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The indictment framed pursuant to this statute is No. 476. It describes the official character of Carter, his trust for the improvement of rivers and harbors in the Savannah district, his powers, duties, and discretion, particularly that of approving or rejecting claims and accounts, his discretion as a disbursing officer and agent of the United States for the payment of such claims from funds intrusted to him. It is then charged, by virtue of his office, and whilst he was so employed, that he had possession of the sum of $575,740, in lawful money, the property of his employer-the United States. It is further charged that the other defendants, Greene, the three Gaynors named, and Connolly, not being authorized depositaries of the United States, received from Carter this sum, well knowing that it had been fraudulently paid out by him, and did then and there, with like guilty knowledge, apply this public money to the payment of two fraudulent claims against the United States aggregating that amount. These claims, it is alleged, Greene, the Gaynors, and Connolly caused to be presented in writing to Carter, and that they well knew the claims thus presented upon which the money was paid were fraudulent, and that such payment was an application of the public money of the United States for a purpose not prescribed by law. The indictment sets out a description of the claims and the particulars in which they are alleged to have been fraudulent. A description of the claims and the particulars; that is, a repetition. This description does not vary in any material way from that utilized in the other indictments. The method of the alleged fraudulent payment by Carter is also described. And it is charged that Greene, the Gaynors, and Connolly, so knowingly applying the public money of the United States for a purpose not prescribed by law, did then and there embezzle the same.

The second count of this indictment contains a similar charge of embezzlement. This describes an alleged fraudulent claim relating to the Cumberland Sound work, and the amount alleged to have been embezzled is $345,000.

The third count charges a similar offense. It describes a claim alleged to be fraudulent relating to the Savannah Harbor work. The sum alleged to have been embezzled is $230,749.90.

It will be observed that the fourth count of the indictment makes a general charge of embezzlement against the persons named in the first three counts and against Carter also, and charges him as participating with the others in the felonious embezzlement of the sum of $575,749.90, which is the aggregate of the sums alleged to have been fraudulently claimed on the Cumberland Sound work and on the Savannah Harbor work. It is also alleged to be the parcel of money of which the said Oberlin M. Carter then had the custody, management, and control by virtue of his employment. And they are all charged that they did fraudulently and feloniously apply and dispose of the same to their own use and benefit; said application of said money being not for a purpose prescribed by law.

To each count of said indictment for embezzlement there is appended the following charge:

"And the grand jurors aforesaid, upon their oaths as aforesaid, do further present that after the commission of the said embezzlement, and after the acts done herein before set forth, to accomplish said embezzlement, at a time the exact date of which is to the grand jurors aforesaid unknown, but which was prior to the 1st day of December, A. D. 1899, the said Benjamin D. Greene and John F. Gaynor left the Southern district and state of Georgia, and continuously remained away from said Southern district of Georgia until on or about the 1st day of February, A. D. 1902, when they returned to said Southern district of Georgia, and again on or about the 7th day of March, A. D. 1902, the said Benjamin D. Greene and John F. Gaynor again left the Southern district of Georgia and remained away from said Southern district and state of Georgia until on or about the 9th day of October, A. D. 1905, and that during said period, to wit, from the said time prior to the said 1st day of December, A. D. 1899, and the said 9th day of October, A. D. 1905, the said Benjamin D. Greene and John F. Gaynor were persons fleeing from justice. Contrary to the form of the statute in such cases made and pro- . vided, and against the peace and dignity of the said United States."

Such is the analysis of the indictment.

The grand jury having returned into court the indictments thus explained, and the accused having pleaded not guilty, the issues are formed to which for the last three months the jury and the court have given their undivided attention. There are, gentlemen, certain fundamental principles to which at this stage of my effort to assist you I will call your attention. One of these is that ours is a government of laws, and not of men. It follows that the triors of every accusation equivalent in importance to that under consideration, namely the jurors, should clearly understand not only the law, but the reason for the existence of the law, in whose administration their assistance is invoked. Among the chief causes of the formation of our government was the necessity for making rules for the regulation of interstate and foreign commerce. At one period of our history, even after our independence of Great Britain had been established, we had no such rules. Rhode Island might, and did, tax imports from Massachusetts and New York at a greater rate than similar commodities from Great Britain or any other foreign land. South Carolina might establish a custom house to exact imposts on products shipped from Georgia, and Georgia might do the same thing against South Carolina or any or all of the 13 original states. This produced a condition which was seen to be intolerable, and some of the great men who had achieved our liberties set to work to arrange a treaty or agreement of commerce between Maryland and Virginia, and incidentally to control the navigation of the Potomac River and the Chesapeake Bay. Washington, Madison, and other illustrious Americans of that day were promoters of this plan. But when the first conference was held at Alexandria, in Virginia, it was at once perceived that such an understanding was necessary, not only between Maryland and Virginia, but between all of the states which had taken part in the Revolution and had but four years previously established their independence. Further consideration between the statesmen and patriots of that day evolved the great convention of 1787, which framed the Constitution, the foundation law of our government. The convention which framed this Constitution was a body of men of whom the history of time affords no superior. It was composed of 55 members. The grade

of intellectuality was exceedingly high. Many of the states had taken care to send the older patriots. Four had signed the Declaration of Independence 11 years before. Many were brilliant patriots. of '76. Eighteen belonged to the Continental Congress. The convention truly represented the wealth, conservatism, and culture of the states. While many of the delegates in this day would be termed aristocrats, they were all devoted to the maintenance of the largest liberty consistent with the public safety, but no more. The convention comprised men familiar with the history of nations, and competent to deduce the lessons of experience from the annals of time: Jurists of profound and solid learning, who well knew how much the noble science of jurisprudence had accomplished in the advancement of liberty and just government; soldiers, whose fortitude in the physical suffering of the battle and camp enabled them to estimate correctly the blessings of peace, which good which good government alone can insure. At last it was finished, and the illustrious Bancroft declares:

"The members were awe-struck with the result of their counsels. The Constitution was a nobler work than any one of them had believed possible to devise."

Jefferson has proclaimed that "it was the wisest ever presented to man"; and Gladstone, whose marvelous career had begun when your fathers were yet unborn, and who has yet lately departed, one of the noblest instances of enduring intellectuality the world has ever known, has declared:

"As the British Constitution is the most subtle organism which has proceeding from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of men."

The objects of this Constitution, which is but a brief instrument, are adequately stated in its preamble:

"We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty to Ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Such were the purposes of the law which organized the great Republic. This Constitution created a national Legislature. It comprehends, as you know, a Congress composed of the Senate and House of Representatives. This is the lawmaking body. The Constitution granted certain powers to Congress. Four of these and the laws, made in pursuance thereof, may be easily discoverable among the foundation stones on which the indictments before you must rest:

First: "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."

Second: Congress shall have Power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Third: Congress shall have Power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and

all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Fourth: "No money shall be drawn from the Treasury but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all Public Money shall be published from time to time."

Under the laws made pursuant to the grant of the taxing power, the funds which the proof before you shows were intrusted to the disbursing officer of the government, and were subsequently expended, were collected from the people. Under the power of Congress relating to the expenditure of this money, acts of appropriation were made by Congress before a dollar of it was available for river and harbor improvements on the coast and on the interior waterways of Georgia. These appropriations were made under and in obedience to the principle of the preamble to promote the general welfare, and under the express grant of Congress to regulate interstate and foreign commerce. The object of this The object of this grant has for many years been held to include the promotion of interstate and foreign commerce, and, since much of this was conducted by maritime and waterway navigation, it has been as steadily held by our government that Congress had and has the power to make appropriations for the improvement of our harbors, of the approaches thereto, and of our navigable streams. Commerce, said the Supreme Court, includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than that in which they lie. Again, in a famous case between South Carolina and Georgia involving the improvement of the Savannah river, the Supreme Court declared that the right to regulate commerce includes the right to regulate navigation and hence to regulate and improve navigable rivers and ports on such rivers, and the same doctrine was emphasized in the case of Carter when it was carried to the Supreme Court of the United States.

A further brief consideration of the philosophy of our organic law will show you the reason for the laws with the violation of which the accused stand indicted. There is no syllable in the Constitution which expressly declares that conspiracy to defraud the government or embezzlement of government funds is criminal. There is, however, the grant of power to Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all others powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Now, when Congress was given power to collect the money of the people, it followed ex necessitate that it must have the power to pass laws for its protection. When it was required that Congress should not spend money of the people except for the purpose for which it was appropriated, it became necessary to pass laws to guard the money which had thus been appropriated. When Congress was given the power to regulate interstate and foreign commerce, it was given the power to enact the laws to make that regulation of such character as would

promote interstate and foreign commerce, and would be contributory to the welfare of the people. And so these laws under which these indictments are framed were enacted by the representatives of the people of the states in Congress assembled.

Pardon me, if in passing I call your attention to another principle of that great instrument of organic law. It provides:

"This Constitution and the Laws of the United States which shall be made in pursuance thereof: and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the Contrary notwithstanding."

Not only is this to be found in the Constitution of the United States, but this provision is expressly reiterated in our own Constitution, and is expressly enacted in the first section of the Code of Georgia, that famous codification which is the pride of our jurists and the people of this state.

It follows, then, that this case in contemplation of the indictments involves, to an extent, the basic principles of our government; the safety of the money collected from the people for governmental purposes; the fidelity and integrity with which the Constitution and the laws design that it shall be appropriated for the purpose for which it was voted. In this case, this was an improvement, for the people of our state, the people of other states, and foreign lands dealing with us, of the facilities and instrumentalities of commerce found in those harbors, estuaries, and rivers with which the God of nature has so richly endowed our shore line, and on whose bosoms the commerce of this people may be borne from the farms where it is they are produced to producers and customers in other states and in foreign lands. It is, then, gentlemen, no ordinary case. It should command the liveliest attention of the conscientious, patriotic, and intelligent citizens who are selected from among their fellows and at whatever hardship to themselves, consecrated by law for its fearless, impartial, and righteous determination. Nor should you forget that it involves other basic principles of government. These are clearly outlined by the Bill of Rights in the Constitution. This provides that:

"No person shall be held to answer for a capital, or other infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger."

It also provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and District wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

In the practical application of that sovereign rule which secureɛ to the accused an impartial trial, there are other settled principles of the law to which your attention must be called. One of these is that the burden of proof is upon the prosecution. This imports

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