such cases to officers of banks. It was
claimed and argued by Mr. Choate, with great zeal, eloquence,
and learning, that this was an _ex post facto_ law, which
could not, under the Constitution, be made applicable to transactions
which happened before its passage. Mr. Choate argued this
question for several hours. The court took time for consideration,
and overruled his contention. There seemed nothing for it
but to go to trial again on the facts, upon which one verdict
of guilty had already been had. As they were going into the
court-house in the morning, Mr. Choate said to Mr. Hoar,
whose chief part in the trial, so far, had been finding law
books, hunting up authorities, and taking notes of the evidence:
"You made a suggestion to me at the last trial which I did
not attend to much at the time; but I remember thinking afterward
there was something in it." Mr. Hoar replied: "It seems to
me that Wyman cannot be convicted of embezzlement unless the
funds of the bank were entrusted to him. They must either
have been in his actual possession or under his control.
There is nothing in the office of president which involves
such an authority. It cannot exist unless by the express
action of the directors, or as the result of a course of
business of the bank." The facts alleged against Wyman were
that he had authorized the discount of the notes of some
friends of his who were irresponsible, and that he had, in
some way, shared the proceeds. Mr. Choate seized upon the
suggestion. The Government witnesses, who were chiefly the
directors of the bank, were asked in cross-examination whether
they had not consented that Mr. Wyman should have the right
to dispose of the funds of the bank, or to give him power
or authority to dispose of them. They supposed the question
was put with the intent of making them morally, if not legally,
accomplices in his guilt, or of charging them with want of
fidelity or gross carelessness in their office. Accordingly,
each of them indignantly denied the imputation, and testified
that Wyman had no power or authority to authorize the discount
or to meddle with the funds. When the Government case closed,
the counsel asked the court to rule that as the funds were
never entrusted to the possession of Wyman he could not be
convicted of embezzlement. The court so held and directed an
acquittal. This is another instance, not unusual in trials
in court, of the truth of the old rhyme, with which