between the defendants on trial and the engineer officer, that, in a word, the engineer officer was bought for a price, then every departure from correct engineering which the evidence may have proven, resulting in increased cost to the government, in inferiority of construction, in the use of cheaper material at a greater price, in the reduction of the quantity of stone to be used, in the construction of lengthy and unnecessary jetties of brush mattresses in localities where it was inevitable that it would be destroyed by the teredo, in the reduction of advertisements, in the suppression of opportunities for general bidding, in close intimacy between the alleged conspirators, all becomes of increasing importance. It is, however, true that you should by no means lose sight of the testimony relating to the engineering features of the work which you have heard. It is a part of the proof upon which the presence or absence of guilty intent is to be found. The clear language of the specifications provides that each mattress shall be constructed according to the design stated, carried to the work, and sunk singly with its complement of stone. It also provides that the mattress shall not be accepted and paid for until it is so sunken. From an examination of the third design mattress, is it not apparent, as a matter of fact, that the multiple mat described is a wide departure from its specifications? The third design has for its bottom a full grillage of poles, then a layer of closely compacted fascines, then on top another full grillage of poles, all, of course, wired or lashed together. If it was necessary to put in any number of these mattresses at any locality, with equal explicitness the specifications provide that they must be carried out and sunk separately, and on top of each mattress a layer of stone must be placed. It follows that the complete structure would contain, first, a full grillage of poles, then a layer of closely compacted fascines, then another full grillage of poles, a layer of stone, then another full grillage of poles, another layer of fascines and a top grillage of poles, with another layer of stone, another full grillage of poles, and so forth, until the number of mattresses required had been sunk. This is one picture. Now, let us look at the other. A multiple mattress of eight courses is built on a barge, and the whole structure is carried to the works, sunk at one time with stone thrown on top of the last course. Could Carter, Greene, or Gaynor doubt, as a matter of fact, that these structures, models of which are before you, were wholly different in character and construction? Besides, according to the evidence, there is only one layer of poles between the courses of this mat. About three-fourths of the poles required in eight mattresses of the third design sunk separately are left out of the multiple mat.

Now, to contend that this structure is better engineering, and more beneficial to the government, is utterly untenable, in view of the specifications and the contract, except in so far as it may, if the proof justifies it, illustrate the presence of good faith on the part of the defendants, and therefore the absence of guilty intent.

According to the testimony of Greene himself, by the use of this multiple mat, a sum in the neighborhood of more than $500,000 was earned as profit. While it is true that Greene contends that he might have made the same amount of money by the use of the single mats

that he did by the use of the multiple mats, certain it is that he testified that he made far more than he had contemplated, and from his testimony it can readily be estimated that the gains of the Atlantic Contracting Company, all of whose stock was held by Greene and Gaynor except a few shares, were in the neighborhood of $1,500,000 profit. This testimony, of course, relates to what is termed "the big contract" of 1892, for the improvement of the river and harbor at Savannah. As the profits, according to Greene's testimony, speaking in round numbers, were $1,500,000, and the gross sum actually paid the contractors under the October 22, 1892, contract, as appears from an exhibit in evidence, was $2,110,869.35, the percentage of profit on this contract was over 240 per cent. The amount paid the contractors is made up of the following principal items:

The jury will be justified in inquiring if the greater proportion of profit was not made out of the brush mats and fascines rather than out of the stone, timber, piling, etc. These figures of the governmental expenditure are not questioned. They are taken from the files of the engineer office, and no attack has been made upon them.

The statement of profit in close approximation is the testimony of Greene himself. It is to be observed that he testified that he expected to make only $300,000 or $400,000. This, of course, was when he entered into the contract. At that time the multiple mats were not in use. This was in October, 1892, and not until September, 1893, were they adopted. If the testimony of the assistant engineer, Cooper, is accepted by the jury-and the court does not recall any material contradiction of it-he did not return to his work here until August, 1893. The multiple mat had not been used before his departure, and he testified that after his return nine-tenths of such mats were put in under his supervision. It is true, however, that at the time the contract was let the specifications stated that approximately only 350,000 square yards of mattress would be used. Greene testified that the increased profit was due to the increased amount of brush mattresses put in.

It is true Cooper, on cross-examination, testified that the multiple mats were of great advantage, that they enabled the work to be carried on with rapidity, and there was consequently less danger from storms and scour in front of the dam. Other witnesses testified that, in their opinion, from an engineering standpoint, the multiple mattress was well adapted for the purpose of constructing dams and jetties in sheltered water. This, however, is entirely aside from the real issue in this case, provided the corrupt design to defraud the government is shown as charged. In this connection the jury should determine, if they find the fraudulent scheme which is charged in the indictment, it makes no difference whether the profits of the co-conspirators re

sulted from a change in the character of the mattress, or of the material used, or from the fact that the engineer officer permitted a far greater proportion of mattress to be used than had been intended when the bidding was made, and when the contracts were secured. Nor does it matter, in the presence of such a scheme, whether the profits came from one cause or the other, or from both causes combined.

At this point the jury should inquire to whom belonged the increment of value in the immense profits which Greene testified that he and his associates made. If, indeed, they were legitimate profits, why, obviously, as stated, to the government, and that is to say, to the people of the United States.

By a provision most specific in the contract itself, the government had attempted to guard its rights. Several times in the course of the argument counsel have let fall the expression that the government ought to be able to take care of itself. That is true. A government of the people, by the people, and for the people, ought to be able to take care of the rights and values secured by the Constitution and laws to the people. In the effort to take care of itself in all such cases, the government, through the representatives of the people, has enacted the statutes under which these indictments were brought. May it not be true that this case and this trial is an attempt on the part of the government to take care of itself? It attempted to take care of itself when the contracts were framed. There are two provisions of the contract by which the government sought to take care of itself. The first is this:

"The United States reserves the right to make such alterations in the details of construction, or in material, as may be deemed best during the progress of the work, providing that, should such alterations materially vary the cost of the mattress, the price to be paid shall be increased or diminished proportionally; such change of price being agreed upon before the alterations in the mattress are made."

In

This is in the specifications, which are a part of the contract. the contract itself the government seeks to take care of itself by the following provision:

"If at any time during the prosecution of the work it be found advantageous or necessary to make any change or modification in the project, and this change or modification should involve such change in the specifications as to character and quantity, whether of labor or material, as would either increase or diminish the cost of the work, then such change or modification must be agreed upon in writing by the contracting parties, the agreement setting forth fully the reasons for such change, and giving clearly the quantities and prices of both material and labor thus substituted for those named in the original contract, and before taking effect must be approved by the Secretary of War; provided, that no payments shall be made unless such supplemental or modified agreement was signed and approved before the obligation arising from such modification was incurred."

The argument, in effect, is that, if the government has been "taken in," why it may as well pay the bill and charge the result to the profit and loss account of the people; to take no means to redress their wrong, and by the processes of law to prevent its recurrence. This is to ignore the principles of criminal jurisprudence as administered by civilized people.

But if the jury is satisfied from the evidence that, after carefully guarding its rights in the phraseology of its contract, the government placed its agent here in the person of an army officer of the United States to see to it that the work was executed according to these contractual provisions by which it had attempted to take care of itself, that the agent was induced to betray his trust, and then a radical change is made either in the details of construction or in material, or in the character of the project itself, by which the contractors with the knowledge of the government's agent, and through fraudulent connivance with him, are permitted to make a profit of 240 per cent. at the expense of the people, then it is the duty of the jury also to determine if the government is not taking proper measures "to take care of itself" through the indictment and prosecution which it has brought. Whether its cause is righteous and its accusations are justified by the proof, the jury will determine in accordance with those general rules for the government of such trials which the court has already given in charge.

The court, however, is careful to again remind the jury that guilty intent on the part of the accused is an essential ingredient of the crime here charged. No amount of profit, however great, no departure from contractual or engineering specifications, however marked, will justify a verdict of guilty, unless the jury are satisfied to the degree required by law that the accused intended in the progress of their relations the corrupt and fraudulent scheme and conspiracy charged.

What, then, was the purpose of the engineer officer in calling for bids for the third design mattress? What was his motive in allowing the contractors to put in a structure which was not permissible under the specifications of the third design, or which, if he believed it to be permissible, was radically different, and, according to much of the evidence, much cheaper than the third design, as described in the specifications. The jury will also inquire if it was not much cheaper, or if the engineer did not permit an excessive amount of this construction to be used, when compared with the amount estimated in the contract the defendants made with him-whence was the source of their stupendous profits?

But the jury should bear in mind that, according to all the proof, they are dealing with men of a high order of intelligence. John F. Gaynor, it may be gathered from the evidence, was a contractor of long experience; also, according to Greene's letters, inferentially at least, a man of strong personal influence; according to the statement of his leading counsel, in his opening argument, a man of wit. According to Greene, Gaynor had traveled extensively. Throughout the examination he was termed "Colonel" Gaynor. Carter was, and Greene had been, engineer officers of distinction. Of Carter, Gillette testified he believed him to be a brilliant and attractive man, and an ornament to the engineer corps. The jury will consider the important fiduciary trust given him by the government. The engineer officer in charge of the improvements of our great and important state. Greene, himself, is a graduate of West Point, fourth in his class; was intrusted while in the service with work similar to that of Carter's,

and since then had large experience in engineering problems relating to such contracts as those described in the evidence. These men, as testified in effect by Col. Marshall, as I recall it, had enjoyed the opportunities of an education of the mind equal to that accorded to George F. Meade or Robert E. Lee.

The jury may therefore, if they think proper, conclude that these men knew what they were about. If the multiple mattress was cheaper to the contractor than the third design, if large sums could be saved by its use, the jury may, if they think proper, conclude from the evidence that the three defendants knew the fact. If the jury then conclude that it was used with knowledge on the part of these men that large profits were to result from its use, was this done solely for the benefit of the contractors, or did Carter, in obedience to his duty, report the change in construction and material, so that the government might share in the benefit? This is an important inquiry. It is also to be recalled that the third design was to be paid for by the square yard. Its description was so plainly set out in the contract that when a mattress was examined by the inspector, if it came up to the specifications, all he had to do was to measure the top surface.

How was it with the multiple mat? According to the testimony of Cooper, Carter prepared a table of heights, and the height of the mat determined how many theoretical third design mattresses composed it. This witness stated that the measurement was taken with a pole, with the feet and tenths marked on it, and the bottom of the pole placed to the bottom of the lower grillage pole, and the height measured up to the top of the top grillage pole, and then the reading would be on the pole in feet and tenths. According to this table, a one-course mat was to have a height of 2 feet; a two-course mat of 31⁄2 feet; a three-course mat, 5 feet; a four-course mat, 6 feet; a five-course mat, 712 feet; a six-course mat, 9 feet; a seven-course mat, 10 feet; and an eight-course mat, 12 feet. That is to say, a multiple mat, 12 feet high, would be paid for as eight complete third design mattresses, and the yardage calculated on the surface of each of the eight courses.

The witness Cooper, as stated, testified that he saw nine-tenths of the work put in under the 1892 "big contract," and that, shortly after the contract closed, he made an accurate estimate of the cost to the contractor of a square yard of mattress used in that contract, and that his estimate was 9 cents. For this the government was paying 95 cents. To illustrate: The mattress sunk July 13, 1894, No. 104, ten courses, total square yards counting each course as a mattress of the third design, had a total yardage of 4,122.22. The contract price paid by the government, calculated on the square yardage, was $3,916.11, and according to Cooper's estimate the cost to the contractor was $371. If this testimony is satisfactory to the jury, it will not be difficult for them to estimate how profits to the contractors would rapidly accumulate. Now, if this was permitted through the unlawful connivance charged of the engineer officer with the contractors, and if the jury are satisfied that the mat described was fairly typical of others which were constructed and paid for in substantially the same way, it might go far in the opinion of the jury to support the general tenor of the charge made in the indictment.