CHAPTER XX

TAKEN FROM THE JURY BY THE JUDGE

The District Attorney put the president of the light of the world on the stand. His evidence showed that the purchase of the three-quarter's interest in the Vacuum Company, sold because "there were restrictions in the shipments," was made by the three New York men on trial. "They are share-holders in the trust," he said. When they bought the stock they transferred it to the oil trust. He had known of the contemplated purchase. Having thus proved that the three indicted directors from New York on trial were members of the oil trust, and were managing the Vacuum for it, the District Attorney proceeded, in pursuance of a logical plan of inquiry, to bring before the jury what the trust was, and its relations to the companies it covered.

"What is it ... if you know?" the District Attorney asked. The president, through his counsel, objected to the question.

"What is the object of this?" the judge asked the District Attorney.

The trust, the District Attorney explained, owns a majority of the stock of this Vacuum Company and others, and controls the manufacture in this country of substantially all the lubricating and illuminating oils. These defendants belonging to the trust, and "one of these being chairman of a committee of the trust, it was the desire and motive of the three to do away with competition, to destroy and ruin the competitive works in Buffalo."

The Court asked the president of the trust if it was a manufacturing company.

"It is not, your honor."

The Court ruled out the question "What is it?" although in doing so he used language apparently contradicting his ruling, saying, in effect, that it was "quite immaterial what the objects or purposes of the oil trust are, unless these defendants are in some way interested so as to create a motive to do what it is claimed they did do." Again, when the District Attorney sought to ascertain in what other corporations engaged in the manufacture of oil in 1879, 1880, and 1881 the trustees on trial owned stock, it was objected to and the objection sustained, although the Court but a few moments before had said, "I will allow you to show everything these defendants have done upon the question of motive, ... to show what their business is, the companies they have stock in, whether it is an oil company or some other company--that is, any company engaged in the manufacture of oil that would come in competition with the Buffalo company...."

The judge, declaring that he would admit such evidence, refused to admit it. What the District Attorney would have been able to uncover as to the responsibility of the "trustees" for what was done by the subordinate companies, the reader, freer than the jury in this case, can find out for himself.

The nine trustees, of whom three were on trial, owned as their individual property more than half of this as of every establishment in the trust. They decided who were to be elected directors and officers of each company. They exercised full control over these officers when elected. They declared the dividends. The profits of all these shares are put into one purse, and distributed in quarterly dividends among the trustees in proportion to their interest in the trust--the purse-holder.[489] In the case of the Vacuum Company, accordingly, we find that the minutes of stockholders' meetings record the presence of members of the oil trust, in person and by proxy, representing a majority of the stock, electing the officers and directors, and declaring the dividends. How thorough and minute is the supervision over the vassal companies an employé, who had been in the service of the combination for several years in a confidential way, and "had access to every book and paper and their cipher arrangement," has told.[490] They "control every movement of every branch of their business." The subordinate companies "make a report every day of all their business.... They have blanks there on which they make a report of all their shipments, where shipped, and who shipped to, and all their purchases; and they report every month the exact percentage they have made out of their crude oil, of all the different products they get out of it. They report everything in detail."

This was in 1879. Ten years later, in 1888, the testimony of the president shows that the system is the same. "They know the cost at every refinery. They get such reports once in thirty days; each report shows just what it has cost for everything.... Made out on regular blanks."[491]

But when put on the stand in this case, in Buffalo, he had professed himself altogether ignorant of any such reports.[492] Asked if the Vacuum Company had made them, he replied:

"I can't recall any such reports."

Asked if it was obligatory upon the Vacuum Oil Company to make reports, he said:

"I can't state."

But the manager's testimony in the same case shows that the system of reports which his superior "could not recall" was in regular operation.

"There are reports of sales of the Vacuum Oil Company made to certain parties in New York."[493]

The three trustees who bought the control of the Vacuum stock did not keep it for themselves. They transferred it to the trust, and received for it shares in the trust. They were not stockholders in the Vacuum, but stockholders in the trust. It was the trust which was the real stockholder in the Vacuum. The profits on this Vacuum stock, therefore, went into the common fund in which the trust accumulated the profits of all its controlling ownerships in companies all over the country--all over the world. Every trustee shared in the profits of every company so controlled, whether in the United States or Europe or Asia. The president of the trust, now on the witness-stand, was a large participator in the profits of the Vacuum, because he was a large owner in the trust which possessed three-quarters of it. Similarly as to the three trustees indicted and on trial, and every other trustee.[494] The case was interwoven, notwithstanding the exclusion of this by the judge, with evidence that the three members of the trust on trial were the managers of the company for the trust, and were consulted habitually about the current details by the salaried agents.

"After this purchase was made did you continue to represent the purchasers in the management of the affairs of the Vacuum Oil Company?" one of the three was asked.

"I did."

After the purchase of the Vacuum by the trust, Mr. Matthews, before he left to go into business on his own account, had to go to its office in New York half a dozen times, to see the New York directors when he wanted instructions. His testimony on this point covers thirty pages of the official testimony, and shows repeated interviews between him and the members of the trust about every kind of detail of the business of the Vacuum. When Matthews asked the manager of the Vacuum to give him more pay, the latter had told him to speak to one of the trustees--one of the three now on trial. "It will be as he says about it." Again, as to another matter, he said to Matthews: "I cannot tell you. There is no use for me to pretend that we run our business, for we do not."[495]

This evidence must be sought in the original records of the case at Buffalo, as it is left out in the transcript furnished by the trust to the committee of Congress, which represents the case against the two local managers only. The Rochester manager, after the explosion, and at the time of sending for Albert to come to New York, telegraphed to his son: "Our views with regard to Albert confirmed." By whom? as Matthews' lawyer asked. The manager saw one of the three accused trustees in New York after he returned from the trip to Boston to hide Albert. "I told him that I had hired him," he testified.

The trustee denied this, as the president denied the monthly reports. But he has himself furnished the evidence that his employé told the truth. In their answer in court to the allegations of the suit against them for damages, he and the other two trustees concerned in the Vacuum direction testified that they advised the Rochester managers "to endeavor to retain the said" Albert, ... "and after" he "had left the employment of the Vacuum Oil Company ... they further advised that he should be re-employed if it could be done by reasonable increase of his wages. They were afterwards informed that he had been re-employed." This shows they knew about the negotiations before, during, and after. They knew the man was to have more wages, though the increase was only $300 a year, and their income was millions yearly. When he had been gotten away they were informed of that too. The District Attorney knew all about this answer in the civil case, but under the statutes of New York it could not be used in a criminal prosecution against those who had made it. He put the trustee on the stand, and did his best to get him to tell the same story, but in vain.

The body-guard of lawyers surrounding the great men who made the court-room a veritable curiosity-shop for the people of Buffalo, did a deal of acting throughout the trial to impress on the jury that the whole proceeding was a farce. They laughed and yawned and pooh-poohed, and sneered at the District Attorney's questions and points, and went through all kinds of dumb-shows of indignation and ennui that their clients should be so needlessly called on to waste priceless time. But this could not prevent their faces from lengthening as the story was told by witness after witness, as more than one observant reporter saw and noted. When the evidence was all in, and District Attorney Quinby had closed his case, the situation was desperate. There was no doubt about that. The great men of the trust on trial had been proved to be the actual directors of the Vacuum at every turn of its daily affairs. Before any evidence was introduced for the defence, one of the distinguished lawyers arose and moved the discharge of the three members of the trust, who were a majority of the Board of Directors of the Vacuum Company, and managed it for the trust. The prosecution were not taken unawares by the motion. The District Attorney's able assistant, William L. Marcy, had gathered all the precedents and equipped himself to resist the discharge. He and the District Attorney fought hard to have the principals in the company go to the jury with their agents, but in vain. Mr. Marcy pointed out that, as shown in the case of The People _vs._ Mather, "to charge partners as conspirators it is not necessary even to show that they were the original conspirators. It is sufficient if at a subsequent time they become party to it by accepting the benefits derived from the conspiracy. The case lays that down in exact terms."

The Judge: "Must there not be an adoption?"

Mr. Marcy: "That is an adoption--accepting the benefits."

The Judge: "They may accept the benefits without knowing."

Mr. Marcy: "Then the jury may infer that knowledge from all the circumstances. The jury are the tribunal to determine whether or not the parties had the knowledge." Mr. Marcy pointed out that there was everything to lead the jury to infer that these men were parties to the plan. "Where did the meetings of the Board of Directors take place? At Rochester, where the works are? No; at New York, where these men carried on their other business. The Rochester representatives dance in attendance wherever these New York parties desire them to go." He pointed out to the judge that the trustee whom Albert met in New York after the explosion knew of the plan to take him to Boston. He showed that the same trustee, when remonstrated with by Matthews for bringing patent suits without foundation, said that he intended to carry them on, and if he was beaten in one court, he would carry them to a higher court. Just in the same way the Rochester representative of the trust had said: "I will bring lawsuits against you. I will get an injunction against you." "When the Rochester manager," said Mr. Marcy, "hired Albert, he did not pretend to be able to make a bargain until he had been to New York and consulted about it. He was in New York before he telegraphed to him to come to New York. This significant fact points home the conspiracy upon the gentlemen who reside in New York."

But the judge, and not the jury, rendered the verdict as to the three members of the trust on trial. He failed to remember or observe the law that leaves it to the jury to render the verdict. He announced that he had decided to grant the motion for their discharge. There was silence in the court-room for a moment. Then: "Gentlemen of the jury, hearken to your verdict as advised by the Court," came in sonorous tones from the clerk; "you find the defendants"--naming the three members of the oil trust at the bar--"not guilty of the crime, as charged in the indictment, so say you all."

The jury looked scared at being addressed so peremptorily, but said nothing.

"The New York men looked happy," said one of the observers, "but their Rochester associates and codefendants did not smile." Upon the discharge of the trustees, one of the Buffalo dailies said that whether there was any conspiracy at all is an undecided question, but it should be remembered that the oil trust and the Vacuum Oil Company "have been honorably acquitted of the charge of having anything to do with the matter. As the case now stands, it is simply The People against"--the two Rochester managers.

Poor men! It was for this that they succumbed to the attacks of the oil trustees upon their business, sold them for $200,000 three-quarters of a concern which produced $300,000 in dividends in one year for the lucky conquerors, became vassals instead of masters in their own refinery. It was for $10,000 a year, divided into $6500 for one and $3500 for the other, that they undertook to fetch and carry for their suzerains, even to the gates of the penitentiary; and when discovery and conviction came, to bear in silence upon their own shoulders the guilt and shame from which others got only "more."

The trial of the two remaining defendants proceeded. Neither of them took the stand. In a deposition the elder said it was Albert who had spoken about misplacing the pipes; but when asked what he said in reply to a suggestion, which no one better than he knew the significance of, he replied: "I made no reply to it, but I thought it would be a very scandalous proceeding."[496] Albert had told how, in conversation in California, his employer had described his plans with regard to Matthews.

"We would have just got them fellows in a boat, right in the middle of the stream, and we would have tipped them two over, and drowned them, and you would have been all right."[497] "If I ever made such a remark," this defendant deposed, "it was in a playful humor. I am in the habit of making playful remarks."

Witness after witness had to confess, under cross-examination, that his testimony had been written and rewritten by himself or the lawyer for the defence, and carefully conned before coming on the stand. The District Attorney asked one of these tutored witnesses why he had read over the written preparation of his testimony in the rotunda of the court-house just before going on the stand.

"I read it over," he replied, lucidly, "for the simple reason of reading it over."

"Just to practise in reading?"

"Well, perhaps we might call it practice in reading."[498]

"This preparation of the testimony," said the District Attorney to the jury, "which I stigmatize as infamous, this going to a witness and writing him down, and having him fix it, and write it over again, and keeping it in his mind, and reading it over, and so going on the stand, is not the way to try a lawsuit, in my mind. I write nothing down. I coach no witnesses. I want a witness to tell me his story. I put him on the stand and he tells me his story; but no writing down, no reading over. It is not right, and it is very liable to be very wrong."

Several witnesses were introduced to prove that Matthews had offered to settle the criminal prosecution. He could not have done so had he wished to. The criminal case was in the hands of the State. Of the witnesses who made this charge against Matthews, one was a stockholder in the trust, another had been a stockholder in one of its pipe lines, and both had to admit on cross-examination that the occasion of his alleged agreeing to settle the case had been that they had gone to him for their friends, unsolicited by him and unexpected, to find out at what price he would sell his works to the combination." I was anxious to settle the criminal prosecution," said one of these ambassadors.

"Anxious for whom?" asked the ever-ready District Attorney.

"I should say--nobody," replied the witness, in confusion.

"Mr. Matthews told him," said Mr. Hiram Benedict, one of the best-known citizens of Lockport, who was present, "that if they bought the capital stock of the company they could do what they chose with the civil suits, but with the criminal suit he had nothing to do; the people had that in charge."[499]

The lawyers tried to make a jest of the whole proceeding, and affected to look upon the incidents of this rivalry with their powerful client as something too trivial to be noticed. "Is it a trivial matter," asked District Attorney Quinby, "that it shall be decided, once for all, in a court of justice, that in an alleged republic you and I shall not start a business which is a rival to some one else? That is the issue here, and yet the lawyers for the accused tell us it is trivial. It is the most important question that was ever left to a jury of twelve men in this or any country in this age of monopoly." The jury thought so too. The meaning of the policy of suppressing competition was skilfully described by Judge Edward Hatch, Mr. Matthews' counsel in the civil suit for damages, and here again the jury, representing the people, thought so too. "When a man or a corporation is in a position to control the market as to a given article, then everybody is within their power, and it rests with their conscience to determine what shall be the price. Every time you farmers at home, or your wives or daughters, take your oil-can, turn it up, fill your lamp, and then sit down to read by it, you can understand what is meant by this proposition to crush these men out.... It was a matter that not only these three men were interested in, but every person that lived in the community. Competition would run along to a point where you could get the oils that you use in your families, to grease your wagons, and to burn in your houses, or for any other purpose, at a price that should give the manufacturer a fair profit, and at the lowest possible price. On the other hand, if you leave that open to these parties to regulate as they saw fit, having a monopoly of the market, then you rest upon the conscience of a corporation and put your faith in a soulless individual."

It is one of the few bright lines in this picture that whenever the people got a chance to make themselves heard, their utterance was always right and true. The four juries which passed upon the facts understood them, and had the moral standard by which to judge them aright.

One of the trust's employés was put on the stand to break the effect of the evidence that the competition of the new works had put down the price of oil. "In the early part of 1881--the winter of 1881"--he said, "common oil was 5-1/2 cents a gallon"--this to prove that the reduction had preceded the appearance of the new refinery. He was confronted by the District Attorney with one of his own bills of oil sold in February, 1881. "That would seem to be a sale of 120 degrees oil at 12 cents a gallon," he confessed, and added, awkwardly, "I was asked as to the winter of 1881. That is not the winter of 1881 as I understand. I meant to speak from July, 1881, and so on."[500]

The great lawyers held up to the ridicule of the jury the idea that the gases of distilling petroleum were dangerous. Matthews stated on the stand that he had seen this gas burn up derricks, property, and several men. The lawyers could not let anything so absurd go unchallenged.

"Did it explode?" he was asked smartly.

"Yes, sir."

"And how did the 'explosion' burn up the men and property?" with a knowing look to the jury.

"The gases crept quietly to the boilers, unobserved," said the witness, "and all at once the whole atmosphere was ablaze."

The witnesses who tried to prove that no harm could have resulted from the tampering with the still broke down. One of them was the inspector of oils at the combination's refinery at Cleveland. He, too, had once been an independent refiner, but had passed under the yoke. He declared with every possible variation of phrase that there could not have been an explosion at the Buffalo works; but the District Attorney got out of him piecemeal admissions that the "escaping petroleum gases would be inflammable"; that "in a damp day you would expect them to settle close to the still"; that then, if they came in contact with fire, "you would have a large flash, and consume those vapors; if a person was in the vicinity he would burn."

"I ask you if it would be a safe thing to fill a still with 175 barrels of petroleum, put under it an extremely hot fire, so that the front portion of the still is a cherry red, and a weighted safety-valve is blown off--would you consider that a safe thing to do?"

"I would not."

Still another of these witnesses ended, like Balaam, by saying just the opposite of what had been wanted of him. He testified that the escape of gases from the stills, and even their ignition, was a matter of no consequence--"it may occur at any time"--until he was cross-examined. It turned out then that his own works had been burned three times by the gases from distillation taking fire. "These gases," he had to admit, "took fire and burned the receiving-house. A man got burned up with it."

"Are you willing," the District Attorney asked, sarcastically, "to go down to the Buffalo works and have them run some vapor, on a quiet day, on the ground, and let you stand in the middle of it and touch it off?"

"I am not anxious to do that."[501]

Every one looked to see Matthews crushed by the cross-examination, in accordance with the widely advertised promises of the counsel on the other side.

"As he stood up to take the oath," said the New York _World_, "and confronted the men with whom he had been at sword's-point for six years, men of unlimited wealth and almost unlimited influence, and controlling the most gigantic monopoly of any age or any country, Charles B. Matthews looked, as a good observer said, what he proved himself to be, a fighter, who will never know when he is whipped. Hard knocks and a struggle of years against an all-powerful enemy have whitened his hair, and set firm, hard lines about his face. His eyes are deep-set under a protruding forehead and black, bushy lashes, and are dark, firm, and searching. His jet-black beard is luxuriant but coarse, his whole head and face bespeak the dogged persistence in following a foe that is characteristic of the man. He is tall, well built, and with those whom he knows to be friends he is kindly and almost jovial in his manner." He told his story, and the jury believed it. One of the most damaging portions of his testimony was that given to connect the New York members of the trust with the conspiracy by showing that they had the actual, practical, continuous management of the Vacuum in matters small as well as large. Matthews, when in their employ, was kept running to New York continually to see one or the other of them about some detail of the business. Seeking to break down the force of this testimony, the big gun of the legal battery opened on him.

"But you did not see the name" of the oil combination "up over the office that you went into (in New York)?"

"I do not think I ever saw the name over the office that I went into. I think that name is not often in view over where they do business."

"What makes you think so?"

"My experience and observation."

"What experience and observation have you had?"

"Do you want I should tell it all?"

"No, you need not tell it all. We will let that go now." Matthews had been in their employ. He knew about the staff of lobbyists they keep to go from capital to capital as needed.

For lack of evidence the jury was offered abuse of Matthews, spoken by the brilliant attorney on a shout which enabled the populace outside the court-house to hear his speech, and, as the verdict proved, deafened the jury to his eloquence. The jury preferred the view given by the District Attorney. "When I look upon the troubled face of Matthews," said District Attorney Quinby in his closing of the case, "I know what is coming upon his head. When I know the struggle he has gone through, the integrity that is in his heart, I would say to him, 'Well done, good and faithful servant, you have withstood the powerful arm of this insatiable corporation. You stand to-day honored from one end of this land to the other.' ... I am proud that in the county of Erie has been born a gentleman who has had the bravery and fortitude he has shown."