CHAPTER ELEVEN
Some libels are easily refuted. In his 1912 lawsuit against the Ishpeming Iron Ore, which had claimed he was often drunk, Roosevelt took the stand and testified, “I have never been drunk or in the slightest degree under the influence of liquor... I do not drink either whisky or brandy, I do not drink beer, I sometimes drink light wine...”
The newspaper publisher, George A. Newett was unable to produce a single witness to support his claims and apologized, admitting, “I am forced to conclude that I am mistaken.” He agreed to pay Roosevelt a symbolic six cents. That trial was brief and simple, as opposed to this one, which was already long and complex and threatened to last several more weeks. After all, here the entire American political system was effectively on trial.
When court resumed on May 6, Judge Andrews asked all the jurors, as he often did, if they had read any press coverage of the case overnight. When each responded that he had not, as they were instructed not to do, the proceedings began. But the judge then quickly dismissed them again to deal with a serious legal issue. Bowers renewed his argument that the defense must be permitted to tie known political corruption in Albany to Barnes, as a way of showing Roosevelt was not acting with malice.
Each state relied on its own definition of malice, but across the country the laws were often more protective of a person’s reputation than of an individual’s right to criticize publicly. In New York a published statement not only had to be true—it also had to have been published “with good motives and for justifiable means.”
Bowers made a long and reasoned discussion of the libel laws: “The court laid down as a proposition one that everyone concedes, that any publication which tends to charge a person with a crime or makes him ridiculous before the public is prima facie libel and malice is presumed.” Citing the decision of a recent Wisconsin case, Arnold v. Ingram, he quoted, “Every citizen has a right to comment on those acts of public men which concern him as a citizen of the State, if he does not make his commentary a cloak for malice and slander. Those who fill a public position must not be too thin-skinned in reference to comments made upon them. It would often happen that the observations would be made upon public men which they knew from the bottom of their hearts were undeserved and unjust; yet they must bear with them and submit to be misunderstood for a time, because all knew that the criticism of the press was the best security for the proper discharge of public duties.”
Bowers took a circuitous path, drawing on several additional decisions, before reaching the essential point. “I submit to your honor that underneath it all lies the proposition that where a man is saying to his fellow citizens, a man who is a voter and citizen of the State, certain matters in order to put in motion a political campaign and drive out of office two great political parties...(there is sufficient reason to justify) at the very least the reception of any evidence of any character which tended to indicate to the Court or jury that the defendant in uttering the article had reason to believe that substantially his statements were true...
“Mr. Roosevelt should be permitted to give in evidence certain matters which have thus far been excluded concerning information that was brought to his attention...this case, as far as I can glean from the legal situation, the question of whether or not Mr. Barnes had been guilty of corruption is in issue; and it would matter little whether that corruption were in a State act or a County act.”
“I agree with you,” said Judge Andrews, “that the defendant has the right to give any evidence of any kind which made him believe that the charge when he made it, was true. He can tell what anybody said to him which he relied on. He can tell anything that he read... Now, we agree to that...”
“I do not agree,” Ivins piped up.
But in the complex language of legalese, what sounded very much like a victory for the defendant turned out to be anything but that, as the judge continued his explanation. “This article charges Mr. Barnes with corruption and improper conduct as relates to State affairs...and therefore, I think that any information which the defendant may have received, although he believed it, confined to governmental affairs of the City and County of Albany, is immaterial in mitigation. That is the reason I ruled that this evidence as to local and county affairs of the city and county is immaterial.”
Bowers, frustrated, stated once again, “If the act is corrupt, it does not make any difference whether it is state government, city government or county government. This is the ground of the position I take.” Nevertheless, the ruling stood.
The jury was brought back in, and Colonel Roosevelt was recalled. It was Ivins’s turn to begin his cross-examination. The spectators readied for another delicious confrontation. Instead, Ivins addressed the bench with a smirk. “I do not care to have anything further to do with Colonel Roosevelt.” When asked about this decision later in the day, the attorney told reporters, “Mr. Roosevelt came prepared to make some more speeches to the jury. He had both sleeves filled up to the shoulders, but I decided not to give him a chance. I guess I rather disappointed him.”
Bowers smiled as he acknowledged, “I guess Colonel Roosevelt will accept the situation.”
The Colonel appeared to be taken aback by this unexpected strategy; a veritable groan rippled through the disappointed gallery. He tentatively left the witness chair, his disappointment on display. Theodore Roosevelt took pride in being a man of action. During his presidency, he had a fighting ring installed in the White House basement where he would box and wrestle. His sparring partner, William McKinley Mooney recalled, “‘Hit me, hit me hard, just as hard as you can!’ he used to say and when I would send one of my heaviest to his jaw he’d come up shouting, ‘Fine, that’s the way to do it. Now watch me.’ And then he would land his heaviest blow on me. He had a good punch too... As an athlete, if he had any fault, he may have let his enthusiasm go beyond his strength.”
The inability to maintain control, to sit still and quiet while other men resolved his fate, rather than strike back at what he believed was an obvious wrong, clearly was difficult for T.R. He had chosen the life of a participant rather than a spectator, and now he was being pushed to the sideline.
Bowers moved back to the critical, albeit not particularly scintillating, printing evidence. Through a series of witnesses, he brought out the fact that the printing business was extremely lucrative for Barnes. He presented numerous check stubs representing payments from the Journal Company made to the plaintiff: Barnes received a dividend of $2000 each quarter. In addition, special dividends were paid. On January 11, 1909, “the melon was cut” and Barnes got $8,080. On July 10 he got an extra share of $4,040. On December 21, $16,160. January 11, 1911, $12,120. Check after check, thousands and more thousands of dollars, all paid to William Barnes. His regular dividend payment for the five-year period was $40,400, but he also received extra payments totaling $46,460. All the other stockholders in the company, it was pointed out, received a sum total of $38,765. There was no claim, statement or indication that anything illegal took place, but the relentless presentation gave the impression, fairly or not, that somebody must have done something wrong.
In the midst of this, the court attempted to move things along, asking Ivins if he would concede that the plaintiff knew that on certain dates the Journal company made payments to other printing companies. “We will agree to nothing that these gentlemen ask,” the lawyer said angrily. “They are delving into our books and taking out whatever they want and taking unfair advantage of us.”
Bowers got to his feet and said with equal fervor, “No advantage is being taken of anyone...” and suggested that Ivins contest it if he believed what he was saying.
When this presentation was done, Judge Andrews tried to bring some legal bearing to it. “Let me see just what you have,” he said. “You’ve got the fact that Mr. Barnes countersigned all the dividend checks...” He went through it step-by-step, finally asking with skepticism, “Have you anything farther which will justify the admission of evidence...”
The argument twisted and turned, but without gaining traction. A good portion of the day was spent debating legal points that were difficult to connect to the original alleged libel. One witness was on the stand for an extended period, and when he was finished, Ivins moved to strike out his complete testimony and the judge agreed. “I think it may go out. I don’t think there is anything in that evidence that affects this case one way or the other.”
The defense made a prolonged effort to show that the legislature rejected several attempts to pass printing legislation, then attempted to introduce examples of bidding. Ivins objected, saying that material was no more relevant in this case “than the first chapter of Genesis.”
The testimony, “shrouded in technicalities,” according to the newsmen, “proved dry entertainment for the usual courtroom crowd.” Colonel Roosevelt seemed mostly distracted. He flipped through a magazine, occasionally conferring with his lawyers. Barnes appeared no more interested, sitting with his back to the jury box and witness chair, very quietly dictating notes and instructions to his secretary, Cassie Doran. Jurors were yawning overtly, and at one point it appeared that Ivins even briefly dozed off.
It was not a great stretch to compare the pace of this trial to one of the Colonel’s famed hunting expeditions: both required great preparation and anticipation, both relied on experience and expertise, and both were dominated by long periods of patient waiting interrupted by bursts of excitement. In an early book, Hunting Trips of a Ranchman, Colonel Roosevelt had written, “But many other qualities go to make up the first-class hunter. He must be persevering, watchful, hardy, and with good judgement; and a little dash and energy at the proper time often help him immensely.” The lessons learned on those plains undoubtedly came in useful, as sitting at the table listening to this confusing, repetitious testimony for hours required each of those traits. Somewhere hidden in all these debates there were opportunities, and either side had to be ready to recognize them when they came and be ready to pounce.
Late in the afternoon, one of those moments came for the defense. Buried in the voluminous records of the printing company, run by Barnes, the defense produced evidence that the New York Times described as having “all the effect of a sudden bomb explosion in the Barnes camp.” As it turned out, during the two years ending in 1901, the J. B. Lyon Company got no printing contracts—instead legislative printing contracts went personally to James B. Lyon, and for those two years Barnes was obtaining the contracts directly for Lyon. But what seemed to stun even Barnes’s own attorneys, was the fact that Barnes had received a whopping $20,000 in compensation for no identifiable reason. And at the end of those two years, Barnes continued to obtain printing contracts for the company but rather than receiving direct compensation, was handed 750 shares in the company.
While this revelation sent ripples through the courtroom, by the end of the third week Judge Andrews still was not convinced that this printing testimony and evidence added up to very much of consequence in connection to the specifics of this case.
On the morning of Friday the seventh, Winchester was once again recalled to the stand and brought with him more books and check stubs, among them the so-called “unofficial edition” of Insects in Park and Woodland Trees, that seemed to have been printed in multiple and entirely unnecessary volumes.
Bowers presented a small mountain of evidence showing how politicians used printing contracts for their profits, claiming as much as ten times the amount of printing was done and billed than was actually needed, and that the same type-composition was reprinted year after year and charged as newly set, but struggled to connect it directly to the plaintiff. When Ivins objected to this, Judge Andrews replied that he had decided to allow the defendant to make his case, and once that was all done he would rule on its admissibility. The difficulty with that, Ivins pointed out in memorable words, was the confounding problem that has plagued jurists forever. “You forget that you may rule this evidence in for the present and rule it out thereafter, but you cannot wipe out yesterday any more than you can create tomorrow.
“You are allowing to get before this jury a series of assumptions where no connection whatever has been made, and where it is beyond your mental or moral power to remove it from the mind of the jury.”
It was a question of human nature, Judge Andrews appeared to respond, claiming that the jury was sufficiently responsive to his orders that if he decided to rule out the printing testimony from consideration the jury would follow his instructions.
While an expert witness was testifying that the forty-one lines of type on a page that had been common in 1901 had been reduced to thirty-five lines by 1908, requiring additional pages, Ivins walked over to the defense table and with a smile on his face leaned over the Colonel’s shoulder and presented him with a slim green-covered book. “I came across this yesterday, Colonel,” he said, “and it struck me that it was a first class translation and if you cared to amuse yourself of anything of this sort while this uninteresting technical testimony is going on, you might enjoy it.”
The volume was a translation of Acharnians and other plays of Aristophanes. It was an unexpected gesture and one the Colonel clearly appreciated, responding, “Thank you. Thank you, I am dee-lighted!”
This obviously was a cleverly planned move; the inference being that even a collection of Ancient Greek plays was more interesting than the lengthy testimony about printing specifications. The fact that Ivins spoke loudly enough to be overheard by the newsmen, who then reported it, was itself a wry comment on the pace of the trial.
Judge Andrews finally laid down his criteria for accepting this evidence: “First, there was corruption or waste; second, that the plaintiff knew it or shared in it; third, that the corruption or waste was brought about by the exercise of the plaintiff’s political influence.” Later, he elaborated, “It don’t make no difference how much corruption or extravagance you prove unless you prove Mr. Barnes’ knowledge of it. Any incident showing corruption or extravagance is immaterial unless you also prove Mr. Barnes had knowledge of that incident.” And finally he challenged the defense. “What evidence do you claim that there is which would justify the jury in finding that the wasteful or extravagant nature of these contracts...was brought about by the influence of the plaintiff?”
“If I had that...direct evidence,” Bowers admitted, “we needn’t be troubling ourselves as to asking the jury to infer that from the facts we brought out.”
As Bowers continued his efforts to paste together bits and pieces to make his case, Roosevelt was distracted, thoroughly enjoying himself as he paged through Ivins’s gift, at times chuckling at a witticism from this Father of Comedy. His enjoyment was interrupted late in the afternoon as a messenger delivered a telegram to him. He read it in silence and said nothing, holding to himself this awful news.
The luxury British passenger ship Lusitania traveling from New York to Liverpool with 1,960 people, including many Americans, had been torpedoed by a German submarine. While it was unclear at that time the magnitude of the damage, Roosevelt had already made clear that he thought the United States should be fighting alongside its European allies. But at least for now, he would sit patiently through more arguments over how much his legal team would be able to attack the questionable business practices of the man suing him for libel.
Bowers was struggling to make the connection. Barnes, he said, through his dividends or the increasing value of his stock or the company was receiving “a compensation and return which naturally would have induced him to do everything in his power to assist the company in which he had such interest, to make a profitable result to all the contracts they had with anyone, including the State...
“He had an interest in everything.”
The judge refused to accept a logical chain as evidence. “Mr. Barnes as a stockholder shared in these profits...but that alone does not prove that he knew the bill for these...records was a swollen or unjust bill; it does not prove that he knew the prices received for these...records showed waste on the part of the State.”
Bowers once again cited Barnes’s letter to Platt complaining that he was not getting printing contracts he deserved, and once again cited Barnes’s letter to then governor Roosevelt arguing against the creation of a state printing business. But to little avail as Judge Andrews ruled, “I will hold that the mere fact that Mr. Barnes is a stock holder in the Lyon company is not sufficient to affect him with the knowledge of (corruption or wrongdoing)...
“I will hold that this evidence, and similar evidence...are incompetent unless further evidence is offered connecting Mr. Barnes either with the extravagance of the printer or with the fraud in the rendering of the bill...
“...if they offer a piece of evidence and say they are going to show affirmatively that Mr. Barnes had knowledge of that himself, I will admit it.”
The defense made a valiant effort to forge that connection, offering a list of payments made by the Lyon company to the Journal Company. Things got so confusing that one of the jurors asked despairingly, “May the jury have a little more explanation of the meaning of those things?” The attempt to explain led to more questions from the jury. But finally Bowers had to admit that he had nothing else, and that he would be closing his case on Monday.
What in almost any other situation would have been a devastating ruling that threatened to completely undermine the defense case was cast aside as the courtroom emptied for the weekend; and as the participants and spectators walked out into the street they were confronted by newsboys hawking the extra edition of the Syracuse Herald headlined “The Lusitania Sinks.”
The true extent of the attack was not yet known. According to the paper, “It is believed that her passengers are safe. No details of how they may have been rescued, however, are at hand.”
As more reports began filtering in, however, it became apparent that the passengers were not safe, that most of them had not been rescued. It happened as they had been enjoying a formal luncheon about ten miles off Ireland’s Old Head of Kinsdale, in County Cork, when a U-20 German submarine fired seven torpedoes at close range. Two of them struck the ship on its starboard side, one forward and the other in the engine or boiler room, causing huge explosions. The ship was ripped open and began sinking immediately; lifeboats went into the water, and those people who could find life jackets donned them. An SOS went out and rescue operations began, but even before they were fully underway it was too late. Aboard the Lusitania life and death decisions were being made in an instant. According to survivors, Alfred Vanderbilt, a friend of the Colonel’s, had promised a young mother holding tight to her infant child that he would find a life vest for her; when he failed to do so he took off his own vest and tied it around her, then helped her into a lifeboat. Vanderbilt could not swim, so this gesture was done with the full awareness of the mortal cost.
The Lusitania remained afloat for eighteen minutes before going down by her bow. Two ships nearby raced at full steam to rescue passengers. The initial details were vague, but it was reported that only ten lifeboats were put into the water and carried at most five hundred people. German U-20 Captain Walther Schwieger wrote, “Great confusion is rife on board; the boats are made ready and some of them lowered into the water...some boats, full to capacity are rushed from above, touch the water with either stem or stern first and founder immediately.”
The true extent of the disaster slowly became apparent; 1,197 passengers and crew—among them 128 Americans—had died in the attack. In addition to Vanderbilt, the Colonel knew several other people who perished.
Roosevelt returned to Horace Wilkinson’s home, knowing he must make a statement. While the magnitude of the loss at sea was almost beyond comprehension, and without comparison, whatever remarks he made now certainly could impact the trial, and the outcome of the trial would help determine his own future. The question was what could he say without alienating the three members of the jury of German descent. His earlier comments criticizing Germany had riled the German-American population. Several of them had even returned autographed photographs to him with angry comments. Finally he told his host, “It doesn’t make any difference. It is more important I be right than to win this suit. I’ve got to be right in this matter.” He then retired to his room to prepare his remarks.
During the trial Roosevelt stayed at the home of shipbuilder and steel magnate Horace Wilkinson, who had joined him in founding the Progressive party in 1912. He built this “chateauesque” mansion at 703 Walnut Street, whose sprawling gardens are pictured here, in 1905.
Onondaga Historical Association
The phone rang at midnight. A reporter for the Associated Press asked to speak to the Colonel. “I’ll speak with him,” Roosevelt said, “I always talk with the boys.” The reporter brought him the most recent reports. Bodies of men, women and children, many of them babies, were being brought ashore in Ireland. “That’s murder,” Roosevelt told the journalist. “Will I make a statement? Yes, yes, I’ll make it now. Just take this.”
He had made a decision. There would be no caution in his response, no equivocation. “The sinking of the Lusitania was not only an act of simple piracy, but that it represented piracy accompanied by murder on a vaster scale than any old time pirate have ever practiced before being hung for his misdeeds... It is warfare against innocent men, women and children traveling on the ocean...
“It seems inconceivable that we can refrain from taking action in this matter, for we owe it not only to humanity at large, but to our own national self-respect.”
The Colonel understood the potential cost of that statement. On Saturday morning he met with Bowers and his son, the young attorney Spotswood D. Bowers, and told them, “Gentlemen, I am afraid I have made the winning of this case impossible. But I cannot help it if we lose the case. There is a principle here at stake which is more vital to the American people than my personal welfare is to me.”
Bowers knew his man and knew there was no hope of talking him into a softer stance. Earlier in the trial he had pleaded with him not to “bust out” his feelings about Germany, to no avail. Later that day Roosevelt issued a longer statement repeating his initial remarks. The next day he gave permission to H. J. Wigham, publisher of the Metropolitan Magazine, to distribute an editorial he had written for that publication entitled “Murder on the High Seas.” It was a call to America to take action, a plea. “We earn as a nation measureless scorn and contempt if we follow the lead of those who exalt peace above righteousness,” he wrote, “if we heed the voice of those feeble folk who bleat to High Heaven for peace when there is no peace...”
To Roosevelt’s dismay, President Wilson was unmoved, continuing to pursue neutrality. “There is such a thing as a man being too proud to fight,” he told a large, cheering crowd at a citizen naturalization ceremony in Philadelphia, Pennsylvania.
The Extra! editions of the Herald had kept the trial on the front page, but moved it from column right, the most important space on that page, to the farthest left, and the headline “Great Waste of Printing Says Witness in Libel Trial” seemed almost to disappear among the Lusitania stories.
The New York Times coverage, however, highlighted the peril Roosevelt’s legal team now faced with the judge’s latest ruling on the printing evidence: “With this stricken out of the record, the lawyers for the defense must rest their case entirely on mitigation in which event the Justice may direct a jury to bring in a verdict, leaving it to determine only the amount of money to be assessed against Colonel Roosevelt.” The paper even went as far as to speculate the next day that this ruling could mean that Barnes might not even have to testify. Roosevelt was so concerned about the impact of the ruling that he gave up horseback riding that weekend to confer with his lawyers for the day.
The trial resumed Monday morning with even more testimony about the printing business, with Bowers and Ivins arguing whether moneys paid from the Lyon company to the Journal Company could accurately be called “commissions,” or was it more accurate to describe them as “trade discounts” or “discounts.” The defense appeared to be pushing a rock uphill, as Judge Andrews repeatedly pointed out, “This does not prove it as against Mr. Barnes...
“It is one thing to prove the face, which you have already done and it is another thing entirely to prove an admission of a fact made by a third party does not bind the plaintiff...”
In many ways the judge had erected legal roadblocks. “The city makes a contract with the Argus company to print this book at a certain rate at 35 lines to the page, the Argus company prints it itself, but only prints 28 lines to the page. It collects from the city as if it had performed it properly and turns over to the Journal a certain percentage of what it got from the city. Now we will assume for purposes of this argument there was fraud... Does that connect the Journal, to say nothing of the plaintiff, with knowledge of the alleged fraud which the Argus company had committed?”
The defense continued to argue that Barnes was the Journal Company and the Journal Company was Barnes, and that no business happened without his knowledge and approval. Bowers insisted, “The Journal Company was a corporation which Barnes controlled in almost every detail.” Unfortunately for the defense, that was not a winning legal argument. Bowers and then Van Benschoten tried to introduce every possible link until finally, in the early afternoon, Van Benschoten said simply, “We rest.”
The judge excused the jury, knowing the motions that were coming might change the course of the trial. Barnes’s team took the floor and reviewed the entire defense case, asking the judge to strike all of it out as being irrelevant and immaterial. “It is our contention,” began Barnes’s attorney Henry Wolff, “upon this motion that in no case where evidence has been offered in justification of this libel has that connection been made (between the plaintiff and claims of malfeasance or fraud).” Wolff then dissected the defense case, issue by issue, witness by witness, claim by claim, from Agnew at the beginning to Franklin Roosevelt near the conclusion. He did his job, putting the plaintiff’s slant on every issue. The job of politicians was to conduct politics; sometimes it was messy, but “a difference of opinion...is not evidence of corruption.” If arrangements existed between the parties or the players, “there is nothing whatsoever to show that it was corrupt or wrong...
“The record utterly fails to disclose any corruption or even impropriety. It does not appear that such an arrangement (between Barnes and Murphy) if it existed, was contrary to the public interest, that it came about through improper motives or that it was induced by improper influences.”
When Wolff asked that all testimony relating to an agreement made between Barnes and Murphy to select a US senator, especially that of Franklin Roosevelt, be stricken out, the judge had an unpleasant surprise for the plaintiff. “I think I will deny the motion,” he said. “I think on the face of it such an arrangement between the heads of the two parties is improper.”
Wolff clearly was puzzled by that, and asked, “Your honor rules that that is evidence of a corrupt combination?”
“Improper,” Judge Andrews corrected, “not corrupt in the sense...”
“That is the charge in this article,” Wolff protested.
“No, not necessarily... I think the meaning of the libel is an improper alliance between the leaders of the two parties.”
This was a significant reinterpretation of the charge, and one that neither side had anticipated. Wolff was on his feet, pointing out, “Of course the word ‘improper’ doesn’t occur anywhere in the article.” He continued with disbelief, “Your construction of ‘corrupt’ is ‘improper’?”
“Yes,” Judge Andrews agreed. “I don’t confine the word ‘corrupt’ in other words, to pecuniary corruption.”
Colonel Roosevelt beamed and exchanged pleased glances with his team. Then he leaned over and whispered a few words to Bowers. This appeared to be a significant victory. Barnes frowned and was caught looking directly at Roosevelt, an angry expression on his face.
Minutes later Ivins entered the discussion, asking the judge in the most polite way, “Whether it was your intention to construe ‘corrupt’ as synonymous with ‘improper’ or whether we shall submit authorities as to the legal construction, use, and meaning of the word ‘corruption’ from the text-books, from the cases, from the dictionaries. Because we are not confronted with the charge of impropriety; we are confronted with the charge of corruption of a character which has resulted...
“I simply want to inquire whether or not your honor means to confine the use of the word ‘corrupt’ to the narrow equivalent which you have stated?”
It had gotten down to this: the precise meaning of the word corrupt. Judge Andrews would not be pinned to the mat on it. “I don’t think I will define anything that I don’t have to in this case... I will rule on this question, this motion to strike out which is now made, and deny it, but I don’t believe I will be bound down by any definition of anything at present.”
Ivins demurred. “At present possibly not, but I think the time will come when your honor will be bound by some definition.”
“I may have to,” Judge Andrews agreed.
Wolff went through each issue raised by the defense, asking in turn that it be dismissed: Judge Andrews refused to strike out the testimony concerning the Hart-Agnew racetrack betting bill; he refused to strike the testimony alleging the Republican and Democratic machines conspired to elect William Sheehan to the Senate, and the testimony concerning the defeat of the direct primary legislation.
As the session came to an end, Ivins agreed that he would continue arguing his motions when court resumed in the morning. The impact of the ruling loosely defining corruption had hit him hard; he had not met regularly, on the record, with reporters, but this afternoon he had a statement for them. Judge Andrews’s ruling was “decidedly unexpected,” he admitted, and he intended to fight hard to get a precise definition of the words corruption and improper. His tone made it clear he believed this ruling itself was improper.