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The jury will also inquire, if competitors had been given an opportunity for putting in multiple mats, would these particular contractors have enjoyed the uninterrupted opportunity of making such large profits ? and would not competition for the opportunity to put in such mats have reduced the cost to the government?
The jury, in this connection, may also consider that in no specification made, or advertisement sent out, were bidders and contractors informed in any manner that multiple mats would be used. Is it not true that the engineer officer should have advised bidders that multiple mats might be used? or ought he not to have given them an opportunity to make a separate bid on such mats?
It is true that several engineer officers and civil engineers testified for the defense that the multiple mat was the best for the purposes of the work, except on ocean bars or in salt water; but I do not recall that any of these officers testified that they used the multiple mat and paid for each course by the square yard as though it was a separate mattress.
The jury will remember if some of them did not testify that it was paid for by the cubic yard, as for fascines; that is to say, for the actual brush material in it.
To sum up on this general subject, you are instructed that the reservations in the contract in behalf of the United States cannot be taken advantage of by the engineer officer to enable him to allow the contractors to substitute, for a designated mattress, a structure widely different in form and construction, in compactness, in material, and in cost. In this sense the engineer officer is not to be regarded as the United States. He is an officer of the United States with his duties clearly marked out. The contract indicates how such important changes shall be made, and how changes of projects shall be approved. These provisions are confirmed by the general law on the subject, and the regulations of the War Department. If, then, the engineer officer shall violate the terms and reservations of the contract and the reservations of the department, he would be amenable as a military officer for such conduct. If he did this in joint and corrupt combination and conspiracy with others, with intention to defraud the United States, he, like, any other citizen, would be indictable with his co-conspirators, and protection could be claimed for none of them, because of stipulations in the contract in behalf of the United States which the engineer officer had thus abused and disregarded.
The government also contends that not only did Carter allow the use of the multiple mat, but that the construction of these mats was cheap and inferior. This is denied on the part of the defense. There is much evidence submitted on both sides of this issue. Maj. Gillette gave testimony in detail as to the insufficiency of mattresses he saw on the barge anchored opposite the engineer office at Fernandina. He stated that the only complete grillage on this mattress was the grillage at the bottom and the grillage on top. “It was loose brush,” he said, “I stepped on it and went down into it.” He said he did not notice that the brush was put in in bundles or layers until the assistant engineer spoke of it as an eight-course mattress. He further states, when it was put into the water it did not have much flotation, a large percentage of
it was leaves, they threw rocks onto the mattress, and they went out of sight. The official reports of the yardage of that mattress reached the engineer's office. They appear on the tri-monthly report dated August 1, 1897, date July 29, 1896, Range No. 3, North Jetty, courses 9 to 16. This would indicate an eight-course mattress placed upon another eight-course mattress. Four courses of this mattress had a width of 70 feet, and four courses of 81 feet. A second mattress was brought in after Maj. Gillette's first visit, which Maj. Gillette gave the assistant engineer orders to hold, stating, “I wished to see what proportion of material was in these mattresses, as compared with what there would be if constructed under the same system, properly choked and a full supply of poles,” that is, under the multiple system. The mattress next brought in was held by the inspector, and Mr. Gillette stated that it was a great deal better than the first: "I should think there was twice the material in it that there was in the first one.” He said: "It was constructed more systematically. You could see it was made of bundles of brush. They were much better choked.” He then caused an experimental mattress to be constructed for comparison. This had four courses, and had twice as much material as the second mattress brought in by the contractor, and that had twice as much material as the first he saw.
There is other evidence to the same effect. On the other hand, the defense has offered the testimony of a mattress maker, several foremen of brush camps and other witnesses, who testify that they were familiar with the construction of fascines and mattresses, and that they were properly constructed. They, of course, referred to the construction of the multiple mat. There is also evidence introduced in the shape of the reports of engineers, giving measurements of multiple mats upon which payment was based. The jury will recall that, by the table of heights prepared by Carter, an eight-course mat was to be 12 feet high in order to be paid for as eight third design mattresses. From the evidence submitted by the government, it appears that many mattresses, although recorded and paid for as a mat of a certain number of courses, did not come up to the height indicated by Carter as necessary to entitle the contractors to payment. For instance, Exhibit 369, mattress No. 20, sunk June 26th, eight courses; height measured on the barge nine feet. An eight-course mat according to the table of heights was to be 12 feet. In this eight-course mat, with one step, according to the evidence there would be counted the diameter of 12 grillage poles, 41/2 inches each, 54 inches; this leaves 54 inches for fascines, making each of the eight courses 634 inches.
Now, under the contract, all fascines were to be tightly choked to a diameter of nine inches. The jury should inquire if the fascines were properly made and choked. They may also inquire if Carter required the contractors to put in mattresses of the height he designated.
Referring to the same mattress, it appears from another exhibit in evidence showing the soundings before and after mattresses are sunk, loaded with stone, that this mattress after sinking was only six feet high, or a decrease of one-third. Deducting from the height of the mat, namely 72 inches, the height of the 12 poles, or 54 inches, it will
be seen that the thickness of the fascines or bundles of brush between the layers of poles will average 21/2 inches. The jury will bear in mind that this measurement is taken at the poles of the grillage, and would show the thickness of the fascines or brush bundles at that point. In the spaces between the poles, as the elasticity of the brush will cause some expansion, of course the thickness of the brush material would naturally be greater.
Referring to the same exhibit showing dimensions of mattresses used in Cumberland Sound contract of 1896, it appears that on June 28th the eight-course mattress is 9.4 feet high, instead of 12 feet. Another, June 30th, eight courses, height 8.9, instead of 12 feet. July 1st, eightcourse mat, 8.8 feet, instead of twelve.
There is proof to the effect that during the months of May and June, 1897, thirty-eight eight-course mats were sunk in the Cumberland Sound, and, although according to the table of heights prepared by Carter, an eight-course mat should be 12 feet high in order to be paid for as eight third design mattresses, only one was as high as 11 feet, and the greät majority were from 8 to 10 feet in height. These, as stated, were permitted to go in the work and be paid for as eight third design mattresses. Subsequently to this period, it was determined to superimpose stone jetties on the lines of Carter's jetties in Cumberland Sound. From the testimony of Gillette and others, the jury, if they think proper, can infer that but a portion of the Greene and Gaynor construction remained. How much, it may be difficult to determine. There is a conflict in the testimony upon this subject. Wisner and Ripley made their observations of these works and took their measurements in December, 1897, and January, 1898. This was done to obtain evidence to be used in behalf of Carter before the court-martial. You will recall the testimony of these witnesses as brought out in the direct and also the cross-examination. They measured cross-sections as they stated, and in some places stated that they found substantial portions of the jetties remaining. Sometimes they got off the jetties altogether. It is to be observed that their measurements were taken shortly after the work was stopped, possibly before the operation of the teredo had become destructive. It may be that a large part of this structure had disappeared through the constant action of the teredo. The jury will determine this possibility.
Other evidence discloses that much of the jetties had been washed away. One witness for the defense testifies that he found a complete mat quite a distance from the work, but it was his opinion that this was lost from a barge. This he said had come through the breakers on the Florida coast, and according to his statement was yet intact. The teredo doubtless was the most dangerous enemy to this structure. This form of marine life which is so destructive to wood in salt water is so fully set forth by the evidence and so clearly understood by the jury that it probably requires no further elucidation. Carter himself, in a letter to Gen. Craighill, dated May 22, 1888, which is in evidence, stated :
"In certain instances I think a small amount of log and brush mattress work properly constructed can be used as far up as the sand will flow, and
I have a small amount of this in my Savannah project, more as a basis of expense than as recommending its use, as I do not think it should be used at all when it can be helped, and in some localities, not under any circumstances. At Fernandina it cannot be safely used above the foundation course."
This is the language of Carter. In the foundation course it would be covered by the sand and protected from its enemy. Major Gillette testified, “In wood which is in sea water in this locality, the wood is very promptly honeycombed by a jellylike worm known as the teredo; destroys it very rapidly.” The evidence is full upon this subject, and there seems nothing contradictory about the teredo and his mischievous operations.
As to the amount of the Cumberland Sound brush jetties which survived the onslaught of the ocean storms and the attack of the teredo, the jury may consider the testimony of the engineer officers for the government and for the defense. Bacon testified that in 1898, when he surveyed it, very little mattress work could be seen, and what was in evidence was very rotten. Where the water was deep its condition could not be so readily ascertained, but from the soundings taken it indicated that there was very little jetty there, especially at the end. What he found was rock, presumably used for sinking the multiple inats.
Of the south jetty, according to the same witness, for a distance of 7,000 or 8,000 feet from shore, it was in very good condition. Beyond that for 2,000 or 3,000 feet there was evidence of a jetty being there. But beginning at a point about 10,000 feet from the shore and out to a distance of 13,000 feet from shore there was no evidence of jetty at all. He testified that the teredo would destroy every part of loose brush material that had any heart in it in the course of a few months in the Summertime.
Gillette on this general subject testified that the project for improvements at Cumberland Sound, which ripened into the contract of 1896, provided for a foundation and apron course of brush mattresses 100 feet in width and laid with riprap stone. “Riprap," according to the Encyclopedia Americana, recently published by the Scientific American, "is a common name applied to broken stone used for beds, walls and foundations in building and construction.” Riprap was to be used to sink the foundation mattresses. The jetty section which was provided should be based on this brush mattress with the stone hearting of small stone, covered with heavier stone. In going seaward the heavier stone should increase in weight from 1,000 pounds to five tons. Gillette testifies that Carter's project provides distinctly for a rock jetty with mattress foundation, and he also testifies that the jetty as far as it was constructed was a brush jetty.
In this connection you will recall the testimony of Greene to the effect that it was to be a stone jetty, and after a while he intended to put stone on it. In the same connection you should consider the evidence to the effect that while the contract was made in 1896, and while the work stopped in July, 1897, the amount of brush 'mattress which had been used, on a part of the work only, was more than twice as much as had been estimated by Carter for the entire contract.
It is also in evidence that, instead of putting in the foundation course and aprons provided for by the project, the contractors along the line of jetty had been permitted to put in multiple mats, each of many courses. Indeed, at the time Gillette visited the works he testified that they were placing on top of the first layer of mats other mats, thus bringing up the height in places to as much as 16 courses, or the height of two eight-course mats, which, if constructed according to Carter's table for measurement, would have been 24 feet.
It was contemplated by the original project and afterwards stipulated that the cost of the mattress to be used as the foundation on which the stone was to be superimposed should be estimated by the square yard of its surface. It appears from this testimony to which I have just adverted, if accepted by the jury, that the contractors were paid by Carter by the square yard of each course of the bottom and of the superimposed courses. In other words, where there were 16 courses, they were paid for by all the square yards of surface calculated on each of 16 third design mattresses, provided 16 such mattresses had been used in the work. If this is true, and it is record evidence, and, so far as I recall the testimony, is not contradicted in any manner, it is not difficult to ascertain why it was that prodigious profits were made by the contractors.
The jury should not ignore the fact that Carter was a skillful engineer; that he had disclosed his knowledge of the effect of the teredo; that the work in Cumberland Sound was in salt water, and in waters which, according to the testimony of at least one of the witnesses, were rife with the operations of this destructive enemy of submerged work. When the specifications called only for a foundation of brush mattress, what was the necessity of piling up course after course of brush mattresses on jetties, some of them paid for as if they were 24 feet in height, when it was known that in a few months that for all effective purposes they would be largely destroyed ?
Mr. Wisner himself, one of the most intelligent witnesses, and the first for the defense, stated that he wished to go on record as opposed to the use of brush mattresses on an ocean bar, except when used as a foundation for a rock jetty. There is, however, much testimony to the effect that brush mattresses had been used largely on the South Atlantic and Gulf Coast. While this had been generally abandoned by engineers for work in salt water, this should be considered by the jury in passing on the question whether or not Carter and the defendants on trial acted without criminal intent. These considerations, wherever they are
are deemed appropriate, the jury should also apply to the evidence relative to brush mattresses used at the Tybee breakwater, and wherever in salt water the teredo could destroy the work.
The stone jetties at Cumberland Sound were subsequently constructed. According to the testimony of Gillette, which on this subject is not in fair dispute, they were constructed over the lines and the remains of the Carter jetties. According to the testimony of Bacon and Gillette, after a survey, the controlling depth between Greene and Gaynor jetties, so far as they had been constructed when the survey