The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-21

forcible manner for which ho u 30 distinguished,
that they were the custodans Of the treasury Of tho
United States; that they were here TO protect 1t,
and that il was their money that the govGnmenthad
been deffauded Of
Mr.. May said the remark was made generally. and
that it bad no special reference to this case.
The Court said that 1t was nevertheless the TACT
that such remarks were made.
Mr.. Bradley resumed his remarks. The learned
counsel told the jury TO be particular in observing
dates, for they were material. There was not
single fact which the prosecution would produce in
take US by surprise, which we will not meet
fully and satisfactorily. This the defence feel
prepared 70 do, from looking at the names on the
list Of witnesses for the United States But the EVIL
dence will disclose to the jury the fact that tne
governments of two nations have united to crush
this defendant. When this prosecution was hrst
commenced we were ready for trial and the Govern
ment was not II was proposed to send commits
sion out to Mexico; we did not desire TO wait Tor
place to testify in behalf of Dr. Gardner; they. how
ever were intercepted their way here by the Mex
lean authorities, and prevented coming mere on the
ground that Mexico claimed whatever surplus there
might be Of this three and q half millions, and 1t
was not the duty or place of any good citizen of
Mexico to do anything which might defeatthat claim
or lessen the amount which 1t would be swelied 70,
as they thought if DR.. Gardners claim were thrown
out. We got some proof, however, and were ready
for trial. The United States were not prepared.
The case went over to the next term. During all
this time the defendant had been knocking at the
door of the Government and demanding to be tried.
When this indictment was found, Dr. Gardner was
in Europe There was no extradition treaty I'M
der which he could be brought here for trial or any
way to get him here except by his voluntary act
He addressed letter to the District Attorney OF this
District, avowing his willingness to commence for
trial il any charge was made against him.
Before his arrival here, Mr.. Carlisle, his counsel,
without any authority or direction to do 80 from
DR.. Gardner, but acting under sense OF justice,
and of what was eminently proper and just, had an
interview with the President of the United States to
obtain his guarantee that when Dr. Gardner returned
10 this country and gave himself up for trial, he
would release so much OF his funds which were taken
by the government as would indemnify his bail The
President Mr. Fillmore, than whom purer or more
upright man never filled that chair, acceded to the
request he seeing nothing in it but what was fair and
proper. The government then got up new charge
against Dr. Gardner and on his arrival he was placed
in Jail and bail to the amount of one hundred thou
sand dollars was demanded but which the sense Of
justice of this court reduced afterwards to $40 000
The guarantee made by the President the government
refused to carry OUT and the defendant answered
when he made application for release Of so much OF
his money as was necessary to indemnify his BAIL by
a chief clerk in the State Department, that although
that arrangement might have been all very right and
proper at first, when it presumable he was inno-
cent it was not 50 now, when new charges were made
against him, and he was presumed to be guilty; the
tables were turned, and the guarantee made by the
President and under which DR.. Gardner voluntarily
surrendered himself for trial. could not be carried
out. This chief clerk Of the State Department wv.
release of this money to indemnify the ball. says
that no matter how good the arrangement was as
for the first indictment, now that DR.. Gardner ID in
the custody Of the law, and is guilty as he has q
right to presume, from the new Indictment that he
is until the contrary appears, the arrangement can
not extend to the new case. The intention on the
part of the government was to force Gardner into
jail and to keep him there, by deprvng him OF the
or hail Dirt ho rvct hoi ntuyith
standing. Mr.. Fillmore was not to blame; he was
honorable, upright, and manly; no one could sus-
pect him Of improper motives. There were others.
and other influences, however, ct work. An cleo
ton was coming on; there had been Galphn claim,
and it was for some unknown purpose that this pro-
ceeding took place, and the distinct guarantee OF
the President was withheld from DR.. Gardner. 1t
was said in the opening Of the case by the prosecu
ton, that Dr. Gardner was offered every facility Of
going to Mexico and point Z out to the government
agents there the mines an that he refused to avail
himself OF them. Long before 1t was proposed that
the Senate committee should send out commission,
we proposed to the President Of the United States.
in behalf Of DR.. Gardner, that a commissioner or
special agent should be appointed by the President
Of the United States, which said commissioner or
special agent shall be such person should be ap-
proved by the defendant or his counsel, and who,
when 20 appointed and approved should have the du
ties and powers in the premises which specified
He should proceed, in company with the defend
ant or such other person acquainted with the local
ties as might be designated by the defendant to the
place where the defendants mines were located, or
alleged to be, and should there personally invest
gate and ascertain whether such mines existed and
were the property Of the defendant and whether he
such agent should be instructed that f. upon such
examination it should manifesty appear that in fact
the defendant had such mines and was expelled
therefrom as alleged, he should certify in dupl
cate-one Of which certificates should be by him de-
vered to the President of the United States and the
other to the defendant. And in such case no testi
mony should be TAKEN but the prosecution should be
dismissed, and the funds detained should be released
by order Of the President. But il upon such nvest
CATION it shall not manifesty appear that the defen
dant had in fact such Mines and was expelled there
from as alleged, then the commissioner aforesaid
shall proceed to take the testimony Of witnesses in
reasonable notice to him. who shall have opportunity
to cross-examine all such witnesses, and to adduce
such witnesses his behalf at reasonable times and
places with like opportunities Of cross examination
the part of the United States. And all such tes
tmony thall be taken before some judicial officer
competent to administer oaths and according to the
law of the place and together with such record and
documentary evidence, certified according to the
law Of the place, as either party may think proper
to procure and all the records and fles of the late
Board of Commissioners in relation to the claim Of
the said Gardner, shall be admitted and received as
evidence the trial of this prosecution in like
ner and to the effect If the same facts were
testified to, riua voee by the witnesses themselves
before the jury. This agreement was not to affect
the right Of either party to adduce other testimony
which may be competent on the trial, nor to affect
any other legal right whatsoever, of either party,
except as was therein expressly waived.
Mr. Bradley said that this proposition contained
the most unusual offer OF allowing evidence to be
taken by deposition, to be used against party in
the trial Of criminal charge. The offer did not
stop here; when it was laid before the President,
the counsel Of DR.. Gardner agreed if required to do
80, to strike out that part of the proposal which
ferTed to the defendant being allowed to adduce wit
nesses before this agent or commissioner in his be-
half. The President was satisfied with 1t; he said
be considered it a very fair proposition; but as he
did not wish to interfere with the matter by taking
it out of the hands Of the District Attorney, he
would refer it to that officer. The matter was re-
fered to the District Attorney and for some reason
that gentleman refused it without even giving any
expression Of any reason for 30 doing. The defence
was shortly after notified that the United States
intended to examine some witnesses in the Mayors
Office in the City Hall. The House Of Representa-
tives, about the same time, appointed committee of
investigation, which undertook to examine this case;
the Senate also appointed like committee. Here
then pt one time waq tho iudciary the HOuSp