. He was.Q. Who was Mr. Brandow? A. He was the owner

of the Brandow Printing Company. I don't know

whether that was the name of it at that time or not.

Q. He was a bidder, was he not? A. He or his

company.0. You know they were? A. Yes, sir.

Q. And they had a printing plant in Albany? A.

I think so; yes.

2142

6424 Plaintiff's Witness, It'illiam Barnes, Jr., Cross

Q. Did you buy the contract from McCarthy before

or after the contract was awarded to him? A. I tes-tified exactly to the facts yesterday.

Q. Do you recollect? A. Mr. McCarthy asked meto buy his contract and I told him that I would buyit, when it was made.

Q. 'Vhen it was made, you mean when the contractwas awarded to him? A. It had been awarded to him.

0. Then after it was awarded to him? A. It wasawarded to him in June.

Q. Was it? A. Certainly.

6425 Q. Was the contract awarded to him in June orOctober? A. Why, it was in June, unless I am in-correct in my legal phraseology as to what awardmeans. The State Board announced that he had thecontract.

0. After that it was that he came to you and askedif you would buy it? A. Yes, sir.

Q. Didn't he go to Lyon? A. That I don't know;he might have.

Q. Didn't he agree upon a price with Lyon? A. Hemight have.

Q. Don't you know that he did? A. Well, I didn'tknow it. Now my letter to Mr. Platt said that there

6426 was a price talked of between Mr. Lyon and Mr. Mc-Carthy.

Q. Who was Mr. Dady? A. He was a contractorin Brooklyn.

0. Was he a politician? A. He was chairman ofthe Kings County Committee, the Republican Com-mittee for a time.

0. Was he at that time? A. I couldn't say.Q. Was he interested in the McCarthy contract?

A. I don't know.Q. Did you state in your letter to Mr. Platt to

which I have just referred: "Secondly, he refers toMr. Dady as the practical owner of the McCarthy

2143

Plaintiff's lVitness, ll'illiam Barnes, Jr., Cross 6421

bid." You knew that fact when you wrote this let-ter to Mr. Platt? A. I knew it was reported. Ididn't know it was absolutely true.

Q. You knew it was so reported? A. I can't swearit was true.

Q. You said in your letter, "I have no quarrel withMr. Dady and I am willing to take his contract at theprice agreed upon between Mr. McCarthy and JamesB. Lyon." Do you remember that? A. Yes, sir.

Q. Then there had been a price agreed upon at thetime that letter was written between Mr. McCarthyand James B. Lyon? That is true, isn't it? A. There 6428must have been from my letter, but I have no knowl-edge of it.

Q. Did you buy at the price agreed upon betweenthem? A. I don't remember.

Q. Did you get an opti6n or an absolute contract?A. I have already testified exactly what happened.Mr. McCarthy asked me whether I would buy his con-tract. I told him what I would give him for it. Isaid, "If your contract is a contract." That is, ofcourse, I wouldn't pay for it unless he had the con-tract confirmed and in order.

Q. Was that after you had written this letter toMr. Platt? A. Yes, sir. 6429

Q. You knew then that a price had been agreedupon between him and Lyon? A. There was no priceagreed upon; the letter does not state there was aprice agreed upon.

Q. Let me read it, "I have no quarrel with Mr.Dady and am willing to take his contract at the priceagreed upon between Mr. McCarthy and James B.Lyon." That is a distinct statement that there had

been a price agreed upon between those two men.

isn't it? A. Yes; but it does not mean that there

was any agreement between them.

2144

6430 Plaintiff's Witness, WFilliam Barnes, Jr., Cross

Q. It means a price had been agreed upon:betweenthem? A. Certainly not, to my mind.

Q. That is rather plain language, and let's see: it

does not mean in your mind that at that time you had

information that a price had been agreed upon for the

McCarthy contract between McCarthy and James B.

Lyon? Is that the position you take? A. There was

no agreement between Lyon. and McCarthy.Q. Do you mean to say that there was no com-

pleted agreement between them? A. Yes; that is whatI mean.

6431 Q. But they had agreed upon a price? A. I don'tknow exactly about it.

0. And yet you wrote it here, didn't you? A. Isuppose that that means that Mr. Lyon and Mr. Mc-

Carthy talked the matter over and came to some idea

about what McCarthy would sell for.

Q. Now, then, did you buy at that price or at adifferent price? A. I don't know.

Q. Well, you were never told what that price was?A. I may have been but I don't recall.

Q. And you don't recall whether the amount youagreed to pay was the same price or not? A. I don't.

0. Now then did you transfer your agreement of

6432 purchase to James B. Lyon direct? A. Yes, sir.Q. Is it a fact that the McCarthy contract was as-

signed directly by McCarthy to Mr. Lyon? A. It is.

Q. And not to the Lyon Company? A. Correct.Q. Now, did you assign to that company- A. I

have already testified to this transaction, exactly what

part I had in it, and it is very clear.Q. I don't think we have had any testimony as to

the course the transaction took. Now, what was the

date when you entered into this agreement with Mr.

McCarthy for the sale of this contract? A. I have:no

means of knowing, but I should think it was about

a fortnight before the final contract was signed.

2145

Plaintiff's Witness, IVillianz Barnes, Jr.; Cross 6433

Q. Do you know, what ;month that contract was,signed? A. I think it was in-the fall bf 1899.

Q. WhAt month, October? A. I think so.Q. Now when were you paid by Lyon ithe $3I,OOO

or about that sum? A. I have already testified thatI assigned $20,000 to the Journal Company as shownbS, the minutes of the Journal Company books; and Ialso testified that Mr. Lyonpaid me about $I-i,ooo tocomplete the transaction early in 19oo, whenI can'tsay.

Q. What was the date of the $2oooo agreement?'Do you remember? A. That is in the Journal minute 6434b6ok. I don't'remember the date.

Q. Was there ever any written agreement betweeni ,

you and Mr.. Lyon? A. Certainly; that assignment.;Q. The assignment? A., The assignment, of th&,

agreementiQ. The assignment of wh.t agreement? A., The'

agreement between Mr., Lyon tand me.Q., Then there was an agreement between Mr. Lyon.

and you which was assigned? A., Certainly.Q. Now, was, the substance 'of that agreement in i

accordance with the language described in- the min-,ute book, where it describes the agreement? A. Ihaven't the slightest doubt it was. 6435

Q. Did Mr. Lyon give you any reason for callifigthat $2o,ooo salary? A. My recollection is that Ididn't talk with him about it. Hi§ la:wyer brought-thedocument to me and said I 'was to sign it; and that:was 'the way Mr.' Lyon wanted the matter to stand.,

Q. You did sign it? A.' Of course I signed it.'Q. Are those all the circumstances connected with

your signing that agreement? Are those all'the cir-cumstances that you now recall'connected' with' yoursigning that agreement? A. Certainly.

Q. What, if any agreement, did you have about'the remaining $r T,000 or, thereabouts ?. A. I had, an

2146

6436 Plaintiff's Wlitness, lJ'illiam Barnes, Jr., Cross

agreement that a certain portion of the profits of thecontract-I can't remember-my recollection is thatthat was an understanding between Mr. Lyon and my-self. I know that early in 19o0,I wanted to kriowwhether I couldn't cash that and close it up. And Ithink it was done for $I i,ooo.

Q. You appreciated that when you signed that pa-per that you had done nothing to justify your claim toa salary from Mr. Lyon? A. Certainly.

Q. Did you perform any services for Mr. Lyon

during the years 1899 and 19oo or 19oi ? A. Not to

6437 my recollection.Q. When was it that you ceased your advocacy of

the award being made by the State Printing Boardto the Lyon Company?

Mr. Ivins: I object to that, it assumes, thatthere was such an advocacy. There is no evi-dence of that, The question is predicated uponan assumption. He should ask his question in'some other way.

'The Court: The question is impropdr inform.

By Mr. Bowers:

6438 9. When did you cease urging Mr. Davies to awardthe printing contract to the Lyon Company? A. TheLyon Company?

Q. Ye's. Didn't you say that you urged Mr. Daviesto award the printing contract to the Lyon Company?A. Or to any other house.

0. I read to you this morning that you went toMr. Davies and urged him to or asked him to awardthe printing contract to the Lyon Company, the J. B.Lyon Company? A. Or to ahy house in Albany thathad a printing establishment.

Q. -Did Lyon ask yob to go? A. Yes; he did.

2147

Plaintiff's W1itness, f'illiam Barnes, Jr., Cross 6439

Q. Lyon wanted it awarded to any house in Al-bany?

Mr. Ivins: I object to that; it is impossiblefor this man to testifv what Lyon wanted.

Mr. Bowers: That bears upon' the;2answerthat he, ma'de to the last question.

Q. You say now, do you, that what you asked Mr.Davies to do was to award it to a house in Albanythat had a' printing plant. A. You won't permit meto answer except categorically.

Q. You are'right. 'Give me a categorical answer. 6440

(Question repeated by stenographer as fol-lows: "0. You say now, do you, that whatyou asked Mr. Davies to do was toaward it to a house in Albany that had" a, peint-ing plant?")

A. I certainly said that to him.,Q. Is that what you said a minute ago, that is what

I want to know? A. I said to him-,Q. Now, I ask, not what you said to him, I asked

you whether you said in the last two minutes that whatyou urged Mr. Davies to do was to award the contractto some person or corporation in Albany thai had a

- 6441printing plant, did you say so or did-you not?- A. Idid.

0. 'Now you testified here that what you said tohim was "That I lioped that J. B. Lyon Companywould get the contract." A. I said all of those things.

Q. Yoiur first purpose was to get him-to award thecontract to the J' 'B. Lyon Company wasn't it? A.Well I suppose that must be so, the first purpose; Mr.Lyon asked me to see him and I did-; I. know what myreal object was.

0.,.Now I will iepeat my question; did y6u' so tes-tify yesterday that I said I hoped that the J. B. Lyon

2148;

6142- Plaintiff's JJ'itnss, W"illiam Barnes, Jr.; Cross

Conmpany would get the contract; did you say ,thatfitst? A. Yes, I §aid that.

Q. Did you say further that there was some like-lih~od that the contract might be given to McCarthy,who had no printing plant? A.I did.;,

Q, Did you say that it would be disadvantageous tothe printing business, both for yourself and others if, fhe gave it to McCarthy?

Mr. Ivins : I object to that as repetition.The Court,: He has said allof that yester-

day.6443 Mr. Ivins: We may as well'read the whole

record over again..Mr. Bowers: Perhaps it.would be a good

thi'ng to do..

Q. Did you know that the Brandow Printing Com-pany's bid was for $116,530.47? A. I did not.,

Q. You knew that they had started-a litigation ofsome kind against the award of the McCarthy .con,:-tract, did you not? A. I knew that they had later; Iknew it in July when it was.

Q. Exactly, when you, wrote that -letter to Mr.Platt? A. Yes, sir.

6444 Mr. Bowers: I want to put in evidence theletter of the witness to Mr.' Platt dated July,1899. which appears at page 1712 of the recordand the reply of Mr. Platt to the same which'appears at page 1713 of th record.

Mr. Ivins-:- I object to it on the ground that -those letters are irrelevant, immaterial and in-competent, and the general subject-matter hasalready been 'ruled out; the witness is the de-fendant's witness; that he is examining him andcannot introduce evidence which 'whether it is.

2149

Plaintiff's TWitness, TTilliam Barnes, Jr., Cross 6445

or is not in his belief tends to contradict hisown witness.

The Court: I will receive it.Mr. Ivins: Exception.Mr. Bowers: I also want to offer in evi-

dence the letter written by the defendant inDecember, 1899, to the Governor of the Stateand the Governor's reply thereto.

The Court: Are they new letters?Mr. Bowers: They are old letters; they are

in the record, this is the original and here isthe reply. 6446

Mr. Ivins: I object for the same reason.The Court: I will receive it.Mr. Bowers: They may keep their old ex-

hibit numbers-one is Exhibit 6 and the otheris Exhibit 7.

The Court: Very well.Mr. Bowers: I forgot whether I took an

exception to your Honor's ruling excluding thepapers which you refused to permit me to of-

fer in evidence, Exhibit 130.

Q. What were your relations with Mr. McCarthyat that time, in 1899?

Mr. Ivins: I object to that as entirely im-material.

The Court: He may answer.Exception to plaintiff.The Court: You mean friendly or un-

friendly?Mr. Bowers: Yes.

A. Well, they were politically unfriendly, I should

say. They never were particularly friendly person-ally. He was conducting an independent movement

against the Republican ticket in the Municipal elec-

tion just at this period.

2150


Q. Did you say in one of these letters to Mr. Plattthat on July 14th, "Mr. McCarthy, who is the bidderof record, backed by Mr. Quigg, is an inveterate enemyof the Republican Party and the Republican Organiza-tion"? A. If it is in the letter.

Q. Will you accept my statement? A. Certainly.Q. "He has daily assailed you generally and me

specifically"? A. Stating a fact.Q. Yet, you say he came to you and wanted to sell

his bid to you. He came of his own accord to you;is that right? A. I think he sent his agent, Mr. Drake.

6449 I think it was Mr. Drake that I saw first.Q. Is it a fact that Mr. Drake came to you? A.

Oh, yes.Q. Had you ever bought any bid before? A. No.

Q. The agreement you had with McCarthy I thinkyou said was oral? A. Yes, sir.

Q. Was it made through Drake? A. It was made

with McCarthy.Q. Was it made with McCarthy afterwards? A.

Yes, sir.Q. Drake brought you together; is that it? A. I

think so. My arrangement with McCarthy was madewith him personally.

6450 Q. And was it a verbal arrangement? A. Yes, sir.Q. Now, Mr. Barnes, you became the owner of 750

shares of the stock of the J. B. Lyon Company? A.I did.

Q. The original certificate that was issued to youcontained reference to an agreement?

Mr. Ivins: I object to that.The Court: He may answer.Mr. Ivins: The best evidence of that is the

certificates themselves.The Court: He may answer.Mr. Ivins: Exception.

2151

Plaintiff's WVitness, IVilliam Barnes, Jr., Cross 6451

Mr. Bowers: They are here, I believe. I

directed them to be retained. Has the clerk

got them?The Court: Well, I have allowed him to

answer.

By Mr. Bowers:

Q. Do you remember? A. Well, I cannot recall.

I see the-I mean when the certificate book was here

and there was a superscription upon the certificatethat was issued.

Q. Yes. A. I do not recall what that superscrip- 6452

tion was.Q. As I recall it, it was that the certificate of stock

was subject to an agreement between Mr. Lyon and

you.

Mr. Bowers: Where is the clerk; is that

agreement here, that stock book here?The Court: Send for the clerk, if you will.

Mr. Bowers: I have this here from the rec-

ord. The endorsement on this certificate was

as follows: "Issued subject to the terms andconditions of a certain agreement in writing

limiting the sale hereof, dated June 17, 1901,

made and executed by and between James B. 6453

Lyon and William Barnes, Jr."

Q. What does that agreement-what was that

agreement? A. I am not going to testify until I see

it on the certificate book.

Q. In the meantime, I would like to put this on the

record: If I stated to you that the records in this

case show that bids were made in certain sums for the

State printing for the year covered by the McCarthy

contract, will you question it?

.2152

6 454 Plaintiff's Witness, William Barnes, Jr., Cross

Mr. Ivins: I object to that. Mr. Bowersyesterday stated that he did not expect by anyof this testimony or intend to prove that thewitness was guilty of any moral obloquy what-ever.

Mr. Bowers: If I did, I stated the contrarythis morning.

The Court: It does not make much differ-ence what you stated yesterday as long as hestates this morning that he does.

Mr. Ivins: He may state something else to-6455 morrow morning.

Mr. Bowers: Very likely.The Court: I have to rule on the statements

that are made when the evidence is offeredfinally.

By Mr. Bowers.

Q. Here is one of those certificates. I show youa certificate which is entered in the book as No. 12

certifying that James B. Lyon is the owner of iooshares of the capital stock of the J. B. Lyon Company,which certificate is dated May i, 1899, and bears atthe top these words: "Issued subject to the terms and

6456 conditions of a certain agreement in writing limitingthe sale hereof, dated June 17, i9oi, made and exe-cuted by and between James B. Lyon and WilliamBarnes, Jr." A. I do not recall this.

The Court: You do not recall what, Mr.Barnes? The certificate or the agreement?

The Witness: Yes, I see the certificate. Mr.Lyon would not issue this stock until I agreednot to sell it except to him and I did not knowthat there was any agreement in writing aboutit.

Q. At what date was that certificate issued to you?A. I7th of June.

2153

Plaintiff's WVitness, WTilliam Barnes, Jr., Cross 6457

Mr. Ivins: I object to that as being incom-petent and immaterial, not bearing on the cred-ibility of the witness, and as reopening thisentire printing business.

The Court: He may answer.Exception to plaintiff.

A. The 17th of June, i9oi.

By Mr. Bowers:

Q. What is the date of that certificate? A. Well,this is the cancelled certificate. 17th of June, I9OI,when it was cancelled. This certificate is made out 6458

to Mr. Lyon.Q. I want to know if it was made out to Mr. Lyon

at what date? You have got the date there, havenot you? A. The ist day of May, 1899.

Q. Now, all of the stock in that book was issuedto James B. Lyon, was not it, originally? A. I donot know.

Q. You did not know that at the time? A. I didnot.

Q. Was that certificate delivered to you in the year1899? A. Certainly not.

Q. Well, it was surrendered by you to the company

in i9oi, exchanged for stock and surrendered, was not 6459

it? A. Certainly not. Just to the contrary. Sur-

rendered by Mr. Lyon and issued to me.Q. Surrendered by Mr. Lyon?

The Court: This is a certificate that Mr.

Lyon surrendered.Mr. Bowers: He may have endorsed it to

this witness after it was issued to Mr. Lyon

in May, 1899.Mr. Ivins: I hope you will get that straight-

ened out. The situation is the precise oppo-

site of what the gentleman is trying to prove.

2154

6460 Plaintiff's IWitness, Willianm Barnes, Jr., Cross

Mr. Bowers: If the certificate was issuedto James B. Lyon in 1899, he may have de-livered it to this witness at any time prior toJune 17, 1901.

Mr. Ivins: I object to that, what he mayhave done, as not in evidence.

The Court: That is not very important.Mr. Bowers: It is a statement of what the

paper shows.

Q. Now, is your recollection that that certificate wasdelivered to you on June I7th, 19Ol, that is what Iwant to know? A. Yes, I know that. The new stock

-what should show here in the stub book-the stockwas issued to me -was in I9oi, there was no stock is-sued to me before 19Ol, whatsoever.

Q. What I want to know is what that transaction-was that transaction a personal one with you andMr. James B. Lyon?

Mr. Ivins: Objected to on the same grounds.The Court: He may answer.Mr. Ivins: Exception.

A. I do not know what this is doing on the certifi-cate.

6462By Mr. Bowers:

Q. It does not make any difference at the momentwhat is on the certificate. I want to know whetherJames B. Lyon transferred that certificate to you asthe result of a personal transaction between you andhim? A. What is a personal transaction?

Q. Well, his selling you something or his givingyou something, or transferring you something underany circumstances? A. Correct.

Q. Well, it was a personal transaction? A. It was.0. Was it a sale of stock to you? A. No; it was

not a sale of the stock.

2155

Plaintiff's Witness, WVilliam Barnes, Jr., Cross 646:3

Q. There were 750 shares that went to you, were

there not? A. There were.

Q. All at the same time? A. Yes, sir.

Q. Was any of that sold to you? A. No.

Q. For what purpose were they transferred to you?

A. The purpose was that, Mr. Lyon and I would

carry on this printing business.

Q. What printing business? A. Job printing busi-

ness. The stock was valueless. His bond covered the

entire value of the property. There was no consid-

eration whatsoever for the stock.

Q. He gave it to you? A. Yes. 6464

Q. The 750 shares was given to you? A. Yes, sir.

Q. He had been carrying on the business in the

name of James B. Lyon under the McCarthy contract,

had not he? A. Yes, sir.

Q. And that ran through the years 19oo and 19O1,

did not it? A. No, sir.

Q. What years did it cover? Through October,

19oi? A. Well, it must have closed the Ist of Oc-

tober, two years, 1901. Yes; that is right.

Q. Not at the close, that was 19o2 or 1903. A. I am

not quite sure. It was the two years, and it began in

1899.Q. It started in October, I899 and closed in Octo- 6465

ber 19O1, then? A. That is right.

Q. This stock that you got in June, 19o1? A.

Yes, that is right.

Q. Now, you say this was assigned for what pur-

pose, for starting up the J. B. Lyon Company? A.

It was not for starting up the J. B. Lyon Company.

I testified it was given to me.

Q. For what purpose? A. It was given to me be-

cause I wished to be associated with the Lyon Com-

pany in the business, not to be in any way connected

with any possible State printing contract with which

2156

6466 Plaintiff's Witness, Willian Barnes, Jr., Cross

I was not thoroughly known and understood to beconnected. I had bought the McCarthy contract in1899, because Mr. McCarthy offered it to me and itwas a bargain to make the purchase and I bought it.I received my pay for it from Mr. Lyon. In 19O1

I was in a position either to go on and bid for theJournal for the work or for me to bid for the workas I had a perfect right to do, as the Journal had aright to do. I talked the situation over with Mr. Lyonand we decided the best thing for me to do was tohave an interest in the Lyon Company, which I did

6467 and for which I had no consideration whatever. Ihad no further interest in the company.

Q. You talked it over with Mr. Lyon from thestandpoint of your company having all the State con-tracts? A. Not at all. I was in a position to stepin and do bidding, or the Journal Company was,which we had a perfect right to do, for this work.

Q. Did you say the Journal Company had a per-fect right to bid for this work, what do you mean?A. For legislative, department or all other printinglet by the State by competitive bidding.

Q. You told that to Mr. Lyon, did you? A. I can-not remember the exact conversation.

6468 Q. Did not you say you told it to him? A. I didnot say the exact conversation.

0. I know you did not. I do not expect to be ex-act. Generally did not you say so? A. I told Mr.Lyon I wanted the stock of the company, I wanted togo into-the company; we talked the whole thing over;the stock never paid a dividend; it was almost worth-less and I decided that I would take a quarter of thestock. That is all.

Q. Is that all you said? A. Yes, sir.0. Is that all you said a few moments ago you

said to him? A. I think 1 said all there is about it.

2157

Plaintiff's Witness, Wtilliam Barnes, Jr., Cross 6469

Q. Did you not, the first time you told it say some-

thing about the Journal having a perfect right to bid?

A. So it did.

Q. And that you talked it over with Mr. Lyon and

that was one of the reasons that led to his giving you

this stock, did not you so state a few minutes ago? A.

I did not say it was a consideration.

Q. Did not say it was a consideration? A. No.

Q. Did not you say it was one of the things that

entered into the conversation that you had, and re-

sulted in his giving you the stock? A. Yes.

Q. Do you recollect who got the contract for the 6470

printing from October Ist, 19o, to October, 19o2? A.

I cannot recall.

Q. Do you know whether the J. B. Lyon Company

had it? A. I do not know. I think that they did.

Q. At what time was that contract given to the

J. B. Lyon Company? A. I do not know.

Q. Is it not the fact that you discussed with Mr.

McCarthy-with Mr. Lyon, the importance of the

Journal Company or yourself bidding for the con-

tract running from October, 19Ol, to October, 1902

at the time this contract was given to you? A. No.

Q. Is not it a fact that this contract that went to

the J. B. Lyon Company was given to them the Ist 6471

day of June, 19O ? A. I do not know.

Q. And now, then, what was the agreement that

you had made there for that stock? A. I think there

was some such agreement, but this is not intelligent,

this certificate.Q. It is very plain, is not it? A. No, sir. There

is absolutely no point in the superscription on that

stock.Q. Well, it was on that certificate of stock at the

time you got it, was not it? A. I never got that cer-

tificate.

2158


Q. Well, was it on the certificate that was issuedto you? A. I do not know where my certificate is.

Q. Let us look for it. A. They passed out of mypossession.

Q. I show you a certificate which purports to beissued to William Barnes, Jr., on the I7 th day ofJune, I9OI, for 30o shares of stock by the J. B. LyonCompany and which has written upon it-

Mr. Ivins: I object to that.Mr. Bowers: Can I finish the question?Mr. Ivins: I object to his stating what is

6473 written upon it. He says he shows him a cer-tificate and he has not shown it to him, butgoes on to read what it is.

Mr. Bowers: I have not finished the ques-tion.

Mr. Ivins: You will never finish.Mr. Bowers: Yes, I will, don't worry; I

will finish. May I finish?Mr. Ivins: I object.The Court: Yes.

By Mr. Bowers:

Q. (Continuing.) "Issued subject to the terms and6474 conditions of a certain agreement in writing limit-

ing the sale hereof, dated June 17, 19Ol, made andexecuted by and between James B. Lyon and WilliamBarnes, Jr." I ask you whether that certificate of stockwas owned by you and was received by you at or aboutthat date? A. Yes, the certificate was issued to meand bears this superscription that the other certifi-cate had on. That, I know nothing about, but thisapplies to the agreement to sell to Mr. Lyon.

Q. Was there such an agreement? A. I cannot rt-call it, but this reminds me of that, there must havebeen something of that kind, because he did not wish

2159

Plaintiff's Witness, TWilliam Barnes, Jr., Cross 6475

me to sell the stock, in as much as it was given with-

out consideration.Q. Was not that agreement in writing? A. I do

not recollect.Q. Well, it says there that it was in writing. A.

It certainly does. It is not very important. I agreed

to it and kept my agreement.Q. If I say to you that Exhibit 130, which I hold

in my hands, being a statement of the bids made for

the State printing at the time of the McCarthy bid,

was offered in evidence upGn the stipulation of your

counsel that the same was correct, and it shows that 6476

certain bids were made at certain figures, would youhave any doubt that such was the fact?


The Court: Objection sustained.Mr. Bowers: I note my exception and ask

to be permitted to state that that question re-

fers to Exhibit 130.

Q. Mr. Barnes, in the years 1898, 1899 and I9OO,

you had a County Committee in Albany, a Republican

County Committee? A. There was a Republican

County Committee.

Mr. Ivins: I object to that. 6477

By Mr. Bowers:

0. And you were a member of it?

Mr. Ivins: I object to that on the grounds

that it is utterly immaterial.

The Court: Of course I can only rule on

this evidence as I have already before. It is

receivable simply for one purpose and it must

reach the limits which I have laid down to

be competent for that purpose. He may an-

swer.

2160


Mr. Ivins: I take my exception on thisground: That it is only competent if the Courtrules that it tends to prove crime or moralturpitude on the part of this witness and it isa pretense to prove his incredibility because hewas a member of a Republican Committee.

Mr. Bowers: The question was not askedwith that intention, except as generally speak-ing, that the witness's actions may justify someclaim in that regard. I was not asking on thequestion of his credibility; I was asking on

6479 another question. I will drop it for a momentas there is another question I want to ask thatbears on the subject of the printing matter.

Q. Is it true that the Journal Company, to yourknowledge, was designated from the years 1895 to19o6, both inclusive, as the paper in which should bepublished the statute laws of the State? A. It was.

Q. And is it true that for the same years it wasdesignated by the Board of Supervisors of AlbanyCounty to publish certain of the Session Laws? A.That is correct.

0. And is it true that you were paid at the ratefixed by the law for the publication for the State des-

6480 ignation for those years? A. That the Journal waspaid? The Journal Company was paid.

Q. And is it also true that it was paid by the Statefor County printing the sum of $12,497.10?

Mr. Ivins: Objected to on the ground thatthat matter has been entirely ruled out, andit was the subject of controversy and litigationbetween the Journal Company and the State.That evidence has been ruled out.

The Court: He may answer, I think.Exception to plaintiff.

2161


By Mr. Bowers:

Q. Is it also true that the Journal Company was

paid by the State for the publishing of the Session

Laws directed to be published by .he Board of Super-

visors during said period, the sum of $12,497.IO? A.I cannot testify to the amount.

Q. Well, about that? You can refresh your recol-

lection. A. For that period?

Q. Yes, from 1895 to 19o6? A. That must be a

public record; it must be correct.

Q. And is it also true that there was one publica-

tion only, made of the Session Laws both for the

State, including both the State and County? A. That

is also in the record.

Q. It is true, is not it? A. If that is in the record.yes.

Q. Is it true? A. Yes; it is in the record.

Q. And action was brought against the Journal

Company to recover back the $12,497.10 so paid, on

the ground that there had only been one publication;is that true?

Mr. Ivins: Objected to as immaterial.

The Court: I will sustain the objection

about the action; that don't affect his credi- 6483

bility.

By Mr. Bowers:

0. Is it also true that $12,497.10 has been returned

to the State?

Mr. Wolff: Objected to as immaterial.

The Court: Sustained.


By Mr. Bowers:

Q. Were you a member of the Albany County Com-

mittee in the years 1898, 1899 and 1900?

2162


The Court: That does not affect, you say,his credibility; it is not for that purpose?

Mr. Bowers: No.The Court: For what purpose is it asked?Mr. Bowers: For the purpose of bearing on

the testimony he has given in this case and theconversations that he had with the defendantin this action when the defendant was Governorof the State on the question of contributions.


6485 A. No.

By Mr. Bowers:

Q. Were you at any time a member of that Com-mittee? A. No, I think not.

Q. Were you a member of the State Committeefrom Albany County or from that District? A. Fromthat Congressional District.

Q. From that Congressional District, is that right?A. That is correct.

Q. As early as 1898 you had taken an active partin the building up of the Republican Party in AlbanyCounty? A. I had.

6486 Q. When did that commence? A. When did the

building up commence or when did the activity com-mence?

Q. When did your activity for building it up com-mence? A. I went to the State Committee in 1892.

Q. And was that when your activity commenced?A. I was politically active ever since I bought thepaper.

Q. I think you told us that there was, there came atime when you were selected to act as arbitrator? A.Thnt was in May. 1889, May and June.

2163


Q. The County Committee has had a treasurer, has

not it? A. Yes, sir.Q. And the treasurer, as all other treasurers do,

collected the money for the legitimate purposes of the

campaign? A. Yes, sir.Q. That is right', is not it? A. Yes, sir.

Q. You knew that? A. Yes, sir.Q. In those years of which I have spoken, did he

keep a record of his contributions? A. I cannot tes-

tify that he did.Q. You cannot testify? A. I do not know.

Q. You cannot say that he did not? A. No. 6488

Mr. Ivins: I wish, before this line proceeds,

to enquire whether or not it is the purpose ofcounsel to go into the question of politics in theCity of Albany.

Mr. Bowers: # have ended the question, soyou need not worry yourself. I expected go-

ing off on another subject.

Q. Mr. Barnes, you remember writing a letter to the

defendant in this action on the 4 th day of July- A.I do, 1910.

Q. In that letter you state: "Ever since he has been

Governor, Mr. Hughes has endeavored through his 6489speeches and his attitude to arouse resentment in every

locality against the men who have been doing the

political work of the Republican Party." Do you re-

member making that statement?


that it is renewing the question of politics.

The Court: Who put this letter in evidence?

Mr. Bowers: We put this letter in evidence,

I think.Mr. Ivins: We produced this and they put it

in evidence.

2164

6490 Plaintiff's [Vitness, WVilliam Barnes, Jr., Cross

The Court: What is there important aboutthat ?

Mr. Bowers: Yes, we put it in evidence. Ithink, your Honor, I am entitled to take thisup by reason of the evidence that was broughtout on the direct-examination of this witnessby his counsel, not only by the editorial whichthey offered in evidence in 1898, but by thequestions they put as to the 191o Convention,and the claim that Mr. Roosevelt was the leaderat those periods, the witness forming the opin-

6491 ion, not only this witness, but I think SenatorBrown, that he was the leader because hiswishes were followed out at certain of the dif-ferent State Conventions. Now, this lettercontains much that would indicate to the con-trary, and I think I have the right to examinethis witness upon it.

The Court: Well, it does not seem to methat I should spend a great deal of time overthat, perhaps, now. It is not very material.As I have said, the only possible purpose thatI have admitted evidence as to who was theleader prior to January I, 1911, is for the

6492 slight bearing it has on the probabilities as towho was the leader at that specific time.

Mr. Bowers: Certainly so. If this lettertends to confirm that view, of course the letterwould speak for itself. But the answer thatthe witness may give me might still strongerconfirm the view. I will drop the particularmatter, as your Honor thinks it might be awaste of time and ask as to the next paragraph.

Q. Were you at that time in the leadership of Al-

bany County?

2165

Plaintiff's Witness, JJ'illiam. Barnes, Jr., Cross 6493


Mr. Bowers: That is as bearing on the ques-

tion I have just asked him as to Albany County

matters.Mr. Ivins: Ask it in chief.

The Court: Well, he may answer.

Exception.

A. I do not like to be immodest-I think I must

admit that.

By Mr. Bowers:

Q. You stated 'in this letter that if you were to re- 6494

main in the leadership of the County of Albany-do

you remember that expression?

The Court: Well, he says he was the leader

at that time.

By Mr. Bowers:

Q. That letter was written after action was taken

upon the primary legislation in 191o? A. It was.

Q. You deemed at that time, did you not, that the

continuance of bosses was necessary to what you con-

sidered a party government?

Mr. Wolff: I object to that; the letter speaks 6495

for itself.The Court: The letter does not speak for

itself as to that.Mr. Wolff: Objected to as immaterial.

The Court: I do not quite see how it is very

material.

Mr. Bowers: If your Honor does not think

it material, why, I will note my exception and

drop it.

Q. Do you remember a letter you wrote to Senator

Brackett and to Assemblyman Merritt on March 3 oth?

A. I do. very well.

2166i -

6496 Plaintiff's 11itness, William Barnes, Jr., Cross

The Court: March 30, 1911 ?Mr. Bowers: March 30, 1911.The Court: The Senatorial letter?Mr. Bowers: The Senatorial letter.

The Witness: May I have that letter?

By Mr. Bowers:

Q. That letter was sent by you as Chairman of theState Committee, was it not? A. It was.

Q. It was written on the 3 oth of March? A. Itwas.

6497 Q. You heard the testimony of Senator Travis yes-terday, Comptroller Travis, as he now is? A. I did.

Q. You heard him testify that during the last weekof the legislative session he was at your residence inAlbany? A. Yes, sir.

Q. And you heard him testify that a certain dis-cussion was had as to the possibility of joining withthe insurgents in electing an Independent Democrat,did you? A. I did.

0. And you heard him testify that after the viewshe expressed, as he understood, the matter was aban-doned? A. I heard him say that.

Q. Had you ever known of a Chairman of the State6498 Committee before that time addressing a communica-

tion to the Legislature of the State?

Mr. Wolff: Objected to as immaterial. Itis not addressed to the Legislature anyway.

The Court: Addressing a communication tothe members of the Legislature.

By Mr. Bowers:

Q. Whom was it addressed to, Mr. Barnes? A. Itwas addressed to the Republican leader, official Re-publican leader in the State Senate, and the officialRepublican leader in the Assembly.

2167

Plaintiff's Witness, [Villiam Barnes, Jr., Cross 6499

Q. They were in the minority in both places? A.In both houses, and selected as leaders by the repre-sentatives.

Q. Had you ever known of a communication beingmade in the form of a letter addressed to the leadersof the majority or minority of both parties in theLegislature by a Chairman of the State Committee?A. I never knew of any letter of that kind. I neverheard of one being made public; this I made public.

Q. Had you ever heard of such a letter being sentto the leader of the majority or minority party in theLegislature, whether made public or not, by a Chair- 6500man of the State Committee? A. No, I never heardof it. It was entirely new.

0. Do you recollect a Legislative insurance inves-tigation of the life insurance companies of the Statein 1905? A. I do.

Q. Do you recollect that a letter was read in thatinvestigation concerning an arrangement that had beenmade as to the payment of-

Mr. Ivins: I object to that, if your Honorplease, the question is improper in form.

The Court: You want to put that letter inevidence?

Mr. Bowers: No, sir; I asked him whether 6501

he recollects that such a letter was written. If

he does I can proceed further; if he does not,I will ask some other questions. I have not

finished the question.

Q. (Continuing.) -respecting the payment of an

honorarium?

Mr. Ivins: I object to that; he proceeds heredirectly to talk about the subject-matter of thevery thing that is under consideration by yourHonor.

2168


Mr. Bowers: They have been doing it allthrough the trial and your Honor has allowedit.

The Court: What you can do is this: Youcan show Mr. Barnes any letter and ask himif he recognizes that letter and then offer toput that letter in evidence.

Mr. Bowers: I understand, your Honor, but,excuse me if I suggest that through this trialquestions have been allowed to both sides inthe other form. Very early in the case I raised

6503 that point on questions asked of the defendantand it was overruled and, since then, I have attimes followed the same course your Honorhas permitted, that is to get it by showing thewitness the letter and asking him whether herecognizes it. In this particular matter I amdesirous of asking the question in that formbecause I think I am more likely to get the in-formation that I desire. Of course, if yourHonor excludes it there is nothing for me to dobut take my exception and put another questionin such form as your Honor permits.

Mr. Ivins: I think the other form is the

6504 only proper form.Mr. Bowers: Is there any denial of my state-

ment that the other form has been allowedin this trial?

Mr. Ivins: Yes, decidedly. I should be verymuch ashamed of myself if I had done what youare now doing.

Mr. Bowers: I am afraid you do not knowwhat shame is.

Mr. Ivins: I am sure you do not.Mr. Bowers: Of course, I will do whatever

your Honor says.

2169

Plaintiff's JI'itness, f'illianz Barnes, Jr., Cross 6505

The Court: I think he may answer. I willgive you an exception.

Exception for plaintiff.Mr. Bowers: I will put another question.

Q. Did you send a telegram to the Mutual Life In-surance Company on the 6th day of May, I9OI ? Toassist you in answering the question, I will hand youthe original of such telegram, which was brought hereby an officer of the Mutual Life Insurance Company?A. I don't recall it.

Q. Just look at the telegram? A. Yes, I see it. 6506It has all the marks of being sent by me. I don'trecall it.

Q. I show you another telegram dated two daysearlier, dated May 4 th, but does not have the year up-on it? A. This is probably correct. I don't questionthis at all.

Mr. Bowers: I will have this marked.Marked "Exhibits 251 & 252."

By Mr. Bowers:

Q. Do you remember going to New York in 190,

and calling upon the Mutual Life Insurance Companywith reference to the subject of paying your father 6507some money?


that it has no tendency to affect his credibility,

and it is not relevant to the issues in this case.Mr. Bowers: Perhaps it has not.The Court: He may answer.Exception for plaintiff.

A. I called upon Mr. McCurdy; I think it was in

May, i9oi; I cannot give you the date, but I think it

was in May.

2170


Q. Doesn't this telegram assist you? A. Very like-ly. I don't contest that.

Q. Was an arrangement made between you and theMutual Life by which your father was to be paid bythat company an allowance of one-third of $2,000 onthe Ist day of July in each year?.

Mr. Ivins: I object to that as a conclusion

by the examiner.The Court: He may answer.Exception for plaintiff.

6509 A. No, unless you define the word allowance.Q. I show you a letter, or what purports to, be a copy

of a letter dated May 9, 19oi, written to you by theMutual Life Insurance Company, or one of its of-ficers. Does that refresh your recollection? A. Notat all.

Q. Did you receive that letter, or that of which"that is a copy? A. I don't recall it. Very likely.The point is very simple.

Q. What I want to get at is whether you receivedthe original of which this letter purports to be a copy?A. I can't recall it.

Q. You can't recall it? A. I can't recall it now.

6510 Q. Did you not thereafter write a letter to theMutual Life Insurance Company calling their atten-tion to an honorarium payment that was due to yourfather? Just answer yes or no, whether you wrotethe letter? A. Yes.

Q. Is it or is it not the fact that on May 9 th, 19Ol,

an arrangement was entered into between you and theMutual Life by which they were to pay one-third of$2,000 to William Barnes on the ist day of July in

each year?

Mr. Wolff: That is objected to as callingfor the conclusion of the witness, as to whether

an arrangement was made.

2171

Plaintiff's WVitness, William Barnes, Jr., Cross 6511


A. I think I will have to have that question oncemore to be sure it is right.

Q. I will drop it then. When you use the word"honorarium" in the letter that I understand you tosay you wrote in May, I9OI, to the Mutual Life, didyou refer to their proportion of the sum of $2,000

to be paid your father yearly? A. Correct.Q. I am perfectly willing you should give any ex-

planation of that testimony you desire to give the jury. 6512

Mr. Ivins: I will take care of that, Mr.Bowers.

Mr. Bowers: Just as you like.

By Mr. Bowers:

Q. As Chairman of the Republican State Commit-tee did you join in a circular in 1912, soliciting sub-scriptions for the Republican State Committee? A.I have no doubt of it, but I should like to look at it.

Q. (Showing witness paper.) Is this such a cir-cular? A. That is correct.

Q. In response to that circular were subscriptionsreceived ? 6513

Mr. Wolff: I object to that. The paper isthe best evidence.

Mr. Bowers: I would like to have it marked.Marked "Exhibit 253."Mr. Bowers: I offer it in evidence. I don't

want to read all of it to the jury. I will simplystate, with your permission, that it is a requestby the Republican State Committee, sent out toall enrolled Republicans asking for subscrip-tions to the campaign fund, signed by Mr.

2172


Barnes and by-who was the other man whosigned that?

The Witness: I think somebody has put on there,"The Hon. William Barnes, Jr."

Mr. Ivins: What is the date?Mi. Bowers: September 30, 1912.

By Mr. Bowers:

Q. That was signed by you only? A. Certainly,that is all.

6515 Q. The subscriptions that were made in response tothat, I suppose, went to the treasurer of the party?A. Went through the treasurer's hands, yes.

Q. Went to the treasurer? A. Yes, sir.Q. Now I ask you, and I will make it as short

as possible. I have here what purports to be a copyof a report of Henry H. Bender-he was treasurerof the State Committee at that time? A. Yes.

Q. This purports to be a copy of a report filed byhim as to contributions to the Republican campaignfund in I912. I would like to know whether youcan assist me by stating if the figures are right as tocontributions as brought out through Schedule A ina certain sum, viz: $278,989.74? This is not a cer-tified copy of the paper, it is simply a paper which Iunderstand to be a correct copy, and I will show itto you? A. I cannot certify to it. You mean this isnearly correct?

9. Yes? A. I assume so, without any question.Q. That is, it was in the aggregate sum $278,ooo?

A. Yes.Q. Of contributions received that year? A. Yes.

Schedule A-that must be the receipts.Q. That is all I have, is the receipts? A. That is

all right then.

2173


Q. You think that is substantially correct, do you?

A. Certainly.

Mr. Bowers: I will have it marked in evi-

dence, if you have no objection.Mr. Ivins: Mark it for identification.

Mr. Bowers: It has already been markedExhibit 93.

By Mr. Bowers:

Q. Among the contributions apparently was one

from George R. Sheldon, treasurer, $io,ooo. Do you

remember about that? A. I don't remember it, but 6518

of course that is the contribution from the National

Committee, I suppose. He was treasurer of it.

Q. Among the contributions is one from Austin B.

Fletcher, treasurer, $7,500. Was that another contri-

bution from some committee? A. That was the Union

League Club contribution.

Q. It was the habit, and has been for years, for

the National Committee to make contributions to

State organizations? Is that right? A. Yes.

Q. In Presidential years? A. I suppose so, yes,

certainly. I don't know.Q. You have been quite actively interested in poli-

tics, haven't you? A. I never knew one way or the 6519

other until I was connected with it.

Q. Then there is apparently a contribution from

Henry M. Flagler of $i0,000. Do you remember

that? A. I don't remember that particularly. The

report is there. Whatever those figures are are cor-

rect.Q. Do you remember William Rockefeller mak-

ing a contribution of $io,ooo? A. Yes, I think he

did.Q. Do you remember Oliver H. Payne making a

contribution of $20,000? A. Yes.

2174

6"520 Plaintiff's Witness, William Barnes, Jr., Cross

Q. Do you remember Mary W. Harriman makinga contribution of $io,ooo? A. Yes.

Q. Do you recollect that the answer in this casecontained among other matters an extract from anarticle published in Collier's Weekly of the 3rd ofAugust, 1912? A. Yes, I do.

Q. Do you remember that the article contained thefollowing-

Mr. Wolff: I object to that.The Court: What are you going to show

now?65211 Mr. Bowers: It is in evidence. I had for-

gotten.

By Mr. Bowers:

Q. Did you ever hear of the article-when did youfirst hear of it? A. I think in the fall of 1912, I thinkit was brought to my attention.

Q. In the fall of 1912? A. I think it was.Q. Did you ever bring an action against that

paper?

Mr. Ivins: I object to it.Objection sustained.

6522 Exception for defendant.Mr. Ivins.: He has got a right to choose his

game.Mr. Bowers: Oh, yes, he has. We will dis-

cuss that, too.

By Mr. Bowers:

.Q. Do you know Mr. Pruyn? A. I do.Q. Does he reside in Albany? A. Yes, he does.Q. How long have you known him? A. Forty

years, I think.Q. What is his business? A. I think he is presi-

dent of the Commercial Bank at present.

217.5

Plaintiff's Witness, William W. Colne, Direct 6523

Q. Is that the only business he has? A. I do not

know about his business.Q. Do you know whether he has any business in-

terests in Albany besides that bank? A. No; I do

not.Q. He was a man who was in the habit of contri-

buting to the Republican Party? A. He was.

Q. To the State and County and National Com-

mittees? A. I don't recall; I have no knowledge of

his contributions to the S.tate Committee. I knew

from common report that he contributed regularly to

the county committee, and I received from him in 6.524

I9O4 a contribution of $5,ooo, which he asked me to

give to the National Committee in behalf of Mr.Roosevelt.

I would like to add to that answer that Mr. Pruyn

did contribute to the State Committee when I was

chairman, $5oo; he was on the $500 list, of which

there were some forty or fifty.

Mr. Bowers: That is all.

Mr. Ivins: I have some Legislative witnesses

to call.The Court: How many of them?Mr. Ivins: Five.

The Court: You may call them. 6525

WILLIAM W. COLNE, called as a witness for


Exanined by Mr. Barnum:

Q. You live where? A. ii Irving Place, Brook-

lyn.Q. Your occupation is what? A. I am Alderman

at present, and occupied in promoting a patent, etc.

2176

6526 Plaintiff's Witness, William TV. Colne, Direct

Q. Were you a member of the 1911 Assembly? A.Yes.

Q. 'How many years were you in the Assembly?A. Seven years.

Q. What years were those? A. From 19o6 to.1912, both inclusive.

Q. And were you there as a Republican? A. Yes,sir.

Q. What positions did you occupy in the Assembly?A. You mean as chairman?

Q. Yes?

6527 Mr. Bowers: I think that is immaterial.

The Court: I don't think that is material.Get right to the question.

Mr. Barnum: I will take your Honor's sug-gestion.

By Mr. Barnum:

Q. Were you there, then, during the entire sessionof 1911? A. Yes, sir.

Q. Did you attend the caucus on United StatesSenator? A. Yes.

Q. Did you thereafter attend all of the meetingsof the joint session?

6528 The Court: I should ask him simply the

question whether he had any talk with Mr.Barnes about the election of a United StatesSenator.

Mr. Barnum: Do you mean that and noth-ing else?

The Court: Not much else.

By Mr. Barnum:

Q. During that session did you have any conversa-tion with Mr. Barnes with reference to the election ofa United States Senator? A. No, sir.

2177

Plaintiff's Witness, Thomas Shannon, Direct 6529

Q. At any time did you have any talk with Mr.

Barnes with reference to the election of a United

States Senator? A. No, sir.


Q. You attended the caucus that nominated Mr.

Depew, did you not? A. Yes, sir.

Q. And did you vote for him? A. I did.

Q. And you voted for him every time the Legisla-

ture met for United States Senator until the election

of Judge O'Gorman? A. I did. 6530

THOMAS SHANNON, called as a witness for


Exanined by Mr. Barnum:

Q. You live where? A. Bath, New York.

Q. Your occupation is what? A. I am a lawyer.

Q. Were you a member of the 1911 Assembly?

A. Yes.Q. You were there how many years? A. 1911 and

1912. 6531

Q. Do you know Mr. Barnes, the plaintiff? A. I

do.Q. During the 1911 session did you have any con-

versation with him over the election of a United States


By the Court:

Q. You were a Republican? A. Yes, sir.

By Mr. Barnum:

Q. Did you ever have any talk with him with ref-

erence to the election of a United States Senator?

A. No, sir; I did not.

2178

6532 Plaintiff's Witness, Abram Goodman, Direct

Q. Did he undertake to influence your vote on theSenatorship, or any other matter during that timethat you were in the Assembly?

Mr. Bowers: I object to it as a conclusion.The Court: He said he never had any talk

with him.Mr. Barnum: As to the Senatorship?

By the Court:

Q. Did you have any talk with him about any othersubject? A. No, sir.

6533 Q. About your vote? A. None at all.

No cross-examination..

ABRAM GOODMAN, called as a witness for theplaintiff being duly sworn, testified as follows:

By Mr. Barnum:

Q. You live where? A. 126 West 117th Street,

New York City.Q. Your occupation is what? A. Lawyer.Q. Were you a member of the 1911 Assembly? A.

6534 I was.Q. How many years were you there? A. 1911 and

I912.

Q. You are a Republican? A. I am.Q. You know Mr. Barnes? A. I do.Q. Did you have any talk with Mr. Barnes with

reference to the United States Senato" matter? A.Only one.

0. When was that? A. Some time in February,1911.

Q. Where was the conversation? A. New YorkCity.

2179

Plaintiff's !l'itness, Abram Goodmen, Cross 6535

Q. Who was present, if anybody? A. Mr. Barnes

and myself.Q. Will you kindly state the conversation?

Mr. Bowers: I object to it as irrelevant and

immaterial.The Court: The same ruling as before.Exception for defendant.

A. I asked Mr. Barnes whether I could go away on

a trip for about two or three weeks, taking my

mother away, after the death of my father. He ad-

vised me against it. He told me that it would not be 6536

advisable, that every time a Republican Assemblyman

was away it made the Democrats require one less vote,

and we didn't want a Democratic Senator to be elected

by the absence of a Republican Assemblyman.

Q. Anythiing further? A. That is all.

Q. Did you have any further conversation with

him at any time on the matter? A. I did not.

CROSS-EXAMINATION &y Mr. Bowers.

Q. Had you heard at that time that there was some

talk that the Republicans were going to stay away

for the purpose of allowing the Democrats to elect? 6537

A. I had not.Q. That was the first you heard of it? A. I didn't

hear of it at that time outside of what Mr. Barnes

said.Q. That is all you heard of it? (No answer.)

Q. You went to Albany in January, I911, for the

first time? A. I did.

Q. Went into the caucus? A. I did.

Q. Did you vote for Mr. Depew? A. I did.

Q. And continued to vote for him as United States

Senator to succeed himself until Judge O'Gorman

was elected? A. I did.

2180

6538 Plaintiff's Witness, Frank L. Young, Direct

FRANK L. YOUNG, called as a witness for theplaintiff, being duly sworn, testified as follows:


Q. You live where? A. At Ossining, WestchesterCounty, New York.

Q. Your occupation is what? A. I practice law.Q. Were you a member of the 1911 Assembly? A.

Yes.Q. How many years were you there? A. I served

in the Assembly in 19o9, I9IO, 1911 and 1912.

6539 Q. And were you at one time the Leader of theAssembly? A. I was the Majority Leader of the As-sembly in 1912.

Q. You know Mr. Barnes, do you? A. Yes.Q. The plaintiff? A. Yes.Q. Did you have any talk with him with reference

to the United States Senatorship? A. I rememberone conversation that I had with him and with others,at his home in Albany.

Q. When was it? A. Just previous to the electionof Mr. O'Gorman as United States Senator. I cannottell you the exact date. I remember going there withMr. Merritt-

65-40 Q. Just a moment. Was it before or after the fire,as you remember? A. It was before the fire.

Q. The Capitol fire, I mean? A. Yes; I know whatyou refer to.

Q. You went there with Merritt, you say? A. Mybest recollection is that Mr. Merritt, who was thenleader of the minority, asked me to go.

Mr. Bowers: I object to his conversation

with Mr. Merritt.The Court: That may go out.

2181

Plaintiff's Witness, Frank L. Young, Direct 6541

By the Court:

Q. You went there with Mr. Merritt? A. I wentthere with Mr. Merritt.

By Mr. Barnum:

Q. Who was there when you arrived there? A. Ihadn't time to recollect this morning who were there.My best recollection is that Mr. Travis, SenatorBrackett, Mr. Merritt, Mr. Barnes, and I can't recallany others at this time, although others may havebeen there.

Q. Tell me, if you please, what the conversation 6542was, or the substance of it, as near as you can re-member it? A. The substance of the conversationat that conference was that Mr. Barnes threw out thesuggestion that the time had come when we mightunite on some Independent Democrat, and he namedone, Thomas AI. Osborne; saying the days were goingby and there was a chance of uniting with the Inde-pendent Democrats who were trying to defeat Tam-many, and that in that way he might bring about dis-organization in the Democratic Party. In substance,that was the suggestion made by Mr. Barnes.

Q. Do you remember anything else in that confer-ence that was said? A. Why, I remember this, only in 6543a general way, that some of the gentlemen presentseemed to accept the suggestion while others opposedit very strongly. I think Mr. Brackett was one whospoke against adopting any such suggestion.

Q. Did you have any further talk with Mr. Barnesabout the matter at any time? A. No, sir.

Q. Is that the only conversation that you had withMr. Barnes on the subject in any way, directly or in-

directly? A. Yes.Q. You were there three years in the Assembly?

A. Four years.

2182

6544 Plaintiff's Witness, Frank L. Young Cross

Q. Did Mr. Barnes talk with you upon any legis-lative matter during the four years that you werethere?

Mr. Bowers: I object to that.The Court: Prior to this time?Mr. Barnum: My question involved both be-

fore and after.The Court: I don't think it is material, in

view of my rulings, what occurred afterwards.Mr. Barnum: Then I will limit it to prior

to that time.6545

Q. Did Mr. Barnes ask you to vote one way oranother, or make any requests to vote or not to voteon any legislative matter prior to this time? A. Henever asked me to vote one way or another, even inthe 191I conference. That was merely a suggestionon his part.


Q. You are not at all sure as to the date of thisvisit that you made with Assemblyman Merritt toChairman Barnes' house? A. No; I couldn't tell youthe date, but my best recollection is it was in March.

Q. Mr. Travis was there? A. Yes, I think so.Q. If Mr. Travis fixed the date when he was there

would that assist you, if it was the same date thatyou were there? A. Mr. Travis might have beenthere at other times. I don't know.

Q. You saw him there at that time, and if he saidhe was there only once- A. I have no doubt hestated it correctly.

Q. You attended the caucus of the Republicans in191I, for Senator, did you not? A. Yes. I believe Iseconded the nomination of Mr. Depew.

2183

Plaintiff's Witness, Andrew F. Murray, Direct 6547

Q. And you voted for him until his successor waselected? A. I did.

Q. Do you remember what date Senator O'Gormanwas elected? A. No, sir.

Q. Do you recollect whether he was elected on Fri-day night, the 31st of March? A. I believe that isright.

Q. You were there at the time? A. Yes.Q. Wasn't this meeting which you attended at Mr.

Barnes' house that same week? -A. I cannot say that;I never was there but once, and it was just before-a few days before the election of Mr. O'Gorman, 6548which immediately followed the fire in the Capitol.

ANDREW F. MURRAY, called as a witness for

the plaintiff being duly sworn, testified as follows:


Q. You live where? A. 304 West Io9th Street,New York City.

Q. Your occupation is what? A. Attorney andcounsellor at law.

Q. Do you know the plaintiff, Mr. Barnes? A. 6549Yes.

Q. Were you a member of the 1911 Assembly?

A. I was.Q. You were there how many years? A. Five.

Q. What were they? A. I909, i9io, 1911 and

I912.

Q. You were there as a Republican all these years?

A. I was there as a Republican for the four years

I have mentioned, and in 1914 as a Progressive.

0. Do you know Mr. Barnes, the plaintiff? A.

Yes.

2184

6550 Plaintiff's Witness, William Barnes, Jr., Re-direct

Q. Did you have any conversation with him in ref-erence to the United States Senator election? A. No,sir; I did not.

Q. Didn't attend any conference at his house? A.I did not.

Q. You were there and attended all of the jointsessions? A. Yes.

Q. Voted for Mr. Depew? A. Yes, sir.Q. Did you ever have any talk with Mr. Barnes at

any time relative to any matter or any bill pendingbefore the Legislature? A. I never did.

6551 No cross-examination.

WILLIAM BARNES, the plaintiff, recalled as awitness in his own behalf, for re-direct examination,testified as follows:

Mr. Wolff: If your Honor please, certaintestimony was admitted yesterday in connectionwith the printing matter, upon the theory thatit had reference to the credibility of the wit-ness. Subsequently Mr. Bowers disclaimedany ability to prove the commission of a crimeor such moral obliquy in connection with that

6552 testimony as would justify the jury in infer-ring that the witness was not credible. I there-fore move to strike that testimony out, onpages 3179 to 3192.

The Court: I think I will deny the motionat present. I have not read it; I cannot telljust what it is.


By Mr. Wolff:

Q. Mr. Barnes, your attention was called by Mr.Bowers to an editorial in the Evening Journal which

2185

Plaintiff's Witness, TVilliam Barnes, Jr., Re-direct 6553

was put in evidence, published on February ist, 191I,

a portion of which I will read to you to refresh your

memory with respect to the editorial to which I am

referring. A portion of it reads as follows: "The

duty of the Republican members of the Legislature is

to vote for the Republican candidate for senator, the

caucus nominee. Their position today is entirely ten-

able and proper. If they should begin to gyrate and

make an exhibit of personal antagonism and per-

sonal ambition similar to that which the Democrats

are showing, they would justly become, as well as the

Democrats, the laughing stock of the state." Do you 6554

recall that? A. I do.

0. When that editorial was written were you the

Chairman of the Republican State Committee? A.I was.

Q. Were you the Chairman of the State Commit-

tee at the time the Republican caucus was held which

elected Mr. Depew?

Mr. Bowers: It has already been proved he

was not.

The Court: He may answer. I don't re-

member precisely the date the caucus was held.

A. I was not. 6555

Q. Were you at that time a member of the Re-

publican State Committee? A. I was not.

Q. Where were you at the time the caucus was

held? A. In the City of New York.

Q. What were you doing there? A. I was in con-

ference with various members of the State Committee

in relation to the selection of a Chairman. Mr. Pren-

tice had written me-

Mr. Bowers: I object to going into that.

The Court: That is enough on that.

2186


By Mr. Wolff:

Q. When did Mr. Depew's term as United StatesSenator expire? A. On the 4 th of March, 1911.

Q. And was Congress in session February Ist, whenthis editorial was written? A. It was.

Q. And Senator Depew was then sitting in the Sen-ate? A. He was.

Q. How did you come to take an active part in theattempt to elect an independent Democrat as UnitedStates Senator?

6557 Mr. Bowers: I object. He has already giventhe facts.

Mr. Wolff: It has been very fully gone intoon the cross-examination.

The Court: And it was on the direct ex-amination, wasn't it?

Mr. Wolff: I don't think so. In view ofthese editorials that have been introduced forthe purpose of showing some inconsistency inMr. Barnes' attitude, I think he is entitled toexplain.

The Court: What are you going to show?Mr. Wolff: I want to show why, on Feb-

6558 ruary I st, he took the position that the Republi-cans ought to abide by the caucus nominatingSenator Depew, and how subsequently he cameto advocate the election of an independentDemocrat.

The Court: I suppose that the state of theplaintiff's mind at the time, even assuming thathe made an agreement as to what the Republi-can Senators should do, is material; even inthat event it would be material. In otherwords, I have held that the alleged agreementis only prima facie corrupt, and I assume thatone of the very issues in the case perhaps is thestate of the plaintiff's mind. He may answer.

2187

Plaintiff's Witness, William. Barnes, Jr., Re-direct 6559

Mr. Bowers: You will allow me to note an

exception, on the ground that it is irrelevant

and immaterial, on the ground that the state of

the plaintiff's mind does not enter into any

question that is involved in this case.


Mr. Bowers: And that it amounts to worse

than a self-serving declaration.The Court: He may answer.


The Witness: I should like the question again. 6560

By the Court:

Q. What made you support a combination with the

independent Democrats? A. There was a combination

of circumstances. In the first place, Mr. Depew's

term of office only expired on the 4 th of March.

Mr. Bowers: That has all been sworn to, I

think.

A. (Continuing.) Secondly, President Taft called

an extra session of Congress to convene early in April.

The Democratic caucus had broken up; the situation

was entirely created anew. Mr. Depew sent a tele- 6561

gram or a letter (I don't remember which) to Mr.

Brackett, representing the Republicans as the minority

leader, withdrawing his name as a candidate for Sen-

ator, leaving the Republicans free to act as they saw

fit. In that exigency it seemed to me that the wisest

political course for the Republicans was to join hands

with those Democrats who had asserted their inde-

pendence of Tammany Hall and had refused to vote

for the caucus nominee of the Democratic party, in

order that without any combination or deal or dicker,

as stated in my letter to Mr. Brackett-

2188


Mr. Bowers: I move tostrike that out.The Court: You move to strike out what?Mr. Bowers: I move to strike out "In order

that" and so forth.The Court: No. He may go on.Exception for defendant.

A. (Continuing.) That an independent Democratmight possibly be elected, in order that the State mightbe fully represented in the extra session about to beheld, and be represented by a man independent of theTammany Hall control that existed at that time. I

6563 think that covers it.

By Mr. Wolff:

0. Did you take any active step in that directionprior to the time when Senator Depew released thecaucus from its obligation? A. No.

Q. Did it require a quorum of the joint session ora quorum of a majority to elect a senator of theUnited States? A. A majority of a quorum; a ma-jority of those present that is.

Q. How many Republicans would it have beennecessary to have absent from the joint session inorder to secure a majority of a quorum for Mr. Shee-

6564 han?


Objection sustained.The Court: You have got the figures.Mr. Wolff: I want to, save the jury the cal-

culation.The Court: I don't believe we better spend

any time over facts that are already in.

By Mr. Wolff:

Q. Did you ever advise Mr. Brackett or Mr. Mer-ritt or any other Republican member of the Legisla-

2189

Plaintiff's Witness, William Barnes,, Jr., Re-direct 6565

ture that a full attendance of Republicans should be

secured every day in order to prevent the election of

Mr. Sheehan?



A. I certainly did.

Q. Did you ever directly or indirectly influence or

attempt to influence any Republican to remain away

from the joint session?

Mr. Bowers: I object. 6566

The Court: He has already testified to that.

Mr. Wolff: I think not.

The Court: He may answer then.Exception for defendant.

A. I did not.Q. Did you hear the testimony of Senator Wain-

wright? A. I did.

Q. Do you recall it? A. I do.

The Court: You need not turn to it. We

know what the testimony is.Mr. Wolff: I want to refer specifically to

some of the language of it. 6567

The Court: He said, no, it would not be

possible to make the combination, -that word

had been given to the Democrats that we would

keep our hands off.

By Mr. Wolff:

Q. Do you remember his language, that word had

been given to the Democrats?

The Court: Yes or no.

A. Yes.

2190

6568 Plaintiff's IWitness, William Barnes, Jr., Re-direct

By Mr. Wolff:

Q. Was any such word sent to the Democrats byyou? A. No.


The Court: He has already answered onthe direct-examination. You asked him spe-cifically in regard to the statement of SenatorWainwright.

Mr. Wolff: I don't recall, your Honor, thathe had discussed that.

6569 The Court: He said he had never made di-rectly or indirectly any agreement with Mur-phy.

Mr. Wolff: I am referring now specificallyto the Wainwright testimony.

The Court: You may simply ask him if hemade that statement to Wainwright.

By Mr. Wolff :

Q. Did you make that statement to Mr. Wain-wright?

Mr. Bowers: I object. They called that

6570 witness: they accredited the witness and theycannot contradict him.

The Court: That is not as I understand therule. You cannot contradict your own witnesson cross-examination, but you can contradicta witness by calling for independent evidence.He may answer.

Mr. Bowers: I note an exception to his an-swering this question on the ground that thepurpose is to contradict a witness whom theyhave accredited by calling.


2191

Plaintiff's IVitness, lVilliam Barnes, Jr., Re-direct 6571

By the Court:

Q. Did you make such a statement to Senator Wain-wright? A. I cannot recall it.

Mr. Wolff: It seems to me that we are en-

titled to ask the witness whether he sent theword referred to by Senator Wainwright in histestimony.


By Mr. Wolff: 6572

Q. Did you send any such word to the Democratsin the Legislature as was referred to by Mr. Wain-

wright? A. I did not.Q. Do you know what Senator Wainwright meant

-whom he was referring to when he said word was

sent to the Democratic members of the Legislature?

Mr. Bowers: I object to that.Objection sustained.

By Mr. Wolff :

Q. What was the occasion of your letter to Sena-

tor Brackett and Mr. Merritt which has been read in

evidence and was referred to by Mr. Bowers this 6573morning?

Mr. Bowers: I object to that as a conclu-sion.

The Court: Isn't that clear enough after

what he has already said?Mr. Wolff: I think there is something more

to be brought out in connection with it. He

was asked this morning whether he had ever

heard of a state chairman sending such a let-

ter either public or private.The Court: He said he sent such a letter

and he explained why he sent it; that he thought

2192

6.574 Plaintiff's Witness, William Barnes, Jr., Re-direct

the exigency was such as to demand it, thatthey wanted a United States Senator and hethought they couId nominate an independentDemocrat and so forth.

Mr. Wolff: I think we may refer specificallyto that letter, in as much as Mr. Bowers-

The Court: I shouldn't spend much timeover it.

Mr. Wolff: I don't intend to spend muchtime.

The Court: I will sustain the objection.6-5-75 Exception for plaintiff.

By Mr. Wolff:

Q. Did you know at the time that you wrote thatletter to Senator Brackett and Mr. Merritt that theDemocrats had agreed or were about to agree upon acandidate ?

Mr. Bowers: I object.The Court: He may answer.Exception for defendant.

A. I did, that they were likely to.

By the Court:6576 Q. Likely to? A. I feared it; yes.

Mr. Bowers: I move to strike out the state-ment.

The Court: No; it may stand.

By Mr. Wolff:

Q. Let me see if you understand the question, Mr.Barnes. 'At the time that you wrote that letter, didyou have any reason to believe that the Democratswere about to elect a Senator?

Mr. Bowers: He. has just answered thatquestion.

2193

Plaintiff's Witness, William Barnes, Jr., Re-direct 6577

The Court: I don't see why he has not an--

swered it. He said he feared it.

The Witness: I feared it, owing to the fire. There

was great confusion.

By Mr. Wolff:

Q. Your attention was called yesterday to an edi-

torial in the Albany Evening Journal of January I3 th,

1911.

The Court: I think we will suspend here,

Mr. Wolff. 6578


Afternoon session, Tuesday, May i8, 1915.

WILLIAM BARNES, recalled:

By Mr. Wolff:

Q. Referring to the editorial of February Ist with

respect to which you were testifying at the recess, why

did you deem it important at that time to hold the

Republicans together for Senator Depew? A. On ac-

count of the- 6579

Mr. Bowers: I object to that question.


A. The Democratic Party had just come into- power

in the state government; there was a Democratic Gov-

ernor, a Democratic Senate, a Democratic Assembly;

the power over all local legislation lay in the hands of

the Democratic Party. The power of the appoint-

ments lay in the hands of the Democratic Governor

and Senate and I feared that there would be great dif-

ficulty in keeping the Republicans steady in their course

owing to the way in which they might be influenced

by that administration of that power in the Legislature,

2194


possibly to break to the Democratic caucus nomineesufficient to elect him.

0. Tell the jury whether during this Senatorial con-test and in connection with this entire Senatorial mat-ter you did any act which in your judgment you didnot deem to be for the best interests of the RepublicanParty?

Mr. Bowers: I object to that as irrelevantand immaterial and calling for a conclusion,and-that it is not right for the witness to beallowed to go so far as to express a conclusion

6581- as to whether what he was doing was for thebenefit or not of the Republican Party or anyother person. It is not the same thing as awitness sreaking of the question of the feelingthat he has as to whether he is liable for puna-tive damages or-not. It is one of the questionswhich your Honor will unquestionably submitto the jury and the witness cannot usurp theprovince of the jury.

The Court: I think the state of mind of thewitness assuming that he made such an agree-ment is competent. I think he may answer.

6582 A. I certainly did not.Q. Did you do any act or thing which you consid-

ered to be in the interest of the Democratic organiza-tion ?

Mr. Bowers: I object to that on the samegrounds.

The Court: That I will sustain, I think.Mr. Wolff : It seems to me it goes to the very

root of the matter.The Court: Read me the question again. I

was thinking of the form of the question.(Stenographer repeats question as follows:

2195


"Did you do any act or thing which you con-sidered to be in the interests of the Democraticorganization?")

The Court: I think he may answer. I thinkyou may have an exception.

Mr. Bowers: I state my objection on thesame grounds as before.

Exception.

A. I. certainly did not.Q. You have testified that you had no talk with

Mr. Murphy with respect to this Senatorial matter.Did you have any talk whatever with any person claim- 6584ing to be a representative of Mr. Murphy or claimingto be the representative of the Democratic organiza-tion in connection with this matter? A. None what-soever.

Mr. Bowers: I make the same objection asbefore.

The Court: I think I will sustain that. Hehas already answered the question in responseto one of Mr. Ivins' questions when he wasasked whether he directly or indirectly-I thinkit is in.

Mr. Wolff: If it is in, I don't want it. 6585

Q. Your attention was called by Mr. Bowers to aneditorial in the Evening Journal of January 13, 1911,at page 2992. I won't read this entire editorial to you.I will only read so much as may be necessary to recallit to your mind. It is entitled, "The Old Hypocrisy,"and it begins: "That officials chosen by the peopleshould perform the function for which -they wereelected under the constitution and the laws, and noother, is their plain duty.

"That the people should educate themselves to re-gard their public officers as their servants for this pur-pnse is their plain duty.

2196


"For public officers and their people to adhere tothese ideals of the American form of government isnot easy, because between the passion of personalambition and the pride of opinion, sense of official dutyrecently has been lost."

It then goes on to describe the contest betweenWilliam F. Sheehan and Edward M. Shepard andquotes from an article in the New York Evening Postand then proceeds to compare the records of Mr.Sheehan and Mr. Shepard. Do you recall that editor-ial? A. Ido.

6587 Q. At the time that that was written you were nota member of the State Committee? A. I was not.

Q. Did you have any idea at that time that Mr.Prentice was to resign? A. No.

Mr. Bowers: I object to this.Overruled. Exception.

Q. Did you have any official connection with theRepublican Party at that time?

Mr. Bowers: That is proved.The Court: He may answer.

A. I did not.

6588 Q. That article was simply a commentary on thepolitical situation in the ordinary course of editorialcomment, was it not?

Mr. Bowers: I object.Sustained.

0. Were you supporting Mr. Sheehan or any otherDemocratic candidate for the United States Senator-ship at that time?

Mr. Bowers: I object to that.The Court: I think I-will sustain that. He

has gone into that situation with sufficient de-

2197


tail. He has denied that he in any way di-rectly or indirectly made any agreement withMr. Murphy in respect to the Senatorial fight.

Mr. Wolff: Of course this refers to hisopinions and not to his agreement, but as tohis acts.

The Court: I think I will sustain the objec-tion.

Mr. Wolff: As to whether or not he didany act in support of any Democratic nomineeor any Democratic candidate.

The Court: It is not claimed that he did 6590except that this agreement was illegally made.

Mr. Wolff: If that is understood that isperfectly satisfactory.

By Mr. Wolff:

Q. I call your attention to an editorial January I8,1911, in the Albany Evening Journal which was calledto the attention of Mr. Bowers, and which appearsat page 3000, entitled "An Exploded Theory." Thiseditorial which I won't read to you unless it is neces-sary to recall it to your mind, contains some criticismof Mr. Osborne, Thomas Mott Osborne. Do you re-call the editorial? A. I do. 6591

Q. How do you explain that criticism of Mr. Os-borne at this time and your support of his candidacyfor the Senatorship subsequently?

Mr. Bowers: I object.The Court: He may answer.Exception.Mr. Bowers: I will re-state the same grounds

as to the question about the Republican Party.The Court: He may answer.

A. At the time of the writing of the article I wasnot a member of the Republican State Committee. I

2198


had no relation to or function in that party. I was theeditor of the Albany Evening Journal and expressingan opinion that I thought was pertinent to the situa-tion and generally connected with the course of eventsin the Senatorship fight. There was a good deal ofsatire and humor in the article. I had no thoughtthat I would be Chairman of the State Committeein the future at all.

When I urged the selection of Mr. Osborne inMarch, it was because I thought that he was an enemyof Tammany Hall, had been distinctly so, and if

6593 elected to the United States Senate he would causea breach in "the Democratic Party which would beuseful to the Republican Party in the contest to come;I was at that time the head of the State organizationof the party and in its interest I was in duty boundto operate, provided of course that I did not thinkthat Mr. Osborne was an improper man to hold suchan office. There must be such a qualification in allpolitical operation.

Q. You said in answer to one of Mr. Bowers' ques-tions, that it was your view that when a man takesany office or accepts any nomination and allows hisname to be used, that it is his duty thereupon to

6594 stand not only for the policies and principles of hisparty, but to stand as the majority determine. Youstated that that was true as a general principle. Doyou recall that? A. I do.

Q. Precisely what did you mean by that?

Mr. Bowers: I object to that.Overruled. Exception.

A. In relation to legislative matters the majority isdetermined by caucus of the political party to whichthe member of the Legislature belongs. In the eventthat he is an elective officer chosen by the people orthe voters at an election, his obligation is to the ex-

2199


pressed will of the party in its last convention, the

last expression that has been made as to what the

party's purpose is. I know of no other way of de-termining what is the majority thought or purposeexcept in the future by some other act such as thatwhich we now have in direct primaries or direct nomi-

nations or would have if we had a convention system.Q. How is the will of the majority determined, in

your view?

Mr. Bowers: I make the same objection.The Court: He has stated that, by the ac-

tion of the State convention. 6591

By Mr. Wolff:

Q. By State conventions and by party causus inlegislative matters? A. There is no such conventionnow.

Q. Formerly? A. Yes.

By the Court:

Q. At the time of this- A. Yes.

By Mr. Wolff:

Q. And you think that this rule applies to National

conventions still? 6597

Mr. Bowers: Are we going to try the Na-tional conventions?

The Court: I don't believe we will go into

that.

Q. Turning to the Hart-Agnew legislature, did you

ever discuss the race track legislation with Senator

Grady? A. No.Q. Did you ever discuss any legislative matter

whatsoevcr with Senator Grady? A. I can't recall

it; I don't recall it; I don't think I ever did.

2200

65"8 Plaintiff's Witness, William Barnes, Jr., Re-direct

Q. Did you ask Senator McCarren to come to yourhouse? A. I did not.

Q. Do you know what the relations were betweenSenator McCarren and Mr. Murphy at the time of thatinterview with Mr. McCarren with reference to which-you testified yesterday?

Mr. Bowers: I will ask for yes or no tothat.

A. Yes.Q. What were they?

6599 Mr. Bowers: I object to his stating whatthey were unless he states how he knew.

The Court: He may answer. I have alloweda number of conclusions in this case which Ithink are not strictly competent.

By Mr. Wolff:

Q. State what your information was.

The Court: No, he may answer the questionin the form in which you put it, what was therelation between Senator McCarren and Mr.Murphy.

6600 A. There was a factious fight in the Democraticparty in this State which culminated in 19o6, a verydisturbing convention-

By-the Court:

Q. At this time the relations between Mr. Murphyand Senator McCarren were hostile? A. As the re-sult of this fight, in the Buffalo convention they werehostile.

By Mr. Wolff:

Q. Had you prior to Senator McCarren's visit toyour house taken any action in connection with thisrace track legislation? A. I had followed-

2201

Plaintiff's Witness, William Barnes, Jr., Re-direct. 6601

Mr. Bowers: That calls for yes or no.The Witness: Yes.

Q. What was it? A. I think about a week, maybeten days prior to the vote of April 8th a numberof Republicans from the Congressional District-

Mr. Bowers: I don't think that is responsiveto the question.

The Court: I don't know.; it sounds as if it,might be.

The Witness (resuming): A number of the Re-publicans from the Congressional District which I rep- 6602resented at that time in the State Committee cameto my house together with Senator Wemple, who rep-resented the district of which Schenectady was a partand was in my Congressional District, and SenatorGrattan. I should say there were about twelve menwho were consulted, interested in politics at that timein Albany. The question came up in regard to therace track situation which was then becoming immin-ent. Senator Wemple stated that he intended to voteagainst the bill, with no argument he was convincedhe was going to fight against it. Senator Grattanstated that he was against the bill and did not wishto vote for it but did not know what he ought to do 6603and wanted to consult with his associates. The argu-ment lasted for some time until finally Senator Grat-tan said, "I am sure the bill has twenty-nine votes."Then I said, "I don't believe there is any use discuss-ing this matter any further; if the bill is going topass that ends it." That was the end of that con-versation.

Mr. Bowers: ILmove to strike that out asnot responsive.

The Court: No; it 'may stand.Exception to defendant.

2202


Q. Prior to that interview with Senator McCarrenhad you any knowledge of the fact that the vote uponthe bill was likely to be different from the knowledgewhich you had received from Senator Grattan? A.No.

Q. Prior to that time you didn't know that thechange of Senator Grattan's vote would defeat themeasure; that is that Senator Grattan's oppositionwould defeat the measure? A. I did not.

0. Senator McCarren gave you your first informa-tion on that subject?

6605 The Court: He said so.

Q. Did you have another talk with Senator Grat-tan after that interview with Senator McCarren? A.I did.

Q. What was said?

Mr. Bowers: Hasn't he been over that?Mr. Wolff: No.

Q. Fix the date, Mr. Barnes? A. On the morn-ing of the vote.

Mr. Bowers: He has been all over that.Mr. Wolff: He hasn't testified to the con-

6606 versation, on the morning of the vote.

Q. What was that conversation? A. I urgedSenator Grattan to vote against the bill. He de-murred because of his practical announcement thathe had made that he was going to vote for it. Aftersome little time-I gave him my reasons which Isaid were not for me to state, but that I wished thathe would vote against the bill. After a time he saidit would put him in a very embarrassing position. Hesaid that in view of his announcement of the weekbefore that if he took another position he would besubject to constant inquiry in regard to it. I still

2203


urged him and finally he left the house. I stated tohim, however, "Whatever you may do, of course this

action entirely rests upon you. You take whatevercourse you desire," and I didn't know when he left

me which way he would vote; I thought he would

vote "No."Q. Did you urge Senator Grattan to vote against

the bill as you testified by reason of any request thatwas made of you by Senator McCarren? A. I did

not. Mr. McCarren simply gave me information.Q. At whose request did you do it?

Objected to. Sustained. 6608

Q. What did you have in mind as the reason forurging Senator Grattan's vote against the bill?

Mr. Bowers: I object to that.Sustained. Exception.

Q. Mr. Bowers referred yesterday to a letter toMr. Roosevelt of April 20, igo8. That letter con-

tains the following: "My dear Mr. Roosevelt: Inview of the newspaper articles which have been

printed regarding certain legislation in Albany I think

it is possible that you may have a wrong impression

regarding the action which has been taken by me." 6609Do you recall that you were interrogated by Mr. Bow-

ers with respect to that? A. I do.Q. What newspaper articles were you referring to?

Mr. Bowers: I object.The Court: His answer to Mr. Bowers was

that he referred to some newspaper articles in

the New York papers.Mr. Bowers: I asked if he had the papers, if

I recollect right.Mr. Wolff: I ask that the papers be marked.Newspaper articles marked respectively Ex-

hibits 254, 255, 256.

2204

6610 Plaintiff's Witness, Williamn..Barns, Jr., Re-direct.

By Mr. Wolff:

Q. I show you Exhibits 254, 255, 256, and askyou whether those were the articles to which you re-ferred in your letter; the portions that I am referringto are marked? A. There may have been others;these are some of them; I remember there were a goodmany at the time.

Mr. Wolff: I offer them in evidence.Mr. Bowers: I object to the articles.Mr. Wolff: They explain this letter and the

6611 meaning of the letter has been in question, Ithink we are entitled to a fall explanation.

The Court: I don't see how it is of anyimportance in this case.

Mr. Wolff: It is important because it cor-roborates the story which has been told by Mr.Barnes to the effect that he proposed this legis-lation at the request of the defendant.

The Court: That is not of any importancein this case; I have already held that hisopposition or his support of this legislation wasabsohtely. immaterial. Absolutely the onlyquestion in the case so far as this legislationwas concerned was the effect of the evidence inproving that Mr. Barnes at that time wasdominant in- the Republican party.

Mr. Wolff: That, is entirely true, yourHonor, but upon cross-examination this matterwas gone into for the express purpose ex-pressed by Mr. Bowers of attacking the cred-ibility of the witness.

Mr. Bowers: Find that, will you?Mr. Wolff: I will, yes. And inview of that

fact if what I say is true, and I shall referto the record to support it, it seems to me that

2205

Plaintiff's Witness, William Barnes, Jr., Re-direct 661 3

the door has been thrown open by the cross-examination for an explanation of Mr. Barnes'position in this matter.

The Court: I am not going to submit any-thing to this jury in regard to this race tracklegislation as tending to support the plea ofjustification in this case. I do not think youhad better spend much time on that.

Mr. Wolff: Is Mr. Bowers to be permittedto refer to this matter as reflecting upon thecredibility of Mr. Barnes.

Mr. Bowers: I have no intention of doing 6614anything that I ought not to do.

The Court: I don't think we need refer tothe record because I remember very distinctlywhat occurred. This entire race track matteris entirely immaterial except on that oneproposition. Now, I am not going to submitto the jury, as I said before, any question re-garding the race track legislation or the Alldsmatter or the primary bill, as tending to justifythe alleged libel.

Mr. Wolff: That I understand. It is onlyon the question of credibility.

The Court: I don't believe we will spend 6615any time on that. I will sustain the objection.

Mr. Wolff: Exception.(See Book of Exhibits, pages 2573-2576.)

By Mr. Wolff:

Q. What did you mean by that suggestion in thatletter that Mr. Roosevelt might have a wrong impres-

sion of your action?

Mr. Bowers: I object to that.Objection sustained. Exception.

Q. Why did you send that letter through Mr.

Southwick?

2206


Objected to. Sustained.Exception.

Q. You recall that a special session of the Legis-lature was called subsequent to the defeat of the Hart-Agnew bill? A. I do.

Q. Did you take any action with respect to thelegislation at that special session? A. I did not.

Q. You testified yesterday that your friendly rela-tions with the defendant continued to increase untilthe meeting of the State Committee in I9IO. Didanything happen at that time which disturbed those

6617 relations? ,

Mr. Bowers: I object.The Court: He has already testified that his

vote for Mr. Sherman for temporary chairmandisturbed those relations. Is there anythingelse ?

Q. Anything else, Mr. Barnes? A. That was thecontroversy between-I think I testified in regard tomy meeting with Mr. Roosevelt at the ManhattanHotel.

Q. Yes, that is right. A. And that the attitude ofmind that he had taken was not responsive with mine

6618 and that I could not support him for temporary chair-man.

The Court: You have given that testimony.

Q. Did anything occur after that meeting whichdisturbed your friendly relations with the defend-ant? A. The controversy continued-

Mr. Bowers: I object.The Court: He may state any conversation

that he had with the defendant after thatmeeting.

2207


Q. Any time after?

The Court: You are not referring now to

the 1912 convention?

By the Court:

Q. As to the 191o meeting was there anythingelse except your vote for Mr. Sherman that was incontroversy between you?

Mr. Wolff: I want to ask whether therewas anything subsequent to that 191o conven-tion. 6620

By the Court:

Q. At the i91o convention did you have any inter-view with Mr. Roosevelt? A. No.

Q. Did anything happen in connection with thatconvention? A. There was a contest between Mr.Sherman-

The Court: He said that Mr. Sherman wasa candidate and he seconded his nominationand that Mr. Roosevelt was a candidate andMr. Roosevelt was elected.

The Witness: I didn't second Mr. Sherman. Thecontroversy took place immediately after the meeting 6621of the State Committee. Mr. Roosevelt announcedthat he would not accept the action of the State Com-mittee and the contest went on after that until theconvention.

By the Court:

Q. Mr. Sherman was nominated for chairman ofthe convention? A. Certainly and then was defeatedin the convention.

2208


By Mr. Wolff:

Q. Was there anything else in connection with theconvention? A. I don't recall.

Q. After that convention did anything happen whichdisturbed your friendly relations?

The Court: You may as well ask leadingquestions.

Q. Did Mr. Roosevelt attack you in 1912?

Mr. Bowers: I object to that as calling for

6623 a conclusion, and as not proper re-direct ex-amination.

Mr. Wolff: I think you did go into the mat-ter on cross when you asked this question inrespect to friendly relations between these par-ties.

The Court: What do you want to show?Mr. Wolff: I simply want to show the series

of incidents. The next is in connection withthe Rochester convention, isn't it, Mr. Barnes?

The Witness: Yes, it is.

Mr. Wolff: Mr. Barnes and Mr. Rooseveltwere opposed in that convention and there-

6624 after Mr. Roosevelt attacked Mr. Barnes by

name.Mr. Bowers: You have got all that in.Mr. Wolff: No, I don't think so. And then

I want to come to the 1912 convention.The Court: When do you claim Mr. Roose-

velt attacked him by name?Mr. Wolff: In 1912.

The Court: In these speeches that have beenput in evidence.

Mr. Wolff: Those were in 1914.

2209


Mr. Bowers: They had their opportunityand they ought to have done it then.

Mr. Wolff: I simply want to bring out thehistory of it.

The Court: Well, of course, a great deal ofit has already been brought out. Now, if thereis anything more definite, you should havebrought it out on your direct-examination-

Mr. Wolff: That is true.The Court: Of course, if there is anything

important I am not going because of the mereorder of proof to shut it out, but I want to see 6626what it is and want to see if it is important. Ifyou have anything definite that you want toprove tell me what it is.

Mr. Wolff: I think the Rochester conven-tion will cover it.

By Mr. Wolff:

Q. What was your position in the National Con-vention of 1912?

Mr. Bowers: I object to that.The Court: Hasn't that been brought out?Mr. Wolff: I don't think so.The Court: Mr. Roosevelt said he was for 6627

Mr. Taft.Mr. Wolff: I want to know his official posi-

tion.The Court: He may answer.

The Witness: I was a delegate at large from the

State of New York and the New York member of

the committee on resolutions.

Mr. Bowers: That has all been testified to.

2210


By Mr. Wolff:

Q. Were you the active leader in the convention ofthe forces supporting Mr. Taft and opposing Mr.Roosevelt?

Mr. Bowers: I object to that.The Court: I think I will sustain that objec-

tion.Exception to plaintiff.

By Mr. Wolff:

6629 Q. Did anything happen after the convention whichaffected your relations with Mr. Roosevelt?

Mr. Bowers: Objected to as too general.The Court: What do you want to prove

now?Mr. Wolff: The Werner incident.Mr. Ivins: The Werner-Hiscock incident.Mr. Wolff: Which has been referred to.The Court: Well, now, of course this is re-

opening. If there is anything definite that youwant to bring out, I shall not rule it out,merely on that ground. Do you want to showsome quarrel between the plaintiff and de-

6630 fendant over the nomination of Judge Werner?Mr. Wolff: Yes.The Court: Well, then, go right to that

and show any facts. I overrule the objection,on the mere question of the order of proof,go right to that.

Mr. Bowers: Why should not he ask thedirect question?

The Court: I suggested that he should.

By Mr. Wolff:

Q. What were the facts, Mr. Barnes, with respectto the nomination of Judge Werner?

2211


Mr. Bowers: That I object to because thatmay bring in a great deal of matter that hasnothing to do with the plaintiff and defendant.They should specify by a leading question orotherwise.

By the Court:

Q. Did you have any talk with the defendant withregard to Judge Werner's nomination? A. I did not.

Q. Did you have any written communication withhim? A. I had no communication.

Q. Of that kind. Did he publish any speech which 6632attacked you by name? A. He did.

The Court: Now, that speech you can referto if you want to, if it is not already in.

By Mr. Wolff:

Q. What was that, Mr. Barnes?

Mr. Bowers: I call for the production ofthe speech.

The Court: Yes, where is the speech. Did youhear it? A. I did not. I read it in the newspapers.

Mr. Wolff: I think we are entitled to ask 6633the fact which led up to this attack.

The Court: Any facts which-Mr. Wolff: That is the opposition existing

between the defendant and plaintiff with re-spect to that matter.

Mr. Bowers: What matter?Mr. Wolff: The Werner matter.Mr. Bowers: What about the Werner mat-

ter?The Court: Now, of course, it is conceded

that, I assume, that after the convention ofi9io the plaintiff and the defendant were op-

2212


posed politically in this State. Now, if thereis anything in the Werner matter which showsmalice on the defendant's part towards theplaintiff, you may give it, notwithstanding thatit is reopening.

Mr. Wolff : Mr. Ivins says it is not of enoughconsequence to spend the time.

Q. What did you mean by your statement yesterdayto the effect that you verified the complaint with-out reading it over? A. I meant that I did not readthe statement made by Mr. Roosevelt which I had

6635 read in the papers, I did not read it through in thecomplaint.

Mr. Wolff: Will you let me look at thatExhibit 93 of campaign contributions that youhad this morning.

Q. You were asked this morning in respect to cam-paign contributions? A. Of 1912.

Q. You were asked particularly with respect to Mr.Payne, who was Mr. Payne?

Q. Mr. Oliver Payne, yes. A. Who is he?

The Court: That is what he asked you, who is he?

6636 By Mr. Wolff:

Q. Was he related to Mr. Wadsworth? A. Yes,he is.

Q. Was Mr. Wadsworth a candidate for the Lieu-tenant-Governorship in that campaign? A. Yes, sir;he was.

Q. Do you know Mr. Rockefeller? A. What Mr.Rockefeller.

Q. Well, the one that is in this-Mr. William

Rockefeller, I suppose. A. I do not.Q. Do you know Mrs. Harriman? A. I do not.

2213


Q. Did you ever have any conversations with anyof the persons who contributed to that campaign fund,with respect to their contributions? A. Why, cer-tainly.

Q. What were those conversations?


By the Court:

Q. Well, who did you talk with? A. I think ifI had the list I might recall.

The Court: What you want to ask him is 6638whether he had any conversations in any re-spect other than asking them to make con-tributions, I suppose, is that it?

Mr. Wolff: Well, that is not exactly it. Iwant to ask did you have any conversationwith any of those persons with respect toprotection in consideration of their contribu-tions.

Mr. Bowers: I object to that.The Court: He may answer.

A. I did not.

By Mr. Wolff: 6639

Q. Did you ever have any conversation with any-

body in your entire life in which you promised any

person contributing to a campaign fund protection in

Legislative matters in consideration of their contribu-

tions ?

Mr. Bowers: I object.The Court: He may answer.

A. I never did.

2214


By Mr. Wolff:

Q. And in connection with executive matters? A.The same answer.

Q. And did you ever make any promise of any kindor description to any person in consideration of acampaign fund contribution? A. I never did.

Q. Now, Mr. Barnes, state to the jury in your ownway, the relations between your father and the in-surance companies, and precisely what happened inconnection with the so-called honorarium to whichMr. Bowers referred this morning. A. My father was

6641 Superintendent of Insurance of the State of NewYork, appointed by Governor Morgan in i86o; he wasthe first Superintendent of Insurance of the State,and he remained Superintendent of Insurance for tenyears under both Republican and Democratic admin-instrations. He finally was supplanted by GovernorHoffman in 1871. A successor was appointed and aninvestigation of the insurance department began a fewyears later and my father was appointed by the Leg-islature to investigate his successors in the office ofSuperintendent of Insurance.

Mr. Bowers: Is this material to the ques-

6642 tion ?The Court: He may answer.

A. Thereafter he devoted almost all of his lawpractice to the subject of insurance. He was thepresident of an insurance company in St. Louis andcame back to New York some time thereafter, as Isay, and practiced insurance law. I think he was re-ceiver for one or two insurance companies, and wasknown throughout the State of New York as a manwho knew more about the insurance business thanprobably -ny other man in the State. In i9Oi, I calledupon Mr. Alexander of the Equitable, I think it was,

2215


first, and related to him the position in which my

father's finances were and asked him whether he and

the other large insurance companies would not join

in giving him a retainer, to do insurance work for

them, in Albany and elsewhere, and compiling re-

ports, for the sum of $,2,ooo a year, and Mr. Alex-

ander acceded to that request. I saw Mr. McCurdy

of the Equitable and Mr. McCall of the New York

Life, and that money was paid to him for about five

years. I wrote a letter to Mr. McCurdy at one time,

at my father's request, as he was ill, stating that they

had not sent him his regular check that was due him 6644

on the first of July, and calling Mr. McCurdy's at-

tention to the fact that the check had not been sent,

my father being unable at the time to write the letter.

There is all there is of that subject, sir.

By Mr. Wolff:

, Q. Did your father render services in considera-

tion of that retainer?

Mr. Bowers: I object to it. I think he

should state the facts.The Court: He may state whether he did

or not.

A. He certainly did. I knew of his work, what he 6645

was doing. Not the details.

By Mr. Wolff:

Q. What was it, in a general way? A. There was

some compilation upon which he was working. He

also appeared before legislative committees. That I

know. I may add in this connection, if your Honor

please, that my father appeared before the Hughes

Investigating Committee in 1905, and thoroughly ex-

plained the whole matter, which must be in the rec-

ords of that investigating committee.

2216


By Mr. Wolff:

Q. There has been some testimony, Mr. Barnes,as to the designating of the Albany Evening Journalas the State and county paper-was it required thatthere should be a Democratic and Republican paperdesignated? A. A county paper, yes.

Q. A county paper? A. A county paper, yes.Q. Was there any paper other than the Journal

which could be designated as the Republican paper?

Mr. Bo,,ers: I object to that.

6647 By the Court:

Q. Was there any other Republican paper in thecounty, do you mean?

Mr. Wolff: Yes.Mr. Bowers: What year are you talking

about?The Court: 1899 and I9OO, was it?Mr. Wolff: Well, what year?Mr. Bowers: You fix the year.

By Mr. Wolff:

Q. Well, we will say 1899? A. There was no

6648 strictly Republican paper. The Cohoes Republican wasinclined towards Republicanism at that time.

Q. But the Journal was the only strictly Repub-lican paper?

Mr. Bowers: Well, I think that is callingfor the witness's opinion.

The Court: He said that already.Mr. Wolff: That is all.

2217

Defendant's Witness, William Loeb, Jr., Direct 6649

RE-CROSS EXAMINATION by Mr. Bowers:

Q. Don't you know that Mr. McCarren and Grady

and all the Tammany Senators voted against the

Hart-Agnew bill?

Mr. Wolff: That is objected to.

The Court: Sustained.

By Mr. Bowers:

Q. Don't you know that prior to 1898 any differ-

ences that had theretofore existed between Mr. Mur-phy and Mr. McCarren had all been adjusted? 6650

Mr. Wolff: Objected to.The Court: In 19o8, you mean?Mr. Bowers: In 19o8.The Court: He may answer.

A. I do not.

By Mr. Bowers:

Q. You know, don't you, that Mr. McCarren rep-

resented the racing interests that were opposed to that

bill?

Mr. Wolff: Objected to. 6651The Court: Sustained.Mr. Bowers: That is all.

PLAINTIFF RESTS.

WILLIAM LOEB, JR., recalled as a witness for

defendant, having been already sworn, testified as fol-

lows:

Direct-examination by Mr. Van Benschoten:

Q. Mr. Loeb, do you know William J. Wollman of

New York? A. I do.

2218

6652 Defendant's Witness, William Loeb, Jr., Direct

Q. Is he a member of the firm of J. S. Bache &Company? A. Yes, sir.

Q. Mr. Wollman has testified that he first met youright after Mr. Wilson's election as president, and inNovember or December, 1912, is that correct? A.It is not. I met him in February, 191I.

Mr. Barnum: I object to that statement asnot responsive and move to strike out the latterpart.

The Court: It may go out.Mr. Van Benschoten: The latter part?

6653 The Court: Yes.

By Mr. Van Benschoten:

Q. Mr. Wollman has testified in this action thatsome five or six months after November or December,1912, at a luncheon held in the office of his firm, youand the plaintiff were present, that is about the monthof May, 1913, you and the plaintiff were present, at aluncheon held in that office; is that correct?

Mr. Wolff: That is objected to. Simply arepetition of the direct testimony.

The Court: No, he may deny that he was

6654 present at a luncheon in April or May, 1913.You can simply deny that statement.

A. Mr. Barnes-

The Court: No, just answer the question,were you present at a luncheon in Mr. Bache'soffice with Mr. Woliman in April or May,1913?


Q. When Mr. Barnes was present? A. I was not.Q. When did you first meet Mr. Wollman?

2219


Mr. Wolff: That is objected to.The Court: He may answer.Exception to plaintiff.

A. At a luncheon in February, 1911.


Q. Where was that luncheon held?

The Court: That is the same luncheon he

has already testified to.

The Witness: No this is another one.6656

By Mr. Van Benschoten.

Q. Where was that luncheon held? A. In the of-fice of J. S. Bache & Co.

Q. And what was the purpose for which you wentto that office that day?

Mr. Wolff: Objected to as incompetent andirrelevant and immaterial.

The Court: Sustained. The question is im-proper in form.


Q. What was the subject of discussion between you

and any member of that firm, including Mr. Woll- 6657

man or Mr. Bache, on that date?

Mr. Wolff: That is objected to as imma-

terial and irrelevant.The Court: How is that material?Mr. Van Benschoten: Mr. Wollman has tes-

tified that at this particular luncheon when he

has testified the plaintiff and Mr. Loeb were

there, that the purpose which brought Mr. Loeb

there was consideration of whether or not he

might accept connection with the International

2220


Bank, and we want to show that there was ameeting at their office when that was consid.ered, but at a different time entirely from whatMr. Wollman said. We have to identify theselunches by the time when the subject was un-der discussion. Just a question or two bringsit out.

The Court: You asked him what?


Q. What was the subject of discussion between6659 yourself and members of the firm, which you went

over?


A. The question of my accepting the presidency ofthe International Banking Corporation.


Q. I understand that that was at the luncheon inFebruary, 1911? A. February, 1911.

Q. When were you next at the office of J. S. Bache& Company? A. About the middle of March, 1911.

666 0 Q. And were you there and stayed to lunch on thatday? A. I did.

Q. Will you state who was present on that day?

The Court: Is this the luncheon that he be-fore testified to?

Mr. Van Benschoten: This is the luncheon.I shall not ask as to what took place but as towho was there.

The Court: He has already testified.Mr. Van Benschoten: He did not testify as

to who was there. The others all testified butwe are entitled to show who were there, in con-tradiction of their statement.

2221


Mr. Ivins: We do not think they want to go

on lunching forever.

The Court: What are you trying to show

now, who were present at this luncheon he tes-

tified to where he met Mr. Barnes in 1911 ?

Mr. Van Benschoten: That is precisely it,just who was there.



Q. State who was present at this luncheon about the 6662

middle of March, 1911. A. Mr. Woilman, Mr. New-

man Erb, Colonel Cromwell, I think his name is, at any

rate he is the editor of the Market Letter of the firm

of J. S. Bache & Co., Mr. Scheftels, and Mr. Barnes'

card was brought in during the progress of the lunch.

The Court: Now, you will not describe thatagain, Mr. Loeb.


Q. Was there anyone else present? Mr. Barnes

came in during the luncheon? A. Mr. Barnes came

in during the luncheon.

Mr. Wolff: I object to that and move to 6663

strike it out.The Court: No, that may stand.


Q. Mr. Wollman is a member of the firm of Bache

& Co.? A. Yes, sir, he is.Q. And Mr. Scheftels is a member of the firm? A.

Mr. Scheftels was at that time. He is since deceased.

Q. Colonel Cromwell was employed by the firm? A.

Colonel Cromwell was. employed by the firm.

2222


Q. Mr. Bache, of course, was a member of the firm?A. Mr. Bache was a member of the firm. He was

the senior member of the firm.Q. Reference was made here by Mr. Wollman to a

gentleman by the name of Peter Zucker-was Mr.Zucker attorney for Bache & Co. ? A. He is.

Mr. Wolff: Objected to.The Court: I do not suppose the witness

knows.

The Witness: I do know.

6665 The Court: How do you know?


The Witness: Mr. Zucker told me.

The Court: That is what I supposed. I willsustain the objection then.

The Witness: Bache & Co. also, told me so, and heappeared as attorney for Bache & Co. in a proceedingbefore me as collector.

Mr. Wolff: I move to strike it out.The Court: If he appeared for Bache & Co.

in a proceeding, if he was present, it may stand.6666 By Mr. Van Benschoten:

Q. When were you in J. S. Bache & Co.'s office thenext time? A. March, 1911.

Mr. Wolff: I object to it as immaterial.The Court: He may answer.Exception to plaintiff.Mr. Van Benschoten: I will withdraw that

question for the present, in order to get thecontinuity of events.

2223

Defendant's Witness, Ir'illiam Loeb, Jr., Direct 6667

Q. At this meeting in March, 1911, did you dis-cuss with members of the firm of Bache & Co., thesame question about the International Bank?

Mr. Wolff: That is objected to.The Court: Sustained.Exception to defendant.


Q. Were you at that time considering, togetherwith members of the firm of J. S. Bache & Co., a prop-osition connected with the International Bank? Theyhave testified to this, these witnesses. 6668

Mr. Wolff: Objected to.The Court: Not in March, 1911.Mr. Van Benschoten: If your Honor please,

they have said that the time when this luncheontook place was when they were discussing thisparticular situation. I submit the perusal ofthe evidence shows they were wrong. I thinkyour Honor, that we can show when that par-ticular situation was being discussed.

The Court: He says they discussed it at thefirst luncheon, some time in February or Jan-uary, 1911. 6669

Mr. Van Benschoten: The were discussing itat this second one in 1911.

The Court: I do not think I will let them gointo the discussion of what took place at thatmeeting.

Mr. Van Benschoten: Merely the subject ofdiscussion.

The Court: No.


Mr. Van Benschoten: I think, if your Honor

will pardon me just a moment, Mr. Wollman's

2224

6670 testimony, that is his effort to fix the date,

when this luncheon took place, is based uponthe fact that it was after President Wilson hadbeen elected, and that it was after the electionof the President in 1912, because Mr. Loeb wasthen considering the proposition of taking theposition because his term of office would expireas collector of the port. We desire to show thatit was a year or two before that that the prop-osition was being considered, and that he wasconsidering the propositions and that he too,%them up and took no definite action before thetime when they had stated the luncheon took

6671 place. I think it is necessary in order that thetrue facts and the truth as to the matter may begotton out that we should be allowed to justtouch upon what was the subject of discussionto show that Mr. Wollman was mistaken inhis evidence.

The Court: I do not think you can touch onthe subject of discussion at this particularluncheon.

Mr. Van Benschoten: If your Honor please,not as to what took place at the luncheon, butMr. Wollman testified that on that particularday when Mr. Barnes and Mr. Loeb were

6672 there, they did discuss, not at the luncheon, butin their business way before luncheon, thequestion of whether Mr. Loeb might considera connection with the International Bank.Anyway that is what I wish to bring out, and

not the subject of the luncheon as regards thestatement which is the material issue in thiscase.

The Court: I do not think I will let him de-scribe what occurred at that particular lunch-eon, which he has already testified to.


2225

Defendant's Witness, TVillian, Loeb, Jr., Direct 6673


Q. Why did you go to the office of J. S. Bache &Co., on this occasion in March, 1911 ?

Mr. Wolff: Objected to.The Court: That was already asked.Mr. Van Benschoten: This becomes material

because of Mr. Wollman's testimony.The Court: I will sustain the objection.Exception to defendant.

By Mr. Van Benschoten:6674

Q. When was the next time you were at J. S.Bache & Co.'s after March, 1911 ?

Mr. Wolff: I object to that.The Court: He may answer.Exception to plaintiff.

A. In May, 1913, beginning of May, 1913.


Q. And at that time were you connected with Gug-genheim & Sons? A. I was.

Q. When did you take up your duties with Guggen-heim & Sons? A. In January, 1913.

Q. And when did you make your definite arrange-ment to go with that firm? A. My contract wasdated the Ist of February, 1913. The contract wasdrawn up about the i 5 th of December, 1912.

Q. And had the proposition of your going withthem been under consideration for some time?

Mr. Wolff: I object to that as immaterial.The Court: He may answer.Exception to plaintiff.

A. It had for about a year prior to December, 1912.

2226



Q. When you went over to J. S. Bache & Co.'s inMay, 1913, on behalf of Guggenheim & Sons, whatwas the subject which took you over there?

Mr. Wolff: That I object to as immaterial.The Court: He may give the conversation

that occurred over there, what they talkedabout.


6677 Q. Just the subject that you talked about?

The Court: State generally.

A. It was in reference to a subscription to an issueof bonds of one of the Guggenheim Companies, theChile Copper Company, of which I am director.

0. Had nothing to do with the International Bank?A. Not at all.

Q. When was the next time you went to J. S. Bache& Co.'s?

Mr. Wolff: Objected to.The Court: He may answer.

A. In 1914.6678By Mr. Van Benschoten:

Q. About what time? A. It was May or June.May I state the purpose of that visit?

Q. Just state the subject of it. A. Mr. Wollmanhad called to our attention and introduced to us agentleman who-

The Court: Very briefly, Mr. Loeb, what was thesubject?

The Witness: The subject was in reference to ourtaking some mining shares in China, which Mr. Woll-

2227

DeJ]endant's Witness, William Loeb, Jr., Cross 6679

man had brought to our attention through a gentlemanwho had just come from China.


Q. I understood you to say, Mr. Loeb, that in 1911,in February, 1911, there was under consideration apossible connection with the International Bank.When was that question finally dropped?

Mr. Wolff: I object to that.

By the Court:

Q. Well, when did you have your last conversation 6680with them about it? A. About the Ist of July.

Q. I9II? A. 1911.

Mr. Van Benschoten: I think that is all.

CROSS-EXAMINATION by Mr. Aldams:

Q. Do you state now, Mr. Loeb, that you were atthe firm of Bache & Company prior to 1912? A.Positively I was.

Q. And that the luncheon took place about the latterpart of the senatorial fight in March, 191 1 ?

Mr. Van Benschoten: He said about the 6681middle.

Mr. Adams: He said near the end of thefight.

A. I said in my direct-examination that the con-versation that I was at, at Mr. Bache's office was aboutthe time that it became evident that Mr. Sheehan couldnot be elected Senator.

Q. Well, that was near the end of March? A. Itwas about the middle of March to my best recollection.

Q. And you said you had sent Mr. Ward to seehim some time before that did you not? A. No. Idid not.

2228

6682 Defendant's Witness, William Loeb, Jr., Cross

Q. What did you say? A. I said I had sent a mes-sage to him through Mr. Ward; telephone message.

Q. What was the message you sent? A. I askedMr. Ward to find out from Mr. Barnes if he wouldcare to combine with the Independent or InsurgentDemocrats and elect an independent Democrat UnitedStates Senator.

Q. Now, you dined with Mr. Wollman or his firmbetween November, 1912, and March 1913, severaltimes, did you not, you had luncheon with them,rather? A. No, once.

6683 Q. What time was that? A. That was in May,1913.

Q. Well, do you wish to have the jury understandnow that the only time that you dined with the firm orluncheoned with the firm between I912, and May,1913, was the occasion upon which Mr. Barnes waspresent and Mr. Erb and, I think, Mr. Towsley, what-ever his name is, Towsley, that you dined there beforethat luncheon?

Mr. Van Benschoten: If your Honor please,that question is not proper.

The Witness: I did not say that.

6684 Mr. Van Benschoten: Does not correctly as-sume the evidence to which this witness has tes-tified.

Mr. Adams: I will withdraw it and put an-other one.

Q. Tell me how often your luncheoned at that housebefore the meeting or the luncheon party in 1911 ?A. Once.

Q. And when was that? A. In February, 1911.

Q. Who was present at that luncheon party?

The Court: In February?

2229

Defendant's TWitness, [William Loeb, Jr., Cross 6685

Mr. Adams: Yes.

A. Mr. Jules Bache, Mr. Valentine P. Snyder, Mr.Newman Erb, Colonel Cromwell, if I have got hisname right; he is the editor of the Market Letter, Mr.Scheftels and Mr. Bache's brother.

Q. Who was present at the luncheon in March,1911? A. Mr. Wollman, Mr. Newman Erb, Mr.Scheftels, Mr. Cromwell and Mr. Barnes.

Q. Do you remember of having a discussion at thetable with Mr. Barnes about the election of Mr. Wilsonin that campaign? A. There was not any politicstalked at the luncheon. 6686

Q. Then there was no discussion took place? A.No discussion whatever.

Q. Was Mr. Towsley there? A. I do not recallMr. Towsley being present at that luncheon, but my

best recollection is that he was present at a laterluncheon.

Q. You think he is mistaken when he says that thatis the first time he ever met you in his life? A. I saymy best recollection is that he was not present at thatluncheon and I think he was present at a later lunch-eon. I think he is confused in his luncheons.

Q. You are positive he was not present at thatluncheon? A. I do not say positively, no; that is my 6687

best recollection.Q. Did you ever meet him before the occasion to

which you refer?

Mr. Van Benschoten: I think the counsel

ought to state what occasion.Mr. Adams: I am speaking now of the lunch-

eon in 1911.The Court: At which Mr. Barnes was pres-

ent.Mr. Adams: At which Mr. Barnes was pres-

ent. Or the alleged luncheon.

2230

6688 Defendant's Witness, William Loeb, Jr., Cross

By the Court:

Q. Did you ever meet Mr. Towsley before that?:A. No, sir.

By Mr. Adams:

Q. Was he present at the luncheon, at any otherluncheon at which Mr. Barnes was, present subsequentto this one which you were just testifying about? A.Mr. Barnes was only present at one luncheon when Iwas there.

Q. Did you ever meet them together at any other6689 luncheon? A. No, sir.

Q. Do you know Mr. Erb? A. I know Mr. Erb.Q. Was he present? A. Mr. Erb was present at

every luncheon that I attended at Bache & Company'soffice.

Q. And Mr. Erb testified that the talk on that occa-sion led up to the election of Mr. Wilson. Do you re-member any such discussion as that? "Mr. Barnes andMr. Loeb took the leading part in the discussion aboutthe candidacy of Mr. Roosevelt"; do you rememberhaving such a discussion? A. Oh, there was generaltalk and discussion.

Q. About the election of Mr. Wilson? A. Some-6690 thing may have been said. I do not recall that.

Q. \Will you fix the date, if you have any recollec-tion about it, when you met Mr. Barnes and Mr.Towsley together? A. I do not ever remember hav-ing met them together.

Q. Will you state positively you did not? A. Idon't state positively; no.

Q. Will you fix the date beyond any question thatyou had the luncheon in March, 191I ? A. Positivelyin March, 1911.

0. Now, was Mr. Barnes present at that luncheon?

A. He was.

2231

Defendant's Witness, William Loeb, Jr., Cross 6691

Q. You remember that his card was sent in? A. I

do.Q. Do you know Mr. Gleason? A. Mr. Lafayette

Gleason?Q. Yes? A. I do, yes.

Q. Do you remember of having met him on Fifth

Avenue some time in May of that year?

The Court: May, 1911?

By Mr. Adams:

Q. May, 1911? A. No, sir.

Q. Do you remember when he went to Europe and 6692

wrote you from Paris? A. What time?

Q. Well, it must be preceding May; the winter and

spring of 1911, in the winter? A. I do not recall of

having received a letter from Mr. Gleason.

Q. What say? A. I do not recall ever having re-

ceived a letter from Mr. Gleason since I left the White

House.Q. Do not you recall that you met him on the corner

of 3 5 th Street and Fifth Avenue and inquired about

his trip to Europe? A. No; I met Mr. Gleason on

Fifth Avenue last year.

Q. That was not in 1911? A. No, sir.

Q. What was the subject of the conversation be- 6693

tween you and him when you say you met him last

year? A. Nothing farther than "How do. you do?"

Q. That is all? A. Absolutely; a few words of

greeting.Q. Well, do you positively swear that you did not

meet him about the i8th of May, 1911, after you re-

turned from Europe? A. I positively swear I did not

see Mr. Gleason for four years before last year.

0. You will positively swear that he did not send a

letter from Paris to you in 1911 ? A. I won't swear

that he did not send a letter to me, but I never received

2232

6694 Defendant's I'itness, 'illiam Loeb, Jr., Cross

a letter. I was Collector of the Port at that time, andreceived hundreds of letters every day which nevercame to me.

Q. Will you swear you did not receive a letter fromhim between JanuarZ and May, 1911 ? A. Not to myknowledge.

Q. Addressed to you from Paris? A. Not to myknowledge.

Q. Did you not see Mr. Gleason twice at the Cus-toms House just prior to the time that he left in Jan-uary, 1911, to go abroad with Mr. Kemp, I think his

6695 name was? A. I said I had not seen Mr. Gleason infour years before last year.

Q. I know that, but that does not answer my ques-tion. I ask you if you will swear you did not see himat the Customs House? A. I saw a great many peo-ple there; it is quite possible.

Mr. Adams: I did not ask that. I move tostrike out the answer.

By the Court:

Q. Do you remember seeing him at the CustomsHouse just before he went to Europe, in January,19 11 ? A. I do not recall seeing him.

6696 By Mr. Adams:

Q. Will you swear you did not? A. No; I willnot. He may possibly have been there.

Q. When you met Mr. Gleason, assuming ratherthat you did meet him on Fifth Avenue in May, 1911,did you make any inquiry about Mr. Barnes?

Mr. Van Benschoten: Objected to.The Court: Sustained. The question is im-

proper in form.

2233

Defendant's Witness, TVilliam Loeb, Jr., Cross 6697

By Mr. Adams:

Q. Did you make any inquiry of Mr. Gleason uponhis return from Europe about Mr. Barnes?

Mr. Van Benschoten: The witness testifiedthat he does not recall any such statement.

The Court: He says he did not meet him.Mr. Adams: I understand that.The Court: If you want to contradict the

witness, ask him directly if such and such athing occurred.

By Mr. Adams: 6698

Q. Did you inquire from Mr. Gleason about Mr.Barnes?

The Court: In May or June, 19 11, when youmet him on Fifth Avenue?

Mr. Adams: In May, 19 11.The Court: On Fifth Avenue?Mr. Adams: Yes.The Court: He may answer.

A. I see no earthly reason why I should inquire ofMr. Gleason about Mr. Barnes.

Mr. Adams: I move to strike that answer 6699out.

The Court: It may go out.

By Mr. Adams:

Q. Please answer yes or no?

By the Court:

Q. Did you meet Mr. Gleason on Fifth Avenue in

May or June, 1911, and inquire of him regarding Mr.

Barnes? A. I will say in May or June I was not on

Fifth Avenue.

2234

6700 Defendant's Witness, William Loeb, Jr., Re-direct

Q. You say you did not then? A. I did not, no.

The Court: That answers it.

By Mr. Adams:

Q. Now, did you at that time make any statement toMr. Gleason that you had not seen Mr. Barnes?

Mr. Van Benschoten: I submit he has testi-

fied he did not see Mr. Gleason at that time.

By the Court:

6701 Q. Did you state to, Mr. Gleason in May or June,1911, on 5th Avenue, that you had not seen Mr.Barnes? Is that it?

Mr. Adams: Since he was elected chairmanof the committee in January, 19 11.

By the Court:

Q. That you had not seen Mr. Barnes since he waselected chairman of the Committee in January, 19 11 ?A. I made no such statement.

By Mr. Adams:

Q. Did you make the statement to him that Mr.

6702 Barnes would make a great chairman, but you hopedhe would be very conciliatory in his action? A. Imade no such statement.

RE-DIRECT EXAMINA!TION by Mr. Van Ben-schoten:

Q. You said at one of these discussions there mighthave been some general talk in regard to Mr. Wilson'selection-you referred to the luncheon of 1913? A.I said I did not remember any discussion about Mr.

Wilson.

2235

Defendant's Witness, Simon Guggenheim, Direct 6703

Q. At all? A. At all.

Q. You know Mr. Gleason? A. I have known Mr.

Gleason a good many years.

Q. He is one of the gentlemen who has been sitting

at the plaintiff's table for part of the time during this

trial? A. I saw him here yesterday; yes.

Mr. Adams: May I ask Mr. Loeb another

question?

Q. Since you testified here, on the 29th of April, I

think, have you read over the testimony of Mr. Erb,

Mr. Towsley and Mr. Woilman? A. No, I have not. 6704

I saw newspaper accounts of it.


Q. Have you been told what their testimony was, in

addition to reading it in the newspapers? A. In a

general way, yes.

SIMON GUGGENHEIM, called as a witness by

the defendant, being duly sworn, testified as follows:

Exnamined by Mr. Van Benschoten:

Q. Where do you reside? A. 22 East 47th Street, 6705

New York.Q. What is your business? A. I am engaged in

the mining and smelting business.

Q.. You are one of Guggenheim & Sons? A. Of

M. Guggenheim & Son.

Q. That is the firm with which Mr. Loeb is con-

nected? A. Mr. Loeb is not connected with that firm

now. He is connected with the firm which-

Q. Which comes under their direction? A. Under

their jurisdiction and direction.

2236

6706 Defendant's Witness, Simon Guggenheim, Direct

Q. Do you recall the time when Mr. Loeb took uphis duties with Guggenheim & Sons?

Mr. Wolff: That is objected to as imma-terial.

Mr. Van Benschoten: Merely corroboratingMr. Loeb's testimony. We wish to show thatat the time and prior to. the time when they saythe luncheon took place he had been for sometime connected with Guggenheim & Son, andwas not considering the bank or any other po-

6707 sition.The Court: He may answer.Exception for plaintiff.

A. Please repeat the question.Q. Please state when Mr. Loeb first took up his

duties with Guggenheim & Sons? A. Mr. Loeb be-came connected with M. Guggenheim & Sons in Feb-ruary, 1913.

Q. That is when his contract began, but did he per-form any duties during the month of January? A.Mr. Loeb was in the office during the month of Janu-ary.

Q. When were definite arrangements made for his

6708 taking up his position with the company? A. Mr.Loeb made an arrangement in writing with M. Gug-genheim & Sons on the I6th day of December, 1912.

Q. And had the question of his connection with thecompany been under consideration for some time priorto that time?


The Court: That doesn't help very much.


Q. You were formerly United States Senator from

Colorado? A. Yes.

2237

Defendant's Witness, Williamn Loeb, Jr., Direct 6709

CROSS-EXAMINATION by Mr. Ivins:

Q. Did Mr. Loeb join you before the expiration ofMr. Taft's term of office? A. He did. He had somearrangement before his term of office-

Q. (Interrupting.) Did he join you? A. He did.Q. Did he cease to be Collector of Customs before

the expiration of Mr. Taft's term of office? A. No;he was serving as Collector of the Port.

RE-DIRECT EXAMINATION by Mr. Van Ben-schoten:

6710Q. Did he have an arrangement with the Secretaryof the Treasury, Mr. McAdoo, by which-


A. I was informed-

The Court: What is the question? Don'tanswer when the question is objected to.

Mr. Van Benschoten: I will withdraw thequestion. May I recall Mr. Loeb on one ques-tion?

The Court: Yes.

6711

WILLIAM LOEB, JR., recalled as a witness fordefendant for further examination:

Examindation by Mr. Van Benschoten:

Q. How long did you continue Collector of thePort?



2238


By the Court:

Q. Until the end of Mr. Taft's term? A. DuringPresident Wilson's term; I continued to be collectoruntil June 9 th, 1913.


Q. Had you requested the government to fill yourplace, and had they requested you to stay there untilthe first of June before taking up your duties withGuggenheim & Sons?

6713 Mr. Wolff: I object to that.Mr. Van Benschoten: I think we are en-

titled to show that he had requested to have asuccessor appointed, and the government hadtold him that they wished he would stay, andmeanwhile he could take up his duties withGuggenheim & Sons.

The Court: Mr. Guggenheim says he did asa matter of fact. I don't think we will spendany time on that.

Mr. Van Benschoten: I would like to showthat the Secretary of the Treasury gave himpermission.

The Court: He says' to me that he wasrequested to stay by the Secretary, SecretaryMcAdoo, until his successor should qualify andthat he stayed.

By Mr. Adams:

Q. In fact you did remain, did you not?

The Court: He says he did.

By Mr. Adams:

Q. And drew your salary down to June? A. Yes,

2239

Defendant's Witness, Theodore Roosevelt, Direct 6715


Q. Did Secretary McAdoo inform you you couldtake up your duties with Guggenheim & Sons thefirst of February?

Objected to.

A. He did; I had his permission.

THEODORE ROOSEVELT, the defendant, re-called for further re-direct examination in his own 6716behalf, testified as follows:

Examined by Mr. Van Benschoten:

Q. Do you remember the testimony of one JohnW. Hutchinson, Jr.? A. I do.

Q. In which he referred to an interview he hadwith you at the Harvard Club about July 15, 1914?A. Yes.

Q. Was that interview held at your solicitation orat his? A. At his.

Q. Will you please state just what that interviewwas? What was said in that interview?

Mr. Wolff: I object to it as incompetent. 6717

it seems to me that the witness is only entitledto deny or affirm that conversation.

The Court: No; that was brought out bythe plaintiff. He is entitled to give his versionof that conversation, clearly.


A. Mr. Parker informed me that Mr. Hutchinsonasked to see me. I told him to come around to Pro-gressive headquarters and I would see him. Mr.Parker informed me that Mr. Hutchinson said-

2240,

6718 Defendant's Witness, Theodore Roosevelt, Direct

Mr. Wolff: I object to what Mr. Parkersaid.

The Court: That is incompetent.

By the Court:

Q. You went to the Harvard Club? A. I went tothe Harvard Club.

Q. And met Mr. Hutchinson? A. Yes. Is itproper to say that it was at his request?

The Court: You have said that.The Witness: I went to the Harvard Club and met

67 19, Mr. Hutchinson, and after greeting I said to him,

"Why do you want to see me?" He answered, "Be-cause we think you ought to be back in the Republicanparty; we want you back in the Republican party,"and then said-

The Court: May I interrupt? When wasthis interview, at what time?

Mr. Van Benschoten: About July i 5 th,1914.

The Witness: About the middle of July, 1914. Hethen said to me in substance that in my Pittsburghspeech and in what I had said about the Panama

6720 treaty I had handled the administration as no Republi-can seemed to be able to handle it, and I said I thoughtso, too. And then he asked me why I could not getback and support the Republican party that fall. .Itold him I was anxious to support the Republican can-didate for governor, provided they would put up agovernor who we could be sure would war on Republi-can crookedness just as much as upon Democraticcrookedness, but that it was idle to ask me and menlike me to come back to the Republican party whileit was dominated by and its principles given it by menof the stamp of Mr. Barnes.

2241



Q. Did you in that interview at any time use the

phrase that the Republican party was not big enough

for you and Barnes? A. I did not.Q. You heard Mr. Loeb testify some days ago in

this trial to an interview he had with Mr. Barnes at

J. S. Bache & Company's office? A. I did.Q. Did Mr. Loeb tell you concerning that inter-

view in the spring of 1912?

Mr. Wolff: I object to it as already an-

swered. 6722Mr. Ivins: It already appears in the record.

Mr. Van Benschoten: The date does not ap-pear.

The Court: How is it material?Mr. Van Benschoten: If Mr. Loeb told this

entire interview to the defendant in the springof 1912, he must have heard it long before1913 or 1914 when our friends would have usbelieve this luncheon took place.

The Court: I don't believe his conversationwith Mr. Loeb is competent.


By Mr. Van Benschoten: 6723

Q. You heard the plaintiff's testimony as to a cer-

tain conversation he had with you at the Executive

Mansion while you were governor, in the month of

February, 1899? A. I did.

Q. Do you recall what he said on that subject? A.

I do.

The Court: In your questions make it clear

so that I can get in mind what the conversation

is. What is this conversation about?

Mr. Van Benschoten: Perhaps your Honor

will recall it when I say it refers to the conver-

2242


sation where Mr. Barnes said he explained tothe governor, now the defendant, why the Re-publican vote had fallen off in Albany County.

Mr. Adams: He has been over that.


Q. Will you please state just what that conversa-tion was that you had with the plaintiff on that oc-casion?

Mr. Ivins: He has stated it already.Mr. Bowers: He has not stated it.

6725 Mr. Wolff: It is -the same conversation.

Mr. Ivins: It will be a different version ofthe same conversation.

The Court: Of course I cannot rememberthe details of all this evidence, and I have notread it over. I have to trust my memory. Thedefendant gave one conversation that he hadwith Mr. Barnes at the Executive Mansion inwhich he said that leaders were necessary andso, forth and so on. Is this that same conversa-tion?

Mr. Van Benschoten: This conversationwhich is about to be given now is in contradic-

6726 tion of certain statements which the plaintiffsays took place on this occasion.

The Court: The only thing I am getting atis whether the defendant did give his versionof this same conversation.

Mr. Van Benschoten: No, I don't think so.The Court: If he did, of course he need not

repeat it. If he has not, if it is a fresh con-versation which the plaintiff has spoken of,then the defendant may give his version of thatconversation.

Mr. Van Benschoten: As I understand thisis a fresh conversation, called to the defend-

2243


ant's attention by reason of the evidence which

the plaintiff gave.The Court: If it is a. fresh conversation, the

defendant may give his version of it.

Mr. Van Benschoten: That is what I as-

sume it is.

Mr. Wolff: We might ask the defendant

whether or not this is a new conversation in

respect to which he has not testified.

By the Court:

Q. Is this a new conversation that you have not al- 6728

ready testified to? A. I testified simply generally as

to the conversation before, but it was not until Mr.

Barnes got on the stand that he himself refreshed my

memory about this particular conversation with me at

the Executive Mansion.

The Court: Then the defendant may give it,

if it is a fresh conversation.


Q. Will you please give that conversation to the

jury. A. Am I at liberty only to contradict the state-

ment that he made of the conversation, or am I to give

the conversation? 6729

The 'Court: Just now give the conversation that

you had with him.

The Witness: Mr. Barnes came to me at the Ex-

ecutive Mansion and spoke to me (whether on his in-

itiative or on mine I can't say) about the break be-

tween myself and Mr. Platt concerning the Franchise

Tax.

Mr. Wolff: I object to this because he has

already testified to it.

The Witness: I have not testified to what I am

about to say.

2244

6730 Defendant's TT'itness, Theodore Roosevelt, Direct

Mr. Wolff: It may be he omitted somethingfrom the conversation; but he has already cov-ered this conversation.

The Court: He says he has not given thisparticular conversation. If he has not, he maygive it.

The Witness: Mr. Barnes stated that if we alien-ated the big business men we would go down intodefeat, and he instanced what had happened in AlbanyCounty the preceding fall as a case in point.

6731 Mr. Wolff: That is precisely what he testi-fied to already.

The Witness: I never testified to this last statementat all; that is, I never stated this last statement whichI have just given.

The Court: You never stated that particularsentence, but what troubles me is whether hehas already given this conversation.

Mr. Ivins: He has.The Court: I can't tell. Of course, if he

has given this conversation he can't repeat it.Mr. Van Benschoten: It is our best belief

6732 that he has not.The Court: Then he may go on with the

conversation.

The Witness: I gave the conversation in general;it happened two or three times; I couldn't localize the

particular time.

The Court: You may give this particularconversation.

Mr. Wolff: He has given this particular

conversation. Now he is giving a portion of aconversation with respect to which he has tes-

tified which he says he omitted before.

2245

Defendant's Witness, Theodore Roosevelt, Direct 6733,

The Court: 'He may give this particularconversation.


The Witness: He stated that the year before, thefall before, when I was running that Mr. Brady hadflooded the county with money, with his money, andhad beaten us; that he was very sorry but it could notbe helped; and he said ordinarily Messrs Brady andPruyn had been his-he may have said our supportersinstead of his supporters-had been the supporters ofour side, and heavy contributors; whether the expres-sion was used in such a way as to mean they individu- 6734

ally or as corporations I don't know-

Mr. Wolff: I move to strike that out.

The Court: Yes, give the conversation.be helped; and he said ordinarily Messrs. Brady andPruyn were or had been heavy contributors to ourside. Then you don't wish me to repeat what I havealready said about my expressing surprise?

The Court: No.The Witness: Anything that I was reminded of

this morning?The Court: Yes.The Witness: He was careful to exonerate- 6735

Mr. Wolff: I object to that and move tostrike it out.


The Witness: He said in substance that the bigbusiness men had to contribute to the conservativeside that would take care of their interests, and that

they contributed to the Democrats or the ,Republicansindifferently, to the organization, because there had tobe this connection between-the party organization and

big business of mutual helpfulness properly from the

2246

6736 Defendant's Wfitness, Theodore Roosevelt, Direct

standpoint of protecting big business from the dema-gogue and the scoundrel.

The Court: He has testified to that.

The Witness: So I did.The Court: You must not give the same conversa-

tion that you have already given.

Mr. Ivins: I do not want to be put in theposition where I have got to ask this very emi-nent witness precisely what is new in this tes-timony as distinguished from what is old. I

6737 don't know how long it is going to, last. But Ido know that with the exception of thefact that the witness has said that it helped himto localize the conversation, he has not addedone word or varied one word from what hehas already stated.

The Court: It is not a question of varyingone word, whether that is true or not, or re-membering some thing that he did not remem-ber on the first occasion. It is simply a ques-tion of contradicting the new evidence whichhas been brought out by the plaintiff; and, ofcourse, that means simply contradicting any

6738 story or conversation which he gave which hasnot already been given.

Mr. Ivins: That is the point.Mr. Van Benschoten: If your Honor please,

as I understand, when a witness goes on thestand and says there was a conversation andstates what i~t is, and there was a great dealmore to the conversation than that and yet hesays that is all the conversation, we have aright to put a witness on the stand and showthat that was not all the conversation.

The Court: Not a witness who has alreadygiven that same conversation.

2247

Mr. Van Benschoten: I grant that. 6739The Court: So you must confine your wit-

ness to new conversations.Mr. Van Benschoten: I might call your

Honor's attention to a decision, right on thequestion I just asked, asking him about Mr.Loeb's statement. That is what I thought wasthe law. (Handing up authority.)

The Court: I don't know but it is; I am notsure but that it is. What are you going to askhim?

Mr. Van Benschoten: I ask him whether inthe spring of I912 Mr. Loeb didn't tell himabout the interview which he had with Mr. 6740Barnes about the middle of March, 1911.

The Court: I am not sure but what that iscompetent, Mr. Ivins.

Mr. Ivins: One of the earliest cases whichit was my fortune (while my colleague was stilla very young man) to take part in was theBeecher trial; and I recollect very well the de-cision that was made there, and I have amemorandum from the decision in that case,that whatever evidence is offered or omitted inthe original case could not be given in reply;that the only evidence that can be given inreply is that which cuts down the case on the 6741part of the defendant.

The Court: I agree with that, but that is notthe question that is up. The question is nowabout this conversation between the defendantand Mr. Loeb in March, 1911, in which it is al-leged that Mr. Loeb told the defendant of thisinterview with Mr. Barnes and which he saysoccurred at this meeting at Bache & Company'soffice; and I am not sure but what I was wrongin ruling that that was incompetent.

Mr. Bowers: Mr. Roosevelt did not givethat date. I have been looking at his evidence.

2248

6742 Mr. Roosevelt's evidence might tend to place itas taking place in the spring of I912, but hedoesn't state. I have been looking it over.

Mr. Ivins: If I can get my mind out of theconfusion in which it is involved, they are ex-amining Mr. Roosevelt with regard to a certainconversation with Mr. Barnes, and they seemto have jumped from that, and your Honor'sattention has been called to a decision with re-gard to your ruling in respect to Mr. Loeb.

The Court: Yes.Mr. Ivins: What I want to find out, if I can,

is, in the language of the gentleman from Vir-

6743 ginia, where we are at.The Court: First let us decide this matter

about Mr. Loeb: They asked the witness if hehad had a conversation with Mr. Loeb in theearly part of 191i, in which Mr. Loeb-

Mr. Van Benschoten: I912.The Court: You want-to ask him whether

he had a conversation with Mr. Loeb in theearly part of 1912 in which Mr. Loeb told himabout this alleged interview with Mr. Barnesat Bache & Company's office?

Mr. Van Benschoten: Yes.The Court: I held'that that was incompe-

6744 tent,' and I am not sure but what I was wrong.Mr. Ivins: It is corroboration of their own

witness, and it is corroboration of their ownwitness under such circumstances that it is notreceivable in rebuttal at this time. At page420 this witness testified: "Mr. Loeb informedme 'that at the time of the election of a sena-tor to succeed Senator Depew, I think in 1911,either 1911 or 1912, 1911 I think, when therewas a Democratic majority of the Legislatureand when there was a, split' between the ma-chine Democrats and anti-machine DemocraticSenators, that he, Mr. Loeb, went to see Mr.

2249

Barnes, to ask Mr. Barnes if the Republicans 6745in. the Legislature would not support an anti-machine Democrat for, senator; and 1that1 Mr-Barnes answered him, saying"-and so forthand'so forth. Now they have introdticed'cer-tain testimony from Mr. Loeb' which does notconform at alt to the recollection, of the matter-as given by Mr. Roosevelt. I'd6 not mean tosay for a moment that I'impugn'the integrityof -the dfendint'§ recollection-' mean the,propriety of his recollection, but the testimonyis entirely different. Mr. Loeb has just gone offthe stand, and he has testified 'that he communi-cated'with Mr. Barnes through.some one, but 6746'that does not conform at all'to the memorythat is expressed'here, and'in the meantime wehave a question pending, asking this witnessin regard to a conversation bletween'hfinselfand Mr. Barnes early in Febrtrary.

The Court: Let that go for the present: I'will rule on that when we get-to it:

Mr. Van Benschoten: Mr. Ivifns has for-gotten that Mr. Loeb testified'before on thistrial, when he testified to a conversation he had'with Mr. Barnes. I didn't go over that again,today; it was not necessary.

The Court: I think I will allbw the witness 67477to testify as to a meeting witli Mt. Loeb in theearl" part of 1912, in which M-. Loeb' stated'to him that he had been at this luncheon withMr. Barnes.

Mr. Wolff! We will take anexception.The Court: Then we will go back to this

conversation of 1899 with Mr. Barnes after we'

get through with this.

2250



Q. Did Mr. Loeb in the spring of 1912 tell you thatabout the middle of March (or this in substance) thatabout the middle of March, 1911, he met Mr. Barnesat luncheon at J. S. Bache & Company's office, andwhile there he spoke to him, to Mr. Barnes, in regardto the Republicans uniting with the IndependentDemocrats in the election of a United States Senator,and that Mr. Barnes told him that he could not be-cause he had an arrangement with Mr. Murphy notto interfere with his plans in the election of a United

6749 States Senator? Did Mr. Loeb tell you substantiallythat in the spring of 1912?

Mr. Wolff: I object to that as immaterialand irrelevant and already in the case at page420.

The Court: He may answer.,Exception for plaintiff.

A. Substantially; yes.

The Court: Now to go back to this conver-sation in 1899.

Mr. Van Benschoten: We are entirely6750 through with that conversation, unless you

want to take it up further.The Court: What is the next question.


Q. Do you recall Mr. Barnes' testimony as to aninterview he had with you at Washington relating tothe Hart-Agnew Bill. A. I want to talk first aboutthe, evidence as to the dinner when Mr. Platt wasthere.

Mr. Ivins: I move to strike that out.The Court: That goes out.

2251'



Q. Do you recollect the plaintiff's testimony in re-

gard to the dinner at the Executive Mansion whileyou were governor, in the winter of 1899, at, whichhe said Mr. Platt and Mr. Odell and others were pres-ent. A. Yes.

Q. Do you recall a conversation which was had atthat time to which you have not testified? A. I do.

Q. Mr. Barnes was present? A. Mr. Barnes waspresent.

Q. Will you please state it? 6752Mr. Wolff: I object to it as immaterial and

irrelevant. It does not appear as to the per-

sons between whom that conversation was had,or whether it was a conversation with respectto which Mr. Barnes has testified.

The Court: Of course, as I say, it is ex-

tremely difficult for me to rule upon thesequestions because to do it I should have to read

over all this mass of testimony, which I havenot done, and I have to rely upon you gentle-men's recollection. Did Mr. Barnes testify to

some independent conversation which occurredat the Executive Mansion with the defendant ? 6753

Mr. Van Benschoten: As I recall it he testi-fied that on this particular occasion there was

nothing said about a certain subject.Mr. Ivins: He testified that on this occa-

sion there was nothing said in regard to any of

these matters at all; that there were ladies

present, that it was a dinner, and Mrs. Platt

was there and Mrs. Odell was there and Mrs.

Barnes was there.The Court: Who asked him about that?

Mr. Ivins: I did.The Court: You asked him about this din-

ner at the Executive Mansion?

2252

67541 Mr. Ivins: I did, because I'wanted to iden,.tify the different occasions on which he had!been at the Executive Mansion and what had.taken place on each of those occasions; and hetestified that there had been no conversation!of a political character or touching on politicalsubjects at that time. Now I have no doubtwhatever that if the witness has refreshed hisrecollection and is prepared to swear that onithat particular: occasion, when Mr. Barnes washis guest, that there was another conversation,that the only question which remains is as towhether or not it is proper that he should

61755 swear to it at this time, or whether he should:not be confined to his original testimony. Ifyour Honor rules that it is proper for them toreopen the case in order to enable him to tes-tify to subject-matter which he did not remem-ber, before, or which he did not testify to be-fore, under any circumstances, then, of course,Ilacquiesce in the propriety of the latter course.'

The Court: Acquiesce unwillingly?Mr. Ivins: No.; I acquiesce willingly, be-

cause I am entirely willing that Colonel Roose-velt should say everything that he can say and:wants to say that is within the rules of.law,

6(756 curbed by the customs of the courts.The Court: Do you, mean that you don't ob-

ject to it ?Mr. Ivins: I mean that just a minute ago,,.

when he reached over and said-The Court: Do you object to the conversa--

tion or don't you object to it?Mr. Ivins: I object to the conversation on'

the ground-,The Court: I don't think it is competent.Mr. Van Benschoten: Mr. Barnes testified

that there was no conversation on any subject-of that character, and we wish"to contradict-

2253


that testimony by showing that there was con-versation of a certain character which relates

to the issues in this case.The Court: I don't think that is competent.

I think the witness should have given that onhis direct-examination.

Mr. Van Benschoten: You were pretty kind

to our friends on the other side in their re-di-rect of Mr. Barnes, but we will pass it, andtake an exception to your Honor's ruling.

By Mr. Van Benschoten: 6758

Q. Do you recall the testimony of the plaintiff withregard to a certain interview he had with you atWashington with regard to the Hart-Agnew Bill? A.I do.

The Court: That was the testimony withregard to Mr. Belmont?

Mr. Van Benschoten: Yes.


Q. Do you recollect that in that testimony he statedthat you said the legislation should be defeated? A.I do.

Q. Is that correct? A. That is false. 6759Q. Do you recollect his statement with regard to

that interview, the substance of what he testified? A.

I do.Q. Will you please state to the jury just what that

interview was?

Mr. Wolff: I object to that. He has al-

ready testified to it.Mr. Van Benschoten: Not as to another

matter that Mr. Barnes testified to.

The Court: Has the witness already given

his account of this interview at Washington

between himself and Mr. Barnes?

2254


Mr. Barnum: He did, on his direct-exami-nation.

The Court: What do you say, Mr. Van Ben-schoten ?

Mr. Van Benschoten: I don't think he wentinto details which Mr. Barnes went into. Iwill ask a somewhat specific question.

Q. Do you recall that Mr. Barnes stated in histestimony as follows: "Mr. Roosevelt made some re-flections in regard to Mr. Woodruff"? A. I do.

6761 Objected to.The Court: He may answer.Exception for plaintiff.


Q. Will you please state what was said as to thatparticular matter?

Objected to.The Court: If Mr. Barnes said anything oc-

curred in that conversation which the witnesswishes to contradict, you may ask the witnessif he made a reflection, for instance, on Gover-nor Woodruff, or if he sent Mr. Belmont to

6762 oppose the Hart-Agnew Bill, or anything ofthe kind; but I don't think if he has alreadygiven that conversation that he should go, overthe whole conversation again.

Mr. Van Benschoten: Not the whole con-versation; but I have called your Honor's at-tentio;n to something in Mr. Barnes' state-ment-

The Court: Ask him a direct question.


Q. Did you make any reflection on Mr. Woodruff?

2255


Objected to. Objection overruled. Excep-tion for plaintiff.

A. It is difficult to answer that categorically.Q. Can you answer it categorically? A. I cannot

answer it categorically.Q. Then please answer it in any way that you can.

Mr. Ivins: I object.


Q. What did you say to Mr. Barnes with regardto Mr. Woodruff? 6764

Same objection.Mr. Van Benschoten: The plaintiff has tes-

tified here that the defendant made reflectionsupon Mr. Woodruff. We submit that the de-fendant is entitled to clear up that statementof the plaintiff. It cannot perhaps be answeredby yes or no, but we submit that the state-ment of the defendant to the plaintiff at thattime would be admissible in contradiction ofthe plaintiff.

The Court: What difference does it makewhether he did or not?

Mr. Van Benschoten: I think it makes con- 6765siderable difference if the plaintiff can go onthe stand and swear to such a statement and

we are not permitted to contradict it.The Court: It does not make very much

difference in this case whether there was a

reflection or was not a reflection cast upon Mr.

Woodruff does it?Mr. Van Benschoten: I think it does in this

case; but there is the additional situation, as

to whether that should be permitted on the

part of the plaintiff, and then the defendant

not be able to state his version of it.

2256


Mr. Ivins: In order to get this matter en-tirely straight: When Mr. Roosevelt was onthe stand the conversation between Mr. Barnesand Mr. Roosevelt was brought out directly byMr. Bowers on Mr. Roosevelt's direct-exami-nation, and he testified to what we were justi-fied in believing was the entire communicationas he understood it, or purported to be. Mr.Barnes went on the stand and testified to whatoccurred as he understood it. In the courseof Mr. Barnes' testimony he said that Mr.

6767 Roosevelt made certain remarks or reflectionsabout Mr. Woodruff, which he regarded as un-important and therefore did not repeat. Now,if they desire to bring in that matter, whichwas entirely uncalled for, and which we didnot bring out on the direct-examination our-selves, then they are going to bring in a con-versation between this man and a dead man.I don't think it is proper under any circum-stances.

Mr. Van Benschoten: I think he is mis-taken when he says we brought it out. It wasMr. Barnes who brought up Mr. Woodruff's

6768 name.Mr. Ivins: Mr. Barnes left it out.Mr. Van Benschoten: He says there was a

reflection made. I submit the defendant is en-titled to give his version of it.

The Court: I will let the witness state whatwas said with regard to Governor Woodruff.



Q. Please state. A. Mr. Barnes asked me why Idid not go to Governor Woodruff, who was chairman;

and I said that Governor Woodruff was not the man

2257


that had the power with the organization, that Mr.Barnes did and I would go to him, and so I went to

Mr. Barnes. I don't know whether you call that areflection or not.

Q. Do you recall the testimony of the plaintiff withregard to a certain interview he had with you at

Oyster Bay with regard to the renomination of Gov-ernor Hughes? A. I do.

Q. I read a portion of that testimony, at page 2908:"I recall that Mr. Roosevelt said to me that of course

I would continue my opposition to the governor at the

convention." 6770

The Court: Who does he mean?Mr. Van Benschoten: "That I (Barnes)

would continue my opposition to the Governor

at the convention."

Q. Did you make a statement in those words to-

him? A. No.Q. What did you state to him on that subject?

Mr. Wolff: That is objected to. He has

testified to that conversation.Mr. Ivins: It is immaterial.Mr. Wolff: The whole conversation is in.

The Witness: I never testified to it. 6771

The Court: He may answer, if he never tes-tified to that conversation.



Q. What did you say to Mr. Barnes on that sub-

ject? A. I stated to Mr. Barnes and to the other

gentlemen present-it was a statement to all of them

-I said in substance, "Well, Mr. Barnes, I suppose

you will oppose Mr. Hughes to the end, but I have

2258


hopes of the others." In substance that was what Isaid. I am only speaking of the substance. You don'twant me to tell the rest of the conversation?

Q. Do you recall the testimony of the plaintiff withregard to a certain interview at the Manhattan Hotel,in the summer of 191o? A. I do.

The Court: Was that the interview about Mr.Sherman as temporary chairman?

The Witness: Yes. I never testified to that.


6773 Q. Please state just what that interview was. A.Mr. Ward brought us together and then left the room.Mr. Barnes said in substance that he and the organi-zation had been inclined-had been my friends, thatthey had been friendly to me and expected to supportme; that they had felt more kindly toward me thantoward Mr. Taft, but in this very Sherman businessMr. Taft had tried to, double-cross them; and he alsosaid that Mr. Hughes was now out of the state; thathe had warned me before that Mr. Hughes' supporterswere my enemies, and that Mr. Parsons and Mr. Par-sons' associates with whom I was now acting werehostile to me and for Mr. Taft, and that it was against

6774 my own interest to take the course that I was takingin allying myself with the followers of Hughes and thesupporters of Taft in this matter; but that he and theorganization were unalterably hostile to Mr. Hughes'primary legislation and unalterably hostile to the prin-ciples I enunciated at Osawatomie and in other placeson the trip I had just made in the west, and theywould not support me if I continued to stand for thoseprinciples and for the primary legislation, and wouldbe hostile to me. I answered that Mr. Parsons hadhimself told me that he was in favor of Mr. Taft asagainst me, but that I was not concerned with the

2259

Defendant's Witness, Theodore Roosevelt, Cross 6775

interest either of myself or of Mr. Taft in that mat-

ter; that I regarded the points at issue as being of far

greater consequence than the welfare of either Mr.

Taft or myself; that I was supporting Mr. Hughes'

primary legislation as a matter of principle, because

I believed in it, and that in my Osawatomie speech

and the other speeches I had made in the west that all

I had been doing was to try to apply the principles of

Abraham Lincoln to the conditions of our own cen-

tury, and that I could not abandon that fight. Mr.

Barnes said, all right, then the fight would have to go

on. 6776

Q. Do you remember that Mr. Ezra Prentice was

Chairman of the Republican State Committee during

the campaign of 191o? A. I do.

Q. Did Mr. Prentice take any active part after the

campaign was over?

Objected to as incompetent, immaterial and

irrelevant.The Court: He may answer.


A. He did not.

CROSS-EXAMINATION by Mr. Izins: 6777

Q. Did Mr. Barnes sit there quietly and listen to a

long speech which you made and interpose no objec-

tions, and just finally end by saying, "Very well; then

we part"? A. In the-

Q. (Interrupting.) You have just testified to a

long conversation, which I would designate a mono-

logue, I want to know whether it was a dialogue. A.

Now do you want me to correct your understanding

of it?Q. No. I understand it. A. You do not. I testi-

fied that it was a dialogue. I gave the statements of

2260

6778 Defendant's Witness, Theodore Roosevelt, Cross

Mr. Barnes and my answers to them. The way Ithink it came was in a long statement by Mr. Barnes,and then quite a long statement from me; it may havebeen occasionally broken up by occasional interrup-tions.

Q. As a matter of fact that is not the way yougave it. A. I am giving it to you in substance.

Q. What you mean now is that as a matter of factin what you just gave, you gave the substance of theconversation? A. You can test it by reading it.

Q. Can you tell me now, recalling what you have

6779 just testified to, how many times you referred to Mr.Barnes as having broken into your conversation andmade a remark? A. How many times I referred-

Q. How many times you introduced him into whatyou call a dialogue? A. My memory is that I gaveMr. Barnes' statement first, and then my own state-ment. If you have any doubt about my memory beingaccurate, let the stenographer read it.

Q. I have very grave doubts of it. A. Then let itbe read.

Q. But my doubt is not a matter for considerationor discussion. A. Then why ask me about it?

Q. Because I want your doubt. A. I have none;6780 I have no doubt.

Q. You have no doubt? A. None.


Q. It occurred in precisely the way you havestated? A. In substance; as I particularly said; insubstance the way I have stated.

DEFENDANT RESTS.

2261

Plaintiff's Witness, Lafayette B. Gleason, Direct 6781

LAFAYETTE B. GLEASON, called as a witness

for the plaintiff, being duly sworn, testified as fol-

lows:

Exaniined by Mr. Adams:

Q. Where do you reside? A. Delhi.Q. You are a member of the bar? A. I am.

Q. You know Mr. Barnes? A. I do.

Q. How long have you known him? A. About 25

years.Q. You know the defendant, Mr. Roosevelt? A.

Yes. 6782

Q. How long have you known him? A. Since1896.

The Court: That is not important; that heknows Mr. Loeb and that he met him at suchand such a date, and that Mr. Loeb said soand so is all that is important.

By Mr. Adams:

Q. Do you remember meeting Mr. Loeb on 5th Ave-nue in May, 1911? A. In 1911, Imethim.

Q. Where? A. At 37th Street and 5th Avenue.Q. Did you have a conversation with him? A. I

did. 6783Q. Will you please state just as hastily as you can

what was said by you and by him at that meeting?

Objected to. Objection sustained.

Q. Did you have any conversation with him about

Mr. Barnes.

Objected to. Objection sustained.

Q. Did Mr. Loeb on that occasion say to you that

he had not seen Mr. Barnes from the meeting of the

State Committee down to the time that you met him?

Yes or no?

2262

6784 Plaintiff's Witness, Lafayette B. Gleason, Cross

Mr. Bowers: I object to that on the groundsthat I have stated.

The Court: He can answer, yes or no.

A. I can't state that he said exactly that; he saidthat in substance.

Q. That was what day? A. I don't recollect theexact day.

Q. You arrived from Europe on the 8th day ofMay? A. Yes.

Q. About how long after that was it that you met6785 him? A. Well, within ten days.

Q. Did he say to you that he hoped that he wouldmake a great chairman, if he would be conciliatory?A. Not exactly that.

Q. What did he say? Did he say that or that in sub-stance ?

Mr. Bowers: I object to that.Objection sustained.The Court: That does not contradict Mr.

Loeb in any way. The only thing to contra-dict him is this first sentence which you havegiven.

CROSS-EXAMINATION by Mr. Bowers:6786

Q. What is your occupation? A. I am an attorney.Q. Where are you practicing? A. New York City.Q. How long have you been practicing in New York

City? A. Since i89 i .Q. What political offices have you held in your life?

A. I was first-

Mr. Adams: How is that important in viewof the questions which I have just asked?

Objection overruled. ,

A. I was Journal Clerk in the New York StateSenate.

2263

Plaintiff's Witness, Lafayette B. Gleason, Cross 6787

Q. What year? A. From 189o to 1898, with theexception of the years 1892 and 1893, when the Senatewas Democratic.

Q. Is that the first office you ever held? A. Ithink so.

Q. Did you ever hold any elective offices? A. No;not unless you call the delegates to the National Con-vention elected at the primary an elective office, I didnot.

Q. You held this position, what was it? A. JournalClerk.

Q. In the Senate or Assembly? A. In the Senate. '6788Q. From 189o to 1898? A. Yes.Q. Excepting two years? A. Excepting two years.Q. What other office did you hold? A. I was as-

sistant clerk from 1898 to 1905 in the Senate.Q. What other offices? A. From 1905 to the first

day of January, 1911. The -day the Senate met in1911, I was clerk of the Senate.

Q. Then what office did you hold since? A. I don'thold an office now but it is popularly considered such.I am the attorney representing the Comptroller of theState of New York, in the collection of the transfertaxes in New York County.

Q. When did you get that office? A. The Ist of 6789January, 1915.

Q. Now, you have been in office since 189o, was it,or 1891 ? A. 189 o , with the exception of two years.

Q. What is your age? A. I was born May 30,1863.

Q. Now, then when you were 26 or 27 years old,

you first took an office in the Legislature? A. Yes, sir.Q. Prior to that time what had you been doing?

A. I had been studying law in my father's office and

attending Yale College, and occupied by the usual

boyish pursuits before that.

2264

6790 Plaintiff's Witness, Lafayette B. Gleason, Cross

Q. Until you went into this office in Albany, isthat it? A. Yes, sir.

Q. Have you ever had anything to do with theState Committee? A. Yes, sir.

Q. What have you had to do with State Committee?A. I went with the Republican State Committee firstin 1891 in the Fassett campaign as assistant to thelate John S. Kenyon in the Speakers Bureau.

Q. What year was that? A. 1891.Q. How long did you remain? A. I have been

connected with the Republican State Committee in6791 one capacity or another from that time until this.

Q. Name the capacity? A. I was Chairman of theSpeaker's Bureau; I was connected with the Speaker'sBureau in the campaign of-

Q. Never mind specifying the campaign. Just statethe various positions? A. Chairman of the Speaker'sBureau and Secretary of the State Committee.

Q. Have you received any compensation? A. Ihave; yes.

Q. For how long?7 A. It began after the campaignof 1910.

Q. A regular salary? A. It did at that time; yes,sir.

6792 Q. Up to that time you hadn't received any salary?A. No; I had received my expenses during campaignsand they were paid-

Q. At the present time are you receiving any salary?A. I am not.

Q. At the present time you are receiving a salary asthe attorney for the Comptroller? A. No; a retainer;I receive a monthly compensation.

Q. Now, you have been here how long? A. I havebeen here-I came on Sunday, two weeks ago.

Q. Under subpoena? A. Yes, sir.Q. And you have been sitting at the table of the

other counsel? A. I think I sat there one day whenI was asked by Mr. Hastings to identify a paper.

2265

Plaintiff's Witness, Lafayette B. Gleason, Re-direct 6793

Q. Only one day that you sat there? A. I don't

think I sat there any more; I may have been called

over there sometime about some point.Q. You have been under subpoena for these two

weeks? A. I was held by subpoena up until last

Thursday night; but I thought I was through after

the decisions of his Honor and was released and I was

sent for to come back again..

Q. Have you assisted them in the work of the

prosecution at all? A. No.

Q. Have you helped get witnesses? A. I have not.

Q. Have you subpoenaed witnesses? A. I have not. 6794

Q. Have you sent communications to witnesses? A.Not to witnesses.

Q. What do you mean by not to witnesses? A. I

sent to New York for a paper in the Republican State

Committee that Mr. Barnes desired me to get.

Q. That is the only thing you have done for them?

A. Yes, sir.

RE-DIRECT EXAMINATION by Mr. Izins:

Q. You mean the paper which was offered in evi-

dence this afternoon and not received? A. Yes, sir.

Q. And as a matter of fact you are here under sub-

poena in regard to printing matters because of your re- 6795

lation to the legislature, were you not? A. That is

what I said.

EVIDENCE CLOSED.

Adjourned to tomorrow morning.

Morning session, Wednesday, May 19, 1915.

The Court: The evidence is closed.

Mr. Wolff: We desire to be heard on some motions.

We move to strike out the testimony in respect to print-

2266

6796 Motion to Direct Verdict for Plaintiff

ing which was elicited upon the cross-examination ofplaintiff; and this motion is really made for the pur-pose of obtaining your Honor's ruling as towhether or not defendant's counsel will be permittedto address the jury upon that subject.

The Court: The evidence upon printing elicited onthe cross-examination of the plaintiff?

Mr. Wolff: I make that motion upon the groundthat it was intended by that examination either toprove the commission of some crime or such moral

6?97 obloquy on the part of the plaintiff as ,tisentitles himto belief, and the proof has failed.

The Court: I think I will -deny the motion and giveyou an exception.

Mr. Wolff : We now move for the direction of a ver-dict in favor of the plaintiff, and we ask, your Honor,to be heard on that motion.

We are, of course, aware of the fact that your Honorhas given consideration to the matters which we areabout to discuss, and to an extent, at least, yourHonor's mind is crystalized with reference to the mat-ter, but we sincerely believe that the plaintiff-

6798 The Court: May I interrupt you a moment? Sothat it may be perfectly clear what I have in my mindin regard to this printing situation. I have held andI still hold that there is no, evidence to go to the juryin justification of the alleged libel or any part of it be-cause of testimony regarding the printing situationin Albany. I am not going to submit that testimonyto the jury in justification of the libel. I do not wantyou to misunderstand my ruling.

Mr. Wolff: I understand that.

The Court: Now, how about your other motion?

2267

Motion to Direct Verdict for Plaintiff 67 i9

Mr. Wolff: It is because of our earnest belief, your

Honor, that the plaintiff is entitled to the direction of

a verdict, that we ask your Honor to be heard fully

with mind open, in order that this important question

may be determined only after the fullest deliberation.

We make our motion upon two grounds:

First: That there are portions of this libel, of this

statement, with respect to which your Honor has not

ruled, which are libelous per se; and with respect to

which no evidence in justification has been offered.

And, secondly, upon the ground that even with re-

spect to those portions of the libel which your Honor 6800

has held to be libelous per se, there is no evidence to

go to the jury, upon which the jury may reasonably

find that the defendant has established justification.Now, with reference to the first point: Your Honor

has held two portions of the article to be libelous per

se; first, that portion which charges a corrupt com-

bination between Mr. Barnes and Mr. Murphy withrespect to State matters; and, secondly, that portion of

the article which charges that Mr. Barnes works

through a corrupt alliance between crooked business

and crooked politics. With respect to those two por-

tions evidence has been offered and admitted in justifi-

cation, and there is no evidence in the case referring 6801

to any other portion of the statement, and the Court

has had no occasion up to this time to finally rule upon

the question as to whether or not any other portions of

the libelous article are libelous per se.We start with the proposition that the justification

must be as broad as the libel itself, and if there are

other portions of the statement which are libelous and

which have not been justified, the plaintiff will be en-

titled to a direction of a verdict. We refer first to

that portion of the libel which contains the following

language, and I ask you Honor to note particularly

the words which import affirmative, wilful and pur-

poseful action on the part of the persons named.

2268


"The State government is rotten throughout in al-most all its departments, and this is directly due tothe dominance in politics of Mr. Murphy, and his sub-bosses, acting through such entirely subservient agentsas Governors Dix and Glynn, aided and abetted whennecessary by Mr. Barnes and the sub-bosses of Mr.Barnes."

Evidence was offered in support of that charge andthe defendant wholly failed to connect the rottennessin the State with Mr. Barnes, and the evidence wasstricken out; and I have no doubt that if any such

6803 connection had been established, the defendant wouldnow be claiming that it ought to go to the jury be-cause it was material in view of the fact that that por-tion of the article was libelous per se. We ask yourHonor-to read that in connection with other portionsof the libel:

"The interests of Mr. Barnes and Mr. Murphy arefundamentally identical, and when the issue betweenpopular rights and corrupt and machine ruled govern-ment is clearly drawn, the two bosses will always befound fighting on the same side, openly or covertly,giving one another such support as can with safety berendered. * * * Yet they form the all-powerful in-visible government which is responsible for the malad-ministration and corruption in the public offices of theState." The libel proceeds further to state: "Thesemachine masters secure the appointment to office ofevil men whose activities so deeply taint and discreditour whole governmental system."

It refers to the activities of these men as pernicious,and finally calls upon all good citizens to unite tooverthrow the two corrupt and boss-ruled machinesthat disgrace the political life of the State of NewYork.

We submit that all these portions of the libel shouldbe read together in connection with the charge of rot-

2269

Motion to Direct Verdict for Plaintiff 6805

tenness in the State. It is conceivable, as your Honor

stated, that the State government might be rotten

throughout and that evil men might be appointed to

office, and the person charged with the responsibilitytherefor be entirely innocent in a sense. For example,where a person charged with responsibility is guilty

of simple neglect or stupidity or failure to exercise aproper vigilence, at the same time retaining his personal

honor and integrity. But we submit to your Honor

that that is by no means the charge which is madehere. It is beyond all reason to assume that this article

charges that kind of responsibility to Mr. Barnes and 6806

to Mr. Murphy. The whole tenor and purpose of the

article is to charge them with a prostitution of the

Government of the State to their own selfish and evilends.

To what is the rottenness in the State said to bedue? To the dominance of Mr. Murphy aided andabetted when necessary by Mr. Barnes. I submit toyour Honor that the words "aided and abetted" are

utterly inconsistent with neglect or lack of vigilanceor anything consistent with innocence. The words

"to aid and abet" import affirmative activity on thepart of Mr. Barnes. The clear meaning of the lan-guage is that Mr. Barnes wilfully, purposely and ac- 6807tively rendered aid to Mr. Murphy in bringing aboutthe rottenness in the State. And the remainder of the

libel bears out this interpretation. It says that "when

the issue between popular rights and corrupt and ma-

chine ruled government is clearly drawn the two

bosses will always be found fighting on the same side,

openly or covertly, giving one another such support

as can with safety be rendered. Fighting on the same

side" for corrupt government as against popular

rights. Fighting for corruption, that is what it says.

And this cannot mean anything except an active, wil-

ful, purposeful effort to secure corruption contrary to

2270


the public interests. It is utterly inconsistent with anyidea of innocence.

The Court: Is not that rather a prophecy than astatement of fact?

Mr. Wolff: That they are fighting-

The Court: That they will fight?

Mr. Wolff: It says that they will fight. That when-ever the issue is drawn, they do fight.

The Court: The two bosses will always be found.6809 Mr. Wolff: Openly or covertly. Why covertly, un-

less it is intended to convey the idea that from timeto time it becomes necessary for these evil men tohide their activities. Hiding is inconsistent with in-nocence. "Giving one another such support as canwith safety be rendered." To what does "with safety"refer?

The Court: Let me ask you about that particularclause in the alleged libel. It says that when certainthings occur, the two bosses will always be found do-ing such and such, and such and such things. It doesnot state that they have been found doing it. It does

6810 not state that they ever have done it. It is a prophecythat they will in the future be found doing that. Isn'tthat so in regard to the whole of the clause?

Mr. Wolff: With respect to that particular clause,yes, but right in connection with the charge that thepresent rottenness in the State is due directly to thedomination of Mr. Murphy aided and abetted by Mr.Barnes. The article then goes on and characterizesMr. Barnes as a man of such type that whenever theissue is drawn between corruption and popular rights,you will always find him fighting on the side of corrup-tion. It describes his present character, the type ofman that he is; and it is directly connected with the

2271


prior statement that it is to his aiding and abetting that

the present rottenness in the State is due.

Why are the words "with safety" here unless itmeans that these two men are wise enough to conduct

their activities and keep themselves without the

clutches of the law? And it is said that by means of

this fight, by means of the aid which they are said togive to one another, openly or covertly, they caused

the maladministration and corruption in public office.

It is said they are responsible. The phrase with re-

spect to the securing of appointment to office of evil

men taken by itself may be consistent with innocence 6812

but not when read with the other portions of this libel.

The word is to "secure" them; "secure" which imports

that they intentionally obtained these appointments for

their own purposes. It does not say that they per-mitted such men to be appointed, but they, themselves,

are actively engaged in that evil work. I submit to

your Honor that those statements must convey to the

mind of the ordinary reader the charge that Mr.

Barnes was responsible for the rottenness in the State

and the appointment to office of evil men, and not be-cause of any lack of action or failure to act, or inno-

cent omission or stupidity, or anything of that kind,

but because he actively and intentionally engaged in an 6813

effort to bring about such corruption for the direct

purpose of bringing it about.

And I submit therefore that that portion of the ar-

ticle is libelous.Now, I have here a number of authorities, and my

mind is in considerable doubt as. to whether I ought to

take your Honor's time to read them. I would like to

call your Honor's attention to at least one or two, and

particularly to the language in one of the leading cases,

177 N. Y. The case of Morrison against Smith, 177

N. Y., 366, where the Court said-I want to call your

attention to this language: "Therefore, if by printing

2272


or writing, bad actions, or vicious principles, are im-puted to a man and his respectability is diminished, his

comfort and his enjoyment are lessened by the attend-ant disgrace, contempt, or ridicule, damage will be pre-sumed."

In the case of Powers against Dubois, 17 Wendell,63, which is a leading case on the law of libel, refer-ring to the libel in that case, the Court said: "It charges

him with a corrupt agreement to sacrifice the interests

of the community in which he resides, for private andsinister purposes; and necessarily implies that in the

6815 consummation of the profligate scheme, he deceivedand cheated the legislature, unless we assume what isnot asserted, that they are parties to the plot. * * *Until the morals and judgment of the community be-come so perverted that the legislation of the State con-ducted for private and selfish purposes, regardless ofthe public weal ceases to be a crime, or to expose the

actors to merited odium and the reprobation of thepeople, the imputations contained in them must beconsidered by the Courts libelous."

It seems to me, your Honor, that that language isparticularly applicable to the case at bar.

Now, if your Honor does not hold with us upon this

6816 point, we submit that the portions of the libel whichhave been held to be libelous, have not been justified.In respect to the charge that there exists in the State a

corrupt combination between Mr. Barnes and Mr.Murphy, evidence has been offered in connection with

the United States senatorship matter. I shall touch

very briefly upon that point. We have contended here

that the word "corrupt" has a far deeper and graver

and more sinister meaning than that which has evi-

dently been given by your Honor.

The Court: Let me understand: Do you claim that"corrupt" means necessarily pecuniary infidelity?

2273


Mr. Wolff: Not necessarily pecuniary infidelity,

your Honor, but it means that a person who has en-

gaged in a corrupt enterprise must have secured to

himself some personal advantage contrary to the pub-

lic interest, whether it be in money or in power or

otherwise.

The Court: In other words, you would not say that a

man who traitorously betrayed his party or his country

simply because he had an evil mind and did not ob-

tain any advantage by it is corrupt?

Mr. Wolff: I should not say that the word "cor- 6818

rupt" would describe it. It seems to me that according

to the definitions as we read them, that corrupt neces-

sarily implies that the person engaged in the corrupt

enterprise must receive some consideration in money

or otherwise, some personal advantage, unlawful or

contrary to the public interests.

Now, in that connection, I want to refer your Honor

to the important case of Littlejohn against Greeley,

13 Abb. Pr., 41, which I think your Honor has read,

where the charge which was made against Mr. Little-

john was simply this: "He was prominent in the cor-

rupt legislation of last winter." Judge Bacon held

that to be libelous per se, and this is what he said with 6 1i 9

respect to the proof necessary to justify that libel:

"That allegation is a charge of personal corruption

in respect to plaintiff-that he 'was prominent in the

corrupt legislation of last winter.' And involving in

that proposition, and stating that as a matter of fact, it

is not, in my judgment, a defense that the legislation

with respect to other persons, and other parties, and

other subjects, was of an improper or corrupt charac-

ter. To make this charge is to impute personal cor-

ruption to the plaintiff; and I hold, therefore: first, that

the publication involves a charge of personal corrup-

tion, and can only be sustained by proof tending to

2274


show that the plaintiff acted and voted under mer-cenary appliances, or, in other words, that he wasbribed to act and vote as he did; or that he derivedsome personal advantage from the acts he performedor the votes he gave. That is my judgment of thecharacter of this libel." That is our contention withrespect to the meaning of this article. A corrupt com-bination between Mr. Barnes and Mr. Murphy. Andas we understand it, your Honor has gone no furtherthan to hold that the existence of such an arrange-ment is only prinma facie and not necessarily corrupt

6821 or improper. Is that correct?

The Court: That is correct.

Mr. Wolff : In other words, as I understand it, uponthe whole case, it must appear that such an arrange-ment had some evil purpose or motive or was con-trary to the public interests, in the last analysis, beforeit can be said to have been a corrupt combination.

It could not conceivably be held that if Mr. Barnesand Mr. Murphy had entered into an arrangement to-gether which would be unanimously agreed to be forthe public interests, which nobody questioned, it couldnot conceivably be held that such an arrangement was

6822 corrupt; and we submit now upon this proposition, notonly our contentions with respect to the meaning ofthe language, but this-that taking the whole case,taking into account all the testimony that has beenoffered both by the plaintiff and by the defendant inrespect to the activities and purposes and ideals of Mr.Barnes in this case, that there is no evidence showingany evil motive or bad purpose, or purposes contraryto public interest, such as would justify a jury in find-ing that such an arrangement, if it existed, was cor-rupt, even in the sense in which your Honor has usedthe word.

2275


I pass now to the other branch of the libel, and per-haps the most important one for this purpose. It ischarged that Mr. Barnes works through a corrupt alli-ance between crooked business and crooked politics.And as proving the charge of that allegation, certainalleged admissions made by the plaintiff to the defend-ant have been offered in evidence. These admissionsrelate to the receipt of campaign contributions underan alleged arrangement expressed or implied, by whichthe contributor was to receive protection in legislativeor executive matters. I earnestly submit to yourHonor that taking this testimony at its par value, as- 6824suming it to be uncontradicted, assuming it to be truein all of its details, it contains absolutely nothing whichestablishes the truth of such a charge against Mr.Barnes.

I submit that in order to bring this charge home toMr. Barnes, the defendant must prove three things:First, that such an arrangement with respect to cam-paign contributions was made; secondly, that Mr.Barnes knew that it was made; thirdly, that either byexpress promise on his part, or by implication arisingfrom definite proof, either as to his position or as toother circumstances connecting him with the matter,he was a party to the arrangement. There is abso- 6825lutely no such proof in this case.

In the first place, I call your Honor's attention tothe fact that this condition of affairs with respect to,Mr. Barnes is charged to have existed in the year 1914,

and it refers to the campaign then being conducted. I

do not take the position that that means that the de-

fendant in his justification must confine himself to the

precise time at which the libel was uttered, but I do

submit that his proof with relation to the condition

that exists, must be confined within reasonable limits,

to within such a distance of time as would enable one

2276


reasonably to infer that such a condition existed at thetime when the charge was made.

The only testimony in this case in respect to thematter consists of alleged admissions made by Mr.Barnes in 1899, fifteen years before the charge wasmade, at a time when he was a young man, thirty-oneor thirty-two years of age, and comparatively of littlepolitical importance.

In view of the importance of this matter, I am go-ing to ask your Honor to. let me direct your attentionspecifically to the testimony; there is very little of it.

6827 The first conversation between the plaintiff and de-fendant appears at page 269 of the record, and the de-fendant says with respect to that conversation: "Atthat point of the conversation the question arose,whether on my initiative or on Mr. Barnes', I do notremember, but I think it was on mine, that Mr. Platthad said to me that certain business men of greatprominence in New York, who would be unfavorablyaffected by the passage of the bill, had been heavy con-tributors to the Republican campaign funds, and thatit had been a surprise to me because they were Demo-crats. Mr. Barnes said that of course Mr. Platt wasentirely right in that position. That men who con-

6-82 2 tributed to both political parties were in Albany or inthe immediate adjacent territory of Albany, two ofthe big business men whose names he gave me, Mr.Robert Pruyn and Mr. Anthony Brady, who were con-nected with the Electric Power Companies there, hadbeen very heavy contributors to the Republican cam-paign fund.

"He did not say-Judge-this is in reference towhat you said upon the bench-I do not remember himsaying that they had contributed to him-I cannot saywhether they were contributions to the State orCounty campaign funds; but they were, the statementswere, that they had been of great use to us; they wereamong the heaviest contributors to the campaign fund.

2277

Motion to Direct Verdict for Plaintiff 6S29

"I said that it was perfectly natural that Mr. Pruyrnshould contribute, that he had been a Republican and 1knew had backed up the Republican party; but that Ihad always understood that Mr. Anthony Brady wasa very strong Democrat, and that the Democratic-that I had seen it stated or heard it stated that theDemocratic member of the Legislature at that timefrom Albany, a man by the name of Kelley, had beenvery much opposed to this bill. That a Democraticmember of the Legislature, Mr. Kelley, had been pro-testing against the passage of the bill on the groundthat it would hurt Mr. Brady's interests; and so I was 6830surprised to learn that Mr. Brady had contributed tothe Republican fund. And Mr. Barnes answered thatMr. Brady contributed, not as a matter of politics, butas a matter of business, because he could not have thegreat interests that he represented exposed to attacksby demagogues and scoundrels in the Legislature. Ibelieve that the expression that he used was that itwould be unjust to the widows and orphans who hadinvested in the concerns of which he was the head. Isay I believe that it was an expression which he usedto me and I think Mr. Barnes used it on this occa-sion."

And on page 272: "My memory of it was that it 6831was a justification by Mr. Barnes of Mr. Brady's at-titude and stand in answer to my question."

"Mr. Barnes said," page 272, "Mr. Brady had toprotect his business interests, fron scoundrels anddemagogues in legislative bodies. 'I think he said inpolitics, but it may have been only in the Legislature';and that he owed it to those whom he representedI think he said the widows and orphans, who had in-

vestments in the corporations of which he was at the

head; and that Mr. Brady had to take such action,that the big business men had to take such action, in

order to protect their own great interests, and that if

2278


the Republican party adopted a populistic or socialis-tic creed, all of the contributions would be made tothe Democracy and to the Democratic party, and thatit was necessary that the Republican party should bekept as the conservative party."

And at page 277, where there was further discus-sion with respect to franchise tax legislation:

"I went over with him in substance, I discussedwith him in substance, a letter of protest I had re-ceived from Senator Platt about it. But I donot re-member, whether in that discussion, whether it was

6833 in that discussion upon that letter or at a previous dis-cussion that we spoke of Mr. Anthony Brady and thecontributions." Then Mr. Bowers' question: "The con-versation you have already given?" (A) "The con-versation that we have already given. But I believethat at least on two, or three occasions we went over insubstance the question of the donation or contribu-tions by men of one political party to the other po-litical, party, or to both political parties at the sametime. And Mr. Barnes justified it on the ground Ihave given. That was not in one conversation only,but it was, I believe, in two, or three."'

And again at page 283, the defendant testified: "I6834 cannot give the words; the substance of the conversa-

tions were urging me to"-then there is some inter-ruption, "Asking me to follow Senator Platt's ad-vice in the matter and assuring me that he spoke withentire friendliness to me and for my interests, as wellas for the interests of the organization, and, in thepublic interests. That he was asking me from thepublic standpoint not to sign the bill."

Now, there is nothing more except the conversa-tions in respect to Mr. Payn. At page 291, the de-fendant testified: "Mr. Barnes stated that he wasagainst Mr. Payn-my memory is that he advisedMr. Platt not to insist upon his appointment, at any

2279


rate, he expressed discontent with Mr. Payn but said

that Mr. Platt was the head of the organization and

that what he said must be backed up, and therefore

Mr. Payn ought to be appointed, and I quoted to him

some of my conversation with Mr. Platt and some of

Mr. Platt's conversation with me in which Mr. Platt

had stated that Mr Payn's relations"-and there

was an. interruption there, and going on: "What Mr.

Platt had said to the effect that Mr. Payn's relations

with certain of the big financial men were such that

for these reasons among others he should be reap-

pointed. Mr. Barnes said that for the reasons alleged 6836

Mr. Platt was right, and that he would have to stand

by him."

Then at page 297: "I had a conversation with Mr.

Barnes, whether on his initiative or on mine I can't

say, in reference to Mr. Platt's statement to. me that

I could not get a successor to Mr. Payn confirmed

because although independent Republicans would vote

for the confirmation of a successor, Tammany Demo-

crats or the machine Democrats-I don't believe he

said Tammany, I believe he said the organization

Democrats-would support Mr. Payn. Mr. Barnes

assured me as Mr. Platt had assured him that that

would turn out to be the case and that I would be 6837

beaten in the effort to remove Mr. Payn."

And finally at page 309, the defendant stated: "Mr.

Barnes stated that the political-that it was essen-

tial to protect the big business interests, because, un-

less they were protected they would not make contri-

butions to the party failing to, protect them; that with-

out such contributions it was impossible to carry on

the organization, and that without organizaion, with-

out leaders, without bosses-he used specifically the

word 'bosses'-party government was impossible.

And he used this phrase: 'The people are not fit to

govern themselves. They have got to be governed by

2280


the party organization, and you cannot run an or-ganization, you cannot have leaders, unless youhave money.'"

That is the whole testimony upon this subject.

The Court: Was anything given yesterday uponthe subject? I have an impression that there wassome sentence given yesterday.

Mr. Wolff: The conversation yesterday was withrespect to Mr. Barnes' testimony to the effect that Mr.Brady had contributed to the Democratic party; had

6839 flooded Albany county with money in support of theDemocratic campaign and had brought about defeatin Albany County of the Republican ticket.

"He stated that the year before, the fall before,when I was running, that Mr. Brady had flooded thecounty with money, with his money, and had beatenus; that he was very sorry but it could not be helped;and he said ordinarily Messrs. Brady and Pruyn hadbeen his-he may have said our supporters insteadof his supporters-had been the supporters of ourside, and heavy contributors; whether the expressionwas used in such a way as to mean they individuallyor as corporations, I don't know- That ordinarily

6840 Messrs. Brady and Pruyn were or had been heavycontributors to our side."

If there is any other proof in the case, your Honor,in respect to this matter, I am not aware of it. I donot believe there is any other proof whatever.

Now, what was the position of Mr. Barnes atthe time of these conversations in 1899? SenatorPlatt was the leader, in complete control and domi-nance of the party as no other leader has been sincehis time. Governor Odell was his lieutenant, and

these two men operated in behalf of others in the

leadership.

2281


There is no proof whatever in this case that Mr.Barnes had any power in State matters whatever.And so far as the proof goes and so far as the factsgo, he was only one of those many minor persons ac-tive in politics who went to make up; the great politi-cal machine headed by Senator Platt and GovernorOdell.

There is no proof that he had any power or in-fluence to bring about or to prevent legislation oneway or the other. He recognized Senator Platt asthe leader and contended with the defendant that hemust be recognized as such. The defendant expressly 6842says that Mr. Barnes did not tell him that any contri-bution was made to him (Barnes) or to. the Republi-can County Committee. The discussions were in theirnature academic, merely the discussion of the condi-tion of affairs existing fifteen years ago, in which thedefendant-

The Court: You do not mean that. It was not adiscussion of affairs existing fifteen years ago. Thediscussion was fifteen years ago.

Mr. Wolff: Yes; they were discussions of condi-tions existing at that time, fifteen years ago.

And Mr. Barnes simply stated as a fact, stated thatwhat Senator Platt had told the defendant was true;he simply stated as a fact that those conditions theryexisted; but that he was responsible for the existenceof those conditions or had anything whatsoever to dowith the correction of them or had any responsibilityfor them whatsoever-there is no word of evidence inthis case to establish. He did not say that he re-ceived the contributions; he did not say that he ever

entered into any arrangement with respect to contri-

butions, and his position in the party, and in politics

was not such as to make him chargeable by impli-

cation with any such arrangements if thcy existed.

2282


He simply admitted the truth of statements claimedto have been made by Senator Platt to GovernorRoosevelt-

The Court: And urged action, assuming that theevidence is taken as proof-urged action because ofthe fact.

Mr. Wolff: Because of the existence of that stateof facts, but that he was responsible for the condition,that he was a party to any such arrangement had notbeen proved by any word of evidence in this case. He

6845 admitted and recognized the condition of affairs atthat time, precisely as the defendant recognized andadmitted the condition of affairs with respect to thedomination of the party by leaders and with respectto the necessity for consultation with such leaders,with respect to legislative and executive matters.

Think of it one moment, your Honor. Is it con-ceivably possible that the defendant in this case whowas a party to the conversation understood Mr.Barnes to mean and to state at the time when he saidthose words that he was working-he, Mr. Barnes,was working through a corrupt alliance betweencrooked business and crooked politics? Is it conceiv-

6846 able that the defendant understood that from that lan-guage? That cannot be. It is impossible that thedefendant would have continued to work with such aman and to co-operate with him, to consult with him,and make him his friend, and dine with him at histable, if he thought that by that language Mr. Barneswas admitting that he worked through an alliancebetween corrupt business and corrupt politics; andthe words were not susceptible of any such meaning.

The charge is of a very serious nature, if yourHonor please. It is utterly destructive of a man'scharacter. It unfits him to hold any position of pub-lic trust. It disentitles him to the respect of honestmen.

2283


And we submit that it is not conceivably possible

that these conversations in respect to conditions exist-

ing fifteen years prior to the utterance of the libel,

constitutes any evidence upon which a jury would be

justified in finding that the defendant has established

the truth of a charge with respect to conditions in

1914. And there is no other proof in this case. And

we submit that the defendant having failed to justify

that charge, that Mr. Barnes works through a corrupt

alliance between business and politics, the plaintiff is

entitled to the direction of a verdict in this case.

The Court: My holding is that not a part of the 6848

article but the article as a whole is libelous per se,

because it charges a corrupt alliance between Mr.

Barnes and Mr. Murphy. I have held independently

of the general charge that there is a subordiante charge

which is libelous per .e; the charge that Mr. Barnes

works through an alliance between corrupt business-

crooked business and crooked politics. It does not

seem to me that any of the other subordinate charges

contained in the article are libelous per se.

As I understand the rule, where a charge is made

which conceivably may have an innocent meaning or

conceivably may have a guilty meaning, the plaintiff

must allege in his complaint that the proper mean- 6849

ing to be given to that charge is the guilty one. And

then it becomes a question of fact for the jury to de-

termine which meaning it properly bears.

Now these other subordinate charges seem to me all

to bear a possible innocent construction, or else to be

merely prophesies as to what will happen in the fu-

ture, and .there being no claim made in the complaint

that a guilty meaning is to be attached to them, I do

not think that I can submit them to the jury as libelous

per Se.

Therefore I shall restrict the jury's consideration of

this article to the two charges which I have mentioned.

2284


First, the general charge contained in the whole articlethat there was a corrupt alliance between Mr. Barnesand Mr. Murphy, and secondly, the charge that Mr.Barnes works through an alliance between crookedbusiness and crooked politics.

Now, as to the evidence in justification, I haveheld and I still hold that such an alliance as is claimedby the defendant to have existed.between Mr. Barnesand Mr. Murphy with regard to the senatorial matter,is sufficient to justify that particular charge to which itrefers. In other words: that such an alliance as the

6 3,1 defendant claims to have existed is prita. fade, a cor-rupt alliance. It may, of course, be explained, it mayof course, have resulted from the best motives. Itmay, of course, be perfectly justifiable. But primafacie, I hold that such an alliance, if it existed, is cor-rupt.

As regards the charge that Mr. Barnes works

through a corrupt alliance between crooked businessand crooked politics, the evidence in justification ofthat charge is slight. It consists solely, as I rememberit, and as you have said, in alleged conversations held

between the defendant and the plaintiff some fifteenyears ago. Those conversations, if they actually oc-

&852 curred, were conversations in which Mr. Barnes, in-duced the State Executive officers to take action giv-ing as his reasons the fact that Democrats had con-tributed to the Republican campaign fund under, asthe defendant claims, an agreement expressed or im-plied that they should be protected because of thosecontributions. Now, I think that that evidence mustbe submitted to the jury in justification of the charge

of this alliance, in which Mr. Barnes is said to haveworked, between crooked business and crooked poli-

tics. I think I will deny the motion and give you an

exception.

2285


Now, you gentlemen, I think, understand fully,

both of you, what I am going to submit to the jury. I

have said to you, possibly not so that it is in the min-

utes, that I shall not submit to. the jury any question

of privilege. I shall hold that notwithstanding Mr.

Barnes was a public officer, notwithstanding that the

article was published in relation to the State campaign

then opening, and notwithstanding the fact that any

citizen may criticise the public acts of an officer, that

where facts are stated which tend to injure the repu-

tation of that public officer, if those facts are not

proved, then they are libelous. So that the sole ques- 6854

tion to be submitted to the jury under my charge that

this article is libelous per se in these two respects is,

first: whether justification is made out of those two

charges, and secondly, if not, and if the jury award

damages because of the injured reputation because of

false charges, they shonld also award punitive dam-

ages and the amount of those punitive damages.

Mr. Bowers: Shall we take an exception now to

that question of privilege or shall we raise it in a re-

quest ?

The Court: Perhaps you better do both.

Mr. Bowers: We take an exception to that part of 6655

the instruction that your 'Honor gave about the ques-

tion of privilege.

Mr. Bowers opens the summing up to the jury in

behalf of the defendant.

Adjourned to two o'clock P. M.

Afternoon session, Wednesday, May 19, 1915.

Mr. Bowers completes the summing up to the jury

in behalf of the defendant.


2286

6856 Charge

Morning session, Thursday, May 20, I915.

Mr. Ivins sums up to the jury in behalf of the plain-tiff.

Adjourned to two o'clock P. M.

Afternoon session, Thursday, May- 20, I915.

Charge to the Jury.

6857ANDREWS, J.:

Gentlemen of the Jury: The time has come whenthe mass of evidence offered here before you is to besubmitted to you for your decision. Before you con-sider it, however, it is essential that you should com-prehend clearly the law applicable to such an actionas this. As I have told you before, your duty is tofollow the law as laid down by the Court. If I amwrong I may be corrected elsewhere; but here and nowin considering this case you are bound to follow outmy instructions.

To publish falsely of another any charge which6858( tends to injure his reputation and so to expose him

to public shame or derision or disgrace is wrong-ful; to do such an act is libelous. The intention withwhich the act is done is immaterial; the object withwhich it is done is immaterial. The most honest pur-pose in the world will not excuse such an act. Ifyou are driving through the street, if you negligentlyrun over a child, you are liable for the damages whichyour wrongful act has caused. Your good intentionsdo not excuse you. And precisely the same ruleis applicable in actions for libel. Nor does it makeany difference that the person falsely charged with an

2287

Charge 6859

offense is a public official or a public character. Heis not an outlaw for that reason. You may criticisehis acts properly; you may criticise his policies, butif you state facts falsely which tend to injure hisreputation, then you are liable for the damages whichyour wrongful act has caused.

Now, I say this because in this case there has beensome talk of the question of privilege. Under certainconditions the law with regard to privilege is impor-tant. It is not so here. Here that law is immaterial,and you may put any question of privilege entirelyfrom your minds. So I say to you again, that if 6860the defendant, or any defendant, publishes falsely con-cerning another, charges which tend to injure his repu-tation and so expose him to public ridicule or dis-grace, he has committed a wrongful act.

You will see from what I have said that when suchcharges are made there is but one defense. That is thetruth. If the charges are true there is no libel. Youhave the right to publish the truth concerning any one.The truth of the charges is a complete answer to thecomplaint. But it is the duty of one making thosecharges to show that they are true. You all know themaxim of the criminal law that a man is presumed tobe innocent until he is proved to be guilty. Precisely 6861the same rule applies in the civil law. Innocence ispresmned. A man is presumed to be sane; a manis presumed to do right and not wrong; a man ispresumed to act legally and not illegally. So thereis nothing peculiar in the law of libel with regardto this matter. There is nothing strange in the rulethat requires the defendant who has made chargesagainst another to show that those charges are true.When the Court rules that an article published is libel-ous per se, when it rules, in other words, that thatarticle contains charges which tend to injure a man'sreputation, all the plaintiff has to do is to put that

2288

6862 Charge

article in evidence and then rest. When the plaintiffhas done that two courses are open to the defendant.He may admit that he has done wrong; he may admit

that he has published a libel concerning the plaintiff,'and then the jury determine what damages shouldbe awarded against him for that wrongful act; or hemay attempt to prove the truth of the charges, and

if he succeeds, as I have said to you, then he has madea complete defense. If he chooses the latter course,if he chooses to attempt to prove the truth of thecharges, he offers evidence to that effect, evidence in

6863 justification of his act; and that is precisely whatwe lawyers mean when we talk of evidence in justi-fication in a libel suit. The justification may be of thewhole libel or of a part of it. A man may be chargedwith being a thief and a murderer. The defendantmay justify both charges. In that case a verdict neces-sarily is rendered in his favor. Or he may justifyone of the charges; he may prove that the plaintiff is amurderer. If that is done, no damages can be allowed

for the charge so justified. The damages to be al-lowed are only those occasioned by the charge whichwas false.

As I have said, the burden of proof so far as justi-

6864 fication is concerned is on the defendant. The defend-ant is bound to satisfy you by a fair preponderance ofevidence that what he has said is true. By a fairpreponderance of evidence I do not mean necessarilythe mere number of witnesses called upon the one sideor upon the other. I mean this: That when you haveconsidered the testimony, when you have made up yourminds what you believe and what you disbelieve, then

there must be some excess-it need not be much; it

may be very little-but some excess of credible testi-

mony, testimony which you believe, in favor of the

contention of the party on whom the burden rests.

2289

Charge 6865

I hope, gentlemen, that you understand my ex-planation so far; take a concrete case, such as this,for example. The plaintiff offers in evidence the al-leged libel. The Court then determines whether ornot it is libelous. If the Court says that it is, thenproofs are offered that it was published by the de-fendant concerning the plaintiff. The plaintiff thenrests. Thereupon the defendant starts to prove thetruth of his various charges. If he succeeds, thatends the case. If he fails, the jury must award tothe plaintiff such damages as may have been causedto him by those charges or. that charge which are or 6866which is unproved. These are the damages that hehas actually sustained by reason of the injury to hisreputation, and where the defendant fails to provethe truth of one or more of these charges, the plain-tiff is entitled in any event to the actual damageswhich he has sustained.

Now one step more. Where the plaintiff has suc-ceeded so far in the case, where, in other words, thedefendant has not justified the libel, where some dam-ages in any event must be awarded to the plaintiff,then if the jury are satisfied that the libel was pub-lished with actual malice in the defendant's mind, orpublished under such circumstances as show on his 6867part a reckless and wanton disregard of the plaintiff'srights, the jury may award what are known as puni-tive damages; they are damages not intended to com-pensate the plaintiff for the actual injuries which hehas sustained, but they are damages in the nature ofa fine; they are damages intended to prevent the re-petition of the offense; damages intended to punishthe defendant for the wrong which he has done. Inawarding these damages the jury may consider theextent, the nature of the malice which has been shown.

You will notice that I have said that punitive dam-ages may be awarded when malice is shown, or where

2290

6868 Charge

wantonness or recklessness is shown. When youcome to this question, if you come to it, the burdenof proof is on the plaintiff. He is bound to show theexistence of malice; he is bound to show recklessnessor wantonness. The same rule applies in this regardto the defendant as I have stated to you applies tothe plaintiff. He is presumed to be innocent; he ispresumed not to be malicious, not to be wanton, notto be reckless; and the burden, I say to you again, ofshowing those facts rests upon the plaintiff.

Malice is a state of mind. You are bound to show

6869, the existence or the non-existence of that state of mindby circumstantial evidence. Direct evidence is im-possible; but practically anything which tends to dis-prove malice in the defendant's mind when the libelwas published is competent. And that is the mean-ing of a very great deal of the evidence which hasbeen received before you in this case. It is evidencebearing upon the defendant's state of mind one wayor the other. The plaintiff may prove, for instance.as showing malice, quarrels between himself and thedefendant prior to the publication of the libel. Hemay show threats made by the defendant, he mayshow other publications made by the defendant; he

6870 may show anything which tends to prove that thedefendant was actually malicious in what he did. Onthe other hand, the defendant may offer in evidenceanything which tends to prove the non-existence ofmalice. He may show friendship with the plaintiff;he may show that the occasion on which the libel was,published was such as to disprove malice in makingthe publication; he may show that he heard fromothers in whom he believed a statement of the chargeswhich he later made; that he read those charges inthe papers and believed them to be true; anythingtending to disprove the existence of malice in hismind at the time when the publication was actuallymade.

2291

Charge 6871

This kind of evidence is called evidence in mitiga-tion. It has not anything to do with the actual dam-ages which the plaintiff has sustained by reason ofthe libel; it does not increase or decrease those dam-ages; it simply bears upon the question of how much,if any, punitive damages should be awarded by thejury.

Now once more, so that you may clearly under-stand the distinction between the two. Evidence injustification is evidence bearing on the truth of thealleged libel. It raises the question as to whetherany damages at all should be allowed to the plaintiff. 6872Evidence in mitigation is important only when thejury find that the plaintiff has been libeled and is,therefore, entitled to some damages; it raises the ques-tion as to whether any or how much punitive damagesshould be allowed.

You have heard several times the contents of thisarticle which is complained of here. It is not neces-sary that I should read it to you again; it is not im-portant that I should read it to you, nor is it im-portant that you should remember what it contains.As I have said to you, you are bound to follow theinstructions of the Court as to the meaning of thatarticle; you are bound to disregard those parts of 6873it which I say are not libelous, and to fix your mindssolely upon those parts which I charge to be libel-ous.

I have held that that article is libelous per sein two regards. I have held that it charges a corruptpolitical alliance between Mr. Barnes and Mr. Murphyin regard to the government of this State. I -haveheld that that is the meaning and the purport of thearticle as a whole, and you are to consider the ar-ticle as making that charge. I have held, in the sec-ond place, that it is libelous per se because it also

charges that Mr. Barnes has worked through a cor-

2292

6874 Charge

rupt alliance between crooked business and crookedpolitics. All the other charges in the article are im-

material. There is nothing else in it that is libelous.

There are simply those two charges upon which you

must fix your minds, the charge that there was a

corrupt political alliance between Mr. Barnes andMr. Murphy, and the charge that Mr. Barnes worked

through an alliance between crooked business and

crooked politics.It was conceded at the outset of the case that this

article was published by the defendant, and that it

6875 was published of and concerning the plaintiff. There-fore the only question which you have to consider iswhether or not it is true with regard to those two

specific points which I have submitted to you; and as I

have said, in considering that question you will re-

member that the burden of proof is upon the defend-

ant to show the truth of his charges.We will take up those two charges in their order.

The first is the charge of a corrupt combination be-

tween Mr. Barnes and Mr. Murphy. I have held, I

think in your presence, that "corrupt" does not neces-

sarily refer to illicit pecuniary gain; that it is not

simply synonymous, in other words, with venal. Cor-

6 876 rupt may mean tainted, perverted, dishonest, pervertedfrom fidelity in the discharge of duty, unfaithful totrust.

Giving the word "corrupt" the meaning which Ihave indicated, is it true that there was such a corrupt

alliance between Mr. Barnes and Mr. Murphy? Ofcourse you yourselves know (it is hardly necessary

that I should explain to you) that the mere fact that

upon certain occasions Republicans and Democrats

voted together, that Republicans and Democrats to-

gether supported or opposed some bills, even if advised

to do so by the plaintiff, would not be sufficient to

show that the plaintiff's action was corrupt. Take

2293

Charge 6877

the Hart-Agnew bill, the Race-Track bill, for in-stance. Mr. Barnes had the right, if he thoughtproper, if he thought it wise, to oppose that bill; hehad a right in opposing that bill to argue against it,to urge Republicans and Democrats to vote againstit. Take the Direct Primary Bill; precisely the samething is true of that. Mr. Barnes had the right tooppose that bill; he had the right to advise Republi-cans and Democrats to vote against it. Take the elec-tion of Mr. Allds. Mr. Barnes had the right to sup-port or to oppose Mr. Allds. Take Governor Hughes'administration. Mr. Barnes had the right to support 6878that administration or to oppose it, to support billswhich Governor Hughes advised or to oppose them.Because he did those things, if he did do them, is no

evidence at all in support of this charge of corrup-tion. But there is some evidence on that subjectwhich I submit to you for your consideration. Thatevidence relates to the Senatorial situation in 1911.

If Mr. Barnes as leader of the Republican partyagreed with Mr. Murphy as leader of the Democraticparty that he would keep the Republicans steadfastin voting for 'Mr. Depew, not for the purpose of bene-,fitting the State, not for the purpose of obtaining abetter or a more useful Senator, but for the purpose 6879of allowing Mr. Murphy a free hand in the selec-tion of any Democratic Senator that he (Murphy)

might desire, then I say to you that prima facie youmay find that such an agreement, such an alliance, was

corrupt. Prima facie-that means on the face of it;that means in the absence of explanation. Such an

agreement might be explained; such an agreement

might be in fact innocent; such an agreement might

be in fact for the best interests of the State, but prima

facie it would be improper.So the question comes directly toyou, was there

such an agreement made between Mr.. Barnes and

2294

6880 Charge

Mr. Murphy, and if made, was that agreement cor-rupt? Corrupt in the sense that it showed a disre-

gard of his duty as head of the Republican Party byMr. Barnes?

You will remember that the most direct evidence

bearing upon that question is that given by the threewitnesses, Mr. Loeb, Mr. Franklin D. Roosevelt, andMr. Wainwright, who testify to conversations whichthey allege they had with Mr. Barnes. You will re-member that Mr. Loeb testified that some time in thewinter of 191 I, while this Senatorial controversy was

6881 on, he had an interview with Mr. Barnes at luncheonat the office of Bache & Co. in New York, and that Mr.Barnes there told him that he had an arrangement withMr. Murphy that Mr. Barnes was not to interferewith Murphy's plans about the Senate. You will re-member that Mr. Franklin D. Roosevelt testified thathe had a conversation with Mr. Barnes on FebruaryI5 th or 2oth, 1911, also while this Senatorial contestwas going on. He said he told Mr. Barnes that heunderstood or that he had heard that it was under-stood and agreed between Barnes and Murphy thatthe Republicans should remain steadfast for Depew

so that the Democrats could have free chance to elect

6882 Sheehan; and he says that when he made that state-ment to Mr. Barnes, Mr. Barnes did not answer. The

claim of the defendant is that such a statement somade under those circumstances called for an answer,and that Mr. Barnes' failure to answer it was equivalentto an admission of the truth of the statement. Mr.Wainwright says that he was a Republican Senatorduring the contest of 1911 ; that at one time prior tothe fire, which occurred three days before SenatorO'Gorman was finally elected, he had an interviewwith Mr. Barnes; that he proposed a combination be-tween the Republicans and the Independent Democrats,and that after some talk Mr. Barnes finally said to

2295

Charge 6883

him no, that would be impossible; "word had been

given to the Democrats that we would keep our hands

off."

In addition to those witnesses the defendant has

offered in evidence various editorials which you will

remember but which I haven't at hand; editorials writ-

ten or approved by Mr. Barnes, in which it is alleged

statements were made only consistent with this claim

of a combination made with the Democrats. That

Mr. Barnes had the power at this time to make such

an agreement the defendant claims is shown by va-

rious talks had between Mr. Barnes and Mr. Roose- 6884

velt, by various editorials published in the Albany

Evening Journal, and by various occurrences at the

time of the passage of the Hinman bill and various

other bills in Albany. That Mr. Murphy had the

power to make such an agreement the defendant says

is shown by admissions made in one or two editorials

offered in evidence, published in the Albany Evening

Journal, which are said to have been written by Mr.

Barnes or written under his direction.

That substantially is the defendant's case upon this

point, upon the question as to whether or not thisimproper agreement was madle between Mr. Barnes

and Mr. Murphy. 6S85

On the other hand, the plaintiff, Mr. Barnes, denies

that any such agreement was in fact made. He says

that he never knew Mr. Murphy, that he never saw

him but on one occasion, and that never, directly or

indirectly, did he have any political conversation with

him, and that he never, directly or indirectly, made

any political agreement with him. The plaintiff says

that the fact of such an agreement is also negatived

by a letter which he sent to the Republican leader in

the Senate and in the Assembly a day or two before

the election finally took place. He says it is nega-

tived by his conversations with Mr. Stetson on March

2296

6886 Charge

28th, 191 I, and by these various meetings which hehad with Senators and Assemblymen in his house atabout the same time. He says that the evidence ofSenator Brackett, of Senator Brown, and others, showsthat he was all this time really endeavoring to keepup a factional fight in the Democratic party; that hewas all this time working for what he believed wasthe best interest of the Republican party, and thatwhen he made up his mind that a combination withthe Insurgent Democrats would be politically advis-able, he found that he could not accomplish it because

6987 he did not have the power, did not have the dom-inance which he is charged to have had. And hesays that he has called a very great number of mem-bers of the Senate and of the Assembly who testifythat they were there during the session of 1911, andthat they had no conference with Mr. Barnes and werenot influenced by him in any way.

So far as Mr. Loeb's testimony is concerned, youwill remember that the plaintiff called three witnesses,Mr. Wollman, Mr. Erb and Mr. Towsley, who claimthat they were present at the only luncheon party atBache & Co.'s office where Barnes and Loeb ever met,

and that that luncheon party took place not during

6888 the Senatorial contest of 1911, but a year or a yearand a half later. You will remember next, that Mr.Loeb was recalled to the stand and that he gave evi-dence tending to show that he was not mistaken in hisearlier testimony; evidence tending to show, as thedefendant claims, that the only time when he couldhave talked with Bache & Co. about taking anotheror a new position was substantially at the time whenhe says the luncheon took place; that later, he was en-gaged with Guggenheim & Sons, and that it would beimpossible that he could have had such a talk as Mr.Towsley, Mr. Erb and Mr. Wollman say as late as thedate at which they place this luncheon. Then, finally,

2297

Charge 6889

you will remember that Mr. Gleason was called andtestified to some conversation with Mr. Loeb early in1911, which contradicts, as the plaintiff says, Mr.Loeb's version of the transaction; and you will re-member that Mr. Loeb denied that any such conver-sation took place.

Gentlemen, that is a pure question of fact for yourdetermination. The charge is that there was a corruptalliance between Mr. Barnes and Mr. Murphy. Thejustification is that the charge is true, that there wassuch a corrupt alliance, and that this Senatorial situa-tion in 1911 proves it. 6890

I say to you first, the charge of that corrupt alli-ance is libelous if it is false. I say to you secondly,that if there was such a combination as the defend-ant claims to have existed in regard to this Senatorialmatter in 19 11, the charge is not false, the charge isjustified. It is for you to determine what the truthis. It is for you to determine whether or not therewas, in fact, such an alliance between Mr. Barnesand Mr. Murphy with regard to the election of theUnited States Senator in the winter and spring of1911.

The second charge which I have held to be libelousis that Mr. Barnes worked through an alliance be- 6 S91tween crooked business and crooked politics.

There were two classes of evidence offered in jus-tification of this charge. For some days, we sat hereand listened to evidence with regard to the printingsituation in Albany. I could not tell until this evi-dence was all in, neither could the defendant's attor-neys who were offering it, tell until it was all in.whether there would be enough of it to be submittedto you. There were scattered facts here and there;there was one piece of evidence from one man andanother from another. Until it was all put together,

2298

6992 Charge

until you could tell just what conclusions were to bedrawn from it, it was impossible to rule whether itwould finally become competent or not; and when itwas all in, when it was all before the Court, you willremember that I held that there was not enough of it

to justify this particular charge concerning which itwas offered. Now, you have heard that evidence.It may be more or less in your minds, but I say toyou that it has nothing to. do with this case; I say to

you that if you allow it to influence your verdict inthe slightest, you will be false to your duty. That

6893 evidence is out of the case; that evidence you are toput from your minds.

But there is some other evidence which I have leftin this case as being, if true, competent in justificationof this particular charge. It is evidence which bringsin question sharply the recollections, of the parties tothis action. It consists solely in conversations allegedto have taken place between Mr. Barnes and Mr.Roosevelt; conversations which one party says did takeplace and which the other party denies. The chargeis that of working through an alliance between crookedbusiness and crooked politics. Mr. Roosevelt says thaton various occasions Mr. Barnes stated to him that his

6$94 committee was receiving contributions from Demo-crats and Republicans under the implied agreementthat the private business interests of the contributorsshould be protected both in the Legislature and withthe executive officers of the government. Of course,a Republican has a right to make contributions, if hewishes to, to the political party to which he belongs.

He has a right to make contributions, if he wishes to,

to the other political party, if he believes that his own

party is in the wrong and the other party is in the

right. A Democrat has a right to do precisely the

same thing. But neither a Republican nor a Democrat

2299

Charge 6895

has the right to make political contributions to a politi-

cal party in exchange for pledges, express or implied,

that his private interests, his private business will be

protected-pledges which - require action contrary to

the public good.

The claim is that Mr. Barnes admitted that that

was precisely what was being done, and because it was

being done he endeavored to change the attitude and to

alter the action of the Governor- of the State. On the

other hand, Mr. Barnes denies, first, that any such

contributions were in fact made, and, secondly, that he

at any time to anyone made such an admission or took 6896

any such action.

Again I say to you, these are the two precise issues

which you have to determine. Was it true that there

was a corrupt combination between Mr. Barnes and

Mr. Murphy? Was it true that Mr. Barnes worked

through an alliance between corrupt business and cor-

rupt politics? If both those charges were true, the

publication of the article was justified, and there can

be no recovery in this case. If neither of the charges

was true, the plaintiff is necessarily entitled to a ver-

dict. If one of the charges only was true, still the

plaintiff is necessarily entitled to some verdict. It is

a question purely for your determination. 6897

Gentlemen, we have heard a good deal in this case

about the political history of the State and of the

country. All of us, I assume, have political pre-

possessions of one kind or another; but we are not here

to be influenced by anything except the evidence in

this case. If you allow yourselves to be swayed by

passion or by prejudice or by friendship or by sym-

pathy; if you allow your minds to be influenced by

anything except the evidence as you have heard it

sworn to before you, you are just as false to your duty,

just as unfit to sit on that jury as I would be if I

allowed my mind to be swayed by anything except my

2300

6898 Charge

opinion as to what the law is. Now, I don't say thatin warning. I do not believe that you twelve men,chosen as you were, will consider anything except thefacts as I have submitted them to you.

You are to take these witnesses; you are to considertheir appearance on the stand; you are to consider theprobabilities of their stories; you are to draw anyproper inferences which should be drawn from thisevidence, and then you are to make up your mindsfairly and honestly and justly as to what the truth isin this case.

6399 As I have said to you, if this libel is justified, ifthese charges are true, that ends this case. If thislibel is not justified, if these charges are not shownto be true, you are bound to find a verdict for theplaintiff; and if you find a verdict for the plaintiffyou must fix the amount of the damages (actual dam-ages I am talking about now) which you will allowhim. In an action for libel there is no legal measureof damages. It is largely a matter which is confidedto the discretion of the jury. What you should tryto do, if you allow damages at all, is, to pay the plain-tiff for the injury to his reputation, for his woundedsense of pride and honor, and you may consider the

6900 situation of the parties, the nature of the charge. thenumber of people who saw the publication-anythingof that kind which will help you fairly to determinewhat the plaintiff is entitled to, if he is entitled toanything. Then, as I have said to you, if you findthat the plaintiff is entitled to damages, the secondduty is placed upon you, the decision as to what, ifany, punitive damages you will allow. That depends,as I have also told you, upon the question whetheror not the defendant is shown to have published thearticle maliciously or wantonly or recklessly. A great

deal of the evidence in this case bears directly upon

that point. I again say to you, the burden of proof

2301

Charge 6901

in this matter is upon the plaintiff. The plaintiff isbound to show the existence of malice. As bearingupon that point the plaintiff called a Mr. Hutchinson,who describes an interview which he alleges he hadwith the defendant some time in the year 1914, JulyI5 th, 1914, in which he says that the defendant toldhim substantially that the Republican party was notlarge enough to hold him and Barnes, and that Barnesmust be gotten rid of-something of that kind. That

evidence the plaintiff offered as tending to show thestate of the defendant's mind just before this articlewas published. The plaintiff further says that he and 6902the defendant were on friendly terms until the meetingof the State Committee in 191o. He says that at thattime a quarrel arose between himself and the defend-ant about a political difference and the question as towho should be made temporary chairman of the StateConvention. He says that that quarrel was accen-tuated by occurrences at the National Convention in1912, when he supported another candidate than thedefendant. He says also, as showing malice on thedefendant's part, that there is the fact that similarcharges were made at other times by the defendant,both before and after the publication of this particulararticle. He says that the answer itself shows malice 6903on the part of the defendant in that it attempts tojustify the article in question. The rule of law inthat regard is that if the defendant attempts to justifythe libel and if the jury find that such justification wasset up in bad faith, they can take that fact into con-sideration on the question of punitive damages. Theplaintiff further says that this evidence relating to thedefendant's connection with Senator Platt during the

years from 1898 until Senator Platt's death shows that

he had no honest dislike of bosses or domination in

the party as such. The plaintiff finally says that some

evidence with regard to political contributions received

2302

6904 Charge

by the National Committee when the defendant him-self was running for President shows that the defend-ant had no honest dislike for political contributions re-ceived under pledge. In answer to that last proposi-tion the defendant says that while contributions werereceived by the National Committee, they were re-ceived under the distinct underst anding that no pledgeof any kind was involved, and I must say to you thatthere is no evidence in the case which would justifyyou in finding that any contributions so received bythe National Committee were received improperly or

6905 wrongfully, or that the defendant had any connectionwith any wrong or any impropriety at that time. Thedefendant says that so far as his relations to SenatorPlatt are concerned, he was the Republican Governorof the State; that Senator Platt had control of theRepublican organization, and, in consequence, of amajority of the Republican members of the Assemblyand of the Senate; he says that if he was to accom-plish anything it was necessary for him to be at leaston tolerable terms with Senator Platt, otherwise noact advocated by him, no appointment made by himcould be advocated or confirmed successfully; and hesays that while under those conditions he did remain

6906 on friendly terms with Senator Platt, not yielding any-thing improperly, not yielding his own conscience oropinions, but bringing Senator Platt to support him.

He says next that this article was published with-out malice on his part. He says that he had no illwill, no bad feeling toward Mr. Barnes; that he pub-lished the article because he believed in it; that hebelieved it because of various conversations which hehad had with Senator Hinman, Senator Agnew, andothers, who had told him facts which led him to be-

lieve that these charges were true. He says that he

believed it because he saw certain articles in magazines

and papers which he trusted; because he saw what is

2303

Charge 6907

known as the Bayne report relating to the printingsituation in Albany; that he believed that that Baynereport was true and talked with men in whom hetrusted concerning that Bayne report. He says thathe believed it because of various conversations whichhe had with Mr. Barnes which he details before you,conversations relating to Mr. Barnes' dominance in theparty and relating to other matters. And he says,finally, that the article was published without malice,but in good faith, at a time when such an article wastimely, under circumstances which properly led to itspublication, during the heat of a political campaign Q908and in support of a man who, he thought, would be themost suitable and the strongest candidate for Governor.

That, gentlemen, substantially is this case. I havenot attempted at length to detail this evidence beforeyou. That would Le quite useless. I have stated thepoints which seem to me perhaps the most strikingand the most important, but I do not wish you to un-derstand from that that I take from your considerationany part of this evidence. There may be other things,reference to which I have omitted, which you willremember and which you will think should be con-sidered. If so, consider them. I do not determineupon just what part of this evidence you will base your 6909decision. You are to take it all, you are to rememberit all so far as you can, and you are to make your de-cision upon the whole of it.

Perhaps I should say to you that my decision as tovarious motions which have been made in this case,motions to strike out evidence, motions for the direc-tion of a verdict, motions for a non-suit-various mo-tions, in no way indicates my own opinion as to thedecision which you should reach. I leave that to you.There is a fair question of fact here, a fair disputebetween these parties, and when that is so, it is your

business, not mine, to determine it.

2304

6910 Plaintiff's Requests to Charge

Gentlemen, take the case. As I have said to youbefore, put from your minds everything which mayunfairly or improperly influence you; put away allpolitical feelings, all political prejudices, all politicalfriendships. Remember, as I said once to you before,that you are here just as much as I am, to do equaljustice between these parties.

A Juror: I would like to ask in what formour verdict should be rendered, whether itshould be oral or sealed or how?

The Court: If you find for the defendant,6911 the form of your verdict will be, "We find for

the defendant." If you find for the plaintiff,your verdict will be, "We find for the plaintiffin the sum of (blank) dollars," putting in theamount of your verdict.

Mr. Wolff: We except to so much of your Honor'scharge as charges that the article is libelous only inthe two respects mentioned in the charge, and that allthe other portions of the article are immaterial.

We except to so much of your Honor's chargeas states that there is any evidence in justification ofthe charge of a corrupt combination between Mr.

6912 Barnes and Mr. Murphy.We except to so much of your Honor's charge as

charges the jury that if Mr. Barnes agreed with Mr.Murphy that he would keep the Republicans voting forMr. Depew for the purpose of giving Mr. Murphya free hand in the election of such United StatesSenator as he might select, that this may be foundto be a corrupt alliance.

We except to so much of your Honor's charge asholds that there is any evidence to go to the jury injustification of the charge that Mr. Barnes worksthrough an alliance between crooked business andcrooked politics.

2305

Plaintiff's Requests to Charge 6913

We ask your Honor to charge the jury that theplaintiff is entitled to a verdict for damages sufficientto compensate him for the damage suffered by reasonof the utterance of the libel in suit.

Denied. Exception for plaintiff.

M11r. Wolff: We ask your Honor to charge the jurythat the defendant, having undertaken to justify thelibel, must make out on his part affirmatively andclearly the truth of the publication. It will not besufficient for him to raise a doubt whether it may ormay not be true, but the fact must be proved with such 6914certainty as to form the basis of a just and reason-able conclusion that the libelous charges are true.

The Court: Denied. I refuse to charge further onthat subject than I already have.

Exception for plaintiff.Mr. Wolff: We ask your Honor to charge the jury

that the testimony of Mr. Herbert Vreeland, with re-spect to campaign contributions, has been stricken out,and that it is the duty of the jury to eliminate itwholly from its mind.

The Court: That is so.Mr. Wolff: We ask your Honor to charge the

jury that the defendant has wholly failed to connectthe plaintiff in any way with rottenness in the variousdepartments of the State, and the testimony with re-spect to the existence of such rottenness has, there-fore, been stricken out, and such proof forms no justi-fication whatever for the libelous statement, and itis the duty of the jury to eliminate it from its mindand to disregard it.

The Court: That is so.Mr. Wolff: We ask your Honor to charge the jury

that no inference against the plaintiff can be drawnbecause of his failure to deny or to explain factswhich were admitted in evidence before the jury but

2306


which have since been stricken out of the case by theCourt. Such evidence was stricken out of the casebecause it did not prove to be material to the issues,

and thereupon it became the duty of the Court to

exclude any testimony which might be offered by the

plaintiff in denial or explanation of such immaterialtestimony, and plaintiff was therefore precluded fromsuch denial or explanation.

The Court: That is so.

Mr. Wolff: We ask your Honor to charge the jury

that the portions of the Bayne report which have been

6917 read in-evidence were admitted solely in mitigation ofpunitive damages and not in justification. This re-

port does not prove the truth of any of the statementscontained therein, and the jury is not to regardany of the statements contained in this report as true

merely because they are therein stated to be true,

and the report itself is no evidence of the truth ofsuch statements.

The Court: That is so.

Mr. Wolff: That if the jury finds that the defend-ant read the Bayne report and relied upon the state-ments therein contained in uttering the libel, this may

be taken into consideration upon the question of de-

6918 fendant's malice. It has no other materiality to thecase and no bearing on the question of compensatorydamages.

The Court: That is so.Mr. Wolff: We ask your Honor to. charge the jury

that what has been said with respect to the Bayne re-

port applies in its entirety and with equal force to the

various magazine articles and newspaper reports

which have been read in evidence which the defendant

claims to have read and relied upon in uttering the

libel. The jury may not regard any of these articles

or reports as proving the truth of any of the state-

ments contained therein.-

230T


The Court: That is so.Mr. Wolff: We ask your Honor to charge the jury

that even if there was a complete absence of maliceon the part of the defendant, or even if the motive ofthe defendant in uttering this libel was good and vir-

tuous and deemed by him for the public interest, andeven if he had reason to believe the statement to betrue, and was actuated by an honest or even commend-able motive in making the publication, he cannot es-cape the payment of the actual damage done, unlesshe justifies the libel by proving that the charges madeare true. 6920

Thd Court: I refuse that on the ground that I havealready charged it. I shall not repeat in the form ofa request anything that I have already charged.

Mr. Wolff: I think that is so.

We ask your Honor to charge the jury that proofof the repetition of the libelous matter may be takeninto consideration by the jury as bearing upon the de-gree of malice, if any, which actuated the defendantin uttering the libel complained of.

The Court: That is true.Mr. Wolff: We ask your Honor to charge the jury

that an arrangement between the plaintiff and theleader of the Democratic organization is not in itself 6921necessarily corrupt or improper. In order to deter-mine finally that such agreement or understanding is

corrupt or improper the jury must find that it was forsome evil or improper purpose or actuated by some

evil or improper motive or was contrary to the public

interest.The Court: That is so. I think I have already

charged substantially that.Mr. Wolff: I think so, your Honor.

Mr. Bowers: I take an exception to that charge.

Mr. Wolff: We ask your Honor to charge the jury

that the jury may take into account in considering

2308


whether or not the plaintiff was endeavoring to bringabout the election of Mr. Sheehan as United States

Senator, as claimed by the defendant, the evidence to

the effect that this. result might have been accom-plished by causing the Republicans to remain away

from the joint session of the Legislature, but thatthere is no proof that he did so, but that on the con-

t-rary there is evidence that he affirmatively acted by

urging Republicans to attend the joint session of theLegislature, in order that Mr. Sheehan's electionmight not be accomplished.

6923 The Court: That I refuse. The jury may take intoconsideration all the evidence in the case as bearing

upon every point and all proper inferences to be drawnfrom that evidence.

Exception for plaintiff.Mr. Wolff: We ask your Honor to charge the jury

that the only evidence in the case which tends toprove the truth of the charge that the plaintiff worksthrough an alliance between crooked business andcrooked politics consists of certain alleged admissions

claimed to have been made in conversations between

the plaintiff and the defendant in or about the year1899 with respect to the receipt of campaign contribu-tions under the arrangement, express or implied, that'

the contributors would be protected in legislative or

executive matters. It is necessary for the defendant

to connect Mr. Barnes with this charge by proof, and

in order to make such connection the defendant must

prove by a fair preponderance of evidence three

propositions:

i, that such an arrangement with campaign con-

tributors was made;

2, that the plaintiff knew that it was made; and,

3, that either by express promise on his part or by

implication arising from the defendant's proof either

2:309


as to his position or as to other circumstances con-necting him with the matter, he was a party to the ar-rangement.

If in the opinion of the jury the defendant hasfailed to prove by a fair preponderance of evidenceany one of these three propositions, then the defend-ant has failed to justify the charge that Mr. Barnesworks through an alliance between crooked business

and crooked politics, and the verdict of the jury mustbe for the plaintiff.

The Court: The jury must find, first, that therewere in fact contributions made under an implied 6926

promise of protection; secondly, that Mr. Barnes knewof the fact; thirdly, that knowing of that fact Mr.Barnes endeavored to carry out that promise, or madethe promise himself.

Mr. \Volff: I except to your Honor's refusal tocharge, if your Honor has refused to charge, that it isnot necessary for the defendant to prove that Mr.Barnes-

The Court: You except to my refusal to charge andyou except to my charge as made?

Mr. \Volff: Yes.We ask your Honor to charge the jury that the

libel was uttered in July, 1914, and charges that the 6927

alleged alliance between crooked business and crooked

politics existed at that time, and in order to establish

the truth of this charge the jury must find that this

condition existed in the year 1914 when the libel was

uttered, and in this connection the jury is entitled to

take into consideration the fact that the only proof in

the case relating to this matter consists of alleged ad-

missions claimed to have been made in or about the

year i899, about fifteen years prior to the utterance

of the libel.

Refused. Exception for plaintiff.

2310

692 S Defendant's Requests to Charge

Mr. \Volff: \We ask your Honor to charge the jurythat if the jury finds that there existed an agreementin connection with the United States Senatorship in191I, that this does not necessarily establish the ex-istence of a combination between Mr. Barnes and Mr.Murphy in 1914, three years later, at the time the libelwas uttered.

The Court: I refuse.Exception for plaintiff.

Mr. Van Benschoten: If the Court please, the de-tiff is a public officer or a public character as re-

6929 fendant excepts to that portion of your Honor's chargewhich states that it makes no difference that the plain-gards the publication of a libel.

We also except to that portion of your charge whictsays the question of privilege has no importance inthis case.

Also to that portion of the charge which charges thejury that the article contains two libelous charges.

Also to that portion of your Honor's charge whichstates that the evidence as to the Hart-Agnew Bill andas to the primary legislation can only be consideredupon the question of domination.

The Court: I don't think I said that in my charge,

6930 but I said it earlier in the case, and you may have anexception to it when I did say it.

Mr. \an Benschoten: W e except to that so far asyour Honor has charged that that could not be takeninto consideration as justifying either one of the libel-ous charges.

We ask your Honor to charge that in order forthe jury to find that Mr. Barnes and Mr. Murphy had

entered into an arrangement regarding the election of

a United States Senator, it is not necessary that they

find when or how or where such arrangement was

made.The Court : Of course it is not.

2311

Defendant's Requests to Charge 6931

Mr. Van Benschoten: We ask your Honor to chargethat in order for the jury to find that Mr. Barnes andMr. Murphy had entered into an arrangement regard-ing the election of a United States Senator, it is suffi-

cient that they find the fact that such an arrangementexisted, and it is immaterial whether such an arrange-ment existed as a result of a personal conference be-tween Mr. Barnes and Mr. Murphy, negotiations car-ried on through third parties, or a concert of action.

The Court: That is true.Mr. Van Benschoten: That in considering the evi-

dence offered by the plaintiff as to his failure to speak 6932to certain Senators and to certain Assemblymen re-garding the Senatorial contest, the jury may take intoconsideration the evidence in the case to the effect thatfor a political leader to accomplish his will it is notnecessary for him to communicate with public officials.

The Court: That I refuse. As I have said oncebefore, the jury may take into consideration any or allof the evidence in the case and the proper inferencesto be drawn from that evidence.

Exception for defendant.Mr. Van Benschoten: That the occasion on which

the publication complained of was issued by the de-fendant was privileged. 6933

Refused.Exception for defendant.Mr. Van Benschoten: That before the plaintiff can

recover upon a publication which was issued upon a

privileged occasion, the plaintiff must, by a fair pre-

ponderance of evidence, prove actual malice on the

part of the defendant in issuing the statement.

Refused.Exception for defendant.

The Court: Of course that is a true statement of

the law, but it is not applicable to this case.

2312

6'934 Defendant's Requests to Charge

Mr. Van Benschoten: That if they find that thedefendant issued the statement complained of in goodfaith, and also find that the plaintiff has failed tosatisfy them by a fair preponderance of evidence thatthe defendant was actuated by malicious intent todefame the plaintiff, their verdict must be in favor ofthe defendant.

Refused.Exception for defendant.Mr. Van Benschoten: That if the jury find that Mr.

Barnes, after the opening of the bids for legislative

6935 printing in i9oo, sought to influence Attorney-Gen-eral Davies, a member of the State Printing Board,to award the contract contrary to the provisions oflaw, which required that the contract be awarded to thelowest bidder, then the jury may find that Mr. Barneswas guilty of such conduct as to affect his credibility.

The Court: I will refuse to charge that. I willcharge the jury that if there is any evidence in the casewhich shows Mr. Barnes is guilty of a crime or moralturpitude such as, in their opinion, would affect hiscredibility, they may give xeight to that fact in de-termining how far his testimony is credible.

Mr. Van Benschoten: We ask your Honor to state

6936 that that includes the testimony brought out on thecross-examination of Mr. Barnes?

The Court: It includes all the testimony in the case.Mr. Wolff: We except to that.The Court: Except to what?Mr. Wolff: The entire charge, on the ground that

there is no such evidence in the case.The Court: Very well.Mr. Van Benschoten: We ask your Honor to

charge the jury that if they find that any witness hasknowingly testified incorrectly as to any material mat-ter, they may disregard the entire testimony of suchwitness.

2313

Defendant's Requests to Charge 6937

The Court: That is true.Mr. Van Benschoten: In considering the testimony

of Franklin D. Roosevelt, as to an agreement with Mr.Murphy and Mr. Barnes, the jury may take into con-sideration the fact that Mr. Barnes does not deny thattestimony.

The Court: There is no dispute about that, is there?Mr. Wolff: Your Honor has already charged that,

or covered that matter.The Court: I will charge it now, if I did not. I

don't know whether I charged that or not.Mr. Van Benschoten: In view of your Honor's 6938

charge with regard to the printing testimony, we askyour Honor to charge the jury that that does not af-fect the testimony which was brought out on cross-

examination of the plaintiff, so far as affecting hiscredibility.

The Court: That is true.Mr. Wolff : We take an exception to that portion of

your Honor's charge.

The Court: Gentlemen, it is very evidentthat you will not be able to come to any con-clusion in the twenty minutes before court ad-journs. I want you to take this case and con-sider it with great care and go over all the 6939evidence. It is an important case and deservesyour earnest consideration.

A Juror: Your Honor, may we have the

record of the testimony of the various wit-nesses?

The Court: No, that I can not give you,

but I will not adjourn until five o'clock, andif you want any instructions before that time

you can send for me, and if you want any of

the evidence read to you before that time you

can send for me, and I will see about it.

2314

6940 Charge

The jury retired.


Morning session, Friday, May I, 1915.

At ten o'clock A. M., the jury came into court, whenthe following proceedings were had.

The Court: Gentlemen, there is very little that Ican say to you in addition to what I have already said.

6941 Any instructions which I give you or any questionswhich you may desire to ask me necessarily must beasked here in court, so that a record may be made ofwhat occurs. If there is any further instruction onthe law that you would wish me to give you, I wouldbe glad to do so. If there is any dispute as to anyportion of the evidence, I would be glad to. have thatevidence read to you, or would be glad to state to youwhat the evidence is. That is about as far as I cango. I can answer any questions as to the law andI can have presented to you any portion of the evi-dence about which you are uncertain. On either ofthose points can I answer any questions?

6942 A Juror: Your Honor, these jurors think theywould like to consider the matter a little bit further.

The Court: Very well. If you will retire to yourroom, I will wait here until you may come back andtell me if there is anything you wish me to say toyou.

The jury retired, and at eleven o'clock again re-turned into court.

The Clerk: Have you agreed upon a verdict?The Foreman: We have.The Clerk: If so., what is your verdict?The Foreman: We find for the defendant, with

the suggestion that the court expenses be equally di-

vided.

2315

Verdict 6943

The Court: Gentlemen, you must retire, I think, and

find a verdict one way or the other; simply a verdict

for the plaintiff or for the defendant, or you can findthat verdict without retiring.

Mr. Bowers: One moment. We-

The Court: The suggestion may not be put in theverdict. Gentlemen, as I say, the verdict is not quite

proper in that form. The attorneys of the parties will

have to agree about any arrangement of the court costs

among themselves. Now, if your verdict is for the de-fendant it must be a verdict simply in that form.

The Foreman: Your Honor, could we ask for a 6944rising vote, as we are here?

The Court: The clerk may call the jury, poll thejury.

The Clerk: Gentlemen, I have been ordered by the

Court to poll you. As I call your names, each will risein his seat and give his verdict.

Henry Hoag, what is your verdict?A. No cause.The Court: For the defendant?A. For the defendant.

The Clerk: You say your verdict is for the defend-ant ?

A. Yes, sir. 6945The Clerk: Irving J. Mills, your verdict?

A. My verdict is for the defendant.The Clerk: Walter J. Zuill, your verdict?

A. For the defendant.The Clerk: Franklin S. Rhoades, your verdict?

A. For the defendant.The Clerk: Leonard K. Hungerford, your verdict?

A. For the defendant.'

The Clerk: F. W. Pierce, your verdict?

A. For the defendant.

The Clerk: Warren W. Somer, your verdict?

A. For the defendant.

2316

6946 Verdict

The Clerk: Ray Tanner, your verdict?A. For the defendant.

The Clerk: John W. Brown, your verdict?A. For the defendant.

The Clerk: George E. Boschert, your verdict?

A. For the defendant.The Clerk: Edward Burns, your verdict?

A. For the plaintiff.The Clerk: Peter Beneke, your verdict?A. For the defendant.The Court: Gentlemen, you will retire until you can

6947 agree upon your verdict.A juror: May I say a word further in regard to

this matter ?The Court: I do not want to have any discussion,

of course, as to how you stand. As I have told you,

all I can say to you is to give you further instruc-

tions as to the law or further instructions as to the

evidence in the case. I can not give you any adviceas to what verdict you should find, anything of that

kind.

Mr. Bowers.: I ask your Honor to instruct the jury

that while it is not proper for the Court-

Mr. Wolff: I object to any instructions being sug-

6948 gested at this time, to the jury.The Court: Yes, they may ask for instructions.

Mr. Bowers: I ask your Honor to instruct the jury

that the Court can not accept a verdict for the de-

fendant having attached thereto that the court costs are

to be divided, but that the parties may agree upon

such question in such manner as they see fit? I can

not go further than that. And that the defendant may

accept the suggestion of the jury.

Mr. Barnum: That we object to as entirely im-

proper, if your Honor please, and take an exception to

the remark.The Court: I can hardly instruct the jury as to what

the parties may do among themselves. I can simply

2317

Verdict 6949

say to the jury that they must find a verdict in theform which I have given them. They must find averdict for the plaintiff in a certain sum of money, orthey must find a verdict for the defendant.

Mr. Bowers: We offer to stipulate-Mr. Wolff: I object to that, any offer being made.

I do not think that is proper.The Court: I do not think that can be done be-

fore the jury.Mr. Hancock: It can not be done at any other

time.Mr. Bowers: I can not do it at any other time, but 6950

if his Honor says I must not say it, I am always obedi-ent to the Court's direction, whatever it may cost myclient.

The Court: The jury may retire.


Morning session, Saturday, Maly 22, 1915.

The Court: Now, as I said yesterday, whatever theverdict of this jury, there must be absolutely no demon-stration of any kind in this court room. You may 6951bring in the jury.

Mr. Wolff: If your Honor please, before the juryis recalled we desire to enter an objection to the re-ceiving and recording of a verdict from this jury, uponthe ground that the jury having been polled in opencourt, and the secrecy of the jury room thus violated

and exposed, the Court has no power to receive a ver-

dict thereafter.The Court: Very well. Objection overruled, with

an exception.Exception for plaintiff.

2318

6952 Verdict

The jury was brought into court and said by theirverdict that they found for the defendant.

Mr. Wolff: May we have the jury polled?The Court: The jury may be polled.The clerk thereupon called the name of each juror

and each stated that he found for the defendant.The Court: Then, gentlemen, you say by your ver-

dict that you find for the defendant, and so say youall ?

The Jury: We do.Mr. Wolff: If your Honor please, we move to set

6953, aside the verdict of the jury on the ground that it iscontrary to the law and contrary to the evidence, andupon all of the grounds specified in Section 999 of theCode of Civil Procedure.

The Court: The motion is denied, with an excep-tion.

Exception for plaintiff.Mr. Barnum: Does your Honor care to entertain

the motion to be heard later?The Court: No.Mr. Barnum: We want a stay, of course.The Court: Thirty days after entry of judgment

and one hundred and twenty days to make a case and

6954 exceptions.

2319

Exhibit I, Annexed to the Answer. 695b

Article by defendant, published in newspapersthroughout the United States, July 22, 1914, and sub-sequently, which is alleged in the complaint to belibelous. Admitted at page 187. Printed at pages134, 187.

Exhibit 1.

Letter from plaintiff to defendant, dated April 20,

i9o8. Printed at page 247.

6956

Exhibit 2.

Letter from defendant to plaintiff, dated April 22,

19o8. Printed at page 248.

Exhibit 3.Personal

THE WHITE HOUSE

Washington.

Oyster Bay, N. Y., 6957August 21, 1908.

My dear Mr. Barnes:

Yesterday I saw Sherman, Bennet, George Smith,Mike Dady, Cocks, and Hitchcock, Chairman of theNational Committee, here. I have been carefully go-ing into the Hughes matter since I saw you. I ap-preciate to the full the force of the arguments youurged against his renomination. It is not pleasantfor me to support a man who has wantonly behavedbadly to the very men who did most in securing his

2320

6958 Exhibit 3

election-I would approve his turning them down inthe public interest, but I object to its being done wan-tonly. Moreover I appreciate that he has alienatedquite needlessly very many voters, and if we had theright man to put in his place (the right man from thestandpoint of getting votes) I should say that it wascertainly wise to nominate such a man. But no suchman is in sight, and there does not seem to be theslightest chance of his arising. Under the conditionsit seems to me that while it will do damage to re-nominate Hughes, it will do more damage not to re-

6959 nominate him and that this damage will extend out-side of the State. While, therefore, I want most em-phatically to disclaim any intention of seeming todictate the nomination I think I ought to tell youthat my judgment is that the convention ought to re-nominate him. I am sure that the delegates fromthis district will be for him. Bennet, Sherman, andDady insist that there is no alternative to his renom-ination. Hitchcock says that not to renominate himwould be a harm to the canvass outside of New Yorkas well as, in his judgment, in New York. EvenSmith finally announced that he was inclined to takethe same view. I may add that everyone present

6960 agreed to keep absolutely quiet in this matter and toconsult with you, among others, before any kind ofconclusion was announced; but from the papers Ishould judge someone had talked. It was not I, for nonewspaper man communicated with me directly or in-directly, and I was as much surprised as anyone whenI saw the statements in the papers.

Sincerely yours,(Signed) THEODORE ROOSEVELT.

Hon. Win. Barnes, Jr.,The Evening Journal,

Albany, N. Y.

2321

Exhibit 4. 6961

Albany, N. Y., August 21, 1908.

My dear Colonel Roosevelt:

I have talked over the telephone with Parsons, Ward

and Sherman regarding the conference at Oyster Bay.

As I told you on Thursday last, unless the Hughes

people name a ticket at the primaries and carried it

on Tuesday next, we will send an anti-Hughes delega-tion to Saratoga.

I have burned my bridges on this matter, as you

know, last Spring and there is no retreat for me and

I shall continue to oppose his renomination until the 6962

result of the convention is known.

I have very positive opinions regarding this situa-

tion. The vote in this state for Taft will be ex-

tremely large and although Hughes would run IOO,-

ooo behind him he might easily be elected. The work-ing people are not for Bryan and there is a tremen-

dous Republican push on. If Hughes is elected he

will set up a political organization in this state, so

Frederick Stevens publicly declared only yesterday.

Mr. Hitchcock and Mr. Taft will not have to live in

New York after this election is over, but I and othermen will.

The support which the newspapers have been giving 6963

Hughes in this matter is a fight upon you. That is

the reason they have been advocating his renomina-

tion. We can nominate Wadsworth, White or Hin-

man, or any straight Republican and win. If we do

not do this, the state of New York passes into the

hands of the Hughes people shortly after the first of

January and those who stood up and made the fight

for the last two years will be crushed or must sneak

in the back door or must get out of politics. I do not

believe that you want this.

I do not believe you realize the extent of the anti-

Hughes feeling. I do not believe that many of the

2322

6964 Exhibit 4

advisers who have gone to you are men other thanthose who get their information from newspapers.There is absolutely no pro-Hughes sentiment in thisstate, unless it is in the city of New York. Thereare many men in this state who vote the Republicanticket and plenty of them in the organization who,with the number of Democrats that will support Taft,will make his election certain, but they will not votefor Hughes. I have never believed since I have beenactive politically in taking advice from my enemies,especially newspaper enemies. The newspapers do not

6965 attack you in this matter. They are taking a chanceon our making the fight, but it is you they are after.There is no particular reason why you should care.I have heard you say that you were ahead of the game,but you have friends in this state who stood by youand who expect you to let them go ahead and nom-inate a state ticket.

There will be no trouble about Taft. The men whoare out of work do not want to remain out of workany longer and the men who have a dollar do notwant it taken away. This story is as old as the hills.Do not for Heaven's sake put the Republican partyin this state in the hands of the Mugwumps.

6966 You said at luncheon the other day, that you askedyour friends once to cut their throats, but you did notfeel like asking them to do it again. I think thereis a large number of them who will not do it again.

It is honorable to go into a fight, but it is cowardlyto commit suicide.

Sincerely yours,(Signed) WILLIAM BARNES, JR.

Hon. Theodore Roosevelt,Oyster Bay.

2323

Exhibit 5. 6967

Letter from plaintiff to defendant, dated July 4,1910. Printed at page 272.

Exhibit V, Annexed to Answer.

Portions of an article in McClure's Magazine forSeptember, i9io. Printed (as read in evidence),page 286.

6968

Exhibit 6.

Letter from plaintiff to defendant, dated December22, 1899. Printed at page 335.

Exhibit 7.

Letter from defendant to plaintiff, dated December23, 1899. Printed at page 337.

6969

Exhibit S.

Stock ledger of J. B. Lyon Company. Admittedin evidence at page 340.

2324

6970 Exhibit II, Annexed to the Answer.

Portions of the Bayne Report.

Admitted in Evidence at page 351.

STATE OF NEW YORK. REPORT OF THESPECIAL COMMITTEE OF THE SENATE AP-POINED TO INVESTIGATE THE CITY ANDCOUNTY OF ALBANY.

Committee: Senator Howard R. Bayne, Chairman;Senator William P. Fiero, Senator George B. Burd;Senator Felix J. Sanner, Senator J. Mayhew \Vain-

6971 wright.Transmitted to the Legislature March 29, 1912.

Report of the Special Committee appointed by theSenate of the State of New York to investigate thevarious departments of the City and County of Al-bany.

To the Honorable

The Senate of the State of New York:

On July 21st, 1911, the Senate and the Assemblyof the State of New York passed a concurrent reso-lution, of which the following is a copy:

6972 Resolution.

WHEREAS it has been charged and there is reasonto believe that grave abuses exist in the various de-partments of the County of Albany and of the Cityof Albany respectively; that said departments havebeen and are corrupt; that in said County of Albanyand in said City of Albany the laws and the municipalordinances for the suppression of crime and for thesecuring of peace, security, order and morality arenot strictly enforced by the departments to which the

2325

Bayne Report (Exhibit II, Annexed to the Answer) 6973

enforcement thereof is entrusted; that said laws and

ordinances when enforced are enforced with partiality

and favoritism; that money and political support are

given or promised to public officials in said county

and said city by the keepers or proprietors of gaming

houses, disorderly houses, liquor saloons and other

offenders against the law in exchange for immunity

from punishment and other promises of favor; that

said departments and offices of the County of Albany

and the City of Albany have been and are conducted

with the object of personal gain to officials in said

departments and offices; that there have been misap- 6974

propriations and dishonesty in said departments and

offices; that said departments and offices have, for

corrupt purposes, exercised unfair methods and dis-

criminations against the citizens of said County of

Albany and said City of Albany; that said depart-

ments and offices have been and are conducted with

extravagance and waste and for the purpose of creat-

ing superfluous positions for political adherents; and

that in all of said departments of the County of Al-

bany and City of Albany there are practices working

contrary to public economy and efficiency; and

WHEREAS a strong public sentiment demands of

this Senate an investigation of all the matters above 6975

and into all departments and offices of the County

of Albany and the City of Albany for the purpose of

remedying and preventing, by proper legislation, such

abuses and corrupt practices; now, therefore, be it

RESOLVED (if the Assembly concur) that the Pres-

ident of the Senate be and he hereby is authorized

to appoint five Senators who shall be a special com-

mittee of this Senate with power to investigate all

and singular the aforesaid matters and charges and

all and singular the various offices and departmentsconnected with the County of Albany and the City

2326

6976 Bayne Report (Exhibit II, Anncxed to the Ansver)

of Albany respectively; and that said committee havefull power to prosecute its inquiries in any and everydirection in its judgment necessary and proper to en-able it to obtain and report the information requiredby this resolution; that said committee report to theSenate upon its investigation with such recommenda-tions as in its judgment the public interests require;that said committee be authorized to sit and hold itssessions in a place to be selected by it in the Capitolin the City of Albany; that the committee be author-ized and empowered to subpoena and compel attend-

6977 ance of witnesses, including public officers and em-ployees, and the production of books and papers, in-cluding public records and documents; to administeroaths, take proof and testimony, employ counsel andexaminers, stenographers and other necessary assist-ants as in their judgment are required; and have allthe powers usual and incident to legislative com-mittees, including the adoption of rules for the con-duct of its proceedings; and be it further

RESOLVED that the said committee shall concludeits investigation in time to report to the Senate onor before the first Tuesday of January, 1912, so thatproper legislation may be enacted to suppress said

6978 evils; and be it further

RESOLVED that it is the intention of this Senatethat it is contrary to public policy and the interestof good order and efficient investigation that anyperson giving evidence before said committee tend-ing to show that he has been a party to the prac-

tices above mentioned, should be indicted or prose-cuted upon the evidence so given or upon the ad-missions so made by him; and be it further

RESOLVED that the actual and necessary expenses

of the committee in -carrying out the provisions of

2327


this resolution, not exceeding the sum of $25,000 be

paid from the moneys appropriated for the contin-gent expenses of the Legislature by the Treasurer onthe warrant of the Comptroller and the certificate ofthe Chairman of the committee.

Pursuant to the foregoing resolution, the Honor-able Thomas F. Conway, President of the Senate, ap-pointed, on September 2d, 1911, the following namedSenators as a special committee of the Senate to carryout the resolution.

Hon. Howard R. Bayne, of New Brighton, StatenIsland, New York City. 6980

Hon. William P. Fiero, of Catskill.Hon. Felix J. Sanner, of Brooklyn, New York

City.Hon. George B. Burd, of Buffalo.Hon. J. Mayhew Wainwright, of Rye.Thereafter, on the 29th day of September, 1911, the

Legislature passed another resolution as follows:

Resolution.

WHEREAS it appears by a concurrent resolutionpassed July 21, 1911, authorizing an investigation into

all departments and offices of the County and City of 6981Albany, New York, that a sum not exceeding twenty-five thousand dollars ($2 5,000) be paid for the ac-tual and necessary expenses of the committee in carry-ing out the provisions of said resolution, from themoneys appropriated for the contingent expenses of

the Legislature, by the treasurer, on the warrant

of the Comptroller and the certificate of the chairman

of the Committee:

RESOLVED (If the.Assembly concur), that an ad-

ditional sum of Twenty-five thousand dollars ($25,-ooo) for the actual and necessary expenses of the

2328

6982 Bayne Report (Exhibit II, Annexed to the Answer)

Committee in carrying out the provisions of said reso-lution of July 21, 1911, be and is hereby authorizedto be. paid from the moneys appropriated for the con-tingent expenses of the Legislature, by the Treasurer,on the warrant of the Comptroller and the certificateof the Chairman of -the Committee.

Your Committee, carrying out the said resolution ofJuly 21, 1911, has the honor to make your HonorableBody its report as follows:-

It appeared in evidence before the Committee that6983 the Albany Evening Journal was a daily newspaper

in the City of Albany, published by the Journal Com-pany, and that the majority of the stock of this com-pany was owned by Mr. William Barnes, Jr.

For example: Mr. Barnes was asked whether hedirected the editorial policy of the Albany EveningJournal, and whether he controlled the business mtth-ods of the corporation that owned that paper. Thesequestions Mr. Barnes refused to answer, and the Com-mittee unanimously declared him in contempt for fail-ure so to do.

It appeared from the testimony of other witnesses

6984 that the Albany Journal Company had been receivingorders for public printing in plain evasion of theStatute, and had farmed out the business so obtainedto, the Argus Company, another publishing corpora-tion, in the City of Albany, in consideration of Twen-ty-five per cent of the price charged for such publicprinting.

It further appeared that Mr. Barnes' Journal Com-pany had received fifteen per cent of the price chargedfor public printing which the Argus Company had se-cured by public bidding. To show his connection with,or connivance at, or knowledge of these transactions,

2329

Bayne Report (Exhibit II, Annexed to the Answer)

of absorbing interest to the Committee, and of great

concern to the People of Albany, Mr. Barnes was askeda number of questions, which he refused to answerupon the pretext that they related to his private af-

fairs.

It also appeared, as another interesting and signifi-cant fact, taken in connection with Mr. Barnes' po-litical position and influence, that he had become the

owner of one-fourth of the capital stock in the J. B.Lyon Company, a corporation which did a largeamount of public printing. The circumstances underwhich he acquired this stock seemed to the Committee,

in view of his political prominence and influence, ma-

terial and important in its investigation as to the pub-lic printing in the City and County of Albany, and theCommittee was unanimously of the opinion that he

should answer the following questions, which he re-fused to answer:* * * * * *

B. PRINTING.

Almost all the printing and advertising for the City

of Albany is done by the Journal Company and theArgus Company, and the major portion of the printing

and advertising for the County of Albany is done bythe Journal Company, the Argus Company and the

J. B. Lyon Company.Mr. William Barnes, Jr., the Republican leader in

the City and County of Albany, owns the majority

of the stock of the Journal Company, and he also

owns one-fourth of the capital stock of the J. B. Lyon

Company.The public printing in this city and county has de-

veloped into a form of private secret trust in which

6985

6986

6987

2330


Mr. Barnes is a beneficiary with large interests. Henot only profits by the public contracts which thejournal Company and the J. B. Lyon Company have,but he also receives a commission for public workdone by the Argus Company, on public contracts whi'chneither of his companies has.

And so Mr. Barnes profits, "coming and going."Thus it appears that of three printing establishments

in Albany, Mr. Barnes practically owns one, has a one-fourth interest in another and receives tribute fromthe earnings of the third.

:6989 This, as will be shown, has not caused public print-ing in Albany to be done economically. On the con-trary the gross extravagance in the expenditure ofpublic money in Albany for public printing is simplyscandalous.

I. FIFTEEN PER CENT PAID THE JOURNAL COMPANY

BY THE ARGUS COMPANY TO GET

CITY PRINTING.

That the Argus Company -did the printing workfor the Common Council and yet paid the JournalCompany fifteen per cent of the amount of its claims

6990 was clearly proven. The Journal Company has not theplant to do this kind of work, and does not attempt it.

The reason given for such payments by an employeeof the Argus Company was: "THAT MR. BARNES DIC-

TATED WHERE THE PRINTING GOES AND THAT THE

A-RaU'S GIVES UP TO THE JOURNAL IN ORDER TO OBTAIN

THE PRINTING."

During the year 191o, the Argus Company paid theJournal Company for these reasons the sum of $I,-682.02. On the ledger of the Argus Company itemsmaking the $1,682.02 are 'credited to the Journal

Company as "invoices."

2331


A bookkeeper employed by the Argus Company, inattempting to explain these entries, gave to Mr. Co-cheu, an accountant examining the books, a memoran-dum which reads thus: "August Ioth, credit JournalCompany Common Council $2,952.8o."

On a line underneath the $2,952.80 is written $442.-

92, which is fifteen percent of the $2,952.8o.This bookkeeper stated that a Mr. Hourigan made

memoranda of the amounts to be allowed atid thememoranda were destroyed as soon as the entry wasmade by the bookkeeper.

Michael P. Dolan, the manager of.the Argus Coin- 6992pany, testified that a commission was allowed on allwork given to the Argus Company by the JournalCompany.

II. GRAFT AND EXTRAVAGANCE.

Mr. Dolan, the manager of the Argus Company, tes-tified that for about 20 years the Argus Company hadpublished in book form the proceedings of the Com-mon Council of the City of Albany, and continuouslyfor the five years last past.

During the time last mentioned the Argus Companyprinted for the Journal Company duplicate copies of 6993the various parts of these printed proceedings.

The original order for printing the proceedingswas given to the Argus Company which had uponpublic bidding received a contract and it made theduplicate copies. In fact, from assurances upon whichit was justified in relying, the Argus Company calcu-lated with reasonable certainty on printing the dupli-

cate copies when it submitted bids.When the original order for printing was re-

ceived, 6oo copies of the proceedings were made. Ioo

of these copies were delivered to the clerk of the

Common Council and 5oo were retained.

2332


When an order was given, the duplicate copies werefurnished to the Journal Company in parts, that is,the proceedings were divided into reports of variousofficers.

These transactions, happening year after year, were

of course, collusive and anticipated. They were, ofcourse, also duly considered and relied on when theestimates were made for the public bids by the ArgusCompany.

In this way the Argus Company knew that it couldbid lower than any competitor, which it invariably

6995 did. Outside competitors not in the ring were thus de-prived of a fair chance. And, incidentally, Albany hadto pay dearly for its public printing.

The type for the original copies was kept standingfor the duplicate copies, and the Argus Companycould thus print the copies cheaper than any other per-son or company.

On these separate parts of the proceedings the Ar-gus Company placed the title and the name of theJournal Company and thus made it appear that thepamphlet was printed by the Journal Company.

These duplicate copies were sold to the City by theJournal Company for the same price as that charged

6996 for the originals, as if they were printed by the Jour-nal Company. Had the city officials wanted to savemoney for the city and do the business in an honestway, instead of trying to make the public printingcome high for the benefit of Mr. Barnes' Company,they could have gotten the Argus Company or someother bidder at public auction to take all the printingas the law and common business integrity and pru-dence required. But in that case, upon all these orders

for the separate parts of the proceedings, or upon anyof them, the Argus Company would not have allowed

25% commission to the Journal Company as it ac-

tually did.

2333


For printing and binding the proceedings of the

Common Council for the year I9IO, the City of Al-

bany paid $8,8oo.This amount was about 40% more than the same

work would have cost if printed as the proceedingswere printed in 19Ol.

An investigator for the Committee, a printing ex-

pert of great intelligence, demonstrated by referenceand comparison to the printing actually done for theCity of Albany, the reckless and mischievous extrav-agance with which the city and county printing wasdone. 6998

For example, for printing the description of an en-gine in the report of the Department of Public Works,

40 pages were consumed, for which the city paid $400.To describe in print the operations of two pumps, thecity paid $240.

In separate volumes the Journal Company claimedto have printed the Annual Message of the Mayor, theBuilding Code, the Laws and Ordinances of the Cityof Albany, the Annual Report of the Commissioner ofCharities, the Report of the Department of PublicWorks, the Report of the Bureau of Engineering,the Report of the Department of Public Safety, theAnnual Report of the Comptroller and the Annual Re- 6999port of the Bureau of Water. All of these bear the

imprint of the Journal Company, but were in factprinted by the Argus Company and supplied to the

Journal Company under the profitable private arrange-

ment described above.As the Argus Company furnished the copies of these

documents to the City through the Journal Company,

it could easily outbid competitors. While its bid was

only $1.50 per page, it actually received $2.50 per

page, under the collusive arrangement above stated.

Moreover, although the Argus Company did not have

2334

7000 Ba3'ne Report (Exhibit II, Annexed to the Answer)

to reset the type, the City paid for the volumes men-tioned the same as if the type had been set by theJournal Company. In some instances the Argus Com-pany charged for these volumes even more than forthe original composition. For instance, for the origi-nal printing of the Proceedings of the Common Coun-cil, it charged $1.50 per page, while for the separateparts, mere reprints, it charged $1.75 per page.

A bill was rendered by the Argus Company to, theJournal Company for I,OOO copies of the BuildingCode, but when these copies were delivered to the City

7001 they were delivered in lots of 250, so as to evade thestatute requiring public bidding.

And on this transaction the Journal Company, asusual, received a commission of 25 per cent.

The bidding for these printing contracts was thusa sham, a farce and a fraud. Instead of receivingfor its work the amount of the lowest bid, the ArgusCompany, through its collusion with the Journal Com-pany, received nearly twice as much as the highestbid. As a natural result, public printing in Albanycame very high-higher, even, than in New York City.

III. PADDING OF THE PUBLIC PRINTING FOR THE

7002 BENEFIT OF THE JOURNAL COMPANY.

Of course, padding the public printing would alsonaturally follow. The Report of the Board of Edu-cation was gradually expanded so, that in a periodof three years five lines occupied the space formerlytaken by six. This was done to increase the numberof pages and thus increase the amount of money forthe same amount of printed matter.

If the expanding, or as it is technically known,the leading, had not been resorted to, the volumecould have been produced for 33 1/3 to 50% lessthan it cost when so expanded.

2335


A remarkable instance of this stretching was shown

by comparison between a volume of the Proceedings

of the Common Council for the year 19O1 and a simi-

lar volume for the year 191o. In the, volume of 19O1

there are 41 lines of printed matter on a page, and in

the volume of 191o there were only 27 lines of similar

composition on a page.

In both cases the type was the same in size.

IV. DUPLICATE PAYMENTS FOR PUBLIC PRINTING

MADE TO THE JOURNAL COMPANY.

7004

Section 73 of Chapter 248 of the Laws of 1893,

provides:

"The Secretary of State, Comptroller and

Treasurer shall on or before the first day of

January in each year, designate a daily news-

paper published in the City of Albany, to be

known as the State paper in which shall be pub-

lished during the following year all appoint-

ments of special terms, Circuit Courts, Surro-

gate's Court, Court of Oyer and Terminer and

general terms of the Supreme Court, the rules

of Practice adopted from time to time by the

Justices of the Supreme Court, and the Judges 7005

of the Court of Appeals; the laws of the State

and notices and advertisements required to be

published in a newspaper by the Attorney Gen-

eral, Superintendent of Insurance, Superinten-

dent of Banks, or in actions against foreign

corporations, the publication of such notices

and advertisements shall be additional to their

publication in other newspapers."

In accordance with this Statute the Albany Eve-

ning Journal was designated as the State paper in the

2336

7006 Bavne Rcport (Exhibit II, Annexed to the Answer)

years 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903,1904, 1905, 19o6, 1907, 191o and 1911.

The Journal Company published all the laws inconformity with the statute quoted and rendered billstherefor to the State Comptroller which were paidand receipts were given.

The State of New York thus paid for the publica.tion of all the laws by the Journal Company. Dur-ing the years mentioned this amounted to $85,384.50.

Section 20 of the County Law states:

"Designation of newspaper for publication7007 of Session Laws. The members of the Board

of Supervisors in each County representing,respectively, each of the two principal politicalparties into which the people of the Countyare divided or a majority of such membersrepresenting respectively each of such parties,

shall designate in writing a paper fairly repre-senting the political party to which they re-spectively belong, regard being had for theadvocacy of such paper of the principles ofits party and its support of the State andNational nominees thereof, and to its regularand general circulation in the towns of the

7008 county, to publish the Sessions Laws and con-current resolutions of the legislature requiredby law to be published which designationshall be signed by the members making it andfiled with the clerk of the Board of Super-visors. * * *"

In accordance with this Statute the Albany EveningJournal was designated during the years mentionedabove and rendered claims for alleged work to boththe State of New York and the County of Albany.

2337


The Albany Evening Journal made only one pub-lication of the laws. It failed to, publish them in ac-cordance with its designation by the Supervisors.

For publishing the Session Laws, viz: The lawsthat are applicable to all the State and that are notlocal in nature, under its designation by the Super-visors, the Albany Evening Journal received from theState of New York, during the years mentioned, thesum of $13,504.50.

This was a duplicate payment because the Statepaid for the printing done by the Albany EveningJournal as the State paper. 7010

For publishing the local laws or laws referringto the City and County of Albany in accordance withthe designation by the Supervisors, the Albany Even-ing Journal received from the County of Albany $I,-559.50 for the years above mentioned.

This was also a duplicate payment to the JournalCompany because the State had paid for the publica-tion.

In the year 1907, the Secretary of State after dis-covering that a certification had been made of theclaims of the Journal Company for work that it hadnot done, withdrew the certification to the amount of$750, which it was stated was a duplication. 7011

Thereafter the Journal Company endeavored tocompel the State Comptroller to, audit this claim for$750 and began proceedings in the Supreme Court toobtain a Writ of Mandamus therefor. But the Courtrefused to grant the Writ.

It thus appears that the Albany Evening Journalas the State paper published all the laws and waspaid by the State and that the same paper witlwutmaking any fuyrther publication of the laws, or render-ing any additional .service, received $13,504.50 fromthe State and $1,559.50 from the County of Albany.

This makes a total of $15,064 unlawfully collected

2338


by the Journal Company, the owner of the AlbanyEvening Journal.

Mr. William Barnes, Jr., the president of the Jour-nal Company and the owner of a majority of itsshares of stock, admitted that after the Court de-cided that the Albany Evening Journal was not en-titled to the money obtained by it in the manner de-scribed, the money thus unlawfully collected fromboth State and County had not been refunded.

The most conspicuous beneficiary of graft, public

7013 extravagance and raiding of the municipal treasury,we find from the evidence, to be Mr. William Barnes,Jr., himself, as the owner of the majority of the stockof the Journal Company. He is the president of thiscompany and the chairman of its executive committee.How much more than the majority of its stock heowns he refused to disclose.

We shall not repeat in detail the uncontradictedfacts brought out before us to the effect that the con-tract for printing the proceedings of the CommonCouncil of the City of Albany was the result -of ascheme whereby the successful bidder was assured ofgetting additional work in violation of law, and

7014 fixed his bid lower than any outside printer coulddo the work for, that the work was padded to an in-credible extent merely to increase the cost of the joband the value of the contract thus obtained, that Mr.Barnes' concern, the Journal Company, without hav-ing any plant to do the work with, nevertheless got,in violation of law, orders for duplicate copies of thework done by the public bidder, and farmed out theseorders to that bidder who, paid Mr. Barnes' concerntwenty-five per cent on the job, that on the work ob-tained at public bidding, the successful bidder paidMr. Barnes' concern fifteen per cent, that these pay-

2339


ments were made to Mr. Barnes' company because,

to use the language of a witness who knew the facts,

"Mr. Barnes dictated where the printing goes andthe Argus gives u p to the Journal in order to obtainthe printing." How much money the Journal Com-

pany received from these sources did not appear, but

it did appear before us that Mr. Barnes' Company

had obtained unlawfully fron the State the sum of

$13,504.5o and from the County of Albany the sum

of $1,559.50, on the pretext of furnishing work whichhis concern had not done.

When interrogated as to the payments made by 7016

the Argus Company to his company to obtain the

printing work of the City of Albany, Mr. Barnes

stated that he was not aware of such payments. But

he refused to answer the question whether he con-

trolled the business methods of his own company,

and he declined to, permit the production of its books.

The Committee has no difficulty under these cir-

cumstances in finding that Mr. Barnes was well aware

of the payments made to his company as stated, and

also that he was well aware of the tortuous and un-

lawful methods by which these payments were ob-

tained.His connection with the J. B. Lyon Company, 7017

which also receives large sums for public printing,

clearly appeared before us. Of this concern Mr.

Barnes owns one-fourth of the entire capital stock,

but he refused to disclose how he got this stock, of

the par value of $75,000, whether he paid anything

for it, or whether it was a gift.

2340

7018 Bavne Report (Exhibit II, Annexed to the Answer)

.Reco n,mendaitions.

In view of the foregoing facts and of the investi-gations made, yeur committee respectfully recom-mends:* * * * * *

2. That the Attorney General begin an actionagainst the Journal Company to recover the sum of$13,504.50 illegally obtained by it from the State uponthe pretext of printing work for the State, whichwas not done.

7019 * * * * * *

4. That the Attorney General begin an actionagainst the Journal Company to recover all sums paidto it for the separate parts of the printed proceed-ings of the Common Council which were printed bythe Argus Company.

5. That the County Attorney of Albany County be-gin an action against the Journal Company to re-cover the sum of $1,559.50 illegally obtained by itfrom- the County upon the pretext of printing workfor Albany County, which was not done.* * * * * *

7020 8. That action be taken by the Mayor of Albany

to rescind and discontinue the fraudulent and scan-dalous printing contracts, in which the city is in-volved.

9. That action be taken by the Mayor to destroythe printing ring formed for the purpose of robbingthe City Treasury.* * * . * * *

2341

Exhibit III, Annexed to the Answer. 7021

Portions of Articles from Collier's Weekly of Sep-tember 14, 1912.

Admitted in Evidence at page 353

MR. BARNES OF ALBANY

By C. P. CONNOLLY

Charles E. Hughes was Governor of New York.The race-track bill was to come to a decisive votethe next morning. No one knew just where WilliamBarnes, Jr., the Albany boss, stood. Senator Grat-tan of Albany County had told his friends he would 7022support the bill; he could not afford, he said, to placehimself under suspicion of being a grafter; he hadpromised his family he would vote for the bill; anyother course would be political suicide. Late thatnight the doorbell of the house next to the Albanyresidence of Barnes rang softly. The master of thehouse himself opened the door. He recognized thetall figure of Senator McCarren, the Democratic bossof Brooklyn. "Hello, Billy," McCarren whispered,as he faced the street and glanced hurriedly up anddown for possible spies. "I think you've made a mis-take, Senator," said McCarren's unexpected host,"You want the house next door." 7023

The next morning Senator Grattan got word tovote against Hughes and the race-track bill. He toldhis friends he had begged Barnes to, spare him thehumiliation, but that Barnes was deaf to his entreaties.

Succeeds "Boss" Platt

Of the three large printing establishments in Al-bany, Mr. Barnes owns a majority of the stock of one,

2342

7024 Article from Collier's (Exhibit III, Annexed to theA'nswer)

has a fourth interest in another (a present to him, asit is alleged, for his political "pull"), and receives atribute from the third equal to the royalty popularauthors receive from their "best sellers." The "Ar-gus" is a Democratic paper. It is published by theArgus Company. This company does the printingwork for the Common Council of Albany and paysthe Albany "Evening Journal" (Barnes' company)twenty-five per cent of what it receives for workawarded without public bidding, and fifteen per cent

7025 of what it receives for work awarded by public bid-ding. An employee of the Argus Company reluctantlytestified that "Mr. Barnes dictated where the printinggoes, and that the 'Argus' gives up to the 'Journal'in order to obtain the printing." The Argus Companydoes not of course, do the work at a loss; on the con-trary, it is paid handsomely. In other cities of thestate certain tax lists are required to be printed sixtimes; in Albany they are required to be printedtwelve times. The Argus Company prints one hun-dred copies of the proceedings of the City Council,then it keeps its type standing, puts at the top the nameof the Journal Company, and allows Barnes to sell to

7026 the city whenever it wants extra copies. The city of-ficials order these extra copies ad libitum. Outsidecompetition has no chance. For the year 191o the tax-payers of Albany paid $8,8oo for printing the proceed-ings of the City Council. Forty pages were consumedin the description of an engine at a cost of $400. Itcost $240 to tell in print how two pumps at the pump-ing station worked.

A bill was rendered by the Argus Company to theJournal Company for one thousand copies of theBuilding Code. The cost of these copies was, ofcourse, over $250 and required public bidding underthe law. The copies were split up by Mr. Barnes'

Journal Company into separate deliveries of 250

2343

Article from Collier's (Exhibit III, Annexed to the 7027Answer)

each. The cost of the city printing is measured bythe page. Before Barnes took charge of the publicprinting in Albany, there were forty-one lines ofprinted matter on a page of the proceedings of theCommon Council. In the volume for 191o there arebut twenty-seven lines to the page-and the type is of.the same size.

Under the law, certain state officials designate anofficial state paper for the printing of public laws andnotices. The Board of Supervisors in each countyalso designates an official county paper. Barnes' pa- 7028per, the Albany "Journal," was designated as the of-ficial state paper for the years from 1896 to 1911,with the exception of 19o8 and 19o9. For the stateprinting during these years the "Journal" was paid$85,384.5 o . During the same years the "Journal"was designated by the Board of Supervisors of Al-bany County as the official county paper. It madebut one publication of the laws for both the state andcounty; but it collected in duplicate, and received$15,o64 illegally.* * * * * *

Embroidered Printing. 7029

The Legislature of 1893 directed the clerk of Al-bany County to make a condensed index of deedsand mortgages in two series, one of grantors andmortgagors, the other of grantees and mortgagees.The work was to be completed in three years, ata cost which was originally not to exceed some $6o,-ooo. The work has now been in progress eighteen

years, and is about half done. It has already cost

$238,876.52; and there is a grave question whether

it conforms to the law and whether it will be of

any value except as a memorial of public folly. The

Argus Company received the contract for the print-

2344

7030 Article from Collier's (Exhibit IV, Annexed to theA'nsw er)

ing. Whether Barnes was paid his royalty on thisis not known, as the majority of the Court of Ap-peals of New York upheld him in his unconcernedrefusal to answer the questions of the Senate in-vestigating committee. It is not likely that Barneswould let this monumental graft slip through hisfingers. He is frugal in such matters.

7031 Exhibit IV, Annexed to the Answer.

Portions of Article from Collier's Weekly of August3, 1912.

Admitted in Evidence at page. 354

BARNES TO GUIDE HILLES

NEW YORK BOSS TO HEAD ADVISORY REPUBLICAN

CAMPAIGN COMMITTEE

He-- Will Thus Have Authority to Direct PresidentialFight W hile the Chairman of National Committee

7032 Will Have to Shoulder the Responsibility.

So much for the relation of Barnes to Taft, the,campaign, and the Republican party. Before pass-ing to a description of Barnes which is contained inan official document, and which rests upon sworntestimony, read this clipping: It may sound cryptic,but the explanation will be found in the Senate docu-ment later on. This paragraph appeared in the "WallStreet Journal" for July I8, under the heading,"Legislative Printing Award":

2345

Article from Collier's (Exhibit IV, Annexed to the 7C33Answer)

"ALBANY-THE PRINTING BOARD OF THE STATE

HAS AWARDED TO THE J. B. LYON CO. OF THIS CITY,

FOR $286,702, THE CONTRACT FOR THE LEGISLATIVE

PRINTING FOR 1913 AND THE CONTRACT FOR PUBLISH-

ING THE SESSION LAWS FOR THE NEXT TWO YEARS.

THE CONTRACT FOR DEPARTMENT PRINTING WAS

AWARDED TO THE ARGUS CO. OF THIS CITY FOR $193,-

954, THE CONTRACT BEING FOR TWO YEARS."

The meaning of this inconspicuous paragraph,which does not contain the word Barnes, is, never-

theless, that Barnes has attended to his graft for the 7034next two years. His income secure, he can now de-vote himself to the mission of which he boasts, "torid the Republican party of all this damned pro-gressivism." Bear in mind those names, J. B. Lyon

Co. and Argus Co., and read now some extracts fromthe Report of the Special Committee transmitted to

the New York Legislature on the 29 th of last March:"Almost all the printing and advertising for the

City of Albany is done by the Journal Company andthe Argus Company, and the major portion of theprinting and advertising for the County of Albanyis done by the Journal Company, the Argus Company,

and the J. B. Lyon Company. Mr. William Barnes, 7035

Jr., the Republican leader in the City and County ofAlbany, owns the majority of the stock of the Journal

Company, and he also owns one-fourth of the capitalstock of the J. B. Lyon Company."

Please bear in mind we are reading now from an

official document.

"The public printing in this city and county has

developed into a form of private secret trust, in

which Mr. Barnes is a beneficiary with large interests.

He not only profits by the public contracts which the

Journal Company and the J. B. Lyon Company have,

but he also receives a commission for public work

2346

7036 Article from Collier's (Exhibit IV, Annexed to the

A'nswer)

done by the Argus Company on public contracts whichneither of his companies has."

And the word "graft," as used on this page, isnot the language of him whom Mr. Barnes would

call the reckless muckraker. That word is official,too.

"The most conspicuous beneficiary of graft, pub-lic extravagance, and raiding of the municipal treas-ury we find from the evidence to be Mr. William

7037 Barnes, Jr., himself."

Attend now to a familiar picture in that freemasonryof big money and high politics where men like Barneshave their being. They asked him who were the otherstockholders of his company. He refused to answer.(He was under oath.) Then they asked him speci-fically whether Anthony Brady is not the third largeststockholder. Brady is a Democrat, a big Democrat,almost as powerful in the Democratic party as Barnesis in the Republican. Again Barnes refused to an-swer. Would it be a fair inference that this bi-

partisan arrangement is a guarantee against any in-terruption of Mr. Barnes' income when the State goes

7038 Democratic?"Barnes gets it coming and going."That sentence is not the present writer's; it is the

official language of the committee.* * * * * *

2347

Exhibit VI, Annexed to the Answer. 7039

Portions of Article from the N. Y. Evening Mail of

July 24, 1913.

Admitted in Evidence at page 354.

MURPHY AND BARNESIN SULZER WAR CHOKE

STATE GOVERNMENT

LEGISLATURE, COSTING PEOPLE $I,000 A DAY, WILL

NEITHER ENACT LEGISLATION DEMANDED BY PEO-

PLE THROUGH GOVERNOR, NOR ADJOURN TO AF- 7040FORD HIM OPPORTUNITY TO APPOINT MEN WHO

WILL CARRY ON BUSINESS OF THE PUBLIC.

THOUSANDS SEND, SULZER MESSAGESURGING HIM TO FIGHT TO THE END

BY JAMES CREELMAN.

By Telegraph to The Evening Mail.

Albany, July 24.-It is time that the people shouldrealize the open shame of the situation in which the 7041government of New York State has actually brokendown in the brutal attempt of Boss Murphy, with theassistance of Boss Barnes, to punish and wreck Gov-ernor Sulzer for daring'to show independence of hisorders.

The spectacle in Albany today is not only disgrace-ful, but extremely costly to the taxpayers, who arepaying $i,ooo a day for the extra expenses of a legis-lature that stays in mock session without acting, simplyto prevent the Governor from removing and appoint-

2348

7042 Article from Ezening Mail (Exhibit VI, Annexed to

the Answer)

ing officials and to intimidate him by threats of im-peachment.

The two bosses have strangled the government of9,ooo,ooo inhabitants of an area of more than 49,000square miles, and they propose to keep it strangledby continuing the farce of a legislative session at anextra cost of $I,ooo a day until the end of the yearif necessary.

I t is an almost unbelievable sight in the capital ofthe greatest and richest State in the Union.

7043 Down in the vast executive chamber sits GovernorSulzer, with the portraits of Tilden, Cleveland,Roosevelt and Hughes staring at him from themahogany paneled walls.

It is a place of magnificent stateliness, an audienceroom fit for an emperor.

URGE "No SURRENDER !"

A steady procession of visitors moves past theGovernor's desk with earnest and sometimes passion-ate messages from all over the state, urging himnot to surrender to the bosses and to keep up the

7044 people's fight for state-wide direct primaries.Troops of summer tourists, farmers, schoolgirls

and what not, pass murmuringly over the quarter-acre of crimson carpet, look at the pictured walls,the resplendent and mighty fireplace and the highraftered ceiling-watching with awkward, sidewiseglances the throngs about the tall, shanky, restlessGovernor against whom the malevolent and secretpower of corrupt ring politics is concentrated.

Upstairs the royally gorgeous halls of the Senateand Assembly are empty and the dim light shines onmarbles, gildings and carvings without disclosing ahuman form.

2349

Article from Evening Mail (Exhibit VI, Anne.red to . 7045

the Answer)

Yet the legislature is in extraordinary session andthe taxpayers are paying $i,ooo a day to its employees.Three or four members of each house are in Albany,only to meet and take a recess every two or three days.

REALLY No LEGISLATURE.

The Legislature has refused to pass the directprimary law it was called together to enact. It hasrefused to pay, any attention to the Governor's recom-mendations. It refuses to adjourn, because that would 7046allow the Governor to make ad interim appointmentsand go on with the work of government, which to-day is paralyzed.

As a matter o f fact, there is no Legislature. The)niCi tcho are paid to make the laws for New York

merely carry out the orders of the Tanmmany andRepublican bosses.

Boss Murphy is playing golf on Long Island. Heissues his daily commands to Albany over the long-distance telephone. They are obeyed to the letter.

Twice a week Boss Barnes goes to the room ofSenator Brown, the Republican "leader," and makesknown his will. 7047

BOSSES ACT TOGETHER.

The two bosses act together against Governor Sul-zer without any pretense of partisan division.

Not only does the Legislature ignore the Governorand defeat the work of government by refusing toadjourn, but it cut out of the general supply bill the$30,000 that has always been given to the executivefor investigations, and refuses to let him have a dollarto enable him to search out and punish grafters inthe Highway Department, Conservation Department,

2350

7048 .-lrticlc from Evcnig Mail (Exhibit VI, Annexed tothe Answer)

Prison Department and other places where ringstershave been getting fat.

The extraordinary thing about this is that it hasbeen customary to vote these executive investigatingfunds, even to governors of hostile political faiths.

Governor Sudler has been left weithout a dollar toemploy investigators and go on with the work ofridding the departnents of grafters and incompe-tents.

Nothing like it has been seen in New York before.7049

TAMMANY LEADERS BOASTING.

The Tamijan, leaders openly boast that they hazedeprived the Governor of everything except th?power to employ stenlographers.

They have refused to confirm the important ap-pointments he has made, and they insist on keepingup the sham legislative session-at $i,ooo a day extr.t-so that he cannot fill the offices between sessions.

This is the degraded and disastrous effect of aboss-dominated legislature upon the public business

7050 of the state today.And all because Governor Sulzer would not put Boss

Murphy's henchman Gaffncy in control of the $66,-ooo,ooo 7lChich is being spent on public roads, and in-sisted on pressing for an honest direct prinmry lawagainst the will of the Murphy-Barnes conspiracy toperpetuate boss rule in politics and government.

Boss Murphy controls the attorney-general and thestate comptroller.

Because the governor removed Superintendent ofPrisons Scott and appointed Superintendent Reilly inhis place Murphy's comptroller has refused to pay theemployees of the state's prisons and reformatories,and Murphy's attorney-general has been asked for a

2351

Article froin Evening Mail (Exhibit VI, Annexed to 7051the Answer)

legal opinion which, if it is adverse, will compel thegovernor to resort to the courts in order to carry onthe prison and reformatory work.

Because the governor refused to appoint Murphy'sman commissioner of labor, Murphy's legislature re-fused to confirm the governor's appointment, and to-day the Labor Department, charged with the enforce-ment of the factory laws, is directed by a seconddeputy without power to make appointments or takeany important executive action.

Because Mr. Carlisle, the commissioner of high- 7052ways, would not make Murphy's appointments Mur-phy's comptroller rcfuses to pay the salaries of manyof Mr. Carlisle's most important deputies, and he isseriously crippled in the vast new highways workwhich is costing $66,ooo,ooo.

'MURPHY'S THREAT.

It was on April i., that Governor Sulzer saw BossMlurphy for the last timie and left with the threatringing in his ears, "I'll have you out of office in sixmtonths."

Since then the ring has tried to blackmail him into 7053

obedience; has trailed him night and day with hiredspies; has sent private detectives to search his recordin Washington, in Albany, in New York City, inAlaska, and in his boyhood home in New Jersey.

But the thing that should arouse the people to arealizing sense of-danger is that in their fierce desire

for vengeance the bosses have actually deprived the

governor of even a dollar with which to investigate

wrongdoing in the great state departments and have

deliberately broken down the administration of the

government.

2352

7054 Exhibit ji

NOT ONE VOICE OF PROTEST.

And in the presence of this appalling work of cor-rupt nmachine politicians not one responsible Repub-lican voice has been raised in public protest.

Yet although the state government has been brokendown, and the mock legislature laughs at the wreckof things and the temporary helplessness of the gov-ernor to get at the grafters, thousands upon thou-sands of letters pour into the executive chamber-messages of comfort and encouragement from citizens

7055 in every city, town and village of New York, biddingthe governor to stand his ground and wait for theapproaching day when the people will take the legis-lature into their own hands.

Exhibit 11.

(COPY)

Notice: No deduction allowed for or on accountof debts contracted in purchase of non-taxable se-

7056 curities, or incurred for the purpose of evading tax-

ation. Chap. 90 Laws of 1896.

Hours for Correction of Assessment, IO A. M. to 2 P.M. Except Saturdays, then io A. M. to 12 M.

The Department is not required by law to send thisnotice. It is sent for the information and benefit onlyof the party assessed.

Please bring this notice with you.

2353

Exhibit ii 7057

R. Book, Line 17971 Page 999.

Theodore Roosevelt,No. 689 Mad. Ave.

Department of Taxes and Assessments,Stewart Building, 28o Broadway.

New York, January ioth, 1898.

You are hereby notified that your Personal Estatefor 1898 is assessed at $5o,ooo, exclusive of BankStock, and that the same, if erroneous, must be correct-ed before the Commissioners on or before the 3oth 7058(lay of April next, or it will be confirmed at thatamount, from which there will be no appeal.

By order of the Commissioners of Taxes andAssessments.

C. ROCKLAND TYNG,Secretary.

(Card attached)

ROOSEVELT & KOBBE,Attornevs and Counsellors at Law,

44 & 46 Wall Street,(Bank of America Building) 7059

New York.

J. E. Roosevelt.George C. Kobbe.James A. Speer.

2354

7060 Exhibit 12.

Affidavit by defendant with respect to his resi-dence. Printed at page 370.

Exhibit 13 (first).

Muster-in roll of defendant. Printed at page 372.

7061 Exhibit 13 (second).

Letter from defendant to John J. Chapman, datedSeptember 25, 1898. Printed at page 379.

Exhibit 14.

September IO, 1898.

Hon. Theodore Roosevelt,Camp Wikoff Montauk, New York.

7062 My dear Roosevelt:

The Senator thinks that you should come to NewYork on Wednesday or Thursday of next week. Thatwould be on September I4th or I5th. In acknowledg-ing the receipt of this letter, will you please statewhether you can come on the receipt of a telegramfrom me. That is to say, it being assured that youcan come on one or the other of these days, I willtelegraph you, fixing the precise day.

The Senator says that he is going to make one moreeffort to induce Governor Black to withdraw. Hedoes not mean that he will offer him any terms, but

2355

Exhibit 14 7063

simplv that he Will try to conv-ince him that in justice

to himself, not less than the Republican party, he

should get out of the way. All these stories that you

may have read about attempted dickers with Black by

which as the price of his withdrawal he is to be sent to

the Senate, are falsehoods. No other consideration

has been at any time suggested to him than that he is

not the man for this particular occasion.

I have no faith in the Senator's further appeals.

Indeed, I think that he humiliates himself by any other

course than taking Black at his word and calling the

roll of the convention; but he says that it is only just 7064

to the party interest and to you as the candidate to

make a final effort to. get a harmonious and united

nomination. He thinks it will make a difference in the

vote. I don't, but he is more experienced than I. The'

truth is that everything has already been done that

human ingenuity can suggest to convince Governor

Black of the folly of his insisting upon remaining a

candidate; but he will not listen to anybody. Half the

chairmen of the county organizations throughout the

State have been to see him, to, tell him that their dele-

gations are not for him, that his election is impossible

and all that, and have come away without being per-

mitted to say anything that they had intended. Since' 7065

the Senator's personal talk with Black in Washington

he has had frank conversations with one after another

of Black's friends. He had told them that in his

judgment the Governor would be beaten if nominated;

that he could be nominated only as a result of

great machine exertion; that the sentiment in your

favor throughout the State is genuine and universal.

and that for him (Platt) to disregard the expressions

of public feeling that have come spontaneously from

every county, except for the most serious party rea-

sons, would be foolish leadership, and that he is not

prepared to assume such a responsibility. These views

2356

7066 Exhibit i4

have been faithfully reported to the Governor, buthis invariable answer is that he will remain a candi-date to the end; that he is entitled to the nomination;that he has earned it by good administration; thatPlatt is prejudiced against it; that there is no real pub-lic sentiment in your favor, and that all this "hurley-balloo" has been raised by Odell and me; that we arehis personal enemies and are acting from interestedmotives; that you are not fit to be nominated any-how because you are impulsive and erratic; that yourmilitary record, however it may attest your personal

7067 bravery, displays your characteristic rashness and im-petuosity and foolhardiness, and that as Governor youwould play the devil with the organization and getthe party into all sorts of tangles and ridiculous posi-tions. To all of this the reply has been that yournomination is not a matter of choice in the absenceof substantial reasons against you; that these reasonsdo not exist except in the imagination of the Gov-ernor and his friends; that you have always been asturdy thoroughgoing Republican, and that while youhave not identified yourself with the machine you havenever done anything to its injury; that you have prom-ised to act in all important matters after full consulta-tion and in view of the interests of the organization7068as such, as well as the party and public interest. TheSenator has informed Black again and again that hehas no personal feeling against him and would feelhimself constrained to support him were it not for theobvious condition of public sentiment. He has saidthat he would prevent your nomination if he could seeany fair reason to believe that your administrationwould be injurious to the organization; but that, be-lieving that the people want you and believing alsothat you will act fairly and intelligently and with afriendly regard for the organization as it exists, hewould be false to his duty if he did not see to it that

the public will was carried out.

2357

Exhibit 4 76A9

And so the thing has gone on day after day since

my visit to Camp "Wikoff, the organization leaders

throughout the State perceiving that the sentiment at

49 -Broadway was _favorable to you. They have acted

accordingly. Instead of an effort to restrain the pub-

lic sentiment, it has been cultivated and developed, and

with the final result that the Senator is convinced that

it wvill scarcely be possible for Black to obtain more

than one huhdred and fifty votes out of nine hundred

and seventy-one. He has personally seen one or

more representatives of every delegation. He has

never uttered a syllable against the Governor, but has 7070

simply discussed the matter from the point of view of

a successful campaign. The cordiality with which he

has been sustained by the organization leaders is some-

thing wonderful to observe. From everybody ex-

cept the State officeholders has come the one assur-

ance that he will be supported in whatever position he

takes. The- invariable answer that he receives when

he asks how a delegation will stand is substantially

this, "We are organization men and we will support

you as the leader of the organization. We will cast

our votes for any ticket that you recommend. If ybu

say Black, we will be for Black; if you say Roosevelt,

ve will be for Roosevelt. We prefer Roosevelt. We 7071

believe he is the strongest man that could be nomin-

ated. We think that his nomination will help our lo-

cal ticket and enable us to make a thoroughly success-

ful campaign. We doubt whether Black can be

elected, but we will act on your judgment and take

your advice." There is not a single county delega-

tion, with the exception of those that are controlled

by State officeholders, which has not placed itself

in the Senator's hands in just this way.

I think his Worst enemy will have to admit that he

has accepted the trust in the right spirit. He had

every right to be hostile towards Black, and distinctly

7072 Exhibit .4

to oppose him. Instead he has acted with a friendli-ness which has not been in the least appreciated.There has been a most complete opportunity for thefree expression of party feeling. It is absolutely truethat until he had his Washington talk with the Gov-ernor nobody had the slightest inkling of his pref-erence or purposes. Everybody was asked to statethe sentiments of his particular community, and inevery way the Senator kept himself free to throw hispersonal influence wherever public sentiment and theparty welfare directed.

1073 And now he has made up his mind and is ready totake his position. Perhaps, since your interview withhim is so shortly to take place, it might be well forme to repeat to you precisely the report I made to himof your attitude, on my return from Montauk. I toldhim that you said that you would like to be nominated;that you understood perfectly that if you were nom-inated it would be as the result of his support; thatyou were not the sort of man who would accept anomination directly out of the hands of the organiza-tion without realizing the obligation thereby assumed,to sustain the organization and to promote and upholdit; and that you were perfectly prepared to meet thatobligation and to discharge it justly; that if you wereGovernor you would not wish to be anything else thanGovernor; that you would not wish to be a figure-head or to accept any position before the public or inyour own mind which was not in keeping with thedignity of the office or which would not allow you todischarge your duties in the light of your judgmentand conscience; but that you would take the office, ifat all, intending in good faith to act the part of hisfriend, personally and politically; to acknowledge andrespect his position as the head of the Republican or-ganization and as the Republican Senator from the

State of New York; that you would not be led into

2359

Exhibit 14 7075

any factional opposition to the organization, but that

on the contrary you would aim constantly to make its

interests identical with the public interests; that you

would consult with the Senator freely and fully on all

important matters; that you would adopt no line of

policy and agree to no important measure or nomina-

tion without previous consultation, and that you

wanted him to agree to the same things on his part,

so that both you and he could meet in consultation

with minds free and open, each intending to reach

a conclusion satisfactory to both, and in that way to

preserve absolute harmony in the organization and 7076

among the supporters of the party. I told him that

you said that you, did not mean by this that you would

do everything that was wanted precisely as it might

be originally suggested, but that you did mean in good

faith and honest friendship to enter with him upon

the consideration of all matters proposed, without

prejudice and with the intention to, reach a conclusion

which the Senator no less than yourself would deem

wisest and best. I told him that you said that it would

be grateful to you to have Mr. Odell or some man of

similar position near you at Albany, in order to facili-

tate intercourse and for the purpose of supplying gen-

eral information about the conditions of the state; and7077

finally that while in the end, as an honest man you

would have to act on your best judgment and in the

light of your oath, you would seek with him to keep

the party united and the organization intact.

Of course, as you have seen, I have thrown my-

self into this cause with all my heart and soul and

because I believe in it. The Governor's taunt that

I am opposed to him because I was "interested" in

legislation which he prevented, is dishonest talk. I

never was otherwise "interested" in legislation at Al-

bany than I am in the Czar's peace proposals and the

future of the Philippines, but I believe in you, and I

2360

7078 Exhibit 14

believe in Platt, and knowing you both pretty closely,I believe that the spirit which animates you both willrender the Republican party as invincible two yearsfrom now as it is going to be in this election. I shallnot conceal from you the fact that I have one dis-tinct question mark in my mind. Please do not feelannoyed with me if I do a little preaching. TheSenator has acted, to some extent at least, on myjudgment and advice-sufficiently to make me feelanxious about the way things turn out hereafter. Evenin my short period of observation I have seen so

7079 many able men, who have brought themselves for-ward to important and powerful positions, finally falldown and wander off into. political retirement, that Ihave looked into the cause of it, and have alwaysfound substantially the same state of facts. Theyhave been brought forward by the organization, pro-moted by the organization, sustained by the organiza-tion, developed by the organization, until the idea be-came virtually fixed in their minds that they were the"whole thing." This notion first inspired by Mug-wump flattery and then expanded by their own am-bitions, has carried them into opposition with SenatorPlatt and into attempts to establish new machines of

7080 their own. Then came the end, and in no case hastheir collapse been due to any particular effort on thepart of Senator Platt to turn them back. He hasmade no such effort in Black's case. They have col-lapsed solely because they allowed themselves to getout of joint with that general party sentiment whichhas gradually centered around Platt as a leader andwhich has acquired such strength under his leadershipas to make departures under new ambitions impracti-cable. I want you, my dear Roosevelt, to go on andon. You are a rare good fellow and you have gotthe American spirit, which, with the multitude, I

greatly admire. You are dead honest, and' I like that

2361

Exhibit 14 708,1

too; but in the great office to which you are being socertainly called, you have got to remember that nobodyis ever surely right and nobody also ever absolutelywrong. You have got to. remember that compromiseand adjustment are unfailingly necessary to all humanprogress. If you laugh at my commonplaces, youwill at least be assured that they are well meant. Thething I fear is that these plausible and poisonous Mug-wumps will at sometime or other involve you in someof their "good government" entanglements intended,as they always are, to help the Democratic Party andto create dishonest prejudice against decent Repub- 7082licans, and that the first thing we know there will bea hitch. If ever a man will have need of patience,tact and good judgment, it will be you when you areGovernor, for everybody is expecting so, much of youand expecting so many impossible things and fromsuch conflicting points of view.

Now, write me that you are not offended with mefor sending you this homily, and remember that itcomes from a friendship which you will find to bereasonably disinterested and earnestly loyal.

Faithfully yours,LEMUEL E. QUIGG.

The Senator thinks that you should meet him at the 7083Rep. State committee rooms in the 5 th Ave. Hotel.

2362

7084 Exhibit 15 (First).

Camp Wikoff,

Montauk Point, L. I.,Sept. 12, 1898.

Hon. Lemuel E. Quigg,Republican Headquarters,

i Madison Ave.,New York.

My dear Quigg:

I hope that Saturday will do with the mustering

7085 out. It is a simple impossibility for me to get in be-fore.

As I telegraphed, your representation of what Isaid was substantially right; that is, it gave just thespirit. But I don't like the wording of some of yoursentences. At first, on account of this, I hesitated howto reply; but finally came to the conclusion that thelast sentence of your "report" covered the whole mat-ter sufficiently. I shan't try to. go over your differentsentences in detail; but for instance instead of sayingthat I would not "wish" to be a figurehead youshould have used the word "consent," and there arevarious other similar verbal changes to which I think

7086 you would agree. Then I wish you could havebrought out the fact that these statements were notin the nature of bids for the nomination or of pledgesby me, and that you made no, effort to exact anypledges, but that they were statements which I freelymade when you asked me what my position would beif nominated and elected (you having already statedthat you wished me nominated and elected). How-ever, I need not go, into the matter more in detail, andI am not sure that it is necessary for me to writethis at all, for I know that you did not in any waywish to represent me as willing to consent to actotherwise than in accordance with my conscience; in-

2363

Exhibit 15 7087

deed you said you knew that I would be incapable ofacting save with good faith to the people at large.to the Republicans of the United States, and to theNew York Republican organization; and this seems toabout cover it.

Will I see you and Odell on Saturday?Ever faithfully yours,

THEODORE ROOSEVELT.

P. S. In short I want to make clear that there wasno question of pledges or promises, least of all a ques-tion of bargaining for the nomination; but that Ipromptly told you the position I would take if I was. 70SE

elected Governor and suggested what I thought itwould be best for both Senator Platt and myself todo so as to prevent the chance of any smashup, whichwould be disastrous to the welfare of the party andequally disastrous from the standpoint of good gov-ernment. I was not making any agreement as towhat I would do on consideration that I received thenomination ; I was stating the course which I thoughtit would be best to follow, for the sake of the partyand for the sake of the state--both considerationsoutweighing infinitely the question of-my own nom-ination.

7089

2364

7090 Exhibit 16 (First).

Sept. 14, 1898.

Theodore Roosevelt,Montauk Point, N. Y.

I have just received your letter of September 12.

There is no difference whatever between us as to thatreport. It is perfectly understood and understoodjust as you indicate. I have written you at OysterBay making arrangements for Saturday. I do notthink it advisable for you to accept any invitationuntil after your schedule has been discussed by you

7091 and Odell.LEMUEL E. QUIGG.

Unnumbered Exhibit.

Letter from defendant to John E. Roosevelt, datedMarch 25, 1898. Printed at page 388.

Exhibit 15 (Second).

7092 49 Broadway, New York,

Aug. i6, 1900.

Hon. Theo. Roosevelt,Oyster Bay,

New York.

My dear Governor:

I have your letter of August 14th in relation to

the Spanish cannon. I do not care to have you makeany particular request to the Adjutant General. Ifit does not come easy and natural, I prefer to let the

cannon be where they are.

2365

Exhibit 15 7093

I note carefully all that you say with reference tothe Governorship. I assume that Mr. Odell will haveto be eliminated from the Gubernatorial problem, ashis family and himself are so decidedly opposed to hisbeing a candidate. I feel just as you do, that I wantto nominate a man who will be the best candidatebefore election and the best Governor after election,that we can find. But I do not agree with your prop-osition as to the character of the man who wouldbe available for that place. We cannot possibly electan Independent to the Governorship. The rank andfile of the Party would demur and would not support 7094him. We shall have to take some man who is astraight Republican and who has shown himself byhis faith and his works to be that kind of a manand elect him. I am in favor of just that kind ofa man and I do not believe we are going to lose agreat many votes by. reason of taking a man who isknown to be a straight Republican and will carryout the wishes of the organization. If we are tolower the standard and nominate some such man asyou talk about, we might as well die first as last.But I know we will not, because I am perfectly con-fident we can elect any reasonable, straight, conscien-tious Republican for Governor. I have not yet made 7095

up my mind who that man is, but have made up mymind that several men who have been named will notdo, for instance, Sereno E. Payne, who has alienatedthe farmers. from his support by reason of his.re-corded objection to the Oleomargerine Bill. Every-body who is named has some objection, and it is al-

most impossible to find a candidate to whom some-body will not object. Colonel Ellsworth would seemto be a reasonable candidate, and yet the objectionsgrowing out of legislation would make him weak.

Moreover, we want Ellsworth in the Senate and he

has consented to be a candidate for the Senate and

2366

7096 Exhibit i6

will be elected. That is true of Higgins and Nixonand White and others whom I might mention, whohave been suggested as candidates. I am taking theviews of Republicans all over the State, as they come'in to see me, and will consult with our best friendsbefore we arrive at any conclusion. But I am satis-fied that no man can be nominated who is not accep-table to the real Republican sentiment of the Partyin the State.

Yours sincerely,(Signed) T. C. PLATT.

709-

Exhibit 16 (Second).

Oyster Bay, August 20, 1900.

Hon. T. C. Platt,49 Broadway,

New York City.

My dear Senator Platt:

I have your letter of the i6th. I wish to see astraight Republican nominated for the Governorship.

7098 The men whom I have mentioned, such as ex-JudgeAndrews and Secretary Root, are as good Republicansas can be found in the State, and I confess I haven'tthe slightest idea what you mean when you say "ifwe are to lower the standard and nominate such menas you suggest, we might as well die first as last."To nominate such a man as either of these is to raisethe standard; to speak of it as lowering the standardis an utter misuse of words.

You say that we must nominate some Republicanwho "will carry out the wishes of the organization,"and add that "I have not yet made up my mind who

2367

Exhibit 16 7099

that man is." Of one thing I am certain; that, tohave it publicly known that the candidate, whoeverhe may be, "will carry out the wishes of the organiza-

tion" would insure his defeat; for such a statement im-plies that he would merely register the decrees of asmall body of men inside the Republican party, in-

stead of trying to work for the success of the partyas a whole and of good citizenship generally. It isnot the business of a Governor to "carry out the wishesof the organization" unless these wishes coincide withthe good of the party and of the State. If they do,then he ought to have them put into effect. If they 7100do not, then as a matter of course he ought to. disre-gard them. To pursue any other course would be to

show servility; and a servile man is always a mostundesirable-not to say contemptible-public servant.A Governor should, of course, try in good faith towork with the organization; but under no circum-stances should he be servile to it, or "carry out itswishes" unless his own best judgment is that theyought to be carried out.

I am a good organization man myself, as I under-stand the word "organization," but it is in the highestdegree foolish to make a fetish of the word "organi-zation" and to treat any man or any small group of 7101men as embodying the organization. The organiza-

tion should strive to give effective, intelligent andhonest leadership to and representation of the Repub-lican Party, just as the Republican Party strives togive wise and upright Government to the State. When

what I have said ceases to be true of either organi-zation or party, it means the organization or party is

not performing its duty, and is losing the reason for

its existence.Yours sincerely,

THEODORE ROOSEVELT.

2368

7102 Exhibit 17.

REPUBLICAN STATE COMMITTEE

Fifth Avenue Hotel

New York, May 6th, 1899.

Hon. Theodore Roosevelt,Executive Chamber,

Albany, N. Y.

My dear Governor:

Please take the time to read this letter through

7103 carefully and suspend judgment on any sentence un-til you have read them all.

When the subject of your nomination was under.consideration there was one matter that gave me realanxiety. I think you will have no trouble in appre-ciating the fact that it was not the matter of your in-dependence. I think we have got far enough alongin our political acquaintance for you to see that mysupport in a convention does not imply subsequent"demands," nor any other relation than may not rea-sonably exist for the welfare of the party. I expectedyou to have consideration of the views and wishes ofour independent friends, and, indeed, wished you totake that course in the hope that you would succeedin uniting the party.

I did have a little mite of apprehension at whathas been called your "impulsive nature." But itseemed to me that the element of danger there couldnot be very great. I reminded myself of the factthat you had gone through a great many differentpolitical experiences and that however large may havebeen the fund of "impulse" with which you startedout, you must by this time have realized the fact thatit is not himself only who is committed and rendered

responsible by the act of a party executive. I as-sumed that you would easily appreciate the fact that

2369

Exhibit 17 7105

anything done bv you as Governor ()f New Yorktended to commit your whole party, and especiallythose of us who were associated in the public mindwith your candidacy, and I had small doubt that youwould give fair consideration to, this fact before youbegan to move in any novel direction-novel, I mean,as to party policy.

But the thing that did really bother me was this: Ihad heard from a good many sources that you werea little loose on the relations of capital and labor, ontrusts and combinations, and, indeed, on those nu-merous questions which have recently arisen in poli- 7106tics affecting the security of earnings and the right ofa man to run his own business in his own way, withdue respect, of course, to the Ten Commandments,and the Penal Code. Or, to get at it even more clearly,I understood from a number of business men, andamong them many of your own personal friends, thatyou entertained many altruistic ideas, all very wellin their way, but which before they could safely beput into law needed very profound consideration. Ianswered these suggestions with more confidence thanI really felt. You will remember that in our FifthAvenue talk I brought this matter up, but, of course,we had no time to go into it carefully, and anyway, 7107by that time your candidacy had become practically asettled matter.

Now, I want to run along with a few general ob-servations necessary only to connect the particularthing that I wish to present to your mind with existingpolitical conditions here and throughout the country.They may sound a trifle didactic but I am sure youwill see their point. Throughout all the controversiesbrought up by the settlement of the war debt, andstill more rapidly since the two money metals began

to move away from one another in the matter ofvalue at the sixteen to one ratio, the Democratic party

2370

7108 E.rhibit 17

has been moving steadily in all those directions whichconverged and have come to be known as Populism.The organization of the Populist party drew a linewhich the two great parties were obliged to confrontand the conventions of 1896 fixed their respectiveattitudes. The Democrats and the Populists becamepractically fused. The Republicans stood squarelyagainst the entire programme of folly. We won; butwe did not check the Populistic craze. For a craze ithad become. In Mr. Bryan and the men he gatheredaround him it had found just the right sort of leaders

710S for a craze; that is, sincere, and enthusiastic agi-tators. The agitation has been kept up. If it hadnot been for the war we should have been hopelesslybeaten in the Congress elections last year, and we areat this minute preparing for another conflict over theissues of the Chicago Convention which will be farmore difficult and doubtful than was the struggle of1896.

You have just adjourned a Legislature which, not-withstanding the conspiracy which seemed to exist inthe Senate for the destruction of certain party billswhich you and I had agreed upon as eminently wise,created a good opinion throughout the State. I con-

7110 gratulate you heartily upon this fact because I sin-cerely believe as everybody else does that this goodimpression exists very largely as a result of your per-sonal influence in the legislative chambers. But at thelast minute and to my very great surprise you did athing which has caused the business community ofNew York to wonder how far the notions of Popu-lism as laid down in Kansas and Nebraska have takenhold upon the Republican party of the State of NewYork.

I do not propose to argue the question of the ad-visability of taxing franchises. I do not think thatthis question is involved in the question of what ought

2371

Exhibit 17 7111

to be done with the Ford bill. The slovenly characterof the Ford bill and its political consequences areapparent upon the first reading of it. You and I talkedover the question of a franchise tax somewhile ago.Indeed, we then discussed the whole question of thetax laws, their contradictions, their anomalies, theircrudities and the mistaken processes by which theywere given effect. You argued then in favor of afranchise tax bill. I opposed it, not as a matter ofprinciple but as a matter of time and condition. Mybelief was that a franchise tax bill taken by itsclf wasinopportune; that radical legislation of that sort 7112was bound to strike the conservative business com-munity, which is the strength of the Republicanparty, as an extreme concession to Bryanism and thatthis was a bad impression to create right on the vergeof a Presidential election with Bryanism as the directissue. I thought that this view of the case had im-pressed you, and certainly it was-agreed that a resolu-tion should be passed, under the terms of which ajoint committee of the Legislature should be appointedto consider the whole question of taxation in orderthat a complete and intelligent law might be passed.Our resolution creating this committee was actuallyenacted and under its terms, I assume, the committee 7113is now about to be named. I understood that thiswas satisfactory to you, and that action as to a fran-chise tax was to await upon the deliberations of thiscommittee. And, yet, the very last sessions of theLegislature were startled by repeated messages fromthe Executive Chamber almost commanding the ma-jority to pass the Ford bill and Republican memberswere put in the position of being compelled to votefor a bill reluctantly and without the approval of theirown judgment or to discredit the influence of a Gov-ernor whom it was our specially chosen policy to fol-

low and uphold.

2372

7114 Exhibit 17

I think, my dear Governor, that you put this partyin a most unfortunate position and that you did itwithout due consideration of the understanding wearrived at when we decided upon the appointment ofthis special legislative committee.

This Ford bill, if signed, will begin to. operate nextyear, just at the time when the people are about todeposit their ballots for the office of President. Inthe Greater City of New York the taxes will be leviedby a board of assessors against whose integrity Mr.Mazet and Mr. Moss say they are prepared to present

7115 evidence of a most incriminating character. They willshow, they say, many cases of evident and intentionaldiscrimination, discrimination which is only to be ex-plained by a political or a financial motive. If yousign this bill you will give to these very men an op-portunity to blackmail compared with which the op-portunity of the Police Commissioners is picayune andcontemptible. A man said to me the other day: "Inever have paid one cent to the Democratic Partyin my life. I am a Republican and have contributedto the Republican Party as a matter of principle. Butwhat can I do under the terms of such a law as this?I shall simply have to do whatever is demanded ofme." Just think for a moment what this means tothis great city. If this franchise tax had come alongas one feature of a general scheme of taxation re-form it would not have attracted special attentionas a Populistic measure. Nor would it have seemedsudden or ill considered, or an instance of mob gov-ernment, but there was nothing behind this franticFord bill until you sprang forward as its championexcept the clamor of two yellow newspapers, and tothe average man it looks as though the RepublicanGovernor of this great commonwealth had become in-toxicated by the sounding brass and tinkling cymbalsof these sensational Democratic newspapers, and he

2373

Exhibit 17 7117

shoved the conservative Republican party into a Popu-listic whirlpool.

I hope you will not sign this bill. I know that itwill take a very rare and difficult quality of moralcourage not to sign it after the part you took in itsenactment. But you have shown this quality of cour-age several times before in your life and you will bea long time finding an occasion for its assertion withwiser results to the public. The lawyers, of course,will present to you those aspects of the bill which intheir minds render it obnoxious to the Constitutionor against public policy as well for what it does not 7118say as for what it says. Its crudities, its inequalities,its omissions and other defects I shall leave to them toexplain. The points I ask you to consider are these:

i. That the Republican party now stands and muststand for the next few years as the only barrier be-tween the business interests of this country and a del-uge of ruinous Populism, and that the effect of thepassage of this bill at this time and in this way is toraise a large doubt in the minds of Republicans andthose conservative Democrats who have been ourallies, as to our courage and good faith in the profes-sion we have made of due regard for the rights ofproperty and for the general business interests of the 7119community.

2. That the administration of the bill, being left tothe local assessors, will place every franchise corpora-tion in the Greater New York and in the other cities,except only Syracuse, at the mercy of men who willnot scruple to bleed them and blackmail them to the

extent of hundreds of thousands of dollars for use

against the Republican party in the next Presidential

campaign.

3. Which is very important to your party, however

lightly you may be disposed to regard it, that it tends

2374

7120 Exhibit 17

to put you in the public mind in the Pingree andMayor-Jones-of-Toledo class of statesmen.

4. That from every point of view it is unnecessarybecause of the appointment of the special legislativecommittee.

5. That to offset the inevitable injuries it will in-flict upon us there can come from it no single particleof strength. It will not bring to the Republican partyone yellow newspaper, nor one yellow vote.

I have written frankly, but in so far as my letter7121 has a personal bearing, it is a thoroughly friendly one.

I don't want to see you make the mistake of signingthis bill. And while, of course, every man under ourconstitutional oath of office must act in the end uponhis own judgment and conscience, yet, by the sametoken, he is bound to keep his mind open and care-fully consider all sorts of things in addition to thething that raises the issue. To use an old simile, itwas right to free the slaves, but it was not wise tofree them until the people were prepared for it. Afranchise tax carefully considered as to the extent ofits operation, the amount of the levy, the purposesto which it shall be applied, and the method of its

7122 collection may be a good thing. I am inclined tothink it is a good thing. But the Ford bill shot intothe heart of the business community out of the clearsky, worked by Tammany Hall for political and indi-vidual plunder is a bad thing and I sincerely believethat you will make the mistake of your life if youallow that bill to become a law. With a political ex-perience that runs back nearly half a century I do nothesitate to predict that the signing of this bill, with thetremendous power it conveys to the Tammany as-sessors, will give New York to the Democratic partyin i9oo.

2375

E.rhibit 18 7123

I hope that you will not consider that I am makinganything in the nature of a personal request. Thesubject is much too serious for anything of that kind.I am asking and advising in the public interest andfor the reasons that I have here set forth, and because

I am one of the considerable body of Republicans whohave come to see new reaches of Republican successunder a leadership which is not only straightforward

and honest, but which is as little to be misled as dis-mayed by sudden rushes of foolish clamor or factionalbitterness.

Faithfully yours, 7124T. C. PLATT.

Exhibit 18.

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

May 8th, 1899.

Hon. T. C. Platt, 7125Fifth Avenue Hotel, N. Y. City.

My dear Senator:

I received your letter yesterday afternoon, and have

taken 24 hours to consider it deeply before replyinig.In the first place, my dear Senator, let me express

my sense of the frankness, courtesy and delicacy with

which you write and with which you have invariablytreated me ever since my nomination. The very keensense that I have of this makes it more unpleasant

than I can say to have to disagree with you. As I have

told you, and as I have told very many others, you

2376

7126 Exhibit 18

have treated me so vell and shown such entire will-ingness to meet me half way, that it has been thegreatest possible pleasure for me to agree with youand to try to carry out your ideas, and it has causedme real pain when I have had to disagree with you.I am peculiarly sorrv that the most serious cause ofdisagreement should come in this way right at the endof the session.

I remember well all the incidents of our meetingwhich you describe, and I knew that you had justthe feelings that you mention; that is, apart from my

7127 "impulsiveness," you felt that there was a justifiableanxiety among men of means, and especially menrepresenting large corporate interests, lest I might feeltoo strongly on what you term the "altruistic" sidein matters of labor and capital and as regards therelations of the State to great corporations. I veryearnestly desired to show that this was not to anyimproper degree the case. My dear Senator, I cannothelp feeling that I have shown it. Now, I do not liketo say this when you think I have not, because youhave infinitely more experience than I have in mattersof this sort, and in most of such cases your judg-ment is far better than mine; but pray do not believe

7128 that I have gone off half-cocked in this matter. Ishould have been delighted to have escaped the needof taking action at all, and I only did take actionwhen it was forced upon me, after an immense amountof thought and worry.

I appreciate all you say about what Bryanism means,and I also know that when parties divide on such is-sues, the tendency is to force everybody into one ortwo camps, and to throw out entirely men like my-self, who are as strongly opposed to populism in everystage as the greatest representative of corporate wealth,but who also feel strongly that many of these repre-sentatives of enormous corporate wealth have them-

2377

Erllibit i8 7129

selves been responsible for a portion of the condi-tions against which Bryanism is in ignorant, and some-times wicked, revolt. I do not believe that it is wiseor safe for us as a party to take refuge in mere nega-tion and to say that there are no evils to be corrected.It seems to me that our attitude should be one ofcorrecting the evils and thereby showing that, whereasthe populists, socialists and others really do not cor-rect the evils at all, or else only do so at the expense ofproducing others in aggravated form, on the con-trary we Republicans hold the just balance andset our faces as resolutely against improper cor- 7130porate influence on the one hand as against dema-gogy and mob rule on the other. I understandperfectly that such an attitfde of moderation isapt to be misunderstood when passions are greatlyexcited and when victory is apt to rest with theextremists on one side or the other; yet I thinkit is in the long run the only wise attitude. I believethat in the long run here in this State we should bebeaten, and beaten badly, if we took the attitude ofsaying that corporations should not, when they re-ceive great benefits and make a great deal of money,pay their share of the public burden; and that on theother hand, if we do take this attitude we shall be 7131all the stronger when we declare that the laborersshall commit no disorder and that we are utterlyagainst any attack on the lawful use of wealth. Forinstance, when trouble was anticipated just now inBuffalo, I at once sent Major General Roe out thereand got the whole brigade of National Militia in theneighborhood in shape to be used immediately. Thelabor men came up to protest. I told them instantlythait I should entertain no protest, that the Militiawould not be called out unless the local authoritiesstated that they needed them; but that the minute this

2378

71.32 Exhibit 18

condition was found to exist, they would be calledout, and that I should not consider for a moment the

protest that this was "intimidating the laboring men,"

because it would intimidate no one unless he was anx-

ious to commit lawlessness, and that in that case itwould be my especial care to see that he was intimi-dated.

Now, let me take up this particular franchise taxbill. I wish that its opponents would recollect that

it is by no means a revolutionary measure. Franchises

are taxed in verv much the same way in Connecticut

7133 and have been for many years. They are taxed in asomewhat different way in Pennsylvania. They aretaxed much more severely in many parts of GreatBritain. \Vhere they have escaped taxation the result

has been as in Detroit, Toledo and Chicago, to make thecitizens generally join in such a revolt that they haveswung to the opposite extreme of municipal owner-

ship and have forbidden the granting of any franch-ises. I think we wish to be careful about taking a posi-

tion which will produce such a revolt. And as re-

gards the effect on the party, I believe that the killingof this bill would come a great deal nearer than its

passage to making New York Democratic a year from

7134 next fall. If we run McKinley against Bryan the bigcorporate influences must in self defense go for theformer: and on the other hand, we shall have strength-

ened the former by strengthening the Republican Party

among the mass of our people and making them be-

lieve that we do stand squarely for the interests of

all of the -people, whether they are or are not con-

nected in any way with corporations. When I sent

in my first taxation message to the Legislature it did

not seem as if any bill could be passed or agreed upon

by the Legislature; and I was then told that this Com-

mittee would be appointed and that a serious effort

2379

Exhibit 1S 7135

would be made to tax franchises. In the message itselfyou will remember I took the most positive ground infavor of thus taxing them. Without any notification tome the Senate suddenly took up and passed the Fordbill. I then began to study it pretty carefully, and themore I studied it, the more convinced I became that itwas along the right lines; that is, that franchises shouldbe taxed as realty, according to the Connecticut plan.

Now, as to the inference about my yielding to theyellow journals and public clamor. I have not thisyear to my knowledge seen a copy of The Journal.I doubt very much if I have seen a copy of The World 7136twice and certainly I have never looked at its edi-torial page; and it would be an over-estimate to saythat I have seen a dozen editions of the Herald. Ihave, however, read the Tribune quite often and TheSun very often. These are almost the only papersI have seen except the Albany Evening Journal. Ifeel the most profound indifference to the clamor ofthe yellow papers. I think I showed it in my attitudeon the Mrs. Place matter; in my veto of the World'slabor bill; in putting the Militia in readiness in Buffaloto meet the strike; also in my attitude on the 71stRegiment business. I appreciate absolutely that anyapplause I get from any such source would be too 7137evanescent for a moment's consideration. I appreciateabsolutely that the people who now loudly approve ofmy action in the Franchise Tax bill will forget allabout it in a fortnight, and that on the other hand,the very powerful interests adversely affected will al-ways remember it-certainly to my disadvantage,

which is unimportant, and not impossibly to the dis-

advantage of the party, which is important. But I

feel that we should be put in the wrong if the bill

fails to become a law.However, to return to the thread of the narrative of

the bill. It got into the House and everybody agreed

2380

7138 Exhibit 18

that some action in reference to taxation would haveto be taken this session; that is, that the principle oftaxing franchises would have to be recognized insome shape or form so as to give the Committee some-thing to work on. As I told you that morning atbreakfast, and as I have reiterated to Odell on hislast visit here, I was anxious to accept any bill, whetherI approved of it in all its details or not, provided itmet your approval, and recognized substantially theprinciples sought to. be attained. When Odell was uphere the Monday and Tuesday before the Legislature

7139 adjourned, I went over this matter with him. Heagreed vith me in the most unequivocal manner thatsome measure taxing franchises must be passed-in-deed treated this as a matter of course. At first on.looking over the Rodenbeck and Ford bills, he saidhe preferred the Ford bill, but that an amendmentshould be inserted giving the taxing power to theState authorities. I think he said the State Assessors,but otherwise the Comptroller. To this I cordiallyagreed. That same afternoon he told me he preferredthe Rodenbeck bill. I said, very well; that althoughI did not think it much of a measure, I would cordiallyback it if that was what the Organization wanted.

7140 \ccordingly I summoned the different Senators, Ells-worth, Raines, Higgins, Stranahan and others andasked them whether they would take up the Roden-beck bill. They positively refused to do so and said

that the Ford bill was what everyone wanted. I thensaw Nixon and Allds and found that they were bentupon the Rodenbeck bill. I asked the leaders of thetwo Houses to consult together and come to an agree-ment. They failed to reach any agreement. In mypresence Ellsworth told Nixon that they must passthe Ford bill. I then wrote to Ellsworth and Nixon

personal letters explaining that something ought to

2381

Exhibit 18 7141

be passed; that though I did not like the Rodenbeckbill, I was entirely content to take it, but that thetwo Houses ought to agree on some measure. Finallythe day before adjournment Nixon and Allds calledupon me and said that they could no longer with-stand the pressure; the people wanted the Ford bill(Allds used the words that he had "received ordersnot to pass it") and they could not withstand thepressure any longer and would have to pass it, butwished it to be understood that they were not solelyresponsible for it-that is, I understood that theywished I would share the responsibility. They ex- 7142plained that they knew they could not get the Roden-beck bill through the Senate and did not think theycould get it through the House. The Senators hadalso told me by this time that they could not pass theRodenbeck bill, and that if any amendment was madeto the Ford bill, they thought that at that late dayin the session it simply meant its death. Accordinglyafter Nixon and Allds went out and after Fallowshad come in to state that without an emergency mes-sage theY could not pass the bill, I sent them down theemergency message. Nixon says and then said that itwas absolutely necessary for us to pass the bill; Ells-worth said it is not to be passed; Nixon said my mes- 7143sage was needless, and my message was never read.Exactly what became of it after it left my messenger'shands and passed into the custody of the Assembly,I do not know; I believe it was torn up. At any ratethe course was followed of refusing to entertain it;the objection being frankly made to the passage ofthe bill by Mr. Kelly, among others, that it couldnot be passed because Mr. Brady (he who delugedthese counties last year with the money to beat ourticket) was against it. The representatives of thecorporations here were perfectly frank in stating that

2382

7144 Exhibit i8

they did not intend to have any Legislative recognitionof the principle that franchises should be taxed; thatthey were against it in any and every shape; thatthey were perfectly willing to have a Committee ap-pointed, because they would take care that that Com-mittee made its report in such shape as to preventfranchises being interfered with, but that no sub-stantial action recognizing their taxation should betaken. They also" urged upon me that I personallycould not afford to take this action for under no cir-cumstances could I ever again be nominated for any

1145 public office, as no corporation would subscribe toa campaign fund if I was on the ticket and that theywould subscribe most heavily to beat me, and whenI asked if this was true of Republican corporations,the cynical answer was made that the corporations thatsubscribed most heavily to the campaign funds sub-scribed impartially to both party organizations. Un-der all these circumstances it seemed to, me that therewas no alternative but to do what I could to securethe passage of the Ford bill without amendment-not that I altogether liked it, but that I thought it agreat deal better than inaction under these conditions.I accordingly sent in my second message.

7146 The serious objection to this bill is that the levyingand assessing of the tax is made by the local authori-ties. It seems to me right that the payment shouldbe to the local authorities, but the levying and assess-ing should be done by the State authorities. In itsessence the tax is right. It should be a tax as realtyand not as personalty. I question very much if wecould by law secure at the outset the right method ofgetting at the money value of these franchises.- Itseems to me that it would be wiser to leave that ques-tion to a board of assessors. Nevertheless if the op-posite course is deemed desirable, I am perfectly will-

2383

Exhibit '9 7147

ing to acquiesce. If the Mazet Committee brings out,as you tell me it will, the utter corruption of Tam-many in laying these taxes, my own idea would be,subject to your approval, that we should use that asa justification for requesting speedy action by thejoint Committee of the two Houses in preparing a

proper tax bill, and I am then entirely willing, if itis deemed best to call together the Legislature and havethe present bill amended, or have it repealed by thepassage of a full and proper tax bill; it being alwaysunderstood, of course, that this tax bill shall contain

provisions under which these franchises will be taxed 7148in reality and genuinely, and not nominally, so thatthey shall pay their full share of the public burdens.

I have just received a telegram from Odell sayingthat he cannot come up here to spend the night withme. I shall ask him up for tomorrow night, and willsubmit my memorandum on the bill to him.

I would come down to see you but it is simply im-possible to leave the thirty day bills at this time.

Faithfully yours,(Signed) THEODORE ROOSEVELT.

7149Exhibit 19.

SWEEPING NEW FRANCHISE-TAX BILL\VILL INCLUDE FACTORIES AND

RAILROADS.

(Ford Bill in Roman. Amendments in Full-Face.)

Section i. Subdivision three of section two of the

tax law is'hereby amended to read as follows:

2384

7150 Exhibit r9

3. The terms "land," " real estate" and "real prop-erty," as used in this chapter, include the land itselfabove and under water, all buildings and other ar-ticles, substructures and superstructures erected upon,under or above, or affixed to the same; all wharvesand piers, including the value of the right to collectwhafage, cranage or dockage thereon; all bridges, alltelegraph lines, wires, poles and appurtenances; allsupports and inclosures for electrical conductors andother appurtenances upon, above and under ground;all surface, underground or elevated railroads.

7151(Following lines stricken out.)

Including the alte of all franchises, rights or per-mission to construct, maintain or operate the same in,under, above, on or through streets, high-ways or pub-lic places.

(The following new matter introduced.)

"And, for the purposes of taxation, the value of allfranchises, rights or permission to construct, main-tain or operate the same on, above or through streets

7152 or public highways, including the value of all fran-chises for all railroads operated by steam, horse-power,cable, electricity or other motive power, and ALLFRANCHISES FOR MANUFACTURING PUR-POSES, shall be deemed to be real -estate."

(Text of original bill then continues as follows.)

All railroad structures, substructures and super-structures, tracks and iron thereon; branches, switches

and other fixtures permitted or authorized to be made,laid or placed in, upon, above or under any public orprivate road, street or grounds; all mains, pipes and

2385

Exhibit i9 7153

tanks laid or placed in, upon, above or under any

public or private street or place for conducting steam,heat, water, oil, electricity, or any property, substanceor product capable of transportation or conveyancetherein or that is protected thereby.

(Following new matter introduced.)

"Including the value of all franchises for manufac-turing purposes, railroads, telegraph, TELEPHONE,FERRIES, STEAMBOAT and TRANSPORTA-TION LINES." 7154

(Text of original Ford bill then continues as follows.)

Including the value of all franchises, rights, author-ity, or permission to construct, maintain, or operate,

in, under, above, upon, or through, any streets, high-ways or public places, any mains, pipes, tanks, con-duits or wires, with their appurtenances for conduct-ing water, steam, heat, light, power, gas, oil or othersubstance, or electricity for telegraphic, telephonic orother purposes; all trees and underwood growing uponland, and all mines, minerals, quarries and fossils inand under the same, except mines belonging to the 7155State.

(These additional sections to the Ford bill areproposed.)

"Section 2.-In addition to the powers and dutiesnow conferred by law upon the State Board of TaxCommissioners, it shall be the duty of the' said boardto assess the value of all public franchises, and the

value of such franchises shall be determined in themanner following:

2386

7156 Exhibit 19

"The said board shall assess said franchise first iper cent upon all the gross earnings of the corpora-tions owning or possessing such public franchises, and,in addition thereto, whenever such franchises shallhavae declared a dividend of 4 or more than 4 percent per annum, they shall assess the said franchisesat i per cent of said dividend.

"Said Board of Tax Commissioners shall certifyto the Comptroller, County Treasurer or other fiscalofficer having charge of the collection of the taxes inthe locality where the same is assessed the amount

7157 of the assessment levied upon the said corporationby the said State board, and the Comptroller, CountyTreasurer or other fiscal officer having charge of thecollection of such taxes shall proceed to collect thesame as other State, county, town and municipal taxesare collected.

"Upon the receipt of the taxes received by suchfiscal officer he shall within thirty days return to theComptroller of the State of New York an amountequal to one-third of the amount received by him forsuch tax, and to the county in which such fiscal of-ficer resides an amount equal to, one-third of suchtax, and to the city, village, town or other municipal

7158 subdivision an amount equal to the remaining one-third of such tax.

"The one-third thereof received by Comptrollersshall be for the benefit of the State, the one-third re-turned to the countv for the benefit of the county, andthe one-third for the municipality shall be for thebenefit of the municipality in which the franchise isoperated.

"Section 3.-For the purpose of carrying this lawinto effect the said Board of State Tax Commissionersshall have power to compel the attendance of wit-nesses, to administer oaths or affirmations and compel

2387

E.rhibits 20, 21 71,59

the production of persons and papers, and all suchother powers for the proper conduct of assessing thesaid franchises as might or could be done by a Justiceof the Supreme Court.

"Section 4.-Any person who wilfully refuses toanswer any question asked him by said State board,or who refuses to deliver to said board any book orpaper directed to be delivered to the State board forexamination, shall be guilty of a misdemeanor; andany person who wilfully and knowingly answers anyquestion falsely shall be deemed guilty of perjury.

"Section 5 .- This act shall take effect immediately." 7160

Exhibit 20.

Letter from defendant to plaintiff, dated January29, 1907, printed at page 442.

Exhibit 21.

Letter from defendant to plaintiff, undated, printed 7161at page 453.

2388

7162 Exhibit 22.

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

March 27th, 1899.

My dear Mr. Barnes:

I have yours of the 25th inst. in reference to thecase of Mr. James Sinclair. I quite agree with you.Any man who went to the war is entitled to be rein-stated in his old position when he comes back and any

7163 appointment made to fill the place shall be treatedmerely as temporary.

Faithfully yours,THEODORE ROOSEVELT.

To Mr. William Barnes, Jr.,Albany, N. Y.

Exhibit 23.

STATE OF NEW YORK

7164 EXECUTIVE CHAMBER

Albany

April 5 th, 1899.

William Barnes, Esq.,Albany Journal,

Albany, N. Y.

My dear Mr. Barnes:

When I came back yesterday I found you had gone.

I wish you could let me know whenever you wouldlike to see me, and I will arrange a meeting some time

2389

Exhibit 24 7165

when there is not such a jam, that is, if I can get anykind of leisure.

Yours very truly,THEODORE ROOSEVELT.

M(Dictated bythe Governor)

Exhibit 24.716(

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Feby. 2oth, 1899.

Mr. William Barnes, Jr.,Albany, N. Y.

My dear Mr. Barnes:

Mr. Youngs has handed me your letter to him ofthe I6th inst. in reference to the Lincoln Dinner ofthe Albany Co. Republican Organization. I shall try 7167to drop in at the dinner any how.

What kind of recognition could I extend to SenatorDepew ? I should very much like to do it.

Very sincerely yours,THEODORE ROOSEVELT.

2390

7168 Exhibit 25.

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

March 3 1st, 1899.

Hon. William Barnes, Jr.,Albany, N. Y.

My dear Mr. Barnes:

From the enclosed letter from Dr. Wise I fear that

7169 Mr. Sinclair has misinformed you.Please return it to me after you have read it.


Enclosure

Exhibit 26.

STATE OF NEW YORK

EXECUTIVE CHAMBER

7170 Albany

October I8, 1899.

Mr. William Barnes, Jr.,C/o Albany Evening Journal,

Albany, N. Y.

My dear Mr. Barnes:

Your letter of the 13th instant. It will give me

great pleasure to see you about that very soon.Sincerely yours,

THEODORE ROOSEVELT.

2391

Exhibit 27. 7171

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. iith, I9OO.

William Barnes, Jr., Esq.,The Journal Co., Albany, N. Y.

My dear Mr. Barnes:

I have yours of the ioth inst. in reference to theCommissioner of Jurors of Albany County. The plan 7172you suggest would seem to me to be all right. I willlook into the matter at the earliest chance.

Sincerely yours,THEODORE ROOSEVELT.

Exhibit 28.

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany 7173

Jany. 24th, I9OO.

Mr. William Barnes, Jr.,The Journal Company, Albany, N. Y.

My dear Mr. Barnes:

I have yours of the 23rd inst. in reference to theAlbany County Republican Organization dinner, andif I possibly can I am going to attend.

Faithfully yours,THEODORE ROOSEVELT.

2392

7174 Exhibit 29.

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Feb. 21st, 1900.

Mr. William Barnes, Jr.,Albany, N. Y.

Dear Mr. Barnes:

Your letter of the 2oth inst. at hand on my way

7175 to New York. As soon as I get back I will see youabout that Allen matter.


Exhibit 30.

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

7176 April 14 th, 19oo.

William Barnes, Jr., Esq,The Journal Company,

Albany, N. Y.

My dear Barnes:

I have your letter of the 13th in reference to the

Adirondack Survey. I am sorry to say that all the

scientific men seem to be a unit against Mr. Colvin,

but I will look carefully into the matter, however.Faithfully yours,THEODORE ROOSEVELT.

2393

Exhibit 31. 7177

Albany, N. Y., November 15, 1898.Dear Colonel:

In the midst of the many words of congratulatiotwhich you have received, I did not wish to intrudtat an early date. Permit me, however, now to expressthe intense satisfaction which I, with other Repub-licans, feel at your success.

As I look forward to the coming two years, I cansee much with which a man of your motives and tem-perament will have to contend, and if you pass suc-cessfullv through the ordeal, you certainly'will meritthe high regard in which you are now held, even in 717the minds of those who voted against you.

I desire to record here that I have received a re-quest from George Curtis Treadwell, now military-secretary to Governor Black, who desires reappoint-ment; also from William G. Rice, your successor asUnited States Civil Service Commissioner who de-sires to represent the Democratic party on the civilservice commission. I am undetermined as to whatI shall do in the premises. I have no wish to intrudeupon you regarding military secretary, as perhaps Idid in Mr. Treadwell's case upon Governor Black,neither do I wish to consume whatever favorable con-sideration you may feel inclined to direct toward the 7179county- of Albany by recommending Democrats. Ifyou have already determined upon military secretary,or if you intend to keep upon the civil service commis-sion Mr. Hart, I can explain these facts to my friendsabove. I should like to see Mr. Treadwell reappointed.I should like to see Mr. Rice secure the post he de-sires, but I do not think that their'services are ofsuch a nature that I should in the interest of theparty insist upon their appointment.

Very sincerely yours,WILLIAM BARNES, JR.

Hon. Theodore Roosevelt,Oyster Bay, N. Y.

2394

7180 Exhibit 32.

December i6, 1898.

Dear Colonel:

I have read in the newspaper that you are beseigedby the representatives of the various candidates forcommissioner of labor statistics. What agreementsmay have been made regarding the disposition of thisoffice or what your intentions may be I do not know.Possibly the entire matter has been brought to a con-clusion, but if it has not I want to say a word for

'Mr. John' McMackin, who has been Mr. McDon-71l1 ough's faithful deputy and who is entitled to consid-

eration at our hands.I am informed that you are receiving letters from

Albany protesting against the appointment of Mr.Bender because of his relations with my nefarious self.In reply to these communications I have only this tosay: Mr. Bender will make as, thoroughly efficient aman for the place as you could find in this state, andupon no occasion will you ever find him inclined tooppose your policy in the management of the publicbuildings located in Albany. As far as the abuse ofme, with which your ears have been filled is con-cerned, I have nothing to say.

7182 Very sincerely yours,WILLIAM BARNES, JR.


2395

Exhibit 33. 7,S3

Dec. 21, 1898.Dear Colonel:

In reply to your favor of the 19th inst. askingfor the residence of John McMackin I beg to statethat he is a resident of the city of New York andvotes, I believe from the Nineteenth Assembly district.He was a delegate to the last Republican state con-vention from this district.


Hon. Theodore Roosevelt,Oyster Bay, N. Y. 7184

Exhibit 34.

Dec. 21, 1898.Dear Colonel:

I have received a request from a large number ofRepublicans in Albany who have been earnest andactive in their support of the party and whose rela-tions with me are of such a character that I cannotwithstand their request, and so write you.

They desire that Fred. C. Ham, a lawyer of excel- 7185lent standing in Albany, who has had charge of theRepublican meeting in our county for the last fouryears; shall be appointed one of the commissioners ofthe statutory revision. I know nothing regarding yourplans in this direction, but I suppose that you arecontemplating a change. I wish you would hold thematter in abeyance until Mr. Ham can talk with youand his friends can explain his qualifications.



2396

7186 Exhibit 35.

Dec. 23, 1898.

Dear Colonel:

I read in the newspapers contradictory accounts as

to the attitude which you will take in your inaugural

or message to the Legislature regarding biennial ses-sions of the Legislature.

I sincerely hope and trust, inasmuch as the Repub-

lican platform at Saratoga did not declare in favorof the biennial theory, that you will neglect to men-tion it. This subject was projected on the political

i1b landsdape by Governor Black without the slightestprovocation. I believe that there was hardly a news-

paper article written or a speech made in favor of theproject before he launched it and attempted to makeit a part of the Republican party's state doctrine.

I do not believe a friend will be made by passingthe proposed amendment, whereas a neglect of thesubject will not arouse any particular opposition ordiscussion. Even if you should decide, after coming

here, that it was wise to push the amendment whichpassed last winter, you could do. so just as well wvhetheryot,- inaugural or message contained a specific recom-mendation in that direction or not. Advocacy of the

7188 plan would seem to the people of Albany like a gra-

tuitous attack, whereas the possible passage of the

resolution later would simply be in order, in view oflast year's action, and you would not be held indi-vidually responsible therefor.

On its merits, the resolution which passed last win-ter is pretty close to an attack on popular govern-ment.

Senators to be chosen for a period of four yearsand members of Assembly for two years gives the peo-

ple very little chance to register approval or disap-proval, whereas senatdrs to be chosen for four years

2397

Exhibit 3 6 7189

have absolutely no relation, as far as the public is

concerned, with the governor who is chosen in themiddle of their term.



Exhibit 36.7190

October 13, 1899.

Dear Governor:

I desire to enter an application for Dr. James H.Mitchell, of Cohoes, for appointment as one of the

Fish and Game Commissioners of the state.

I wish some day shortly to have a talk with youabout Dr. Mitchell and explain to you the reasons whyI am earnest for his appointment. Suffice it to say

that he is mayor of the city of Cohoes, has beentwice elected to that office and is again a candidateand doubtless will be elected by an increased majority.

The office is one which is all honor. There is no re- 7191

muneration, and the doctor's remarkable strength andpopularity in the city of which I speak-which as far as

my information goes have never secured an appoint-ment from the governor-give additional weight to

this application.With best regards, I am,

Very truly yours,WILLIAM BARNES, JR.

Hon. Theodore Roosevelt,Executive Chamber.

2398

7192 Exhibit 37.

March 24, 1899.

Dear Governor:

There called upon you several days ago Mr. JamesSinclair, who was formerly a resident of this county,and was employed as a bookkeeper in the ManhattanState Hospital and enlisted in the Ninth regiment.Upon his return he found that his place had been filledby Dr. McDonald, the General superintendent of thehospital.

I want to say for Mr. Sinclair that if he can be re-7193 instated in his former place such action will be looked

upon as a favor by his many friends in this city. Hesays that there is a probability of his getting somethingbetter. I hope it is even a possibility. The accumula-tion of demands sometimes prevents our doing whatwe want to do. In the meanwhile he is out.

I do not think it would be unwise for you publiclyto take some step to right this wrong. I had severalmen employed in my office who went away and whoseplaces were kept open for them on their return. Thiswas done by many other business houses in Albany,and it is a shame if the state of New York cannot doas much. The United States government did it in

7194 every instance, allowing temporary appointments tobe made in places of those who were employed in thecivil service and transferred themselves to the mili-tary service.

Sincerely yours,WILLIAM BARNES, JR.


2399

Exhibit 38. 71.95

Albany, N. Y., January io, I9OO.

Dear Governor:

Last year Assemblyman McEwan introduced a billproviding for a new method of choosing the commis-sioner of jurors in the county of Albany, which billwas vetoed by you.

At the hearing upon the bill you stated that if thegeneral act which was last year introduced by Mr. Galeof Queens, was amended so as to include the countyof Albany, you would have no objection to it.

Mr. McEwan has prepared this year an amendment 7196to the Gale act, which will be introduced and which Ihope will meet your approval when the time comes..It simply makes the general statute apply to the countyof Albany.



Exhibit 39.7197

Albany, N. Y., January 23, 1900.

Dear Governor:

The date of the Organization Dinner is Februaryninth, inadvertently written November ninth in my

recent letter.Very truly yours,

WILLIAM BARNES, JR.


2400

7198 Exhibit 40.

Albany, N. Y., Feb. 20, 1900.

Dear Governor:

I have had a further talk with Mr. Mongin regard-ing the appointment of Mr. Allen as manager of the\Willard Asylum.

He feels the justice of your position and is willingand desirous of falling in line with the policy whichyou believe should be carried out in all our state in-stitutions, and he does not think that his support ofMr. Allen is in any way contrary to that policy.

7199 As I expressed to you the other day, this matterhas resolved itself in the county of Seneca into purelya political question. The men who are criticizing thecharacter of Mr. Allen are the same ones who aresaying in Seneca county that Mr. Mongin will notprotect Mr. Allen and Mr. Allen's friends are numer-ous.

I am thoroughly conversant with the situation inthe county of which I speak and have been for eightor ten years past and I can say without fear of contra-diction that the result has proven that Mr. Mongin'smethods have been to the interest of the Republicanparty and that those who have opposed him have been

7200 actuated by selfish endeavor to succeed by destroyingparty strength there, in the attempt to hit him. IfMr. Allen is not reappointed they will say to Mr.Allen's enemies that he had no influence with theGovernor and to Mr. Allen's friends that he did nottry to retain him.

Primary elections have already been called in thatcounty and this matter is an important factor in theoutcome.

I am,Very sincerely yours,

WILLIAM, BARNES, JR.


2401

Exhibit 41. 7201

Albany, N. Y., April 13, 1900.

Dear Governor:

I do not know what your opinion is of the StateLand Survey as conducted by our friend, VerplanckColvin, but I do know this: I think it is a shame topass a bill through the legislature to abolish an officeheld by a Republican without giving him a chanceto be heard. Not a single hearing was ever givenon this bill.

I do not think it is fair politics and even if it is wiseto abolish this office, as many people seem to think 1202honestly, Mr. Colvin ought to be given time to cleanup his records and straighten up the affairs of hisoffice.



Exhibit 42.7203

Personal.

THE WHITE HOUSE

Washington,

Oyster Bay, N. Y.August 21, 19o8.

My dear Mr. Barnes:

Yesterday I saw Sherman, Bennet, George Smith,Mike Dady, Cocks, and Hitchcock, Chairman of the

2402

7204 Exhibit 4.2

National Committee, here. I have been carefully goinginto the Hughes matter since I saw you. I appreciateto the full the force of the arguments you urgedagainst his renomination. It is not pleasant for meto support a man who has wantonly behaved badlyto the very men who did most in securing his elec-tion-I would approve his turning them down in thepublic interest, but I object to its being done wantonly.Moreover I appreciate that he has alienated quiteneedlessly very many voters, and if we had the rightman to put in his place (the right man from the

7205 standpoint of getting votes) I should say that it wascertainly wise to nominate such a man. But no suchman is in sight, and there does not seem to be theslightest chance of his arising. Under the conditionsit seems to me that while it will do damage to re-nominate Hughes, it will do more damage not to re-nominate him, and that this damage will extend outsideof the State. While, therefore, I want most em-phatically to disclaim any intention of seeming to dic-tate the nomination I think I ought to tell you thatmy judgment is that the convention ought to renomi-nate him. I am sure that the delegates from this dis-trict will be for him. Bennet, Sherman and Dadyinsist that there is no alternative to his renomination.Hitchcock says that not to renominate him would be aharm to the canvass outside of New York as well as,in his judgment, in New York. Even Smith finallyannounced that he was inclined to take the same view.I may add that everyone present agreed to keep ab-solutely quiet in this matter and to consult with you,among others, before any kind of conclusion was an-nounced; but from the papers I should judge someonehad talked. It was not I, for no newspaper man com-municated with me directly or indirectly, and I was

2403

Exhibit 43 7207

as much surprised as any one when I saw the state-

ments in the papers.


Hon. Win. Barnes, Jr.,The Evening Journal,

Albany, N. Y.

Exhibit 43. 720S

Albany, N. Y., August 24, 19o8.

My dear Colonel Roosevelt:

I am in receipt of your letter of the 21st which

evidently crossed mine of the same date.The Advisory Committee of the State Committee

is to meet on Friday to take up certain matters and

Mr. Woodruff will be in New York at that time. I

understand he will not get there before then.

I fully appreciate the position taken in your letter,

but I regret that Mr. Sherman was so short-sighted

as to get into print and I told him so over the tele- 7209

phone. I thoroughly believe there is an immense

number of independent men and Republicans in this

state who are bitterly opposed to the renomination of

Governor Hughes and they resent the interference ofa candidate.

Tuesday is primary day and we have i i,ooo enrolled

Republicans in this city, about 500 of whom will be

ineligible to vote on account of change in residence.

I shall be greatly surprised if, out of this eleven thou-

sand, seven thousand do not vote the organization

ticket to express their disapproval of the Hughes re-

nomination.

2404

7210 Exhibit 43

Doctor Culver, President of the Civic League ofAlbany, who is perhaps as active an anti-Barnes manas there is in this city, says there are a thousandRepublicans and independents in Albany who will votethe Republican ticket if Hughes is renominated, butwho will vote the Democratic ticket if he is not. Thatis a very low estimate coming from the opposition.I should have supposed that they would have claimedfive times as much. As a matter of fact there willnot be over five hundred, whereas the anti-Hughesmen, are men whose party allegiance is weak; rail-

721,1 road men, policemen, firemen, brewery workers andmen about town. I am informed that the barbershop sentiment, which is a good criterion of publicopinion, is unanimous in opposition to him. Strangelyenough this same sentiment pervades the middle audupper classes as it does the lower classes.

If the Governor is renominated, he will get a blackeye in this county and I will be charged with treachery,which I am powerless to overcome. Of course Irecognize that Albany is not the world, but it is abso-lutely essential that at Saratoga we should voice thesentiment of the people here, or our organization willbe utterly destroyed, not by its enemies, but by its

7212 friends.The Republican newspapers which have been in

favor of the Governor's renomination will supportany good candidate and the Democratic newspaperswill be against us anyway, and we can elect ourticket. I am convinced that this whole matter shouldbe threshed out on the floor of the convention and thebigger row there is, the more votes there will be elec-tion day. The weakening of the state organizationin the last year or two has made even the regulars in-

dependent. In addition, patronage has practically dis-

appeared with the extension of civil service regulations

2405

Exhibit 44 7213

even to our county offices, and there is no way to con-trol men except through their sentiment.

Let the fight go on and may the best man win. Ifit is Hughes all right. I will do the best I can. Thereis nothing like a free fight to clear the atmosphere.

Of course if the Governor is renominated, he willprobably ignore the State Committee, arrange suchmeetings as he pleases and tell the public he was turneddown by the committee. Then after election start inand demand the Massachusetts ballot direct primariesand more investigations.

Why does he not investigate the State Engineer's 7214Office. Conditions there show the greatest scandal inthis state since the time of the canal investigation.He knows all about it. Skene is a Democrat.



Exhibit 44.

THE WHITE HOUSE 7215

WashingtonPersonal

Oyster Bay, N. Y.August 24, 1908.

My dear Barnes:

Most emphatically whatever my friends do up in

Albany I shall stand by them. I have given them,

including you, my best judgment. It is not a judg-

ment based on newspapers; it is a judgment based on

what Congressman Bennet has found from his per-

2406

7216 Exhidbit 4,5

sonal canvass; what Sol Strassburger finds on theEast Side of New York; what Prendergast and MikeDady find in Brooklyn; what Cocks finds here inmy own district; what Jim Sherman finds to be theoverwhelming sentiment right near you in central NewYork; what Hitchcock said as to the effect outside.Now, if you and those like you fear that I shall askyou to cut your throats your fear is groundless. Butmy judgment is that the convention will nominateHughes, and that it would hurt very much more not tonominate him than to nominate him; altho it will

7217 undoubtedly hurt us also to nominate him.Sincerely yours,

(Signed) THEODORE ROOSEVELT.

Hon. William Barnes, Jr.,Albany Evening Journal,

Albany, N. Y.

Exhibit 45.

THE WHITE HOUSE

Washington

7218 Oyster Bay, N. Y.August 21, 19o8.

My dear Parsons:

Yesterday I saw Sherman, Bennet, George Smith,Mike Dady, Cocks, and Hitchcock, Chairman of theNational Committee, here. I have been carefully go-ing into the Hughes matter since I saw you. I ap-preciate to the full the force of the arguments urgedagainst his renomination. It is not pleasant for meto support a man who has wantonly behaved badly tothe very men who did most in securing his nomina-tion and election-I would not in the least object

2407

Exhibit 45 7219

to his turning them down were that necessary inthe public interest, but I do object to its being donewantonly. Moreover I appreciate that he has alienatedquite needlessly very many voters, and if we had theright man to put in his place (the right man fromthe standpoint of getting votes) I should say that itwas certainly wise to nominate such a man. But nosuch man is in sight and there does not seem to bethe slightest chance of his arising. Under the con-ditions it seems to me thai while it will do damage torenominate Hughes, it will do more damage not torenominate him and that this damage will extend out- 7220side of the State. While, therefore, I want most em-phatically to disclaim any intention of seeming to dic-tate the nomination, I think I ought to tell you thatmy judgment is that the convention ought to renomi-nate him. I am sure that the delegates from thisdistrict will be for him. Bennet, Sherman and Dadyinsist that there is no alternative to his renomination.Hitchcock says that not to renominate him would bea harm to the canvass outside of New York as wellas, in his judgment, in New York. Even Smithfinally announced that he was inclined to take the sameview. I may add that everyone present agreed tokeep absolutely quiet in this matter and to consult with 7221you, among others, before any kind of conclusion wasannounced: but from the papers I should judge some-one had talked. It was not I, for no newspaper mancommunicated with me directly or indirectly, and Iwas as much surprised as anyone when I saw thestatements in the papers.


Hon. Herbert Parsons, M. C.52 William Street, -

New York, N. Y.

2408

7222 Exhibit 46.

August 24, 19o8.

Dear Mr. President:

Your letter of August 2Ist, in regard to yourHughes conference with Sherman, Hitchcock, et al.,is at hand. I heard about it that same evening fromthem. Naturally I was greatly surprised. WhenHendricks, Barnes and I saw you the week before, Iunderstood your attitude to be that in view of Hughes'conduct towards them you viere unwilling to ask anyof your friends to support him. You even asked

7223 Barnes to announce that no matter what the attitudeof you or Taft, he would abide by the result of theprimaries in Albany. You seemed to. approve his ideathat we should have a convention with no pre-arrangedslate and with a genuine fight over the nominationfor governor, Hughes to, be on a level with the othercandidates. I had not understood that you deemedit necessary that we agree on some particular man.

I do not blink the seriousness of the situation thatconfronts us. It is the man or the party. Many ofthe people who want Hughes want him because hewill destroy the party organization.

I decline to be responsible for the renomination of

7224 Hughes. In my opinion he will run poorly in thiscounty and hurt Taft, and the situation is one thatdemands a compromise on a man of high type whowill co-operate with the party and avoid the enmitiesthat Hughes has made. Moreover, tho my views asto party organization are in some respects differentfrom those of others of the leaders, I believe that anefficient county organization is the one thing necessaryto bring better government to New York City.Hughes' course, therefore, I regard as a negation ofmy efforts of the past three years, and his renomina-tion I shall regard as announcement that such workas I have started in to do is unnecessary.

2409

Exhibit 46 7225

Not only will I not be responsible for GovernorHughes' renomination, but if he is renominated I de-cline to be responsible for the result to Taft in NewYork County. The outcome was what I supposedwould be the case. I foretold Woodruff that therewould be pressure from the outside for Hughes' re-nomination. I did not suppose, however, that afternerve-racking pre-convention fighting we would betreated as puppets and that those in charge of thenational campaign would tell us what we were to doand tell the newspapers what we would be told to do..Had they shown the same confidence in us for election 7226day that they had to show in us for primary day, therewould be a more just situation.

Am I to understand from your letter that you areopposed to having the republicans of New YorkCounty express their wishes on this matter on primaryday ?

Very truly yours,HERBERT E. PARSONS.

The President,Oyster Bay, N. Y.

P. S.-For over a month I have had secret pollstaken among various classes of people. Two men 7227who are thoroly reliable were at work.

The first set, taken by a man who, before startingin, thought that the sentiment was strongly for Hughes,and who took his polls among some real estate men,some downtown streets, on 125th Street, on the ele-vated and .street cars on the west side, in the subway,on some elevated in Brooklyn, and in two dry-goodshouses, resulted as follows:

2410

Exhibit 46

For President.

1904RooseveltParkerScattering and

not voting

i9o8TaftBryanScattering and

undecided

For Governor.

i9o6

7229 HughesHearstScattering and

not voting

i9o8

For HughesAgainst HughesNon-Commital

The second, taken by a man mainly on the east side,between 5 9 th Street and the Harlem River, in fac-tories of Republican workmen, among foreign ele-ments, in lunch places where union labor men went,and on street cars, resulted as follows:

For President.

7230 1904RooseveltParkerBlank

19o8TaftBryanBlank

For Governor.

19o6HughesHearstBlank

i9o8455 For Hughes357 Against Hughes139 Blank

7228

2411

Exhibit 47 7231

In the first man's canvass the drift against Hughes

is not so marked, as he went to two or three places

where I was told a great deal of Hughes sentimentwould be found.

The second man's shows a tremendous drift against

Hughes. He canvassed more of a foreign element.

Exhibit 47.

THE WHITE HOUSE 4232

Washington

Oyster Bay, N. Y.,August 27, 19o8.

My dear Parsons:

I have far too many necessary encounters with menI do not like, to permit myself to feel even a passingirritation at sharp words from men whom I not only

like but thoroly respect, as I do you. Now, my dear

fellow, when you ask if you are "to understand that

I am opposed to having the Republicans of New York

County express their wishes in this matter on primary 7233day" I think you must be giving vent to a very natural

irritation rather than asking a serious question. You

know, of course, that I am not in the least opposed,

and cannot be opposed, to having the Republicans of

any county express their wishes on primary day. On

the contrary, when you were out here with Barnes,Hendricks and the others, what I kept saying to you

was that I earnestly hoped we could get just such a

free expression of the voters' wishes. You are en-

tirely right in saying that you understood that I was

unwilling, in view of Hughes' conduct toward you,

2412

7234 Exhibit 47

Hendricks and Barnes, to ask any of you to supporthim. I am very unwilling to do, so, and when I sawyou I hoped that no necessity would ever arise for meto do it; but we also agreed at that time that the situ-ation might change at any time and that we could nottell what would have to be done when the time came-unless the situation cleared. You were very strongin your statements of what the men under you said asto Hughes' unpopularity, and I certainly understoodyou to say that Bennet felt exactly as you did (as anunimportant incident I may mention that Amos Pin-

?235 chot notified me that you had entirely mistaken himand that he favored the nomination of Hughes).When Bennet tells me, as the local leaders like Strass-burger tell me, that the sentiment is very strong forthe renomination of Hughes I have got to take noticeof it. I entirely agree with all you say as to your justreasons for complaint against Governor' Hughes, andfurthermore with all you say as to the fact that manyof those who desire his renomination desire it chieflyfor 'the purpose of hurting the Republican party.Moreover, my dear Parsons, you can hardly seriouslysuppose that, to quote your own words, I am trying to"treat you- as a juppet"-that is, if you mean me when

7236 you say "those in charge of the national campaign,"which of course I am not. On the contrary, I havewritten again and again to Taft and to Hitchcock notto make any open statement, and I haven't the slightestintention of "telling you what to do" and never will"tell the newspapers that you will be told what to do"and never have thought of so telling them. You wroteme requesting to see me, and asking that I say notn-ing until I had seen you. I saw you. We went over

the situation. I afterwards saw Bennet and variousothers, including Sherman, and the situation as they

related it was so totally different that I felt I ought

to tell you that this, with other knowledge brought to

2413

Exhibit 47 7237

me, had made me alter my mind as to what was thewise thing to do. But surely my letter most explicitlydisclaims any intention to dictate to you.

Those canvasses that you mention are very instruc-tive, but it is difficult to reconcile them with Strass-burger's, is it not? Still I absolutely agree with you

that there are many cross currents; that there aremany currents against Hughes; but I don't see whomyou are going to put in his place who won't be weaker.


7238Hon. Herbert Parsons, M. C.,

52 William Street,New York, N. Y.

Let me repeat, that of course I want the fullest andmost open expression of preference at the primaries;that I'll stand heartily for whatever you, Fassett and

the rest of the leaders finally do, and have no inten-tion of "forcing the nomination," or of trying to; but

that, unless you object, I should like, as a good Re-

publican and party man, and a staunch believer in

you, to tell you my judgment, for whatever it is worth.

7239

2414

7240 Exhibit 48.

August 28, I908.

Personal.

Dear Mr President:

Many, many thanks for your letter of August 27thon the Hughes matter. In reply let me say thesethings:

i. In a matter such as this not only do I think iteminently proper but most important that you, asthe head of the party in this State, should give us

7241 the benefit of your judgment. From the reports ofthe meeting of Sherman and Hitchcock with you Ithought that perhaps you intended the expression ofyour judgment to be taken as a request although youwish to avoid the appearance of dictation. I am gladto know that that is not so.

You will recall that the judiciary nominators twoyears ago sought to have you, in effect, tell us whatto do. You were at first impressed by their side and,in effect, requested it, but withdrew the request whenthe situation was explained to you. The query inmy mind was whether this was in effect a request.

Naturally I have a rebellious spirit, and the talk in7242 the newspapers that we would do, of course, what

we were told to has been irritating and I have hadto clutch myself to keep from letting my anger over-come my intelligence. I did not wish to be treatedlike a puppet by anybody.

2. Those whom I alluded to as in charge of thecampaign were some persons other than yourself whoin my opinion would be pleased rather than otherwiseto have us treated as puppets. They told the news-papers what we would be told to, do.

3. Before Bennet went to Oyster Bay he agreedwith me in conversation that if a man of high type

2415

Exhibit 48 7243

could be secured who would not be regarded as sub-servient to the leaders, he would be a better candi-date to run than would Hughes. I am not sure thatsuch a man cannot be found. No search has yet beenmade for one. Postmaster Greiner and I had a longquiet talk today. Our views seem very much alike.He must of course speak for himself, and seemed toresent any one else having spoken for him. He thinksthere is great danger that Hughes will be beaten if heruns: I asked him: "Do you think that in ErieCounty a high grade candidate would get more votesthan Hughes?" and he answered: "Yes, absolutely." 7214

In my previous letter I asked whether you wereopposed to having the Republicans of New YorkCounty express their wishes on the Governorship mat-ter on primary day, because for a month or so I havehad in mind a plan for getting a direct expressionfrom the enrolled voters. My idea was to have theorganization print two ballots, each to have the samenames with one exception, that exception to be thaton one set of ballots for an unimportant committeethere should be in large type the name of Charles E.Hughes, but that his name should not appear on theother set of ballots; that we should announce, wellin advance, that we intended to make use of this 7245indirect method to get an absolute expression fromthe people in the district; that, therefore, those whowished Hughes renominated should vote the ballotwith Hughes' name on it and the others the otherone. Bennet is going to try it in his own district,and. the result will be Hughes. I got together JohnHammond, Collin Woodward, Ezra Prentice, Ben-net and Samuel Koenig to get their advice as to whatto do in New York County at large. Bennet, Koenigand Prentice approved the plan and Prentice may tryit in the 25 th, where the result will be close. Ham-

mond and Woodward, both of whose districts will

2416

7246 Exhibit 48

send Hughes delegates, opposed the plan, because theysaid the inevitable result would be an anti-Hughesdelegation from New York County and that the news-papers and independents would say that the machineabsolutely controlled and that the whole matter hadbeen a subterfuge on my part. The Sun has treatedthe primaries up the State in much that way, althoughthe result in Syracuse, in Hendricks' own ward, wasa direct test amongst the best people of Syracuse. Iasked the advice of Stoddard, of the Mail, and hesaid that the public and the newspapers would treat

7247 it as a trick by me. I have therefore so far refrainedfrom doing it, but if you think it would be a goodplan I will take it up with the leaders next Tues-day, when I shall be back in town. I should verymuch like to do it for a variety of reasons, one ofwhich is that I am a believer in direct nominations.

In Strasbourger's poll there were more votes againstHughes than I expected. Hardly an organizationworker, however, expressed himself on the matter.My polls, as distinguished from Strasbourger's, weremore accurate because they were secret whereas inStrasbourger's case the people had to sign their names.

Faithfully yours,7248 THERBERT E. PARSONS.

728The President,

Oyster Bay,N.Y.

2417

Exhibit 49. 7249

Telegram from defendant to Lemuel E. Quigg,dated September Ii, 1898. Printed at page 521.

Exhibit 50-(1).

REPUBLICAN STATE COMMITTEE

Fifth Avenue Hotel

New York, Oct. 21, 1898.


I am not responsible for the language quoted.What I said was: "I have always refused, and shallalways refuse to discriminate for or against any manbecause of his religion, his birthplace or his race. Ishall treat every man solely on his merits as an Ameri-can."

Yours very truly,(Signed) THEODORE ROOSEVELT.

Exhibit 50-(2). 7251

Oyster Bay, N. Y., December 27, 1898.

Hon. T. C. Platt,Fifth Avenue Hotel,

New York, N. Y.

Am engaged to dine with Governor Black Friday

night, so fear I ought not to accept. Can I see youFriday morning?


2418

7252 Exhibit 50- (3).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. 4th, 1899.

Hon. Thomas C. Platt,Senate Chamber,

Washington, D. C.

My dear Senator Platt"

7253 My attention has just been called to a statementin a paper that Governor Black had consulted with meabout the nomination of that Buffalo Judge. This istrue only to the extent that Governor Black notifiedme that he was going to make the appointment, and Ianswered that of course he had a perfect right to, ifhe chose. I knew nothing as to whom he was going toappoint, and as a matter of fact had never heard ofthe appointee, and I was utterly surprised at the wholematter, as I had taken it for granted that the appoint-ment would be left to me.

Governor Black and Comptroller Roberts requestedme to reappoint or confirm the appointment of Mr.Hill, which I have declined doing. I question whether

7254 the appointment is constitutional. In any event Iwould like to see you and consult with you about thematter.

Very sincerely yours,(Signed) THEODORE ROOSEVELT.

2419

Exhibit 50-(4). 7255

(Telegram.)

THE WESTERN UNION TELEGRAPH

COMPANY.

Jan. 4, 1899.

Hon. Theo. Roosevelt,Executive Chamber,

Albany, N. Y.

Think under the circumstances it is advisable to ap-

point Assemblyman Hill of Erie County District At- 7256

torney.T. C. PLATT.

Exhibit 50-(5).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. I2th, 1899.

My dear Senator Platt: 7257

Locke has refused to act as counsel; so has Milburn.

I am at a loss to know whom to suggest. George H.

Adams of New York and Bowers have both been sug-gested to me. Have also thought of John E. Parsons.

In some respects Edw. F. Shepard would be a good

man but I do not like him and do not wish to employ

him. I want to get some man whose name will be a

guaranty of the good faith in which we are acting.

What do you advise? Would not Austin Fox be the

best man?

2420

7258 Exhibit 50-(5)

Has McDonough acted about his Second AssistantSecretary of State in any way. that would commitme about McMackin? The labor men object verystrongly to him, and tell ugly stories about his con-nection with the Coogan campaign. I am really in-clined to think that the Utica man, Williams, who isvery strongly backed by the Oneida County Senator

and Assemblymen, is the best man for the position.But, of course, if on the strength of what I said youhave been committed so that it is disagreeable to get

out of it, I will appoint McMackin. I am strongly in-

7259 clined to think, however, that it will not be a wiseappointment.

I saw Partridge-Odell and Woodruff both beingpresent-and told them just exactly what I had toldyou, Odell and Root at lunch and what I had toldLow. Odell will tell you about it.

Everything seems to be getting along smoothly

here. I do not have one minute's rest from morninguntil night.

With warm regards to Mrs. Platt, believe me,Sincerely yours,


7260

2421

Exhibit 50-(6). 7261

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. 23 rd, 1899.

Hon. Thomas C. Platt,Senate Chamber,

Washington, D. C.

My dear Senator: 7262

I hope you will give the Navy Personnel bill a lift.It is in every way an admirable measure. Crowin-shield was one of the men who prepared it. Ofcourse it has got to be acted upon quickly, if at all.


In accordance with your telegram I at once wrotefor Alvord. I have heard some things about Will-iams, Higgins' candidate for Tax Commissioner,which makes me doubt the wisdom of appointing him.

7263

2422

7264 Exhibit 50-(7).

Jan. 25, 1899.

Hon. Theo. Roosevelt,Executive Chamber, Albany, N. Y.

My dear Governor:

I have your letter of January 23rd. I am givingthe Navy Personnel Bill the best aid in my power.Like all things that are good, it meets with oppositionin many points, but we will do our best.

I note what you say with reference to Williams,Higgins' candidate for appointment as Tax Com-

7265 missioner. You are evidently laboring under a mis-

apprehension. I never suggested his name, and donot know anything about him. It was Mr. Root whowas interested in his case.

Yours truly,T. C. PLATT.

7266

2423

Exhibit 50-(8). 7267

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. 27th, 1899.

Hon. T. C. Platt,Fifth Ave. Hotel, N. Y. City.

My dear Senator:

I have yours of the 26th.You must not wait lunch for me. You know I told 7268

you I could get lunch on the train and get down andbe with you about 2:15, unless the train is late.

I saw Odell today and talked over two or threethings with him.


7.269

2424

7270 Exhibit 50-(9).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. 31St, 1899.

Hon. T. C. Platt,Senate Chamber,

Washington, D. C.


7271 I am going to ask your son Frank to breakfast withus also on Saturday.

Now, may I ask you to endorse the enclosed letterand hand it in. It explains itself, and is, as you see,simply a request that young Trowbridge be allowedto bid.

I have one or two rather curious things to tell youabout the situation here.


Enclosure.

7272.

2425

Exhibit 50- (10). 7273

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

February ist, 1899.My dear Senator Platt:

Next Saturday will you breakfast at half-past eighto'clock at Douglas Robinson's 422 Madison Avenue,instead of at 689?

I have found just the man for architect I think.I have a bully letter from Ambassador White for

Priest. 7 274


Exhibit 50- (11).

Feb. 2, 1899.Hon. Theo. Roosevelt,

Executive Chamber, Albany, N. Y.

My dear Governor:

I have just received yours of the 3Ist, in which yousay that you propose to ask Frank to, breakfast with 7275us on Saturday. It goes without saying that that willbe entirely satisfactory to me. I shall be on hand asplanned.

I have endorsed your letter relative to Mr. Trow-bridge and forwarded the name to the Secretary ofthe Treasury.

I am curious to know what it is you have to tellme regarding the situation up there.


2426

7276 Exhibit 50-(12).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

February 8th, 1899.


Waghington, D. C.


I have just received your telegram saying, anentSmith and Clarke, "Evidently you do not compre-hend merits of the men." I have spoken with a num-ber of the prominent members of the bar. I find theiropinion to be practically unanimous that Smith's ap-pointment would not be justifiable. This was myown view. I like Smith personally. I don't think thatin either ability or reputation he sizes up to what weshould expect in this office. Neither do I think thatAustin should be appointed. I am inclined to agreewith your view of Beckett and the inadvisability ofappointing him. What do you think of Jesup? Whatdo you think of Van Vevhten Olcott? Personally Idon't believe that any of them is anywhere near as

7278 big a man as Clarke. Clarke was a very strong manfor me on the stump last year. As you know, he wasa supporter of Tracy against Low and I had alwaysregarded him as an organization man. If you remem-ber, Blanchard, who was also a Tracy man, was sug-gested by Odell. Do you think Tom Thacher wouldtake it? I had already written to Root to get hisjudgment on the different men. He has been verystrong for Clarke. I shall tell him to exclude him inthe comparison. If Cohen would take it of course Ishould be only too delighted to appoint him. Shall Itry? What do you think of Taft?

2427

Exhibit 50- (12) 7279

Hendricks has written me feeling badly about hisman Gilbert. Apparently all the Syracuse people arehot against Wheeler. At any rate, Hendricks wantsGilbert placed and I should like to try and place him.If Johnston is not to be reappointed cn the Commis-sion of Mediation and Arbitration, why couldn't Gil-bert be put in there?

Stranahan has just. come in to argue very stronglyagainst turning Hermance off the Board of Tax As-sessors. He states that he has no personal interest inHermance, but has seen an immense amount of hiswork and believes him to be the mainspring of the 7280present board. And he also believes that to appointthree new members will bring about chaos and will be aserious damage to the administration. He evidentlyfeels very strongly about it and impressed me a gooddeal. I don't know but that we might have trouble thatwill be to our discredit if all three of them went off.What do you think about it? How would it do to puton Priest and Leaycraft and leave Hermance for thetime being? I asked Stranahan how Hermance andJenkins compared and he said that Jenkins was betterthan Adams, but he was not at all in the class of Her-mance, and that we certainly ought to have some law-yer on the board unless we wished to see them in a 72S1snarl, and that as a countryman he would regretgreatly seeing Hermance taken off if a New York Cityman were put on, although he entirely acquiesces inthe desirability of putting on a New York City man.As I telegraphed you, Senator Brackett came in thismorning with the news that Worden positively re-fused.


P. S. I ought perhaps to say that Senators andAssemblymen here have all of their own accord beeninquiring why I do not nominate Clarke.

2428

7282 Exhibit 50-(13).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

February ioth, 1899.


My dear Senator:

On looking over the letters filed with me I find anumber strongly in favor of Beckett but severalstrongly against him.

George W. Stephens of 132 Nassau Street specific-ally charges that in a number of cases Mr. Beckettwhile in the Surrogate's Office as Probate Clerk usedhis position as such to, compel parties to refer to him-self cases which he could have attended to withoutany charge whatsoever.

J. Evarts Tracy writes me confidentially, giving aspecific instance of an abuse on the part of Mr.Beckett of just the type Arnold has been chargedwith.

Prescott Hall Butler of the same office writes say-ing that a large number of the more prominent mem-

7284 bers of the Bar would feel that the appointment wouldbe an unworthy one and that he personally regardshim as a dangerous man.

There are a number of others who write againsthim in a general way. These are the only ones whourge anything specific.

Now, John Proctor Clarke (whom I have droppedentirely as out of the race and whose appointment Ishall not consider) makes specific statements to showBeckett's undesirability for the position.

I wish to Heaven Judge Cohen could be persuadedto take the position. I suppose that is impossible.

2429

Exhibit 50- (13) 7285

I told you this morning that various prominent law-yers had spoken to me against appointing Beckett onthe ground that he was a small man.

Do you think Tom Thatcher would take it?This Surrogate business is important. We should

get a really first-class man, if we can. Would Var-num? Henry Jesup? Taft?

By the way, will you tell Mr. Quigg that I haveseen his man O'Brien and like him; exactly as I likeMarch. To prevent mistakes, as O'Brien is rathera common name, will you ask Quigg to let me knowif the O'Brien I saw is the one he meant. He can 7286find out at once by asking O'Brien if he called on me.

The two vacancies that will occur are those ofKidder as Port Warden and of Barker as AssistantFactory Inspector. O'Brien strikes me as being agood man for the latter place and I think he would

get on with O'Leary. There are charges againstBarker, but if I do not intend to reappoint him, Ineed not go into them. O'Leary is seemingly doingpretty well, and I understand you want him reap-pointed. Then I will put March in as Port Warden.

Let me again say, my dear Senator, what I knowyou are aware of, that in this business about the Sur-rogate, I have not the slightest purposes beyond get- 7287ting a thoroughly good man who will do the workwell, who is a Republican, but who is also a man thor-oughly satisfactory to the bar and to the people.

I have written to Odell telling him my utter aston-

ishment at finding out that you have regretted the

decision which was reached in discontinuing the inves-

tigation of Arnold, and that I thought he represented

you.With great respect,

Very truly yours,(Signed) THEODORE ROOSEVELT.

All gight! I'll change the whole board of tax as-sessors.

2430s

7288 Exhibit 50-(14).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

March 3oth, 1899.

Senator T. C. Platt,Fifth Ave. Hotel,

N. Y. City.

My dear Senator:

7289 I forgot entirely to ask you about the Democratfrom New York whom Grady proposes-Gelschenen,the President of the Garfield Bank.

Will you please let me know what New Yorker youthink would be a good man for the Republican also?Perhaps it would be well to take a man from Brook-lyn.

What do you think of Bondy of Syracuse?It was the greatest pleasure to have you here.

Please tell Mrs. Platt how sorry we were not to haveher also.


7290

2431.

Exhibit 50-(15). 72)!

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

March 31st, 1899.


Senator Ellsworth has brought me the enclosed toknow what I thought about it. I know very littleabout it-indeed nothing. Do you know, or shallI try to find out for myself?

With great regard, 7292Faithfully yours,

THEODORE ROOSEVELT.

Senator T. C. Platt,Fifth Ave. Hotel,

N. Y. City.

7293,

2432

7294 Exhibit 50-(16).

March 31, 1899.


My dear Governor:

I am in receipt of yours of March 3oth. Gel-shenen is a first-class man in every respect and Ishould think would be as acceptable as anybody, as aDemocratic appointee. I think it would be well,moreover, to please Grady.

I find that I have been mistaken with reference to7295 Leopold Stern. He has no connection whatever with

Stern Brothers family, and is not a relative. Differ-ent family entirely. He is a downtown jeweler ofwealth and reputation. He was very generous lastfall, and therefore Quigg is anxious that he shouldreceive the appointment. So you will excuse me if Ichange off my mind.

I have written Francis Hendricks with reference toBondy. Just as soon as I receive word from him, Iwill advise you.

I enjoyed my visit very much and feel that it hasbeen productive of some good; and if no other good,it has brought us in closer touch and caused us to un-

7296 derstand each other better. I will deliver your mes-sage to Mrs. Platt. Please give my kind regards toMrs. Roosevelt and the rest of the family.

Yours sincerely,T. C. PLATT.

2483

Exhibit 50-(17). 7297

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

April Ist, 1899.Hon. T. C. Platt,

449 B'way, N. Y. City.

My dear Senator:

All right, I will appoint Stern and Gelshenen.Grady does want the last named.

Always yours, -298(Signed) THEODORE ROOSEVELT.

Exhibit 50-(18).

April I, 1899.Hon. Theo. Roosevelt,


My dear Governor:

I am in receipt of yours of March 31st, with theenclosure of the bill introduced by Mr. Grady. Thiswas brought to my attention while I was in Albany, 7299and, without knowing a great deal about it, I am sat-isfied (and so advise) that no such large amountshould be given Tammany Hall to expend on thewater front. I understand there are $3,000,000which are provided for this work. To extend thesum to $12,ooo,ooo would simply be putting an un-necessary club in the hands of those people with whichto knock our brains out. I advise that no appropria-tion be made beyond the present figures; and I guessI am right.


2434

7300 Exhibit 50-(19).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

April 3rd, 1899.

Senator T. C. Platt,Fifth Ave. Hotel, N. Y. City.


Witherbee telegraphs me that State Assessor Jenk-

7301 ins died today. I will send in the names of Priest andLeaycraft and leave Hermance on for a few days un-til we decide on a man to take his place. \Vhat wouldyou think of Isaac L. Hunt of Jefferson County. Ido not know whether he would like the place or not,but I have a great respect for his integrity and be-lieve he would do this kind of work well. If you do notthink well of him, what other names would you sug-gest ?


7302

2435

Exhibit 50-(20). 7303

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

April 4 th, 1899.

Hun. T. C. Platt,Fifth Ave. Hotel,

N. Y. City.

My dear Senator:

The Speaker came in tdav considerably disturbed 7304

by the rumor that the legislature is to be kept in

session some weeks longer. He says (and I heartily

agree with him). that it would be far better to have a

special session called than to have the legislature kepthere now a day longer than is absolutely necessary.

It is difficult enough keeping it in order as it is, andwe shall have a perfect flood of undesirable legisla-

tion if it is kept in session any length of time. I

earnestly hope the adjournment will not be delayed.Mr. Qtigg handed me the amendments to the Ford-

Fallows bill, which met the wishes of Messrs. Cole-

man and Beall, the representatives of the people's side

of the question. I have accordingly backed this asheartily as I know how. Senator Elsberg and As- 7305

semblyman Bedell both oppose the new amendments,

taking the Lauterbach view of the matter. I feel

that .in some shape the bill should be passed at all

hazards, and I believe that the best shape is that inwhich you have finally put it.

Senator Brown has just been in to protest very

strongly against the State Constabulary scheme. Hesays he believes it would operate very much to our

disadvantage politically; that the people of the State

at large would dislike it: and that in the smaller cities

it would bear evil results to the party. He was so

2436

7306 Exhibit 50-(21)

much in earnest about it and so sincere that I askedhim to write you, but he said he did not think hewould, so I thought I would write you myself, simplyto lay the matter before you. I, of course, have nomeans of testing the feeling of the country and re-publican districts on the matter. Brown seems soworked up over the matter that I thought I wouldtalk to a few of our other good friends in the StateLegislature to find out what they think of it. Hedid not question the propriety of the bill from the ad-ministrative standpoint, but did say that he thought it

7307 would be very unpopular and would work damage tothe party, and that its expense, and the creation ofnew offices would have a most unfavorable effect.

Violent opposition has developed to Van Namee,which I regard as quite unjustifiable, and to March, theItalian, who it is said is a convicted Padrone. I shalltry to look the latter matter up and see if there isanything in it.

\Vith great regard,Sincerely yours,


7308 Exhibit 50-(21).

(Telegram.)

THE WESTERN UNION TELEGRAPHCOMPANY.

April 5 th, 1899.Hon. Theodore Roosevelt,

Albany, N. Y.

Think well of your suggestion of Hunt for StateAssessor. Advise his appointment.

T. C. PLATT.

2437

Exhibit 50-(22). 7309

April 6th, 1899.


Albany, N. Y.

My dear Governor:

I have just received your letter of April 4 th, which,of course, wassupplemented by our conversation overthe telephone yesterday, and the most of which needsno reply because it has become ancient history.

What annoys me the -most is the position taken bySenator Brown on the State Constabulary Bill. I 7310cannot fathom his motives in opposing it, and I doubtwhether he would oppose when it came to a test vote.I would like very much if he would write me givinghis reasons for the faith that is in him. He evi-dently does not understand the condition of peril thatthe Party is in by reason of the present Tammanytactics. The more I think of it, the more I feel thatthe bill ought to pass. You spoke yesterday withreference to Raines' position of fear with referenceto Buffalo and Rochester. I do not think that eitherof those localities, when it came to the question ofvote, would oppose it. So far as Buffalo is concerned,the Chairman of the County Committee writes me 7311that he has been considering the question with theSenator from that County and he believes we.can com-mand the vote. The bill will -be ready the first ofnext week. I will have the matter carefully con-sidered as to the chances of success before introducing.The most serious objection to its introduction, in myopinion, is in the fact that you are going to be absent.

I assume that Odell was in Albany yesterday and

saw you, because he did not come here and I could

not find where he was.

2438

7312 Exhibit 50-(23)

The violent opposition to Van Namee as based uponthe Maynard episode, when the facts are really known,ought not to operate in his disfavor, because at thattime the whole Democratic party nearly was laudingMaynard.

As to March, I think that objection which is raisedto him emanates from Tim Sullivan, who wants todestroy him as a political factor in his district. Marchhas done nothing, in my opinion, which does notwarrant the consideration which has been given him.

Yours truly,

7313 T. C. PLATT.

Exhibit 50-(23).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

April 12th, 1899.


7314 N. Y. City.

My dear Senator:

I have just by accident seen the telegram you havebeen sending, asking the members to support the CivilService bill. I am more touched than I can say, andI must just send you a line to express my very deepappreciation.


2439

Exhibit 50- (24). 7315

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

April I4th, 1899.


N. Y. City.

My dear Senator:

Senator Ellsworth came in to see me and suggested 7316that I should speak publicly in favor of Ford's Fran-chise Tax bill, as he thought we were being hurt bythe impression that I had used my recommendationfor the committee on taxation as a means of killingit. I told him I had kept silent because I understoodour people in the Senate felt this to be the wisestcourse, but that as they had joined in passing the billI supposed the reason no longer obtained, and that Iwould gladly speak as he requested me to. He thoughtit might have a favorable effect upon the other legis-lation pending, which was all the more necessary onaccount of the opposition to the State Constabulary.Of course, I take it for granted that the real opposi- 7317tion will come from men who are influenced by mo-tives with which I cannot deal, but there is also a gooddeal of feeling which I think can be met among men inthe Assembly and Senate who are nervous about theaccusation that this bill is too important a measureto be jammed through at the end of the session, andwho want time to discuss it. I hope we give them allthe time possible. It is so excellent a measure thatI believe a full discussion will simply help us.


2440

7318 Exhibit 50-(25).

STATE OF NEW YORK

EXECUTIVE 'CHAMBER

Albany,-N. Y.

May 12th, 1899.

Dear Senator Platt:

Senator Ellsworth, Senator Higgins, Mr. Allds, andpossibly Speaker Nixon, will be with you when youreceive this, which will be handed to you by SenatorEllsworth.

7319 I have gone over most carefully with them the, mat-ters raised in your letter to me and by Mr. Odell inhis conversation with me yesterday. I entirely agreewith you that the assessment of the franchise taxshould be a State matter, by preference in the Comp-trollers' Office. This will put the bill in the shape inwhich I understand from Mr. Odell that it would besatisfactory, and substantially in the shape suggestedby Mr. Odell to the Speaker and Mr. Allds, in con-formity, as the Speaker and Mr. Allds understood,with their understanding with you the Sunday pre-ceding. Now this is according to my belief the seri-ous defect in the bill. There may be other changes

7320 which it would be well to have. I am doubtful as tothe advisability of some of those proposed, myself.I am certain that it is not advisable to try to makethese changes now. if they are urged there will beserious opposition. But the only changes which it isof moment to accomplish now are the placing of thepower of assessment in the control of the State, and,possibly, having the bill take effect January first orthereabouts, so that the-tax may be raised upon thewhole State at the same time ;.the latter amendmentI do not consider vital. We can better afford to make

the fight only on one if there is serious trouble in

passing it.

2441

Exhibit 5o-(25) 7321

Now the only amendment to which there will be abitter opposition is that to put the power in the handsof the State as against the locality. Tammany willundoubtedly fight this tooth and nail; and to my mindthe controlling reason for passing it is to be foundin the motives which would actuate Tammany in itsattitude. I will call, at once, if you wish, a specialsession, so that the bill can be acted upon before thethirty days are up. I suggest, however, that you care-fully go over the matter, to be sure that we could holdour men to pass the bill in the form above outlined.Senator Ellsworth and the others will explain to you 7322in detail. We all feel that only the two changes out-lined above should be attempted at this session.

Of course it must be understood, and I must sayin my message, that I will sign the present bill, ifthe proposed bill, containing the changes outlinedabove, fails to pass.

Hoping to hear from you, I am,With great regard,


P. S. Ought we not to pass the Rapid Transit bill,too? 7323

2442

7324 Exhibit 50-(26).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Oyster Bay, N. Y., July 1, 1899.


New York City.

My dear Senator:

7325 Just a line to report my return. I had a great, timein the West and was received with wild enthusiasm.Toward the last, for fear of the people being deludedinto the belief that I attached too much seriousness tomy reception, I made up my mind that I had bettermake a little statement, saying of course I heartilyfavor the renomination of President McKinley.

You would be pleased, by the way, if you couldhear Kohlsaat describe President McKinley's realiza-tion of how you have treated him. Kohlsaat hap-pened to mention to me incidentally that the Presidenthad said thaf you had been more loyal, more con-siderate, more straightforward and easier to get onwith than almost any other senator, even among thosewho had professed to be his warmest friends.

I wish the President would give General Wood afree hand in Cuba and put Frank Greene back intothe army to do the Philippine business once for all.Next winter we ought to make an end of that. Iwrote substantially this to John Hay. With warm re-gards to Mrs. Platt, believe me


2443

Exhibit 50- (27). 7327

(Telegram.)




New York.

Letter received. Arrangements suit me perfectly.Will you arrange quarantine visit Monday so can getback here Monday afternoon. 7328

THEODORE ROOSEVELT.

Exhibit 50- (28).

(Telegram.)


July 21st, 1899.

Hon. Theodore Roosevelt, 7329Oyster Bay, L. I.

Your letter is received and has been answered in fullthis morning special delivery.

T. C. PLATT.

2444

7330 Exhibit 50- (29).

July 21, 1899.

Hon. Theo. Roosevelt,Oyster Bay, New York.

My dear Governor:

Mrs. Platt has just repeated to me over the 'phonethe substance of your recent letter, which is satis-factory to me. I should have notified you today asto the conditions which have arisen and the conclu-sions at which I have arrived, so that you may un-derstand and we may not be working at cross-purposes.

7331 After prayerful consideration, I concluded it would

shock the religious sense of a good many people ifwe made the trip to Quarantine and to Barren Island,or to either of those -places on Sunday; so I have ar-ranged with Dr. Doty that we will go to Quarantineon Monday, and he is making the arrangements ac-cordingly, leaving the Hotel at nine o'clock in themorning and having the Health Officer meet us withhis boat at the foot of 3 9 th Street, Brooklyn, wherethe railroad nakes connection with the Bay. I havealso arranged for you to come to the Oriental at leastearly enough to be my guest at dinner on Saturdayevening. Arrangements have been satisfactorily made,

73j2 I think, for your comfortable entertainment and Ihave told Mr. Pain, the fireworks man, that you willattend the display on Saturday evening immediatelyafter dinner which I trust will be agreeable. Mrs.Platt and some other ladies will accompany us on theexpedition to Quarantine on Monday, which I hopewill be agreeable to you. I think we will have to giveup the visit to Barren Island, unless it can be doneon Tuesday. There will be time enough to decidethat question after you reach Manhattan Beach.

I am just about starting for Washington to answera summons from the President to talk over the exist-

2445

Exhibit 50-(30) 7333

ing complications and the filling the vacancy in theoffice of Secretary of War. I shall, as we agreed,urge the appointment of General Greene, but fromfacts which have come to my knowledge I am inclinedto think he is not favorably disposed toward the ap-pointment of a soldier to that place. I shall get backfrom Washington as early as possible. If anythingshould occur to delay my return, I will communicatewith you, but in any event I shall be back Saturdayevening, and Mrs. Platt will be on the alert to lookafter your comfort and enjoyment until I put in anappearance. 7334

Yours faithfully,T. C. PLATT.

Exhibit 50- (30).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

At Oyster Bay, N. Y., July 29 th, 1899.

Hon. T. C. Platt, 7335

49 B'Way.,New York City.

My dear Senator:

Many thanks for your letter of the 28th.The appointment of Sewell will be made primarily

on the recommendation of Judge Martin. I shouldlike those other endorsements just as soon as possible.

In all these judicial matters, I always have paid

especial heed to recommendations of members of the

2446

73 3 6 Exhibit 5o-(31)

judiciary, and secondarily to members of the bar,while Judge Martin is a man for whose sound commonsense and uprightness I have a peculiar regard.


Exhibit 50-(31).

STATE OF NEW YORK


Albany

At Oyster Bay, N. Y., August Ist, i8q9.

Hon. T. C. Platt,

t49 Broadway, N. Y. City.

Mv dear Senator:

I have yours of the 31st ult in reference to thevacancy in the Delaware County judgeship occasionedby the appointment of Judge Sewell on the SupremeCourt bench. All right, I will wait until I hear fromJudge Sewell and others and not make the appoint-

7338 ment to Judge Sewell's place until after August 9 th.I have received earnest appeals from Messrs. Priest

and Leaycraft to let Hermance stay in a month longeruntil some pending matters in the State Tax Commis-sion can be disposed of. I have not yet seen Herm-ance, but hope to very shortly.


2447

Exhibit 50- (32). 7339

Aug. I I, 1899.


My dear Governor:

Our friends in Delaware County have settled upona nominee for County Judge and Surrogate, in placeof Sewell, whom you recently made Supreme CourtJudge, in the person of John P. Grant, of Stamford,N. Y., an old time Republican. As you will see heis endorsed by the Organization and by the whole Barof the County. It is a good appointment, and I think 7340the sooner it is disposed of the better.


Exhibit 50-(33).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

August 21, 1899. 7341

Hon. Thomas C. Platt,49 Broadway, N. Y. City.

My dear Senator:

The trip so far has been a great success! I reachhome tomorrow. I had a very nice little talk withthe President. He wants me to go to Maryland thisyear to speak in the campaign and I shall do so unlessyou think there is good reason why I should not.

Mrs. Roosevelt sends her regards to you and Mrs.Platt.

2448

7342 Exhibit 50-(34)

I have just seen the Vice President, too, and Itold Mr. Griggs that after talking the matter overwith you I was going to submit the part of my mes-sage this year which deals with trusts to him to lookover-that is, after you have seen it, my dear Senator.


Exhibit 50- (34).

7343THE WESTERN UNION TELEGRAPH

COMPANY.

(Telegram.)

Oyster Bay, N. Y., Aug. 24, 1899.

Hon. T. C. Platt,Oriental Hotel.

Governor has appointed Grant. His commission justreceived from Albany. Will be signed tomorroWmorning and returned to Albany and Grant will re-ceive it this week. Governor inaccessible this evening.

7344 WM. LOEB, JR.,

Act. Secy.8:24 P.

2449

Exhibit 50-(35). 7345

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Oyster Bay, August 24, 1899.


New York, N. Y.

My dear Senator:

I will send you tomorrow morning, by special de- 7346livery, a copy of the letter I sent Secretary Root. Iam having some prepared, but it is so near mail timethat they will not be finished so that I can get it offwith this letter. It is on the line of our conversationat dinner.

I saw Stearns and told him I should appoint him;but he is to get me the endorsements of the benchand the bar, and of some farmers.

I wrote to Priest and got a very partial and unsatis-factory explanation of the difference between his let-ter to me and his statements to you.

In this position of Tax Commissioner, it is peculiarlyimportant that we should have men of absolute in-

tegrity and absolute trustworthiness. I know you be- 7347

lieve such to be the case with Stearns. I have anexcellent letter from John G. Milburn, the leader of

the Buffalo bar, on his behalf. Andrew D. Whitewrote me equally strongly about Priest. I hope toHeaven I have succeeded in impressing upon both a

sense of their very great responsibility to the State

and to the Party!Faithfully yours,


2450

7348 Exhibit 50-(36).

Aug. 25, 1899.


My dear Governor:

I have your letter of Aug. 24th. Have not receivedthe copy of your letter to Root, but shall expect ittoday. I have been importuned extensively by am-bitious applicants for army appointments, ahd mostof them are good men, with good records. I have inall cases said that I am not consulted as to those mat-

7349 ters which are non-political; that you as a warrior andan expert will have all the say. Whatever influenceI may use, therefore, will be with you, and that willbe very little.

I note what you say with reference to the appoint-ment of Stearns. I have no doubt he will immediatelycomply with your request for endorsements and thatthere will be no difficulty in his obtaining them. Iunderstand and appreciate as well as you the respon-sibility which attaches to his stewardship and believethat he will have the interests of the State and theParty before him all the while, in shaping his action.

John P. Grant of Delaware County got uneasy and7350 telegraphed me last night asking for an explanation

of the delay in the issuance of his commission. Ihave your Secretary's answer to my dispatch to you,giving the whys' and wherefore's, and I have, I think,quieted Judge Grant's mind. He claims that there isimportant business pending in that Court which needsimmediate attention.

I send hearty congratulations over the uniform en-thusiasm and success which has met you in your recenttrip. I have no doubt these meetings are doing youand the Party a great deal of good, and that all theseAgricultural reunions which you address will be very

2431

Exhibit 50- (36) 7351

advantageous politically. By the way, the Collectorof the Port, Mr. Bidwell, who is spending his summer

in Columbia County, expressed the opinion to me re-cently that he thought, if you, could shape affairs so

as to address the Columbia County Fair, which is to

be held at Chatham on September 5 th, 6th, 7th and

8th, it would be a good stroke of policy. I am not

sure that you have received an invitation, but there is

no doubt that you will if they can have any assurancethat you will accept. I do not want to have them send

an invitation which you will decline, because it will

then be advertised that you have -done it on account 7352of your objection to Superintendent Payn. You cansee why I think it would be a good thing for you to

go there; although in a recent conversation I had with

Payn, I was surprised to find how favorably he

talked about you; and he was not talking to me for

effect.Yours sincerely,

T. C. PLATT.

7353

2452

7354 Exhibit 50-(37).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

At Oyster Bay, N. Y.,August 26, 1899.


New York City.

My dear Senator:7355 I was delighted to get your letter of the 25 th in-

stant.First, about the Columbia County Fair. Sept. 5 th

I am at Ogdensburg, on the 6th at Johnstown, on the7th at Norwich and Delhi and on the 8th at Syra-cuse. These include all the dates of the Chatham Fair.I am very sorry, for I see at once that it would bea good stroke politically for me to attend as you sug-gest. But of course I cannot break these engage-ments. The G. A. R. men have been wild to haveme break my engagement on the 5th to go to the

National Encampment at Philadelphia, but I felt thatmy duty was to my own State first.

7356 Now my dear Senator, if there is any amendment

you have to suggest to my letter to Root, or if thereis any other man to whom you think a commissionought to be given, pray let me know at once.

I think that by the time I have finished my next

three days tour, I will have accumulated enoughthings to warrant my asking you to take lunch or din-ner with me again. I do not like to get you to stayin for an evening, or else I should ask you to dinewith me again next Tuesday at the Holland House.

Faithfully yours,


2453

Exhibit 50-(38). 7357

Aug. 29, 1899.

Hon. Theo. Roosevelt,Fifth Ave. Hotel, City.

My dear Governor:

I do not feel like making any amendments or sug-gestions as to the army appointments. I understandthat they are all to be non-political and my advice isnot needed or will not be needed. I am no warrior.You are, and your advice ought to be controlling inthe whole business. Latterly when I have been so-

licited for endorsements, I have taken that position 7353and find it relieves me of a good deal of trouble andanxiety.

As a matter of course, I would like to see you when

the present tour is ended, and will be subject to or-ders for day or evening.


Exhibit 50-(39).

At New York, N. Y., Sept. C-th, 1899. 7359

Hon. Theodore Reosevelt,Albany, N. Y.

My Dear Governor:

This morning I am in receipt of a letter from

Senator Wellington of Maryland, making request that

I use my influence with you to induce you to par-

ticipate in their campaign this fall. I did not answer

your previous letter of August 21St on this subject,

because I thought it would be well to look into the

matter a little further, but I am inclined to think

2454

7360 Exhibit 50-(4o)

that so long as the President desires it and the Mary-land people are so anxious to have you go, that itwould be well for you to comply with their wishes andgive them a little help.


Exhibit 50- (40).

7361 Oyster Bay, Long Island, N. Y.,

Sagamore Hill, Nov. 6th, '99.

My dear Senator:

I have been much concerned over that Hudson case.Of course the clippings, from which the special Demo-cratic Organ, The Argus, give but a fraction of the

truth. The original board resigned in consequence ofa fight with the comptroller with which I had noth-ing to do, and of which indeed I knew nothing untilI saw it in the paper. I did consult Stewart in ap-pointing the new board, and am not altogether satis-fied with them; the main trouble, however, I think,comes from the utter demoralization left behind bythe old board. It would be difficult to overpaint thecondition in which the old board left matters. Ofcourse if the "Vassar girls" remark was actuallymade, it was infinite folly; but it has been stoutlydenied. I shall again take the matter up when I getback to Albany.


2455

Exhibit 50-(41). 7363

STATE OF NEW YORK

EXECUTIVE CH A'VBER

Albany

Nov. iith, 1899.

Hon. T. C. Platt,449 Bway., N. Y. City.

My dear Senator:

I have yours of the Ioth. I should particularlylike to have Mr. Odell at the breakfast, but I did not 7364like to suggest it.

I have been racking my brains to think what it wasI said to Frank to which you allude.

Indeed I realize how vital our success was in therural districts, and I cannot sufficiently appreciate thesplendid management of Mr. Odell-and of yourself!


Exhibit 50- (42).

Nov. 13, 1899. 7365


My dear Governor:

I am in receipt of your letter of Nov. I ith andhasten to inform you as to what it was you said toFrank which has given me so much annoyance. Itis regarding the State Constabulary Bill. After work-ing all summer and ever since the adjournment of theLegislature to shape things so that we could pass that

2456

7366 Exhibit 50-(43)

bill (which I consider very vital for the future suc-cess of the Party) I was staggered by the report whichFrank gave me of his interview with you bearingupon that subject. I will not discuss it at present,but I want you to understand how deeply I feel onthe subject, and that now that we have got the Legis-lature in shape, and it is possible to pass the bill, I didnot want you to "damn it with faint praise." I wouldnot say anything on the subject now except that Iwas afraid you might indulge in utterances and opin-ions stch as you expressed at the Hotchkiss dinner

7367 in Buffalo.Yours sincerely,

T. C. PLATT.

Exhibit 50-(43).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Nov. 14th, 1899.

7368 Hon. Thomas C. Platt,- 49 Bway., N. Y. City.

My dear Senator:

I have yours of the I 3 th.On thinking over your former letter I had just

about come to the conclusion that what you referredto were my remarks about the State ConstabularyBill. There is much concerning that bill which Iwould like to talk over with you. I have been ratherappalled by the number and weight of the protestsI received against it ever since the legislature ad-

2457

Exhibit 50(44) 7369

journed; protests which have made me feel appre-

hensive whether it was expedient to pass it, coming

as they did from Republicans of great weight and in-

fluence. However, I will discuss it all with you next

Wednesday at breakfast.With regards to Mrs. Platt, I am,

Sincerely yours,(Signed) THEODORE ROOSEVELT

Exhibit 50-(44). 7370

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Nov. 27th, 1899.


My dear Senator:

A week from Saturday remember you are to take

breakfast with me at my brother-in-law's Douglas 7371

Robinson, #422 Madison Ave. with Ben. Odell. Shall

we have the breakfast at eight? I shall have much

to talk over with you. I confess I am very seriously

disturbed at the protest against the State Constabulary

bill. I fear.that even if the Senators could be gotten

to vote for it, that the general opinion among persons

not immediately connected with politics is so strong

against the bill, that it will be a dangerous thing to

disregard their views. I could not say how many let-

ters I receive protesting against the bill being as they

term it "jammed through," when there is no demand

for it. Perhaps if besides meeting the Senators we

2458

7372 Exhibit 50-(44)

could have an interview with 20 or 30 prominentNew York Republicans-Seth Low, Charles StewartSmith and men of that type, who are not activelyconnected with politics-we might get a better feel-ing about it. But I hope you will not definitely com-mit yourself to any policy until I have a chance tosee you. I have not said a word about it, as youhave doubtless seen, but I am industriously collect-ing all the facts I can in private to lay before you.

By the way, I find that Charles Stewart Smith andthe rest of them insist that Quigg definitely promised

7:373 that there should be a commission on the charteramendments, and are very indignant at what theythink is a failure to keep the promise. They insistthat it was incorporated in the Republican Countyplatform, but I do not know whether this is true ornot, because I have not a copy of the platform athand. Undoubtedly, however, they were told in ef-fect that they should have their commission. Hereagain I wish you would wait until I see you beforedefinitely making up your mind as to any policy.

I have already seen Judge Martin and will see himagain about the Judge business, and will have all thatto lay before you when we come together.

7374 With warm regards to Mrs. Platt, believe me,Faithfully yours,


The opinion against the Constabulary bill, amongthe men whose opinion deserves careful considerationeven though they are not in on the political life, seemsto be practically unanimous against the bill.

2459

Exhibit 50-(45). 7375

At New York, Dec. ist, 1899.

Hon. Theodore Roosevelt,Executive Chamber,

Albany, N. Y.

My dear Mr. Roosevelt:

I beg to acknowledge receipt of your esteemed favorof November 27th.

I understand there was an alternate proposition tobe considered in settling the question of the place forbreakfasting on Saturday morning next; that is, anoption was to be taken by me as to whether our last 7376

breakfast should not be repeated at the Fifth AvenueHotel. It seems to me that it would be much moreconvenient and we would be quite as free from inter-ruption there as anywhere else, and it would suit myconvenience better. It is very kind of your brother-in-law, Mr. Robinson, to tender us the courtesies ofhis home, but if he and you do not object, we willfix the engagement for Saturday morning at 8.ooo'clock at my room, t28o, at the Fifth Ave. Hotel.If I do not hear from you to the contrary, I shall con-sider it settled.

I still feel confident that we could pass the Con-stabulary Bill, but I am not disposed to violate your 7377

judgment by "jamming" anything through the Leg-islature. I concede that there is some strong senti-ment against the Bill which is largely created by ad-verse criticisms of Mr. Dana and Mr. Reed. We willnot discuss the subject by correspondence; we willwait and talk.

As to the question of a Commission to consider theCharter Amendments, I have no doubt that Mr. Quiggdid pass through the County Committee, at the in-stance of Mr. Charles Stuart Smith, such a resolu-tion as you suggest. But Mr. Quigg never consulted

2460

7378 Exhibit 50-(46)

me on the subject, nor anyone else, and while it maybe wise to adopt Mr. Smith's plan, yet I am quitesure that there are certain amendments which oughtto be promptly introduced in the Legislature, and theCommittee can act upon those things without the ad-vice of a Commission.

I return to Washington tomorrow, but will be backnext week in time to keep our engagement.

Yours very truly,T. C. PLATT.

7379 P. S. I have a letter from Mr. F. H. Platt on thesubject of the new Court of Appeals Judges, of whichI enclose herein a copy.

Enclosure.

Exhibit 50- (46).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany7380

Dec. I3 th, 1899.



I was exceedingly sorry to see that my intention

to appoint Hendricks got out in New York. Hen-dricks has refused to accept, of which I am sorry.Payne's interview in the Sun seems to me hardly wise.

There is a strong feeling among the Judges andthe leading members of the Bar that Judge McLen-

2461

Exhibit 50-(47) 7381

nan ought not to have Judge Hiscock jumped over

his head, and I do not see my way clear to doing it.

I am very fond of Hiscock, and of Horace White,

but it seems to me that it would be hardly wise orproper to cast so deliberate a slight upon McLennan.

If I did, I would have again to take up the consid-eration of Russell and Warner. I am inclined to

think that the solution I mentioned to you is the one

I shall have to adopt. I have Ellsworth at work on

Childs now.Remember the breakfast at Douglas Robinson's at

8:30 on Saturday the 23rd; the other guests have ac- 7j82cepted.

Faithfully yours,


Exhibit 50-(47).

49 BROADWAY-NEW YORK

December 16, 1899.

Hon. Theo. Roosevelt,Executive Chamber, Albany, N. Y. 7383

My dear Governor:

Upon my arrival here I .find your letter of Decem-ber I3 th. I agree with you that Mr. Payne's interview

is very impolitic and unwise, but I have a telegram

from him in which he says:

"Ninety per cent of the pretended interviews"with me, and printed in the New York papers,"are garbled and in many instances have no

"foundation whatever."

2462

7384 Exhibit 50-(48)

The criticism that I would make, so far as yourside of the case is concerned is that the stirring upof this matter at this time is very unwise and thesending for Mr. Hendricks to come to Albany wasat least imprudent.

As to the question of the Judgeship, while theremay be some objection on account of the prior rightsof Mr. McLennan, I do not see why that matter shouldbe decided upon the question of length of service.I know that so far as the politics is concerned, itwould be a mistake to appoint Mr. McLennan. But

7385 I hope these matters will not be decided until I haveopportunity to see you.

I had not forgotten my invitation to breakfast onSaturday the 23rd and shall be there without fail.


Exhibit 50- (48).

STATE OF NEW YORK


Albany

Dec. I8th, 1899.

Hon. T. C. Platt.Fifth Ave. Hotel, N. Y. City.

My dear Senator:

I have yours of the I6th. The Payn matter wasnot stirred up from this end. I sent for Hendricksto come here and see me about Judge Hiscock, andI spoke to him about the Payn matter merely becauseof what had appeared in The Sun. As you will recol-

2463

Exhibit 50-(49) 7387

lect, the statement that Hendricks was to be offered the

place appeared in The Sun from the New York end.

I supposed that either you or Odell gave it out. Icertainly did not and it did not come from Albany.I am greatly relieved to find that you did not. Do

you think it possible that Mr. Odell incidentally letEddie Riggs know about it? I am really at a. loss to

understand how it got out from the New York end

and only in The Sun. I did not want to write and

ask either you or Ben about it, and I am very gladthat you spoke of it so as to give me the opportunityto place myself right about it. 7383

The enclosed letter from Judge Vann will I thinkgive you a clearer idea of my difficulties in the His-

cock matter. Please treat the letter as purely con-fidential, save of course you can show it to Ben Odell,

and then return it to me.Faithfully yours,


Exhibit 50- (49).

STATE OF NEW YORK 7389

ExECUTIVr CHAMBER

Albany

Dec. 19th, 1899.

Senator T. C. Platt,Senate Chamber, Washington, D. C.

My dear Senator:Herewith I send you proof of my message. All

the important parts I have had gone over by various

experts. Thus the entire canal matter has been laid

2464

7390 Exhibit 50-(49)

before General Greene, Supt. Partridge, State Engi-neer Bond, and Fox and MacFarlane. The part ontaxation, franchise tax, public utilities, industrial con-ditions and trusts has been laid before Stranahan,Elihu Root, President Hadley of Yale and Prof. Jenksof Cornell, as well as in part before Prof. Seligmanof Columbia and Judge Cohen, and that lawyer, JamesA. Dill of New Jersey, who is in partnership withtion lawyer. The part about labor I have put beforeSecretary of State McDonough, Prof. Jenks and inAttorney General Griggs and who is a big corpora-

7391 part before Holls. The Agricultural part has beenbefore Assemblyman Witter of Tioga Co. The partabout National Guard has been before Major GeneralRoe and Brigadier Generai Oliver; &c., &c. So yousee I have tried to get all the advice I could and haveendeavored to make it a satisfactory document!

I need not say that I want you to make suggestionsand criticisms with the utmost freedom. I hope youcan get it back to me so that I can send it definitelyto the printers by Tuesday .of next week.


7392

2465

Exhibit 50- (50). 7393

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. 24 th, 19oo.

Senator T. C. Platt,Senate Chamber,

Washington, D. C.

My dear Senator:

I am very much concerned to hear of Mrs. Platt's 7394

sickness. Mrs. Roosevelt is as anxious as I am tohear how she is.

Odell called me up today and told me that he hadcommunicated with Hendricks the statement that youwould heartily support him, and to tell me that youdesired me not to send in the name until next Mon-day, so that this Saturday you could have a last talkwith Payn. Of course, I am delighted to wait untilMonday as you request, and I have so notified Hen-dricks. It is an ideal solution of the whole question.We shall have 26 of the 27 republican votes, and mypresent information and belief is that the oppositionwill go absolutely to pieces, for the democrats arenow satisfied that Payn is beaten, and they will ofcourse drop him at once.

With great regard,Sincerely yours,


2466

7396 Exhibit 50-(51).

(Telegram.)

THE WESTERN UNION TELEGRAPH COM-PANY

Albany, N. Y., Jan. 26, I9OO.

Hon. T. C. Platt,Arlington Hotel,

Washington, D. C.

Am exceedingly sorry to hear of Mrs. Platt's con-7,397 tinued illness. In view of your telegram will now

make announcement of decision and will send in Hen-dricks name to Senate Monday night.

THEODORE ROOSEVELT.

Exhibit 50-(52).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

7398 Jan. 26th, I9OO.


Washington, -D. C.My dear Senator:

I am extremely sorry to hear that Mrs. Platt con-

tinued so sick. I am very earnestly hoping that shewill be all well before you get this.

On receipt of word from you I promptly notifiedHendricks that I should announce his name today and

send it in on Monday night, having received a telegramfrom you advising prompt action.

2467

Exhibit 50- (53) 7399

May I meet you on Saturday the ioth of Febru-ary? I have an engagement unfortunately on Fri-day night and so cannot take breakfast with you Satur-day, but I will meet you any time in the afternoon.Then we can go over various matters as I have verymuch to tell you.

With great regard and renewed hopes that Mrs.Platt will speedily and entirely recover, I am,


7400

Exhibit 50-(53).

UNITED STATES SENATE

Washington, D. C., Jan. 27, i9oo.Hon. Theo. Roosevelt,

Executive Chamber,Albany, N. Y.

My dear Governor:

I am glad that the insurance question is to be takenout of politics and that your nomination is to go inso soon and will, I presume, be confirmed promptly. 7401

If Mrs. Platt should be well enough for me to goto New York, so as to be there on Saturday, the ioth,I shall do so; and if later on it seems probable, Iwill telegraph to you and will ask you to lunch withme at the Lawyers' Club at one'clock of that day.I presume that you will desire to have Mr. Odell pres-ent on that occassion, and I will ask him unless I hearfrom you to the contrary.

Mrs. Platt is still very ill and we are very anxiousabout her. But the doctors seem to think that shewill pull through all right. She is, however, so weak

2468.

7402 Exhibit 50-(54)

and worn that it will take a long time for her to re-cover. VWShen she does it will not do for her to re-main here. We will find some peaceful and restfulplace where her system can permanently recuperate.

With kind regards to Mrs. Roosevelt, I remain,Yours very sincerely,

T. C. PLATT.

Exhibit 50- (54).

7403STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Jany. 29 th, i9oo.

Senator T. C. Platt,Senate Chamber,

Washington, D. C.

My dear Senator:

I have yours of the 27th inst.I am greatly concerned about Mrs. Platt and am

7404 following all that the papers say. I hope speedily to

hear that she has entirely recovered.Of course I will lunch with you and Odell on Satur-

day the ioth at the Lawyers' Club at one o'clock ifyou say so.

With warm regards from both Mrs. Roosevelt andmyself,


2469

Exhibit 50-(55). 7405

(Telegram.)

THE WESTERN UNION TELEGRAPHCOMPANY

Albany, N. Y., Jan. 31st, 1900.

Hon. Thomas C. Platt,Arlington Hotel,

Washington, D. C.

Hope Mrs. Platt is better. Hendricks confirmedunanimously.. 7406

THEODORE ROOSEVELT.

Exhibit 50-(56).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

January 31st, 1900.

Hon. T. C. Platt,Senate Chamber, 7407

Washington, D. C.

My dear Senator:

It was the greatest pleasure to learn that Mrs. Plattwas improving. Mrs. Roosevelt sends her earnest wellwishes as well as I do.

Would it be convenient for me to breakfast withyou on Monday the 12th of February instead of lunch-ing with you on Saturday the ioth? This will enableme to do my Albany work on Saturday before leaving.

Henry D. Purroy wants to go on the Charter Coin-

2470

7408 Exhibit 50-(57)

mission. He has been terribly punished by Tammany

and has stood up for us very straight. It seems to

me it might be a good thing to put him on. But I

would like to go over it carefully with you first.The Hendricks business came out most satisfac-

torily, and by the time he takes office the last rippleof excitement will have disappeared, and the organi-zation and the party will be stronger than ever, be-cause of the character and capacity of the man whohas been put into this position.

We shall soon have to decide about the canal busi-

7409 ness. I have been talking with Senator Ellsworthwho naturally sympathizes with the position I took.Personally I think that this is the wise position for us,though I appreciate the seriousness of the question in-volved.


Exhibit 50-(57).

STATE OF NEW YORK


Albany

February I, 19oo.


Washington, D. C.


First and least important. If you happened to haveseen the Evening Post recently you ought to be amusedfor it is moralizing with lofty indignation over the

2471

Exhibit 50-(57) 7411

cringing servility I have displayed in the matter ofthe insurance superintendent. I fear it will soon take

the view that it cannot possibly support you as longas you associate with me!

Now as to serious matters. I have, of course, donea great deal of thinking about the Vice-Presidencysince the talk I had with you followed by the letterfrom Lodge and the visit from Payne of Wisconsin.

I have been reserving the matter to talk over withyou, but in view of the publication in .the Sun thismorning, I would like to begin the conversation, asit were, by just a line or two now. I need not speak 7412of the confidence I have in the judgment of you andLodge, yet I can't help feeling more and more that

the Vice-Presidency is not an office in which I coulddo anything and not an office in which a man who isstill vigorous and not past middle life has much chanceof doing anything. As you know, I am of an activenature, in spite of all the work and all the worry-and very largely because of your constant courtesyand consideration, my dear Senator, I have thor-oughly enjoyed being Governor. I have kept everypromise, express or implied, I made on the stump andI feel that the Republican party is stronger beforethe State because of my incumbency. Certainly 7413everything is being managed now on a perfectlystraight basis and every office is as clean as a whistle.

Now, I should like to be Governor for another term,

especially if we are able to take hold of the Canals

in serious shape. But, as Vice-President I don't see

that there is anything I can do. I would be simply

a presiding officer, and that I should find a bore. As

you know, I am a man of moderate means (although

I am a little better off than the Sun's article would

indicate), and I should have to live very simply in

Washington and could not entertain in any way as

Mr. Hobart and Mr. Morton entertained. My chil-

2472

7414 Exhibit 50-(58)

dren are all growing up and I find the burden of theireducation constantly heavier, so that I am by no means

sure that I ought to go on in public life at all, pro-vided some remunerative work offered itself. Theonly reason that I should like to go on is that as Ihave not been a money maker I feel rather in honor

bound to leave my children the equivalent in a wayof a substantial sum of actual achievement in politicsor letters. Now, as Governor, I can achieve some-thing, but as.Vice-President I should achieve nothing.The more I look at it, the less I feel as if the Vice-

741 3 Presidency offered anything to me that would war-rant my taking it.

Of course I shall not say anything until I hear fromyou, and possibly not until I see you, but I did wantyou to know just how I felt.


Exhibit 50-(58).


7416 Washington, D. C.

Feb. 3, 1900.


My dear Governor:

Your letter of the 31st ultimo came duly to hand

and its contents have been carefully considered. Itwill be agreeable to me to change the date of our

breaking bread together, from Saturday the ioth, at

luncheon, to breakfasting on Monday the 12th, pro-

2473


vided it will be possible for me to go to New Yorkat all. That, of course, is problematical and will de-

pend entirely upon Mrs. Platt's condition. I had

hoped and expected to run over so as to be in New

York for a few hours today, but the doctors advised

against it and I propose to remain near her. She is

still very sick. Her strong physical condition enables

her to endure a great deal. This terrible palpitation

of her heart has now lasted for two weeks and the

pulsation has kept up almost constantly at the alarm-

ing figure of 19o. How much longer she will be able

to endure this siege it is impossible to say, but the 7418

doctors are still hopeful. The chances are that I will

not be able to arrange for our meeting on the 12th,

but I will endeavor to advise you in time.

Perhaps Henry D. Purroy will make a wise coun-

sellor for the new Charter Commission. I do not

know enough about him to express an opinion. I

will endeavor to post myself so that when the time

comes for forming that commission I can talk under-

standingly. You, of course, understand the import-

ance of having that commission made up of the very

best possible material, men who are-patriotic and pub-

lic spirited, without axes to grind, or grudges to

gratify. I assume that it will require the united wis- 7419

dom of all of us to select those men.Everybody seems to be well pleased with the out-

come of the Insurance War, except the Democrats

who had hoped to see the Party distracted by feuds

on account of it. It is really wonderful to see how

the elements have all subsided and acquiesced. Mr.

McCarren's personal attack on me does not seem to

have had any serious effect upon anyone. When such

men praise me I at once regard myself with distrust.

The question of adopting the policy of the Canal

Commission is a very serious one, and I am very

much at a loss to decide what is wise and politic.

2474

7420 Exhibit 5o-(59)

There is no doubt as to what is good business andfor the material welfare of the great State of NewYork, but present expediency must sometimes governin such cases. The farmers in the rural counties areso sensitive on the subject of taxation that we are ingrave danger of wasting away our narrow margin ofmajority. It seems to me, however, that the questionto be decided is as to whether we shall do the workas advised by the Commission or abandon the Canal.Perhaps it would be best to defer decided action onthe Canal question until another year. By that time

7*21 the Presidential question will be out of the way andthe selection of a new Legislature will have occurred,both of which results may relieve us from much em-barrassment.,


Exhibit 50-(59).


7422 Washington, D. C., Feb. 5, 1900.

Hon. Theodore Roosevelt,Executive Chamber, Albany, N. Y.

My Dear Governor:

I have hardly had time to give the consideration itdeserves to your letter of February first and the mat-ters involved therein, and am inclined to take moretime for mature deliberation. The Vice Presidentialquestion is a very important one and a great deal de-pends upon it.

2475

E.rhibit 50-(60) 7423

Mrs. Platt's condition is considerably improved and

it looks now as though I should be able to get to

New York soon, at which time we can personally dis-

cuss the Vice Presidential and other questions.


Exhibit 50- (60).

STATE OF NEW YORK 7424

EXECUTIVE CHAMBER

Albany

Feby. 7 th, I9OO.

Hon. T. C. Platt,Senate Chamber, Washington, D. C.

My Dear Senator:

Your very kind note has just been received. I note

that you expect to be in New York on Saturday. If

so, I shall not try to lunch with you, but if conven-

ient I will call on you at the Fifth Avenue Hotel, at '7425

three P. M. My train gets in from Albany at i :30

P. M., and so I do not suppose I could get to the Fifth

Avenue Hotel in time to take lunch with you. Will you

wire me on receipt of this note.

We are delighted at the fact that Mrs. Platt now

seems to be so much improved. Frank and his wife

are coming up here to dine with us. We asked them

to spend the night, but they were already engaged.Faithfully yours,


2476


P. S. I saw Kerens and told him I had written toyou that I would not take the Vice Presidency, butthat I wanted nothing said until I had a chance to talkmatters over with you. The more I have thoughtover it, the more I have felt that I would a greatdeal rather be anything, say professor of history, than

vice president.

Exhibit 50-(61).7427

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

February 27 th, 19oo.


Washington, D. C.

My dear Senator:

You will doubtless remember that last year I en-7428 deavored in every way to get a proper Barren Island

Bill passed through both Houses of the Legislature.

Unfortunately a bill that was conservative and rightdid not reach me for Executive action. This year, how-ever, we have two bills which are eminently conserva-tive and proper. They are recommended by Dr. Doty

and I think he has' communicated with you on the

subject. Tammany, however, under the leadershipof Senator Grady is endeavoring to defeat these meas-ures in the Senate, and I think they are, bills which the

organization could very properly take hold of and

which ought to pass for the benefit of the people ad-

2477

Exhibit 50-(62) 7429

jacent to Barren Island and in fact for the benefit of

the people of the City generally. Will you not com-

municate with Mr. Odell on this subject at once?

Faithfully yours,


In this Barren Island legislation I have merely been

carrying out the promise I made you when I found I

could not sign the former Barren Island bill.

7430Exhibit 50- (62).

February 28th, I9oo.

Hon. Theo. Roosevelt,


My dear Governor:

I am in receipt of yours of the 27 th relating to the

Barren Island question. You will remember that I was

the one who was most importunate with you on the

question of abating the nuisance and was very fearful

that if we delayed, we might encounter just what we

have now, united opposition on the part of the Demo- 7431

crats. The truth of it is, that the men who are re-

ceiving benefits from the Barren Island business are

high sachems of Tammany Hall, and will do every-

thing in their power to continue their official existence.

Perhaps it is no wonder that our friend, Judge Cohen,

is in the forefront, as he was before, advocating re-

tention. Dr. Doty had brought this to my attention

some days ago, and I had already communicated with

Senator Ellsworth, who, Dr. Doty informed me, had

gone all wrong on the subject and was aiding Tam-

many Hall in their endeavors. I hope you will see

2478


Odell. I will telegraph him at once and urge him toline up the Republican forces unitedly in favor ofDr. Doty's bill. If you can find that any farther en-deavors are necessary on my part, I shall be only tooglad to carry out any advice or suggestion in this be-

half.Yours faithfully,

T. C. PLATT.

7433 Exhibit 50-(63).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

April I6th, 19oo.


My dear Senator:

With reference to the enclosed -clipping (which Isuppose is entirely unauthorized), I.venture to recallto you that I was to name one of those appointees-probably either Wilson or Shea.

I have just received your letter inclosing communi-cation from Verplanck Colvin. I shall go over thatAdirondack Survey matter.


2479

Exhibit 50- (64). 7435

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

May 1st, i9oo.


My dear Senator:

I have studiously refrained from interfering inany way with the Commission I appointed. I thought 7436for the reasons given below, that Rives would makethe best Chairman and so I put him first, but I neverspoke to a member of the Commission, until yesterdaythe different commissioners began to call me up on thetelephone, telling me that they had been approached byMr. Dady and other gentlemen who asserted that theyrepresented you and that either Mr. DeWitt or a Re-publican was to be made Chairman but not Mr. Rives.

In almost each case the messenger who alleged thathe represented you asserted that a majority of the

Commission was pledged against Rives, etc., etc.-these assertions not being warranted by the facts. Al-most each member of the Commission who called me 7437

up, stated that he regarded it as most unfortunate thatpolitics should have been injected into the matterand that if any rumor of it got out, it would have amost damaging effect upon the Commission. Inci-dentally most of them stated that they thought Rivesthe best man for the position of Chairman. I entirelyagree with you that we want to have such changes in

the charter as a Republican Legislature will pass; but,of course, the first thing is to get a Republican Legis-lature. Nothing, in my judgment, would damage usmore in New York among the element whose votes

2480

7438 Exhibit 50-(64)

have got to come to us if we are out to win the elec-tion, than to have them get the idea that the chartercommission, was being managed as a Republican ad-junct. As you know, the independent element has ob-jected bitterly to the transfer tax appraisers' bill, chief-ly because of the appointments made under it. I do notsympathize with their objections, but they are real andthey exist, and the law will undoubtedly be used as apotent handle of attack upon us. I have also vari-ous other troubles with the independents, springing inevery case because of their opposition to the organiza-

7439 tion. Now, in the interest of the organization I didnot want to add to these troubles by giving them areal cause of grievance; because it seemed tome thatthe Charter Commission was eminently a body inwhich I could afford to recognize the independent ele-ment; so that I put Rives first on the Commission, in-dicating him as the man that I thought would make aproper Chairman. I had thought of Beaman, butknew that he had not the time to give to the work, andBeaman seemed to me to be the only man whose repu-tation was so great that it would be safe and properfor me to put him over Rives' head as Chairman. Itnever occurred to me that you would have the slightest

7440 feeling in the matter, as Rives' appointment wouldhave no bearing in action upon the deeds of the Com-mission. Of the Commissioners, nine are Republi-cans, and of the six Democrats, four and perhaps fivevoted against Bryan and are out of sympathy withTammany while it is under Croker. Indeed, the onlycriticism that has been made upon the Commissionwhich I considered to be serious was that I had notput on enough straight Democrats, while New Yorkis a Democratic City. This criticism would be largelymet by the selection of Rives, a Gold Democrat, a.

Chairman.

2481.

Exhibit 50-(65) 7441

I am exceedingly sorry that I did not know ofyour feelings in the matter. I hardly see how I can

go back on my own expressed convictions now. Ialso regret greatly the action of those who went tosee the different Commissioners asserting, of course,without foundation-that they came from you; for

they succeeded in giving the Commissioners an uneasy

feeling about bringing politics into the matter. On-receipt of your telegram, however, I at once called upMr. Taft, Mr. Beaman and others and suggested thatthey wait as regards the organization of the commis-

sion until they could come up here on Friday and all of 7442

them take lunch with me. Then I will try to see ifthere is a possible solution of the matter. But, of

course, if Mr. Rives wants it I am in honor com-mitted to him and you would be the last man to wishme to go back on my word where I had committed

myself-it is not your style, Senator.Faithfully yours,


Exhibit 50- (65).7443

May 5th, 19oo.


Albany, N. Y.

Our friends of New York Central are very anxious

to have you sign Senate Bill 763 exempting from the

Franchise Tax Grade Crossings of Steam Railroads.

I hope you can consistently do so. Senator Depew is

very anxious.(Signed) T. C. PLATT.

2482

7444 Exhibit 50- (66).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

May 7 th, I9OO.Hon. T. C. Platt,

Senate Chamber,Washington, D. C.

My dear Senator:

I received your telegram and one from Ford yester-day. It was too late for me to act, as I had alreadypublished a memorandum stating not merely that Fordwas against the bill,.but that the State Tax Commis-sioners opposed the bill. I had reversed my action ina somewhat similar case where the objection came fromEx-Mayor Schieren, he having withdrawn his objec-tion by telegram, pointing out that it had been madeunder a misapprehension and that the facts were dif-ferent than he had supposed. But in the case of thisbill Ford was not the only man who objected. What Ipaid most heed to was the fact that the Tax Com-missioners had objected to the bill. The Rochesterpeople had been violently against it, claiming that itexempted property which was now taxed and wouldwork them a serious harm. I accordingly summonedthe State Tax Commissioners and Senator Ford tomeet me about the bill. Stearns was originally ratherin favor of it, but in a very lukewarm way. WhenI got the Board together, however, after some hesita-tion they took ground against it, Mr. Priest inespecial feeling very doubtful about the effect of theproposed law, and all finally being unanimous in thestatement that we had better let matters go on thisyear as they were, and then after this year's experiencethe Board could recommend whatever changes were

2483


necessary. Ford meanwhile came tip and withdrewhis support of the bill and said he thought it ought notto be signed. Afterwards Mr. Priest wrote me statingthat they ought to know at once whether or not -thebill was to be signed and would like a definite state-ment from me. I replied that the bill would not besigned and made this statement public. This wasnearly four weeks ago, and it was not until last Fridaythat anyone gave a hint to, me that there was a pro-test against my decision. Meanwhile the Commis-sion had gone ahead and acted in scores of cases uponthe decision. I did not receive your telegram until 7448yesterday (Sunday). It was then altogether too lateto get at the Commission and again go over the mat-ter with them. I am exceedingly sorry if any hard-ship has been caused either to the New York Cen-tral or the Long Island Railroad, but it was a matterwhere I really had to act according to the advice of the

Commission, unless it could be shown that they werein the wrong.

I forgot to say that when I first spoke to themabout the matter they announced that they were "neu-

tral." This I informed them they could not be; thattheir duty was to be for or against it; that they mustoccupy a definite position in regard to such a matter, 7449affecting the most important law they had to admin-ister.


2484

7450 Exhibit 50-(67).

May 15, 19oo.


My dear Governor:

I submit confidentially, herewith, a letter I have justreceived from Mr. Quigg with reference to your con-nection with the Committee on Resolutions at the Na-

tional Convention. It occurs to me that his objectionsare wise, but if you think otherwise and still desire togo on that Committee, I should take him at his word

7451 and favor your designation as the member on Reso-lutions from the State of New York. Please return

Quigg's letter when you reply.Yours faithfully,

T. C. PLATT.

(Enclosure.)

New York, May 14, 1900.

Hon. T. C. Platt,

7452 Washington, D. C.


I have been thinking over your statement that Gov-

ernor Roosevelt told you that the President had sug-

gested to him that he go on the Committee on Resolu-

tions at Philadelphia. I repeat what I said to you

Saturday night that I am quite willing to stand aside

for the Governor. But the more I think of it, the

more I am convinced that he ought not to take the

responsibility of serving on this committee as New

York's representative. There will be several trouble-some problems before the Committee on Resolutions

2485

Exhibit 50- (67) "745 3

and there is no reason why our Candidate for Gov-ernor should be held personally responsible in the cam-paign for the precise language of the platform. Take,for instance, the subject of trusts and the subject ofBoer resolutions. It may be assumed that we are notgoing to adopt any demagogic declarations on thesematters but whatever the platform says, if Rooseveltis on the committee as New York's representative,every Democratic newspaper in the State will be de-manding to know why this was not done and why thatwas done and why anything and everything was notsaid instead of what was said, and they will declare 7454that he could have got this in if he had tried or hecould have kept that out if he had tried, and therewill be added to the ordinary controversies of thecampaign just so much more of possible prejudices.I regard his designation on this committee as un-wise. None the less, I want you to understand thatthis is said without respect to the fact that you hadalready assured me of your support for the positionand I end as I began, by assuring you and the Gov-ernor that I am very willing to step aside for him ifyou and he so desire.

Faithfully yours,(Signed) L. E. Q. 7455

2486

7456 Exhibit 50- (68).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

May i8th, 19oo.


Washington, D. C.

My dear Senator:

7457 I at once return Mr. Quigg's kind and generousletter which accompanies your equally kind and gen-

erous one of the 15th inst. Evidently the thing hasgone so far that it would be wise to have Mr. Quiggkept on the Committee on Resolutions. I should like,however, very much to have the chance to talk overwith him and you some of the resolutions.

It was delightful to see you in Washington.With hearty thanks, I am,


7458

2487

Exhibit S0- (69). 7459

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

June 6th, i9oo.


Washington, D. C.

My dear Senator:

In looking around it seems to me that Cuthbert W. 7460Pound is the best man for Civil Service Commis-sioner. Senator Ellsworth and Speaker Nixon boththink he would be very acceptable. I will see him onFriday night. Of course, I want to examine his rec-ord and see if there is anything in the Civil Servicereform business where he has slipped up; but I doubtit, for he is of exceptionally high character. For theposition, just at this time, I want a man of the veryhighest stamp whose appointment I won't have to ex-plain in any way.

Faithfully yeurs,(Signed) THEODORE ROOSEVELT.

7461

2488

7462 Exhibit 50-(70).

June 8th, I900.



My dear Governor:

I have received your letter suggesting the name ofCuthbert W. Pound as-Civil Service Commissioner inplace of Cobb. I think well of Pound and am pre-pared to accept your choice, if that seems to be best.I understand that Senator Ellsworth and others of theleaders of the Party in that part of the State arefavorable to Pound and the fact that he was from

7163 the same locality as Mr. Cobb was from is very much

in his favor, and I should think, if you are well dis-

posed toward him, you had better send in his name atonce. Nobody of our friends in Buffalo favored thenomination of Wheeler; in fact they were very muchopposed to it.

Yours very truly,T. C. PLATT.

Exhibit 50- (71).

Oyster Bay, Long Island, N. Y.,

7464 Sagamore Hill, June 24, I9OO.


I cannot believe that what I see in the papers aboutthe proposed turning down of Gen. Greene is true, forit would, of course, be not only a cruel injustice tohim and the bitterest possible affront to me, but wouldresult in united damage to, our cause this year. If such

a move is really contemplated, may I not ask that allaction be deferred until I have a chance to see you?

Odell knows all about it.With warm regards to Mrs. Platt, believe me,

Most sincerely yours,(Signed) THEODORE ROOSEVELT.

2489

Exhibit SO- (72). 7465

UNITED STATES EXPRESS COMPANY

Office of the President

49 Broadway

New York, June 25, 1900.


Oyster Bay, New York.

My dear Governor:

I received your note of yesterday and will endeavor

to do whatever is consistent and right in General 7466

Greene's case. The truth of it is that the General wasso anxious to get the nomination for Vice-Presidentthat he pursued a very peculiar course, which operatedvery unfavorably upon the minds of the members ofthe County Committee who were present at the Na-

tional Convention. I do not propose to do anythinghastily or unwisely in this matter, but I do feel quite

as decidedly and earnestly on the subject as you do.If the County Committee is left to itself, it willundoubtedly turn him down. I shall take pains andpleasure in overcoming the objections which exist in

the minds of the members of the County Committee

and for that purpose will very soon call together a 7467

meeting of the important men of that Committee.Yours very truly,

T. C. PLATT.

2490

7468 Exhibit 50-(73).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

At Oyster Bay, June 26, I9OO.


New York City.

7169 My dear Senator:I thank you most heartily. I think that you have

acted not only in a kindly, but in a wise way.Again heartily thanking you, believe me,


Exhibit 50- (74).

At New York, July 26th, i9OO.

Hon. Theodore Roosevelt,7470 Oyster Bay, New York.

My dear Governor:

Is there any real good reason why Mr. Brockwayshould be removed from the Superintendency of theElmira Reformatory? The most I know is that the"World" and the "Herald" are pressing for this man'sscalp. I know that on previous occasions, the "World"was actuated simply by malicious motives, and I pre-sume it is so at this time. However, what I wishto know is if there was any good reason why thisthing should not be held open until after Election. It

2491

E-rhibit 50-(75) 7471

seems that the Board has asked for Mr. Brockway's

resignation on the 3 1st of July. I do not want to in-

terfere with equal and exact justice for everyone, but

I do not wish to see anyone railroaded out of officebecause the "World" says he must go. Let me know

if there is any decided reason why Mr. Brockwayshould be removed on the 3 Ist day of July.


7472

Exhibit 50-(75).

STATE OF NEW YORK

EXECUTIVE CHAMBER

Albany

Oyster Bay, July 29, 1900.


New York City.

My dear Senator Platt: 7473

When the board laid before me the facts about Mr.

Brockway, the first thing I asked was that they should

defer taking any action until after election; but they

refused just as the Lunacy Commission refused to let

the Van Geyson matter go until after election. The

Elmira board said that they would not be responsible

and would not stay in if they had to longer keep quiet.

Seth Low, Albert Shaw and a whole raft of other

friends of Brockway's have been writing on his ac-

count and if I could have held the thing up I would

2492

7171 Exhibit 50-(76)

have. The board, however, is in deadly earnest. TheHerald and World have nothing to do with thesecharges except that they have repeated some that haveleaked out long after the board had taken action onthem. I am afraid nothing can be done in Brock-way's case. Would you like me to give you the de-tails, or to tell Mr. Beckett to call on you and give youthe details that brought the matter to a head?


7475

Exhibit 50-(76).

STATE OF. NEW YORK

EXECUTIVE CHAMBER

Albany

Oyster Bay, July 31, 1900.


New York City.My dear Senator Platt:

Had I not better get Mr. Beckett to come and seeyou? I do not think anything can be done in that Re-formatory business now.


2493

Exhibit 50-(77). 7477

At New York, August ist, 19oo.

Hon. Theodore Roosevelt,Oyster Bay,

L. I., N. Y.

My dear Governor:

I do not see that any good can come from seeingMr. Beckett at this time. He has made up his mindand has forced Mr. Brockway to resign-conse-quently, I can see no advantage to be derived from aninterview with Mr. Beckett.

Yours very truly, 7478T. C. PLATT.

Exhibit 50-(78).

STATE OF NEW.YORK

EXECUTIVE CHAMBER

Albany

Oyster Bay, August 9, 1900. 7479


New York City.


In thinking over our conversation about the gover-

norship it seems to me to be very important to getsome man of such character and position that all Re-

publicans can unite to support. Why is not Judge

Charles Andrews such a man? It seems to me that

he would make a very strong candidate.

2494

7480 Exhibit 50-(79)

I have just received your letter about the Carlsoncase and I will have it looked up at once.


Exhibit 50-(79).

Auditorium Hotel, Chicago, Ill.,

Oct. 7, 1900.7481 Hon. T. C. Platt,

5th Ave. Hotel, N. Y. City.

My dear Senator:

We have had great fun on this trip, though the workhas been very wearing. I think I can say that thetrip has been a successful one so far. Of course Ido not wish to prophecy in public, but speaking pri-vately, I think we shall carry Kansas, South Dakota,

Wyoming, Washington and possibly both Utah andNebraska among the States that Bryan carried fouryears ago. In Chicago I personally anticipate troubleover the attitude of the labor unions, but outside of

7482 Chicago the majority will be so large as to more thanmake up for any failure here, and Illinois will besafe. From all I can find out the democratic cam-paign in New York seems to have nearly broken downI am earnestly hoping that my voice holds so that Ican put in effective work when I get back to the State.

The Attorney-General has written me and Mr.Youngs has explained to me personally the situation inthe matter about which Ben wired me. I shall donothing until I get back and can go over the whole

business with Davies. The antics of The World in thecase are entirely characteristic.

2495

Exhibit 5o-(8o) 7483

Give my warm regards to Mrs. Platt. Col. Curtis

Guild of Boston, who is with me, wishes to be remem-bered to you.

I met Hanna today and had a very nice talk withhim. Good Lord how I hope we can beat Pettigrewfor the Senate!

Sincerelr yours,(Signed) THEODORE ROOSEVELT.

(Dictated to W. L. Jr.)

7484Exhibit 50- (80).

THE WESTERN UNION TELEGRAPH COM-

PANY.

TELEGRAM

Albany, N. Y., Dec. 6, I9oO.


Washington, D. C.

Am greatly concerned because Charter Commissionhas arranged lunch for Odell and myself next Wednes-day this being only day they could get that would suitus both. The Commission is composed of prominent

citizens who have worked very hard without remun-eration. I greatly fear they would feel slighted and

offended if I now broke engagement. Have tele-

graphed Chairman Rives to find out. Do you really

regard it as important for me to come. Can't Wood-

ruff take my place. Does President really expect me?Wire answer.

THEODORE ROOSEVELT.

2496

7486 Exhibit 50-(S1).


TELEGRAM

Dec. 6, 19oo.


Albany, N. Y.

Think your absence from meeting of commission

718 1 will be deplored by the President and the other Gov-ernors. Meeting of Charter Commission seems to meshould be secondary. Let them postpone. Woodruffwill not answer.

T. C. PLATT.

Exhibit 50- (82).


TELEGRAM

7488

Albany, N. Y., Dec. 7.

Hon. T. C. Platt,Senate, Washington, D. C.

All right of course in view of your second telegram

I will come but you are not an easy boss.THEODORE ROOSEVELT.

2497

Exhibit 50- (83). 7489

THE VICE PRESIDENT'S CHAMBER

WASHINGTON, D. C.

Oyster Bay, N. Y., March 27th, ioi.


My dear Senator:

If the chance comes along will you not keep myold friend, Mr. Joseph Murray, in mind? As youknow, he is no longer in office, and I suppose will have 7490

a little difficulty in getting into private business againafter his two years absence at Albany. He is an ex-ceptionally honest and faithful man in whom I haveparticular confidence.

With regards,Sincerely yours,

(Signed) THEODORE ROOSEVELT

7491

2498

7492 Exhibit 50-(84).

Committee on Printing


WASHINGTON, D. C.

March 29, 1901,


My dear Mr. President:

7493 The one thing which you ask of me is one of themost difficult problems possible. Murray was removedfrom the office which he had filled for two or threeyears, for inefficiency. He never went to Albany ex-cept to draw his pay, and the Superintendent of PublicBuildings told me confidentially that he was not worthanything as an assistant; that he did not render himany assistance whatever. I do not know but he would,in some other position, perform his functions but hispast career does not warrant the presumption. Yousay "he is an exceptionally honest and faithful man."Did you know these facts and these representations asreiterated to me by the Superintendent of Public

7494 Buildings? I do not imagine you would endorse a manso highly who was not worthy. I tell you this history,of course, in confidence, trusting that you will notuse it.


2499

Exhibit 50-(85). 7495


WASHINGTON, D. C.

Oyster Bay, N. Y., March 3oth, I9OI.


My dear Senator:

May I show your letter of the 29th inst to Joe Mur-ray in strict confidence? My understanding was thathe did everything that was required of him, but that 7496as a matter of fact Mr. Bender, the Superintendent,who is an exceedingly efficient man, preferred to doall the work himself. Of course if Murray is notcompetent, I would not dream of asking a place forhim. If you do not wish me to show the letter, mightI tell the allegations to Murray, without informinghim whence they come?

You are exceedingly kind to take so much troublein the matter.

With high regard,Sincerely yours,

(Signed) THEODORE ROOSEVELT7497

2500

7498 Exhibit 50-(86).

April 2, 1901


Oyster Bay, N. Y.


I have no objection to your showing my letter to Mr.

Murray, but Mr. Murray's efficiency was not demon-

strated by his acts. He simply went up there once a

week to draw his pay. Mr. Bender did not prefer to

do the work himself, but found it absolutely essential

to do so. Evidently Mr. Murray came to feel that he

7499 was the fifth wheel in the wagon and was not of any

use except to draw his pay. Very likely Mr. Murray

will deny these statements, but it is true that Mr.

Bender made the assertions. Upon second thought I

do not know as I care to involve Mr. Bender in the

statement, but so far as I am concerned, you can use

my name; not because Mr. Joe Murray has not been

a friend of mine, but that I believe these to be facts.

I have spoken to you very freely on this subject be-

cause I knew that Mr. Murray would come to you for

redress or reconsideration.Yours sincerely,

T. C. PLATT.

7500

2501

Exhibit 50-(87). 7501


\VASHINGTON, D. C.

Oyster Bay, N. Y., April 3 rd, 19o.

Hon. T. C. Platt,#49 Bway., N. Y. City.

My dear Senator:

I am genuinely indebted to you for the frankness

with which you have written in reference to Joe Mur-

ray. Of course, under the circumstances I should not 7502

for a moment press his claims. But on Mr. Bender's

statement the condition of things is entirely different

from what I had supposed, and I wish for my own

satisfaction to go over the matter with Murray, and

I thank you for your kind permission.Sincerely yours,


Exhibit 50- (88).

THE VICE PRESIDENT'S CHAMBER 7503

WASHINGTON, D. C.

Oyster Bay, N. Y., April 9 th, I9OI.


My dear Senator:

Every now and then a man appeals to me to use my

influence with you on his behalf. I am very reluctant

to bother you, but in some cases I bring the matter to

2502

7504 Exhibit 50-(89)

your attention simply to testify to my own knowledgeof the man's character and fitness. This done, I am

entirely content to leave it to your best judgment.Mr. T. St. John Gaffney tells me he is an applicant

for a position under Appraiser Wakeman. I haveknown Mr. Gaffney some time. He is an Irish Catholic

who has steadfastly resisted all influences brought tobear of recent years upon the people of his creed andrace to oppose our party. Last fall when so manyIrishmen followed the lead of Ford, Eagan, Finnerty,

etc., into the Bryanite ranks, Mr. Gaffney stood stoutly

7505 on our side. He is an educated man and a man ofmeans and my belief is that he would be entirely com-petent for the position sought should a vacancy oc-cur. It is a pleasure to write on his behalf.With regard,


Exhibit 50-(89).

Committee on Printing

7506 UNITED STATES SENATE

WASHINGTON, D. C.

49 Broadway, New York City,April ii, i9Ol.

Hon. Theo. Roosevelt,Oyster Bay, New York,

My dear Roosevelt:

You need have no hesitation or diffidence about mak-

ing any appeal to me with reference to any matter that

2503

Exhibit 50-(89) 1507

comes within your desire or knowledge, and you neednot be reluctant as to bothering me. I will alwaysdo my best to accomplish the object, although tellingyou at the time what my real convictions are.

I am frank to say to you that I do not believe it ispossible to get Mr. T. St. John Gaffney a positionunder Appraiser Wakeman. It certainly cannot beaccomplished while Mr. Wakeman is the Appraiser,and I will say to you confidentially that I am desirousof having him removed from his position. It will benecessary, though, to find some strong, able and effi-cient man to succeed him, and it would not be possible 7508to induce the President to make any change unless wecan find such a man to take his place. The Presidentis going to leave on the 29 th for San Francisco, to begone six weeks. I shall not see him before that time,nor can I get him to act on this question until his re-turn, by correspondence or otherwise. When I do seehim I will try and induce him to make a change inthat office, and that may enable us to assist Mr. Gaff-ney. Perhaps you can suggest some suitable candidatefor the place.


7509

2504

7510 Exhibit 50-(90).


WASHINGTON, D. C.

Oyster Bay, N. Y., July 3rd, 19oi.

Hon. T. C. Platt,#49 Bway., N. Y. City.

My dear Senator:

What day next week except Wednesday the iothwill you be in town and able to lunch with me, say at

7511 the Lawyers' Club? I shall not ask anyone else. I

should just like to lunch alone with you.Faithfully yours,


Exhibit 50-(91).

At 49 Broadway,

New York, July 5, 1901.

Hon. Theodore Roosevelt,

7512 Oyster Bay, N. Y.


Your letter of July 3rd is at hand. I shall be veryglad to lunch with you at the Lawyers' Club on Tues-day, July 9th, if agreeable to you, say, at one o'clock.


H-S

2505

Exhibit 50-(92). 7513


WASHINGTON, D. C.

Oyster Bay, N. Y., July 8th, 19O1


My dear Senator:

I have only just received your letter of the 5th. Allright, I shall be waiting for you at the Lawyers' Clubat one o'clock tomorrow (Tuesday). 7514


Exhibit 50-(93).

Personal

WHITE HOUSE

WASHINGTON

7515November 16, I9OI.


Seth Low says he will be delighted to come on tothat dinner, and suggests that as he has seen theGovernor I should have only people who are here atWashington. When will it suit your convenience?Would you prefer December or January? When youtell me I will get Low to fix the exact date.

Faithfully yours,(Signed) THEODORE ROOSEVELT

2506

7516 Exhibit 50-(94)

P. S. I hope you noticed that not one word as tothe Bidwell-Stranahan business was given out here.

Hon. T. C. Platt, U. S. S.,$49 Broadway,

New York, N. Y.

Exhibit 50- (94).

49 Broadway, New York City,

7517 November 18, 19Ol.


I have your letter of November I6th in which youask what will be the most convenient time to come onto that dinner at Washington, and asking me whetherI would prefer December or January. I do not knowthat it makes very much difference to me whether itis December or January, as the time I am to see Mr.Low. What I supposed was that you were going tosend for me to confer with Mr. Low as to the make-up of his Cabinet and principal officers. I have notseen him as yet and probably will not see him unless

7518 he conceives it to be of some consequence to conferwith me on the matters in hand, and that before De-cember or January. I presume that you must haveinferred that I had seen him or would see him pre-vious to the dinner. If I am not to see him beforethat time, it does not make any difference to me whattime the dinner is held. If you are only to havepeople who are in Washington, it will probably be bet-ter that I should fix the date for sometime early inDecember. I expect to be in Washington right afterThanksgiving, to remain-until Congress adjourns forthe holidays.


2507

Exhibit 50-(95). 7519

Personal

WHITE HOUSE

WASHINGTON

November i9, i9oi.


Mayor-elect Low told me positively he expected tosee you in New York. I urged him as strongly as Icould to do so. I shall now ask him to appoint a day 7520early in December when he can come down.

I look forward to seeing you soon after Decemberfirst.

Faithfully yours,(Signed) THEODORE ROOSEVELT

P. S. To my great pleasure I now see that Mr.Low has announced in the papers that he intends toconsult you at once.


New York, N. Y.

7521

Exhibit 50- (96).

November 22, 1901.


It is unnecessary for me to tell you that I had my

interview with Mayor-elect Low yesterday, and it wasin every way satisfactory. I am glad to know that

you have suggested the day early in December when

2508

7522 Exhibit 50- (97)

he will be down to take dinner with you. You havetold me about the invitation I would receive, and Ishall be only too glad to respond to any invitationwhich you may see fit to give me as a fellow guestwith the Mayor-elect. I shall be down to Washingtonabout the first of December.

Very sincerely yours,T. C. PLATT

The President,Washington, D. C.

7523

Exhibit 50-(97).

THE WHITE HOUSE

WASHINGTON, D. C.

Personal December 18, 19o5.


Many thanks for your note about George CabotWard. All right, I think I can place him.

7524 I have just received a letter from Mr. C. C. Shayne.Do not commit yourself to the candidate whom Mr.Shayne favors or to any one else, until I have a chanceto see you. I think we ought to try to get one ofthe five men we discussed.


Hon. T. C. Platt,United States Senate.

2509

Exhibit 51 for Identification. 7525

AUTOBIOGRAPHY OF DEFENDANT (pages63-70 inclusive).

The Republican Association of which I became a

member held its meetings in Morto n Hall, a large,

barn-like room over a saloon. Its furniture was of the

canonical kind; dingy benches, spittoons, a dai.s at one

end with a table and chair and a stout pitcher for iced

water, and on the walls pictures of General Grant, and

of Levi P. Morton, to whose generosity we owed the

room. We had regular meetings once or twice a

month, and between times the place was treated, at 7526

least on certain nights, as a kind of club-room. I went

around there often enough to have the men get accus-

tomed to me and to have me get accustomed to them,

so that we began to speak the same language, and so

that each could begin to live down in the other's mind

what Bret Harte has called "the defective moral qual-

ity of being a stranger." It is not often that a man

can make opportunities for himself. But he can put

himself in such shape that when or if the opportunities

come he is ready to take advantage of them. This was

what happened to me in connection with my experi-

ences in Morton Hall. I soon became on good terms

with a number of the ordinary "heelers" and even 7527

some of the minor leaders. The big leader was Jake

Hess, who treated me with rather distant affability.

There were prominent lawyers and business men who

belonged, but they took little part in the actual meet-

ings. What they did was done elsewhere. The run-

ning of the machine was left to Jake Hess and his cap-

tains of tens and of hundreds.

Among these lesser captains I soon struck up a

friendship with Joe Murray, a friendship which is as

strong now as it was thirty-three years ago. He had

been born in Ireland, but brought to New York by his

parents when he was three or four years old, and, as

2510

7528 Exhibit 51 for Identification

he expressed it. "raised as a barefooted boy on FirstAvenue." When not eighteen he had enlisted in theArmy of the Potomac and taken part in the campaignthat closed the Civil War. -Then he came back to FirstAvenue, and, being a fearless, powerful, energeticyoung fellow, careless and reckless, speedily grew tosome prominence as leader of a gang. In that district,and at that time, politics was a rough business, andTammany Hall held unquestioned sway. The districtwas overwhelmingly Democratic, and Joe and hisfriends were Democrats who on election day per-

7529 formed the usual gang work for the local Democraticleader, whose business it was to favor and rewardthem in return. This same local leader, like manyother greater leaders, became puffed up by prosperity,and forgot the instruments through which he hadachieved prosperity. After one election he showed acallous indifference to the hard work of the gang andcomplete disregard of his before-election promises.He counted upon the resentment wearing itself out, asusual, in threats and bluster.

But Joe Murray was not a man who forgot. He ex-plained to his gang his purposes and the necessity ofbeing quiet. Accordingly they waited for their re-

7530 venge until the next election day. They then, as Joeexpressed it, decided "to vote furdest away from theleader"-I am using the language of Joe's youth-andthe best way to do this was to vote the Republicanticket. In those days each party had a booth near thepolling-place in each election district, where the partyrepresentative dispensed the party ballots. This hadbeen a district in which, as a rule, very early in theday the Republican election leader had his hat knockedover his eyes and his booth kicked over and his ballotsscattered; and then the size of the Democratic ma-jority depended on an elastic appreciation of exactlyhow much was demanded from headquarters. But on

2511

Exhibit 51 for Identification 7531

this day things went differently. The gang, with aRoman sense of duty, took an active interest in see-ing that the Republican was given his full rights.Moreover, they made the most energetic reprisals ontheir opponents, and as they were distinctly the toughand fighting element, justice came to her own with awhoop. Would-be repeaters were thrown out on theirheads. Every person who could be cajoled or, I fear,intimidated, was given the Republican ticket, and theupshot was that at the end of the day a district whichhad never hitherto polled more than two or three percent of its vote Republican broke about even between 7532the two parties.

To Joe it had been merely an act of retribution inso far as it was not simply a spree. But the leadersat the Republican headquarters did not know this, andwhen they got over their paralyzed astonishment atthe returns, they investigated to find out what it meant.Somebody told them that it represented the work of ayoung man named Joseph Murray. Accordingly theysent for him. The room in which they received himwas doubtless some place like Morton Hall, and themen who received him were akin to those who hadleadership in Morton Hall; but in Joe's eyes they stoodfor a higher civilization, for opportunity, for generous 7533recognition of successful effort-in short, for all thethings that an eager young man desires. He was re-ceived and patted on the back by a man who was agreat man to the world in which he lived. He was in-troduced to the audience as a young man whoseachievement was such as to promise much for thefuture, and moreover he was given a place in the post-office-as I have said, this was long before the day ofCivil Service Reform.

Now, to the wrong kind of man all this might have

meant nothing at all. But in Joe Murray's case it

meant everything. He was by nature as straight a

2512


man, as fearless and as stanchly loyal, as any one

whom I have ever met, a man to be trusted in anyposition demanding courage, integrity, and good faith.He did his duty in the public service, and became de-votedly attached to the organization which he felthad given him his chance in life. When I knew himhe was already making his way up; one of the proofsand evidences of which was that he owned a first-classracing trotter-"Alice Lane"-behind which he gaveme more than one spin. During this first winter I

grew to like Joe and his particular cronies. But I7535 had no idea that they especially returned the liking,

and in the first row we had in the organization (whicharose over a movement, that I backed, to stand by anon-partisan method of street-cleaning) Joe and allhis friends stood stiffly with the machine, and my side,the reform side, was left with only some half-dozenvotes out of three or four hundred. I had expected noother outcome and took it good-humoredly, but with-out changing my attitude.

Next fall, as the elections drew near, Joe thoughthe would like to make a drive at Jake Hess, and afterconsiderable planning decided that his best chance layin the fight for the nomination to the Assembly, the

7536 lower house of the Legislature. He picked me as thecandidate with whom he would be most likely to win;and win he did. It was not my fight, it was Joe's; andit was to him that I owe my entry into politics. I had

at that time neither the reputation nor the ability tohave won the nomination for myself, and indeed neverwould have thought of trying for it.

Jake Hess was entirely good-humored about it. In

spite of my being anti-machine, my relations with him

had been friendly and human, and when he was beaten

he turned in to help Joe elect me. At first they thought

they would take me on a personal canvass through the

saloons along Sixth Avenue. The canvass, however,

2513

Exhibit 51 for Identification 75:3 7

did not last beyond the first saloon. I was introducedwith proper solemnity to the saloon-keeper-a very

important personage, for this was before the days

when saloon-keepers became merely the mortgagedchattels of the brewers-and he began to cross-exam-ine me, a little too much in the tone of one who was

dealing with a suppliant for his favor. He said he

expected that I would of course treat the liquor busi-ness fairly; to which I answered, none too cordially,

that I hoped I should treat all interests fairly. He

then said that he regarded the licenses as too high; towhich I responded that I believed they were really not 7538high enough, and that I should try to have them made

higher. The conversation threatened to becomestormy. Messrs. Murray and Hess, on some hastily

improvised plea, tool me out into the street, and then

Joe explained to me that it was not worth my while

staying in Sixth Avenue any longer, that I had bettergo right back to Fifth Avenue and attend to myfriends there, and that he would look after my in-

terests on Sixth Avenue. I was triumphantly elected.

Once before Joe had interfered in similar fashionand secured the nomination of an Assemblyman; and

shortly after election he had grown to feel toward this

Assemblyman that he must have fed on the meat which 7539

rendered Caesar proud, as he became inaccessible to

the ordinary mortals whose place of resort was Mor-

ton Hall. He eyed me warily for a short time to see

if I was likely in this respect to follow in my pred-

ecessor's footsteps. Finding that I did not, he and

all my other friends and supporters assumed toward

me the very pleasantest attitude that it was possible

to assume. They did not ask me for a thing. They

accepted as a matter of course the view that I was ab-

solutely straight and was trying to do the best I could

in the Legislature. They desired nothing except that

I should make a success, and they supported me with

2514


hearty enthusiasm. I am a little at a loss to know

quite how to express the quality in my relationship

with Joe Murray and my other friends of this periodwhich rendered that relationship so beneficial to. me.

When I went into politics at this time I was not con-scious of going in with the set purpose to benefit otherpeople, btit of getting for myself a privilege to which

I was entitled in common with other people. So itwas in my relationship with these men. If there had

lurked in the innermost recesses of my mind any-

where the thought that I was in some way a patron or

7541 a benefactor, or was doing something noble by tak-ing part in politics, or that I expected the smallest

consideration save what I could earn on my own mer-its, I am certain that somehow or other the exist-ence of that feeling would have been known and re-

sented. As a matter of fact, there was not the slight-

est temptation on my part to have any such feeling

or any one of such feelings.' I no more expected spe-

cial consideration in politics than I would have ex-pected it in the boxing ring. I wished to act squarelyto others, and I wished to be able to show that I could

hold my own as against others. The attitude of my

news friends toward me was first one of polite reserve,

7542 and then that of friendly alliance. Afterwards I be-came admitted to comradship, and then to, leadership.I need hardly say how earnestly I believe that men

should have a keen and lively sense of their obligationsin politics, of their duty to help forward great causes,

and to struggle for the betterment of conditions thatare unjust to their fellows, the men and women who

are less fortunate in life. But in addition to this feel-

ing there must be a feeling of real fellowship with the

other men and women engaged in the same task, fel-

lowship of work, with fun to vary the work;

for unless there is this feeling of fellowship, of

common effort on an equal plane for a common end,

2515

Exhibit 51 for Identification 7543

it will be difficult to keep the relations wholesome and

natural. To be patronized is as offensive as to be in-

sulted. No one of us cares permanently to have some

one else conscientiously striving to do him good; what

we want is to work with that some one else for the

good of both of us-any man will speedily find that

other people can benefit him just as much as he can

benefit them.Neither Joe Murray nor I nor any of our associates,

at that time were alive to social and industrial needs

which we now all of us recognize. But we then had

very clearly before our minds the need of practically 7544

applying certain elemental virtues, the virtues of hon-

esty and efficiency in politics, the virtue of efficiency

side by side with honesty in private and public life

alike, the virtues of consideration and fair dealing in

business as between man and man, and especially as be-

tween the man who is an employer and the man who

is an employee. On all fundamental questions Joe

Murray and I thought alike. We never parted com-

pany excepting on the question of Civil Service Re-

form, where he sincerely felt that I showed doctrin-

aire affinities, that I sided with the Pharisees. We got

back again into close relations as soon as I became Po-

lice Commissioner under Mayor Strong, for Joe was 754

then made Excise Commissioner, and was, I believe,

the best Excise Commissioner the city of New York

ever had. He is now a farmer, his boys have been

through Columbia College, and he and I look at the

questions, political, social and industrial, which con-

front us in 1913 from practically the same standpoint,

just as we once looked at the questions that confronted

us in 1881.There are many debts that I owe Joe Murray, and

some for which he was only unconsciously responsible.

I do not think that a man is fit to do good work in

our American fdemocracy unless he is able to have a

2516

7546 Exhibits 52, 53

genuine fellow-feeling for, understanding of, and sym-pathy with his fellow-Americans, whatever their creedor their birthplace, the section in which they live, orthe work which they do, provided they possess the onlykind of Americanism that really counts, the Ameri-canism of the spirit. It was no small help to me, inthe effort to make myself a good citizen and goodAmerican, that the political associate with whom I wason closest and most intimate terms during my earlyyears was a man born in Ireland, by creed a Catholic,with Joe Murray's upbringing; just as it helped me

7547 greatly at a later period to work for certain vitallynecessary public needs with Arthur von Briesen, inwhom the spirit of the "Acht-und-Vierziger" idealistswas embodied; just) as my whole life was influencedby my long association with Jacob Riis, whom I amtempted to call the best American I ever knew, al-though he was already a young man when he camehither from Denmark.

Exhibit 52.

7548 Letter from defendant to plaintiff, dated Septem-ber, I6, 19o8. Printed at page 597.

Exhibit 53.

Letter from defendant to plaintiff, dated November4, 1908. Printed at page 599.

2517

Exhibit 54. 7549

Jan. 3, 1904.

Hon. Theodore Roosevelt,President.

Sir:

The city of Albany, with the exception of the selec-tion of your private secretary, has received no presi-dential appointment since President McKinley was in-

augurated, outside of those whose offices are locatedin this city.

One of our most earnest Republicans, a man who hasheld the office of commissioner of public safety in this 7550

city, a gentleman and a lawyer by profession,-Mr.Fred C. Ham-wishes to enter the consular service.He was an aide on Governor Black's staff. Is thereany possibility of your being able to do anything forhim?

Apparently it has been settled that the Governorwill take charge of the campaign in this state this fall.I do not believe there is a man more capable and morewilling to work than he. His selection will inspireconfidence in everybody that a red-hot fight is to bewaged. There are many signs of improvement sinceI talked with you, principally owing to the develop-ment of cock-sureness on the part of Mr. Charles 7551Murphy and his coteries, who look upon the result inthis state as absolutely certain in their favor. I havewatched for a number of years the development ofmen like Mr. Murphy and his friends, and they havegreat capacity for dividing the offices before election.

I have great faith that during the -next few monthsthey will make serious blunders.

\Vith best regards, I am,Most respectfully yours,

WILLIAM BARNES, JR.,

2518

7552 Exhibit 55.

WHITE HOUSE,

Washington.

January 15, 1904.

Personal.

My dear Mr. Barnes:

I thank you cordially for your letter of recentdate, and was interested in all you wrote.

As regards Colonel Ham, I think very highly ofhim, and should an opportunity arise I shall be glad

7553 to see if something cannot be done for him. At pres-ent, however, I am trying to place Captain Landon,and until he is provided for I am unable to give anydefinite promise as to what I can do in the matter.

It was delightful having Mrs. Barnes and you hereat dinner.



7554

2519

Exhibit 56. 1555

WHITE HouSE,

Washington.

May 2, 1904.

My dear Mr. Barnes:

It seems almost impossible to explain even the most

obvious fact at certain times. I have no power to

select Mr. O'Brien. The Commission select him. If

you had any acquaintance at all with that Commission

you would understand that when I say they select him

I mean that neither I nor any one else could dictate

to them their choice. I strongly recommended Mr. 7556

O'Brien to them. I have been given to understand

that they have definitely refused to consider his name

for the position. You have probably noticed that I

offered O'Brien the San Domingo mission which he

did not feel he could accept.Sincerely yours,

THEODORE ROOSEVELT.


Exhibit 57. 7557

WHITE HOUSE,

Washington,

Personal September 26, 19o4.

My dear Mr. Barnes:

I shall write Governor Odell in reference to the re-

quest of John T. McDonough's friends that he be nom-

inated to fill the vacancy created by the resignation of

Judge Herrick. It seems to me from every stand-

2520

7558 Exhibit 5 8

point this would be a proper and desirable thing to do.McDonough did well as a judge in the Philippines. Heperformed his duties as Secretary if State of NewYork excellently. He is a Catholic of Irishdescent, but as an American citizen no less than as apublic officer he has shown that he knows no discrim-ination between Catholic and Protestant. The wage-workers would have the utmost confidence in him, andhe has always shown himself to be a safe and con-servative man. I feel that his nomination at this timewotld be a very good thing all around.

7559 Faithfully yours,

THEODORE ROOSEVELT.Hon. William Barnes, Jr.,

Headquarters Republican National Committee,I Madison Avenue,

New York.

Exhibit 58.

WHITE HOUSE,Washington.

7560 November 9, 19o4.

My dear Mr. Barnes:

Pray let me thank you most cordially and warmlyfor what you have done in this election. I appreciateit to the full.

With regard to Mrs. Barnes, believe me,Sincerely yours,

THEODORE ROOSEVELT.


2521

Exhibit 59. 7561

Albany, N. Y., November i6, 1904.


Permit me to thank you for your cordial expression

relative to the work done during the campaign. We

were especially gratified here in Albany because the

nomination of Mr. Herrick united the Democracy and

we were compelled to fight alone which we have not

done for some time in the past. At that, we gave

you 6300 majority, only two hundred short of the

phenomenal Odell vote in 19o2, because of a Demo-

cratic split. 7562Very truly yours,

- WILLIAM BARNES, JR.

Hon. Theodore Roosevelt,White House.

Exhibit 60.

Albany, N. Y., November i6, 1904.

Sir:

Doubtless before this Governor Odell has brought to

your attention the case of G. Howard Davison of 7563

Dutchess county, whom the state organization has en-

dorsed for Assistant Secretary of Agriculture.

I sincerely trust that this appointment may be made,

not only because I know Mr. Davison well personally

and am confident of his qualifications and am aware

of the nature of the support which is behind him, but

because of the good work which he and his friends ac-

complished during the campaign.

I understand that opposition has been brought

against him on the ground that he is a gentleman

farmer, but his knowledge of live stock is thorough,

2522

7564 Exhibit 61

his experience extensive and his support throughoutthe country for this position is earnest and weighty.

Respectfully yours,

WILLIAM BARNES, JR.


Exhibit 61.

7565Albany, N. Y., December IO, 1904.


I am very sorry to see your apparent determinationnot to select Mr. Davison for Assistant Secretary ofAgriculture, for the reason that I believe that Mr.Davison would make a most efficient man for theoffice because of his energy and enthusiasm.

The premature announcement made last July that hewas about to be selected for Assistant Secretary ofAgriculture was unfortunate to him, in that it com-bined the forces of all the other candidates, and fromwhat Senator Platt has told me the fusilade upon Mr.

7566 Davison has been continuous.First, that he is not a real farmer, that he is rich

and that he has no interest with the farmer. Mr.Davison is not rich in the sense that the term is usedtoday. His sympathies are naturally with the farmer.He has lived in the country all his life and makesstock-breeding a business.

Senator Platt also informs me that he had beenadvised that Mr. Davison was a "boozer." Thecharge is absurd. A "boozer" I believe is a man whois under the influence of liquor to the extent that hehas not his wits about him. Mr. Davison is a prac-

2523

Exhibit 62 7567

tical man who has business to transact and transactsit daily. His ruddy complexion is an indication ofhealth of which he has a superabundance.

I do not believe that any farming interest if theyknew Mr. Davison would be antagonistic to him. Ofcourse he cannot command the support of those whoknow nothing of him.

During the four months that I was in New York,this was one political obligation I incurred and I sin-cerely hope that you may change your views in thismatter. I do not believe that the people or yourselfwill be disappointed in the man. 7568



Exhibit 62.

WHITE HousE,Washington.

December 12, 19047569

Personal.

My dear Mr. Barnes:

I am very sorry but it is out of the question to ap-point Mr. Davison. He is the one man against whomI have had an emphatic protest from the Grange. TheGrange has two candidates-one from New York, Mr.Dawley, and the other representing the rest of theGrange people of the United States, Mr. Jones. TheAmerican Agriculturalist people have another candi-

date, Mr. Johnson. I have decided finally that as

there was such irreconcilable differences among them

2524

7570 Exhibit 63

I should tell Wilson to take the best man to be foundfor the position, and he has appointed Mr. Hays, thePresident of the State Agricultural College of Minne-sota. Mr. Davison's appointment was not possible inview of the violent opposition of those whom it wasmost desirable to have feel in sympathy with the newappointee.


Hon. William Barnes, Jr.,The Evening Journal,

7571 Albany, N. Y.

Exhibit 63.

THE WHITE HOUSE,

WASHINGTON

February 14, 1907.

Howard N. Fuller,Chairman Committee of Arrangements,

7572 Albany County Republican Organization,Albany, N. Y.

Heartiest greetings and cordial good wishes for thesuccess of your annual dinner. I wish it were possiblefor me to be with you in person and express my ap-preciation of the way you have placed Albany Countyamong the banner Republican counties of the State.

THEODORE ROOSEVELT.

2525

Exhibit 64. 1573

THE WHITE HousE,Washington.

April 22, 1908.

Personal

My dear Barnes:

I have received thru Southwick your letter of the20th. You need not be in the least afraid of my fail-ing to understand your position. I am confident thatwhatever course you follow is one that you believeto be the wise and proper course to take. When Ag- 7574new sent word to me requesting me to act in the par-ticular matter under discussion, I simply answeredthat I had not attempted to interfere one way or theother, and would not attempt to interfere one wayor the other, as regards any legislation at Albany.

When the whole trouble is over, do come down hereand let me go over the general political situation withyou. Good luck always.


Hon. William Barnes, Jr.,The Albany Journal,

Albany, N. Y. 7575

2526

7576 Exhibit 65.

Albany, N. Y., April 24, 1908.


I received your letter of the 22nd last night and al-though I did not question that you had credited mewith proper discretion, I felt it was wise for me to,write you as I did.

I am informed that in Niagara-Orleans district as asuccessor to Senator Franchot, the Republicans willnominate a Congregational minister from NiagaraCounty and that the Democrats will nominate and

757 7 make a fight. Both the conventions will take place onSaturday, although the papers this morning say theDemocrats will not nominate.

I shall try to go to Washington in the course of afortnight. Mrs. Barnes is expected from the southand I shall not leave for a little while after her return.

The Governor has called an extra session of thelegislature for May i ith which I note is about the datehe was expected to be in Washington for the ForestPreserve Conference.


Hon. Theodore Roosevelt,

7578 White House,Washington, D. C.

2527

Exhibit 66. 7579

Albany, N. Y., May 20, 1908.


I had intended writing you some days ago afterhaving talked over the situation regarding the Albionpostoffice with Speaker Wadsworth. Last night hecame in and talked with me about the matter and Iintended to write today, but saw in the papers thatCoan had been removed and Milby appointed.

The Speaker tells me that he intends to go to Wash-ington and will see you about this and other matters.

I know nothing of the business end of the matter, 7580but politically it seems to me that the result will beunfortunate and will aid the forces which are aimingto renominate the Governor, which to my mind is allthere is to the political situation.

From newspapers one would get the impression thatthere was but one feeling among the people, whereasthe governor by his attitude has made himself entirelyunavailable as a gubernatorial possibility, and byproper management and selection of the right man a.new nominee would be strong enough to win. Such adifficulty as has arisen in Albion, however, sets backour work very much.

I certainly trust that it is not too late and that some- 7581thing can be done.


Hon. Theodore Roosevelt.White 'House.

2528

7582 Exhibit 67.

THE WHITE HOUSE,

Washington.

May 22, 1908.

Personal.

Dear Barnes:

I held up that removal as soon as I had an intima-tion that the Speaker (Wadsworth) was interestedin it, but the Postmaster General told me that the manwas entirely unfit for the position and that he would

7583 have to take him out.As for the last part of your letter-look here, do

you think I have gone back into the kindergartenclass ?


Hon. William. Barnes, Jr.,Albany Evening Journal,

Albany, N. Y.

7584

2529

Exhibit 68. 75S5

Albany, N. Y., June 25, 19o8.Hon. Theodore Roosevelt,

Oyster Bay.


Will it be possible now to move in the matter of theappointment of Charles W. Mead as United StatesDistrict Attorney? It was in February that you hada talk with Secretary Boneparte and rhe about thismatter and Mr. Mead has been waiting ever since.Of course it has been embarrassing to me that noth-ing was done, but it seems as if it would be pos- 7586sible now to go ahead.

Will you kindly give this matter attention if youfeel in the same mind as when I saw you last?

The ticket takes splendidly in Albany and unlesssome complication takes place over the Governorship,we will certainly do well here.



7587

2530

-7588 Exhibit 69.

THE WHITE HOUSE,

Washington.


My dear Barnes:

Your letter received. Bonaparte had told me firstthat Curtiss should be removed; then that we couldlet him serve out his term and not reappoint him. Itherefore felt safe in saying that your man shouldhave it and gave as the reason to Dwight, Fassett,Dunn and the Senators the action of the Department

7589 of Justice. Since then the Department of Justice hasreversed itself, and this left me without any groundfor refusing to reappoint Curtiss, inasmuch as mywhole stand both to you and the others had beenbased upon the assumption that Curtiss could not bereappointed in view of the attitude of the Depart-ment of Justice. What you say, however, does showthat you have been put in a bad position, and evi-dently I will have to look into the matter a little morebefore coming to a final conclusion. My informationas to the attitude of Senator Platt is to the direct con-trary of yours.

Sincerely yours,7590 THEODORE ROOSEVELT.

Hon. William Barnes, Jr.,Quanata,

Nantucket, Massachusetts.

2531

Exhibit 70. 7591

Albany, N. Y., July 14, 19o8.


I enclose letter from the chairman of your countycommittee. I am not personally acquainted with theapplicant, but if there is opportunity for his appoint-ment, I should be pleased to give you full informa-tion concerning him.

I have your letter regarding the Curtiss-Mead mat-ter and would like to talk with you about it if agree-able to you. I am going to Nantucket for a ten days'vacation on the 23rd or 24th and would very much 7592like to go to Oyster Bay and see you either day, orprior thereto if you so desire.



7593

2532

"7594 Exhibit 71.

THE OUTLOOK

287 Fourth Avenue

New York.

Office ofTheodore Roosevelt.

July 8th, 191o.

Dear Barnes:

I received your note with the addendum. You say7595 you noticed my interview in The World, in which I

said I "did not talk but strike." Now, my dear Barnes,do you mean to tell me that you seriously accept astrue any interview purporting to be from me that ap-peared in The World? I never gave any such inter-view to any human being; I never said what you quoteme as saying to any human being apropos of thisfight, or apropos of anything that has occurred withinthe last two years, as far as I can recollect. Now,my dear Barnes, let me see you when you come back,and I will go over the primary business with you.Meanwhile, you know perfectly well that my purposeis not "to arouse resentment in every locality againstthe men who have been doing the political work of the

7596 Republican party."

Wadsworth is coming in to see me next Tuesday.Faithfully yours,THEODORE ROOSEVELT.

2533

Exhibit 72. 1597

THE OUTLOOK

287 Fourth Avenue

New York.

Office ofTheodore Roosevelt.

August 4, 1910.

Dear Barnes:

Can't you come in to see me at The Outlook officeTuesday or Friday of next week, or the week after? 7598I very much wish to see you before I go on my tripwest.

Faithftlly yours,THEODORE ROOSEVELT.

Hon. William Barnes,Albany Journal,

Albany, New York.

Exhibit 73.

Letter from Abraham Lincoln to Thurlow Weed,dated March 15, 1865. Printed at page 609. 7599

Exhibit 74 for Identification.

Portion of an article from New York Herald, dated

August 27, 1910. Marked for identification at page

620.

2534

7600 Exhibit 75 for Identifloation.

Portion of an article from New York Times, datedSeptember 8, 19io. Marked for identification at page621.


Portion of an article from New York Times, datedSeptember 3, 1910,. Marked for identification at page622.

7601


Item from New York Times, dated September 20,

i9io. Marked for identification at page 622.

Exhibit 78.

Portion of an article from New York Times, dated

7602 March 28, I912. Printed at pages 626-627.

Exhibit 79.

Portion of an article from New York Times, datedJune 4, I912. Printed at page 630.

2535

Exhibit 80. 7603


June 5, 1912. Printed at page 632.

Exhibit 81.

Extract from "New York Times," June 4, 1912.

"Mr. Barnes stands as the representative of the very

worst forms of bossism in politics."

(The above forms a part of Exhibit 82.)

Exhibit 82.


June 4, 1912. Printed at page 633.



June 4, 1912. Marked for identification at page 632. 7605


Portion of an article from New York Herald, dated

June 4, 1912. Marked for identification at page 632.

2536

7606 Exhibit 85.

Portion of an article from New York Times, datedJune 23, 1912. Printed at page 635.

Exhibit 86.

Portion of an article from New York Times, datedJuly 24, 1912. Printed at pages 635, 636.

'601Exhibit 87.

Portion of an article from New York World, datedAugust 30, I912. Printed at page 638.

Exhibit .98.

Portion of an article from New York Tribune,dated August 7, 1912. Printed at page 638.

7608

Exhibit 89.


October 4, 1913. Printed at pages 639-640.


Portion of an article from Brooklyn Daily Eagle,dated October 4, 1913. Marked for identification atpage 640. Excluded at page 640.

2537

Exhibit 91. 7609


July I, 1914. Printed at page 641.

Exhibit 92.


September i7, i910. Printed at page 643.

7610Exhibit 93 for Identification.

Report of Henry H. Bender, Treasurer of the Re-

publican Campaign Committee of contributions to

New York State Republican Campaign Fund. Marked

for identification at page 685. Excluded at page 685.

Exhibit 94.

Nov. 23rd, i9oo.Hon. T. C. Platt, 7611

49 Bway., N. Y. City.

My dear Senator:

Just a word in continuance of our brief conversa-

tion as to the constabulary bill. I feel that morally

the bill is an entirely right measure.' I think that in

the long run better results to the state would

follow from having the state instead of the cities con-

trol the police force; but I am bound to say that I

think politically it is inexpedient, especially if we in-

tend to make a serious effort to carry New York

2538

7612 Exhibit 94

City next year against Tammany. I do not think thatwe have an even chance under the best circumstances;but I fear that if we pass the constabtilary bill ourchance would be greatly lessened. Not only are theDemocrats and Mugwumps of course against us, buta great number of working Republicans are also

against us. Some few like Littauer favor the bill, butmost of them-and I mean when I speak of "most ofthem," such men, active enrolled Republicans, as tookpart in the nominations of the Senators and Assem-blymen whom we elected this month-are utterly

7613 against the measure. My own view is that when thematter is not vitally a question of morals, it is veryrarely advisable to pass a law which the bulk of thepeople do not want; even though they ought to want it!For instance, take the case of the so-called Force billintroduced by Cabot Lodge; that was a thoroughlygood bill, but the people were against it and that isall there was to it. They beat it and they beat theRepublican Party partly because of it. I supported anddefended it, but I was obliged to recognize that thejudgment of the people was unqualifiedly against me.I fear very much that the samc will be the result in thecase of this constabulary bill. I think it would solidify

7614 the Democrats and alienate a considerable numberof our own supporters.

Now, my dear Senator, do not bother to respond to

this letter. I have just thought I would write you

so that you might know how (whether mistakenly or

not) I happen to see the facts.With great regard,

Sincerely yours,


2539,

Exhibit 95. 7615

May 4, 1900.Hon- T. C. Platt,

Senate Chamber,Washington, D. C.

My dear Senator:

I had a most satisfactory lunch today with theCharter Commission, all of the members being presentexcept Bartlett and Crimmins. They all want Rivesfor Chairman. Rives told me it was his intention toappoint a Committee on Organization composed ofTaft, Bartlett, McKean, Dewitt and Wells, and I have 7616no question that he will do so. Then I shall get themembers of that Committee and Rives sometime totake lunch with you and Ben and Frank.

I shall see you next Wednesday in Washington.Faithfully yours,


Exhibit 95 (Second) for Identifica-tion.

Copy of speech by Mr. Root regarding defendant's 7617residence in 1898. Marked for identification at page78o. Excluded at page 781.

2540

7618 Exhibit 96.

Feb. I 9 th, 1914.Mr. Charles H. Duell Jr.,

2 Rector Street,New York City.

My dear Mr. Duell:

In line with our last talk, I agree with you that thetime is ripe for an alliance of the Progressive Republi-cans and members of the National Progressive Party,as well as of all good citizens, sharing their opinions,to rid the state of the kind of party control which, in

7619 my opinion, is mainly responsible for the corrupt con-dititions which have been clearly shown in the variousexaminations and investigations which have been hadduring the last year. These conditions are not local-ized, and the men and the policies responsible for themnot confined to any one party. (I believe that a fusionfight can be so conducted that we can elect to im-portant office responsible men whose reputationsguarantee that the great departments of this state willbe taken out of political and partisan control.

Although I have been a public officer a good manyyears and have had in a general way knowledge ofpublic affairs, I myself had never realized, until brought

7620 into close contact with them during the last fewmonths, the tremendous powers exercised by variousstate officers of whom the public hear little.

I believe that the election of a competent and honestState Engineer is almost as important to the people ofthis state as is the election of a fit governor.

There are vast powers exercised by the State Super-intendent of Public Works, by the Comptroller, by the

Commissioner of Highways, by the Attorney General,

by the Secretary of State, and even by the Lieutenant

Governor, (an officer whose duties are generally re-

garded as of no very great importance,) owing to the

2541

. Exhibit 96 7621

fact that all these incumbents sit as members of variousboards and commissions; and I have been impressedduring the investigations which have been carried onunder my direction by the tremendous influence andcontrol over state affairs exercised by these officers,almost entirely without the knowledge of the publicgenerally.

Of course the selection of the right kind of manfor governor is important, although I doubt if the ad-ministration of the State Engineer's Department wasever more incompetent, if indeed it was not corrupt,than it was during the first term of Governor Hughes, 7622who of course, had no direct control over a depart-ment presided over by an elected officer.

I am sure that you understand my feeling with re-gard to the whole matter. I am in favor of makingup a ticket, composed of men every one of whom hasbeen carefully selected, with a view to his individualqualification and fitness to discharge the duties of thegreat office for which he is a candidate, and all thestate offices are great and powerful offices.

The method by which such a selection can be pre-sented to the people, of course, is provided by theDirect Nomination Law.

If such a ticket so carefully selected, is to win at 7623the primaries, there must be united and concertedaction and careful preparation on the part of thosehonestly interested, and I need not tell you that I amheartily and unqualifiedly in favor of the inaugurationof such a movement.)

Very truly yours,CHARLES S. WHITMAN.

(Portion of foregoing letter enclosed in parenthesiswas excluded.)

2542

7624 Exhibit 97.

Portion of an article from New York World, dated

July 22, 1914. Printed at pages 791-792.


Portion of an article from New York Times, datedOctober 4, 1913. Marked for identification at page792. Excluded at page 792.

7625


Subpoena duces tecum served by defendant on P.Van R. Schuyler. Marked for identification at page

799.


Subpoena duces tecum served by defendant on P.

7626 Van R. Schuyler. Marked for identification at page

799.


Bag containing papers brought to court by P. VanR. Schuyler. Marked for identification at page 799.

2543

Exhibit 102. 7627

Page of Senate Journal for April 8, 19o8. Materialportion read at page 8I I.


Letter of Andrew McFarland, as Secretary, to theplaintiff, dated April 16, 19o8. Offered in evidenceand excluded at page 866.

7628

Exhibit 104.

Parts of a letter from the plaintiff to Andrew Mc-Farland, Secretary, dated April 24, 1908. Printed atpage 867.


Tabulation of printing bids. Marked for identi-fication at page 983- 7629

Exhibit 106.

Volume 2 of the Proceedings of the Common Coun-cil for the City of Albany of i9o9. Marked for iden-tification at page 1002. Admitted at page 1449.

2544

7630 Exhibit 107 for Identification.

59th Annual Report of the Bureau of Water of theCity of Albany for the year ending September 30,

I9O9. Marked for identification at page IO2.

Exhibit 108.

Check of the Argus Company dated January 22,

I9IO. Printed at page ioo6.

7631


Proceedings of the Board of Contract & Supply ofthe City of Albany. for the year i9O9. Marked foridentification at page IOO7.

(Item read in evidence at page ioo8 following.)


7632 Annual Report of the Board of Education and ofthe Superintendent of Schools of the City of Albany,for the year I9IO. Marked for identification at pageioi8.

Exhibit 111.

Proceedings of the Board of Education of the Cityof Albany, for the years I909 and i9io. Marked

for identification at page oi8. Admitted at page

1450.

2545


Proceedings of the Common Council of the Cityof Albany, for the year i9IO. Marked for identifica-tion at page ioi8.


Argus Company Job Book No. 25. Marked foridentification at page 1021.

(Items read in evidence at page 1021 following).

7634


Argus Company Job Book No. 26. Marked foridentification at page 1024.

(Items read in evidence at page 1024 following).


Report of the Department of Public Safety of theCity of Albany, i9io. Marked for identification atpage 1025.


Proceedings of the Board of Contract & Supply,

i9IO, City of Albany. Marked for identification at

page 1026. Page 449 read in evidence at page 1027.

2546


Report of the Bureau of Engineering of the City ofAlbany, for the year ending October 31, 1911.

Marked for identification at page 1027.


Annual Report of the Corlptroller of the City ofAlbany, for the year 191I. Marked for identificationat page 1Q27.

7637


Proceedings of the Common Council, with theMessages of the Mayor and the Report of the CityOfficers of the City of Albany, for the year 1911.

Marked for identification at page 1027.


7638 Job Book 27 of the Argus Company. Marked for

identification at page 1030. Items received and readin evidence at pages 1030, 1037.


Copy of the Annual Message of the Mayor of Al-bany for the year I9io. Marked for identification at

page 1o69.

2547


Stock Certificate Book of J. B. Lyon Company.Marked for identification at page 1084.

Barnes' certificates admitted and summaries printed

at page IO88.


List of the stockholders attached to Exhibit 122.

Marked for identification at page 1084. Excluded at

page io85. 7640

Exhibit 124.

\Varrant of the Department of Public Works to theJournal Company, dated February 23, 1910, and the

accompanying correspondence. Printed at page I I I i.


Judgment roll in People of the State of New York

v. Albany Journal Company. Marked for identifica-

tion at page i I 18. Excluded at page I 124.


Judgment in People of the State of New York v.

Journal Company. Marked for identification at page1118.

2548


Case on appeal to the Court of Appeals in Peopleof the State of New York v. Journal Company.Marked for identification at page 1118.


Proceedings of the State Printing Board from theyear 19o6 to date. Marked for identification at page1125.

764,3One page headed "Official Computation of the Bids

as presented to the Board at its meeting May 21,

1907," admitted in evidence and printed at page I 128.

Exhibit 129.

Page of Exhibit 128 for identification headed"Minutes of the Meeting of the State Printing Board,held June 13, 1907." Admitted in evidence and printed

7644 at page 1129.

Exhibit 130.

Tabulation and recapitulation of bids for Legisla-tive printing in 1899. Admitted page 1130. Portionprinted, page T 148.

2549

Exhibits 131-141 Inclusive. 7645

Tabulations and recapitulations of bids for Legis-lative printing from ioo to i9o9 inclusive. Ad-

mitted page 1130. Not printed.

Exhibit 142.

Tabulation and recapitulation of bids for Legis-

lative printing in 191o. Admitted page 1130. Por-

tion printed page 1145.7646

Exhibits 143-146 Inclusive.

Tabulations and recapitulations of bids for Legis-lative printing from 1911 to 1913 inclusive. Ad-mitted page 1130. Not printed.

Exhibits 147-150 Inclusive.

Tabulations and recapitulations of bids for Depart- 7647mental printing in various years. Admitted page

1130. Not printed.

Exhibit 151.

Stipulation of facts in the case of People of the

State of New York v. Journal Company. Marked for

identification, page 1130. Paragraphs i and 2 re-

ceived and printed at page 113i. Paragraphs 3 and 4received and printed at page 12H 1. Paragraphs 5 and

6 received and printed at page 1546. Paragraphs 7and 8 received and printed at page 1547.

2550


Minutes of the State Printing Board, marked foridentification, page 1138. Items from page 5 andresolution on page 14 of Exhibit 152 for identificationadmitted in evidence and printed at page I138.

Exhibit 153.

Assignment and Power of Attorney from Oliver A.Quayle to Charles M. Winchester and J. B. Lyon

7649 Company. Printed at page 1142.

Exhibit 154.

Minutes of the meeting of the State Printing Board,held May 24, 1910. Printed at page 1145.

Exhibit 155.

Minutes of the meeting of the State Printing Board,held September 21st, 1911. Printed at page 1146

Exhibit 156.

Contract between State Printing Board and JohnA. McCarthy, dated October 19, 1899. Admitted atpage 1149. Not printed.

2551

Exhibit 157.

Assignment of the contract (Exhibit 156) from

John A. McCarthy to James B. Lyon, dated October19, 1899. Admitted at page 1149. Not printed.

Exhibit 158.

Affidavit of John A. McCarthy.II5O. Struck out, page 1152.

Printed at page

7652

Exhibit 159.

Contract between State Printing Board and the Ar-gus Company for printing the Session Laws of 19o4

and 1905. Admitted at page I 153. Not printed.

Exhibit 160.

Assignment of the contract (Exhibit 159) by the

Argus Company to the J. B. Lyon Company. Ad- 7653mitted at page 1I53. Not printed.

Exhibit 161.

Contract between the State Printing Board and the

J. B. Lyon Company for Departmental printing, for

19o6 to 19O8. Admitted at page 1153. Not printed.

7651

2552

7654 Exhibit 162.

(i) Letter from plaintiff to Ion. Thomas C. Platt,dated July 14, 1899. Printed at page i 161.

(2) Letter from Hon. Thomas C. Platt to plaintiff,dated July 25, 1899. Printed at page 1162.

(3) Letter from plaintiff to Hon. Thomas C. Platt,

dated July 29, 1899. Printed at pages 1163-1164.


7655 Letter from plaintiff to Hon. Thomas C. Platt,

dated April 26, 1895. Marked for identification andexcluded at page 1165. Printed at pages 1165-1166.


Letter from the plaintiff to Hon. Thomas C. Platt,dated June 29, 1894. Marked for identification andexcluded at page iI66. Printed at pages i166-1167.

7656

Exhibit 165.

Letter from Plaintiff to Hon. Thomas C. Platt,dated November 21, 1894. Printed at page 1169.

Exhibit 166.

Letter from Plaintiff to Hon. Thomas C. Platt,dated November 27, 1894. Printed at pages 1170-

1171.

2553

Exhibit 167. 7657

Letter from Plaintiff to Hon. Thomas C. Platt,dated December 22, 1894. Printed at pages i172-

1173.

Exhibit 168.

Copy of a letter from plaintiff to Hon. Edgar T.Brackett and Hon. Edwin A. Merritt, Jr., dated March30, 1911. Printed at page 1193.

(Original of this letter admitted as Exhibit 233.) 7658


General ledger of The Journal Company. Markedfor identification at page 1215.

Pages 94 and 95 admitted in evidence at page 1359.Pages 195, 196, 197, 382 and 383 admitted in evi-

dence at page 1365.Page 523 admitted in evidence at page 1367.Pages 9 I , 92, 93, 273, 274, 275, 434, 432 admitted

in evidence at page 1500. 7659Summary printed at page i5oi, following.


List of contracts awarded for Legislative and De-partmental printing from 1896 to 1915. Marked foridentification at page 125r.

2554


Report of the Superintendent of Insurance for theyear 1911. Marked for identification at page 1276and excluded at page 1278.


Letter from Senator George B. Burd to WilliamH. Hotchkiss, dated February 2, 1911. Marked foridentification at page I28o0 and excluded at page 1283.

7661


Copy of bill prepared by William H. Hotchkiss forintroduction in the State Legislature. Marked foridentification at page 1283.

Exhibit 174.

Letter from William H. Hotchkiss to the J. B.Lyon Company, dated June 14, 1911. Printed at

page 1286.

Exhibit 175.

Letter from the J. B. Lyon Company to WilliamH. Hotchkiss, dated June 15, 1911. Printed at page1287.

2555

Exhibit 176. 7663

Bill prepared by William H.. Hotchkiss regarding

the printing of the reports of the State Insurance De-

partment, January, 1912. Portion printed at page1290.


Book of the Journal Company. Marked for identi-

fication at page 1301. 7664


Book of the Journal Company. Marked for iden-

tification at page 1301.

Exhibit 179.

Minute Book of the Journal Company. Book ad- 7665mitted at page 1372. Portions and summaries printed

at pages 1373-1384.


Book of the Argus Company. Marked for identi-

fication at page 1305.

2556


Book of the Argus Company. Marked for identi-fication at page 13o6.

Exhibit 182.

Article from New York World, dated May 4, 1913.

Printed at page 1321.

7667Exhibit 183.

Article from New York World, dated May 3, 1913.

Printed at page 1324.

Exhibits 183 (a) to (e) inclusive, forIdentification.

Five boxes containing the contracts made by the

State of New York with various concerns for Legis-

7668 lative printing for the years 1899 to 1914 inclusive.Marked for identification at page 1355.

Exhibit 184.

Book containing stubs of checks used in paying

dividends of the Journal Company from April io.

19O1. Marked for identification at page 1356. Sum-

maries printed at pages 1359-1364.

7666

2557

Exhibit 185.

Blank dividend check of Journal Company. Printedat page 1357.

Exhibit 186.

Book containing stubs of checks used in paying divi-dends by the Journal Company, from January 17,1913. Marked for identification at page 1364. Sum-maries printed at page 1364.


Bill regarding State Printing dated April 28, 1911.

Marked for identification and excluded at page 1397.


Bill regarding State printing dated April I8, i9II.

Marked for identification and excluded at page 1397.


Bill regarding State printing, dated April i8, i9I1.Marked for identification and excluded at page 1397.

7669

7670

7671

2558

7672 Exhibit 190.

Page 405 of book entitled "Proceedings of theBoard of Contract and Supply of the City of Albany,for the year 1911." Admitted at page 1400. Notprinted.

Exhibit 191.

Five books, "Claims presented to Board of Super-visors of Albany Co." Admitted at page 1441. Not

7673 printed.


Proceedings of the Common Council of the City ofSyracuse (specimen of printing). Marked for iden-tification at page 1450.

Exhibits 193, 194 and 195 for Identifi-

7674 cation.

Three books, Ecclesiastical Records of the -Stateof New York, Vols. 4, 5, 6 (specimens of printing).Marked for identification at page 1465 and excludedat page 1493.


Stub from check book of J. B. Lyon Company, No.

9158. Marked for identification and excluded at

page 1529.

2559

Exhibit 197 for Identification. 7 75

Stub of check of J. B. Lyon Company. Marked foridentification and excluded at page 1530.

Exhibit 198.

Twenty checks of J. B. Lyon Company, dated be-

tween January 15, 1904, and March i, 1912, used inmaking payments to Journal Company. Printed at

pages 1532-1536.

7676


Transcript from J. B. Lyon Company ledger, of ac-

count with Journal Company. Marked for identi-fication and excluded at page 1536.


Book of Claims presented to the Board of Super- 7677

visors for the County of Albany, for the year 191I.Marked for identification at page 1539.

Exhibit 201.

Receipted Bill of Journal Company for printing the

Clerk's Manual in the year 1905, rendered to the

Clerk of the Senate January Ii, 1905. Printed at

page 1551.

2560

7678 Exhibit 202.

Receipted Bill of Journal Company for printingthe Clerk's Manual in the year 1905, rendered to theClerk of the Assembly January II, 190 5 . Printed atpage 1553.


Receipted Bill of J. B. Lyon Company for printingClerk's Manual. Marked for identification and ex-

7679 cluded at page 1552.

Exhibit 204.

Receipted Bill from the Journal Company to theCity of Albany, for printing 200 copies Building Code,dated December io, 19o9. Summary printed at page

'555.

7680 Exhibit 205.

Receipted Bill from the Journal Company to theCity of Albany for printing 300 copies Building Code,dated January 7, 1910. Summary printed at page

'554.

Exhibit 206.

Receipted Bill from the Journal Company to theCity of Albany, for 2oo copies Building Code, datedJanuary 7, 1910. Summary printed at page 1555.

2561

Exhibits 207, 208 and 209 for Identifi- 7681cation.

Contracts between the City of Albany and the Ar-gus Company for the printing of the Common Coun-cil Proceedings in 19o8, I909 and I9IO. Marked foridentification at page 1555.

Exhibit 210.

Receipted Bill from the Journal Company to theCity of Albany, for 250 copies of the Report of the 7682Bureau of Water, dated May 26, 1911. Summaryprinted at page 156o.

Exhibit 211.

Receipted Bill from the Journal Company to theCity of Albany, for binding contract specifications forioo copies of the Report of the Bureau of Engineer-ing, receipted February 23, 1910. Summary printedat page 1560.

76S3

Exhibit 212.

Receipted Bill from the Journal Company to theCity of Albany, for printing 300 copies of the Reportof the Bureau of Water, dated April 29, 19o9. Sum-mary printed at page 156o.

2562

7684 Exhibit 213.

Receipted Bill from the Journal Company to the

City of Albany for printing 250 copies of the Annual

Reports of the Bureau of Fire, receipted May 6, I9O9.

Summary printed at page I56O.

Exhibit 214.


City of Albany, for printing 250 copies of the Report

7685 of the Bureau of Police, receipted May 3, 1909.Summary printed-at page 1561.

Exhibit 21S.


City of Albany for printing 250 copies of the AnnualReports of the Bureau of Fire, receipted July 14, 1910.

Summary printed at page 156i.

'7686 Exhibit 216.

Receipted Bill from the Journal Company to theCity of Albany, for printing 250 copies of the An-

nual Report of the Bureau of Police, receipted July

14, 1910. Summary printed at page I561.

2563

Exhibit 217. 7687


City of Albany for printing i,ooo copies of the An-nual Report of the Board of Education, receipted May19, I91O. Summary printed at page i56I.

Exhibit 218.

Receipted Bill from the Journal Company to theCity of Albany, for printing various ImprovementBills, dated May 14, I912. Summary printed at page 769S

I562.

Exhibit 219.


City of Albany, for printing various ImprovementBills, receipted June 3, 1912. Summary printed at

page 1562.

7689

Exhibit 220.

Receipted Bill from the Journal Company to theCity of Albany, for printing various items, receiptedJune 3, 1912. Summary printed at page 1562.

2564

7690 Exhibit 221.

Receipted Bill from the Journal Company to theCity of Albany, for printing various notices to tax-payers, receipted June 6, 1912. Summary printed atpage 1562.

Exhibit 222.

Receipted Bill from the Journal Company to theCity of Albany, for printing various items, receipted

7691 June 3, I912. Summary printed at page 1562.

Exhibit 223.

Receipted Bill from the Journal Company to theCity of Albany, for printing and binding 250 copiesof the Annual Report of the Bureau of Police, re-ceipted May 8, i9i I. Summary printed at page 1562.

7692 Exhibit 224.

Receipted Bill from the Journal Company to theCity of Albany for printing and binding 250 copies ofthe Annual Report of the Bureau of Fire, receiptedMay 8, I9II. Summary printed at page 1563.

2565

Exhibit 225. 7693


City of Albany, for printing too copies of the City

Budget for 1911; press work, cutting, indexing, etc.

Summary printed at page T563.

Exhibit 226.


City of Albany, for printing 75 copies of the Report

of the Commissioner of Finance for I9io, receipted 7694February 24, 1911. Summary printed at page 1563.

Exhibit 227.

Receipted Bill from- the Journal Company to the

City of Albany, for printing and binding 250 copies

of the Annual Report of the City Comptroller, re-

ceipted June 6, 191I. Summary printed at page

1563.

7695

Exhibit 228.


City of Albany, for printing and binding ioo copies

of the Report of the Bureau of Engineering, receipted

December 12, I9I1. Summary printed at page 1563.

2566


Clerk's Manual (Assembly) for 1905. Marked foridentification at page 1564.


Clerk's Manual for 19o6. Marked for identifica-tion at page 1564.

769-Exhibit 231 for Identification.

Book of Claims presented to the Board of Super-visors of Albany County, 1912. Marked for identifi-cation at page 1567.

Exhibit 232.

Telegram from Chauncey M. Depew to Hon. EdgarT. Brackett, dated March 28, 1911. Printed at page

7698 1777.

Exhibit 233.

Letter from plaintiff to Hon. Edgar T. Brackett andHon. Edwin A. Merritt, Jr., dated March 30, 1911.Admitted at page 1778. Printed at page I193.

2567

Exhibit 234. 7699

Editorial from Albany Evening Journal of March28, I9II. Printed page I86i.

Exhibit 235.

Editorial from Albany Evening Journal of Feb-

ruary I, 1911. Marked for identification at page1864. Admitted and printed at page 1978.

7700


Editorial from Albany Evening Journal of March

29, 19"1. Marked for identification at page 1864.

Exhibit 237.

Editorial from Albany Evening Journal of May i6,1899. Printed at page 1898.

7701

Exhibit 238.

Editorial from Albany Evening Journal of May 24,1899. Printed at page i9oo.

2568

7702 Exhibit 239.

Telegram from William Loeb to plaintiff, dated

March 14, 19o8. Printed at page 1914.

Exhibit 240.

Editorial from Albany Evening Journal of April9, 19o8. Printed at pages I920-1921.

7703Exhibit 241 for Identification.

Albany, N. Y., October II, i9io.

Dear Sir:

In reading the list of the members of the executivecommittee of the state committee, announced by youthis morning, I find that my name is not among thenumber.

The mere fact of membership in the executive com-mittee is entirely unimportant, but after having servedas a member of that committee ever since I was firstelected to the state committee in 1892, the omissioninvolves the inevitable conclusion that your action wascaused either by your belief that my services would

not be useful, or that I was faithless to the Republicanticket. Under neither supposition can I rest.

Having been a member of the executive commit-

tee for eighteen years, if my services are no longeruseful, or my party loyalty is questioned by you asthe head of the organization, then I am no longer

qualified to serve under you as a member of the statecommittee itself.

It has been my habit not to carry lightly the re-

sponsibilities and burdens of the committeeship which

2569

Exhibit 242 for IdCtificatioll 7705

I have held. I cannot, therefore, maintain the proper

sense of political ethics and serve upon a committee,the chairman of which holds the attitude towards mypolitical activity which you have disclosed. I, there-fore, tender my resignation to you as a member of thestate committee to take effect immediately.

The state convention is the supreme authority ofthe party and I shall vote for Mr. Stimson and therest of the Republican ticket and individually work forits election.

Respectfully yours,\VILLIAAI BARNES. 7706

Ezra P. Prentice.


(Speech of Henry J. Allen, of Kansas.)

The first thing that I desire permission to read toyou is a statement which has just been placed in myhand from the Honorable Theodore Roosevelt. (Ap-plause.) 707

Now, gentlemen of the Convention, I suggest thatwhen I read Mr. Roosevelt's statement, and proceed tomy comment thereon, vou remain quiet. I make thissuggestion because this statement of Mr. Roosevelt'sand any comment I may have to make upon the same,are not for the purpose of creating a demonstrationin this Convention. We are merly presenting thecase of the progressive Republicans and interpretingour future action in this Convention. Mr. Rooseveltsaid-and I will not read his whole statement, be-cause the delegates have it in their hands, or mostof them have-says, among other things:

2570

7708 Exhibit 242 for Identific-ation

"The Convention has now declined to purge the rollcf the fraudulent delegates placed thereon by the de-funct National Committee, and the majority whichthus indorsed fraud was made a majority only becauseit included the fraudulent delegates themselves, whoall sat as judges on one another's cases. If thesefraudulent votes had not thus been cast and counted,the Convention would have been purged of their pres-ence. This action makes the Convention in no propersense any longer a Republican Convention represent-ing the real Republican party. Therefore, I hope the

7709 men elected as Roosevelt delegates will now declineto vote on any matter before the Convention. I donot release any delegate from his honorable obliga-tion to vote for me if he votes at all, but under theactual conditions I hope that he will not vote at all."

Mr. James W. Wadsworth, Jr., of New York-read the rest of it.

Mr. Allen, of Kansas: I will read it if anybodywishes to have it read.

"The Convention as now composed has no claim torepresent the voters of the Republican party. It rep-resents nothing but successful fraud in overriding thewill of the rank and file of the party. Any man

'1710 nominated by the Convention as now constituted wouldbe merely the beneficiary of this successful fraud; itwould be deeply discreditable to any man to acceptthe Convention's nomination under these circum-stances; and any man thus accepting it would haveno claim to the support of any Republican on partygrounds, and would have forfeited the right to askthe support of any honest man of any party on moralgrounds."

2571

Exhibit 243. 7711

Editorial from Albany Evening Journal of January13, 1911. Printed at pages 198o-1984.

Exhibit 244.

Editorial from Albany Journal of January I8, I91 I.Printed at pages 1985-1986.

7712Exhibit 245.

Editorial from Albany Evening Journal of Feb-ruary 6, 1911. Printed at page 1987-1988.

Exhibit 246.

Portion of Editorial from the Albany EveningJournal of April I, 1911. Printed at page 199o.

7713


Editorial from Albany Evening Journal of April7, 1911. Marked for identification at page 199o.

Exhibit 248.

Editorial from Albany Evening Journal of April28, 1899. Printed at pages 2097-2098.

2572


Article from Albany Evening Journal of Novem-ber 18, 1899. Marked for identification and excludedat page 2123.


Editorial from Albany Evening Journal of Novem-ber 8, 1913. Marked for identification at page 2126

and excluded at page 2128.

7715


Telegram from plaintiff to Mutual Life InsuranceCompany, dated May 6, I9OI. Marked for identifi-cation at page 2169.


Telegram from plaintiff to Mutual Life Insurance7716 Company, dated May 4. Marked for identification

at page 2169.

Exhibit 253.

Summary of a Circular of the Republican StateCommittee signed by the plaintiff, soliciting contribu-tions to the Campaign Fund of 1912. Marked foridentification at page 2171. Summarized at page2172.

2573

Exhibit 254 for Identification. 7 7 L7

(Portion of an Article from New York Times,April 1o, 19o8.)

There is a great deal of talk here that the bosses

will have the backing of President Roosevelt, and

the fact that Senator Grattan was coerced into voting

against the race track bills, thereby encompassing their

defeat, by William Barnes, Jr., who more than any

other leader in the State is amenable to dictation from

the White House, is pointed to as bearing out the im-

pression that the Vashington programme contemplates

the humiliation of Gov. Hughes in the eyes of the 7-718

Nation and the shattering of his prestige by defeat-

ing his reforms in order that his nomination for

President may be impossible.


(New York American, April 9, i9o8.)

FEDERAL INFLUENCE IN RACE BILL

FIGHT, HUGHES MEN HINT.

7719Albany, April 8.-Hughes men tonight are reiterat-

ing charges thaf Roosevelt, Woodruff, Fassett, Barnes

and other Federal administration bosses have again

interfered to humiliate Governor Hughes and make

his Presidency candidacy a joke. Roosevelt shouters

are chuckling over the Governor's discomfiture and

threatening:

"We will give him a worse dose at Chicago."

President George F. Brush, of the Brooklyn League,

on being apprised of this, said tonight:

2574


"Today's events have killed all chances of the Re-

publican Party carrying the State of New York nextFall. Eight Republicans joined with Seventeen Demo-crats in defeating the bill. It is the duty of SenatorRaines to immediately call a caucus of the Republi-cans and make anti-gambling bills party measures.If he does not the Republicans will experience aWaterloo in this State in this Presidential year."

Senator Raines coldly said that he had no inten-tion of calling a Republican caucus.

When asked to comment on the gamblers' victory,7721 Raines sadlv replied:

"The result speaks for itself. \Ve needed one vote.\Ve could not get it. I assume that, if the bills fail ofreconsideration and passage, the Governor will callan extra session. I do not know what chance they willhave of a passage at such a session."

Senator Grady said:

"I really thought the bills would pass until Gil-christ of Brooklyn and Grattan came into line. Iwas not sure of Cassidy or Wilcox, either, until thelast moment. I regard the bill as dead for the ses-sion, though I am told the Governor threatened anextra session."

Senator Agnew said:

"It is a very sad condition of affairs when such agreat moral question of so great moment and con-cern to the people is lost for want of one vote in a

body where the Republican majority is in absolute

control. • It is also worthy of notice that the vote oftwenty-five embodied the votes of two Democrats,which practically made it three Republican votes

short."

2575


(Portion of an Article 'from New York Times ofApril I1, 19o8.)

More and more the impression is gaining groundhere that leaders within the Republican Organizationwho entertain close relations with President Roose-velt, received a quiet tip on the eve of the decisivebattle that the President would not be displeased ifthe racing reforms were defeated. Senator Agnewmay renew his appeals for the bills in such a mannerthat the President may virtually be forced into goingon record. 7724

MAY APPEAL TO ROOSEVELT.

The appeal would be for the purpose of having thePresident use his influence with Senator Burr of Suf-folk, who comes from the President's home district,to have him vote for the bills when they come up on areconsideration of the vote. Senator Burr was oneof the eight Republicans who helped to defeat thebills. When his attitude first became known, SenatorAgnew sent a telegraphic communication to Congress-man WV. W. Cocks, who represents the President'sdistrict in the House of Representatives and is very 7725close to the President, asking him to place the situa-tion before Roosevelt with a view of bringing aboutthe conversion of Senator Burr.

In the reply, which Congressman Cocks asked Sena-tor Agnew to keep secret, Mr. Cocks, according toSenator Agnew, virtually intimated that such an ap-peal would be embarrassing to the President, and thatfor this reason it must be kept from him. If SenatorAgnew should renew his appeal it will be to the Presi-dent personally.

Senator Grattan of Albany was coerced into votingagainst the bills by William Barnes, Jr., leader here.

2576

7726 Exhibit 256 for Idcntification

It was after a recent visit to the White House thatthe local newspaper controlled by Mr. Barnes beganto print editorials violently assailing the proposed racetrack legislation. Senator Cassidy is politically affili-ated with Representative J. Sloat Fasset, anotherRoosevelt leader.

Senator Wilcox listened to the advice of Congress-man Sereno E. Payne, reputed spokesman for thePresident of the floor of the House. Senator Wemplehas confidence in Leader Barnes' political ideas.

The only Senator with pronounced Roosevelt lean-

"1727 ings who did not vote against the bills was Horace\Vhite of Syracuse.

Senator White has Gubernatorial aspirations. AfterSenator Grattan had voted against the bill, White,with Senator Burr, congratulated the Albany Senator.

CALL FOR ELECTION.

Gov. Hughes before he left for Watertown todaypromulgated his call for a special election in 'the Ni-agara-Orleans district, to be held on May 12.

Senator Grady said immediately after he learned ofthe Governor's action:

7 728 "There will be no extraordinary election, the Gov-ernor's proclamation notwithstanding. It should beremembered that this Senate represents districts undera reapportionment plan which has been declared un-constitutional and that the Court of Appeals has de-clared that every Senator serving now does so de-facto-that he is here because he is here. Under thecircumstances Senator Franchot, representing an un-lawful district, did not leave as heritage any title-to hisseat."

2577

Stipulation Settling Case. 7729

It is hereby stipulated, that the foregoing case, con-taining all the evidence, be settled as the case on appealherein, and be ordered on file as such.

Dated, , 1916.

Attorneys for Plaintiff-Appellant.

Attorneys for Defendant-Respondent.

Order Settling Case. 730

The foregoing is hereby settled as the case on appealherein and ordered on file as such.

Dated, , 1916.

Justice of the Supreme Court.

Stipulation Waiving Certification.

Pursuant to Section 3301 of the Code of Civil Pro-cedure, it is hereby stipulated that the foregoing con-sists of true and correct copies of the notice of appeal, 7731the judgment roll, the order changing the venue fromthe County of Albany to the County of Onondaga, theorder denying the motion to set aside the verdict andfor a new trial, and the case on appeal, and the wholethereof, now on file in the office of the Clerk of theCounty of Onondaga, and certification thereof by theClerk, pursuant to Section 1353 of the Code of CivilProcedure, is hereby waived.

Dated, , 1916.

Attorneys for Plaintiff-Appellant.

Attorneys for Defendant-Respondent.

2578

Affidavit of No Opinion.

SUPREME COURT,

ONONDAGA COUNTY.

WILLIAM BARNES,

P'laintiff,against

THEODORE ROOSEVELT,

Defendant.

77.33 State of 'New York, 's

County of New York,

Henry F. Wolff, being duly sworn,says:

deposes and

I am a partner in the firm of Ivins, Wolff & Hoguet,attorneys for the plaintiff herein, and have been fa-miliar with the proceedings had in this action since itsinception. No opinion or memorandum in writing wasgiven by the trial judge in this case.

Sworn to before me thisday of , 1916.

'7734

Notary Public,New York County, No. 58.

New York Register No. 8o89.

77:12

2579

Order Filing Record in Appellate 7735Division.

Pursuant to Section 1353 of the Code of Civil Pro-cedure, it is

Ordered, that the foregoing printed record be filedwith the Clerk of the Appellate Division of the Su-preme Court of the State of New York, Fourth Ju-dicial Department, as the case on appeal herein.

Dated,

Justice of the Supreme Court.

7736

7737

supreme court - theodore roosevelt court appellate division--fourth department. william barnes,...

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