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After further argument, the court said :

Of course the presumption of the law is that no man goes
into a jury box remembering his poHtics, and yet sometimes they
do ; and it is of the utmost importance in a trial of this kind that
the defendants should feel that they have an impartial trial.
Before taking the step which I have concluded to take, I think
it due to the jury to say that the court has no reason to believe
that any juryman here has any desire to do anything other than
his duty as a juryman. But it is of the utmost importance in a
trial of this character that there should be no ground of complaint
whichever way the trial may result, and I will order a special
venire sent out, returnable tomorrow morning. I know it is a
very unusual thing to do, but I think at common law the court
may do it when it is satisfied the interests of justice require it.
I think a judge should not hesitate to exercise any authority
belonging to his office in the interests of justice. This is a case
likely to excite prejudice. I do not say it would have that effect
with this jury, but the defendants are arraigned here under a
grave charge, and men, under such circumstances, are naturally
apprehensive. . I think this question is in the discretion of the
court, but should be exercised only in extraordinary cases. I do
not want any one to have ground for feeling that there is cause
for complaint when this trial is over. And as I think that the
defendants might naturally feel as they do, I will order a venire
of twenty-two men, whose names will be given in the venire to
appear here to-morrow morning.

In its report of the day's proceedings the Indianapolis
Sentinel, the Democratic organ said:

General Harrison, his partner, Mr. Miller, the assistant dis-
trict attorney, Major Holstein, and Judge Martindale, the
proprietor of the Indianapolis Journal, the Republican organ,
privately vented their indignation at the action of the court,
which, the Sentinel said, was that of a fearless judge.

Mr. W. H. H. Miller, General Harrison's partner and
associate in this prosecution, said then and afterwards in
the Coy case, which will be duly elaborated for it is part
of our judicial history, that "it is impossible to convict


a Democrat in Judge Gresham's court." But William H.
H. Miller, as Attorney-General of the United States in
President Harrison's cabinet, lost his zeal when it came to
prosecuting Republicans for violating the election laws.

From the twenty-two men, among the best known
citizens of Indianapolis, summoned by the special venire,
twelve, six Republicans and six Democrats, were sworn to
try the cases. They were A. Abromet, L. S. Ayres, Samuel
Beck, S. T. Bowen, W. T. Christian, Marius Eddy, C. A.
Ferguson, PhilHp Gapen, W. J. Holliday, A. G. Pettibone,
Joseph Stout, and James C. Yohn.

The charge of the government as set forth in the opening
statement of General Harrison to the jury was that James
Wilkinson, the Democratic candidate for treasurer in Jen-
nings County; William Brashier, a citizen of that county;
and twelve other citizens of Jennings and Jackson count-
ies, including Samuel Johnson, the mayor of Seymour, all
Democrats, conspired — contrary to the statutes of the
United States and the State of Indiana — to import into
the Fourth Congressional District of Indiana 125 men not
residents of that congressional district, for the purpose of
voting in Jennings County, a part of the Fourth Congres-
sional district, for the Congressman to be elected on the 8th
day of October, 1878, at which Leonidas Sexton was the
Republican candidate and Jepha D. New was the Demo-
cratic candidate; that Thomas McGovern, a private de-
tective living in Seymour, discovered the conspiracy as
stated on the 8th day of September, and reported its exis-
tence to one Peter Platter and other Republican leaders,
who in turn advised McGovern to join the conspirators or
defendants, get their confidence, and expose their illegal
acts. For his services McGovern was to be, and was, paid
the sum of $400.

Governor Hendricks made the opening statement for
the defense. James Wilkinson, he said, was a clean, active
young man who was making great inroads on the Republican


majority of 400 in Jennings County; that the 125 men whose
right to vote in Jennings County the government questioned,
had gone there to work and for permanent residence; that
Peter Platter and David Overmeyer, the brother of John
Overmeyer, the chairman of the RepubHcan State Central
Committee and the Republican candidate for representative
to the legislature from Jennings County, political adver-
saries of the defendants, conspired with McGovern to in-
volve the defendants in the appearance of being engaged in
the fraudulent importation of voters into Jennings County.
That in pursuance of this conspiracy and for the money
paid and to be paid by Platter, Overmeyer, the chairman
of the Republican State Central Committee, and the chair-
men of the Jennings and Jackson County Committees,
McGovern made the proposition to the defendants to im-
port the voters, which they declined. Then the defendants
said that McGovern went ahead and imported a number of
men from Jackson County to vote in Jennings County,
and on the eve of the election made an affidavit which was
printed in a handbill and sent broadcast throughout Jen-
nings County, that James Wilkinson and others were im-
porting voters into the Fourth Congressional District. It
was charged then and admitted later in the trial that the
$400 which was to be paid and was paid by the political
committees to McGovern, was agreed to be paid at a meet-
ing which General Harrison and State Chairman Overmeyer
attended at North Vernon, the county seat of Jennings
County, while on a campaign tour in September, 1878.

With one hundred witnesses on a side and thirty in re-
buttal, the evidence was not closed until May 30. In
pressing the defense, the defendants' counsel were ag-
gressive and merciless. They established the fact that
McGovern was a man without character and unworthy of
belief. For several days General Harrison was absent from
the trial by reason of sickness. Colonel A. W. Hendricks
was the architect or the lawyer of the defense. His plan


was, having broken down the case of the government
and discredited everybody connected with the prosecution,
not to put a single defendant on the witness stand. "Be-
sides," said the colonel, "an administration whose title
rests in fraud [referring to the Hayes-Tilden contest] is
not in a position to ask the conviction of men who stand
innocent before the law." But Governor Hendricks' zeal,
enthusiasm, and confidence overruled his associate, and
James Wilkinson was put on the witness stand in his own
behalf. He speedily went to pieces under General Har-
rison's cross-examination. He was the only man who went
on the witness stand, and he alone was convicted. "Had
Wilkinson kept off the witness stand," said A. G. Pettibone,
one of the Republican members of the jury, years after-
ward to me in Chicago, "he would have escaped conviction."

General Dudley up to this time had been a frequent
visitor at our home. He had a fine record as a soldier and
had lost a leg at Gettysburg. A handsome man, a thorough
gentleman, upright in all his business and professional re-
lations, in politics he believed the end justified the means.
Never eminent in his profession, he saw in that Jennings
County trial the force of Colonel A. W. Hendricks' defense,
and he later applied it to the prosecution that was insti-
tuted against him in 1888 because of his famous, or in-
famous, "Blocks of Five" letters.

District Attorney Trussler opened the Jennings County
case to the jury. David Turpie and Governor Hendricks
followed for the defense, and General Harrison closed the
case for the government. Governor Hendricks spoke a
day and a half and General Harrison two days.

There was no registration law in Indiana at that time,
and the only qualification for a voter was that he be twenty-
one years of age, a resident of the State six months pre-
ceding the day of the election, and no limitation as to the
time within which he might change his residence from one
precinct to another. All the law required was that there


be a bona fide change of residence, if only on the day before
the election. David Turpie was able to argue that he might
lawfully vote at any one of the three precincts in Indian-
apolis, so indefinite was the law. General Harrison was
pressed hard for acting in such a case at the behest of a
political party. And so fierce was the denunciation of Mc-
Govern, the detective, that General Harrison wisely dis-
claimed him, asked the jury entirely to disregard his testi-
mony, and was able, with the aid of the court, to make
out his case from the testimony of other witnesses and the
one defendant, James Wilkinson, who went on the stand
in his own behalf.

In opening his argument. General Harrison emphasized
the fact that he was a sworn officer of the government, and
that he was not a partisan. He said:

I should despise with unutterable loathing that political
sympathizer who should give one whit more attention to what
I say, or any greater weight to my argument, because we are of
the same political party ; and I should despise myself if I thought
that I brought to the trial of this case a single taint or impulse
from the field of politics. And equally. Gentlemen of the Jury,
should I despise with unutterable loathing that political opponent
who should put an additional barrier in the way of the approach
of my argument to his conscience and intellect because he was my
political opponent. Politics must not enter here. They may be
low or high. The distinguished gentleman who first addressed
you for the defense repudiated the idea that politics were low.
. . . It will indeed be a sad day for our country when so much
as a spray from those waves of politics which roll so tumuUuously
over the lajtd, can be felt in the face of a jury or judge.

In reply to Governor Hendricks, he said :

It is not necessary that there be a meeting of the conspirators
at all. Men have been convicted of a conspiracy who have never
looked each other in the face, who have never spoken or written
one word to each other. The question is this : Have they by word
or act made themselves parties to the common design? If they


have, then they are co-conspirators for the accompHshment of
it. There need not be a word or a wink, but only that they act
together to accompHsh the unlawful purpose. This partnership
in crime is curious in its character. If a new partner comes in
just when the crime is being consummated, at the climax of the
enterprise, he becomes a partner from the beginning, and is en-
titled to share in all the odium and punishment that belonged to
the originator of the enterprise.

I say again, and I ask His Honor to charge you, that it is
not necessary to the crime of conspiracy that a single illegal
vote should ha\'e been cast.

The court so instructed.

The crime here charged is an exceedingly grave one, —
graver, it seems to me, than an offense against life or property;
more unsettling of all human rights, more disturbing to the peace
of society, than any crime that can be committed. I know many
men are more shocked when some crime against the person or
against property is committed, but, gentlemen, the security of
our persons and our property is in the law and in the adminis-
tration of it by the courts. So that any combination or conspir-
acy that tends to corrupt the ballot box and return by fraud and
artifice men to the legislature who are not properly elected, or
to the bench to discharge judicial functions, men who are not the
choice of the majority of the people, strikes at the very founda-
tions of our government and the peace of society. Is that class
of crime a political crime? Is it possible that such a case as this
is a political case""

The General then quoted Governor Hendricks to the
Indiana legislature:

Our present election laws are not very efficient to prevent
fraud. But if they are inefficient, if they give facilities to fraud
when construed as courts have construed them, the construction
which has here been given to them by the counsel for the defense
scandalizes even these loose election laws we have in Indiana.

Then he discussed the evidence, concluding:

Now, Gentlemen, the only other question is, and I recur a
little to what I said in the opening, do you believe these men that


were brought into Jennings County were to stay there and make
their permanent residence in that county? [Messrs. Turpie and
Hendricks had argued the changes of residence from Jackson to
Jennings County were in good faith.] You have heard what
Johnson, Holmes, and their Democratic and personal friends
have said these men did. Can you justify it? If it be said a
jury of twelve men chosen for their intelligence and high character
in the city of Indianapolis, justify such conduct in politics, then
I say, repeal every crirninal law on the subject of elections; pro-
claim it to the world that all our young men are loose young
men; let money with its corrupt influence be used, and let them
be herded from county to county whenever their votes may be
needed to carry any particular election.

In conclusion, allow me to speak to some of you again in
regard to the high plane of duty to which your- oath calls you. I
do not wish you to feel I doubt you, that I doubt your disposition
and willingness to come up to the full summit of your duty.
Let each one turn his eyes inward. Let him search his heart as
with a lighted candle, and see if there be any loathsome prejudice
or bias hidden in its darkest recesses for or against the defendants.
As the Saviour of man when He came to the earth and found that
temple on which it had been written, "It shall be called by all
nations the home of prayer," had become a den of thieves, and
as He came into the temple and made a whip of cords and drove
the money-changers and them that sold oxen and doves out of
the holy place of prayer, saying to them with withering scorn,
"Take these things hence," so let every juror I speak to, drive out
every unholy bias or prejudice that might creep into the pure
sanctuary of his heart.

After adverting to the indefiniteness of the Indiana
statutes on the question of residence, which was favorable
to the defense, the court's instructions concluded;

This is not a political trial. The defendants are charged
with the commission of a crime; although it is claimed that the
offense was committed in the interests of a certain political organ-
ization, yet they are to be tried just as if indicted for any other

Whatever feeling or prejudice may have been exhibited by


others during the progress of the trial, the jury, in the discharge
of their solemn duty, should allow no political nor other improper
considerations to influence them.

If the defendants are not guilty on the evidence, party pre-
judice should not prevent the prompt return of a verdict in their
favor; and if, on the other hand, the evidence clearly shows
them guilty, such prejudice should not delay a verdict against

He who deliberately plans a fraud to defeat a fair and honest
expression of the popular will through the ballot box, and actually
enters upon its execution, commits a grave crime against popular
government, and good men of all parties will condemn his con-
duct and rejoice in his punishment when his guilt has been satis-
factorily established. You will carefully examine the evidence
with reference to each of the defendants, and convict or acquit
each as the proofs may require. Your verdict may, therefore,
be a conviction of all, an acquittal of all, a conviction of two or
more of those on trial, and an acquittal of the balance, or a con-
viction of any one on trial, if he is found to be guilty with any
defendant not on trial, and an acquittal of the balance. vShould you
find any or all of the defendants guilty, it will be the duty of the
court to fix the punishment. With this you have nothing to do.

Having thus sustained the General when hard pressed,
Judge Gresham thought that Harrison should ever after-
wards live up to the high standard of political morality
they then agreed to.

But one man was found guilty, James Wilkinson, of
conspiring with William Brashier, who, although indicted,
was not on trial. He had absconded. Twelve were ac-
quitted. But as to Henry Warpe and Calvin Wilder, the
jury failed to agree and they continued at liberty under the
bonds they had previously given. The Democratic leaders
in Jennings and Jackson counties then indicted McGovern
and a number of government witnesses for perjury. One
was convicted in Jennings County and sent to prison.
Then there was a compromise and the indictments in both
State and Federal courts were nolled.


Wilkinson was sentenced to twelve months in the State
Prison at Jeffersonville, Indiana, at hard labor. The judge
said in passing sentence :

The trial was protracted and fair, and the court is now called
on to pass sentence. If the principle of governing by majority,
under proper limitations, is to be maintained, the elective franchise
must be sacredly guarded; unscrupulous tricksters who conspire
to prevent a fair and honest expression of the popular will through
the ballot box should be punished with a severity that will deter
others from committing similar offenses.

The Sentinel, the Democratic State organ, said: "The
principles Judge Gresham announced would send thousands
of Republicans to the penitentiary." Mild criticism for
the partisanship of that day! But the trial had not been
conducted so that there was "no ground for complaint,"
and there was none. No attempt was made to take Wil-
kinson's case to the Supreme Court. Governor Hendricks
acquiesced with his partners in the constitutionality of the
Enforcement Acts.

But the prosecutions begun at the same time in Balti-
more and Cincinnati, which resulted in convictions, were
taken to the Supreme Court, where the Enforcement Acts
and the power of Congress to impose duties on State elec-
tion officers, in so far as their duties related to the election
of a member of Congress, were sustained.^ Justice Field
and Justice Clifford, the Democratic members of the
court, dissented, following the Prigg case in holding that
all Federal powers must be exercised by officers of the
Federal government. As the mouthpiece of the court,
Justice Bradley in the Clark case used this language:

In what we have said it must be remembered that we are
dealing only with the subject of elections of Representatives to
Congress. We do not mean to say, however, that for any acts of
the officers of the election, having exclusive reference to the
election of State or county officers, they will be^amenable to

1 Ex-parte Siebold 100 U. S. 371 and ex-parte Clark 100 U. S. 399-


Federal jurisdiction. Nor do we understand that the enactments
of Congress now under consideration have any application to
such acts.

In other words, as the soldier-judge and orator had put
it, "while the war legislated," it did not destroy the States, or
the right of local self-government. But in maintaining these
propositions, or the explicit language of Justice Bradley,
Judge Gresham, as United States Circuit Judge for the
Seventh Circuit in 1884, in the Mackin case, brought on
himself much criticism, and in 1887, in the Coy case, he
differed with General Benjamin Harrison and his law part-
ner, WilHam H. H. Miller, with William A. Woods, the
district judge at Indianapolis, with Justice John M. Harlan,
and with the Supreme Court of the United States.

"It is not common sense," said Justice Miller, speaking
for the Supreme Court of the United States in the Coy case,
with Justice Field dissenting because the court was going
beyond the Cincinnati and Baltimore cases or the Siebold
and Clark cases, "for the States to punish offenses which
relate solely to the State officers and for the government of
the United States to punish offenses which relate solely to
the election of members of Congress."

Then Justice Miller broadened the scope of Federal juris-
diction. Any violation of any provision of a State statute
expressed or implied, although related exclusively to the
election of a State officer at which a member of Congress
was voted for, was a crime punishable in the Federal courts.

Coy's crime consisted in forging the election returns
relating to the election of a criminal judge in Marion County,
Indiana, on the 2d day of November, 1886. He had no
purpose, intent, or desire to effect the election of the Con-
gressman. He was the chairman of the Marion Count}^
Democratic Committee that year.

Born in Greensburgh, Indiana, in 1851, wSimeon Coy
had had but little education. In 1863 he went to Indian-
apolis. In 1872 he was elected a member of the Marion


County Democratic Committee, and in 1881 a member of
the City Council, where, it was said, he was ahvays on the
side of the gas and transportation companies. In 1884 he
was elected chairman of the Democratic County Committee
over the protest of the better element of the party. A
pleasant, affable man, with much shrewdness, the election
returns demonstrated his remarkable genius for organiza-
tion. He dominated conventions and nominated candi-
dates. Meanwhile he ran a saloon and was compliant in
becoming bondsman for men accused of crime. Six months
before the 1886 election, Coy became one of the bondsmen
in the penalty of $4,000 for two notorious crooks who were
arrested and indicted for "bunko steering." They failed to
appear for trial and there was a judgment of forfeiture.
Coy's purpose, among others, was to have the indictment
held insufficient on the motion in arrest and thus relieve
him from paying the $4,000. His co-surety was insolvent.

In a habeas corpus proceeding, Judge Gresham, in the
face of much pressure and subsequent criticism, held Coy
and his associates could not be prosecuted in the Federal
court for forging the election returns so as to defeat the
Republican and elect the Democratic candidate for criminal

Then, under an indictment drawn b}' Judge Woods him-
self and sustained by Justice Harlan and the Supreme Court,
Coy was convicted and sentenced to the penitentiary. The
gist of the charge against Coy and his associates was that
they had conspired to induce certain election inspectors
and custodians of the election returns to part for a short
time with the physical possession of the certificates and tally
sheets, while the law, the Indiana statute, did not require,
command, or even suggest that the inspector keep these
documents in his actual physical possession from the time
he received them from the Election Board until he delivered
them to the Canvassing Board. The implication, Judge
Woods and Justice Harlan argued in their opinions, was


that the legislature meant that the inspector should keep
the unsealed certificate or tally sheet in his actual physical
possession until he delivered it to the county clerk. This
was too much of a refinement for even the Supreme Court
of the United States, so it broadened the Federal jurisdiction
as we have heretofore stated.

When it came to prosecuting Republicans in the
"Blocks of Five" cases in 1889, President Harrison,
/ Attorney-General Miller, Judge Woods, and Justice Har-
lan turned back on what they had established as the law
in the Coy case. Senator Quay of Pennsylvania, a possi-
ble defendant in the "Blocks of Five" cases, who used
his official and political power to arrest their prosecution,
said Gresham's theory of the law was correct. Aside from
the fact that the purpose or interest was different in the
"Blocks of Five" cases, — that is, to affect a National and
not a State election — one thing Judge Gresham did not
do which some of his critics claimed he ought to have
done — he did not lend a hand in getting these cases out
of court.

Another thing Judge Gresham did not do, for which
General Dudley, at least, was very grateful, — he did not
use the principles established by the Supreme Court in the

Online LibraryMatilda GreshamLife of Walter Quintin Gresham, 1832-1895 (Volume 2) → online text (page 4 of 38)