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diff --git a/38810-h/38810-h.htm b/38810-h/38810-h.htm new file mode 100644 index 0000000..0eef0fa --- /dev/null +++ b/38810-h/38810-h.htm @@ -0,0 +1,21836 @@ +<?xml version="1.0" encoding="us-ascii"?> + +<!DOCTYPE html + PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd" > + +<html xmlns="http://www.w3.org/1999/xhtml" lang="en" xml:lang="en"> + <head> + <meta name="generator" content="HTML-Kit Tools HTML Tidy plugin" /> + <title> + The Works of Robert G. Ingersoll, Vol. 10 (of 12) by Robert G. Ingersoll + </title> + <style type="text/css" xml:space="preserve"> + + body { margin:5%; background:#faebd0; text-align:justify} + P { text-indent: 1em; margin-top: .25em; margin-bottom: .25em; } + H1,H2,H3,H4,H5,H6 { text-align: center; margin-left: 15%; margin-right: 15%; } + hr { width: 50%; text-align: center;} + .foot { margin-left: 20%; margin-right: 20%; text-align: justify; text-indent: -3em; font-size: 90%; } + blockquote {font-size: 97%; font-style: italic; margin-left: 10%; margin-right: 10%;} + .mynote {background-color: #DDE; color: #000; padding: .5em; margin-left: 10%; margin-right: 10%; font-family: sans-serif; font-size: 95%;} + .toc { margin-left: 10%; margin-bottom: .75em;} + .toc2 { margin-left: 20%;} + div.fig { display:block; margin:0 auto; text-align:center; } + .figleft {float: left; margin-left: 0%; margin-right: 1%;} + .figright {float: right; margin-right: 0%; margin-left: 1%;} + .pagenum {display:inline; font-size: 70%; font-style:normal; + margin: 0; padding: 0; position: absolute; right: 1%; + text-align: right;} + pre { font-style: italic; font-size: 90%; margin-left: 10%;} + +</style> + </head> + <body> +<pre xml:space="preserve"> + +The Project Gutenberg EBook of The Works of Robert G. Ingersoll, Vol. 10 +(of 12), by Robert G. Ingersoll + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Works of Robert G. Ingersoll, Vol. 10 (of 12) + Dresden Edition--Legal + +Author: Robert G. Ingersoll + +Release Date: February 9, 2012 [EBook #38810] +Last Updated: November 15, 2012 + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK WORKS OF INGERSOLL *** + + + + +Produced by David Widger + + + + + +</pre> + <p> + <a name="title" id="title"></a> + </p> + <h1> + THE WORKS OF ROBERT G. INGERSOLL + </h1> + <p> + <br /> + </p> + <h2> + By Robert G. Ingersoll + </h2> + <h4> + "JUSTICE SHOULD REMOVE THE BANDAGE FROM HER EYES LONG ENOUGH + </h4> + <p> + TO DISTINGUISH BETWEEN THE VICIOUS AND THE UNFORTUNATE." + </p> + <h3> + In Twelve Volumes, Volume X. + </h3> + <p> + <br /> + </p> + <h2> + LEGAL + </h2> + <p> + <br /> + </p> + <h3> + Dresden Edition + </h3> + <p> + <br /> <br /> + </p> + <table summary="" style="margin-right: auto; margin-left: auto" cellpadding="4" border="3"> + <tbody> + <tr> + <td> + <a + href="http://www.gutenberg.org/files/38810/old/orig38810-h/main.htm">This + file has been formatted in a very plain format for use with tablet + readers. Those wishing to view this eBook in its normal more + appealing format for laptops and other computers may click on this + line to to view the original HTML file.</a> + </td> + <td></td> + </tr> + </tbody> + </table> + <p> + <br /> + </p> + <div class="fig" style="width:80%;"> + <img alt="titlepage (63K)" src="images/titlepage.jpg" width="100%" /><br /> + </div> + <p> + <br /> <br /> + </p> + <div class="fig" style="width:80%;"> + <img alt="portrait (64K)" src="images/portrait.jpg" width="100%" /><br /> + </div> + <p> + <br /> <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> + </p> + <h2> + Contents + </h2> + <p class="toc"> + <a href="#linkTOC">CONTENTS OF VOLUME X.</a> + </p> + <p class="toc"> + <a href="#link0001">ADDRESS TO THE JURY IN THE MUNN TRIAL.</a> + </p> + <p class="toc"> + <a href="#link0002">CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE + TRIAL.</a> + </p> + <p class="toc"> + <a href="#link0004">OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE + TRIAL.</a> + </p> + <p class="toc"> + <a href="#link0005">CLOSING ADDRESS IN SECOND STAR ROUTE TRIAL</a> + </p> + <p class="toc"> + <a href="#link0007">ADDRESS TO THE JURY IN THE DAVIS WILL CASE.</a> + </p> + <p class="toc"> + <a href="#link0008">ARGUMENT BEFORE THE VICE-CHANCELLOR IN THE RUSSELL + CASE.</a> + </p> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> <a name="linkTOC" id="linkTOC"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /> <br /> <br /> <br /> + </div> + <h2> + CONTENTS OF VOLUME X. + </h2> + <blockquote> + <p class="toc"> + <a href="#link0001">ADDRESS TO THE JURY IN THE MUNN TRIAL.</a> + </p> + <p> + ADDRESS TO THE JURY IN THE MUNN TRIAL.<br /> Demoralization caused by + Alcohol—Note from the Chicago<br /> <i>Times</i>—Prejudice—Review + of the Testimony of Jacob Rehm—Perjury<br /> Characterized—The + Defendant and the Offence Charged (p. 21)—Testimony<br /> of Golsen + Reviewed—Rehm's Testimony before the Grand Jury—Good<br /> + Character (p. 29)—Suspicion not Evidence.<br /> + </p> + <p class="toc"> + <a href="#link0002">CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE + TRIAL.</a> + </p> + <p> + CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL.<br /> Note + from the Washington <i>Capital</i>—The Assertion Denied that we + are<br /> a Demoralized Country and that our Country is Distinguished + among<br /> the Nations only for Corruption—Duties of Jurors and + Duties of<br /> Lawyers—Section under which the Indictment is Found—Cases + cited to<br /> Show that Overt Acts charged and also the Crime itself + must be Proved<br /> as Described—Routes upon which Indictments are + Based and Overt Acts<br /> Charged (pp. 54-76)—Routes on which the + Making of False Claims is<br /> Alleged—Authorities on Proofs of + Conspiracy (pp. 91-94)—Examination<br /> of the Evidence against + Stephen W. and John W. Dorsey (pp. 96-117)—The<br /> Corpus Delicti + in a Case of Conspiracy and the Acts Necessary to be Done<br /> in Order + to Establish Conspiracy (pp. 120-123)—Testimony of Walsh<br /> and + the Confession of Rerdell—Extravagance in Mail Carrying (p.<br /> + 128)—Productiveness of Mail Routes (p. 131)—Hypothesis of + Guilt and<br /> Law of Evidence—Dangerous Influence of Suspicion—Terrorizing + the<br /> Jury—The Woman at Her Husband's Side.<br /> + </p> + <p class="toc"> + <a href="#link0004">OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE + TRIAL.</a> + </p> + <p> + OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.<br /> Juries + the Bulwark of Civil Liberty—Suspicion Not Evidence—Brief<br /> + Statement of the Case—John M. Peck, John W. Dorsey, Stephen W. + Dorsey,<br /> John R. Miner, Mr. (A. E. ) Boone (p.p. 150-156)—The + Clendenning<br /> Bonds—Miner's, Peck's, and Dorsey's Bids—Why + they Bid on Cheap<br /> Routes—Number of Routes upon which there + are Indictments—The<br /> Arrangement between Stephen W. Dorsey and + John R. Miner—Appearance<br /> of Mr. Vaile in the Contracts—Partnership + Formed—The Routes<br /> Divided—Senator Dorsey's Course after + Getting the Routes—His Routes<br /> turned over to James W. Bosler—Profits + of the Business (p. 181)—The<br /> Petitions for More Mails—Productive + and Unproductive Post-offices—Men<br /> who Add to the Wealth of + the World—Where the Idea of the Productiveness<br /> of Post routes + was Hatched—Cost of Letters to Recipients in 1843—The<br /> + Overland Mail (p. 190)—Loss in Distributing the Mail in the + District<br /> of Columbia and Other Territories—Post-office the + only Evidence<br /> of National Beneficence—Profit and Loss of Mail + Carrying—Orders<br /> Antedated, and Why—Routes Increased and + Expedited—Additional Bonds for<br /> Additional Trips—The + Charge that Pay was Received when the Mail was<br /> not Carried—Fining + on Shares—Subcontracts for Less than the Original<br /> Contracts—Pay + on Discontinued Routes—Alleged False Affidavits—Right<br /> + of Petition—Reviewing the Ground.<br /> CLOSING ADDRESS TO THE JURY + IN THE SECOND STAR ROUTE TRIAL.<br /> Scheme of the Indictment—Story + of the Case—What Constitutes Fraudulent<br /> Bidding—How a + Conspiracy Must be Proved—The Hypothesis of Guilt and<br /> Law of + Evidence—Conversation Unsatisfactory Evidence—Fallibility of<br /> + Memory—Proposition to Produce Mr. Dorsey's Books—Interruption + of the<br /> Court to Decide that Primary Evidence, having Once been + Refused, can not<br /> afterwards be Introduced to Contradict Secondary + Evidence—A Defendant<br /> may not be Presumed into the + Penitentiary—A Decision by Justice<br /> Field—The Right of + Petition—Was there a Conspiracy?—Dorsey's<br /> Benevolence + (p. 250)—The Chico Springs Letter—Evidence of Moore<br /> + Reviewed—Mr. Ker's Defective Memory—The Informer System—Testimony<br /> + of Rerdell Reviewed—His Letter to Dorsey (p. 304)—The + Affidavit of<br /> Rerdell and Dorsey—Petitions for Faster Time—Uncertainty + Regarding<br /> Handwriting—Government Should be Incapable of + Deceit—Rerdell's<br /> withdrawal of the Plea of Not Guilty (p. + 362)—Informers, their Immunity<br /> and Evidence—Nailing + Down the Lid of Rerdell's Coffin—Mistakes of<br /> Messrs. Ker and + Merrick and the Court—Letter of H. M. Vaile to the<br /> Sixth + Auditor—Miner's Letter to Carey—Miner, Peck & Co. to + Frank A.<br /> Tuttle—Answering Points Raised by Mr. Bliss (396 et + seq.)—Evidence<br /> regarding the Payment of Money by Dorsey to + Brady—A. E. Boone's<br /> Testimony Reviewed—Secrecy of + Contractors Regarding the Amount of their<br /> Bids—Boone's + Partnership Agreement with Dorsey—Explanation of Bids<br /> in + Different Names—Omission of Instructions from Proposals (p.<br /> + 450)—Accusation that Senator Mitchell was the Paid Agent of<br /> + the Defendants—Alleged Sneers at Things held Sacred—What is + a<br /> Conspiracy?—The Theory that there was a Conspiracy—Dorsey's + Alleged<br /> Interest—The Two Affidavits in Evidence—Inquiry + of General Miles—Why<br /> the Defendant's Books were not Produced—Tames + W. Bosler's Testimony<br /> Read (p. 500)—The Court shown to be + Mistaken Regarding a Decision<br /> Previously Made (pp. 496-502)—No + Logic in Abuse—Charges against John<br /> W. Miner—Testimony + of A. W. Moore Reviewed-The Verdict Predicted—The<br /> Defendants + in the Case—What is left for the Jury to Say—Remarks of<br /> + Messrs. Henkle and Davidge—The Verdict.<br /> + </p> + <p class="toc"> + <a href="#link0007">ADDRESS TO THE JURY IN THE DAVIS WILL CASE.</a> + </p> + <p> + ADDRESS TO THE JURY IN THE DAVIS WILL CASE.<br /> Note from the Anaconda + <i>Standard</i>—Senator Sander's Warning to the Jury<br /> Not to + be Enticed by Sinners—Evidence, based on Quality of Handwriting,<br /> + that Davis did not Write the Will—Evidence of the Spelling—Assertion<br /> + that the Will was Forged—Peculiarities of Eddy's Handwriting—Holes<br /> + in Sconce's Signature and Reputation—His Memory—Business + Sagacity<br /> of Davis—His Alleged Children—Date of his + Death—Testimony of Mr.<br /> Knight—Ink used in Writing the + Will—Expert Evidence—Speechlessness<br /> of John A. Davis—Eddy's + Failure to take the Stand—Testimony of<br /> Carruthers—Relatives + of Sconce—Mary Ann Davis's Connections—The<br /> Family Tree—The + Signature of the Will—What the Evidence Shows—Duty<br /> and + Opportunity of the Jury.<br /> + </p> + <p class="toc"> + <a href="#link0008">ARGUMENT BEFORE THE VICE-CHANCELLOR IN THE RUSSELL + CASE.</a> + </p> + <p> + Antenuptial Waiving of Dower by Women—A Case from Illinois—At + What<br /> Age Men and Women Cease to Feel the Tender Flame—Russell's + Bargain with<br /> Mrs. Russell—Antenuptial Contract and Parole + Agreement—Definition<br /> of "Liberal Provision "—The Woman + not Bound by a Contract Made in<br /> Ignorance of the Facts—Contract + Destroyed by Deception.<br /> + </p> + </blockquote> + <p> + <br /> <br /> + </p> + <hr /> + <p> + <br /> <br /> <a name="link0001" id="link0001"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /> <br /> <br /> <br /> + </div> + <h2> + ADDRESS TO THE JURY IN THE MUNN TRIAL. + </h2> +<pre xml:space="preserve"> + * The United States vs. Daniel W. Munn, Deputy Supervisor of + Internal Revenue, who was indicted under Section 5440 of the + Revised Statutes of the United States. + + There was an unusual rush to obtain admission to the United + States District Courtroom yesterday to listen to the closing + arguments of counsel in the Munn whiskey conspiracy trial + which has attracted so much attention during the past ten + days. The stalwart deputy who guards the entrance to this + judicial precinct was compelled to employ his entire + strength and power of persuasion to keep the eager, anxious + crowd from trespassing on the convenience and dignity of the + court. About ten o'clock the Court took the bench, and Col. + Ingersoll walked into the room, took off a broad-brimmed + felt hat, which gives the barrister, while he has it on, + somewhat the appearance of a full-grown, well-developed + Quaker in good standing in the society to which he belongs. + When he has the hat removed, however, the counsellor's + appearance undergoes a marked change. He then looks like the + crop-haired follower of the house of Montague in the + Shakespearean play. He sat down on a crazy old chair which + threatened every moment to break down beneath his weight, + and listened to the remarks of Judge Doolittle for the + remainder of the morning, until it came his time to talk. + Colonel Ingersoll never troubles himself to take notes of + anything. What he cannot recollect he does not have any use + for. + + Judge Doolittle occupied the morning session until the time + for adjournment at one o'clock, with a review of the case on + the side of the defence. He was followed by Mr. Ingersoll in + the afternoon. + + At two o' clock the court-room was more crowded than before, + and at that hour Mr. Ingersoll appeared in the forum and + delivered his speech in behalf of the defendant.—The Times, + Chicago, Ills., May 23, 1876. +</pre> + <p> + IF the Court please and the gentlemen of the jury: Out of an abundance of + caution and, as it were, an extravagance of prudence, I propose to make a + few remarks to you in this case. The evidence has been gone over by my + associates, and arguments have been submitted to you which, in my + judgment, are perfectly convincing as far as the innocence of this + defendant is concerned. I am aware, however, that there is a prejudice + against a case of this character. I am aware that there is a prejudice + against any man engaged in the manufacture of alcohol. I know there is a + prejudice against a case of this kind; and there is a very good reason for + it. I believe to a certain degree with the district attorney in this case, + who has said that every man who makes whiskey is demoralized. I believe, + gentlemen, to a certain degree, it demoralizes those who make it, those + who sell it, and those who drink it. I believe from the time it issues + from the coiled and poisonous worm of the distillery, until it empties + into the hell of crime, dishonor, and death, that it demoralizes everybody + that touches it. I do not believe anybody can contemplate the subject + without becoming prejudiced against this liquid crime. All we have to do, + gentlemen, is to think of the wrecks upon either bank of the stream of + death—of the suicides, of the insanity, of the poverty, of the + ignorance, of the distress, of the little children tugging at the faded + dresses of weeping and despairing wives, asking for bread; of the men of + genius it has wrecked; the millions struggling with imaginary serpents + produced by this devilish thing. And when you think of the jails, of the + almshouses, of the asylums, of the prisons, of the scaffolds upon either + bank—I do not wonder that every thoughtful man is prejudiced against + the damned stuff called alcohol. And I know that we, to a certain degree, + have to fight that prejudice in this case; and so I say, for this reason + among others, I deem it proper that I should submit to you, gentlemen, the + ideas that occur to my mind upon this subject. + </p> + <p> + It may be proper for me to say here that I thank you, one and all, for the + patience you have shown during this trial. You have patiently heard this + testimony; you have patiently given your attention, I believe, to every + word that has fallen from the lips of these witnesses, and for one I am + grateful to you for it. + </p> + <p> + Now, gentlemen, understanding that there is this prejudice, knowing at the + time the case commenced that it existed, I asked each one of you if there + was any prejudice in your minds which in your judgment would prevent your + giving a fair and candid verdict in this case, and you all, honestly, I + know, replied that there was not. The district attorney, Judge Bangs, + stated to you in the opening of this case, for the purpose of preparing + your minds for the examination of this testimony, that you must, first of + all, divest your minds of sympathy. I do not say that, gentlemen, neither + would I say it were I the attorney of the Government of the United States, + but I do say this: Divest yourselves of prejudice if you have it, but do + not, gentlemen, divest yourselves of sympathy. What is the great + distinguishing characteristic of man? What is it that distinguishes you + and me from the lower animals—from the beasts? More, I say, than + anything else, human sympathy—human sympathy. Were it not for + sympathy, gentlemen, the idea of justice never would have entered the + human brain. This thing called sympathy is the mother of justice, and + although justice has been painted blind, never has she been represented as + heartless until so represented by the district attorney in this case. I + tell you there is no more sacred, no more holy, and no purer thing than + what you and I call sympathy; and the man who is unsympathetic is not a + man. Gentlemen, the white breast of the lily is filthy as compared to the + human heart perfumed with love and sympathy. I do not want you to divest + yourselves of sympathy, neither do I want you to try the case entirely + upon sympathy, but I want you sympathetic enough to put yourselves + honestly in the place of this defendant. Now, gentlemen, as a matter of + fact, this case resolves itself into simply one point; all the rest is + nothing; all the rest is the merest fog that can be brushed from the mind + with a wave of the hand, and it is all resolved down to simply one point, + and that is: Is Jacob Rehin worthy of credit? Has Jacob Rehm told against + this defendant a true story? + </p> + <p> + Now, that is all there is in this case. The other points that they raise, + and which I shall allude to before I get through, are valuable only as + they cast a certain amount of suspicion upon the defendant, but the real + point is, and the attorneys for the Government know it, Is Mr. Jacob + Rehm's story worthy of credit? Did he tell the truth? Judge Bangs felt + that was the only question, and for that reason, in advance, he defended + the reputation of Jacob Rehm for truth and veracity; and he made to the + jury this remarkable statement: "The reputation of Jacob Rehm for truth + and veracity is good. It spreads all over the city of Chicago like + sunlight." That was the statement made by the district attorney of the + United States. I do not believe that he would swear to that part of his + speech. It was an insult to every person on this jury. It was an insult to + this court; it was an insult to the intelligence of every bystander, that + the reputation of Jacob Rehm spread like sunlight all over the city of + Chicago! My God! what kind of sunlight do you mean? Think of it! + </p> + <p> + Now, then, gentlemen, he knew it was necessary to defend the character of + Mr. Rehm; he knew it was necessary to defend that statement. He knew that + the testimony of Mr. Rehm was the only nail upon which the jury could + possibly hang a verdict of guilty in this case. + </p> + <p> + And now I propose to examine a little the testimony of Mr. Jacob Rehm. I + believe it was stated by Judge Bangs that one of the best tests of truth + was that a lie was at war with all the facts in the universe, and that + every fact standing, as it were, on guard, was a member of the police of + the universe to arrest all lies. + </p> + <p> + Let me state another truth. Every fact in the universe will fit every + other fact in the universe. A lie never did, never will, fit anything but + another lie made to fit it. Never, never! A lie is unnatural. A lie, in + the nature of things, is a monstrosity. A lie is no part of the great + circle, including the universe within its grasp, and consequently, as I + said before, will fit nothing except another lie. Now, then, to examine + the testimony of a witness, you examine into its naturalness, into its + probability, because you expect another man to act something as you would + under the same circumstances. We have no other way to judge other people + except by our own experience and an authenticated record of the experience + of others, consequently, when a man is telling a story, you have to apply + to it the test of your own experience, and as I say the recorded tests of + other honest men. + </p> + <p> + Now, let us suppose just for a moment that the testimony of Mr. Jacob Rehm + is true. Let us suppose it. It has been stated to you, and admirably + stated, by Judge Doolittle,—admirably stated,—that it was the + height of absurdity to suppose that a man would do as he did for nothing. + But let me put it in another light somewhat. According to the testimony of + Mr. Jacob Rehm, he first tried to stop this stealing. Nobody offered him + any money to stop it, but he simply went to the collector, Irwin, and said + they were stealing, and that it must be stopped; and thereupon Collector + Irwin changed the gaugers for the purpose of stopping the stealing. A few + days thereafter, somebody came to him and wanted the stealing to commence, + and he told them they would have to pay for it, and the amount they would + have to pay for it, and he then went to Collector Irwin, whom he supposed + at that time to be a perfectly honest and upright man, and told him, in + short, that they wanted to steal, and would give five hundred dollars a + month. Irwin said, "Go ahead." + </p> + <p> + He admits that they did steal. He admits that they made a bargain with + him. He admits that that happened, and he assigned all these gaugers and + store-keepers. He admits that he did that for two years. He admits that he + received at least one hundred and twenty thousand dollars of this money. + He admits that in order to carry out this scheme he knew that every + distiller would have to sign a lie every time he made a report to the + Government. He admits that he knew every gauger would have to swear to a + lie at the end of every month in his report of the transactions of each + day. He admits that every store-keeper would be guilty of perjury every + time he made a report. He admits that he knew that the thing that he was + committing for two years was a daily penitentiary offence. He admits that + he put himself in the power of all these gaugers and all these + store-keepers, and all these distillers and rectifiers,—put it in + their power to have him arrested for a penitentiary offence at any moment + during the whole two years, and yet he tells you that he did this + absolutely for nothing! He tells you every cent he received he divided and + paid over; that he never kept a solitary dollar, except it may be for a + box of cigars. I want the attorney for the Government to tell this jury + that he believes that story. And if he does tell you so, gentlemen, I will + give you notice now that you need not believe any other word Mr. Ayer says—if + he says he believes that. + </p> + <p> + Now, then, what more? He knew that all these men were committing these + penitentiary offences, and that he was putting himself in the power of all + these men; and what was his motive? What, gentlemen, was his object? + </p> + <p> + It is impossible for me to imagine. If he got no money, if he made nothing + out of this transaction, it is impossible for me to imagine why he + embarked in such a course of crime. Why then did he say to you, gentlemen, + that he paid all this money over? It was to build up a reputation with + you. It was to make you think that whereas he paid this all over, that + whereas he did all this business simply to accommodate his friends, that + he was worthy of credit in his statement of this case. He told you that he + did not keep a dollar simply to make a reputation with you. What did he + want a reputation with you for? So that he would be believed. And what did + he want to be believed for? So that he could send Munn to the penitentiary + and, as the price of Munn's incarceration, get his own liberty. That is + the reason he swore it, and there is no other reason in the world. Is it + probable a man would commit all these crimes for nothing? Is it possible + that he would hire and bribe other men to commit these crimes for nothing? + I ask you; I ask your common sense; I appeal to your brains: Is it + probable that he would do all that absolutely for nothing? Is it probable + he would lay himself liable to the penitentiary every hour in the day for + two years for nothing? There is and can be but one answer to such a + question as that. Why, gentlemen, if his statement is true that he did all + this for nothing, he is the most disinterested villain, the most + self-sacrificing and self-denying thief of which the history of the world + gives any record. Is it possible? + </p> + <p> + Is it possible, I say, that a man would make himself the sewer of all the + official rot in this city, in which was deposited the excrement of frauds? + Is it possible he would turn himself into a scavenger cart into which + should be thrown all the moral offal of the city of Chicago for nothing? + Whoever answers that question in the affirmative is, in my judgment, an + idiot. Nobody can. Nobody has a mind so constructed that it can lodge an + affirmative answer to that question within its brain. + </p> + <p> + What next? He tells you that Munn was in this plot; and that he, Mr. Rehm, + at the same time was selling protection to these distillers. No distillers—and + you know it—would have given him ten dollars a barrel unless they + expected protection. He then was engaged in the sale of protection, was he + not? Did you ever know of a vender crying down his own wares? Did you ever + hear of a merchant crying down the quality of the cloth he wished to sell? + Did you ever hear of a grocery man endeavoring to cry down that which he + wished you to buy? + </p> + <p> + Jacob Rehm was selling protection at ten dollars a barrel, and sometimes + asking twelve dollars and fifty cents. Was it not natural for him to + endeavor to convince distillers that he had plenty of protection to sell? + Was it not natural for him to make the distillers believe, "If you will + give me ten dollars a barrel you will have perfect protection"? Would it + be natural for him to say, "I will protect you for ten dollars a barrel, + and yet I have none of the officers in my pay"? They would say, "What kind + of protection have you got, sir?" Would it not be natural for him to make + out his protection as good as he possibly could? Would it not be natural + for him to tell you, "I have got all these officers on my side, from the + lowest gauger to the gentleman who presides over the internal revenue + department at the city of Washington"? The more protection he had the more + money he could get, and consequently it would not be natural for him to + cry down his own protection. + </p> + <p> + If Mr. Munn was in it, and if Mr. Munn at that time was the superior + officer of the collector, and this man had protection to sell, would he + not have said that Munn was also in the ring? When he was trying to sell + protection to George Burrows at ten dollars a barrel, George Burrows asked + him if Munn was in the ring and he said he was not. If Mr. Munn had been + why didn't he say that Munn was? For the reason that that would make his + protection appear to be of a better quality, and he could have sold it at + a better price. But he said "no," and that they did not need him, because + they could manage him, and fool him through this man Bridges, and you will + recollect that Bridges was appointed directly by the Government and not by + Munn; and Bridges reported directly to the Government and not to Munn. He + had nothing to do with him one way or the other, except that they were + both in the Revenue Department. + </p> + <p> + Now, I say if it is possible that a man can cry down his own wares that he + wishes to sell, then you may say that the statement of Rehm is natural. + </p> + <p> + Now, gentlemen, why should he inform Burrows that Munn was about to make a + visit here? In order that Burrows might have an opportunity to have his + house put in order. Why should he have sent notices to other distillers + that Munn was coming? Why should he tell them to put their houses in + order? So as to be ready for a visit from Mr. Munn. It may be that the + counsel for the Government will say, "This shows the infinite fidelity of + this infinite rascal." + </p> + <p> + Now, I will come to this part of my argument again, but the next thing I + will speak of is his story, where he says that he actually paid the money + to Munn himself, and if there is anything left of that after I get through + with it you are at perfect liberty to find the defendant guilty. You must + recollect that he had a bargain. Now, according to his story, he paid this + money to Bridges. You must recollect, according to his story, that Munn at + that time was one of the conspirators, had been receiving money—a + half of thirty-five thousand dollars or forty-five thousand dollars having + gone into his pocket. Recollect that. He goes over one day to the + rectifying-house of Roelle & Junker, and there are some barrels found, + the stamps of which had not been scratched. Mr. Munn was assured by Roelle + that there was no fraud. Roelle still swears that there was no fraud. He + was afterward assured by Junker that there was no fraud. Junker still + swears that there was no fraud. + </p> + <p> + Now, what does Rehm come in to swear? Rehm says that Bridges came to him + and told him that Munn was going to make trouble—going to make + trouble about these barrels that had the stamps on that were not scratched + off. Why did not Rehm say to him, "How is he going to make a fuss? He has + got twenty thousand dollars of money already. He is in the conspiracy. He + is a nice man to make a fuss! What is he going to make a fuss about?" + Would it not have been just as likely that Bridges should have made a fuss + as that Munn should have made it? Bridges, according to the testimony of + your immaculate witness, was in this no more than Munn—not one + particle. And why was Munn going to make trouble? Mr. Rehm has endeavored + to answer that question. Mr. Rehm then goes to Munn, sent there by Bridges—it + would be very hard to find out why he did not give the money to Bridges,—but + he went to Munn and says: "You are going to make some trouble about what + you found at Roelle & Junker's?" "Yes." + </p> + <p> + "Why?" + </p> + <p> + "Because," he says, "the men at work there—the persons employed + there—will make a fuss about it, but they will see it and say that + it is overlooked." + </p> + <p> + Now, that is the reason that Rehm puts in the mouth of the defendant. + Afterward he goes himself to Junker and advises him to give him five + hundred dollars, and Junker proposes one thousand dollars, and gives him + one thousand dollars, and then he sends for Munn and he comes to his + office, and he hands him one thousand dollars. + </p> + <p> + Now, gentlemen, the reason Munn gave was that the men there would notice + it and make a disturbance about it. + </p> + <p> + Well, then, why not pay the men? What is the use of paying Munn? If this + was done to prevent the men working at the rectifying-house from making + trouble, why not pay the men? Why not pay the men who were going to make + the trouble? Why give an extra thousand dollars to a conspirator to whom + you had already given twenty thousand dollars, and who, at that time, + according to the testimony of Rehm, was officially rotten? Why not give + the money to men who were going to make the trouble? And the next question + is this—and if you will recollect the testimony of Roelle, he swears + that when the defendant came to the rectifying-house, he (Roelle) was + alone. He swears that he was alone. He swears that all the rest had gone + to dinner, and according to Roelle's testimony there was nobody there but + himself. Where were the men that were going to make this disturbance? + Where were the men that were going to notice this oversight? Where were + the men that were going to stir up difficulties at Washington or any other + place? According to the testimony of Roelle those people were at dinner, + and where, gentlemen, is the philosophy of that lie which they have told? + Where is it? Why should he have paid Munn money? Why didn't he pay it to + Bridges? If it was for the purpose of stopping the men from making + trouble, why not pay it to the men they wished to stop? I ask the + gentlemen to answer that question. I ask the gentlemen to tell us what men + were in danger of making this trouble? Was it the gauger who received six + hundred dollars a month for being a liar and a thief? Was it the + book-keeper who, every report that he made, swore to a lie? Was there any + danger of these liars and of these thieves making a fuss on their own + account? Was there any danger of that gauger stopping his own pay? Was + there any danger of that book-keeper trying to throw himself out of + employment? Was there any danger of any thief or of any conspirator saying + anything calculated to bring this rascality to the surface? If a bribed + gauger would not tell it; if a bribed book-keeper would not tell it, I ask + the Attorney-General for the Government, would Munn tell it, who had + received, according to your evidence, over twenty thousand dollars of + fraudulent money? Was there any danger of Munn turning state's evidence + against himself? Was there not just as much danger of Bridges making a + fuss as Munn? Was there not, according to their testimony, the same danger + of Rehm himself going to Washington as there would be of a bribed gauger, + and of a lying book-keeper? Gentlemen, your story won't hang together. + There is no philosophy in it, and it will not fit anything except another + lie made on purpose to fit it; and it has got to be made by a better + mechanic than Jacob Rehm. + </p> + <p> + Now, then, gentlemen, what more? The district attorney told you, and I was + astonished when he told it—I was astonished—he said that the + testimony of Jacob Rehm was not impeached; that, on the contrary, it was + sustained by these other witnesses. Had he made such a statement under + oath I am afraid an indictment for perjury would lie. He said that the + testimony had been sustained rather than impeached. How sustained? + </p> + <p> + "Mr. Rehm, did you ever give Mr. Burroughs notice that Mr. Munn was coming + in order that he might put his house in order?" + </p> + <p> + Mr. Rehm says, "No." + </p> + <p> + We then asked Mr. Burroughs, "Did Mr. Rehm ever give you such notice?" and + he corroborates Mr. Rehm by saying "Yes," if that is what you call + corroboration. + </p> + <p> + "Did you tell Mr. Hesing that Munn was not in it?" "I did not." "Mr. + Hesing, did Mr. Rehm tell you that Munn was not in it." "He did." + </p> + <p> + That is another instance of the attorney's idea of corroboration. + </p> + <p> + "Did you tell Hesing that Hoyt was innocent?" "I did not." "Mr. Hesing, + did Mr. Rehm tell you that Hoyt was innocent?" "He did." + </p> + <p> + Another corroboration. + </p> + <p> + "Did you tell him that Munn never was in it—that Munn was innocent?" + "No." + </p> + <p> + We then asked him, + </p> + <p> + "Did he tell you that?" "He did." + </p> + <p> + We say to Burroughs, + </p> + <p> + "In 1874, in 1873, in 1872, did Rehm tell you that Munn was not in it?" + "He did." + </p> + <p> + That is another idea I suppose of corroboration. + </p> + <p> + Q. Mr. Rehm, how much money did the house of Dickenson &c Leach give + you? A. Twenty-five thousand dollars. + </p> + <p> + Q. Will you swear they did not give you thirty? A. I will. + </p> + <p> + Mr. Leach on the stand: + </p> + <p> + Q. How much money did your house give Rehm? A. Between forty thousand and + fifty thousand dollars. + </p> + <p> + Another instance of corroboration. + </p> + <p> + We then called Mr. Burroughs upon the stand. He belonged to the same + house: + </p> + <p> + Q. How much money did you give Jacob Rehm? A. Fifty-two thousand dollars. + </p> + <p> + Another instance of corroboration. + </p> + <p> + Q. Mr. Rehm, did Mr. Abel ever give you any money? A. Yes, sir. + </p> + <p> + Q. How many times? A. Once. + </p> + <p> + Q. How much? A. Five hundred dollars. + </p> + <p> + Q. Will you swear it was not a thousand? A. Yes. + </p> + <p> + Mr. Abel take the stand. + </p> + <p> + Q. Did you ever pay Jacob Rehm any money? A. Yes. + </p> + <p> + Q. How often? A. Once. + </p> + <p> + Q. How much? A. Two thousand dollars. + </p> + <p> + And that is another instance of the corroboration of Jacob Rehm. And when + a man is thus corroborated, gentlemen, his reputation for truth and + veracity "spreads like sunlight all over the city of Chicago." There was + not a circumstance, there was not a statement made by Mr. Rehm except it + was made in the presence of Bridges, who is in Canada; of Irwin, who is in + his grave, or in the presence of the defendant, who stands here with his + mouth closed—not one solitary circumstance, with those exceptions, + that has not been contradicted. Can you believe this man? Can you believe + this man who has been contradicted by every one brought upon the stand? + Can you take his word after he has sworn as he has? I tell you, gentlemen, + you cannot do it, and as Judge Doolittle told you, if there is an infamous + crime in the world, it is the crime of perjury. All the sneaking + instincts; all the groveling, crawling instincts unite and blend in this + one crime called perjury. It clothes itself, gentlemen, in the shining + vestments of an oath in order that it may tell a lie. + </p> + <p> + Perjury poisons the wells of truth, the sources of justice. Perjury leaps + from the hedges of circumstance, from the walls of fact, to assassinate + justice and innocence. Perjury is the basest and meanest and most cowardly + of crimes. What can it do? Perjury can change the common air that we + breathe into the axe of an executioner. Perjury out of this air can forge + manacles for free hands. Perjury out of a single word can make a hangman's + rope and noose. Perjury out of a word can build a scaffold upon which the + great and noble must suffer. It was told during the Middle Ages and in the + time of the Inquisition, that the inquisitors had a statue of the Virgin + Mary, and when a man was brave enough to think his own thoughts he was + brought before this tribunal and before this beautiful statue, robed in + gorgeous robes and decked with jewels, and as a punishment he was made to + embrace it. The inquisitor touched a hidden spring; the arms of the statue + clutched the victim and drew him to a breast filled with daggers. Such, + gentlemen, is perjury, and if you take into consideration the evidence of + this witness when you retire to the jury-room, you, in my judgment, will + commit an outrage. Every man here should spurn that man from the threshold + of his conscience as he would a rabid cur from the threshold of his house. + </p> + <p> + Is there any safety in the world if you take the testimony of these men, + especially when character avails nothing? Is there any safety in human + society if you will take the testimony of a perjured man? Is there any + safety in living among mankind if this is the law,—if the statement + of a confessed conspirator makes the character of a great and good man + worthless? For one I had rather flee to the woods and live with wild + beasts and savage nature. + </p> + <p> + Gentlemen, I know that you will pay no attention to that kind of + testimony. I know it. I know that you cannot do it. And why? You know that + that man is swearing a lie for the purpose of protection. You know that + that man is swearing a lie under the smile of the Government of the United + States. You know it. You know he expects a benefit from it. You know it. + When the other witnesses, Burroughs and Hesing, that swear here—understand + that they are swearing beneath a frown. Understand that they know that no + mercy will be extended to them by the attorneys that they have offended. + Understand that, and when you understand that a man is swearing to protect + himself, and when he is a man that will swear to a lie for money, of + course he will swear to a lie to keep himself out of the penitentiary, or + to shorten his time—I say, when you know a man is placed in that + condition, you have no right to give the least weight to his testimony, + not one particle. + </p> + <p> + What more, gentlemen. Why, they have another witness, and he has sworn + nothing. He has sworn nothing that has anything to do with this conspiracy + one way or the other. Nothing! The only evidence against the defendant, I + tell you, is the evidence of Mr. Jacob Rehm. + </p> + <p> + The defendant, gentlemen, was an officer of the revenue for several years. + When he came to Chicago, in 1871, the district attorney said the + distillers were here in full blast making illicit whiskey. If he had read + the evidence he knew better; if he had not, he had no business to make any + statement about it. In 1871, when the defendant came here, according to + the testimony of all these men, the distilleries were running straight, + and the rascality did not commence until the fall of 1872, when Jacob Rehm + sold protection to these distillers. The defendant had been here a year + before any frauds were committed. He was then supervisor of internal + revenue up to May, 1875. During that time he did many official acts; + during that time he wrote hundreds and thousands of letters; during that + time he made hundreds and hundreds of visits to all these establishments. + They have searched the records; they have had every nook and cranny looked + at by a hired detective, and all that they can possibly bring forward is + the beggarly account presented in this case: First, that there were four + or five barrels of rum without the ten cent stamps, and that, you know, is + a thing that ought to send a man to the penitentiary; next, twenty-five + barrels of which the stamps had not been scratched, but about which there + was no fraud. Ought a man to be sent to the penitentiary because he does + not seize a house when there has been a technical violation without any + fraud? A supervisor that will do it ought to be kicked out of office; he + ought to be kicked out of the society of honest and decent men, and if + this defendant was satisfied from the story of Roelle and Junker that + there had been no fraud committed by leaving the stamps on the twenty-five + barrels unscratched, and had seized that house, that would have been an + act of meanness, an act of oppression, which I do not believe even a + Government attorney would uphold unless he was hired in the case. Now, + what next did he do? The next thing he did he went to Golsen & + Eastman. Gentlemen, I do not care to speak much of Golsen. If there ever + was a man utterly devoid of such a thing as principle, if there ever was a + man that would read the statute against stealing, and stand in perfect + amazement that anybody ever thought of making such a statute, it certainly + must be Golsen. You heard him, and he is the man that said he told lies in + business; he is the man that said he did not think it was wrong to swear + lies in business, and his business now is to keep out of the penitentiary; + that is his principal business, that is one of the gentlemen they have + hired, that is one of the gentlemen they have brought forward here to + offend the nostrils of decent men. Now, then, he went to Golsen & + Eastman. Judge Bangs told you in his speech that Golsen then and there + explained his infamy to Munn. + </p> + <p> + If there is anything which makes my blood boil it is to have the evidence + misstated for the purpose of putting a man in the penitentiary. I never + will make a misstatement to add to my reputation. + </p> + <p> + I recollect that evidence so perfectly. I recollected it so clearly that + it shocked me when he stated that the man Golsen explained all his + rascality and villainy to Munn. Why, I never heard of such evidence. What + was it? It was said by Mr. Ayer in the opening that in the presence of + Munn, Golsen said to Bridges, "It is not now all right," or something like + that, "but I can make it right," or that he said in the presence of Munn, + to Bridges, something that should have put Munn on his guard. I heard + that, and I heard Golsen, when he came on the stand, say that he said that + to Bridges, and you will bear me out when I say that I asked him in his + cross-examination, "Did Munn hear it? Did you say it thinking that Munn + did hear it?" and he did not pretend any such thing. He did not pretend + it, and I tell you I was hurt, I was touched, I admit it, when Judge Bangs + made the statement. I have an interest in this case. I am not only an + attorney in this case, but, gentlemen, I am proud to say I am the + defendant's friend. I am more than his attorney; I am his friend, and when + an attorney makes a statement like that I must say it shocks me. Golsen + did not swear that he explained his villainy to Munn—not a word of + that kind or character. On the contrary he simply said he told this to + Bridges, not to Munn, and that Munn did not hear it. + </p> + <p> + What more? Col. Eastman was there at the same time. + </p> + <p> + Col. Eastman says he did everything he could to impress upon Mr. Munn that + it was an honest transaction. What more? Then he went through the + rectifying-house like an honest man. How did he act? Like an honest man. + Did he act like somebody trying to cover up a fraud? No, he acted like an + honest man, and I tell you up to that time Mr. Eastman had borne a good + reputation—a good character in the state of Illinois. Munn believed + what he said. He believed there had been an accident. Munn believed they + made the charge in the books not for the purpose of covering up a fraud, + but for the purpose of making the books agree with the facts. So much for + that. + </p> + <p> + I do not recollect any others. I do not recollect any others that amount + to anything—that can throw the slightest suspicion on this + defendant. If he were upon trial now for failing to make a report; if he + were on trial now for malfeasance or non-feasance or negligence as an + officer, it would be proper to bring all these things before this jury, + but that is not the case. He is here for entering into a conspiracy to + defraud the Government, and these things that they have shown outside,—and + it is perfectly amazing to me they have not shown more,—it is + perfectly amazing to me that a man could be in that position the years he + was without making more mistakes—I say, all they prove in the world + is (give them their very worst construction), that he was guilty of some + negligence as an officer, but they do not attempt to prove that he was in + a conspiracy with Mr. Jacob Rehm to steal. + </p> + <p> + The next point, gentlemen, to which I wish to call your attention is the + testimony of Mr. Rehm before the grand jury. You recollect when we put on + Mr. Ward to show what Rehm testified to before the grand jury, that Mr. + Ayer suggested that we had better have the notes. I saw then that he was + extremely anxious for Schlichter to get on the stand. Then we introduced + Mr. Oleson, and he still spoke about having the notes. I understood that + it was a part of his case to have Schlichter brought on the stand in some + way. Now, then, it does not make any difference to me whether Schlichter + swore to the truth or not. Not a particle, not a particle, but I think he + did. But if he did swear a lie, and he will swear a lie every chance he + gets, in the course of time he will get such a character and such a + reputation that a district attorney of the United States will stand up and + say: "Schlichter's reputation is good; it spreads like sunlight all over + the city of Chicago." Now, then, you have been told by Judge Doolittle all + the men who swore that he did swear before the grand jury, that he did not + know of any crookedness. You have heard the testimony of men who swear + that he did swear before the grand jury that he knew of no fraud. If he + did so swear he perjured himself or he has perjured himself now. But what + more? Whether he swore that or not, he swore this according to their own + statements: + </p> + <p> + Q. At the time you burned your books had you any knowledge that they + contained any evidence of fraud against the Government? A. No, sir. + </p> + <p> + Now, he knew the distillers used a certain amount of malt to make a + certain amount of high-wines, and he knew the more malt they used the more + high-wines they would have to account for, and if they bought twice as + much malt as was necessary to make the whiskey upon which they paid the + tax, he knew that that was evidence that they had been running without + paying the tax. If it takes a certain amount of malt for a gallon of + high-wines, and his books would show they had used twice as much malt as + they had paid taxes, according to gallons, then he did know that his books + did contain evidence showing that they had committed fraud. And when he + said his books did not, he told what he knew was a deliberate lie. What + more does he say? He says these books were burned up about the first of + May just to get them out of the way,—for no earthly object except + simply to get them out of the way,—and he swears that he sold to + nearly all these distillers malt, and he knew that the amount of malt sold + to each of these distilleries would determine the amount of whiskey they + had made, that is, not into a barrel or into a gallon, but approximately, + and he knew the more malt they used the more tax they would have to show + that they had paid. And he knew that his books would be evidence against + every distiller in the city. He knew that, and yet he swears here, + squarely and fairly, that at the time he burned his books he did not know + that they were of any value as evidence against these distillers. + </p> + <p> + Now, gentlemen, I want to call your attention to another thing. When I + asked him, when he was called here on the stand, if he was not asked about + crookedness, whether he was not asked about fraud, at first he stumbled + into telling the truth, as far as that was concerned, as far as being + asked was concerned, and then told a lie as to how he answered it. Now, + let me read it to you; you may have forgotten it. There is nothing like + having these things printed: + </p> + <p> + Q. Were you sworn before that grand jury by anybody? A. Yes, sir. + </p> + <p> + Q. Were you asked any question about this whiskey business? A. Yes, sir. + </p> + <p> + Q. Were you asked by one of the grand jurors whether you knew of any + illicit whiskey being made in this city by any of those distilleries? A. + No, sir. + </p> + <p> + Q. I ask you in regard to your answer to that, if you did not say you did + not? A. I did not. + </p> + <p> + Q. What did you say? A. The question was not asked in that way. + </p> + <p> + Q. Well, wait until I ask you, and then you can tell. Were you not asked + if you knew of any crookedness about whiskey, and didn't you reply "No"? + A. No; I answered "Yes." + </p> + <p> + There is his testimony. He was afraid then that he was caught, and he was + going to swear deliberately that he swore before the grand jury, that he + did know of crookedness. Then he changed his idea, and says afterward that + it is about the one hundred and fifty barrels. He says now, "Put your + question." Then I put this question—"Put your question." [Question + repeated.] "A. The question was not put to me in that way." + </p> + <p> + Now, he gets out of it and says it was the one hundred and fifty barrels + he talked about; but I asked him then if he was not asked if he did not + know about any crookedness here and how he answered it, and he says that + he answered it "Yes." That is, before he found out that it was necessary + to change his answer or to change his mind upon that question. That is + what he says. And it is utterly impossible, gentlemen, to get out of the + fact that he did, before that grand jury, swear that he knew of no + crookedness. You can not get out upon Mr. Roelle's testimony. You can not + get out upon the idea that Schlichter put it in. Schlichter did not put it + into the memory of the old man Samson. Schlichter did not write it in the + memory of Mr. Hoag. Schlichter did not write it in the consciousness of + Mr. Oleson. Schlichter did not write it in short-hand in the head of J. D. + Ward. Schlichter, I tell you, by his short-hand necromancy, has not + changed six or seven men into liars whether he put that in the second line + from the top or not. He cannot do that with his short-hand, gentlemen. He + could not make old Mr. Samson come here and say, "I asked that question + myself; I thought that when he was there he was the head centre of all the + rascality. And so just before he went out I put one of those general, + pinching questions as to whether he knew anything. It was a kind of + conscience scraper." The old man put that question just as these witnesses + were going out: "Do you know anything about any fraud? Do you know + anything about any crookedness?" It was a kind of a last question that + would cover the case, and the old man recollects that he put it to Jacob + Rehm and he recollects why he put it to him, because he believed at that + time that he was the head centre of the villainy. Mr. Hoag says the same + thing. Mr. Hoag says that he looked upon him as the great rascal in the + business; and he recollects distinctly that he asked him that question; + and he recollects as distinctly how he answered it. J. D. Ward was the + attorney of the United States, and he swears to it that he recollects it + perfectly. Oleson was an attorney of the United States. He says that he + recollects it perfectly. And yet is this all to be accounted for, + gentlemen, by saying that Mr. Schlichter inserted it in his notes and that + all these other gentlemen are mistaken? The fact is, gentlemen, that Mr. + Rehm, when he was there, had not made up his mind to vomit; he had not yet + made up his mind that he could make a bargain with the United States to + get out of punishment. He did not know at that time that he need not go to + the penitentiary if he would furnish a substitute. He did not know, + gentlemen, at that time that he could have any understanding with anybody; + if he would bring better blood than his they would deal lightly with him. + He did not know at that time that two owls could be traded off for an + eagle. He did not know at that time that two snakes could be traded off + for a decent man. As soon as he found that out, then, instead of saying + that he did not know anything about any crookedness; instead of saying + that he did not know anything about any fraud, he said, gentlemen, "I know + all about it. I know all of them; every one of them." + </p> + <p> + Now, gentlemen, I want you to put against that man's testimony the lies he + swore to himself. I want you to put against that man's testimony the + improbability that he would commit numberless crimes for nothing. I want + you to put against that man's testimony the testimony of every one who has + contradicted and disputed him. I want you to put against that man's + testimony the idea and the fact that he warned these other men against the + approach of Munn. I want you to put against that man's testimony all the + circumstances of the lies he has sworn; and I want you, in addition to + that, to put against that man's testimony the evidence of this defendant. + </p> + <p> + You have been told by the district attorney—and if I have said + anything too strong in the warmth of this discussion I beg his pardon. I + have known Judge Bangs a long time, I have been his friend, I respect him; + but I must say I felt a little outraged at what he said, because he said + he had sympathy with this defendant. He got up here and said that the + defendant bore a most excellent reputation. He got up and said that he + sympathized with him, and all at once I saw his sympathy was a cloak under + which he concealed a dagger to stab him. Now, then, he says good character + is nothing. Good character is nothing! Good character, gentlemen, is not + made in a day. It is the work of a life. The walls of that grand edifice + called a good character have to be worked at during life. All the good + deeds, all the good words, everything right and true and honest that he + does, goes into this edifice, and it is domed and pinnacled with lofty + aspirations and grand ambitions. It is not made in a day, neither can it + be crumbled into blackened dust by a word from the putrid mouth of a + perjurer. Let these snakes writhe and hiss about it. Let the bats fly in + at its windows if they can. They cannot destroy it; but above them all + rises the grand dome of a good character, not with the bats and snakes, + but up, gentlemen, with eagles in the sunlight. They cannot prevail + against a good character. Is it worth anything? If ever I am indicted for + any offence and stand before a jury, I hope that I shall be able to prove + as unsullied a reputation as Daniel W. Munn has proved. And when I read + those letters, not only saying that his character was good, but adding + "above reproach," it thrilled me and I thought to myself then, "if ever + you get in trouble will anybody certify as splendidly and as grandly to + your reputation?" There is not a man of this jury that can prove a better + reputation. There is not a judge on the bench in the United States that + can prove a better reputation. There never was and there never will be an + attorney at this bar that can prove a better reputation. There is not one + in this audience that can prove a better reputation. And yet we are told + that that splendid fabric called a good character cannot stand for a + moment against a word from a gratuitous villain—not one moment. + </p> + <p> + Such, gentlemen, is not the law of this country. Such, gentlemen, never + will be the law of this land or of any other. I deny it, and I hurl it + back with scorn. A good character will stand against the testimony of all + the thieves on earth. A good character, like a Gibraltar, will stand + against the testimony of all the rascals in the universe, no matter how + they assail it. It will stand, and it will stand firmer and grander the + more it is assaulted. What is the use of doing honestly? What is the use + of working and toiling? What is the use of taking care of your wife and + your children? Where is the use, I say, of being honest in your business? + What is the use of always paying your debts as you agree? What is the use + of living for others? Character is made of duty and love and sympathy, + and, above all, of living and working for others. What is the use of being + true to principle? What is the use of taking a sublime stand in favor of + the right with the world against you? What is the use of being true to + yourself? What is the use, I say, if all this character, if all this noble + action, if all this efflorescence of soul can be blasted and blown from + the world simply by a word from the mouth of a confessed felon? And yet we + are assured here in this august tribunal, in a Federal court of the United + States, where the defendant stands under the protection of the the + Constitution of his country, that his character is absolutely worthless. + </p> + <p> + They say, "Why don't you bring somebody to impeach Mr. Jacob Rehm?" Why? + because he has impeached himself. + </p> + <p> + To impeach a man is the last method. If he tells an improbable story, that + impeaches him. If he tells an unnatural story, that impeaches him. If you + prove he has sworn a different way, that impeaches him. If you show he has + stated a different way, that impeaches him. What is the use of impeaching + him any more? That would be a waste of time. + </p> + <p> + Now, gentlemen, I say to you, and I say to you once for all, I want you to + get out of your minds and out of your hearts any prejudice against this + man on account of these times. I understand now that in every man's + pathway hiss and writhe the serpents of suspicion. I understand now that + every man in high place can be pointed at with the dirty finger of a + scurvy rascal. I understand that. I understand that no matter how high his + position is, that any man, no matter how low, how leprous he may be, what + a cancerous heart he may have, he can point his finger at the man high up + on the ladder of fame, and the man has to come down and explain to the + wretched villain. I understand that; but these prejudices I want out of + your mind. I want you to try this case according to the evidence and + nothing else. I want you to say whether you believe the testimony of these + conspirators and scoundrels. I want you to say whether you are going to + take the testimony of that man, and if you bring in a verdict of guilty I + want you to be able to defend yourselves when you go to the defendant and + tell him: "We found you guilty upon a man's testimony who admitted that he + was a thief: who admitted that he was a perjurer; who admitted that he + hired others to swear lies, and who committed crimes without number year + after year." I want you to say whether that is an excuse to give to him. + Is it an excuse to give to his pallid, invalid wife? Is it an excuse to + give to his father eighty years old, trembling upon the verge of the + grave: "I sent your son to the penitentiary upon the evidence of a + convicted thief"? I say is it an excuse to give to his weeping wife? Is it + an excuse to give to his child: "I sent your father to the penitentiary + upon the evidence of Jacob Rehm"? There is not one of you can go to the + child, or to the sick wife, or to the old man, or to the defendant + himself, and without the blush of shame say: "I sent you to the + penitentiary upon the evidence of Jacob Rehm." You cannot do it. It is not + in human nature to do it. + </p> + <p> + Now, gentlemen, there is one other thing I want to say. Suspicion is not + evidence. Suspicious circumstances are not evidence. All the suspicion in + the world, all the suspicious circumstances in the world, amount not to + evidence. I want to say one more thing. They say that the testimony of a + thief ought to be corroborated. By whom? another thief? No. Because that + other thief wants corroboration, and that other thief would want + corroboration, and so on until thieves ran out, which I think would be a + long time in this particular community at this particular time. Understand + that whatever one thief swears, that it is not corroborated because + another thief swears to the same thing, and upon the point upon which + Judge Doolittle dwelt so splendidly he must be corroborated upon the exact + point. For instance, Mr. Munn went to his house, Mr. Munn went to his + office, and another man says, I saw him there. That is not corroboration. + He must be corroborated in the fact that he gave him the money, not that + Munn went to his house—not that he had an opportunity to give him + the money—not that he was there, but he must be corroborated as to + the exact, identical point that makes the guilt. + </p> + <p> + Now, gentlemen, I am going to leave this case with you. I feel a great + interest in it. The defendant feels an infinite interest in it, infinite, + I tell you. It is all he has on earth, all he has is with you. You are + going to take his hopes; you are going to take his aspirations; you are + going to take his ambition; you are going to take his family; you are + going to take his child; you are going to take everything he has in this + world into your power. It is a fearful thing to take this responsibility. + I know it. But you are going to take it—his future, everything he + has dreamed and hoped for, everything that he has expected to attain—his + character, everything he has that is dear to him, and you are going to say + "Not guilty," or you are going to cover him with the mantle of infamy and + shame forever; you are going to disgrace his blood; you are going to bring + those that love him down with sorrow to their graves; you are either going + to do that or you are going to say, "We will not believe the testimony of + self-convicted robbers and thieves." And, gentlemen, I ask you, I implore + you, I beseech you, more than that, I demand of you that you find in this + case a verdict of "Not guilty." Put yourself in his place. Do you want to + be convicted on that kind of testimony? Do you want to go to the + penitentiary with that kind of witnesses against you? Do you want to be + locked up on that kind of testimony? Do you want to be separated from your + wife or your child on that kind of evidence? Do you want to be rendered + infamous during your life upon the testimony of such men as Golsen and + Conklin and Rehm? Do you? Do you? Do you? Does any man in the world + imagine that twelve honest men can be found that can rob another of his + citizenship, of his honor, of his character, of his home, and of his + entire fortune, simply upon the testimony of such scoundrels? No, + gentlemen. For myself, for this defendant, I have no fear. All I ask is + that you will give to this evidence the weight that it deserves. All I ask + of the prosecuting attorney in this case is that he do his duty. All I ask + of him is to state just as nearly as he can, as I have no doubt he will, + the evidence in the case. All I ask of him is that he give to all these + circumstances their due weight, and no more. I ask him to fight for + justice and not for his reputation. I ask him to fight for the honor of + the Government. I ask him to fight for the complete doing of justice, if + he can, but I hope he will leave out of the case all idea that he must win + a case or that I must lose a case. We are contending for too great a + stake. Personally, I care nothing about it, whether I make or lose what + you please to call reputation in this affair. I care everything for my + client. I care everything for his honor, and more than that, gentlemen, I + love the United States of America. I love this Government, I love this + form of government, and I do not want to see the sources of government + poisoned. I do not want to see a state of things in the United States of + America whereby a man can be consigned to a dungeon upon the testimony of + a robber and thief, simply upon a political issue, simply by the testimony + of some man who wishes to purchase immunity at the price of another's + liberty and honor. + </p> + <p> + One more point, and I have done. I had forgotten it, or I should have + mentioned it before. They have appealed to you all along to say that the + fact that high-wines were so cheap during all this time put Mr. Munn upon + his information, so to speak, that there were frauds. Let me take those + books and let us see. On the 6th day of June, 1874, the tax on spirits was + seventy cents, and the price was ninety-four cents. That made them get + twenty-four cents a gallon for the whiskey. Understand, the tax was + seventy, the price was ninety-four. That made them get twenty-four cents + for the whiskey. Now, then, on the 10th of June it was ninety-six and a + half cents. That made twenty-six and a half for the whiskey. On the 10th + of June, 1874, twenty-six and a half they got for the whiskey. February + 11, 1874, ninety-six cents, which made twenty-six cents; and so it went on + in that way, until what? Until the tax was raised from seventy cents to + ninety cents, and what is it now? The tax on whiskey, gentlemen, is ninety + cents, and the price on the 10th day of May, 1876, is one dollar and seven + cents; so that the price of whiskey now is only seventeen cents above the + tax, and at the time that Mr. Munn ought to have known that everybody was + a thief and rascal, the price was twenty-six cents above the tax, ten + cents more than now. From these figures, gentlemen, you will see it, and + how high did it go? The day Mr. Munn was turned out of office—gentlemen, + on the tenth day of May, 1875,—the tax then being ninety cents, + whiskey was worth one dollar and fifteen cents. The day he was turned out. + It was nine cents more than it is today. You are welcome to all you can + make out of that argument. It was worth nine cents more a gallon above the + tax the day he was turned out than it is to-day, and if Mr. Munn was bound + to take judicial notice that there was nothing but frauds in the district, + and every distillery was running crooked, I say that the officers of the + Government are bound to take that notice to-day, and you must recollect, + gentlemen, that it was admitted in this case that there were frauds all + over the country, that there were distilleries running in St. Louis, in + San Francisco, in Milwaukee, in Peoria or Pekin, in Peoria, I believe, in + my town, not a sound has been heard, and not a solitary man, I believe, + charged with fraud—in St. Louis, in Louisville, in Cincinnati, in + all these towns. Now, where was the whiskey being made that was crooked? + Nobody could tell. If there was a vast amount being made in Cincinnati it + would lessen the price in Chicago, no matter whether the Chicago + distillers were running honestly or not. If there was a vast amount being + made in St. Louis it would lessen the price, no matter whether the other + distilleries were running honestly or not, consequently it was impossible + for the supervisor to tell it. + </p> + <p> + There is another thing I forgot. During all the time Jacob Rehm was doing + this gratuitous rascality he was one of the bondsmen on the official bond + of Hoyt. He was not only helping Hoyt steal and giving him all the money, + but he was making himself responsible for the money he stole, and he did + not charge any commission on it. He did not charge for any shrinkage or + shortage or anything in the world, but made himself liable for the + uttermost farthing. He was on the bond of Collector Irwin, called the + stamp bond, and so do not forget that he did not only not take any money, + but he went on the acknowledgments of the thieves that stole it. He not + only did not take any himself, but he made himself liable as a bondsman + for what he gave to them. Do not forget these things. + </p> + <p> + Now, gentlemen, I believe I have said about all I wish to say to you; the + rest is for you. You must take the case, and, as I said, you do not want + to go off on any prejudice against the kind or the character of the case. + You do not want to go off on the idea that the air is full of rascality + because some of us are to be tried next. We don't know. Let us try this + case fairly and squarely on the evidence, and the next time I meet you, + gentlemen, every one of you will be glad that you found this defendant not + guilty, as you cannot avoid doing. + </p> + <p> + [The Jury rendered a verdict of "Not Guilty."] + </p> + <p> + <a name="link0002" id="link0002"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /> <br /> <br /> <br /> + </div> + <h2> + CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL. + </h2> +<pre xml:space="preserve"> + * The most characteristic feature of the Star-route trial, + which has been the central point of interest in our city for + the past three months, was the marvelously powerful speech + of Colonel Robert G. Ingersoll before the jury and the judge + last week. + + People who knew this gifted gentleman only superficially, + had supposed that he was merely superficial as a lawyer. + While acknowledging his remarkable ability as an orator and + his vast accomplishments as a speaker, they doubted the + depth of his power. They heard him, and the doubt ceased. It + can be said of Ingersoll, as was written of Castelar, that + his eloquent utterances are as the finely-fashioned + ornamental designs upon the Damascus blade—the blade cuts + as keenly and the embellishments beautify without retarding + its power. + + The following is Colonel Ingersoll's speech. Its swift + incisiveness, keen and comprehensive logic and apt + deductions from proper premises are only equaled by the + grand manner of its delivery, and under the circumstances + incidental to the case and the routes to be traversed, by + its expedition of action and brevity.—Washington, D. C., + The Capital, Sept. 16th, 1882. +</pre> + <p> + MAY it please the Court and gentlemen of the jury: Let us understand each + other at the very threshold. For one I am as much opposed to official + dishonesty as any man in this world. The taxes in this country are paid by + labor and by industry, and they should be collected and disbursed by + integrity. The man that is untrue to his official oath, the man that is + untrue to the position the people have honored him with, ought to be + punished. I have not one word to say in defence of any man who I believe + has robbed the Treasury of the United States. I want it understood in the + first place that we are not defending; that we are not excusing; that we + are not endeavoring to palliate in the slightest degree dishonesty in any + Government official. I will go still further: I will not defend any + citizen who has committed what I believe to be a fraud upon the Treasury + of this Government. Let us understand each other at the commencement. + </p> + <p> + You have been told that we are a demoralized people; that the tide of + dishonesty is rising ready to sweep from one shore of our country to the + other. You have been appealed to to find innocent men guilty in order that + that tide may be successfully resisted. You have been told—and I + have heard the story a thousand times—that this country was + demoralized by what the gentlemen are pleased to call the war, and that + owing to the demoralization of the war it is necessary to make an example + of somebody that the country may take finally the road to honesty. We were + in a war lasting four years, but I take this occasion to deny that that + war demoralized the people of the United States. Whoever fights for the + right, or whoever fights for what he believes to be right, does not + demoralize himself. He ennobles himself. The war through which we passed + did not demoralize the people. It was not a demoralization; it was a + reformation. It was a period of moral enthusiasm, during which the people + of the United States became a thousand times grander and nobler than they + had ever been before. The effect of that war has been good, and only good. + We were not demoralized by it. When we broke the shackles from four + millions of men, women and children it did not demoralize us. When we + changed the hut of the slave into the castle of the freeman it did not + demoralize us. When we put the protecting arm of the law about that hut + and the flag of this nation above it, it was not very demoralizing. When + we stopped stealing babes the country did not suddenly become corrupted. + That war was the noblest affirmation of humanity in the history of this + world. We are a greater people, we are a grander people, than we were + before that war. That war repealed statutes that had been made by robbery + and theft. It made this country the home of man. We were not demoralized. + </p> + <p> + There is another thing you have been told in order that you might find + somebody guilty. You have been told that our country is distinguished + among the nations of the world only for corruption. That is what you have + been told. I care not who said it first. It makes no difference to me that + it was quoted from a Republican Senator. I deny it. This country is not + distinguished for corruption. No true patriot believes it. This country is + distinguished for something else. The credit of the United States is + perfect. Its bonds are the highest in the world. Its promise is absolute + pure gold. Is that the result of being distinguished for corruption? I + have heard that nonsense, that intellectual rot all my life, that the + people used to be honest, but at present they are exceedingly bad. It is + the capital stock of every prosecuting lawyer; but in it there is not one + word of truth. Is this country distinguished only for its corruption + throughout Europe? No. It is respected by every prince and by every king; + it is loved by every peasant. Is it because we have such a reputation for + corruption that a million people from foreign lands sought homes under our + flag last year? Is corruption all we are distinguished for? Is it because + we are a nation of rascals that the word America sheds light in every hut + and in every tenement in Europe? Is it because we are distinguished for + corruption that that one word, America, is the dawn of a career to every + poor man in the Old World? I always supposed that we were distinguished + for free schools, for free speech, for just laws; not for corruption. A + country covered with schoolhouses, where the children of the poor are put + upon an exact equality with those of the rich, is not distinguished for + corruption. And yet in the name of this universal corruption you are + appealed to to become also corrupt. This nation is substantially a hundred + years old, and to-day the assessed property of the United States is valued + at $50,000,000,000. Is that the result of corruption, or is it the result + of labor, of integrity and of virtue? I deny that my country is + distinguished for corruption. I assert that it rises above the other + nations distinguished for humanity as high as Chimborazo above the plains. + Never will I put a stain upon the forehead of my country in order that I + may win some case, and in order that I may consign some honest man to the + penitentiary. I stand here to deny that this is a corrupt country. Let me + say that the only tribute that I ever heard paid to corruption was + indirectly paid by Mr. Merrick himself. He told you that official + corruption destroyed the French Empire, and upon the ruins of that empire + arose the French Republic. He makes official corruption the father of + French liberty. If it works that way I hope they will have it in every + monarchy on the globe. Napoleon stole something besides money; he stole + liberty, and the French people finally got to that condition of mind where + they preferred to be trampled on by Germany rather than to have their + liberty devoured by Napoleon. From that splendid sentiment sprang the + French Republic. This country is the land not of slavery, but of liberty, + not of unpaid toil, but of successful industry. There is not a poor man + to-day in all Europe or a poor boy who does not think about America. I + recollect one time in Ireland that I met with a little fellow about ten + years old with a couple of rags for pantaloons and a string for a + suspender. I said, "My little man, what are you going to do when you grow + up?" "<i>Going to America</i>." It is the dream of every peasant in + Germany. He will go to America; not because it is the land of corruption, + but because it is the land of plenty, the land of free schools, the land + where humanity is respected. + </p> + <p> + There is another thing about this country. We have a king here, and that + king is the law. That king is the legally expressed will of a majority, + and that law is your sovereign and mine. You have no right to violate one + law to carry out another. We all stand equal before that law, and the law + must be upheld as an entirety, and in no other way. If in this case you + believe these defendants beyond a doubt to be guilty, it is your duty to + find them so, and you must find them so in order to preserve your own + respect. I do not agree with this prosecution in the idea that the + perpetuity of the Republic depends upon this verdict. Decide as badly as + you please, as horribly as you can, the Republic will stand. The Republic + will stand in spite of this verdict, and the Republic will stand until + people lose confidence in verdicts—until they lose confidence in + legal redress. When the time comes that we have no confidence in courts + and no confidence in juries, then the great temple will lean to its fall, + and not until then. As long as we can get redress in the courts, as long + as the laws shall be honestly administered, as long as honesty and + intelligence sit upon the bench, as long as intelligence sits in the + chairs of jurors, this country will stand, the law will be enforced and + the law will be respected. But so far as my clients are concerned, + everything they have, everything they love, everything for which they + hope, home, friends, wife, children, and that priceless something called + reputation, without which a man is simply living clay, everything they + have is at stake, and everything depends upon your verdict. I want you to + understand that everything depends upon your decision, and yet my clients + with their world at stake, home, everything, <i>everything</i>, ask only + at your hands the mercy of an honest verdict according to the evidence and + according to the law. That is all we ask, and that we expect. By an honest + verdict I mean a verdict in accordance with the testimony and in + accordance with the law, a verdict that is a true and honest transcript of + each juror's mind, a verdict that is the honest result of this evidence. + Whoever takes into consideration the desire, or the supposed desire, of + the outside public is bribed. Whoever finds a verdict to please power, + whoever violates his conscience that he may be in accord, or in supposed + accord, with an administration or with the Government, is bribed. Whoever + finds a verdict that he may increase his own reputation is bribed. Whoever + finds a verdict for fear he will lose his reputation is bribed. Whoever + bends to the public judgment, whoever bows before the public press, is + bribed. + </p> + <p> + Fear, prejudice, malice, and the love of approbation bribe a thousand men + where gold bribes one. An honest verdict is the result not of fear, but of + courage; not of prejudice, but of candor; not of malice, but of kindness. + Above all, it is the result of a love of justice. Allow me to say right + here that I believe every solitary man on this jury wishes to give a + verdict exactly in accordance with this testimony and exactly in + accordance with the law. Every man on this jury wishes to preserve his own + manhood. Every man on this jury wishes to give an honest verdict. There + are no words sufficiently base to describe a man who will knowingly give a + dishonest verdict. I believe every man upon this jury to be absolutely + honest in this case. The mind of every juror, like the needle to the pole, + should be governed simply by the evidence. That needle is not disturbed by + wind or wave, and the mind of the honest juror never should be disturbed + by clamor, nor by prejudice, nor by suspicion. Your minds should not be + affected by the fume, by the froth, by the fiction, or by the fury of this + prosecution. You should pay attention simply to the evidence, and to use + the language of one of my clients, you should be governed by the frozen + facts. That is all you have any right to think of and all you have any + right to examine. + </p> + <p> + Having now said thus much about the duties of jurors, let me say one word + about the duties of lawyers. I believe it is the duty of a lawyer, no + matter whether prosecuting or defending, to make the testimony as clear as + he can. If there is anything contradictory it is his business if he + possibly can to make it clear. If there is any question of law about which + there is a doubt, it is his right and it is his duty to give to the court + the result of his study and of his thoughts, for the purpose of + enlightening the court upon that particular branch of law. No matter if he + may believe the court understands it, if there is the slightest fear that + the court does not or has forgotten it, it is his duty to bring the + attention of the court to that law. It is not his duty to abuse anybody. + It is not my duty to abuse anybody. There is no logic in abuse; not the + slightest; and when a lawyer, under the pretext of explaining the evidence + to the jury, calls a defendant a thief and a robber, he steps beyond the + line of duty and, in my judgment, beyond the line of his privilege. What + light does that throw upon the case? In his effort to explain the law to + the court what cloud does it remove from the intellectual horizon of his + honor for the attorney to call the defendant a robber, a thief, or a + pickpocket? I shall in this case give you what I believe to be the facts. + I shall call your attention to the testimony. I shall endeavor to throw + what light I am capable of throwing upon this entire question. I shall not + deal in personalities. They are beneath me. I shall not deal in epithets. + Nobody worth convincing can be convinced in that way. Now, let us see what + the law is, and let us see what our facts are. In the beginning of this + dusty branch I shall ask the pardon of every juror in advance for going + over these facts once again. You see they strike every man in a peculiar + way. No two minds are exactly alike. No pair of eyes distinguish exactly + the same object or the same peculiarities of the objects. This is an + indictment under section 5440 of the Revised Statutes, and there must not + only be a conspiracy to defraud, but there must be an overt act done in + pursuance of that conspiracy for the purpose of effecting the object of + it. Now, then, how must these overt acts be stated in this indictment? Is + the overt act a part of the crime, and must it, be described with the same + particularity that you describe the offence? Which of the overt acts set + out in this indictment is the overt act depended upon, together with the + act of conspiring, to make this offence? I hold, may it please your Honor, + that every overt act set out in the indictment must be proved exactly as + it is alleged, no matter whether the description was necessary to be put + in the indictment or not. No matter how foolish, how unnecessary the + description, it must be substantiated, and it must be proven precisely as + it is charged. No matter whether the particular thing described is of + importance or not, no matter how infinitely unnecessary it was to speak of + it, still, if it is a matter of description, it must be proven precisely + as it is charged. Upon that subject I wish to call the attention of the + Court to some authorities, and it will take me but a few moments. I will + call the attention of the Court first to the case of the State against + Noble, 15 Maine, 476. Here a man was indicted for fraudulently and + willfully taking from the river and converting to his own use certain + logs. These logs were described as marked "W" with a cross, and "H" with + another cross, and with a girdle. Now, it seems that a part of this mark + was not found, according to the testimony upon the logs taken: + </p> + <p> + "The description of these logs in the indictment is the only way the logs + could be distinguished and could not be rejected as surplusage. It has + been settled that if a man be indicted for stealing a black horse, and the + evidence be that he stole a white one, he cannot be convicted. The + description of a log by the mark is more essential than that of a horse by + its color. If it was not necessary to describe the log so particularly by + the mark, yet so having stated it, there can be no conviction without + proof of it." + </p> + <p> + Now, the court, in deciding this, says: + </p> + <p> + "It may be regarded as a general rule, both in criminal prosecutions and + in civil actions, that an unnecessary averment may be rejected where + enough remains to show that an offence has been committed, or that a cause + of action exists. In Ricketts vs. Solway, 2 Barn., & Aid., 360, + Abbott, C. J., says: 'There is one exception, however, to this rule, which + is, where the allegation contains matter of description. Then, if the + proof given be different from the statement, the variance is fatal.' As an + illustration of this exception, Starkie puts the case of a man charged + with stealing a black horse. The allegation of color is unnecessary, yet + as it is descriptive of that, which is the subject-matter of the charge, + it cannot be rejected as surplusage, and the man convicted of stealing a + white horse. The color is not essential to the offence of larceny, but it + is made material to fix the identity of that, which the accused is charged + with stealing." + </p> + <p> + 3 Stark., 1531. "In the case before us the subject-matter is a pine log + marked in a particular manner described. The marks determine the identity, + and are, therefore, matter purely of description. It would not be easy to + adduce a stronger case of this character. It' might have been sufficient + to have stated that the defendant took a log merely, in the words of the + statute. But under the charge of taking a pine log we are quite clear that + the defendant could not be convicted of taking an oak or a birch log. The + offence would be the same; but the charge to which the party was called to + answer, and which it was incumbent on him to meet, is for taking a log of + an entirely different description. The kind of timber and the artificial + marks by which it was distinguished are descriptive parts of the + subject-matter of the charge which cannot be disregarded, although they + may have been unnecessarily introduced. The log proved to have been taken + was a different one from that charged in the indictment; and the defendant + could be legally called upon to answer only for taking the log there + described. In our judgment, therefore, the jury were erroneously + instructed that the marks might be rejected as surplusage; and the + exceptions are accordingly sustained." + </p> + <p> + I also cite the case of the State against Clark, 3 Foster, New Hampshire, + 429: + </p> + <p> + "Indictment for fraudulently altering the assignment of a mortgage. The + indictment set forth the mortgage, and also the assignment, as it was + alleged to have been originally made from Miles Burnham to Noah Clark, the + respondent; and alleged that the assignment was signed, sealed, delivered, + witnessed by two witnesses, and duly and legally recorded at length, in + the registry of deeds of Rockingham county, on the 18th of September, + 1844. It then alleged that this assignment was fraudulently altered on the + 28th of June, 1844, by inserting the letter 'S' in two places, between the + words 'Noah' and 'Clark,' so that the assignment originally made to Noah + Clark, after the alteration appeared as if it were made to Noah S. Clark. + </p> + <p> + "On trial the records of deeds were produced, and there was found a record + of the assignment purporting to be made to Noah S. Clark, the record + bearing date September 18, 1844, but there was no record of any assignment + to Noah Clark. The respondent's counsel objected that this evidence did + not support the allegations of the indictment. The forgery was alleged to + have been committed on the 28th of June, 1844, and the court admitted + evidence that Miles Burnham, who executed the assignment, being applied to + about the 30th of July, 1846, for a loan of money upon a mortgage of the + same property, declined to make the loan unless he was satisfied there was + no mortgage of conveyance of the land by Noah Clark, and the person who + drew the assignment searched the records with Burnham, and found no such + deed on record. This evidence was objected to, but was understood to be + introductory to other material and pertinent evidence, and was therefore + admitted; but no such other evidence, to which it was introductory, was + offered. + </p> + <p> + "The jury found a verdict of guilty, which the defendant moved to set + aside." + </p> + <p> + Upon that the court says: + </p> + <p> + "We are not able to look upon this statement that the deed was duly + recorded as well as witnessed and acknowledged according to the statute, + in any other light than as part of the description of the deed and + conveyance which the defendant was charged with altering. We are, + therefore, of opinion that the evidence upon this point did not sustain + the indictment." + </p> + <p> + Now, if the statement that the mortgage was recorded was such a material + part of the description that a failure to prove the record as charged was + fatal, so, I say, in these overt acts, if they charge that a thing was + done or a paper filed on a certain day and it turns out not to be so, that + is a fatal variance, and under that description in the indictment the + charge cannot be substantiated. I refer to the case against + Northumberland, 46 New Hampshire, 158, and also to the King against + Wennard, 6 Carrington & Paine, 586. + </p> + <p> + Clark vs. Commonwealth, 16 B., Monroe, 213: + </p> + <p> + "The doctrine seems to have been well settled in England and this country, + that in criminal cases, although words merely formal in their character + may be treated as surplusage and rejected as such, a descriptive averment + in an indictment must be proved as laid, and no allegation, whether it be + necessary or unnecessary, more or less particular, which is descriptive of + the identity of what is legally essential to the charge in the indictment, + can be rejected as surplusage." + </p> + <p> + And in this case I cite Dorsett's case, 5th Roger's Record, 77: + </p> + <p> + "On an indictment for coining there was an alleged possession of a die + made of iron and steel, when, in fact, it was made of zinc and antimony. + The variance was deemed fatal." + </p> + <p> + And yet it was not necessary to state of what the die was made. If the + indictment had simply said he had in his possession this die, it would + have been enough, but the pleader went on and described it, saying it was + made of iron and steel. It turned out upon the trial that it was made of + zinc and antimony, and the variance was held to be fatal. So I cite the + court to Wharton's American Crim. Law, 3rd edition, page 291, and to + Roscoe on Criminal Evidence, 151. Now I cite the case of the United States + against Foye, 1st Curtis's Circuit Court Reports, 368, and I do not think + it will be easy to find a case going any further than this. It goes to the + end of the road: + </p> + <p> + "A letter containing money deposited in the mail for the purpose of + ascertaining whether its contents were stolen on a particular route and + actually sent on a post-route, is a letter intended to be sent by post + within the meaning of the post-office act." + </p> + <p> + This I understand was a decoy letter. + </p> + <p> + "The description of the termini between which the letter was intended to + be sent by post cannot be rejected as surplusage, but must be proved as + laid." + </p> + <p> + Upon that the court says: + </p> + <p> + "But a far more difficult question arises under the other part of the + objection. The indictment alleges, not only that this letter was intended + to be conveyed by post, but describes where it was to be conveyed; it + fixes the termini as Georgetown and Ipswich. The allegation is, in + substance, that the letter was intended to be conveyed by post from + Georgetown to Ipswich. The question is, whether the words from Georgetown + to Ipswich can be treated as surplusage. It was necessary to allege that + the letter was intended to be conveyed by post. The words from Georgetown + to Ipswich are descriptive of this intent. They describe, more + particularly, that intent which it was necessary to allege. In United + States vs. Howard, 3 Sumner, 15, Mr. Justice Story lays down the following + rule, which we consider to be correct: 'No allegation, whether it be + necessary or unnecessary, whether it be more or less particular, which is + descriptive of the identity of that which is legally essential to the + charge in the indictment, can ever be rejected as surplusage.' Apply that + rule to this case. It is legally essential to the charge to allege some + intent to have the letter conveyed somewhere by post. Suppose the + indictment had alleged an intent to have it conveyed between two places + where no post-office existed, and over a post-route where no postroad was + established by law. Inasmuch as the court must take notice of the laws + establishing post-offices and post-roads, the indictment would then have + been bad; because this necessary allegation would, on its face, have been + false. Words, therefore, which describe the termini and the route, and + thus show what in particular was intended, do identify the intent, and + show it to be such an intent as was capable, in point of law, of existing. + </p> + <p> + "And we are obliged to conclude that they cannot be treated as surplusage, + and must be proved, substantially, as laid. We are of opinion, therefore, + that there was a variance between the indictment and the proof; and that, + for this cause, a new trial should be granted." + </p> + <p> + So I refer to the State vs. Langley, 34th New Hampshire, 530. + </p> + <p> + The Court. I think, Colonel Ingersoll, there is no doubt about this + doctrine. + </p> + <p> + Mr. Ingersoll. I do not want any doubt about it. + </p> + <p> + The Court. There cannot be. + </p> + <p> + Mr. Ingersoll. Well, I will just read this because I do not want any doubt + about it in anybody's mind. + </p> + <p> + The Court. I have no doubt about it. + </p> + <p> + Mr. Ingersoll. Very well: + </p> + <p> + "If a recovery is to be had, it must be <i>secundum allegata et probata</i>; + and the rule is one of entire inflexibility in respect to all such + descriptive averments of material matters. The cases upon this point, many + of which are collected in the case of State vs. Copp, 15 N. H., 2F5, are + quite uniform." + </p> + <p> + Now, if the Court please, I not only read this with regard to the overt + acts, but with regard to the description of the crime itself—the + conspiracy. I will then refer to State against Copp, 15th New Hampshire. I + will also refer to the case of Rex against Whelpley, 4th Carrington & + Payne, 132; to 3d Starkie on Evidence, sections 1542 to 1544, inclusive; + also to the United States against Denee and others, 3d Wood, page 48, and + a case under this exact section, 5440: + </p> + <p> + "It seems clear that the statute upon which this indictment is based is + not intended to relieve the pleader from any supposed necessity of setting + out the means agreed upon to carry out the conspiracy by requiring him to + aver some overt act done in pursuance of the conspiracy and make such act + a necessary ingredient of the offence." The court then refers to the + Commonwealth against Shed, 7th Cushing, 514, and continues—in that + case it was different: + </p> + <p> + "That difficulty does not exist here, for the overt act is part of the + offence, and must be proved as laid in the indictment." + </p> + <p> + So I find that the court passed upon this very question, and I wish to + call the attention of the Court again to one line on page 961 of the + record in this case: + </p> + <p> + "But in all cases the principle is simply this: That where the act which + was done in pursuance of the conspiracy is described in the indictment it + must be described with accuracy and completeness, and if there is a + variance in the proof it is fatal to the prosecution." + </p> + <p> + When I come to that part as to the necessity of describing offences then I + will cite the Court to some other authorities in connection with these. + </p> + <p> + Now, then, we have got it established, gentlemen of the jury. There is no + longer any doubt about that law, and the Court will so instruct you, that + wherever they set out in the indictment that we did a certain thing in + pursuance of the conspiracy, they must prove that thing precisely as + charged, no matter whether the description was necessary or unnecessary. + They must prove precisely as they state. They wrote the indictment, and + they wrote it knowing they must prove it, and if they wrote it badly it is + not the business of this jury to help them out of that dilemma. + </p> + <p> + Now, as I say, we come to the dust and ashes of this case, the overt acts, + and I take up these routes precisely in the order in which they were + proved by the prosecution. First. I take up route 34149. Now, let us see + where we are. The first charge is that we filed false and altered + petitions by Peck, Miner, Vaile, and Rerdell. When did we file them? The + indictment charges that we filed them on the 10th day of July, 1879. When + did the evidence show they were filed? On the 3d day of April, 1878. That + is a fatal variance, and that is the end eternal, everlasting, of that + overt act. Without taking into consideration the fact that every petition + was true and genuine, the petitions were not sent by the persons as + charged. It was presented by Senator Saunders, and that is the absolute + end of that overt act, and you have no right to take it into consideration + any more than if nothing had been said upon the subject. + </p> + <p> + Second. That on the 10th of July a false oath was placed upon the records. + Now, that is an overt act, and you know as well as I do that the + description of that must be perfect. If they say it is of one date and the + evidence shows that it is of another, it is of no use. It is gone. They + say, then, that a false oath was filed. When? On the 10th day of July. + Suppose the oath to have been false. When was it filed? The evidence says + April 3, 1879. That is the end of the false oath, no matter whether that + oath is good or bad. No matter whether they committed perjury or wrote it + with perfect and absolute honesty, it is utterly and entirely worthless as + an overt act. + </p> + <p> + Third. An order for expedition July 10, 1879, alleged to have been made by + Brady. As a matter of fact the order was signed by French. There is a + misdescription. No matter if Brady told him to sign it, it was not as a + matter of fact signed by Brady—it was signed by French. They + described it as an order signed by Brady. It is an order signed by French, + and the misdescription of variance is absolutely fatal, and you have no + more right to consider it than you have the decree of some empire long + since vanished from the earth. Now, this is all the evidence on this + route. That is all of it with the exception of who received the money, and + I will come to that after awhile. That is route 34149. + </p> + <p> + According to their statement in the indictment, holding them by that, + there is not the slightest testimony. We can consider that route out. We + have only eighteen now to look after. That is the end of that. It has not + a solitary prop; upon the roof of that route not a shingle is left—not + one. + </p> + <p> + Let us take the next route, 38135. What do we do in that according to the + indictment? And now, gentlemen, recollect, they wrote this indictment. You + would think we did, but we didn't. They wrote it, and they are bound by + it. But if I had been employed on behalf of the defendants to write it I + should have written it just in that way. + </p> + <p> + First. Sending and filing a false oath. When did we send it; when did we + file it? On the 26th day of June. That is what the indictment says. What + does the evidence say? April 18, 1879. Now, that is the end of that. It + was a true oath, but that does not make any difference. That oath is gone. + That has been sworn out of the case, and dated out of the case. What is + the next? + </p> + <p> + Second. Filing false petitions. When did we file them? The 26th day of + June, 1879. The last petition was filed the 8th of May, 1879, and it does + not make one particle of difference whether these dates were before or + after the conspiracy as set forth, but as a matter of fact, every one of + the petitions was true. That charge is gone, A fatal variance. What is the + next fraudulent order? That of June 20. There was never the slightest + evidence introduced to show that it was a fraudulent order—not the + slightest. And what is the next charge? Fraudulently filing a subcontract. + And right here I stop to ask the Court, of course not expecting an answer + now, but in the charge to the jury, is it possible to defraud the + Government of the United States by filing a subcontract? + </p> + <p> + Now, gentlemen, I want you to think of it. How would you go to work to + defraud the Government by filing a subcontract? If the subcontract + provides for a greater amount of pay than the Government is giving the + original contractor, the Government will not pay it; it will only pay up + to the amount that it agreed to pay the contractor. It is like A giving an + order on B to pay C what A owes B. He need not pay him any more. That is + all. And if the ingenuity of malice can think of a way by which the + Government could be defrauded by the filing of a subcontract I will + abandon the case. It is an impossible, absurd charge, something that never + happened and never will happen. Well, that is the end of this route with + one exception. This is the Agate route. This is the route where thirty + dollars it is claimed has been taken from the Government. It is that + route. You remember the productiveness of that post-office. They + established an office and nobody found it out except the fellow that was + postmaster, and in his lonely grandeur I think he remained about eighteen + months and never sold a stamp. That is all that is left in that route, + that order putting Agate upon the route and taking it off, and then giving + one month's extra pay. That is all—another child washed—38135—that + is all there is to that route; no evidence except epithets, no testimony + except abuse. If anything is left under that it is simply "robber, thief, + pickpocket." That is all. + </p> + <p> + Now we come to another route, and I again beg pardon for calling attention + to these little things. The Government has forced us to do it. It is like + a lawsuit among neighbors. Each is so anxious to beat the other they begin + to charge for things that they never dreamed of at the time they were + delivered. They will charge for neighborly acts, time lost in attending + the funeral of members of each other's family before they get through the + lawsuit. So the Government started out in this case, and not finding a + great point had to put in little ones, and we have to answer the kind of + points they make. + </p> + <p> + 41119. Overt acts. First. Filing a false oath. When did we file it? The + 25th day of June, the indictment says. Who filed it? Peck and Miner. Well, + when was it filed or when was it transmitted? According to their story, + June 23, 1879. This oath is marked 8 C, and an effort was made to prove by + a man by the name of Blois that it was a forgery. That was objected to, + first, that it was not charged to be forged in the indictment; and second, + that a notary public had already sworn that it was genuine, and that he + could not be impeached in that way, and thereupon that oath was withdrawn, + and you will never hear of it any more. I do not know whether it is true + or not. That is found on record, page 1469. Now, recollect that oath was + withdrawn. That is the end of it. + </p> + <p> + Second. Filing false petitions. When were they filed? July 8, 1879, and it + turned out that that charge was true, with two exceptions: First, that + they were not filed at that time; and, second, that all the petitions were + true. That is the only harm about that charge. + </p> + <p> + Third. A fraudulent order made by Brady, July 8th. Now let us see what the + fraud consists in. The fraud is claimed to be in expediting to + thirty-three hours when the petition only called for forty-eight. You + remember the charge expediting to thirty-three hours, when the petition + only called for forty-eight. Now, let us see. It is claimed that to grant + more than the petitions ask is a crime; certainly it must be admitted that + to grant less is equally a crime. The only evidence now of fraud in this + is that he was asked to expedite the forty-eight hours, but he expedited + to thirty-three. That is to say, he violated the petitions, and if that is + good doctrine, then the petitions must settle whether expedition is to be + granted or not. If that is good doctrine there is no appeal from the + petition. I do not believe that doctrine, gentlemen. I believe it is the + business of the Post-Office Department to grant all the facilities to the + people of the United States that the people need. He must get his + information from the people, and from the representatives of the people; + and while he is not bound to give all they ask, if he does give what the + people want, and what their representatives indorse, you cannot twist or + torture it into a crime. That is what I insist. Now, the only charge is + here, and while they ask for forty-eight hours he gave thirty-three. That + is the only crime. Did he pay too much for it? There is no evidence of it. + Before I get through I will show you that there is no evidence that he + ever paid a dollar too much for any service whatever. + </p> + <p> + Now, then, if the doctrine contended for by the Government is correct, + then a petition is the standard of duty and the warrant of action, and if + they gain upon this route they lose upon every other route. Let us + examine. There are three charges. First, false petitions. They were all + true. Second, false oaths. They offered to prove it, and then withdrew it. + Third, that while the petitions called for forty-eight hours he granted + thirty-three, and before you can find that that was fraudulent you must + understand the precise connections that this mail made with all others, + and it was incumbent upon them to prove, not an inference, but a fact, + that there was not only reason, but reason in money—sound reason for + expediting it instead of forty-eight to thirty-three. That is the end of + that route. There is not a jury on earth, let it be summoned by prejudice + and presided over by ignorance, that would find a verdict of guilty upon + the testimony in that route. It is impossible. Another child gone. + </p> + <p> + 44155. Let us see what we get there, and I have not got to my client yet. + First, filing false petitions, by Peck, Miner, Vaile and Rerdell. When? On + the 27th of June, 1879. Were they false? Let us see. Mr. Bliss, speaking + of these petitions contained in a jacket held in his hand, dated the 29th + of June, 1879, record, page 687, said: "We do not attack the genuineness + of these petitions." That is the end of that. So much for that. + </p> + <p> + Second. A fraudulent order increasing service, and yet all the petitions + are admitted to be genuine, and the order was in accordance with the + petitions on the route. Before the order was fraudulent because it was not + in accordance with the petitions, and in this route it is a fraud because + it is in accordance with the petitions. Now, just take it. Here is the + route. Every petition is genuine, the oath is true, not a petition + attacked, the order in accordance therewith, and the only evidence that + the order is a fraud is that it was in accordance with genuine petitions + recommended by the people and by the representatives of the people. That + is all. + </p> + <p> + Let me tell you another thing. Expedition had been granted on the route + long before, and this was simply an increase of trips, and no charge was + made that the order granting the expedition ever was a fraud. + </p> + <p> + Third. Another fraudulent order by Brady, of April 17, 1880, and it turns + out that this order was in fact made by French. That was the only evidence + that it was fraudulent, but the mere fact that French made it takes it out + of this case, and you have no more right to consider it than you would an + order made in the Treasury Department. The only objection to this order + now is what? That it was in violation of the petitions. How? That it took + off one or two of the trips. That was the fraud of the order of April 17, + 1880. The fraud consisted in taking off two or three trips that had been + put on. + </p> + <p> + Now, let us see. The next fraudulent order was July 16, 1880. What was + that for? For putting the service back precisely as it was. Now, I want + you, gentlemen, to understand that, every one of you. Here is a charge in + the indictment of a fraudulent order that took off, say, two trips from + the service. That is a fraud they say. Then the next order put those two + trips back, and that they say is another fraud. It would have been very + hard to have made an order in that case to have satisfied the Government; + it was an order to decrease it; it was an order to put it back where it + was; that is, it was a fraud, consequently it was a fraud to do anything + about it. That is all there is in that case. + </p> + <p> + Let us boil it down. False petitions. That is the charge. The evidence is + that the petitions are all true. A false oath is the charge. The evidence + is that the oath is true. A fraudulent order decreasing the service, + another fraudulent order increasing the service, that is, leaving it just + where he found it. In other words, according to this indictment, Brady + committed a fraud in reducing the trips, and another fraud by putting the + trips back. I think it was only one trip that he reduced. Now, that is all + there is in that case. People may talk about it one day or one year. That + is all there is, and that is nothing. + </p> + <p> + 38145. Fraudulently filing what? A subcontract with J. L. Sanderson. I say + you cannot fraudulently file a subcontract against the Government. It is + an impossibility. Besides all that, Mr. Sanderson filed his own + subcontract. There is no evidence that anybody else did file it or present + it for filing. It was not our contract; it was Sanderson's subcontract. + How comes that in his indictment? Let me tell you. In the first indictment + they had Sanderson; and when they copied that first indictment, with + certain variations to make this, they forgot this part and put in the + fraudulent filing of Sanderson's contract. It never should have been in + this case. It has not the slightest relationship. The real charge of fraud + in this route is that a retrospective order was made, and this order bore + date February 26, 1881, and was retrospective in this: that it was to take + effect from the 15th of January, 1881; but understand me, this was + Sanderson's route. He received that money, and it has nothing to do with + us. Still I will answer it. That retrospective order gave pay from the + 15th of January, 1881. Now, it seems that before the order of February 26, + an order had been made by telegraph, dated 15th of January, 1881, to + Sanderson, and this telegraphic order was for daily service on eighty-nine + miles. The jacket order of February 26, 1881, was for daily service on the + whole route from January 15, 1881. If that order had been carried out he + would have received pay for daily service on the whole route, instead of + for daily service on the eighty-nine miles to which he was entitled. It + turned out that the order of February 26, 1881, was signed by + Postmaster-General Maynard. The only possible charge is that Sanderson + received pay for a daily service on the whole route from January 15, 1881, + to February 26, 1881, instead of eighty-nine miles. But we find in the + table of payments introduced by the Government, that for that quarter a + deduction was made of three thousand four hundred and twenty-two dollars + and nineteen cents, showing that the department could only have paid for + the daily service on the eighty-nine miles, and that is exactly what the + daily service would come to on the balance of the route. That ends that + route. We had nothing to do with it anyway. It was Sanderson. He filed his + own contract, he got his own orders, he collected his own money and + settled with the department. We have nothing to do with it and we will bid + it farewell. + </p> + <p> + The next is No. 38156. First, filing false oath June 12, 1879. The oath + was filed May 6, 1879.. That is the end of that. I do not care whether it + is true or false, that is, so far as this verdict is concerned. I care + whether it is true or false, so far as my clients are concerned, but so + far as this verdict is concerned, it makes no difference. There is a fatal + variance. Second, it is alleged that Brady made a fraudulent order June + 12, 1879. The order of June 12, 1879, was made by French. There is another + fatal variance. You have no right to take it into consideration. French is + not one of the parties here. Third, sending a subcontract of Dorsey and + filing it. As I told you before, you cannot by any possibility thus + defraud the Government; not even if you set up nights to think about it. + There is no proof that the subcontract was a fraud. Let us have some + sense. It is an absolute impossibility to commit this offence, and + therefore we will talk no more about it. Fourth, the fraudulent order of + Brady increasing the distance four miles. This was done on the 20th of + December, 1880. That is the only real charge in this route. I turn to the + record and find from the evidence, on page 943, that the distance was from + five to six miles, according to the Government's own proof. Beside all + that, the order of which they complain is not in the record. It was never + proved by the Government and never offered by the Government, so far as I + can find. That is the end of that route. The only charge in it is that + they increased the distance four miles, and the evidence of the Government + is that it was from five to six. + </p> + <p> + The next is 46132. Overt acts: Filing a false oath by everybody June 24, + 1879. The evidence shows it was filed April 11, 1879. That is the end of + that. No matter whether it is true or false, it is gone. Second, the + fraudulent filing of a subcontract. Well, I have shown you that that + cannot be fraudulent. The subcontract of Vaile shows that Vaile was to + receive one hundred per cent. It was executed April 1, 1878, in + consequence, as my friend General Henkle explained, of a conspiracy made + on the 23d of May following. The service commenced July 1, 1878. There + could have been no fraud in it. It was filed as a matter of fact May 24, + 1879, and not June 4. Even if it had been a fraud, which is an + impossibility, the description is wrong and the variance is fatal. There + is no evidence that any order was fraudulent. Every one in this case is + supported by petitions, and every petition is admitted to be honest, or + proved to be honest and genuine. There is no proof at all, and not the + slightest attempt on the part of the Government to prove that there was + any fraud on this route. So much for that. + </p> + <p> + No. 46247. Let us see just where we are. First, filing false and forged + petitions. When? July 26, 1879. By whom? By Peck, Dorsey, and Rerdell. + Now, after they had solemnly written that in the indictment, and after it + had been solemnly found to be a fact by the grand jury, the attorneys for + the Government come into court and admit during the trial that all the + petitions upon this route were genuine; every one. It was admitted, I say, + that every petition was genuine. Read from page 1008 of the record and + there you will find what the Court said about these very petitions: + </p> + <p> + "I shall take the responsibility of dispensing with the reading of + petitions when there is no point made with regard to them." + </p> + <p> + The petitions were so good, they were so honest, they were so genuine, + they were so sensible, that the curiosity of the Court was aroused to find + what on earth they were being read for on the part of the prosecution. You + remember it. Every one genuine, honor bright, from the first line to the + last. In reply to the Court at that time Mr. Bliss said: + </p> + <p> + "There is no point made as to the increase of trips. These—" Meaning + the petitions—"relate to the increase of trips. There is no point + made there." + </p> + <p> + It is thus admitted that every petition was genuine. Second, a fraudulent + order increasing one trip. This order was never proved by the Government. + It was not even offered by the Government, so that the route stands in + this way: First, a charge of false petitions; second, an admission that + the petitions were all genuine; third, a charge that a fraudulent order + was made; fourth, no proof that the order was made. That is all there is + to that. And that is the end of it. + </p> + <p> + No. 38134. First, sending false and fraudulent petitions, and filing the + same. When? July 8,1879. On page 1031 of the record I find the following: + </p> + <p> + "Mr. Bliss. The petitions under your Honor's ruling I am not going to + offer." + </p> + <p> + Why? Because they were all genuine. The court had mildly suggested the + impropriety of the Government proving its case by reading honest + petitions. Consequently, when it came to this, the next route, he said: + </p> + <p> + "The petitions under your Honor's ruling I am not going to offer." + </p> + <p> + Why? Because they are all honest, and under a charge in the indictment + that they are all fraudulent he did not see the propriety of reading them. + That is what he meant. This remark was made because the Government + admitted these petitions to be honest. When were these petitions filed? + The indictment says July 8. The evidence says May 6. So that if every + petition had been a forgery you could not take them into consideration on + this route. It is charged that Miner & Co. signed and placed in + Brady's office a false oath on July 8. On record, page 1032, it appears + that it was filed May 8, 1879, and not as described in the indictment. The + pleader has the privilege of describing it right or describing it wrong. + If he describes it right it can go in evidence. If he describes it wrong + it cannot go in evidence, and they have no right to complain if you throw + out evidence that they make it impossible for you to receive. It has been + charged with regard to this affidavit that Dorsey was not at that time + contractor, and therefore had no right to make the affidavit. The + affidavit was made April 21, 1879, and the regulation that such affidavits + must be made by the contractors was made July 1, 1879. That is a + sufficient answer. The next charge is a fraudulent order made by Brady, + July 8. The petitions were all admitted to be genuine. There was no + evidence that the order was not asked for by the petitions. There was no + evidence that the order in and of itself was fraudulent; not the + slightest. There is nothing like taking these things up as we go and + seeing what the Government has established. I know that you want to know + exactly what has been done in this case and you want to find a verdict in + accordance with the evidence. + </p> + <p> + Route 38140. Overt acts: First, making, sending, and filing false + petitions. When were they made and sent? The 23d day of May, 1879. There + were some petitions filed May 10, 1879, and there was a letter of the same + date. They are misdescribed. They are all genuine but they are out of the + case as far as this is concerned. I will tell you after awhile where they + are applicable in this case. A letter of Belford, of April 29, 1879, and a + letter of Senator Chaffee, of April 24, 1879, we have, while the + indictment charges that they were all filed May 23, 1879. There is an + absolute and a fatal variance. All these petitions, however, are admitted + to be genuine and honest. See record, pages 1001-1003. The charge in the + indictment is that they were forged, false, and altered. The admission in + open court, by the representatives of the Government, is, that they were + genuine and honest. There is the difference between an indictment and + testimony. There is the difference between public rumor and fact. There is + the difference between the press and the evidence. The next is that a + false oath was filed by John W. Dorsey on the 23d of May, 1879. When was + that oath filed? April 30, 1879. A fatal variance. Yet the man who wrote + the indictment had the affidavit before him. Why did he not put in the + true date? I will tell you after awhile. Did he know it was not true when + he put it in the indictment? He did, undoubtedly. + </p> + <p> + Third. Fraudulent order of May 23; reducing the time from nineteen and + three-quarter hours to twelve hours. As a matter of fact, no order was + made on the 23d of May upon this route. It is charged in the indictment + that it was made on the 23d of May. The evidence shows that it was on the + 9th of May. There is a fatal variance, and that order cannot be considered + by this jury as to this branch of the case. Here is an order of which they + complain. They charge that it was made on the 23d day of May, the same day + the conspiracy was entered into. As a matter of fact, it was made on the + 9th of May. On this description it goes out, and it goes out on a still + higher principle: That an order could not have been made on the 9th of May + in pursuance of a conspiracy made on the 23d of that month. But I am + speaking now simply as to the description of this offence. + </p> + <p> + Fourth. A subcontract was fraudulently filed. I have shown you it is + impossible to fraudulently file a contract; utterly impossible. All the + agreements imaginable between the contractor and subcontractor cannot even + tend to defraud the Government of a solitary dollar. I make a bid and the + contract is awarded to me at so much. The mail has to be carried. The + Government pays, say five thousand dollars a year, it makes no difference + to the Government who carries the mail under that contract, so long as it + is carried. It is utterly impossible to defraud the Government by + contracting with A, B, C, or D. That is the end of that route. The order + itself is misdescribed, and that is all there is in it. When the order is + gone everything is gone. + </p> + <p> + No. 38113. Overt acts: Fraudulently filing a subcontract. We do not need + to talk about that any more. Second, Brady fraudulently made an order for + increase of trips. The evidence is that an increase was asked for by a + great many officers, a great many representatives, and by hundreds of + citizens, and that the increase was insisted upon not only by the officers + who were upon the ground, but by General Sherman himself. I do not know + how it is with you, but with me General Sherman's opinion would have great + weight. He is a man capable of controlling hundreds of thousands of men in + the field—a man with the genius, with the talent, with the courage, + and with the intrepidity to win the greatest victories, and to carry on + the greatest possible military operations. I would have nearly as much + confidence in his opinion as I would in the guess of this prosecution. In + my judgment, I would think as much of his opinion given freely as I would + of the opinion of a lawyer who was paid for giving it. General Sherman has + been spoken of slightingly in this case; but he will be remembered a long + time after this case is forgotten, after all engaged in it are forgotten, + and even after this indictment shall have passed from the memory of man. + </p> + <p> + No. 38152. Overt acts: Fraudulent orders of August 3, 1880, discontinuing + the service and allowing a month's extra pay for the service discontinued. + That is all. May it please your Honor, in this route the only point is, + had the Postmaster General the right to discontinue the service? And if he + did discontinue it, was he under any obligation to allow a month's extra + pay? It is the only question. I call your Honor's attention to the case of + the United States against Reeside, 8 Wallace, 38; Fullenwider against the + United States, 9 Court of Claims, 403; and Garfielde against the United + States, 3 Otto, 242. In those cases it is decided not only that the + Postmaster-General has the right to allow this month's extra pay, but he + must do it. That is in full settlement of all the damages that the + contractor may have sustained. The Court can see the very foundation of + that law. For illustration, I bid upon a route of one thousand miles. I am + supposed to get ready to carry the mail. Five hundred miles are taken from + that route. The law steps in and says that for that damage I shall have + one month's extra pay on the portion of the route discontinued. It makes + no difference whether I have made any preparation or not. The law gives me + that and no more. If I should go into the Supreme Court and say that my + preparations had cost me fifty thousand dollars, and the month's extra pay + was only five thousand dollars, I have no redress for the other forty-five + thousand dollars. That is all that is charged in this instance. And if the + Second Assistant Postmaster-General or any one else had done differently + he would have acted contrary to law. He is indicted for doing in this case + exactly what is in accordance with the law. Let us get to the next route. + That is all there is in this. + </p> + <p> + No. 38015. Overt acts: Sending a false oath. When? May 21. The evidence + shows that on May 14 it was sent, on May 15 it was filed. A fatal + variance, no matter whether it is true or false. That oath is gone. That + is the end of it. + </p> + <p> + What else? They did not show that the oath was false. First, it is + misdescribed in the indictment as to the date it is filed; second, the + evidence shows that it is honest and genuine, which is also fatal. That is + the end of this route, as far as the indictment is concerned. Second, that + Dorsey made and Rerdell filed false petitions. There is no proof that any + of the petitions were false, no proof that any were forged, and no proof + that John W. Dorsey or M. C. Rerdell had anything to do with that route + one way or the other. All the petitions on record, page 1160, are admitted + to be genuine except one. One petition asking for a ten-hour schedule was + attacked and only one. But this petition was filed May 14, 1879, and that + is out so far as the indictment is concerned. + </p> + <p> + The Court. What is the date of the indictment? + </p> + <p> + Mr. Ingersoll. The 23d day of May. The indictment says that this was filed + July 10, 1879; the evidence says May 14, 1879. A fatal variance. It is not + the same one they were talking about. They did not find the petition they + described. It is their misfortune. Now, here is only one petition + attacked. Who attacked it? Mr. Shaw. See page 1159. They were going to + show that that was a forgery, and they were going to show it by Shaw. That + was the only one they attacked. What does Shaw say? + </p> + <p> + "I signed a petition for increase of service and expedition upon that + route, but I did not read the petition. If I had, I should have discovered + a ten-hour schedule." + </p> + <p> + He would not have discovered it if it had not been there, would he? That + shows it was there. + </p> + <p> + "I would not have recommended a ten-hour schedule on a seventy-mile + route." + </p> + <p> + He was the man that was going to prove that ten hours was not there. But + it shows that he was not able to do it, because he first swore that he + never read it, and second, that he would not have signed it if he had. + Good by, Mr. Shaw. That is all there is as to that matter. The Court will + understand I am going now upon what is in the indictment, and not what has + been thrown in from the outside. + </p> + <p> + The Court. I understand that. + </p> + <p> + Mr. Ingersoll. I am going according to the strict letter of this + indictment. I am holding these gentlemen to the law. That is what the law + is for. You cannot come into this court and throw seven or eight cords of + paper at a man and say, "You are guilty." They have managed this case + after that fashion, but I propose to bring them back to the law. + </p> + <p> + Route 35051. First. Signing, sending and filing false petitions. When? + August 2, 1879. There is no evidence of any petitions being filed on that + day—none whatever. The only thing near it is a letter of Frederick + Billings, on record, page 1217. This letter was dated July 31, 1879. Under + the charge of signing, sending and filing false petitions, the only + evidence is that a man by the name of Billings wrote a letter, and there + is not the slightest testimony to show that a solitary word in that letter + was false—not one. Nothing to connect it with Mr. Billings; no + evidence that he ever spoke to him on the subject; no evidence that + Billings knew who was carrying the mail; no evidence that he ever knew or + did a thing except to write that letter, and he was interested, I believe, + in the Northern Pacific railroad. Now, that is everything there is there; + that is all there is in that case. Nobody has tried to show that the + letter of Billings was not true. + </p> + <p> + What else? A fraudulent order of August, 1879. Who made it? The indictment + says Brady made it. The evidence says it was signed by French, and it was + in accordance with Billings' letter. Is there any fraud now in that route? + Let us be honest. False petitions: Not one filed. False oath: Not one + attacked. Simply a letter that we did not write, and that there is no + evidence that we ever asked to have written. That is the end of that. But + they cannot even get the letter in, gentlemen. They did not describe it + right. + </p> + <p> + The next route is 40104. Overfacts: First. Fraudulently filing a + subcontract. That you cannot do. When did we file it? July. 23, 1879, the + indictment says. What does the evidence say? May 8, 1879. First, we could + not commit the offence; secondly, you could not prove it under this + description. + </p> + <p> + Second. Filing a false oath. When did we file it? July 23. That is what + the indictment says. What does the evidence say? November 26, 1878. A + fatal variance. See record, page 1305. That is the end of that. The + indictment is for something. You have got to follow it, and it certainly + is not as hard work to write an offence against a man as it is to prove + it. If they cannot write an offence, you certainly ought not to find the + man guilty. Besides all that, that oath was not even impeached, it was not + ever attacked. There was not a word said upon the subject except in the + indictment. It was charged to be false, and not one word of evidence was + offered to this jury to show that it was false. + </p> + <p> + Third. An alleged fraudulent order of increase by Brady, July 23, 1879. + Brady never signed any such order. It was signed by French. That is the + end of it, no matter whether it was good or bad, honest or dishonest. That + is the end of it, and yet there is not a particle of evidence to show that + it was dishonest, but you must hold them to their own case as they have + written it, and not as they wish it was now. + </p> + <p> + Fourth. A fraudulent order of April 10, 1880, allowing one month's extra + pay on the service reduced. This order was not even proved by the + Government. As a matter of fact, it was not offered by the Government; and + if it had been offered, and if it had been proved, it would have only + established the fact that Mr. Brady acted in accordance with law. + </p> + <p> + Now, we come to some more. 44160. First, filing false petitions. When did + we file them? July 16, 1880. The proof is that they were filed long before + that time The proof is that Peck, Dorsey and Rerdell had nothing to do + with this route after the 1st of April, 1879, and the petition claimed to + be signed by Utah people and claimed to be fraudulent in the petition + marked 19 Q. It was filed on the 7th day of May, 1879. + </p> + <p> + That is a fatal variance. This indictment charges it was filed July 16, + 1880. The petition cannot be considered. + </p> + <p> + There is another petition marked 20 Q, claimed to have been written by + Miner, upon which the name of Hall is said to have been forged. It has no + file mark whatever, and consequently cannot be the petition referred to in + the indictment. That was filed. That, however, has been explained by + General Henkle fully. This petition was identified by McBean, and was + signed by him, and he recognized the signatures of many of the citizens of + Canyon City. Mr. Merrick admitted that the petition, 19 Q, was never acted + upon. As a matter of fact, orders had been made before the petition was + received, which shows conclusively that they were not acted upon. The + petition marked 20 Q, to which Hall's name was, as is claimed, forged, was + never filed, and was consequently never acted upon. This charge stands as + follows: Two petitions, one being filed May 17, 1879—a fatal + variance—and the other not filed—another fatal variance. These + petitions are both described as having been filed July 16, 1880. The + variance is absolutely fatal, and these petitions cannot be considered. + Besides, the order was made before the petition 19 Q was filed. + </p> + <p> + Second. The fraudulent order by Brady for increase of trips, July 16, + 1880. The only objection to this route is that the expedition was made + before service was put on. This was in the power of the + Postmaster-General. It has been done many times, and is still being done + by the Postoffice Department, and the fact that it was done in this case + does not even tend to show that any fraud was committed or intended. That + is all there is in that case. The petitions were never acted upon. One was + never filed, and the other is not described, or rather is misdescribed. + </p> + <p> + Route 48150. Overt Acts: A fraudulent order by Brady reducing service to + three trips a week, and allowing a month's pay on service dispensed with + July 26, 1880. This point, gentlemen, I have already argued. + </p> + <p> + Whenever the Post-Office Department dispenses with any service it is bound + to give one month's extra pay any time after the contract has been made + and any time after the bid has been accepted. It is bound to give the + month's extra pay on the service dispensed with, and this question, as you + heard me say a little while ago, has been decided by the Supreme Court in + Garfield's case. This route was operated by Sanderson. He was the + subcontractor, and, according to the subcontract filed and presented here + in evidence, he received every cent of the pay. We could have had no + interest in perpetrating any fraud upon that route. Why? Because another + man, J. L. Sanderson, received every dollar, and we not one cent. + </p> + <p> + Another fraudulent order of increase, August 24, from Powderhorn to + Barnum, seven miles. No fraud was shown, but the order in fact, was made + for the benefit of Sanderson and not for the benefit of any of the + defendants in this case. In other words, it was made for the benefit of + the people, it was made because they wished to reach another post-office. + </p> + <p> + Another charge is that the subcontract made by Sanderson was filed + September 18, 1878. Recollect the charge is about filing this subcontract. + The fact is it was filed in 1878 to take effect from July 1, 1878. See + record, page 1406. On this very route the subcontract took effect the 1st + of July, 1878, with Sanderson, and from that moment until now he has + received every dollar. This route, as a matter of fact, is out of the + scheme. Sanderson carried the mail from the 1st of July, 1878, until the + end of that contract, the last day of June, 1882. So much for that route. + It is gone. Nobody can get it back, either, in this scheme. + </p> + <p> + Route 40113. Overt Acts: Filing of a false oath. When? June 3, 1879. When + was it filed? May 7, 1879. That oath is gone. Was it false? They did not + attack it. They never impeached it. Good. + </p> + <p> + Second. False petitions filed. When? June 3, 1879. All the petitions were + filed prior to May 10, 1879. They are gone. One was filed May 23, but none + was filed as alleged on June 3. They are gone. A magnificently written + instrument. A fatal variance as to every petition. And yet not a solitary + petition was attacked. Every petition was genuine and honest. + </p> + <p> + Third. A fraudulent order by Brady for increase and expedition. This order + was asked for by the petitions. No fraud was established. See record, page + 1503 on this route; also page 2159. + </p> + <p> + Fourth. They also charge that Brady made a fraudulent order on the 4th of + January, 1881. But the Government never proved that order, never offered + any order of that date. That is the end of that order. + </p> + <p> + Fifth. A fraudulent order of February 11, 1881. This was not offered by + the Government, and no evidence was offered as to the existence of the + order, neither the jacket, nor the order, nor the petitions, so far as I + can find. That is the end of that. Every overt act so far, except some of + the orders, wrong. The overt acts charged were filing fraudulent + petitions. When? May 23, 1879. These are the petitions said to have been + gotten up by Wilcox. Mr. Wilcox was a Government witness and he swore that + every petition was honest, that every name was genuine, and that in order + to get the names he did not circulate a falsehood, he circulated only the + truth. To use his own language, "I did only straightforward, honest work." + That is all there is on that. + </p> + <p> + 44140 is the number of this route, and this evidence is on record, page + 1568, and in regard to getting up these petitions you will recollect the + language used by the Court. His Honor said in effect clearly, "Every man + carrying the mail has the right to take care of his business. He has the + right to get up petitions. He has the right to call the attention of the + people to what he supposes to be their needs in that regard. He has the + right to do it; and the fact that he does it is not the slightest evidence + that he has conspired with any human being." Deny me the right to attend + to my own affairs? If I have taken the route from the Government, and + contract to carry the mail, tell me that I cannot suggest to my + fellow-citizens that they ought to have a daily mail instead of a weekly? + Tell me that I have not the right to talk it on the corners, in every + postoffice for which I start, and that if I do I am liable to be pursued + and convicted of an infamous offence? Every man has the right to attend to + his own affairs, and he has the right to get all the people he can to help + him. He has no right to go around lying about it, but he has the right to + call their attention to the facts the same as you would have the right to + get a road by your house; just exactly the same as you would have the + right to get a school-house built in your district, no matter if you were + to have the contract for making the brick. You have a right to say what + you please in favor of education, no matter if you are an architect and + expect to be employed to build the schoolhouse, and any other doctrine is + infinitely absurd. + </p> + <p> + There is another charge: That a false oath was filed on the 24th of May. + The affidavit was made by Mr. Peck, and I believe it has been admitted + that Mr. Peck never did anything wrong. Then there is alleged to be a + fraudulent order for increase, signed June 26, and they never introduced + the slightest evidence tending to show that there was fraud in the order. + It was made in accordance with the petitions. It was made in accordance + with what we believed to be the policy of the Post-Office Department. And + allow me to say to your Honor that I think that the general policy of the + Post-Office Department, as disclosed in the documents that have been + presented in the reports made to Congress that have become a part of this + case, I think even from that evidence I have the right to draw an + inference as to what the policy of the department was. + </p> + <p> + The Court. I have no doubt in the world as to the views of the Post-Office + Department in regard to that subject. The Court refused to receive + evidence on that subject in defence, for the simple reason that the Court + was of opinion that no Second Assistant Postmaster-General had the + authority to establish any policy for this Government or for any branch of + this Government. The policy of the Government is to be found in its laws, + and the Court was unwilling to allow a Second Assistant Postmaster-General + to set up his policy in his defence against a charge in this court. He had + no right to have a policy. + </p> + <p> + Mr. Ingersoll. We never set up the policy of the Second Assistant. We + never asked to be allowed to prove the policy of the Second Assistant. We + never imagined it, nor dreamed of it, nor heard of it until this moment. + What we wanted to show was the policy, not of the Second Assistant, but of + the Postmaster-General. But I am not speaking now upon that branch. + </p> + <p> + The Court. The Postmaster-General by law is the head of the department of + course. But several assistants were given him by law, and he had the + authority to apportion out the business of the department amongst those + several assistants. The particular business of the department pertaining + to the increase of service and expedition of routes belonged under this + apportionment to the Second Assistant Postmaster-General. His acts, + therefore, are to be looked to. + </p> + <p> + Mr. Ingersoll. I do not claim, if the Court please, that his policy had + anything to do with it. I simply claim that from the orders that have been + introduced, not of the Second Assistant, from the books that have been + introduced, showing the views of the Postmaster-General, not of the Second + Assistant. I also admit that if the Postmaster-General had ordered by + direct order the Second Assistant Postmaster-General to expedite every one + of these routes, even then there could have been such a thing as a + conspiracy to expedite them too greatly, and to receive money from every + man for whom they were expedited. I understand that. But in the absence of + any proof that it is so, all I have ever insisted was that the general + policy of the head of the department might be followed by any subordinate + officer without laying himself open to the charge that he had been + purchased. That is all. + </p> + <p> + Now, gentlemen, all these things had been asked. They had been earnestly + solicited by hundreds of Congressmen, by Senators, by Judges, by + Governors, by Cabinet officers and by hundreds and hundreds of citizens. + </p> + <p> + Now, let me recapitulate all the overt acts—and I have gone over + them all now excepting one, and I will come to that presently. In the + indictment there are twelve charges as to filing false petitions. There + are ten charges as to false oaths. There are seven charges as to + fraudulently filing subcontracts; and the evidence is that the ten oaths + are substantially true; that it is impossible to fraudulently file a + subcontract; and as to the petitions, that every one is absolutely genuine + and honest with the exception of three. They prove that the words + "schedule, thirteen hours," were inserted; that is, they tried to prove + that by Mr. Blois, who is an expert on handwriting, as has been + demonstrated to you. One with thirteen hours inserted in it, and the very + next paragraph in that same petition begs for faster time. I have not the + slightest idea that that ever was inserted by anybody. I believe it was in + there when it was signed. And why? There would have teen, there could have + been, there can be, no earthly reason for inserting those words. You + cannot imagine a reason for it. + </p> + <p> + Now, that is thirteen hours. Then there is another one they say had some + names of persons living in Utah, and we say that that is not described + properly; not only that, but that it was never acted upon, and in my + judgment that whole thing is a mistake and not a crime, because there were + plenty of petitions without that. There was no need of it. All the other + petitions have either been proved, or have been admitted to be absolutely + genuine. + </p> + <p> + Now, I have gone over every overt act except payments, and when it was + said here in court, or when the objection was made to these being proved + as overt acts, the Court will remember that again and again and again, the + prosecution denied that they were offered as overt acts. + </p> + <p> + The Court. I never understood them as being offered as overt acts. + </p> + <p> + Mr. Ingersoll. At that time the Court made just the remark that your Honor + has made now. He said: "But what are the payments?" Now, I will take up + the payments, and we will see whether there are any overt acts in the + payments, gentlemen. + </p> + <p> + Now, let me call your attention to that magnificent rule that has been + laid down by the Court. When you describe an offence you are held by the + description. When it is said that I made a false claim against the + Government in a conspiracy case, for instance, that I conspired to defraud + the Government, that I presented a false claim, it may be that the laxity + or lenity of pleading might go the extent of saying that the pleader need + not state the amount of that false claim, but if the pleader does state + the amount of that false claim he is bound by that statement. Now, that is + my doctrine. + </p> + <p> + The Court. What I understood in regard to the evidence of the payments is + this: The charge was a conspiracy to defraud and the averment was that the + fraud had been completed, and this evidence of payments was to show that + the fraud had been carried out. + </p> + <p> + Mr. Ingersoll. That is all. Now, let us see if this can be tortured into + an overt act. I now come to the presentation of false claims charged to + have been presented and collected by these defendants. It is a short + business. On the route from Kearney to Kent the charge is that Peck and + Vaile presented false claims on the third quarter of 1879 for five hundred + and fifty dollars and seventy-two cents. The entire pay for that quarter, + three trips and expedition, was seven hundred and ninety-five dollars and + seventy-eight cents. And there is no charge that the increase of trips was + fraudulent. Only the expedition was attacked. The three trips, according + to the old schedule price, came to seven hundred and thirty-five dollars + and eighty-one cents, all of which was honestly carried, honestly earned. + Now, deducting from the pay seven hundred and ninety-five dollars and + seventy-eight cents, the amount of the three trips on the old schedule + honestly performed, seven hundred and thirty-five dollars and eighteen + cents, if the expedition was fraudulent, we have a fraudulent claim of + sixty dollars and sixteen cents. And yet the Government charges that we + made a claim of five hundred and fifty dollars and seventy-two cents. Not + one cent is allowed for carrying the two additional trips without + expedition. + </p> + <p> + There is another trouble about this. It is charged that Peck and Vaile + presented this claim for their benefit. The record, page 386, shows that + Peck did not present this claim; that it was presented by H. M. Vaile; + that H. M. Vaile received the warrant for the full amount; that he held a + subcontract at that time for every dollar. This is another fatal variance, + and the evidence of Vaile is that every dollar belonged to him; that not a + dollar of that money was ever paid to any other one of the defendants; + that he paid all the expenses; that he paid the debts, and that there + never went a solitary cent to any Government official. So much for that + payment. + </p> + <p> + The next charge is that on route 41119, from Toquerville to Adairville, + Peck presented a false claim for the third quarter of 1879 for two + thousand four hundred and sixty dollars and fourteen cents. The pay for + that quarter was three thousand six hundred and twenty-eight dollars and + fourteen cents for seven trips and expedition. The pay for the three trips + on the old schedule was eight hundred and seventy-six dollars, a + difference of two thousand seven hundred and fifty-two dollars and + fourteen cents. And yet the Government charges that the false claim + presented was two thousand four hundred and sixty dollars and fourteen + cents. If they give the figures they must give them correctly. If I am + charged with presenting a claim against the Government for two thousand + four hundred and sixty dollars, that is not substantiated by showing that + I presented a claim for two thousand seven hundred dollars. If you give + the figures you must stand by the figures, and you are bound by them. You + cannot charge one thing and prove something else. This is a fatal + variance. + </p> + <p> + In addition to this fact, we find the deductions for failures in that very + quarter amounted to five hundred and forty dollars and forty-two cents, + and this deducted from the other amount leaves two thousand, two hundred + and eleven dollars and seventy-two cents. So that in both cases the + variance is absolutely fatal. I am showing you these things, gentlemen, so + that you may see that there is in this case no evidence to fit the charges + in this indictment. + </p> + <p> + 44140, Eugene City to Bridge Creek. It is charged that Peck and Dorsey + presented a false account for the third quarter of 1879 for four thousand + seven hundred and eighty-three dollars and ninety-nine cents. The pay for + three trips with expedition was four thousand, six hundred and eighty-nine + dollars and twenty-two cents; the pay for one trip on the old schedule was + six hundred and seventeen dollars, a difference of four thousand and + seventy-two dollars and twenty-two cents. The Government says the + difference was four thousand seven hundred and eighty-three dollars and + ninety-nine cents, an absolutely fatal variance. + </p> + <p> + Now, as a matter of fact, there were deductions in that quarter of one + thousand nine hundred and thirty-two dollars and eighty-three cents, and + this is deducted from the entire pay, leaving only as a claim three + thousand seven hundred and sixty-six dollars and thirty-nine cents. And + yet the Government charges that we presented a false claim for four + thousand seven hundred and eighty-three dollars and forty-nine cents. It + will not do. It is a fatal variance. But when we take into consideration + that there is no claim that the increase of trips was fraudulent, only the + expedition, and that by the old schedule one trip came to six hundred and + seventeen dollars, that three trips came to one thousand eight hundred and + fifty-one dollars, and that added to deductions would make three thousand + seven hundred and seventy-three dollars and eighty-three cents, to be + deducted from four thousand six hundred and eighty-nine dollars and + twenty-two cents, it would leave as a fraudulent claim, even if their + claim was true, nine hundred and fifteen dollars and thirty-nine cents. + </p> + <p> + Now, the next is 44155, The Dalles to Baker City. The false claim was + eight thousand eight hundred and ninety-six dollars, by Peck. The pay per + quarter was sixteen thousand six hundred and sixty-six dollars and nine + cents. The pay for three trips and expedition was seven thousand seven + hundred and seventy dollars—a difference of eight thousand eight + hundred and ninety-six dollars and nine cents. But there were deductions, + ninety-nine dollars and thirty-four cents, leaving eight thousand seven + hundred and ninety-six dollars and seventy-five cents. But by making this + claim the Government concedes that the expedition was legal, and another + trouble is that the payment on this route was made to Vaile, not to Peck + or Miner. It was made to Vaile, who was the subcontractor for the full + amount, and this is another fatal variance. + </p> + <p> + Now, route 46132, Julian to Colton. The charge is that Peck and Vaile + presented a fraudulent claim for the third quarter of 1879, for one + thousand six hundred and fifty seven dollars and seventy-one cents. The + pay for three trips and expedition is one thousand nine hundred and + fifty-four dollars and seventy-one cents. For three trips on the old + schedule it was eight hundred and ninety-one dollars, a difference of one + thousand and sixty-three dollars and seventy-three cents. A fatal + variance. Besides it was not Peck and Vaile. Vaile was the subcontractor + at full rates on this route. He presented the claim. He received the + entire pay. Another variance. Route 44160, Canyon City to Camp McDermitt. + The charge is that Peck and Vaile presented a false account for the fourth + quarter of 1879, for eleven thousand eight hundred and nineteen dollars + and sixty-six cents. It is charged in the indictment that this was paid in + pursuance of the order set out in the indictment, and we find on page + sixty-four that the order was dated July 16, 1880. That was the order. No + such payment was made in pursuance of that order for the reason that an + order was made nearly a year afterwards, and the order of July 16, 1880, + as set out in the indictment, was not retrospective, a fatal mistake in + their indictment. As a matter of fact, the pay for the fourth quarter of + 1879 was five thousand three hundred and seventy-five dollars. There were + deductions to the amount of three hundred and fifty-two dollars and + seventy-two cents and the balance was five thousand and twenty-two dollars + and twenty-eight cents, instead of eleven thousand eight hundred and + nineteen dollars and sixty-six cents. And this was paid to Vaile, who was + a subcontractor at full rates, and the variance in the case is absurd and + fatal. + </p> + <p> + Route 46247, Redding to Alturas. The charge is that Peck and Dorsey filed + a fraudulent account for the third quarter of 1879 for seven thousand four + hundred and eighty-five dollars and six cents. This was in pursuance of + the order set out in the indictment, and the only order set out in the + indictment is dated February 11, 1881. That is another fatal variance. + </p> + <p> + The next route is 35051, Bismarck to Miles City. The charge is that Miner + and Vaile presented a false account for the fourth quarter of 1879, for + fourteen thousand one hundred. The pay for the quarter for six trips was + seventeen thousand five hundred dollars. For three trips under the old + order the pay was eight thousand seven hundred and fifty dollars, leaving + eight thousand seven hundred and fifty dollars as the outside sum that + could have been fraudulent, and yet the Government charges fourteen + thousand one hundred dollars, an absolutely fatal variance. Besides that, + there were deductions in that very quarter of four thousand five hundred + and three dollars. This amount deducted from eight thousand seven hundred + and fifty dollars leaves four thousand two hundred and fifty-six dollars + and eleven cents as the greatest amount that could by any possibility have + been fraudulent. + </p> + <p> + Three routes are lumped together next in the indictment, 38134, 38135, + 38140, 38134, Pueblo to Rosita; 38135, Pueblo to Greenhorn; and 38,140, + Trinidad to Madison. + </p> + <p> + The charge here is on page eighty-one of the indictment that Miner + presented a fraudulent account for the fourth quarter of 1879 on routes + amounting to two thousand seven hundred and seventy-six dollars and + forty-seven cents. + </p> + <p> + The greatest possible difference that could be made on route 38135 is + seven hundred and sixty-seven dollars and twenty cents. The greatest + difference that could be made on route 38134 is one thousand nine hundred + and forty dollars. + </p> + <p> + The greatest difference that could be made on route 38140 is six hundred + and eighty-nine dollars and fifty-one cents. These three differences added + together do not make what is charged in the indictment, three thousand + seven hundred and seventy-six dollars and forty-seven cents, but as a + matter of fact they amount to three thousand three hundred and ninety-six + dollars and seventy-one cents. This cannot be the fraudulent claim + described in the indictment. + </p> + <p> + But I find that on the first route there was a reduction of twelve dollars + and sixty cents, on the second route of one hundred and fifty-four dollars + and thirty-eight cents, and on the third of thirty-eight dollars and two + cents, and these deductions added together make two hundred and five + dollars and ninety cents, and deducted from the three thousand three + hundred and ninety-six dollars and seventy-one cents leaves three thousand + one hundred and ninety dollars and eighty-one cents. And yet the + Government charges that the fraudulent claim was two thousand seven + hundred and seventy-six dollars and forty-seven cents. It is impossible + that the amount of the claim said to be fraudulent by the Government can + be correct; but, as a matter of fact, according to the evidence, there was + no fraud upon any claim in that route. + </p> + <p> + The next is route 38150, Saguache to Lake City. The charge is that Miner + presented a false account for two thousand two hundred and two dollars and + seventy-seven cents, and that he did this in pursuance of the order set + out in the indictment, and the only order set out is dated August 24, + 1880. That is an absolutely fatal variance. As a matter of fact, Sanderson + was a subcontractor on this route from July 1, 1878, at full rates, and he + carried the mail from July 1, 1878. The route was expedited on his oath + and for his benefit. No point was made during the trial that the oath was + not true. And the pay was calculated upon Sanderson's oath, and the money + paid to him. The only claim is that there was an error in the order of + four thousand five hundred and sixty-eight dollars per year, and it is + admitted that the mistake was afterwards corrected and the money refunded. + You remember it, gentlemen. Mr. Turner, in making up the account showing + how much the expedition would come to—and you understand the way in + which they make up that expedition—made a mistake and added to the + expedition and the then schedule the amount of the then schedule, four + thousand and odd dollars. He made the mistake and it was honestly made. No + man would dishonestly do it because it was so easy of detection, and that + was his only fault, gentlemen. The only crime he ever committed in this + case was to make that mistake. That mistake was afterwards discovered, and + the money was paid back by Mr. Sanderson; and, yet, that man has been + indicted, has been taken from his home charged with a crime. He has been + pursued as though he were a wild beast. He made one mistake. They could + not prove the slightest thing against him. There was no evidence touching + him. There was only one way for them, and that was to dismiss him with an + insult. You remember the case. Not one thing against that man—not + one single thing. He stands as clear of any charge in this indictment as + any one upon this jury. He is an honest man. It is admitted now there was + no conspiracy on this route either. It is Sanderson's route, not ours. Not + only that, but the Government says that it was not one of the routes with + which Vaile had anything to do, or in which Vaile had any possible + interest. The failure here is fatal to the indictment, and I shall + endeavor to show that it is fatal to the entire case. + </p> + <p> + The next route is 35105, Vermillion to Sioux Falls. It is charged that + Vaile and Dorsey presented a false account for the third quarter of 1879, + for eight hundred and eighty-one dollars and fourteen cents. The pay for + six trips and expedition was one thousand and eighty-five dollars and + fifty-eight cents. The pay for two trips on the old schedule was two + hundred and four dollars and forty-four cents, showing a balance for once, + as stated in the indictment—it being the only time—of eight + hundred and eighty-one dollars and fourteen cents. + </p> + <p> + Parties are entitled to pay for the extra trips, and the number of men and + horses has nothing to do with the value of an extra trip. You understand + that. If I agree to carry the mail once a week for five thousand dollars a + quarter, and you wanted me to carry it twice a week, then I get ten + thousand dollars a quarter, no matter if I do it with the same horses and + the same men. That is not the Government's business. You all understand + that, do you not? Every time you increase a trip you increase the pay to + the exact extent of that trip, no matter whether it takes more horses or + not. If I agree to carry the mail once a month for five thousand dollars a + year, and you want me to carry it once a week I am entitled to twenty + thousand dollars, no matter if I do it with all the same men and same + horses. It is nobody's business. But, if the Government wants the mail + carried faster, then I am entitled to pay according to the men and animals + required at a more rapid rate. You all understand that. But as a matter of + fact, upon this route, Vaile was the subcontractor at full rates, was so + recognized by the Government and received every dollar himself, and, + consequently, the charge that it was paid to John W. Dorsey is not true, + and is a fatal variance. The Government proved it was paid to Vaile. + </p> + <p> + Next we have two routes, 38145, Ojo Caliente to Parrot City, and 38156, + Silverton to Parrot City. These routes are put together in the indictment. + It is charged that a false account was presented of six thousand and four + dollars and seventeen cents, and that this was done in pursuance of an + order set out in the indictment. The order set out is on page forty-seven. + It is in relation to route 38145. The order was made not in relation to + the other route. No order as to the other route was made. This was made + February 26, 1881, consequently the claim presented for the third quarter + of 1879 could not by any possibility have been in pursuance of that order. + That order was made in 1881. The payment for the third quarter of 1879 + could not by any possibility have been made in pursuance of that order. + The evidence shows that it was paid before, and consequently there is a + fatal variance. + </p> + <p> + Routes 40104, Mineral Park to Pioche, and 40113, Wilcox to Clifton—two + routes put together. The charge is a fraudulent presentation for the third + quarter of 1879, of seven thousand and sixty-four dollars and seventy-two + cents. The pay on the first route was ten thousand five hundred and three + dollars and sixty-two cents, on the second route three thousand five + hundred and twenty-eight dollars. No proof has been offered that the + expedition was fraudulent. Not a witness was called on route 40113. Not a + solitary petition was objected to, the truth of no oath was called in + question, the honesty of no order was attacked, and how can you say that + the claim was fraudulent? No order attacked, no oath questioned, no + petition impeached. The only evidence upon these two routes was something + read in regard to productiveness and the size of the mail, and that is + all. + </p> + <p> + Route 38113, Rawlins to White River. The charge is that John W. Dorsey and + Rerdell presented a false account for the third quarter of 1879 for two + thousand nine hundred and seventy-five dollars. The order set out in the + indictment was made March 8, 1881, consequently the variance is absolutely + fatal, and there is no allegation in the indictment that the expedition + was fraudulent. + </p> + <p> + Now I have gone through every route with the payments. As to the general + allegation of the amount of money fraudulently claimed and received, the + allegation in the indictment is that J. W. Dorsey received, by virtue of + these fraudulent orders, made in pursuance of the conspiracy, brought to + perfection by these overt acts, for the year ending the 30th day of June, + 1880, one hundred and twenty-four thousand five hundred and ninety-one + dollars. Good. The evidence shows that there was paid on the seven Dorsey + routes in all sixty-two thousand eight hundred and thirty-one dollars and + forty-six cents. That is fatal as to that. + </p> + <p> + But we will go further. One of these routes was turned over to Vaile by + Dorsey, route 35015, and the amount paid to Vaile was two thousand eight + hundred and thirty-seven dollars and sixteen cents. So that the amount + paid on the Dorsey routes, instead of being one hundred and twenty-four + thousand five hundred and ninety-one dollars, was in truth and in fact + fifty-eight thousand nine hundred and ninety-four dollars and thirty + cents. + </p> + <p> + Now, the charge is that this was all received by John W. Dorsey, whereas + the evidence shows that John W. Dorsey received three warrants, two for + eighty-seven dollars each, both of which were recouped, and one warrant + for three hundred and ninety-two dollars, and that is every cent he ever + received, according to the evidence in this case. There is what you might + call a discrepancy. The indictment says he got one hundred and twenty-four + thousand five hundred and ninety-one dollars. The evidence shows that he + got three hundred and ninety-two dollars and not another copper. I shall + insist that that is a variance. If it is not a variance, I will take my + oath it is a difference. + </p> + <p> + The second claim is that John R. Miner received upon the routes awarded to + him, and claimed to be his in the indictment, ninety-three thousand and + sixty-seven dollars for the fiscal year ending June 30, 1880. The evidence + is that as a matter of fact on all these routes the money was paid to + assignees and subcontractors, and that John R. Miner as a fact, received + not one cent from the Government. + </p> + <p> + The third charge is that Peck received for the same fiscal year one + hundred and eight-seven thousand four hundred and thirty-eight dollars. + The evidence shows that he received nothing. There is another difference. + Thus it will be seen that every link in the chain in this indictment is + either a mistake or a falsehood. Every other one is a mistake and then + every other one is a falsehood, and this indictment was made by adding + mistakes to falsehoods, and what the indictment weaves the evidence + reveals. + </p> + <p> + Now, why were these dates put in this indictment, gentlemen? We have now + gone over every overt act charged in this indictment. The result is that + not one of the charges set forth has really been sustained. Hereafter I + will notice some things that have been proved outside of the indictment. + Nearly every petition and letter is admitted to have been honest and + genuine. Those that have been attacked were misdescribed in the indictment + and the evidence has shown that they were substantially true. There is a + fatal variance between the allegation and the proof so far as these + charges in the indictment are concerned, and they are left absolutely + without a prop. The dates attached to the overt acts are false. There is + only one of the routes in which the petitions are properly described, and + that is route 44140, where the petitions are alleged to have been and were + filed on the 23d of May, and every one was proved to have been genuine and + honest. The dates in the indictment were false. Now, why? Let me tell you, + gentlemen. They had to deceive the grand jury. It would not do to tell the + grand jury these men conspired on the 23d of May, and in pursuance to that + conspiracy filed some affidavits on the third day preceding. They had + first to deceive the grand jury and put in false dates for the filing of + petitions, for the filing of subcontracts and for the drawing of money. + What else did they want these false dates for? To deceive the Circuit + Court, or rather the Supreme Court—to deceive his Honor, because if + the date of these petitions, the date of these oaths, had been set forth + in the indictment it would have been bad. The Court would have instantly + said, you cannot prove a conspiracy on the 23d of May by showing acts in + April previous. So these false dates were put in, in the first place, to + fool the grand jury, and in the next place to keep this Court in the dark. + It was necessary to have a good charge on paper, and why? Did they expect + to win this case on that indictment? No; but they could keep it in court + long enough to allow them to attack and malign the character of these + defendants; they could keep it in court long enough to vent their venom + and spleen upon good and honest men, and justify in part the commencement + of this prosecution. + </p> + <p> + This forenoon I tried to strip the green leaves off the tree of this + indictment. Now I propose to attack the principal limbs and trunk. What is + the scheme of this indictment? I insist that the law is precisely the same + as to the scheme of the conspiracy in its description that it is as to the + description of an overt act. Now, what is the scheme of this indictment? + That is to say, the scheme of this conspiracy? We want to know what we are + doing. It is the great bulwark of human liberty that the charge against a + man must be in writing, and must be truthfully described. + </p> + <p> + First. For the defendants, with the exception of the officers Brady and + Turner, to write, and procure the writing of, fraudulent letters, + communications, and applications. Now, let us be honest. Is there the + slightest evidence that a fraudulent letter was ever written? Is there the + slightest evidence that a fraudulent communication was ever sent to the + department? Not the slightest evidence. + </p> + <p> + Second. To attach to said petitions and applications forged names. Is + there any evidence of that except in one case, and the evidence in that + case is that the order was made before the petition was received and that + the petition was never acted upon. More than that, is there any evidence + as to who forged any names to any petitions? Not the slightest. Which of + these defendants are you going to find guilty upon that petition when + there is not the slightest evidence as to who wrote it? What next? To have + these petitions signed by fictitious names or with the names of persons + not residing upon the routes. Is there any evidence of that kind? Is there + any evidence that the signatures of real persons were attached, and the + real persons did not live upon the routes? I leave it to you, gentlemen. + </p> + <p> + Fourth. To make and procure false oaths, declarations, and statements. + Those I shall examine. + </p> + <p> + Fifth. For William H. Turner falsely to indorse on the back of these + jackets false brief statements of the contents of genuine petitions. You + know what has become of that charge, gentlemen. + </p> + <p> + This indictment against Turner has been changed into a certificate of good + moral character. That is the end of the indictment, so far as he is + concerned, and I am glad of it. He is a man who fought to keep the flag of + my country in the air, and who lay upon the field of Gettysburg sixteen + days with the lead of the enemy in his body, and I am glad to have the + evidence show that he was not only a patriot, but an honest man with a + spotless reputation. I do not think that, in order to be a great man, you + have got to be as cold as an icicle. I do not think that if you wish to be + like God (if there is one) it is necessary to be heartless. That is not my + judgment. When I find that a man is honest I am glad of it. When I find + that a patriot has been sustained my heart throbs in unison with his. What + is the next? That Brady, for the benefit, gain, and profit of all the + defendants—and I emphasize the word all because upon that I am going + to cite to the court a little law—made fraudulent orders; that is, + for the benefit of Turner, Brady, and everybody else. Eighth. That he + caused these fraudulent orders to be certified to the Auditor of the + Treasury for the Post-Office Department. Ninth. That Brady refused to + enter fines against these contractors when they failed to perform their + service; that he fraudulently refused to impose these fines. What is the + evidence? The evidence is that the whole amount of fines imposed by Brady + was one hundred and twenty-six thousand eight hundred and sixty-five + dollars and eighty cents. That evidence is given in support of the charge + that he refused to impose them, yet the imposition amounts to one hundred + and twenty-six thousand dollars. How much of that vast sum did he relieve + the contractors from upon the evidence? Twenty-three thousand dollars, + leaving standing of fines that were paid, one hundred and three thousand + six hundred and seventy dollars and twelve cents. That evidence is offered + to show that he conspired not to impose the fines. One hundred and + twenty-six thousand dollars imposed in fines, and only twenty-three + thousand dollars remitted. Yet the charge was, and an argument has been + made upon it before this jury, that the contractors agreed that he was to + have fifty per cent, of all fines that he took off. Think of a man making + that contract with aman having power to impose the fines. "Now, all you + will take off I will give you fifty per cent. of." There is an old story + that a friend of a man who was bitten by a dog said to him, "If you will + take some bread and sop it in the blood and give it to the dog it will + cure the bite." "Yes," he says; "but, my God, suppose the other dogs + should hear of it?" Think of putting yourself in the power of a man who + has the right to fine you. And yet that is a part of the logic of this + prosecution. The next charge is of fraudulently cutting off service and + then fraudulently starting it and allowing a month's extra pay. That + happened, I believe, in two cases—thirty dollars in one case and + something more in the other. + </p> + <p> + The Court. Thirty-nine dollars. + </p> + <p> + Mr. Ingersoll. Then the case is nine dollars better than I thought. + Twelfth. By the defendants fraudulently filing, subcontracts. That I have + already shown is an impossible offence. All these things were done for the + purpose of deceiving the Postmaster-General. Now, the Court has already + intimated that we have no right to say that the Postmaster-General would + be a good witness to show whether he was deceived or not, and that it may + be that his eyes were sealed so tightly that he has not got them open yet. + But whether they can prove it by him or by somebody else they have got to + prove it in order to make out this case. + </p> + <p> + That is the scheme of this indictment. It makes no difference whether the + Postmaster-General has found out that he was deceived or not. The jury + have got to find it out before they find a verdict against the defendants. + It is possible that the Postmaster-General thinks he was not deceived or + that he was; I do not know what his opinion is and do not care. They have + got to prove it by somebody. I do not say they can prove it by him. I do + not know. This is the scheme, and what I insist is that this scheme must + be substantiated and must be proved precisely as it has been laid without + the variation of a hair. You must prove it as you have charged it, and you + must charge it as you prove it. It is simply a double statement. I wish to + submit some authorities to the Court upon this question: Must the exact + scheme be proved? First, I will refer the court to the tenth edition of + Starkie, page 627. * * * + </p> + <p> + "It is a most general rule that no allegation which is descriptive of the + identity of that which is legally essential to the claim or charge can + ever be rejected. * * * As an absolute and natural identity of the claim + or charge alleged with that proved consists in the agreement between them + in all particulars, so their legal identity consists in their agreement in + all the particulars legally essential to support the charge or claim, and + the identity of those particulars depends wholly upon the proof of the + allegation and circumstances by which they are ascertained, limited and + described." + </p> + <p> + No matter whether the description was necessary or unnecessary: + </p> + <p> + "To reject any allegation descriptive of that which is essential to a + charge or a claim would obviously tend to mislead the adversary. * * * It + seems, indeed, to be a universal rule that a plaintiff or prosecutor shall + in no case be allowed to transgress those limits which in point of + description, limitation, and extent he has prescribed for himself; he + selects his own terms in order to express the nature and extent of his + charge or claim, he cannot therefore justly complain that he is limited by + them. * * * As no allegation therefore which is descriptive of any fact or + matter which is legally essential to the claim or charge can be rejected + altogether, inasmuch as the variance destroys the legal identity of the + claim or charge alleged with that which is proved, upon the same principle + no allegation can be proved partially in respect to the extent or + magnitude where the precise extent or magnitude is in its nature + descriptive of the charge or claim." + </p> + <p> + Nothing can be plainer than that. I refer also to Starkie on Evidence, 7th + American edition, vol. 1, page 442. There he says: + </p> + <p> + "In the next place it is clear that no averment of any matter essential to + the claim or charge can ever be rejected, and this position extends to all + allegations which operate by way of description or limitation of that + which is material." + </p> + <p> + I also cite Russell on Crimes, 9th American edition, vol. 3, page 305, and + Roscoe's Criminal Evidence, 7th edition, page 86. + </p> + <p> + I now call the attention of the Court to the case of Rex vs. Pollman and + others, 2 Campbell, 239. I may say before reading this decision that, in + my judgment, so far as the scheme of this indictment is concerned, it + should end this case: + </p> + <p> + "This was an indictment against the defendants which charged that they + unlawfully and corruptly did meet, combine, conspire, consult, consent and + agree among themselves and together, with divers other evil-disposed + persons, to the jurors unknown, unlawfully and corruptly to procure, + obtain, receive, have and take, namely, to the use of them, the said F. + P., J. K. and S. H., and of certain other persons to the jurors likewise + unknown, large sums of money, namely, the sum of two thousand pounds, as a + compensation and reward for an appointment to be made by the lord's + commissioners of the treasury of our lord the king of some person to a + certain office, touching and concerning His Majesty's customs, to wit, the + office of a coast waiter in the port of London, through the corrupt means + and procurement of them, the said F. P., J. K. and S. H., and of certain + other persons to the jurors unknown, the said office then and there being + an office of public trust, touching the landing and shipping coastwise of + divers goods liable to certain duties of custom." + </p> + <p> + The indictment went on and stated various overt acts in furtherance of the + conspiracy. + </p> + <p> + "There were several other counts which all laid the conspiracy in the same + way." + </p> + <p> + Now I come to the part of the case which, in my judgment, affects this: + </p> + <p> + "It appears that the defendants Pollman, Keylock and Harvey had entered + into a negotiation with one Hesse to procure him the office mentioned in + the indictment for the sum of two thousand pounds, which they had agreed + to share among themselves in certain stipulated proportions; but although + this money was lodged at the banking house of Steyks, Snaith & Co, in + which the defendant Watson was a partner, and he knew it was to be paid to + Pollman and Keylock upon Hesse's appointment, there was no evidence to + show that he knew that Sarah Harvey was to have a part of it, or that she + was at all implicated in the transaction." + </p> + <p> + He was a co-conspirator, and he knew that the money was to be deposited at + this place. + </p> + <p> + He knew that, but he did not know that Sarah Harvey was to have a part of + it. + </p> + <p> + "Lord Ellenborough threw out a doubt whether as to Watson the indictment + was supported by the evidence." + </p> + <p> + The evidence being that Watson did not know that it was to be divided in + the precise way stated in the indictment. Manifestly, they need not have + stated in the indictment how it was to be divided; but having stated it, + the question is: Are they bound by the statement? Let us see: + </p> + <p> + "The attorney-general contended that the words in italics coming under a + <i>videlicet</i> might be entirely rejected. The sense would be complete + without them. The indictment would then run that the defendants conspired + together to obtain a large sum of money as a consideration and reward for + appointment to be made by the lord's commissioners of the treasury. This + was the corpus delicti. The use to which the money might be applied was + wholly immaterial. The offence of conspiring together would be complete + however the money might be disposed of." + </p> + <p> + True. + </p> + <p> + "There was no occasion to state this, and the averment might be treated as + surplusage. Suppose the manner in which the money was to be disposed of + had been unknown. Would it have been impossible to convict those engaged + in the conspiracy? But, without rejecting the words, the variance was + immaterial. The charge in the indictment had been substantially made out + as laid. + </p> + <p> + "Dallas and Walton, of counsel for Watson, denied that the words could be + rejected, though laid under a videlicet, as they were material, and they + were not repugnant to anything that went before. The application of the + money might be of the very essence of the offence. Suppose it had been + obtained for the use of the lords of the treasury, who would make the + appointment: would not this be a much greater crime than if the money had + been obtained for the benefit of a public charity?" + </p> + <p> + I think that reasoning is bad. I think the crime is exactly the same. + </p> + <p> + "But if the words were rejected then the variance was more palpable. In + that case, there being no mention of any persons to whose use the money + was obtained, the necessary presumption was that it was obtained to the + use of the defendants themselves." + </p> + <p> + That is good sense. + </p> + <p> + "The evidence shows, however, that Watson was to have no part of it, and + that he was utterly ignorant of the manner in which it was to be + distributed. + </p> + <p> + "Lord Ellenborough. There can be no doubt that the indictment might have + been so drawn as to include Watson in the conspiracy. Even if the manner + the money to be applied was unknown, this might have been stated on the + face of the indictment, and then no evidence of its application would have + been required. The question is, whether the conspiracy as actually laid be + proved by the evidence?" + </p> + <p> + That is the question: Have they made out a case according to the scheme of + the indictment? Has the conspiracy as laid been proved by the evidence? + </p> + <p> + "I think that as to Watson it is not. He is charged with conspiring to + procure this appointment through the medium of Mrs. Harvey, of whose + existence for aught that appears he was utterly ignorant. When a + conspiracy is charged it must be charged truly." + </p> + <p> + He did not know that Mrs. Harvey was to have a portion of the money, and + yet she was a member of the conspiracy. The evidence showed that she was + to have a portion of it, and Lord Ellenborough says that they did not + prove the charge as laid, and that it cannot include Watson. + </p> + <p> + "Garrow submitted that it was unnecessary to prove that each of the + defendants knew how the money was to be disposed of, and that it was + enough to show that the destination of the money was as stated in the + indictment. A fact of which all those engaged in the conspiracy must be + taken to be cognizant. Watson by engaging with the other conspirators to + gain the same end, had adopted the means by which the end was to be + accomplished." + </p> + <p> + That is what the attorney for the Government says. Lord Ellenborough + replies: + </p> + <p> + "You must prove that all the defendants were cognizant of the object of + the conspiracy and the mode stated in the indictment by which it was to be + carried into effect. A contrary doctrine would be extremely dangerous. The + defendant Watson must be acquitted." + </p> + <p> + Now let us apply that case to this. In the first place, they must not only + prove this indictment according to the scheme, but they must prove that + every defendant understood that scheme, knew the scheme, how it was to be + accomplished and what was done with the money. + </p> + <p> + The Court. In that case Watson was acquitted. What was done with the + others? + </p> + <p> + Mr. Ingersoll. They, of course, were found guilty, because they were + guilty, as the indictment charged. They knew the exact scheme set forth in + the indictment. They were guilty exactly as the indictment said. They + divided the money exactly as the indictment charged they divided the + money, and they were cognizant of every fact set forth in the indictment. + But Watson, although a co-conspirator, did not know what was to be done + with the money, and consequently was to be discharged. Why? Because they + did not prove the conspiracy as to him as charged. They need not have set + forth in the indictment what was to be done with the money, but they did + set it forth, and then they had to prove it. They need not have said that + every man knew what was done with the money, but they did say that every + man knew, and they failed to prove it, and when they failed to prove it as + to Watson he was discharged. + </p> + <p> + Now, gentlemen of the jury, what I insist upon and what I shall ask the + Court to instruct you is that the Government, no matter how guilty the + defendant may be, no matter if he has robbed this Government of hundreds + of millions, is to be tried by this indictment, is to be guilty of this + charge as written in this indictment and nowhere else; and he has got to + understand it. They say he understood it, and they have got to prove that + he understood it. + </p> + <p> + Now, upon that same subject they say that the money was to be divided + between all these parties—between Rerdell, Turner and everybody. I + think it was Mr. Bliss who said there was no evidence that Rerdell ever + had any of the money. Certainly they do not think that Turner obtained any + of the money. Is there any evidence of it? Not the slightest. Is there + evidence that there ever was any division, any evidence that there was + ever any money divided upon a solitary route mentioned in this indictment? + Not one particle. If you say there is evidence, when was the division + made? + </p> + <p> + The Court. The question is not what was done. The question is with what + view the conspiracy was entered into. + </p> + <p> + Mr. Ingersoll. Certainly. + </p> + <p> + The Court. 'The object of the conspiracy may have failed, and this money + might not have been divided as they intended, but still the conspiracy + would be here. + </p> + <p> + Mr. Ingersoll. Good, perfectly. But if they set forth in this indictment + that the money was divided, that statement is not worth a last year's dead + leaf unless they prove it. That is all I insist upon. You cannot find + anybody guilty of charges in an indictment unless you prove them. Unless + you prove them they amount to no more than charges written in water, than + characters engraved on fog or written on clouds. You have got to prove + them. + </p> + <p> + Now, upon this same point I say that if the scheme has not been + established by the evidence, the case fails, no matter what the proof. The + offence must not only be proved as charged, but it must be charged as + proved, doubling the statement for the sake of doubling the idea of + accuracy. That is in Archibald's Criminal Pleadings, American edition, + page 36. The same thing is held in First Chitty's Criminal Law, 213. I + also refer to the case of King against Walker, 3d Campbell, 264; King vs. + Robinson, 1st Hope's Nisi Prius Reports, 595. I have the books here, but I + will not take up the time of this Court in reading them. + </p> + <p> + Now, if I am right, that is the language of that indictment. The overt + acts with the leaves are gone; the scheme with the branch and trunk are + gone. They prove no such scheme, they prove no such division. + </p> + <p> + I will now proceed to examine the alleged evidence against my clients, + Stephen W. and John W. Dorsey, and I want to say right in the commencement + that suspicion is not evidence. You charge that a couple of persons + conspired. That they met about nine o'clock on the shadowy side of the + street. + </p> + <p> + <i>A suspicious circumstance</i>. Why did they not get <i>under the lamp?</i> + They were seen together once more, and the moment a man came up they + walked off. Guilty. They ran. And out of these idiotic suspicions that + never would have entered the mind, except for the reason that the persons + were charged, hundreds of people begin to say, "There is something in it. + They met four or five times. One of them wrote a letter to the other, and + so help me God it was not dated." Another suspicious circumstance. "There + was a heading on the paper. It was not the number of his office." So they + work it up, and ignorance begins to stare, and wonder to open its mouth, + and finally prejudice finds a verdict. + </p> + <p> + Suspicion, gentlemen, is not evidence. You want to go at this with this + idea. Whatever a man does, the presumption is it is an honest act until + the contrary is shown. These men wrote letters. They had a right to do it. + They met. They had a right to meet. They entered into contracts. They had + a right to do it, no matter whether they were dated or not dated. One of + the greatest judges of England said if you let out of the greatest man's + brains all the suspicions, all the rumors, all the mistakes, and all the + nonsense, the amount of pure knowledge left would be extremely small. If + you take out of this case all the suspicions, all the guesses, all the + rumors, all the epithets, all the arrogant declarations, the amount of + real evidence would be surprisingly small. + </p> + <p> + Now, I want to try this case that way. I do not want to try it by + prejudice. Prejudice is born of ignorance and malice. One of the greatest + men of this country said prejudice is the spider of the mind. It weaves + its web over every window and over every crevice where light can enter, + and then disputes the existence of the light that it has excluded. That is + prejudice. Prejudice will give the lie to all the other senses. It will + swear the northern star out of the sky of truth. You must avoid it. It is + the womb of injustice, and a man who cannot rise above prejudice is not a + civilized man; he is simply a barbarian. I do not want this case tried on + prejudice. Prejudice will shut its eyes against the light. I want you to + try it without that. + </p> + <p> + And right here, although it is a subject about which most courts are a + little tender, the question arises as to the jury being judges of the law + and fact. One of the attorneys for the Government, Mr. Merrick, told us + that at one time he insisted that the jury was the judge of the law, and + made this remarkable declaration: + </p> + <p> + "But even at the time I spoke the words to the jury I did not believe them + to be indicative of safe and true principles of law." + </p> + <p> + Was he candid then? Is he candid now? I do not know. But his doctrine + appears to be this: "When I am afraid of the court I insist on the jury + judging the law. When I am afraid of the jury I turn the law over to the + court. But in this case, having confidence in both judge and jury, it is + wholly immaterial to me how the question is decided." + </p> + <p> + Now, if it please the Court, I believe the law to be simply this: I + believe the jury to be absolute judges of the facts, and yet if on the + facts they find a man guilty whom the court thinks is not guilty, the + court will grant a new trial. The court has the power to set aside a + verdict because the jury find contrary to the evidence. The court cannot + do it, however, when the jury finds a verdict of not guilty. I do not + believe that the jury have a right to disregard the law from the court + unless a juryman upon his oath can say that he believes, he knows, or is + satisfied that is not the law; and he must be honest in that, and he must + not be acting upon caprice. He must be absolutely honest. He must be in + that condition of mind that to follow the law pointed out by the court + would trample upon his conscience, and that he has not the right to do. + That is all the distance I go. + </p> + <p> + The history of the world will show that some of the grandest advances made + in law have been made by juries who would not allow their consciences to + be trampled into the earth by tyrannical judges. I am not saying that for + this case. + </p> + <p> + I am simply saying that as a fact. There was a time in this country when + they used to try a man who helped another to gain his liberty, and there + was now and then a man on the jury who had sense enough, and heart enough, + and conscience enough to say, "I will die before I carry out that kind of + law." They did not carry it out either, and finally the law became so + contemptible, so execrable, that everybody despised it. All I ask this + jury to do is just to be governed by the evidence and by the law as the + Court will give it to them, honestly and fairly. + </p> + <p> + Now, I am coming to the evidence against John W. Dorsey. I am traveling + through this case now we have started it. As you have heard very little + about it, gentlemen, and there is nothing in the world like speaking on a + fresh subject. I feel-an interest in John W. Dorsey. He is my client. I + believe him to be an absolutely honest man. He is willing to take the + effect of all his acts. He is no sneak, no skulk. He will take it as it + is. Let us see what he has done. + </p> + <p> + The first witness is Mr. Boone. Mr. Boone swears that John W. Dorsey was + one of the original partners. Well, that is so. It is claimed that the + conspiracy was entered into before there was any bidding. Well, Boone does + not uphold that view. Now, if Boone and Miner and John W. Dorsey and Peck + had an arrangement with Brady whereby they were to bid and then have + expedition and increase, I want to ask you why did Boone write to all the + postmasters to find out about the roads and the cost of provender, and the + kind of weather they had in the winter in order to ascertain what bid to + make? If he had had an arrangement with the Second Assistant + Postmaster-General to expedite the route he would have simply made up his + mind to bid lower than anybody else, and he would not have cared a cent + what kind of roads they had there, or what kind of weather they had in the + winter, or how much horse provender cost, and yet he sent out thousands of + circulars to find out these facts. For what? To make bids. What for? + According to the Government these were routes on which they had already + conspired for expedition and increase without the slightest reference to + the horses and men, and of course, if that theory is true, Boone is one of + the conspirators. But I will come to that hereafter. + </p> + <p> + More routes, according to Boone's testimony, were awarded than they + anticipated. They got, I think, one hundred and twenty-six. They had no + money to stock the routes. They got more than they expected. Well, that + was not a crime. Boone left in August, 1878, and Mr. Merrick takes the + ground that Boone had done the work, manipulated all the machinery, and + yet could not be trusted with the secret. Boone had gathered all the + information, he had done the entire business, and yet the secret up to + that time had been successfully kept from him. Do you believe that? + </p> + <p> + Now, Vaile came, and another partnership was formed, and the second + partnership remained in force, I think, till the 1st of April, 1879, or + the last day of March, and then the routes were divided. Now, then, John + W. Dorsey is charged with conspiracy as to these routes, and these routes + were afterwards assigned to S. W. Dorsey to secure advances and + indorsements that were made. + </p> + <p> + Now, of the routes mentioned in the indictment, John W. Dorsey was + interested in seven at the time of the division. From Vermillion to Sioux + Falls, from White River to Rawlins, from Garland to Parrott City, from + Ouray to Los Pinos, from Silverton to Parrott City, from Mineral Park to + Pioche, and from Tres Alamos to Clifton. How much money did he get on all + these routes? I have already shown you. He received two warrants for + eighty-seven dollars and they recouped them both. He received another + warrant for three hundred and ninety-two dollars and succeeded in keeping + it. That is all the money he got in these seven routes. Now, the testimony + of Mr. Vaile shows, if it shows anything, that after April, 1879, he took + those routes and kept them and never paid a dollar to any official in the + world, and he also swears that no matter how much he got, it made no + difference as to the routes that had been given to John W. Dorsey and + Peck. It could not in any way affect their amount, and that no person in + the world except themselves had any interest in them. + </p> + <p> + Now, it is charged that false affidavits were made by John W. Dorsey, and + that the making of these false affidavits was the result of conspiracy. + Let us see. It has been shown by the evidence, and I have already shown + it, and conclusively shown it, that the affidavit was substantially + correct, so far as the proportion was concerned. + </p> + <p> + Now, let me explain what I mean by proportion. For instance, I am getting + five thousand dollars a year on a route, and it takes five men and ten + horses. That is an aggregate of fifteen. Now, suppose I simply expedite it + a certain number of miles an hour, and say it will take fifteen men and + thirty horses. That makes an aggregate of forty-five, does it not? Then + the Government gives me three times as much for the expedited service as + for the then service. Now, suppose I am getting a thousand dollars, and it + only takes one man and one horse, and I make an affidavit that it takes + one hundred men and one hundred horses, and if it is expedited it will + take two hundred men and two hundred horses, how much more do I get? I get + just double, and the result of the affidavit is exactly the same as though + I said the one man and one horse that it then took, and it would require + two men and two horses. If you keep the proportion you cannot by any + possibility commit a fraud against the Government. Now we understand that. + Now let us see. When you make an affidavit, what do you do? When you make + an affidavit of how many horses it will take, you take into consideration + the length of the term, three or four years. You take into consideration + the life of a horse. You take into consideration the roads and the + weather. You take into consideration every risk, and find it is only a + matter of judgment, only a matter of opinion, and the fact that men differ + as to their judgment upon those points accounts for the fact that they + make different affidavits. If everybody made the same calculation as to + food, as to weather, as to roads, as to disease, everybody would make + substantially the same bid, but on the same route they differ thousands of + dollars a year, because they differ in judgment as to the number of horses + it will require and as to the number of men. + </p> + <p> + And then there is another thing. Some men will make a horse do twice as + much as others. Some men are hard and fierce and merciless. Some men are + like they ask you to be in this case—icicles. Some men resemble the + gods so far that they will make a horse do five times the work they + should, and other men are merciful to the dumb beast. So they differ in + judgment. One man says he can go twenty-five miles every day, and another + man says he can only go fifteen. One man says stations ought to be built + twenty-five miles apart; another says they should be built ten miles + apart. They differ, and for that reason, gentlemen, the bids differ, and + for that reason the affidavits differ. + </p> + <p> + I shall not speak of all these affidavits, but I shall speak of the ones + that have been attacked. Mr. Merrick called Mr Dorsey a perjurer because + he made two affidavits on route 38145. Now, no such charge is made in the + indictment, but I will answer it. Now, then, as to the two indictments—The + Court. Two affidavits. + </p> + <p> + Mr. Ingersoll. Two affidavits. Well, there ought to have been two + indictments to cover both cases. Now, this is on route 38145, Garland to + Parrott City. Now, there were two affidavits made on 38145, as is set + forth in the evidence, but it is not in the indictment. The first + affidavit was sworn to March 11, 1879, in Vermont, and filed April 16, + 1879. Neither could come in under this conspiracy anyway. The second was + made in Washington, April 26, 1879, and filed the same day, which is a + suspicious circumstance. The letter dated April 23, 1879, according to the + prosecution, purports to transmit an affidavit made on the 26. There is no + evidence that the affidavit dated the 26 was inclosed in the letter dated + the 23. The affidavit set forth the number of men and animals required to + run the route on a schedule of fifty hours, three trips a week. There is + no evidence as to the character of the paper transmitted, if any was + transmitted, nor in fact, is there any evidence that any paper was + transmitted with that letter. + </p> + <p> + Now, on page 804 of the record, Mr. Bliss submitted two papers to Mr. + McSweeney, a witness, saying, "I show you two papers pinned together." Who + pinned them? I do not know. "One dated April 26, 1879, and the other dated + April 24, 1879." The paper dated April 26 is indorsed in the handwriting + of William H. Turner. The indorsement on the paper dated April 24 is in + the handwriting of Byron C. Coon. This fact shows that the papers that + were read by Mr. Bliss as one paper and marked 17 E, were treated by the + department as two separate papers received on separate dates, and so + marked and so filed, and they were marked at the time they were identified + as numbers 17 and 18. Now, the only question is whether the last affidavit + was made for the purpose of committing a fraud upon the Government and + whether the change in the figures in the last affidavit were intended to + or could in any way defraud the Government of the United States. + </p> + <p> + Now, let us see what it is. Mr. Merrick charges that the second oath was + willful perjury. In order to show that this was an honest transaction, and + that Mr. Dorsey should be praised instead of blamed, I will call your + intention now to the exact state of facts. Now, if I do not make out from + this that it was a praiseworthy action instead of perjury, a good, honest + action, I will abandon the case. In the first affidavit Dorsey swore that + it would require three men and seven animals as the schedule then was, and + that for the proposed schedule it would take eleven men and twenty-six + animals. Now, three men and seven animals make ten, and eleven men and + twenty-six animals make thirty-seven. So that by the first affidavit he + swore that it would take three and seven-tenths more animals to carry the + mail on the expedited schedule than on the schedule as it then was, did he + not? Three men and seven animals as against eleven men and twenty-six + animals it would take three and seven-tenths more animals, consequently + you would get for that three and seven-tenths more pay. Now, let us + understand that. That is an increase in the ratio of ten to thirty-seven, + and if his pay had been calculated on that first affidavit it would have + been thirteen thousand four hundred and thirty-three dollars and four + cents. But it was not calculated on that. He made another affidavit. Now, + the second affidavit said that it would take twenty men and animals + instead of ten, as it then was, and for the expedition fifty-four men and + animals. Now, the ratio between twenty and fifty-four was two and + seven-tenths instead of three and seven-tenths, so that under that second + affidavit, which they say was willful and corrupt perjury, he would only + get eight thousand four hundred and fifty-seven dollars, and the change of + that affidavit, if the amount had been calculated on the first instead of + the second, would have cost him for the three years yet remaining of his + term fourteen thousand nine hundred and twenty-five dollars and sixty + cents, and that change saved, exactly as if they had made the calculation + on the other affidavit, about fifteen thousand dollars, and yet they tell + me that that was willful and corrupt perjury. There has nothing been shown + in the case more perfectly honorable. Nothing shown calculated to put John + W. Dorsey in a fairer, in a grander light, than this very affidavit that + is charged to have been willful perjury. Do you see? He made the first + affidavit, and in it he made a mistake against the Government of fourteen + thousand nine hundred and twenty-five dollars, and, then, like an honest + man, he corrected it, and for that honest correction he is held up as a + perjured scoundrel. It will not do, my friends. + </p> + <p> + But, as a matter of fact, not one of these affidavits is set out in the + indictment, not one charged in the indictment. They are wandering tramps + that were picked up as they went along with this case, and have no + business here. + </p> + <p> + In route 38152 he made no affidavit. In route 38113 there is no charge in + the indictment that he made any affidavit. In the route 38156 the + affidavit was not false. It was charged and was not successfully + impeached. In route 40104 the affidavit was never disputed and it was + never attacked. In route 40113 the affidavit was not attacked, not a + solitary witness was examined. In route 35105 no affidavit was made by + Dorsey. In route 38134 there are two more affidavits. + </p> + <p> + Now let us see. Here is some more fraud. Put it down, 38134—two + affidavits—a great fraud. The first affidavit said three men and + twelve animals. That made fifteen; that for the expedition it would take + seven men and thirty-eight animals. That made forty-five. In other words + the proportion was fifteen to forty-five, just three times as much. Three + times fifteen make forty-five. Then he made a second affidavit, filed with + a purpose to defraud the Government. Let us see. In the second affidavit + he said that it took two men and six animals. That makes eight. That on + the expedition it would take six men and eighteen animals. That makes + twenty-four. The proportion was eight to twenty-four. Three times eight + make twenty-four; and three times fifteen make forty-five. So that the + amount was raised exactly the same to a cent, under the second affidavit + that it was under the first, and consequently could not have been made for + the purpose of defrauding anybody. Impossible. The proportion of course is + the material thing in every affidavit, and it is only by that proportion + that you can tell whether they are trying to defraud this Government or + not. Suppose that second affidavit had changed the proportion so that he + was not to get just the amount of money, then you might say it was a + fraud. But it did not change the proportion. + </p> + <p> + On route 38156 another affidavit is filed and not successfully impeached. + I went over that. I have got through with that. That is all there is to + it. That is all, that is everything—everything—everything. + There is no evidence tending to show that John W. Dorsey ever spoke to + Thomas J. Brady. There is no evidence to show that he ever saw him. There + is no evidence to show that he was ever seen in his company; no evidence + to show that he ever saw Turner; that he ever heard of Turner; that he + ever spoke to Turner; that he ever received a letter from Turner; that he + ever wrote anything to him; no evidence as a matter of fact that he ever + exchanged a word with these men; no evidence that he ever saw Harvey M. + Vaile; that he ever spoke to him. Certainly there is no evidence that he + ever conspired with him. No evidence that he ever made an agreement with + Thomas J. Brady or with Mr. Turner or with any officer—no agreement + of any sort, kind, character, or description at any place, upon any + subject, or for any purpose, not the slightest; no evidence that he + conspired with anybody; no evidence that he ever received from the United + States a solitary dollar, with the exception of three hundred and + ninety-two dollars—not the slightest. + </p> + <p> + There is no evidence that he ever wrote a false communication to the + department—nothing of it. There is no evidence that he ever wrote a + petition; no evidence that he ever forged one; no evidence that he ever + signed anybody's name to one; no evidence that he did anything of the kind + or that he ever changed one; no evidence that he ever put a man's name to + it that did not live on the route; no evidence that he ever put in a + fictitious name; no evidence that he helped to deceive the + Postmaster-General—not the slightest. If there is I want somebody + just to put their finger upon the evidence. There is no evidence that he + ever made false statements at any time. There is no evidence that he ever + paid, as I say, a dollar to any official, and no evidence that he ever + promised to pay it. All the evidence is that he got three hundred and + ninety-two dollars. He made the affidavits in accordance with what he + believed to be the truth. The evidence shows that when he made the + affidavits on those routes he had no personal interest, that he received + not a dollar for making them. He made them because he supposed the + contractor or subcontractor had to make them. He made them because he + believed them to be true. He was guided by the little experience he had + himself and by the statements made to him by others; and in all this + evidence there is not a word, not a line, not a letter tending to show he + did a dishonest act, and the jury will bear me out that in the affidavits + attacked he was substantially right, while in the first instance he was + too high; in others he was too low. But there is no evidence that he + deliberately swore to what he believed to be untrue. The proportion sworn + to by him has always been substantially correct. In other words, + gentlemen, the testimony shows that John W. Dorsey is an honest man, and + there is no jury, there never was, there never will be, that will find a + man like that guilty upon evidence like this. It never happened; it never + will happen. + </p> + <p> + Now, I come to my other client, Stephen W. Dorsey, and I feel an interest + in him. He is my friend. I like him. He is a good man. He has good sense. + He is not simply a politician, he is a statesman; and I want you to + understand that he never did an act in this case that he did not + thoroughly understand as well as any lawyer in this prosecution ever will + understand; or as well as any lawyer of the defence ever will understand. + He knew exactly his liabilities. He knew exactly his responsibility. He + knew exactly what he did and he knew he did only what was right. In the + opening of this case Mr. McSweeney made a statement. He told you the exact + connection of Dorsey with this matter. He not only told you that, but he + told you that Dorsey had lost money on these routes, and that he had never + been repaid the money he had advanced, and in that connection he said that + he had turned the routes over to James W. Bosler, and the department knew + of James W. Bosler because they introduced testimony here that the + warrants were paid to James W. Bosler. Mr. McSweeney stated that Bosler + controlled the business, and now we are asked by the prosecution, "Why did + you not bring James W. Bosler on the stand and show that you had lost + money?" I return the compliment and say to them, why did you not bring + James W. Bosler on the stand and show that it was not true that we had + lost money, as he kept the books? I ask them that. Why did they not bring + James W. Bosler? + </p> + <p> + Mr. Merrick. If your Honor please, there is no evidence whatever as to + whether S. W. Dorsey lost money on those routes, and the statement of + counsel made in the opening, I respectfully submit, cannot be used as + evidence by the counsel in the case. + </p> + <p> + The Court. Of course it is impossible for me to say after so long a time + spent in receiving evidence what evidence has been given on a disputed + question. I cannot say from recollection what evidence has been given on + this subject, but I understand the remarks now made are not made upon + evidence in the case, but in reply to remarks made in the opening in the + case. + </p> + <p> + Mr. Ingersoll. Partially so. + </p> + <p> + Mr. Merrick. The opening by their counsel. + </p> + <p> + The Court. By their counsel. + </p> + <p> + Mr. Merrick. By their counsel, Mr. McSweeney. + </p> + <p> + Mr. Ingersoll. Let me just state it, and the Court will understand it + perfectly. Mr. McSweeney, in his opening, said that these routes had been + turned over to James W. Bosler; that he received the money and paid it + out, and that S. W. Dorsey on these very routes had not made money, but + lost money. Very well. But that statement was simply a statement. It was + never proved afterwards. The Government said to us, "Why did you not bring + James W. Bosler to prove that?" + </p> + <p> + The Court. Where did they say that? + </p> + <p> + Mr. Ingersoll. They said it in their speeches. Mr. Merrick said it. + </p> + <p> + Mr. Merrick. Not to prove as to the money. + </p> + <p> + Mr. Ingersoll. Ay, "Why did you not bring James W. Bosler?" + </p> + <p> + Mr. Merrick. Yes, but not as to proof of money; but as to other questions + in reference to the distribution of routes and the loaning of money by + Dorsey, and by Bosler to Dorsey, and Dorsey's transfer of the routes to + Bosler as security for the loan as appeared in Vaile's testimony. + </p> + <p> + The Court. I shall not interfere. + </p> + <p> + Mr. Merrick. I shall not attempt to arrest the course of counsel unless + there is ground for it, and I ask the Court that, there being no evidence + of this fact, that the counsel shall not—Mr. Ingersoll. + [Interposing.] I am going to show there is some evidence. + </p> + <p> + The Court. I understand it is a remark in reply to an observation of your + own. + </p> + <p> + Mr. Ingersoll. That is principally it. Now, they introduced the warrants + that had been drawn by the contractors and subcontractors from the + Post-Office Department; they proved that these warrants had been paid to + James W. Bosler, and that one after the other, hundreds had been assigned + to James W. Bosler. Now, then, I say, they say to us, "Why do you not + bring in James W. Bosler and prove your innocence?" I say why did you not + bring in James W. Bosler and prove our guilt? We opened the door. We told + you the name of the witness. We told you that he had taken the routes; + that he kept the books; that he disbursed the money, and that we had lost + money. Instead of robbing the Government the Government has robbed us; and + they say, "Why did you not bring Bosler?" and I say to them, why did you + not bring him? They know him, and they know he is a reputable man. + </p> + <p> + Now, there is another point. I ask you all to remember what was said in + the opening, and I understand that a defence is bound by its opening, + bound by what it says to the jury. The question is, Has any fact been + substantiated in this case that contradicts a statement made in the + opening? + </p> + <p> + The Court. The defence has no right to avail itself of—Mr. + Ingersoll. [Interposing.] Of what it says. + </p> + <p> + The Court. Of what it says in its opening unless it is followed by + evidence. + </p> + <p> + Mr. Ingersoll. Certainly not, but it has a right to show that no evidence + has been introduced by the Government that touches that opening statement. + It has the right to do that, surely. + </p> + <p> + Now, then, Mr. Boone was the witness for the Government—a smart man. + He swore who were interested in the bidding. He told and he positively + swore that Dorsey was not interested in these routes. He gave the names of + the persons interested, and he swore positively that he was not. Dorsey + then, I say, had not the slightest interest. He loaned money, he went + security, he assisted in getting sureties on bonds, and you recollect the + trouble that they have made about some bonds. Has there any evidence been + introduced to show that there was a bad bond? Has any evidence been + introduced to show that the name of an insolvent man was put upon any bond + as security? Has there been any evidence to show that any action was ever + commenced on any of these bonds; any evidence tending to show that every + bond was not absolutely good? As a matter of fact, the Government waived + all of that. In offering the contract on route 35015, Mr. Merrick made + this remark: + </p> + <p> + "It is offered for the purpose of showing the contract made. The contract + itself is not an overt act. That is all right. There is nothing criminal + about that." + </p> + <p> + Good! + </p> + <p> + Nothing criminal about any contract, gentlemen. You will all admit they + had to make the bids, and if they were the lowest bidders it was the duty + of the Government to accept the bids and afterwards to make the contracts + in accordance with them. There was nothing wrong in that. That is Dorsey's + first step. His first step really was an act of kindness. What was the + second step? He was unable to advance any more money. Mr. Peck, Mr. Miner, + Mr. Dorsey, and Mr. Boone were unable to advance the money, so Mr. Boone + went out and Mr. Vaile came in, and the new partnership agreed to refund + this money that had been advanced; that is, the money advanced by the + other parties. What one gets another to advance is really advanced by him + as long as he is liable for it. Mr. Vaile, a man of large experience and + means, was taken in Boone's place. Is there anything suspicious up to this + time? That is the only test of this whole question. Is it natural? If it + is natural there is no chance for suspicion. After Mr. Vaile came in, a + written contract was made on August 16, 1878. There is no conspiracy up to + that time. Not the slightest evidence of it; no arrangement with any + officers up to that time. Now, under the August contract, Mr. Vaile took + the entire business in charge, and he ran it, as I understand, until the + first day of April, 1879. No officer had any interest in it then. There + was no conspiracy then. Vaile received all the money and paid it out. Here + we stand on the first day of April, 1879. Now, what is the history up to + this time? That John W. Dorsey, Peck, Miner, and Boone were bidders; that + certain routes had been awarded, they had not the money to stock the + routes, and that S. W. Dorsey advanced some money and went security; that + afterwards Boone went out and Vaile came in, and the contract was made by + virtue of which Vaile became the treasurer and knew everybody, and ran the + business to the first day of April, 1879. He swears positively that he + made no arrangement and that he paid no money. It is also in evidence that + in December, 1878, Stephen W. Dorsey and Vaile met for the first time, and + met in the German-American Bank for the purpose of settling the claim upon + which Dorsey was security, and replacing the notes upon which Dorsey was, + by notes of Vaile, Miner & Co. Afterwards these notes were paid by + Vaile and the security of Dorsey released. Now, in April, 1879, a division + is made. The contract of August, 1878, was done away with and a division + 'of the routes was made, seventy per cent, being taken by Vaile and Miner + and thirty per cent, by John W. Dorsey and Peck. In April, 1879, the + parties divided instead of coming together. They do not conspire. They + separate. They do not unite. They go asunder. From that moment they agree + to have nothing in common. Each man takes his own, and each man attends to + his own and does not help anybody else except when they insist that a + contractor or subcontractor shall make the affidavit. They made affidavits + on the routes on which they were contractors. That is all there is to it + up to that time. Then these routes were assigned to Dorsey for the purpose + of securing him. + </p> + <p> + Now, I go to the overt acts charged against Stephen W. Dorsey. Do you know + I am delighted to get right to that page of my notes. I am delighted that + I now have the opportunity to answer and to answer forever all the + infamous things that have been charged against this man. Here we are, + before this jury, a jury of his fellow-citizens, a jury that has the + courage to do right. I have finally the chance of telling here before men + who know whether I am speaking the truth or not, what has been charged + against Stephen W. Dorsey and what has been proved against him. Let us + examine the overt acts charged. On route 38135 it is charged that Miner, + Rerdell and S. W. Dorsey transmitted a false affidavit. The evidence is + that the affidavit was made by Miner, not by Dorsey, transmitted by Miner, + not by Dorsey, and that it was not transmitted as charged in the + indictment, but transmitted on the 18th day of April, 1879. There is no + evidence that Dorsey even heard of that affidavit, that he ever made it, + that he ever transmitted it, that he ever saw it, that he ever knew of its + existence. That is the first charge. There is not one particle of evidence + to show that he ever knew there was such a paper. Upon that written lie, + upon that mistake these infamous charges affecting the character of this + man have been circulated over the United States. + </p> + <p> + What is the next? That he with others filed false petitions. I am telling + you now all the charges; every one of them. What is the evidence? Oh, it + is splendid to get to the facts. The evidence is that every petition is + shown to have been genuine. There is no evidence that he ever filed one or + sent one, or asked to have one sent on that route; and every petition is + genuine and no charge made except as to one. In one they said the words + "quicker time" were inserted; but the very next paragraph asked for + quicker time, and nobody pretended that had been inserted. Besides that, + it was charged in the indictment to have been filed on the 26th day of + June. As a matter of fact, it was filed on the 8th day of May. It was + never filed by Stephen W. Dorsey; it was never gotten up by Stephen W. + Dorsey. There is no evidence that he ever knew of it or heard of it. + Third, that he fraudulently filed a subcontract. Two mistakes and an + impossible offence. That ends that route. That is everything on earth in + it. I defy any man to make anything more out of it than I have. I have + told every word. + </p> + <p> + The next route is No. 41119. It is charged that Stephen W. Dorsey with + others transmitted a false oath. The evidence is that the oath was made by + Peck, and it was transmitted by Peck and not by Stephen W. Dorsey. What + else? That it is true. There are three mistakes in that charge. They say + Dorsey made it. Peck made it They say Dorsey transmitted it. Peck + transmitted it. They say it was false. The evidence shows it true. Thai is + all there is to that route. It is the only charge on that route. No + petitions were claimed to be false. + </p> + <p> + Now we come to route 38145. Let us see if we can do any better on that. + The first charge is, that Stephen W. Dorsey fraudulently filed a + subcontract. The subcontract was made with Sanderson, Sanderson got his + own contract filed. This charge was copied from the old indictment. It is + a mistake and that is all there is to it. These are the charges that have + carried sorrow to many hearts. These are the charges that have darkened + homes. These are the charges that have filled nights with grief and + horror; every one of them a lie. + </p> + <p> + The next route is 38156. The first charge is that he transmitted a false + oath. The oath was made by John W. Dorsey, and is true. The second charge + is of fraudulently filing a subcontract, an impossible offence. That is + everything on that route. Absolutely untrue. + </p> + <p> + Now we come to the next, No. 46217. The charge is filing base petitions. + The evidence is that every petition was genuine. Every one. Mr. Bliss said—"We + make no point about increase of trips on this route." + </p> + <p> + Every petition was for increase of trips. You will see that on record, + page 1008. That is the only charge on that route, gentlemen. Utterly + false! + </p> + <p> + Come now to route 38140. Charge: Filing false and forged petitions. + Evidence: All the petitions genuine. Second charge: Transmitting a false + oath and making it. Evidence: Oath made by John W. Dorsey, and true. That + is all there is to that route. If they can rake up any more I want to see + it. I have been through this record. + </p> + <p> + Route 38113. Charge: Fraudulently filing a subcontract. That is all. You + cannot fraudulently file a subcontract. + </p> + <p> + Route 40113. Charge: Filing false and forged petitions. Evidence: Every + petition admitted by the Government to be genuine. Good. Second: + transmitting a false oath. Evidence: Oath made by John W. Dorsey, and the + Government introduced no witness to show that it was false. See how these + charges fall. See how they bite the ground. That is all. + </p> + <p> + I have told you every one in this indictment; every one. You will hardly + believe it. Now let me give you the recapitulation. S. W. Dorsey is + charged on eight routes with having transmitted four false oaths. + </p> + <p> + The evidence is he never made one nor transmitted one, and that the four + oaths were all true. On five routes he is charged with having filed false + petitions. The evidence is that all the petitions were genuine. None of + the petitions charged in the indictment to have been transmitted by him + were transmitted by him. He is charged with filing fraudulent + subcontracts, and the evidence is that the subcontracts were genuine, and + besides that, as I have said a dozen times, it is utterly impossible to + fraudulently file a subcontract. Not a single, solitary charge in this + indictment against Stephen W. Dorsey has been substantiated. Not one. He + has been called a robber, he has been called a thief, but the evidence + shows he is an honest man. Not one single thing alleged in that indictment + has been substantiated against him, and I defy any human being to point to + the evidence that does it. Now think of it. All this charge has been made + against that man upon that evidence; no other evidence; not another line + so far as the indictment is concerned. What is outside of the indictment? + That he wrote two letters, taking possession of routes that had been + turned over to him as security, which he had a right to do. What else? + That he got up some petitions, or had them gotten up, in the State of + Oregon. The man who got them up was brought here as a witness. I believe + his name was Wilcox. He swore that everything he did was honest, and that + every name to every petition was genuine. Now let us see. Another point + has been made upon S. W. Dorsey. I want to read it to you. This is from + the argument of Mr. Merrick: + </p> + <p> + "Peck, John W. Dorsey and Miner, or some other one of Stephen W. Dorsey's + friends. Who was making up this conspiracy? Who was gathering around him + arms and hands to reach into the public Treasury for his benefit, while + his own were apparently unoccupied with pelf? S. W. Dorsey. 'My brother + and brother-in-law will go in, and Miner, or if not Miner, then one of my + other friends.'" + </p> + <p> + This is quoted. + </p> + <p> + "One-of S. W. Dorsey's other facile friends. That was in 1877, gentlemen, + the morning of this day of fraud and criminality. In that room where Boone + and S. W. Dorsey sat arose the sun, and there was marked his course. There + was fashioned the duration and the business of that criminal day." + </p> + <p> + Now, let us see what the evidence is. The object of that speech is to + convince you that Dorsey said to Boone. "I will either put in Miner or one + of my friends." Do you know that there is not money enough in the Treasury + of the United States, there is not gold and silver enough in the veins of + this earth to tempt me to misstate evidence when a man is on trial for his + liberty or his life. Let us see what the evidence is: + </p> + <p> + "Q. Who else besides his brother-in-law and brother?—A. I could not + say positively whether Mr. Miner's name was mentioned. He either mentioned + his name or a friend of his from Sandusky, Ohio." + </p> + <p> + Now, I submit to you, gentlemen, what does that mean? Mr. Boone, in + effect, says, "He told me either it was Miner or a friend of his from + Sandusky. That is, he either described Miner by his name or he described + him as a friend of his from Sandusky." Then there was objection made, and + after that comes another question: + </p> + <p> + "Q. Was anything said of Mr. Miner's coming to Washington?—A. I + could not say whether his name was mentioned or a friend of his; a + personal friend." + </p> + <p> + What does that mean? Boone cannot remember Whether he called him Miner or + called him a friend of his from Sandusky. What else? + </p> + <p> + "A. There was to be nobody that I understood outside of the parties I + spoke of. + </p> + <p> + "Q. You and John W. Dorsey and Peck?—A. And Mr. Miner." + </p> + <p> + "Q. Or one of his friends?—A. Or Mr. Dorsey's friend. The + arrangement made was not made until they came here. It was only to prepare + the necessary blanks and papers pending their coming because the time was + getting short, and it was necessary to get the information to bid upon. + Nothing was said about any interest at all until after they came here, and + then there was a partnership entered into." + </p> + <p> + Now, I ask you, gentlemen of the jury, what is the meaning of that + testimony. The meaning is simply this: Boone could not remember whether he + mentioned Miner's name or called him a friend of his from Sandusky, yet + the object has been to make you believe that the testimony was that S. W. + Dorsey said, "I will either have Miner or I will get another friend of + mine." Dorsey had no interest in it, not the interest of one cent, not the + interest of one dollar, directly, indirectly, or any other way. He had no + interest in having a friend of his. All that Mr. Boone said is that Mr. + Dorsey either called this man Miner or described him as a friend from + Sandusky, Ohio. The evidence is that Mr. Miner did come, and the evidence + is that the arrangement was made. What else is there outside in this case + against Stephen W. Dorsey? I ask you to put your hand upon it. I ask + anybody to point it out. What other suspicious circumstance is there? I + want you to understand that all the suspicious circumstances in the world + are good for nothing. All the evidence on earth tending to show a thing + does not show it. Anything that only tends that way never gets there; + never. + </p> + <p> + You cannot infer a conspiracy. Unless you have the facts proved, you + cannot infer the fact and then infer the conspiracy. There has not been—I + want to say it again—there has not been a solitary fraudulent act + proven against Stephen W. Dorsey. They have not done it and they cannot do + it. All I ask of you, gentlemen, is to find a verdict in accordance with + this testimony. + </p> + <p> + May it please the Court, it appears from the evidence in this case, I + think the evidence of Mr. James, that Stephen W. Dorsey at one time, about + sixteen or seventeen months ago, made a statement in writing of his + connection with all these routes. That statement he gave to the + Attorney-General and the Postmaster-General. There is no evidence of what + was in that statement. The only evidence is that such a statement was + made, embracing his connection with these routes. + </p> + <p> + The Court. You offered to prove that. + </p> + <p> + Mr. Ingersoll. Oh, no. The reason it was established was I wanted to show + whether that statement was made before or after Mr. Rerdell made a + statement. The fact simply appears that he made a statement. + </p> + <p> + The Court. You offered to prove the fact. + </p> + <p> + Mr. Ingersoll. I do not remember offering to prove it. I proved it. + </p> + <p> + The Court. If it was not proven—Mr. Ingersoll. [Interposing.] I did + prove it as a fact. + </p> + <p> + The Court. That he made a statement. + </p> + <p> + Mr. Ingersoll. Yes, sir. Right here it is [taking up the record]. + </p> + <p> + The Court. Oh, well, you cannot base any remarks upon that. + </p> + <p> + Mr. Ingersoll. Let me read what the evidence says: + </p> + <p> + "Q. Was this statement of Rerdell's made to you after you had received the + statements of S. W. Dorsey as to his connection with all these entire + routes or with this entire business? + </p> + <p> + "The Witness. To what statement do you refer? + </p> + <p> + "Mr. Ingersoll. To the statement that was made in writing and given to you + and the attorney-general by ex-Senator S. W. Dorsey? + </p> + <p> + "A. It must have been after that. + </p> + <p> + "Q. You mean Rerdell's statement was after that?—A. Yes, sir. + </p> + <p> + "Q. Did you ever see that statement made by Senator Dorsey?—A. It + was referred to the attorney-general. + </p> + <p> + "Q. Did you ever see it?—A. Certainly. + </p> + <p> + "Q. Do you know where it now is?—A. I do not." + </p> + <p> + I am not going to say a word about what was in that statement, but the + Court will see that that has a direct bearing upon their action with + regard to Rerdell's statement whether it was made before or after, which I + will endeavor to show, and the only point that I wanted to make upon that + statement now, was that the Government has not endeavored to prove that + anything in that statement was inconsistent with the evidence in this + case. I am not going to say what the statement was; simply that he made a + statement, and it follows as naturally as night follows morning, and + morning follows night, that if that statement had been incorrect it would + have been brought forward. That is all. + </p> + <p> + The Court. For anything the Court knows it might have been a confession. + We do not know anything about it. + </p> + <p> + Mr. Ingersoll. If it had been a confession it would have been here. That + is the point I make. If there had been in that anything inconsistent with + the testimony it would have been here. + </p> + <p> + The Court. Probably it would. + </p> + <p> + Mr. Ingersoll. Yes, sir; that is my point. + </p> + <p> + The Court. When a man is charged with crime no man has a right to say that + because he did not deny it that is evidence of his guilt. + </p> + <p> + Mr. Ingersoll. No, sir; and no man has a right to say that because he did + deny it is evidence of his innocence. + </p> + <p> + The Court. It is not evidence either way. + </p> + <p> + Mr. Ingersoll. It is not evidence either way, and if I am charged with a + crime and I make a written statement to the Government of my entire + connection with that thing, and they go on and examine it for one year and + finally finish the trial without showing that that statement was + incorrect, it is a moral demonstration that my statement agreed with the + testimony. + </p> + <p> + The Court. On the principle, I suppose, of an account rendered and no + objection made? + </p> + <p> + Mr. Ingersoll. Good. That is a good idea. + </p> + <p> + The Court. I do not see anything in that. + </p> + <p> + Mr. Ingersoll. I see a great deal in it, and it is a question whether the + jury can see anything in it. + </p> + <p> + The Court. It is a question whether the Court too—— + </p> + <p> + Mr. Ingersoll. [Interposing.] Very well. + </p> + <p> + The Court. [Continuing.] Whether the Court is going to allow an argument + to be based upon a mere vacuum—wind, nothing. + </p> + <p> + Mr. Ingersoll. That would seem to be stealing the foundation of this case. + [Laughter, and cries of "Silence" from the bailiffs.] We will consider the + argument made to the Court, and not to the jury. + </p> + <p> + The next question, then, is what is the <i>corpus delicti</i>; that is, in + a case of conspiracy? I do not believe the combination to be the corpus + delicti—the mere association. It may be the corpus, but it is not + the delicti, and under the law there must not only be a conspiracy, as I + understand it, but also an overt act done by one of the conspirators to + accomplish the object of the conspiracy. So that the conspiracy with the + fraudulent purpose and the overt act constitute the corpus delicti. Now, I + read from Best on Presumptions, page 279: + </p> + <p> + "The corpus delicti, the body of an offence, is the fact of its actually + having been committed." + </p> + <p> + The dead body in a murder case is not the corpus delicti. It is the corpse + and nothing more. It must be followed by evidence that murder was + committed. + </p> + <p> + "The corpus delicti is the body, substance or foundation of the offence. + It is the substantial and fundamental fact of its having been committed." + </p> + <p> + 1 Haggard, 105, opinion by Lord Stowell. + </p> + <p> + I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems that + the defendants in this case were commissioners of charities of the county + of Kings, and they were indicted for conspiring together to buy supplies + contrary to law and without duly advertising. Their defence was that they + were not aware that such a law existed; that they were ignorant of the + law. The court below thought that made no difference. The court above said + before they could be guilty of this crime there must be the intention to + commit the crime, and this language is used: + </p> + <p> + "The agreement must have been entered into with an evil purpose, as + distinguished from a purpose simply to do the act prohibited in ignorance + of the prohibition. This is implied in the meaning of the word conspiracy. + Mere concert is not conspiracy." + </p> + <p> + So combination is not conspiracy; partnership is not conspiracy; neither + is it the corpus delicti of conspiracy. There must be the evil intent; + there must be the wicked conspiracy not only, but there must be one at + least overt act done in pursuance of it before the corpus delicti can be + established. + </p> + <p> + "The actual criminal intention belongs to the definition of the offence + and must be shown to justify a conviction for conspiracy. The offence + originally consisted in a combination to convict an innocent person by + perversion of the law. It has since been greatly extended, but I am of + opinion that proof that the defendants agreed to do an act prohibited by + statute, followed by overt acts in furtherance of the agreed purpose, did + not conclusively establish that they were guilty of the crime of + conspiracy." + </p> + <p> + It would be hard to find a stronger case, in my judgment, than that. + Although they agreed to violate a statute—they agreed to buy + supplies without complying with the statute by advertising—they + claimed they were in ignorance of it, and the question was whether they + were guilty of conspiracy, having no intent to do an illegal act, and the + court of appeals decided that that verdict could not stand. + </p> + <p> + The Court. Because the court below had instructed the jury that whether + what they did was done in ignorance or with knowledge it made no + difference. + </p> + <p> + Mr. Ingersoll. Certainly; it made no difference. Everybody is supposed to + know the law. + </p> + <p> + Now, the next point is, and great weight has been put upon it, gentlemen, + that concurrence of action establishes conspiracy; that if one does a part + and another another part and finally the culmination comes, that is + absolute evidence, or in other words, an inference. Admitting, now, that + they were perfectly honest, if any of these parties made a bid, that bid + had to be accepted by the Government. They had to act together. The + department and the man had to act together to have the bid accepted. The + department and the man had to act together to make the contract. The + department and the man had to act together to get the pay, and no matter + how perfectly honest the transaction was they had to act together from the + first step to the payment of the last dollar. + </p> + <p> + Now, in a business where they do have to act together, where one + necessarily does one thing, and the other necessarily does another, the + fact that that happens does not even tend to prove that there is any + fraud. Upon this concurrence of action I refer to the case of Metcalfe + against O'Connor and wife, in Little's Select Cases, 497. One of the men + confessed that a large party went to the house where there was a + disturbance and where they tried to take by force a boy from the custody + of a man and woman. Now, the fact that these men did go the house, the + fact that they were there at the time this happened, and the fact that one + of the conspirators or one of the trespassers had confessed that he went + there and that the other went with him for that purpose, the court decides + that you cannot infer the purpose of these men from the statement of the + other; neither can you infer it from the fact that they were there. You + must find out for what purpose they were there by ascertaining what they + did and when they were there, and that concurrence in actions shows + nothing. + </p> + <p> + The Court. Did you not say that the decision there was that the conspiracy + might be inferred from the combination to do the act? + </p> + <p> + Mr. Ingersoll. I will just read it and then there will be no guessing + about it: + </p> + <p> + "This is a writ of error prosecuted by the defendants to a judgment for + the plaintiffs in an action of trespass for an assault and battery alleged + to have been committed upon the plaintiff Ann, the wife of the other + plaintiff. + </p> + <p> + "We are of the opinion that the circuit court erred in refusing to + instruct the jury, at the instance of the defendants, to find for all of + them, except the defendant Metcalfe. He is the only one of the defendants + proven to have touched the defendant Ann, and against the other defendants + there is no evidence conducing in the slightest degree to prove them + guilty of committing any assault or battery upon her, or of any intention + to do so. + </p> + <p> + "It is true that it was proved that the other defendants confessed that + they were at the house of Connor when the assault and battery charged is + alleged to have been committed, and it was also proved that Metcalfe + confessed that he and the other defendants had gone there for the purpose + of taking from Connor by force an idiot boy whom he had in his custody. + But the circumstances of the other defendants being at Connor's house, + there is no evidence they were there for any unlawful purpose; nor can it + of itself be sufficient to render them responsible for any act done by + Metcalfe in which they did not participate; and the confessions of + Metcalfe are certainly not legitimate evidence against the others to prove + the unlawful purpose with which they went to Connor's, and thereby to + charge them with the consequences of his act." + </p> + <p> + Now, to all appearances, they went there together; to all appearances, + they went there for the one purpose, and Metcalfe, the man who really did + the mischief, confessed that they all went there for the one purpose, but + the court held that that was not sufficient. + </p> + <p> + "Where several agree or conspire to commit a trespass, or for any other + unlawful purpose, they will, no doubt, all be liable for the act of any + one of them done in execution of the unlawful purpose; and when the + agreement or conspiracy is first proved by other evidence, the confession + of one of them will be admissible evidence against the others. But it is + well settled that the confessions of one person cannot be admitted against + the others to prove that they had conspired with him for an unlawful + purpose." + </p> + <p> + Now, the next evidence that I wish to allude to, gentlemen, is the + evidence of Mr. Walsh, and I will only say a few words, because it has + been examined and it has been ground to powder. Everything in this world + is true in proportion that it agrees with human experience; and you can + safely say that everything is false or the probability is that it is false + in proportion that it is not in accordance with human experience. Other + things being equal, we act substantially alike. + </p> + <p> + Now, when anything really happens everything else that ever happened will + fit it. You take a spar crystal, I do not care how far north you get it, + and another spar crystal, no matter how far south you get it, and put them + together and they will exactly fit each other—exactly. The slope is + precisely the same. And it is so with facts. Every fact in this world will + fit every other fact—just exactly. Not a hair's difference. But a + lie will not fit anything but another lie made for the purpose—never. + It never did. And finally, there has to come a place where this lie, or + the lie made for the sake of it, has to join some truth, and there is a + bad joint always. And that is the only way to examine testimony. Is it + natural? Does it accord with what we know? Does it accord with our + experience? + </p> + <p> + Now, take the testimony of Mr. Walsh, and I find some improbabilities in + it. Just let me read you a few: + </p> + <p> + 1. Bankers and brokers do not, as a rule, loan money without taking at + least a note. That is my experience. And the poorer this broker is, the + less money he has, the more security he wants. He not only wants an + indorser but he would like to have a mortgage on your life, liberty, and + pursuit of happiness. That is the first improbability. + </p> + <p> + 2. Bankers and brokers do not, as a rule, take notes that bear no + interest, or in which the interest is not stated. People who live on + interest find it always to their interest to have the interest mentioned—always. + I never got a cent of a banker that I did not pay interest, and generally + in advance. + </p> + <p> + 3. Bankers and brokers do not, as a rule, take notes payable on demand, + because such notes are not negotiable. + </p> + <p> + 4. It is hardly probable that when a banker and broker holds the note of + another for twelve thousand dollars—the note being unpaid—he + would loan thirteen thousand five hundred dollars more, taking another + note on demand in which the rate of interest was not stated. + </p> + <p> + 5. It is still more improbable that the same banker and broker, with a + note for twelve thousand dollars and one for thirteen thousand five + hundred dollars, being unpaid, would loan five thousand four hundred + dollars more without taking any note or asking any security. + </p> + <p> + 6. When such banker and broker called upon his debtor for a settlement, + and exhibited the two notes, and thereupon his debtor took the two notes + and put them in his pocket, it is highly improbable that the banker and + broker would submit to such treatment. + </p> + <p> + 7. It is improbable that such banker and broker would afterwards commence + suit to recover the money, without mentioning to his attorney, in fact, + that the notes had been taken away from him. + </p> + <p> + 8. It is also improbable that the banker and broker would commence another + suit for the same subject-matter and still keep the fact that the notes + had been taken from him by violence, a secret from his attorney. + </p> + <p> + 9. If Mr. Brady took the notes by force, it is improbable that he would + immediately put himself in the power of the man he had robbed, by stating + to him that he, Brady, was in the habit of taking bribes. + </p> + <p> + 10. It is impossible that Mr. Brady could, in fact, have done this, which + amounted to saying this: "I have taken twenty-five thousand five hundred + dollars from you; of course, you are my enemy; of course, you will + endeavor to be revenged, and I now point out the way in which you can have + your revenge. I am Second Assistant Postmaster-General; I award contracts, + increases, and expedition, and upon these I receive twenty per cent, as a + bribe. I am a bribe-taker; I am a thief; make the most of it. I give you + these tacts in order that I may put a weapon in your hands with which you + can obtain your revenge." + </p> + <p> + There are also other improbabilities connected with this testimony. + </p> + <p> + If Mr. Brady was receiving twenty per cent, of all increases and + expeditions, amounting to hundreds of thousands of dollars per annum, it + is not easy to see why he would be borrowing money from Mr. Walsh. + </p> + <p> + Now, if that story is true, boil it down and it is this, because if he got + this twenty per cent, from everybody he had oceans of money—boil it + all down and it is this: A rich man borrows without necessity and a poor + banker loans without security. These twin improbabilities would breed + suspicion in credulity itself. No man ever believed that story, no man + ever will. There is something wrong about it somewhere, unnatural, + improbable, and it is for you to say, gentlemen, whether it is true or + not, not for me. What is the effect of that testimony? So far as my + clients are concerned it is admitted, I believe, by the prosecution—it + was so stated, I believe, by his Honor from the bench—that it could + not by any possibility affect any defendant except Mr. Brady, and the + question now is, can it even affect him? I call the attention of the Court + to 40th N. Y., page 228. I give the page from which I read: + </p> + <p> + "To make such admissions or declarations competent evidence, it must stand + as a fact in the cause, admitted or proved, that the assignor or assignees + were in a conspiracy to defraud the creditors. If that fact exist, then + the acts and declarations of either, made in execution of the common + purpose, and in aid of its fulfillment, are competent against either of + them. The principle of its admissibility assumes that fact." + </p> + <p> + That the conspiracy has been established. + </p> + <p> + "In case of conspiracy, where the combination is proved, the acts and + declarations of the conspirators are not received as evidence of that + fact, but to show what was done, the means employed, the particular design + in respect to the parties to be affected or wronged, and generally those + details which, assuming the combination and the illegal purpose, unfold + its extent, scope, and influence either upon the public or the individuals + who suffer from the wrong, or show the execution of the illegal design. + But when the issue is simply and only, was there a conspiracy to defraud, + these declarations do not become evidence to establish it." + </p> + <p> + "So far then, as the admission of the evidence in this case, of + declarations, subsequent to the assignment, is sought to be sustained as + evidence of the common fraud, on the ground of conspiracy, the argument + wholly fails. A conspiracy cannot be proved against three by evidence that + one admitted it, nor against assignees by proof that the assignor admitted + it; it is a fact that must be proved by evidence, the competency of which + does not depend upon an assumption that it exists." + </p> + <p> + So to the same point is the case of Cowles against Coe, 21st Connecticut, + 220. I will read that portion of the syllabus that conveys the idea: + </p> + <p> + "To prove the alleged conspiracy between the defendant and G., the + plaintiff offered the deposition of R., stating declarations made by G. to + R., while G. was engaged in purchasing goods of him, on credit, and + relative to G.'s responsibility and means of obtaining money through the + defendant's aid; these declarations were objected to, not on the ground + that the conspiracy had not been sufficiently proved, but because the + defendant was not present when they were made; it was held that they were + admissible, within the rule regarding declarations made by a conspirator + in furtherance of the common object." + </p> + <p> + Now, let us see what the court says about it: + </p> + <p> + "The remaining question is, whether the declarations of Gale to Edmund + Curtiss and William Ives were properly received. These declarations were + not offered as in any way tending to prove the combination claimed. The + motion shows that they were offered and received after the plaintiff's + evidence on that subject had been introduced. Had they been admitted for + that purpose, or if, under the circumstances, they could have had any + influence with the jury on that point, we should feel bound to advise a + new trial on this account." + </p> + <p> + All that I have said in respect to Walsh applies to what is known or what + is called the confession of Rerdell. It was admitted by the prosecution + that not one word said by him could bind any other defendant in the case. + But, gentlemen, is there enough even to bind him? Did he confess that he + was guilty of the conspiracy set forth in this indictment? And I want to + make one other point. In this case there must be not only a conspiracy, + but an overt act, and no man can confess himself into it without + confessing that he was a conspirator, and that he knew that an overt act + was to be done; because it takes that conspiracy and the overt act to + 'make the offence. What overt act did Rerdell confess that he was guilty + of—what overt act charged in this indictment? One. Filing a + subcontract; and by no earthly method, by no earthly reasoning can you + come to the conclusion that that could carry it into conspiracy. He must + have confessed that he was guilty according to the scheme, according to + the indictment set forth, and in no other way. That indictment says that + the money was to be divided, that it was for the mutual benefit of certain + persons. Unless that has been substantiated this case falls. According to + the case of the King against Pomall the scheme of the indictment must be + established, otherwise the case goes. In that case they charged it was one + way, and they proved it was that way, and one of the defendants did not + understand it that way and he was acquitted. Now, suppose they had not + proved the scheme as they charged it, then all would have been acquitted, + and unless the jury believe beyond a reasonable doubt, from the evidence + that the scheme set forth in the indictment here was the scheme, then they + must find everybody not guilty. There is no other way. + </p> + <p> + What is the next argument? The next argument is extravagance. What is + extravagance? If I pay more for a thing than it is worth that is + extravagance. If I buy a thing that I do not want, that is extravagance, + and if I do this knowing it to be wrong, if I do this understanding that I + am to have a part of the price, that is bribery, that is corruption, that + is rascality. Nobody disputes that. How do you know that a thing is + extravagant unless you know the price of it? For instance, an army officer + is charged with extravagance in buying corn upon the plains at five + dollars a bushel. How do you prove it is extravagance? You must prove that + he could have obtained it for less or that there was a cheaper substitute + that he should have obtained. How are you going to prove that too much was + paid for carrying the mail upon these routes? Only by showing that it + could have been carried for less. What witness was before this jury fixing + the price? How are we to establish the fact that it was extravagance? We + must show that it could have been obtained for less money. What witness + came here and swore that he would carry it for less? And would it be fair + to have the entire case decided upon one route when it is in evidence that + my clients had thirty per cent, of one hundred and twenty-six routes? + Would it be fair to decide the question whether they had made or lost + money on one route? Your experience tells you that upon one route they + might make a large sum of money and upon several other routes lose + largely. A man who has bid for one hundred routes takes into view the + average and says "upon some I shall lose and upon others I shall make." + How are you to find that this was extravagance unless you know what it + could have been done for? They may say that they subcontracted some of the + routes for much less. Yes; but what did they do with the rest of them? I + might take a contract to build a dozen houses in this city, and on the + first house make ten thousand dollars clear, and on the balance I might + lose twenty-five thousand dollars. You have a right to take these things + and to average them. When a man takes a contract he takes into + consideration the chances that he must run in that new and wild country. + It takes work to carry this mail. You ought to be there sometimes in the + winter when the wind comes down with an unbroken sweep of three or four + thousand miles, and then tell me what you think it is worth to carry the + mail. All these things must be taken into consideration. Another thing: + You must remember that every one of these routes was established by + Congress. Congress first said, "Here shall be a route; here the mail shall + be carried." It was the business then, I believe, of the First Assistant + Postmaster-General to name the offices, and the Second Assistant to put on + the service. Take that into consideration. Every one of these routes was + established by Congress. Take another thing into consideration: That the + increase of service and expedition was asked for, petitioned for, begged + for, and urged by the members of both houses of Congress, and according to + that book, which I believe is in evidence, a majority of both houses of + Congress asked, recommended, and urged increase of service and expedition + upon some of the nineteen routes in this indictment. + </p> + <p> + The Court. What evidence do you refer to? + </p> + <p> + Mr. Ingersoll. I refer to the Star Route investigation in Congress. + </p> + <p> + The Court. That record is not in evidence. + </p> + <p> + Mr. Ingersoll. I thought that was in evidence. + </p> + <p> + The Court. No, sir. + </p> + <p> + Mr. Ingersoll. It was used as if it was in evidence. I saw people reading + from it, and supposed it was in evidence. + </p> + <p> + The Court. It is not in evidence. + </p> + <p> + Mr. Ingersoll. Well, we will leave that out. Now, upon these nineteen + routes—this is in evidence—increase and expedition of service + were recommended by such Senators as Booth, Farley, Slater, Grover, + Chaffee, Chilcott, Saunders, and by the present Secretary of the Interior, + Henry M. Teller, and by such members of Congress as Whiteaker, Page, + Luttrell, Pacheco, Berry, Belford, Bingham, chairman of the postoffice + committee, by Stevens of Arizona, a delegate, and by Maginnis of Montana, + and Kidder of Dakota, by Generals Sherman, Terry, Miles, Hatch and Wilcox + In addition to these, recommendations were made and read by judges of + courts, by district attorneys, by governors of Territories, by governors + of States, and by members of State Legislatures, by colonels, by majors, + by captains, and by hundreds and hundreds of good, reputable, honest + citizens. They were the ones to decide as a matter of fact whether this + increase was or was not necessary. + </p> + <p> + I believe in carrying the mails. I believe in the diffusion of + intelligence. I believe the men in Colorado or Wyoming, or any other + Territory, that are engaged in digging gold or silver from the earth, or + any other pursuits, have just as much right, in the language of Henry M. + Teller, to their mail as any gentleman has to his in the city of New York. + We are a nation that believes in intelligence. + </p> + <p> + We believe in daily mail. That is about the only blessing we get from the + General Government, excepting the privilege of paying taxes. Free mail, + substantially free, is a blessing. + </p> + <p> + Now, there is another argument which has been used: Productiveness; but + that has been so perfectly answered that I allude to it only for one + purpose. How would the attorneys for the Government in this case like to + have their fees settled upon that basis? Productiveness. Is it possible + that this Government cannot afford to carry the mail? Is it possible that + the pioneer can get beyond the Government? Is is possible that we are not + willing to carry letters and papers to the men that make new Territories + and new States and put new stars upon our flag? I have heard all I wish on + the subject of productiveness. + </p> + <p> + Now, gentlemen, that is all the evidence there is in this case, that I + have heard. What kind of evidence must we have in a conspiracy case? You + have been told during this trial that it is very hard to get evidence in a + conspiracy case, and therefore you must be economical enough to put up + with a little. They tell you that this is a very peculiar offence, and + people are very secret about it. Well, they are secret about most + offences. Very few people steal in public. Very few commit offences who + expect to be discovered. I know of no difference between this offence and + any other. You have got to prove it. No matter how hard it is to prove you + must prove it. It is harder to convict a man without testimony, or should + be, than to produce testimony to prove it if he is guilty. All these + crimes, of course, are committed in secret. That is always the way. But + you must prove them. There is no pretence here that there is any direct + evidence, any evidence of a meeting, any evidence of agreement, any + evidence of an understanding. It is all circumstantial. I lay down these + two propositions: + </p> + <p> + "The hypothesis of guilt must flow naturally from the facts proved, and be + consistent, not with some of the facts, not with a majority of the facts, + but with every fact." + </p> + <p> + Let me read that again: + </p> + <p> + "<i>The hypothesis of guilt must flow naturally from the facts proved, and + must be consistent with them; not some of them, not the majority of them, + but all of them</i>." + </p> + <p> + The second proposition is: + </p> + <p> + "The evidence must be such as to exclude every single reasonable + hypothesis except that of the guilt of the defendant. In other words, all + the facts proved must be consistent with and point to the guilt of the + defendants not only, but every fact must be inconsistent with their + innocence." + </p> + <p> + That is the law, and has been since man spoke Anglo-Saxon. Let me read you + that last proposition again. I like to read it: + </p> + <p> + "The evidence must be such as to exclude every reasonable hypothesis + except that of the guilt of the defendants. In other words, all the facts + proved must be consistent with and point to the guilt of the defendants + not only, but they must be inconsistent, and every fact must be + inconsistent with their innocence." + </p> + <p> + Now, just apply that law to the case of John W. Dorsey. Apply that law to + the case of Stephen W. Dorsey. Let me read further. I read now from 1 + Bishop's Criminal Procedure, paragraph 1077. + </p> + <p> + "It matters not how clearly the circumstances point to guilt, still, if + they are reasonably explainable on a theory which excludes guilt, they + cannot satisfy the jury beyond reasonable doubt that the defendants are + guilty, and hence they will be insufficient." + </p> + <p> + Just apply that to the case of Stephen W. Dorsey and John W. Dorsey. I + would be willing that this jury should render a verdict with that changed. + Change it. You are to find guilty if you have the slightest doubt of + innocence. Even under that rule you could not find a verdict of guilty + against John W. or Stephen W. Dorsey. If the rule were that you are to + find guilty if you have a doubt as to innocence you could not do it; how + much less when the rule is that you must have no doubt as to their guilt. + The proposition is preposterous and I will not insult your intelligence by + arguing it any further. + </p> + <p> + Now, then, there is another thing I want to keep before you. When a man + has a little suspicion in his mind he tortures everything; he tortures the + most innocent actions into the evidence of crime. Suspicion is a kind of + intellectual dye that colors every thought that comes in contact with it. + I remember I once had a conversation with Surgeon-General Hammond, in + which he went on to state that he thought many people were confined in + asylums, charged with insanity, who were perfectly sane. I asked him how + he accounted for it. Said he, "Physicians are sent for to examine the man, + and they are told before they get to him that he is crazy; therefore, the + moment they look upon him they are hunting for insane acts and not sane + acts; they are looking not to see how naturally he acts, but how + unnaturally he acts." They are poisoned with the suspicion that he is + insane, and if he coughs twice, or if he gets up and walks about uneasily—his + mind is a little unsettled; something wrong! If he suddenly gets angry—sure + thing! When a man believes himself to be or knows himself to be sane, and + is charged with insanity, the very warmth, the very heat of his denial + will convince thousands of people that he is insane. He suddenly finds + himself insecure, and the very insecurity that he feels makes him act + strangely. He finds in a moment that explanation only complicates. He + finds that his denial is worthless; that his friends are suspicious, and + that under pretence of his own good he is to be seized and incarcerated. + Many a man as sane as you or I has under such circumstances gone to + madness. It is a hard thing to explain. The more you talk about it the + more outsiders having a suspicion are convinced that you are insane. It is + much the same way when a man is charged with crime. It is heralded through + all the papers, "this man is a robber and a thief." Why do they put it in + the papers? Put anything good in a paper about Mr. Smith, and Mr. Smith is + the only man who will buy it. Put in something bad about Mr. Smith and + they will have to run the press nights to supply his neighbors with + copies. The bad sells. The good does not. Then you must remember another + thing: That these papers are large; some of them several hundred columns, + for all I know—sixty or a hundred. Just imagine the pains it would + take and the money it would cost to get facts enough to fill a paper like + that. Economy will not permit of it. They publish what they imagine they + can sell. As a rule, people would rather heaf-something bad than something + good. It is a splendid certificate to our race that rascality is still + considered news. If they only put in honest actions as news it would be a + certificate that honesty was rare; but as long as they publish the bad as + news it is a certificate that the majority of mankind is still good. + </p> + <p> + Now, to be charged with a crime and to be suddenly deserted by your + friends, and to know that you are absolutely innocent, is almost enough to + drive the sanest man mad. I want you to think what these defendants have + suffered in these long months. If the men who started this prosecution, if + the men who originally poisoned the press of the country, feel that they + have been rewarded simply because innocent men have suffered agony, let + them so feel. I do not envy them their feelings. + </p> + <p> + There is another thing, gentlemen: The prosecution have endeavored to + terrorize this jury. The effort has been deliberately made to terrorize + you and every one of you. It was plainly intimated by Mr. Ker that this + jury had been touched, and that if you failed to convict, you would be + suspected of having been bribed. That was an effort to terrorize you, and + the foundation of that argument was a belief in your moral cowardice. No + man would have made it to you unless he believed at heart you were + cowards. What does that argument mean? I cannot say whether you will be + suspected or not; but, in my opinion, a juror in the discharge of his duty + has no right to think of any consequence personal to himself. That is the + beauty of doing right. You need not think of anything else. The future + will take care of itself. I do not agree with the suggestion that it is + better that you should be applauded for a crime than blamed for a virtue. + Suppose you should gain the applause of the whole United States by giving + a false verdict; how would the echo of that applause strike your heart? I + do not believe that it is wiser to preserve the appearance of being honest + than to be honest with the appearance against you. I would rather be + absolutely honest, and have everybody in the world think I was dishonest, + than to be dishonest and have the whole world believe in my honesty. You + see you have got to stay with yourself all the time. You have to be your + own company, and to be compelled to know that your company is dishonest, + that your company is infamous, is not pleasant. I would rather know I was + honest and have the whole world put upon the forehead of my reputation the + brand of rascality. + </p> + <p> + You were also told that the people generally have anticipated your + verdict. + </p> + <p> + That is simply an effort to terrorize you, so that you will say, "If the + people think that way, of course we must think that way. No matter about + the evidence. No matter if we have sworn to do justice. We will all try + and be popular." You were told in effect that the people were expecting a + conviction, and the only inference is that you ought not to disappoint the + public, and that it is your duty to piece and patch the testimony and + violate your oath, rather than to disappoint the general expectation. Mr. + Merrick told you you were trying these defendants, but that the people of + the whole country were trying you. What was the object of that statement? + Simply to terrorize this jury. What was the basis of that statement? Why, + that not one of you have got the pluck to do right. It was not a + compliment, gentlemen. It was intended for one, no doubt, but when you see + where it was born, it becomes an insult. I do not believe you are going to + care what the people say, or whether the people expect a verdict of + guilty, or not. You have been told that they do. I might with equal + propriety tell you that they do not. I might with equal propriety say + there is not a man in this court-house who expects a verdict of guilty. + With equal propriety I might say, and will say, that there is not a man on + this jury who expects there will be a verdict of guilty. But what has that + to do with us? + </p> + <p> + Try this case according to the evidence; and if you know that every man, + woman, and child in the United States want an acquittal, and you are + satisfied of the guilt of the defendants, it is your duty to find them + guilty. + </p> + <p> + If I were on the jury I would, in the language of the greatest man that + ever trod this earth— + </p> +<pre xml:space="preserve"> + Strip myself to death, as to a bed + That longing have been sick for, before I would give a false verdict. +</pre> + <p> + Again, Mr. Merrick said, after having stated in effect that a majority of + the people were convinced of the guilt of the defendants, that the + majority of the men of the United States do not often think wrong. What + was the object? To terrorize you. That is all. This verdict is to be + carried by universal suffrage; you are to let the men who are not on oath + decide for the men who are; to let the men who have not heard the + testimony give the verdict of the men who have heard the testimony. What + else? Again the same gentleman said: + </p> + <p> + "There is to be a verdict, a verdict of the people for or against us." + What is the object? To frighten you. Let the people have their verdict; + you must have yours. If your verdict is founded on the evidence it will be + upheld by every honest man in the world who knows the evidence. You need + certainly to place very little value upon the opinion of those who do not + know the evidence. Mr. Merrick also suggested—I will hardly put it + that way—he was brave enough to hope that you have not been bribed. + Brave enough to hope that! All this, gentlemen, is done simply for the + purpose of terrorizing you. I tell you to find a verdict according to the + evidence, no matter whom it hits, no matter whom it destroys, no matter + whom it kills. Save your own consciences alive. Your verdict must rest on + the evidence that has been introduced, and all else must be thrown aside, + disregarded, like forgotten dreams. All that you have read, all the press + has printed, must find no lodgment in your brains. You must regard them no + more than you would the noises of animals made in sleep. You must stand by + the testimony. You must stand by the law that the Court gives you. That is + all we ask. These articles in the newspapers were not printed in the hope + that justice might be done. They were printed in the hope that you may be + influenced to disregard the evidence, in the hope that finally slander + might be justified by your verdict. Gentlemen, you ought to remember that + in this case you are absolutely supreme. You have nothing to do with the + supposed desires of any men, or the supposed desires of any department, or + the supposed desires of any Government, or the supposed desires of any + President, or the supposed desires of the public. You have nothing to do + with those things. You have to do only with the evidence. Here all power + is powerless except your own. Position is naught. If the defendants are + guilty, and the evidence convinces you that they are, your verdict must be + in accordance with the evidence. You have no right to take into + consideration the consequences. When you are asked to find a verdict + contrary to the evidence, when you are asked to piece out the testimony + with your suspicions, then you are bound to take into consideration all + the consequences. When appeals are made to your prejudice and to your + fears, then the consequences should rise like mountains before you. Then + you should think of the lives you are asked to wreck, of the homes your + verdict would darken, of the hearts it would desolate, of the cheeks it + would wet with tears, and of the reputations it would blast and blacken, + of the wives it would worse than widow, and of the children it would more + than orphan. When you are asked to find a false verdict think of these + consesequences. When you are asked to please the public think of these + consequences. When you are asked to please the press think of these + consequences. When you are asked to act from fear, hatred, prejudice, + malice, or cowardice think then of these consequences. But whenever you do + right, consequences are nothing to you, because you are not responsible + for them. Whoever does right clothes himself in a suit of armor that the + arrows of consequences can never penetrate. When you do wrong you are + responsible for all the consequences, to the last sigh and the last tear. + If you do right nature is responsible. If you do wrong you are + responsible. + </p> + <p> + You were told, too, by Mr. Merrick that you should have no sympathy; that + you should be like icicles; that you should be godlike. A cool conception + of deity! In that connection this heartless language, as it appears to me, + was used: + </p> + <p> + "Man when he undertakes to judge his brother-man undertakes to perform the + highest duty given to humanity." + </p> + <p> + Good! + </p> + <p> + He should perform that duty without fear, without prejudice, without + hatred, and without malice. He should perform that duty honestly, grandly, + nobly. + </p> + <p> + I read on: + </p> + <p> + "Inclosed within the jury-box or on the bench he is separated from the + great mass of mankind—" + </p> + <p> + Then you should not pay any attention to the opinion of the public. If you + are separated you should not be dominated by the press. If you are + separated you should not be disturbed by the desires of anybody. But he + continues: + </p> +<pre xml:space="preserve"> + "and sentiments of brotherhood die away." +</pre> + <p> + About that time you would be nice men: + </p> + <p> + "Standing above humanity and nearest God he looks down upon his fellow, + and judges them without any reference to the sorrow his judgment may + bring." + </p> + <p> + That is not my doctrine. The higher you get in the scale of being, the + grander, the nobler, and the tenderer you will become. Kindness is always + an evidence of greatness. Malice is the property of small souls. Whoever + allows the feeling of brotherhood to die in his heart becomes a wild + beast. You know it and so do I: + </p> +<pre xml:space="preserve"> + "Not the king's crown, nor the deputed sword, + The marshal's truncheon, nor the judge's robe, + Become them with one-half so good a grace as mercy does." +</pre> + <p> + And yet the only mercy we ask in this case, gentlemen, is the mercy of an + honest verdict. That is all. + </p> + <p> + I appeal to you for my clients, because the evidence shows that they are + honest men. I appeal to you for my client, Stephen W. Dorsey, because the + evidence shows that he is a man, a man with an intellectual horizon and a + mental sky, a man of genius, generous, and honest. And yet this + prosecution, this Government, these attorneys representing the majesty of + the Republic, representing the only real Republic that ever existed, have + asked you, gentlemen of the jury, not only to violate the law of the land, + they have asked you to violate the law of nature. They have maligned + mercy. They have laughed at mercy. They have trampled upon the holiest + human ties, and they have even made light of the fact that a wife in this + trial has sat by her husband's side. Think of it. + </p> + <p> + There is a painting in the Louvre, a painting of desolation, of despair + and love. It represents the night of the crucifixion. The world is + represented in shadow. The stars are dead, and yet in the darkness is seen + a kneeling form. It is Mary Magdalene with loving lips and hands pressed + against the bleeding feet of Christ. The skies were never dark enough nor + starless enough; the storm was never fierce enough nor wild enough, the + quick bolts of heaven were never lurid enough, and arrows of slander never + flew thick enough to drive a noble woman from her husband's side. And so + it is in all of human speech, the <i>holiest word is wife</i>. + </p> + <p> + And now, gentlemen, I have examined this testimony, I have examined every + charge in the indictment against my clients not only, but every charge + made outside of the indictment. I have shown you that the indictment is + one thing and the evidence another. I have shown you that not one single + charge has been substantiated against John W. Dorsey. I have demonstrated + to you that not one solitary charge has been established against Stephen + W. Dorsey—not one. I believe that I have shown to you that there is + no foundation for a verdict of guilty against any defendant in this case. + </p> + <p> + I have spoken now, gentlemen, the last words that will be spoken in public + for my clients, the last words that will be spoken in public for any of + these defendants, the last words that will be heard in their favor until I + hear from the lips of this foreman two eloquent words—<i>Not Guilty</i>. + And now thanking the Court for many acts of personal kindness, and you, + gentlemen of the jury, for your almost infinite patience, I leave my + clients with all they have and with all they love and with all who love + them in your hands. + </p> + <p> + <a name="link0004" id="link0004"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /> <br /> <br /> <br /> + </div> + <h2> + OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL. + </h2> + <p> + Washington, D. C., Dec. 21, 1882. + </p> + <p> + MAY it please the Court and gentlemen of the jury: We consider that the + right to be tried by jury is the right preservative of all other rights. + The right to be tried by our peers, by men taken from the body of the + county, by men whose minds have not been saturated with prejudice, by men + who have no hatred, no malice to gratify, no revenge to wreak, no debts to + pay, we consider an inestimable right, regarding the jury as the bulwark + of civil liberty. Take that right from the defendants in any case and they + are left at the mercy of power, at the mercy of prejudice. The experience + of thousands of years, the experience of the English-speaking people, of + the Anglo-Saxon people, the only people now upon the globe with a genius + for law, is that the jury is a breastwork behind which an honest man is + safe from the attack of an entire nation. We esteem it, I say, a + privilege, a great and invaluable right, that we have you twelve men to + stand between us and the prejudice of the hour. We believe that you will + hear this case without passion, without hatred, and that you will decide + it absolutely in accordance with the law and with the evidence. This is + the tribunal absolutely supreme. In a case of this character, gentlemen, + you are the judges of what is the law; you are the judges of what are the + facts; you are the absolute judges of the worth of testimony; and you have + not only the right, but it is your duty to utterly disregard the testimony + of any man that you do not believe to be true. You, I say, are the + exclusive judges, and for that reason we ask, we beg you, to hear all this + testimony, to pay heed to every word, and then decide, not as somebody + else desires, but as your judgment dictates, and as your conscience + demands. Here before this jury all letters of Attorneys-General, all + desires of Presidents, all popular clamor, all prejudice, no matter from + what source, is turned simply to dust and ashes, and you are to regard + them all simply as though they never had been. + </p> + <p> + There is one other thing. Some people are naturally suspicious. It is an + infinitely mean trait in human nature. Suspicion is only another form of + cowardice. The man who suspects constantly suspects because he is afraid. + Whenever you find a man with a free, frank, generous, brave nature, you + will find that man without suspicion. Suspicion is the soil in which + prejudice grows, and prejudice is the upas tree in whose shade reason + fails and justice dies. And allow me to say that no amount of suspicion + amounts to evidence. No case is to be tried upon suspicion. No case is to + be tried upon suspicious facts. No case is to be tried on scraps, and + patches, and shreds, and ravelings. There must be evidence; there must be + absolute, solid testimony. A case is tried according to the rocks of fact + and not according to the clouds and fogs of suspicion. No juror has a + right to make a decision until he feels his feet firmly fixed upon the + bed-rock of truth. + </p> + <p> + So I say, gentlemen, that we are glad of the opportunity to make a + statement of this case to you, and to tell you exactly the manner in which + my clients became interested in what is known as the star-route service. + You have to be guided in this case by the indictment. That is the star and + compass of this trial. You cannot go outside of it. The evidence must be + confined to the charges contained in that instrument. If you find us + guilty of a conspiracy, it must be such a conspiracy as is set forth in + that indictment. That indictment is the charter of your authority, and you + have no right to find us guilty of anything in the world except that which + is therein charged. + </p> + <p> + Now, let me give you an exceedingly brief statement of what we are here + for. It is charged in that indictment that all these defendants, including + one who has been discharged by a jury, who has been found not guilty, Mr. + Turner, including another who is dead, Mr. Peck, conspired together for + the purpose of defrauding the United States, and we are met at the + threshold with the statement that conspiracy is very hard to prove. It is + like any other offence, gentlemen. They say conspirators generally meet in + secret. My reply to that is that people generally steal in secret, and the + fact that they stole in secret was never deemed an excuse for not proving + the offence before they were found guilty. You can see that this is + precisely like any other offence in the world. Men when they commit crimes + endeavor to get away from the public eye. They are in love with darkness. + They do not carry torches in front of them. And it is so in every crime. + But whether conspiracy is difficult to prove or not, it must be + established before you can find the defendants guilty. That is a + difficulty that the Government must overcome by testimony. The jury must + not endeavor to overcome it by a verdict. And I say here to-day that the + same rule of evidence applies to this case as to any other, and you must + be satisfied by the testimony the Government will offer that these men + conspired together; that they entered into an arrangement wherein the part + of each was marked out, and that that arrangement was contrary to law; and + that the object of that arrangement was to defraud the Government of the + United States. + </p> + <p> + This indictment is kind enough to tell us the means that were employed to + carry out that conspiracy. How did they find these means, gentlemen? They + must have had some evidence on which they relied. If they had evidence + enough to convince them, they must introduce that evidence here, and if + that evidence establishes beyond a reasonable doubt that these men + conspired, then you will find them guilty; otherwise not. The difficulty + of establishing it is something with which you have nothing to do. How did + they conspire? What were the means they had agreed to use? Let us see. + Thomas J. Brady was the Second Assistant Postmaster-General. The + Postmaster-General was not included in the scheme, consequently they must + deceive him. The Sixth Auditor was not included in this conspiracy, and as + by virtue of his office it was his duty to go over all of these accounts + and pass upon the legality of each item, it was necessary to deceive him. + According to the indictment Mr. Turner was a clerk in the department, and + his part of the rascality was, on the jackets inclosing petitions, to make + false statements in regard to the contents of the petitions inclosed. The + object of that being that when the Second Assistant Postmaster-General, + Mr. Brady, exhibited these jackets to the Postmaster-General, it being + considered that he would not have time to read the petition, he would be + misled by the false statements on the cover touching the contents. + </p> + <p> + The next step was for the contractors to get up false petitions; that is, + petitions to be signed by persons who did not live along the route upon + which the mail was to be carried. These petitions also to be forged; that + is to say, the names of persons put there by another, or the names of + fictitious persons written, when in fact no such persons existed. + </p> + <p> + The next thing to do was to write false and fraudulent letters; to induce + others to write such letters; the next thing, to make false affidavits; + and the next thing, to make false orders—those to be made by Mr. + Brady—and these false orders were to have, as a false foundation, + false petitions, false letters, false communications, false affidavits, + and fraudulently written representations. + </p> + <p> + That is the indictment. That is the scheme said to have been entered into + by my clients with all of these defendants, and the object being to + defraud the Government of the United States. Now, in order to establish + that scheme, it would be necessary for the Government to prove it. Not to + assert it. Neither have you the right to infer it. No man can be inferred + out of his liberty. No man can be inferred into the penitentiary. That is + not the way to deprive a man of his reputation and of liberty—by + inference. They must prove it. They must prove that the petitions were + false. They must prove that the letters were fraudulent. They must prove + that the orders rested upon those false and fraudulent petitions, letters, + and affidavits; and they must prove that Mr. Brady knew them to be false. + </p> + <p> + It is also stated in this indictment that service was to be paid for when + it was not performed; that service was discontinued and a month's extra + pay allowed; that fines were imposed and afterwards set aside because the + contractors agreed to pay fifty per cent, of such fines to General Brady. + I will speak of them when I come to them. + </p> + <p> + Now, there is a clear statement. What part, then, did my clients play in + this scheme? I will tell you. It is charged in the indictment that John M. + Peck was in this scheme, and, although he is dead, whatever he did, I + imagine, can be established by the Government. A man can be found guilty, + I understand, of having entered into a conspiracy with another, although + the other be dead, and the living man can be convicted. + </p> + <p> + Now, it is stated in the outset that my clients never had been engaged in + carrying the mail and that is regarded as an exceedingly suspicious + circumstance. A man has got to commence some time, if he ever goes into + the business, and if this doctrine be true, the first bid that a man ever + makes is evidence that he has entered into a conspiracy. Suppose, on the + other hand, my clients have long been engaged in this business. What would + the Government counsel then have said? They would have said, gentlemen, + that they had been engaged for years in the business. They knew all the + tricks that were played, and consequently they were the very persons to + form a conspiracy. And that is the wonderful thing about suspicion. It + changes every fact. It colors every word it reads and every paper at which + it looks; and no matter what are the facts, the moment they are regarded + with a suspicious mind they prove what the man suspects. + </p> + <p> + So, then, the first charge is that we had never been in the business, and + consequently our going into the business must have been the result of a + conspiracy. Gentlemen, if the doctrine be laid down that it is dangerous + for a man to make a bid the result of that doctrine will be to double the + expenses of the Government in carrying the mails. All that will be + necessary, then, is for the old bidders to combine. They will know that + there is no danger of any new men interfering with them, because the new + men will be immediately indicted for conspiracy and the old men will have + the field to themselves. You can see that this is infinitely absurd. There + is only one step beyond such absurdity, and that is annihilation. No man + can possess his faculties and get beyond that absurdity, if it is evidence + of conspiracy, because it is the first thing. + </p> + <p> + As a matter of fact, however, John M. Peck had been engaged in the mail + business. He was engaged in the business before 1874. He had been + interested with others before that time. He was interested in several + important routes from 1874 to 1878. It was in the fall of 1877 that he + made arrangements to bid at the next letting. He was a business man. He + was not an adventurer. He was secretary at that time of the Arkansas + Central Railroad. He had been, I believe, for two sessions a member of the + Ar-kansas Legislature. He was in good standing, solvent, and regarded as + an honest man. In 1874 he was interested in the bids and, as I said, was + engaged in carrying the mails at the time these contracts were entered + into. He became acquainted with John W. Dorsey, I believe, in 1874. When + he made up his mind to put in more bids for the letting of 1878 he went + after John W. Dorsey, and they met together in the city of New York, I + believe, in the month of September, and agreed that they would put in some + bids for the letting of 1878. Peck was acquainted with John R. Miner and + had been acquainted with him for a considerable time. Mr. Miner wanted to + go into some other business than that in which he was then engaged, and + those three men made up their minds to bid. Was there anything criminal in + that? Nothing. Any men anywhere have the right to combine; the right to + form a partnership; the right to come together for the purpose of making + proposals for carrying the United States mails. Of course you will all + admit that. Now, that is what they did. There was nothing criminal, + nothing secret, nothing underhanded. Everything was above board, open, and + in the daylight. There is no conspiracy yet, and we will show that. + </p> + <p> + John M. Peck had been troubled with a lung disease. He had gotten much + better in September, and thought that he was almost well. Later in the + fall he took a severe cold and got much worse, and from that difficulty, I + believe, he never wholly recovered. He went, however, to Colorado and New + Mexico, and finally died. + </p> + <p> + Now, let us see about John W. Dorsey. I believe that great pains have been + taken to say that he was a tinsmith, which is a suspicious circumstance. + Why? Is there any law against a tinsmith bidding to carry the mails? Is + there any such provision in the statute? And yet that has been lugged + forward as one of the evidences of a conspiracy in this case, and it has + been lugged forward in a way to cast some disgrace upon this man—simply + because he was a tinsmith. Well, do you know I have as much respect for a + good tinsmith as for a good anything. What is the difference? Sometimes I + have thought I had more respect for a good tinsmith than a poor + professional man—sometimes. In this country of all others labor is + held to be absolutely honorable, and I think a thousand times more of a + man who works in the street and takes care of his wife and children than I + do of somebody else who dresses well and lives on the labor of others, and + then is impudent enough to endeavor to disgrace the source of his own + bread. I think the man who eats the bread of idleness is under a certain + obligation to speak well of labor. And yet we have the spectacle in this + very court of the Attorney General of the United States endeavoring to + cast a little stain upon this man. As a matter of fact, and I am almost + sorry to say it, John W. Dorsey is not a tinsmith. I am almost sorry to + make the admission. He happened to be a merchant, which is no more + honorable but somewhat easier. He dealt in stoves and tinware. That, + gentlemen, is his crime, and upon that rests the terrible suspicion that + he is a conspirator. And I want to say more, that his reputation for + honesty, his reputation for fair dealing, is as good as that of any other + man in the State in which he resides. He made up his mind to cast his + fortunes with John M. Peck and with John R. Miner and make some bids for + carrying the mails of the United States. That is all there is about it. + </p> + <p> + There is, however, another suspicious circumstance, and that is that John + W. Dorsey was the brother of Stephen W. Dorsey, and Stephen W. Dorsey at + that time was a Senator of the United States. That is another suspicious + circumstance. Whenever you find a man with a Senator for a brother, put + him down as a conspirator. Another suspicious circumstance, John M. Peck + was the brother-in law of S. W. Dorsey, absolutely married a sister of + Mrs. Dorsey, and that was the beginning of this hellish conspiracy. It was + suspicious. He intended to rob the Government when he was courting that + girl. + </p> + <p> + Now, we come to another man, Mr. John R. Miner, and the suspicious thing + about Miner is that he lives in Sandusky. But that of itself would be + nothing. Dorsey lived there once, too. Now, do you not see how they moved + to that town with the diabolical purpose of swindling this great + Government? Miner was not in very good health—do you not see—pretended + to be sick so that he could leave Sandusky; and in some way Miner and + Dorsey were excellent friends—another suspicious circumstance; and + for several years whenever John R. Miner visited Washington he laid the + foundations of this conspiracy by always stopping at the house of Senator + Dorsey—another suspicious thing. And do you not recollect the + delight, the abandon with which Mr. Bliss emphasized the word house, when + he said that they met at Dorsey's house? I had a great notion to get up + and plead guilty on that emphasis.. Miner came here. He and Peck were + acquainted; and wherever you find four men acquainted, gentlemen, look + out, there is trouble. When Miner came here he went directly to the house + of Senator Dorsey. I admit it with all the damning consequences that flow + from that admission. He did not even go to a hotel. He went directly to + Dorsey's house. I want that in all your minds, because the prosecution + regards that as one of the foundation facts in this conspiracy, and while + admitting it, do you not see how much I save them in the way of evidence. + </p> + <p> + And there is another damning fact connected with this case. Dorsey in the + top of his house had set apart one room for an office. It was up two or + three pair of stairs. I think he established his office there to shield + himself a little from the people who usually call on a Senator in the city + of Washington. But he found that he put himself to more trouble than he + did them, so he moved his office to the lower part of the building, and + when John Miner got to that house he occupied a room right next to that + office upstairs, and sometimes he went in there and wrote. Now, you see, + gentlemen, how that conspiracy was planted; how the branches sprang out of + the windows of that room and covered all the territory of the United + States. I might as well admit that frightful fact. I do not know that they + know that, but I might as well admit it, because we want the worst to come + first. Before Miner came here he wrote a letter. There is another place to + put a pin of suspicion. He wrote a letter to S. W. Dorsey; that is, it was + Miner or Peck, I have forgotten which, and may be that very forgetfulness + of mine is another evidence of conspiracy. A letter was written either by + Miner or Peck to Stephen W. Dorsey, saying that they were going to bid; + that Peck was not well enough to be here at that particular time, and + would he be kind enough to hand that letter to some man in whom he had + confidence and let that man get such information as he could with regard + to the routes upon which they expected to bid—all these Western star + routes. + </p> + <p> + Now, what did S. W. Dorsey do? There was a man in town by the name of + Boone. He sent for Mr. Boone, and I believe that Mr. Boone went to Mr. + Dorsey's house, and that Dorsey handed him that letter in his house. And + what was the object of the letter? For Boone to get information regarding + these routes. Well, now, what did Boone do? Boone made up a circular which + he sent to all the postmasters, or most of them, through Oregon, + Washington Territory, Colorado, New Mexico, Nevada, California, Kansas, + Nebraska; that is to say, the Western States and Territories; and in this + circular a certain number of questions were propounded to each postmaster. + First, the distance from that post-office to the next, and from the next + to the next, and so through the route. Second, the condition of the roads, + whether hilly or level. Third, about the snows in winter and the floods in + spring. Fourth, the cost of hay and corn and oats. Fifth, the wages that + would have to be paid to the man or men; and it may be some other + questions in addition. Now, these circulars were sent by Boone to all the + postmasters in consequence of a letter that he received in Dorsey's house. + What for? So that by the time that Miner and Peck and John W. Dorsey came + they could sit down and bid intelligently upon these routes; so that they + would have some information that would guide them; in other words, that + they would not be compelled to bid at random. + </p> + <p> + Now, we will show, gentlemen, that that was done, and if at that time + there had been a conspiracy, certainly such information was of no + particular value. Now, that is what Mr. Boone did, and I believe that is + about all he did at that time. There is no conspiracy yet, no fraud yet. + It is utterly impossible to defraud the Government by getting information + from postmasters as to the condition of the roads, and as to the distance + from one post-office to another. There is no fraud yet, no conspiracy up + to this point. In a little while Mr. Miner and Mr. John W. Dorsey + appeared. Ah, but they say Stephen W. Dorsey was at that time a Senator of + the United States Yes, he was, and I believe he remained Senator until the + 4th of March, 1879. When his brother came we will show to you that Stephen + W. Dorsey said to his brother, "I would rather you would not bid; I would + much rather that you would keep out of this business, because I am a + Senator and somebody may find fault. Somebody may suspect, and + consequently I would much rather you would get out of the business." John + W. Dorsey did not agree with him. He said he did not see how that could + interfere with him, and that he believed he could do well in that + business, and the consequence was he went on. There is nothing suspicious + so far as I can see in that. That is what we will show. + </p> + <p> + This man being a member of the United States Senate did what he did out of + pure friendship; did what he did for his brother, what he did for Mr. + Peck, and what he did for Mr. + </p> + <p> + Miner from pure friendship. I know it is very difficult for some people to + imagine that any man does anything for friendship. They put behind every + decent action the crawling snake of a mean and selfish motive. My opinion + of human nature is somewhat different. I have known thousands and + thousands of men capable of disinterested actions, thousands of men that + would help a brother, a brother-in-law, or a friend, and help them to the + extent of their fortune. I have known such men and I never supposed such + acts could be tortured into evidence of meanness. + </p> + <p> + The first charge against Stephen W. Dorsey is that he sent some bonds and + proposals for bids to a postmaster by the name of Clendenning, in the + State of Arkansas. The trouble with these bonds, as I understand it, was + that the amount of the bid was not put in the blank in the printed + proposal. It is claimed by the prosecution that according to the law the + postmaster has no right to certify to the solvency of the security until + that blank is filled. I want to explain this so that you will understand + it. I think I have one of the bonds and proposals here. I would like to + have the Court see exactly the scope of it. [Exhibiting blank form of + proposal and bond.] The proposal is that the undersigned,———— + whose post-office address is————, of the county of————, + and State of————, proposes to carry the mails of + the United States from July 1, such a date, to June 30 of such a date, + being four years, between such and such a place, under the advertisement + of the Postmaster-General, for the sum of————dollars + per annum. Now, if I understand the matter of the Clendenning bonds, they + were filled up with the exception of the blank in which the amount of the + bid was to be written. That is the charge, as I understand it. Whenever a + man makes a proposal to carry the mail for four years on a certain route, + that proposal must be accompanied with a bond in a certain amount, and + certain men must sign that bond as sureties, and then a certain postmaster + must certify to the solvency of the sureties, the sureties having made + oath as to the value of their property. Now, understand that perfectly. It + is not the bond that a man gives after his bid has been accepted. It is a + bond that he gives to show that his bid is in good faith. That bond is + conditioned that if the contract is awarded to him he will give another + and sufficient bond not only, but I believe it is also conditioned that he + will carry the mail. The charge is—and let us get at it just exactly—that + some bonds were sent to a man by the name of Clendenning, who was a + postmaster, and this blank was not filled. Let me tell you why. It was the + custom—and I want your Honor to understand that perfectly, because + so much was made of it before in talk—to leave that blank unfilled. + It is the blank for the amount of the bid. In the advertisement of the + Government the penalty of the bond is stated, so that the amount of the + bid has nothing to do with the penalty in the bond. Understand me now. If + the bond was for ten thousand dollars, it was because that amount had been + put in the advertisement by the Government. It did not depend upon the + amount of the bid. It had nothing to do with it. The amount of the bid + threw no light upon the amount of the bond. The penalty of the bond was + fixed by the Government before the bid was made and inserted in the + advertisement published by the Government. Why then did they not wish to + fill up this blank? This blank, gentlemen, told the amount of the bid. + Where there are many bidders, and an important route, if you let the + postmaster who has to certify to the sureties know the amount of the bid + he might sell you. He could go and tell somebody else "I have certified to + all the sureties on this route, and the lowest bid up to this time is + fifteen thousand dollars," and the person whom he told might go and bid + fourteen thousand nine, hundred and ninety-nine dollars and take the + route. Ah, but they say the postmaster is not allowed to tell the amount + of the bid. No. What was the penalty if he did? He would lose his office. + Now, here is a postmaster holding an office worth, perhaps, a hundred + dollars a century, or, perhaps, fifty dollars a year, and by selling + information as to one bid he might make ten thousand dollars. I do not + know what he could have made. Certainly the bidders did not feel like + trusting the secret of their bids to the postmaster who certified to the + sureties. As a consequence the bond was filled up with the penalty + according to the advertisement, but the blank in which the amount of the + bid was to be written was not filled, because they wanted the postmaster's + mind left a blank upon that subject. In other words, that blank was left + unfilled, not to defraud the Government, but to prevent other people from + defrauding the bidder. That is all there is about it. That is everything + about the Cleudenning bonds. But it may be well enough to state, + gentlemen, that those Clendenning bonds were never used on a solitary + route in this indictment, and I believe never anywhere; that no contract + was ever awarded upon any one of those proposals. The only rascality in + the transaction, gentlemen, was the failure to fill a blank; and the + reason they failed to fill that blank was because they did not want the + postmaster to know the amount of the bid. Let us come right down to + practical matters and things. For instance, suppose one of this jury is in + the stone-cutting business, and the Government should issue an + advertisement calling for proposals to furnish dressed granite, and + specify that every man who bid must file a bond in a penalty of five + thousand dollars to carry out his contract, and that that bond must be + approved by the postmaster here. Suppose it was a contract of great + proportions. Would the man who bid be willing that the amount of the bid + should be inserted in the blank to be passed upon by the postmaster? No. + Why? He would not want the postmaster to know it. Who else would he not + want to know it? He would not want his sureties to know it. A man might be + standing by while the bond was being approved and read the amount of the + bid. The bidder would be afraid somebody would get at those figures and go + and underbid him. Every man of common, ordinary sense knows that. If you + made a bid you would not let your sureties know the amount and you would + not give the amount to the keeping of a postmaster, neither would you + leave it to chance or accident. You would say, "I will leave the amount a + blank. I will keep it in my mind, and when the paper comes into my hands + for the last time I will write, it in there and fold it and seal it and + give it to the Government." That is what every sensible and prudent man + would do, and what has been done for years. And yet that act is brought + forward as something to stain the reputation of an honest man; something + to strike down as with a sword the character of an ex-Senator. They even + say he wrote upon paper that had the mark of the United States Senate + Chamber upon it. That is only another evidence that there was nothing + wrong in it. It was stated, too, in the opening of this case, that an + affidavit was made upon paper that bore the mark of the National Hotel of + this city. Think of such a damning circumstance as that! Well, gentlemen, + so much for the Clendenning bonds. We will prove that the blank was left + unfilled on purpose, not to defraud the Government, but to prevent other + people from defrauding us. Let me say in that connection that there was an + investigation in 1878 upon this very question. The Clendenning bonds were + brought up. Testimony was heard, and we will be able to show you the facts + that I have stated. Then, if I am right, gentlemen, there is nothing in + it; and when the opening statement was made the Government knew, just as + well as I know, that there was nothing in it; at least they ought to have + known it. Probably it is not proper for me to say they knew it, because + men get so prejudiced, so warped, so twisted that it is hard to tell what + they know or what they do not know. But that has nothing to do with this + case and, in my judgment, will never be admitted by the Court. If it is + admitted by the Court we will establish exactly what I have told you. So + much for the Clendenning bonds. Do not forget that the penalty of the bond + was put in by the Government. + </p> + <p> + Do not forget that the amount of the bid was left blank simply to protect + ourselves. Do not forget another thing: That leaving that blank unfilled + could not by any possible peradventure injure the Government. The bond was + just as good with that proposal unfilled at the time the sureties signed + it as though it had been filled. It had to be filled before it was finally + given to the Government or else there would be no bid. If there was no + bid, then no obligation rested upon the sureties. Certainly they could not + be harmed, and if there was no bid certainly the Government could not be + harmed; unless the bid should have happened to be lower than any received; + and yet out of that nothing, out of that one bramble, a forest of + rascality has been manufactured. Gentlemen, that is the result of + suspicion when it is hoed by malice and watered by hatred. + </p> + <p> + The next suspicious circumstance, gentlemen, is that we bid. That is a + suspicious circumstance. Miner bid, Peck bid, and John W. Dorsey bid. And + the suspicious circumstance is that they did not bid against each other. + Why should they? I was at an auction the other day and unconsciously bid + against myself, but I did not think it any evidence of rascality on my + part; I thought it tended to show that I was not attending strictly to + business, and yet it is brought forward as a suspicious circumstance that + these gentlemen did not bid against themselves. Another suspicious + circumstance is that they bid in their individual names. That is the way + all the bidding is done, I believe. I believe every bond has to be signed + by the individuals and not by any partnership. That I believe to be one of + the regulations of the department. Well, there is no rascality yet, as far + as I can see. Now, when the contract is accepted—I will come to the + bidding question again—the contractor has to give a bond. One of + those bonds will be put in evidence in this case. You will see what the + contractor is bound to do. Then it can be subcontracted. You will find + that the contract given by the subcontractor to the department is not a + hundredth part as severe as the bond the contractor gives to the + Government. In the contract that we give to the Government certain things + are provided. You will find that a copy of it will be intro duced. The + contractor is left to the mercy of discretion-I believe that is the word—of + the Postmaster-General You will find that if he fails to carry the mail + one trip, no matter by what he may be prevented, by flood or storm or + fire, he is not to be paid for it. Although he is there ready with his men + and horses, if he is prevented by the elements he has no pay. If the + Postmaster-General thinks he ought to have carried it when he did not, he + can take from his pay three times the value of the trip. He can take from + him one quarter's pay. He reserves in his own breast the power to declare + that contract null and void, because in his judgment the contractor has + not done his duty. Everything is left to him. The man who signs that + contract gives a mortgage on his life, liberty, and pursuit of happiness. + He has no redress. I simply call your attention to this to show you the + obligation that a contractor takes upon himself. We will show you that he + is under obligation to discharge any carrier that the Government does not + like; that he has no right to carry any package or any letter that can go + by mail; that he is to forfeit a trip when it is not run, or not to exceed + three times the pay of a trip; that he is to forfeit one-quarter of a trip + if the running time is so far behind that he fails to make connection with + the next mail; that if he violates any of these provisions he forfeits a + penalty equal to a quarter's pay, or if he violates any other provision + touching the carriage of the mail and the time and manner thereof, without + a satisfactory explanation in due time to the Postmaster-General, he can + visit a penalty in his discretion, and the forfeitures may be increased in + the penalty to a higher amount, in the discretion of the + Postmaster-General, according to the nature or frequency of the failure + and the importance of the mail. Provided that, except as specified, and + except as provided by law, no penalty shall exceed three times the pay of + a trip in each case. + </p> + <p> + It is also agreed by the said contractor and his sureties that the + Postmaster-General may annul the contract for repeated failures; for + violating the postal laws; for disobeying the instructions of the + Post-Office Department; for refusing to discharge a carrier when required + by the department; for transmitting commercial intelligence or matter + which should go by mail; for transporting persons so engaged as aforesaid; + whenever the contractor shall become a postmaster, &c. + </p> + <p> + It is further stipulated and agreed that such annulment shall not impair + the right to claim damages from said contractor and his sureties under + this contract; but such damages may, for the purpose of set-off or + counter-claim in the settlement of any claim of said contractor or his + sureties against the United States, whether arising under this contract or + otherwise, be assessed and liquidated by the Auditor of the Treasury for + the Post-Office Department. + </p> + <p> + And it is further stipulated and agreed by the said contractor and his + sureties that the contract may, in the discretion of the + Postmaster-General, be continued in force beyond its express terms for a + period not exceeding six months. You will see, gentlemen, how perfectly, + how absolutely, the contractor is in the power of the department. The + Government enforces its contracts. No matter how many years may elapse + they are still after the sureties and are still after the principal. + Nothing relieves a man but, death. Only a little while ago a case was + decided in the Supreme Court of which I will speak to you. An importer of + sugar gave the importers' bond to pay the duty upon that sugar. By the + custom of trade, sugar is sold in bond. + </p> + <p> + The importer sold to a third person and the third person went to get the + sugar. By law he could only take it after paying the tax; and yet one of + the officers of the Government, contrary to law, allowed him to take the + sugar without paying the tax. The Supreme Court has just held that the + original importer and his sureties are liable to pay that tax—the + man who took the sugar out having become bankrupt—although the sugar + was given to the second party simply by a violation of law, and that law + was violated by one of the officers of the custom-house without the + knowledge or consent of the original importer. I tell you, gentlemen, + whenever a man gives a bond to this Government the Government stays with + him. The Government does not die; the Government does not get tired; the + Government does not get weary. The Government can afford to wait, and the + poor man with the bond hanging over him cannot go into business, cannot + get credit, but just lingers out a life of expectation, of hope, and of + disappointment. I trust none of you will ever sign a bond to the + Government. There is another thing, gentlemen. If you bid on a hundred + routes and they are given to you and you put the service on ninety-nine of + the routes and carry it in accordance with the contract, and yet fail on + the hundredth route, the Postmaster-General has a right to declare you a + failing contractor. A failing contractor on the hundredth route? Yes. On + any more? Yes; on every one. And whoever is declared a failing contractor + on one route is by virtue of that declaration a failing contractor on all. + They are all taken from him. So that when a man bids for more than one + route, for instance, a hundred or a thousand, and gets them and carries + them all absolutely according to his contract but one, he can be declared + a failing contractor on all. What does that mean? It means not simply ruin + to him, but ruin to every one of his sureties, unless they are in a + condition to go on and carry the mail. I want you to understand something + of the obligation of a contractor with the Government of the United + States. + </p> + <p> + Now, I come to the bidding. These bids were made with a full understanding + of the obligation of a bidder. Messrs. Miner, Peck, and John W. Dorsey + bid, I believe, on about twelve hundred routes. You see you are in great + luck in bidding if you get one route in fifty that you bid upon. In the + first place, there are about ten thousand star routes. I do not know that + it is too much to say that the number of bids runs up into the hundreds of + thousands; somewhere in that neighborhood. Hundreds of men often bid on + one route. Consequently, nobody who bids expects to get more than a few of + the routes for which they bid. Now, is there the slightest evidence in the + statement of the Government as to the frauds in this bidding? Let me tell + you how some frauds have been committed. Suppose, for instance, this was a + fraudulent business, and Miner, Peck, and Dorsey were bidding. Let me + explain it to you. I want you to know it. All there is in this case is + simply to have you understand it. That is all there is. And if you do not + agree with me when we get through the case I shall simply think that you + have not comprehended it. Say that four men bid on the same route, one man + four thousand dol-ars, another man three thousand dollars, another man two + thousand dollars, and another man one thousand dollars. + </p> + <p> + Now, the man who bids one thousand dollars is of no account, has not a + dollar in the world, and so when the bid is given to him he does not want + it. He is what they call a straw man. The law provides then that the next + man may have it. The law does not provide that he must take it. He may + have it if he wants to, but you cannot force him to take it, because he is + not the lowest bidder. He is the two thousand dollar man. He is another + straw gentleman. He does not want it. Then the Government offers it to the + next man at three thousand dollars. He is another chap made of hay. He + says he doesn't want it. Understand the Government cannot force these + straw and hay men to take it. Then they go to the fourth fellow, who bid + four thousand dollars. It is a good thing at four thousand, and he says, + "Yes; I will take it." That is what they call fraudulent bidding. If you + had found Dorsey and Miner and Peck bidding on the same route and one of + them failing and another one taking it, you would not only have suspected + fraud, but you would have known it. Now, if it is a badge of fraud for + them to bid upon the same route and apparently against each other, I will + ask you if it is not a badge of fair dealing that they were not found + bidding against each other. They bid on about twelve hundred routes, and + much to their astonishment they got one hundred and thirty-four contracts. + </p> + <p> + You have heard here a great deal of talk about the number of men and + horses. We will show you all about it. Men differ upon this subject. If + men did not differ upon it at all these bids would be alike. Instead of + being a dozen bids, all different, and differing sometimes as much as ten, + twenty, thirty, forty, or a hundred dollars or more, they would bid the + same. If they all agreed on the number of horses and men it would take, + and about what it would cost, they would bid about alike, wouldn't they? + But when they are bidding they honestly differ. One man says it would take + twenty horses, and another says "no, it will take forty." Do you not know + that the number of horses depends a great deal upon the kind of man who + makes the estimate. Here is a man who is hard and brutal, and he says a + horse can do so much work. He says it is cheaper to buy him and wear him + out than it is to feed him decently. You have known men who were perfectly + willing to make fortunes out of a horse's agony, and out of animal pain. + There are hundreds of them in the world. Now, take it on horse railroads, + and with freighters, and teamsters. Whenever you find a mean, infamous + man, if he cannot whip his wife, he will take his spite out on his horse. + If a man is a good, broad, generous, free fellow he will say, "I don't + want to work that horse to death; I think it will take four horses. I am + going to keep my horses fat, and I am going to treat them as a gentleman + should." Another man, a wretch, will come up and swear it would not take + more than fifteen horses. When his horses are through the service you will + simply see a pile of bones wrapped in a lamentable hide. You understand + that. + </p> + <p> + Well, these men made twelve hundred bids and got one hundred and + thirty-four contracts. Ah, but they say, here is another badge of fraud, + another badge. Ah, they bid on small routes, on cheap routes, on routes + where the mail was carried infrequently and on slow time. If it is a badge + of fraud to bid on such routes the Government can never let out any more. + Most of these routes were cheap routes. Now, I owe it to you to give you + the reason for this. We will prove in the first place that these men were + not rich men. If they had been very rich they probably would not have gone + into the business at all. They would have gone into that perfectly + respectable business of buying Government bonds. They would have bought + Government bonds and made other fellows pay the interest, and twice a year + they would have formed a partnership with a pair of shears, and thus in + the sweat of their faces they would clip their coupons. They bid on poor + routes. Why? They were poor, comparatively speaking. + </p> + <p> + They had not the money to stock the expensive routes where four horse + coaches were run. They preferred to take the cheaper lines. Why? Because + they could stock them. They would have been able to have stocked the + routes if they had only obtained the number they expected. But as I told + you, they got many more routes than they expected. Was that for the + benefit of the Government? How did these men come to bid so cheaply on + some of these routes? I will tell you. Because they had the information, + because they had received the facts from all the postmasters on the + routes, and consequently they made a good close calculation, and the + result was that their bids were below others, and the fact that their bids + were accepted saved the Government hundreds of thousands of dollars. When + they found themselves with all these contracts, the first hard work they + did was to give away all they could. That was the first hard work. They + had contracts, not for sale, but just to give, and they succeeded in + giving away several of them. I believe they sold two of these children of + conspiracy for the enormous sum of one hundred dollars each. That was the + highest sale they made at that time. Afterwards another route was sold + which I will explain when I come to it. Now there is no rascality yet. No + fraud yet. No conspiracy yet. Well, they then went to work to get their + bonds. But first let me say that there was another reason for bidding on + cheap routes. Whenever the bid is above five thousand dollars, then the + man who bids must, at the time he bids, put up a check for five per cent, + of the amount. + </p> + <p> + A check certified by a national bank. For instance, if it all comes to a + hundred thousand dollars he has got to put in a certified check for five + thousand dollars. Even in the little bids we made we had to deposit with + the Government some twenty-six or twenty-eight thousand dollars, and I do + not know but more, in cash, or what is the same as cash, for the bank + certifies that the money is there. That is another reason they bid on + smaller routes. What is the next? The Government asks such frightful + bonds, such terrible amounts, that a man must be almost a millionaire, or + else there must be a confidence in him that is universal, before he can + give these bonds. + </p> + <p> + There was one route at this very bidding where they had to give bonds for + six hundred and forty thousand dollars, and the sureties upon these bonds + under oath had to testify that they had real estate to the value of six + hundred and forty thousand dollars, exclusive of all debts, dues, and + demands. So there was another reason for bidding upon small routes. Where + the amount was under five thousand dollars no certified check had to be + deposited, and the smaller the route of course the smaller the bond. + </p> + <p> + Now, I have endeavored to show you the reasons that we bid upon these + routes instead of upon the larger ones. The reasons as stated by the + Government are that we took these routes where the service was once a + week, so that we could have the service increased; that we took those + routes where the time was long so that we could have it shortened, that is + to say, expedited. But I tell you that when a perfectly good reason lies + at the very threshold of the question you have no right to go further. The + reasons I have given to you it seems to me are perfect and you need no + more. + </p> + <p> + Now, then, we got, I say, about one hundred and thirty-four routes. Of + these, one hundred and fifteen are without complaint. There is not a word + about the other one hundred and fifteen. Recollect it. We got one hundred + and thirty-four routes. In this indictment are nineteen; one hundred and + fifteen appear to be perfectly satisfactory to this great Government. + There is not a word as to those routes, not one word, I say, as to one + hundred and fifteen routes, and they want you to believe that these + defendants deliberately selected nineteen routes out of one hundred and + thirty-four about which to make a conspiracy, and that they left one + hundred and fifteen to go honestly along, but picked out nineteen for the + purpose of defrauding the Government. + </p> + <p> + Now, then, when these gentlemen found themselves with these routes, the + next thing was to put the stock and the carriers upon them. As I told you, + a good many more had been awarded to them than they anticipated. They had + not the money. So, in putting the stock upon several of the routes, they + found it necessary to borrow some money, and here comes another suspicious + circumstance. Mr. Miner borrowed some money of Stephen W. Dorsey, and + everybody is astonished that any man would be mean enough to loan money to + another; that any man could so far forget the dignity of the office that + he held as to help a friend. Their idea of a Senator is of such a lofty + and dignified character that he ceases to take interest in anything except + national affairs; that after he has been sworn in he forgets all the + relationships and friendships of the world, and the idea of asking him to + loan money seems, to the prosecution, to be the height of + unconstitutionality. But as a matter of fact he did loan some money, and + we will show you how that loan was treated, showing you that at that time + he had not the slightest interest in it. He loaned some money, and kept + loaning money until, I believe, he had given them about sixteen thousand + dollars to get these routes on. Then he, being on his way to New Mexico, + met in the city of Saint Louis John R. Miner, who at that time was coming + back, I think, from Montana or Dakota, where he had been putting stock on + a route. Miner saw Dorsey in Saint Louis, and said to him, "We have got to + have a little more money, and I want you to indorse my note or to loan me + your note and I can get it discounted in the German-American Bank in + Washington." Finally, Dorsey said to him, "You have already obtained from + me about sixteen thousand dollars: I will give you the note you ask, or + indorse your note upon one condition, and that is that you shall give me + orders"—what are called Post-Office drafts—"not only for the + amount of this note, but for the amount of the sixteen thousand dollars." + We shall insist, gentlemen, that that evidence shows exactly our position, + and that you are entitled not only to draw from it, but that you must draw + from it the inference, the fact, that we had no interest in those routes. + Finally that was agreed to. + </p> + <p> + Now, understand it, at that time a contractor with the Government who had + agreed to carry the mail for a certain time could give what are called + post-office drafts or orders—you know, orders on his quarterly pay—and + they would be taken to the proper officer in the Post-Office Department + and they would be accepted, not for the full amount, understand, but for + any amount that might be due that contractor. For instance, he might fail + to carry the mail, he might be fined, and consequently the amount of that + draft might not be there, so that the only thing the Post-Office + Department agreed to do was to pay upon that order or draft anything that + was due to the contractor. That was done at that time, and why? Because + there was no way other than that to secure these advances. So he gave + these drafts. He came on to Washington. The note was put into the + German-American Bank. The orders on the Post-Office Department were filed + with it, and the money advanced by the bank and charged to Stephen W. + Dorsey. That made, then, at that time about twenty-five thousand dollars + that Dorsey had advanced. That being done he went on about his business. + </p> + <p> + Now, I will show you what happened after that. I think the note in the + German-American Bank was nine thousand dollars or ten thousand dollars, I + have forgotten which. Dorsey then went on to New Mexico from Saint Louis, + and remained there, I believe, until December, 1878. Now, I want you to + understand this, because here turns a very important question, and a very + important point. Now, you recollect the information about these bids was + collected in the autumn and winter of 1877. The last bid was to be put in, + I think, February 28, 1878. Now, this was in the August of that year, + 1878. Still being pressed for money, Miner, Peck, and J. W. Dorsey were in + danger of being declared failing contractors. Now, recollect it. We will + show that at that time Brady, who, according to the Government, was a + co-conspirator, threatened to declare Dorsey, Peck, and Miner failing + contractors, and if he had declared them failing contractors even on one + route that was the end of all. At that time Miner and John W. Dorsey + sought out Mr. Harvey M. Vaile, and let me say that is the first + appearance of Mr. Vaile in these contracts. He knew nothing about the + bidding, was not in Dorsey's house, knew nothing about the letting. That + is his first appearance in these contracts, August, 1878. Now let us see + what he did. He was a man of means. He had some money; had been, I + believe, for a long time engaged in carrying the mails; understood the + business. They will tell you that is a suspicious circumstance as to him, + and that the fact that that was John Dorsey's first experience is a + suspicious circumstance as to him. Really to avoid suspicion you would + have to have a man that had been in it a long time but never had anything + to do with it. They got him, and offered what? To give him a third + interest in this entire business. I think that was it. They were to give + him a third interest in this entire business, a business that had been + born of conspiracy, a business that had as a silent partner the man who + fixed the amount of money to be paid. Think of that. According to the + statement of the Government, here was a conspiracy full-fledged, perfect + in its every part, flanked by the Second Assistant Postmaster-General, + buttressed by all the clerks they desired, and yet that conspiracy got so + hard up that in August, 1878, nine or ten months after its creation, it + was willing to give a third to anybody who would advance a little money to + carry the thing on. + </p> + <p> + So Mr. Vaile came in. Now, then, they had to secure Vaile against any + loss, and it seems that on July 1, I believe, of that year, the law + allowed the subcontract to be filed. It was a little while before that + that a law had been passed for the protection of subcontractors. That was + all explained to you yesterday. You know it is something like a mechanic's + lien; that if the subcontractor would only file his subcontract in the + Post-Office Department and let that department know the terms of it they + would not pay the original contractor until this subcontractor was paid. + Now, that law had gone into effect a little while before August, 1878, and + the effect of that law, if anybody filed a subcontract on these routes, + was to cut out all those post-office orders that Miner had given to secure + Dorsey. You understand me now, do you not? It was when he met him in Saint + Louis that it was agreed that these post-office orders were to be given + and filed with the German-American Bank in this city. Now, then, the law + passed for the protection of subcontractors, and subsequently the filing + of subcontracts on those very routes, would render those post-office + orders absolutely worthless. Very well. When they made the contract with + Mr. Vaile they agreed to file the subcontracts with the department to + protect Vaile and that rendered S. W. Dorsey's security absolutely + nothing. That cut out all other claims, drafts, and everything else, and + at that time Mr. Miner was fully authorized by power of attorney from J. + W. Dorsey and from John M. Peck, who was at that time in New Mexico, to + make this transfer to Vaile. + </p> + <p> + Now, see where we are on August 16, 1878. On Dorsey's return in December, + 1878—he had not been here from that time, and do you not see he had + nothing to do with it—he found that these subcontracts had been + filed. He found that the note in the German-American Bank had been + protested, and he found that his collateral security was not worth a + dollar, that it was all gone. Thereupon he demanded a settlement. The + matter drifted along for a little while, and a settlement was made with + the bank; and Mr. Vaile, holding the subcontract, undertook to pay that + Dorsey note, and he did pay it. He took it up, and gave, I believe, his + own instead, and that was finally paid. But the money due Dorsey, the + sixteen thousand dollars that at that time amounted to something more by + virtue of interest, was not provided for. The money that had been expended + by John W. Dorsey was not provided for. The money expended by Peck was not + provided for. Now, I want you to see exactly how that matter stood at that + time. We have got it up to that time and here it stands, and the chief + conspirator out sixteen thousand dollars and without any interest in one + of the routes. There is where he was at that time, and that is what we + will show. The brother of the chief conspirator ten thousand dollars out, + and not the interest of one cent in any route. The brother-in-law of the + conspirator about ten thousand dollars out, and not a cent in. That was + the condition of this conspiracy at this time, and when Vaile took these + routes Brady telegraphed him and asked him, "What routes of Miner, Dorsey, + and Peck, are you going to put the stock on? This thing can be continued + no longer. The stock must go on." We will show it. Now, having got to that + point, we will take another step. There is nothing like understanding + things as we go along. + </p> + <p> + Now, from the time Mr. Vaile took the route, to the settlement in 1879, to + which I will call your attention in a little while, Mr. Vaile had the + absolute control. Neither Peck nor S. W. Dorsey had the slightest thing to + do with one of those routes until the final settlement, and I say to these + gentlemen of the prosecution now, that in that time they can find no line, + no word from Stephen W. Dorsey upon the subject. They cannot find that he + wrote a word to any official, that he sent a petition to anybody, that he + wrote a letter to any human being upon the subject, or that he took any + more interest in it than in the ashes of Sodom and Gomorrah. It went right + along. + </p> + <p> + Now, then, up to this time, Stephen W. Dorsey had made nothing. He was + only out about sixteen thousand dollars or eighteen thousand dollars. John + W. Dorsey was in the same healthy financial condition. John M. Peck had + reaped the same rich harvest of ten thousand dollars lost, and all the + things had been turned over to Mr. Vaile; John W. Dorsey put out—left + out—with nothing to show. That is the first chapter in this + conspiracy. [Resuming.] + </p> + <p> + I believe when I stopped, the principal conspirators were substantially + "broke." The head and front was out sixteen or eighteen thousand dollars, + and the other two ten thousand dollars each. Now, a contract was made, and + I propose to prove that contract in the course of this trial. When that + contract comes to be shown, it will be about this: That, on the 16th day + of August, 1878, H. M. Vaile, John R. Miner, John M. Peck, and John W. + Dorsey made an agreement That agreement made a partnership, and we will + show that a partnership was formed by and between Miner, Vaile, Peck, and + Dorsey on the 16th day of August, 1878. We will show by the articles of + that partnership that H. M. Vaile was made treasurer, and that all the + other partners agreed, by suitable powers of attorney, to put the + collection of all the money from the Government absolutely in his hands. + When he got the money he agreed, first, to pay all the subcontractors; + second, the expenses necessary and incident to the proper conduct of the + business; third, to divide the profits remain-, ing among the parties as + provided in that contract. The profits were to be divided as follows: From + routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M. Vaile, + one-third; to John R. Miner, one-sixth; to John M. Peck, one-sixth; and to + John W. Dorsey, one-third. From routes in Montana, Wyoming, Colorado, New + Mexico, Arizona, Utah, Idaho, Washington Territory, Oregon, Nevada, and + California, to H. M. Vaile, one-third; to John R. Miner, one-third, and to + John M. Peck, one-third. Before any division of profits was to be made, + the sums which before that time had been advanced were to be paid to the + parties so advancing such sums; and if the profits were not sufficient to + repay the entire sums so advanced, they were to be paid from time to time + during the existence of the life of these contracts. Now, you will find + that such contract was made on the 16th day of August, 1878, and that Mr. + H. M. Vaile then took absolute and complete control of every one of these + routes, and the only thing they asked of him was to repay the money that + had been advanced, which, as you know, and as I have told you, was the + sixteen or eighteen thousand dollars by S. W. Dorsey, the ten thousand + dollars by Peck, and about the same amount by John W. Dorsey. Now that is + understood. At that time certain papers were executed by all the parties. + I told you that a law had been passed by virtue of which a man could make + a subcontract and have that subcontract put on file, and thereupon he + could be protected by the Government. Now, when H. M. Vaile took these + routes, and they were to be managed by him, subcontracts were made by the + other parties to Mr. Vaile, and Mr. Vaile put those subcontracts on + record. Now you can see that they gave him the absolute and entire control + of every route. That was the condition. I have explained to you the the + liability of a contractor. He cannot put it off on a subcontractor. He is + the man primarily responsible to the Government during the life of that + contract, and for six months thereafter. Whenever a contract is awarded to + any person, he is regarded as the original contractor, and his name is + kept upon the books of the department during the life of that contract. No + matter how many subcontracts may be made, he is looked to primarily if + there is a failure of a a trip, or if there is a failure of the service, + and he is responsible for its complete performance. If there comes some + great storm and the road is obstructed by snow, or if the bridges are all + carried away by flood, and the subcontractor throws down the contract, the + original contractor must be ready to take it up; and if he fail to do so, + he can be fined three times what he has received for each trip. There is + one case in one of these nineteen routes, gentlemen, where the fines + exceeded the entire pay simply because they did not carry the mail + according to the contract. Now, then, these parties finally made a + settlement and they divided these routes. They divided them. They ceased + to have any interest in common. Recollect, that was in April, 1879. I want + you to know it because this entire case depends on your knowing it. This + entire case, gentlemen of the jury, depends on your understanding it. In + April, 1879, Mr. Vaile having had possession of these routes for several + months, a division was made of them, and all interest in common was at + that moment severed. At this time, I say, these routes were divided, and + all partnership and all partnership interest was absolutely destroyed. I + want to tell you why. When Dorsey returned from New Mexico and found that + his orders on the Post-Office Department had been superseded by + subcontracts and that his collateral security was worthless he was + indignant, and at that time he and Mr. Vaile had a quarrel. He did not + think he had been properly treated, and for that reason the moment he got + the note at the German-American Bank provided for, the moment he induced + Mr. Vaile to assume the payment of that note, he gave evidence that he + wanted a settlement. Not that he wanted the routes divided at that time, + because he did not dream of such a thing. He wanted the settlement. He + wanted his money. The arrangement that had been made with Mr. Vaile was + unknown to Mr. Dorsey, who at that time was in New Mexico; and, as I told + you before, when he returned and found that the note that had been given + to the German-American National Bank was protested, and found, as I told + you twice, his collateral security was worthless, he wanted a settlement. + He wanted his money refunded to him. They said to him, "We haven't the + money. We have just got the stock really upon these routes. We have just + got under way, and we cannot pay out the money." "Very well," said he, + "what will you give me?" I want you all to see that this was a simple, + natural, ordinary proceeding. Said he, "I want my money." Said Vaile to + him, "We haven't the money, but I will tell you what we will do. We will + divide the routes with you." Now, recollect at that time that they had a + hundred and thirty-four routes, and had given some of them away. At that + time they agreed upon a division, and they agreed how that division should + be made. We will prove the agreement to you. The agreement was that Mr. + Vaile should choose first, taking the route he wanted—he and Miner + being together at that time—that Mr. Dorsey should choose the next, + and Mr. Miner should choose the third route; and then that Mr. Vaile + should choose the fourth, Stephen W. Dorsey the fifth route, Mr. Miner the + sixth route, Mr. Vaile the seventh route, and so on. They finally + concluded it would be fair for Mr. Vaile to take the best route, Dorsey + the next best, and Miner the next best, and then again Vaile the best, + Dorsey the next best, and Miner the next best, and that that would be an + average that would do justice to each. In that way, gentlemen, they + divided these routes. There was no conspiracy; nothing secret. This + division was made on the 6th day of April, 1879, not only after Dorsey had + gone out of the Senate, but after he had advanced this money, after they + had failed to repay him, after he had failed to collect it, and when he + finally had said, "I must have some settlement that recognizes my claim." + Gentlemen, I want you to know that. In this case that fact will be one of + the great central facts. On the 6th day of April, 1879, these routes were + absolutely divided, and after that they had nothing in common. But you + recollect that these routes were divided by chance. Mr. Vaile chose the + first route. He might choose a route that had been bid off by Peck, or he + might choose a route that had been bid off by John W. Dorsey. Stephen W. + Dorsey took the next route, and that might have been a route that had + originally been awarded to his brother, or to Peck, or to Miner. You can + see how that is. The division was here complete. Mr. Miner did not have + the routes he had bid off and that had been given to him by the + Government. Mr. Vaile came in, and as Mr. Vaile was not an original bidder + he took routes that had been awarded to Miner and to Peck and to John W. + Dorsey. By the division Stephen W. Dorsey came into possession of routes + that he never had bid off, because he never bid for one. Consequently as + he went along with those routes, he needed and he had oftentimes the + affidavit or the certificate of the original contractor. That was a + necessity. Otherwise the division could not have been carried out. + Anything that arises from the necessity of the case does not tend to show + any conspiracy or any illegal partnership. I hope you understand perfectly + that on the 6th day of April, 1879, these routes were divided and Stephen + W. Dorsey took his share because they at that time owed him between + sixteen and eighteen thousand dollars. + </p> + <p> + What more did he do, gentlemen? He agreed at that time that he would + refund to John W. Dorsey all the money he had expended. That amount was + about ten thousand dollars. It was nine thousand and something. He also + agreed that he would refund to John M. Peck, who is now dead, the money he + had expended, which was between nine and ten thousand dollars. He also + agreed that he would take the routes for the money he had expended, and + that was between sixteen and eighteen thousand dollars. So, when those + routes were turned over to him they were taken in full of over sixteen + thousand dollars advanced by him, ten thousand dollars that he was to give + to his brother, and ten thousand dollars that he was to give to John M. + Peck—in the neighborhood of thirty-eight thousand dollars in all. + Speaking of the sum without interest it amounted to thirty-six thousand + dollars. Those routes were turned over to him. Gentlemen, it was not done + in secret. When that division was made, the law having provided no way for + A to assign a contract to B, that assignment had to be accomplished by a + subcontract, and consequently subcontracts had to be given to Vaile, + subcontracts to John R. Miner, and subcontracts to S. W. Dorsey, and yet + the original contractor was still held by the Government. When the + subcontract was made, it was for the entire amount of the pay; not one + dollar remained for the original contractor. Now, I want to state to you + what we are going to prove about that. After the division was made, to + show you the interest taken by the arch-conspirator, we will prove these + facts: That when the routes awarded to him by chance, on the 6th day of + April, 1879, had been awarded, he left the city of Washington in a few + days, and went to New Mexico; that he returned here on the 15th or 16th of + May; that he left again on the 19th of May, and went to Arkansas; that + from Arkansas he went to New Mexico, and returned to Washington on the + 21st day of June, and that on the 27th of June he left for New Mexico. The + next time he visited Washington was in July of the following year, 1880. + He remained here one day, left and returned again to witness the + inauguration of General Garfield. From June 27, 1879, up to the present + hour I challenge these gentlemen to show that Stephen W. Dorsey ever wrote + one line, one word, one letter, to any officer of the Post-Office + Department. I challenge them to show that he ever took the slightest + interest in any star route, or said one word to any human being about that + business, except in explanation when attacked by the Government or in the + newspapers. Now, gentlemen, after the division of these routes what did + Stephen W. Dorsey do? This is a story, complicated, it may seem, perfectly + plain when you understand the surroundings. It is a story necessary for + you to know. After he got these routes what did he do? Did he want them? + Did he want to engage in carrying the mail of the United States? Was that + his business? At that time he had a ranch in New Mexico where he was + raising cattle. That was his business, and is up to to-day. Did he want to + stay here? Did he want to attend to these contracts? That is for you to + determine. Did he want to enter into some partnership by which the + Government was to be fleeced? That is for you to say. I tell you he had + another business. I tell you he had a ranch in New Mexico, and we will + prove it to you, and that ranch was of more importance to him than all the + star routes in the United States. We will show you that at that time he + could not have afforded to waste his time on these routes; that the + business he was then engaged in was too profitable to waste any time in + the mail business. Profitable as these gentlemen appear to think it was, + what did he do? Just as soon as he could make the arrangement he went to a + gentleman living in Pennsylvania by the name of James W. Bosler. Who is + Bosler? He is a man well acquainted with the business of contracting with + the Government. He has been in that business for years and years. He is a + man of ample fortune, excellent reputation, considered by his friends and + neighbors to be a gentleman and an honest man. He went to him. That we + will show you. He said to Mr. Bosler, "I have advanced money by the + indorsement of a note. I am in a business that I do not understand. We + have had to divide the routes in order for me to have security for my + debt. I want to turn these routes over to you. I am not acquainted with + the business of carrying the mail. I know absolutely nothing about it. I + want you to take it." How did he turn it over? We will show. He said to + Mr. Bosler, "You take all the routes that have been given to me; every + one. You run them and you pay me back my money, and then we will divide + the profit." Mr. Bosler said he was not very well acquainted with + post-office business, but he understood how to transact any ordinary + business, and he would take them. That is all there is to it. He took the + routes; every one. I believe that he took absolute control within a few + months of the 6th day of April. I do not know but the warrants for the + first quarter were paid or came in some way to S. W. Dorsey. But for the + second quarter Mr. Bosler took them, and from that day to this Mr. Bosler + has controlled those routes. He has carried every mail or has contracted + with the man who did carry it. Every solitary thing that has been done + from that day to this has been done by him. Every dollar has been + collected by Mr. Bosler, and every dollar has been disbursed by Mr. + Bosler. And before we get through I am going to tell you how all the + routes that were given to Mr. S. W. Dorsey came out. Let me tell you how + they came out. Mr. Bosler has carried the mail, paid the expenses, kept + the accounts, and, gentlemen, I am going to tell you how much he made out + of this vast conspiracy that has convulsed that part of the moral world + that has been hired and paid to be convulsed. I am going to tell you + exactly how we came out on all this business. I will give you the product + of all this rascality, of all this conspiracy, of all the written and + spoken lies; I will tell you our joint profit on this entire business; a + business that promised to change the administration of this Government; a + business about which reputations have been lost, and no reputations will + be won; counting it all, every dollar, and taking into consideration the + midnight meetings, the whisperings in alleys, the strange grips and signs + that we have had to invent and practice, you will wonder at the amount. I + will give it to you all. Mr. Bosler has kept the books, has expended every + dollar, collected every warrant, and I say to you to-day that the entire + profit has been less than ten thousand dollars, not enough to pay ten + witnesses of the Government. Our profits have not been one-fiftieth of the + expense of the Government in this prosecution—not one-fiftieth, and + I say this, gentlemen, knowing what I am saying. It is charged by the + Government that these gentlemen were conspirators; that they dragged the + robes of office in the mire of rascality; that they swore lies; that they + made false petitions; that they forged the names of citizens; that they + did all this for the paltry profit of ten thousand dollars. That is what + we will show you. And the moment this reform administration swept into + power they cut down the service on these routes. They not only did that, + but they refused to pay the month's extra pay, and they committed all this + villainy in the name of reform. And do you know some of the meanest things + in this world have been done in the name of reform? They used to say that + patriotism was the last refuge of a scoundrel. I think reform is. And + whenever I hear a small politician talking about reform, borrowing soap to + wash his official hands, with his mouth full and his memory glutted with + the rascality of somebody else I begin to suspect him; I begin to think + that that gentleman is preparing to steal something. So much, then, for + the conspiracy up to this point, up to the division of these routes in + 1879. Now recollect it. + </p> + <p> + Now, the next charge that is made against us, and it is a terrific one, is + that these defendants, my clients, have filled the Post-Office Department + with petitions—false petitions; forged petitions. I want to tell you + here to-day that these gentlemen will never present any petitions upon any + route upon which my clients are interested that they will claim was forged—not + one. Have we not the right, gentlemen, to petition? Has not the humblest + man in the United States a right to send a petition to Congress? Has not + the smallest man—I will go further—has not the meanest man the + right to petition Congress? Why, it is considered one of our + Constitutional rights not only, but a right back of the Constitution, to + make known your grievances to the governing power. Every man always had a + right to petition the king. There is no government so absolutely devoid of + the spirit of liberty that the meanest subject in it has not the right to + express his opinion to the king—to the czar. Upon what meat do these + officers feed that they are grown so great that an ordinary citizen may + not address a petition to one of them? Now, I ask you, if you were living + in Colorado and could get a mail once a week, have you not the right to + petition your member of Congress to have it three times a week? Do you not + know that every member of Congress from every State, every delegate from + every Territory, is judged by his constitutents by the standard of what he + does. By what he does for whom? By what he does for them. They send a man + to Congress to help them, and they expect that man to get them a mail just + as often as any other member of Congress gets his people a mail, do they + not? And if he cannot do that they will leave that young gentleman at + home. They will find another man. It is the boast of a member of Congress + when he returns to his constitutents, "I have done something for you. You + only had a mail here once a week. I have got it four times a week, + gentlemen." "Here is a river that was navigable. I have got a custom + house." "Here is a great district in which the United States holds a court + and I have an appropriation for a court-house." Up will go the caps; they + will say, "He is the man we want to represent us next session." But if he + sneaks back and says, "Gentlemen, you do not need a court-house, you have + mails often enough," the reply of the people is, "And you have been to + Congress often enough." That is nature, and no matter how highly we are + civilized when you scratch through the varnish you find a natural man. + </p> + <p> + Now, then, every member of Congress felt it was his duty, his privilege, + and his leverage, to have the mails established, and when the people got + up petitions he would indorse them. He would look at the petitions. There + was the principal man, you know, in his town. He would look down a little + farther. There was a fellow that had an idea of running against him. He + would look down a little farther, and there was the man who presented his + name at the last convention; there is the fellow who subscribed three + hundred dollars towards the expenses of the campaign. That is enough. He + turns it right over—"I most earnestly recommend that this petition + be granted. So and so, M. C." Then he would put it in his coat-pocket, and + he would march down to General Brady with a smile on his face as broad as + the horizon of his countenance. He would just explain to the gentleman + that there are miner's camps springing up all over that country, towns + growing in a night like mushrooms, Providence just throwing prosperity + away in that valley; that they have to have a daily mail then and there, + and he would show this petition. In three weeks more there would come + fifty others, and it would be granted. Why, even the counsel for the + prosecution would have done the same, strange as it may appear. They would + have done just the same—maybe worse, maybe better. The Post-Office + officials might have granted more to them. + </p> + <p> + Now, I have always had the idea that it was one of my rights to sign a + petition; that no man in this country could grow so great that I had not + the right just to hand the gentleman a paper with my opinion on it. Do you + know I do not think anybody can get so big that an American citizen cannot + send a letter to him if he pays the postage, and in that letter he can + give him his opinion. There is no fraud about that; not the slightest. + These men all out through the mountains, men that went out there, you + know, to hunt for silver and for gold, live in little camps of not more + than twenty or thirty, maybe, but they wanted to hear from home just as + bad as though there had been five hundred in that very place. And a fellow + that had dug in the ground about eleven feet and had found some rock with + a little stain on it and had had the stain assayed, wanted to hear from + home right off. He stayed there and dreamed about fortune, palaces, + pictures, carriages, statues, and the whole future was simply an avenue of + joy upon which he and his wife and the children would ride up and down. He + wanted to write a letter right off. He wanted to tell the folks how he + felt. Do you think that man would not sign a petition for another mail? Do + you think that fellow would vote to send a stupid man to Congress who + could not get another mail? He felt rich; he was sleeping right over a + hole that had millions in it, and he had not much respect for a Government + that could not afford to send a millionaire a letter. + </p> + <p> + Now, Mr. Bliss tells you that we forged petitions, and in only a few + moments, as the Court will remember, he had the kindness to say that + anybody in the world would sign a petition for anything, and the question + arises if people are so glad to sign petitions why should we forge their + names. Do you not see that doctrine kind of swallows itself. You certainly + would not forge the name of a man to a note who was hunting you up to sign + it. And yet the doctrine of the Government is that while the whole West + rose en masse, each man with a pen in his hand and inquiring for a + petition, these defendants deliberately went to work and forged it. It + won't do, gentlemen. Oh, my Lord, what a thing a little common sense is + when you come to think about it, when you come to place it before your + mind. + </p> + <p> + Now, the next great trouble in this case, gentlemen, is that we bid on + routes that were not productive. When you remember that Congress made all + these routes—now Congress did it; we did not do it—you will + protect us. We did not make a solitary route upon which we bid, strange as + it may appear. Congress, with the map of the Territories and the States of + the Union before it, marked out all the routes. Congress determined where + these routes should run. And yet this case has been tried as though in + reality we were the parties who determined it. + </p> + <p> + Now, let me say something right here. It is for Congress to determine + first of all on what routes the mail shall be carried. I want you to + understand that, to get it into your heads, way in, that Congress + determined that question, and that there has to be a law passed that the + mail shall be carried from Toquerville to Adairville, from Rawlins to + White River. That law has to be passed first, and Congress has to say that + that route shall be established. Now, get that in your minds. I give you + my word we never established a mail on the earth. That was done by + Congress, and the moment Congress establishes a route it becomes the duty + of the Second Assistant Postmaster-General to put the service upon that + route, and the duty of the First Assistant Postmaster-General to name the + offices on that route. Is not that true? That is the doctrine. Now, that + had all been done before we entered into a conspiracy. These routes had + not only been established, but the Government had advertised for service + on these routes, and we bid. That was our crime. + </p> + <p> + These gentlemen said, I believe, at one time, that they were about to lift + a little of the curtain, to expose the action of Congress. You see this + suit has threatened the whole Government. If the Constitution weathers + this storm it will be in luck. They were going to raise the curtain. They + were going to be like children hanging around a circus tent. One lifts it + up and hallooes to another, "Come quick, I see a horse's foot." They said + that they were going to show the rascality of Congress. They have never + done it. I suppose the reason may be that their pay depends upon an act of + Congress, but they let that alone. Now, they say that Congress committed a + great mistake. Why, they say they were routes that were not productive, + and we knew it, and that when the people asked for expedition and increase + on a route that was not productive we were guilty of fraud. + </p> + <p> + Now, gentlemen, let us see: There are not a great many productive + post-offices in the United States. They say that a post-office that is not + productive should be wiped out. Let me say to you, you cut off the + post-offices that are not productive and you will have thousands the next + day that are not productive. It is the unproductive offices that make + others productive. You cut off those that are not productive and you will + have double the number that are not productive. You cut off all those that + are unproductive and you will have nothing left but the mail line. You + might say that there is not a spring that flows into the Mississippi that + is navigable. Let us cut off the springs. Then what becomes of the + Mississippi? That is not navigable either. It is on account of the streams + not navigable, emptying into one, that the one into which they empty, + becomes navigable. And yet, these gentlemen say in the interest of + navigation, "Let us stop the springs because you cannot run a boat up + them." That is their doctrine. There is no sense in that. You have got to + treat this country as one country. You have got to treat the post-offices + business as a unit for an entire country. You have got to say that + wherever the flag floats the mail shall be carried, wherever American + citizens live they shall be visited with the intelligence of the + nineteenth century. That is what you have got to say. You have got to get + up on a good high plane, and you have got to run a great Government like + this that dominates the fortune of a continent, and you have got to run it + like great men. There has got to be some genius in this thing and not + little bits of suspicion. + </p> + <p> + Productiveness! Let us see. We are informed by Mr. Bliss, who is paid for + saying it, otherwise he would not, that the West is perfectly willing to + have mail facilities at the expense of the East. I do not think the + gentleman comprehends the West. There is nothing so laughable, and + sometimes there is nothing so contemptible, as the egotism of a little + fellow who lives in a big town. Some people really think that New York + supports this country, and probably it never entered the mind of Mr. Bliss + that this country supported New York. But it does. All the clerks in that + city do not make anything, they do not manufacture anything, they do not + add to the wealth of this world. I tell you, the men who add to the wealth + of this world are the men who dig in the ground. The men who walk between + the rows of corn, the men who delve in the mines, the men who wrestle with + the winds and waves of the wide sea, the men on whose faces you find the + glare of forges and furnaces, the men who get something out of the ground, + and the men who take something rude and raw in nature and fashion it into + form for the use and convenience of men, are the men who add to the wealth + of this world. All the merchants in this world would not support this + country. My Lord! you could not get lawyers enough on a continent to run + one town. And yet, Mr. Bliss talks as though he thought that all the + mutton and beef of the United States were raised in Central Park, as + though we got all our wool from shearing lambs in Wall Street. It won't + do, gentlemen. There is a great deal produced in the Western country. I + was out there a few years ago, and found a little town like Minneapolis + with fifteen thousand people, and everybody dead-broke. I went there the + other day and found eighty thousand people, and visited one man who grinds + five thousand bushels of flour each day. I found there the Falls of Saint + Anthony doing work for a continent without having any back to ache, + grinding thirty thousand bushels of flour daily. Just think of the immense + power it is. Millions of feet of lumber in this very country, and Dakota, + over which some of these routes run, yielding a hundred million bushels of + wheat. Only a few years ago I was there and passed over an absolute + desert, a wilderness, and on this second visit found towns of five and six + and seven thousand inhabitants. There is not a man on this jury, there is + not a man in this house with imagination enough to prophesy the growth of + the great West, and before I get through I will show you that we have + helped to do something for that great country. + </p> + <p> + Productiveness! Let me tell you where that idea of productiveness was + hatched, where it was born, the egg out of which it came. It was by the + act of March 2, 1799, just after the Revolution, and just after our + forefathers had refused to pay their debts, just after they had repudiated + the debt of the Confederation, just after they had allowed money to turn + to ashes in the pockets of the hero of Yorktown, or had allowed it to + become worthless in the hand of the widow and the orphan. In 1799, the + time when economy trod upon the heels almost of larceny, our Congress + provided that the Postmaster-General should report to Congress after the + second year of its establishment every post-road which should not have + produced one-third the expense of carrying the mail. Recollect it, and I + want you to recollect in this connection that we never established a + post-route in the world. We will show that, anyway, if we show nothing + else. By the act of 1825 a route was discontinued within three years that + did not produce a fourth of the expenses. Now, when those laws were in + force the postage was collected at the place of delivery. + </p> + <p> + But in old times, gentlemen, in Illinois, in 1843, it was considered a + misfortune to receive a letter. The neighbors sympathized with a man who + got a letter. He had to pay twenty-five cents for it. It took five bushels + of corn at that time, five bushels of oats, four bushels of potatoes, ten + dozen eggs to get one letter. I have myself seen a farmer in a perturbed + state of mind, going from neighbor to neighbor telling of his distress + because there was a letter in the post-office for him. In 1851 the postage + was reduced to three cents when it was prepaid, and the law provided that + the diminution of income should not discontinue any route, neither should + it affect the establishment of new routes, and for the first time in the + history of our Government the idea of productiveness was abandoned. It was + not a question of whether we would make money by it or not; the question + was, did the people deserve a mail and was it to the interest of the + Government to carry that mail? I am a believer in the diffusion of + intelligence. I believe in frequent mails. I believe in keeping every part + of this vast Republic together by a knowledge of the same ideas, by a + knowledge of the same facts, by becoming acquainted with the same + thoughts. If there is anything that is to perpetuate this Republic it is + the distribution of intelligence from one end to the other. Just as soon + as you stop that we grow provincial; we get little, mean, narrow + prejudices; we begin to hate people because we do not know them; we begin + to ascribe all our faults to other folks. I believe in the diffusion of + intelligence everywhere. I want to give to every man and to every woman + the opportunity to know what is happening in the world of thought. + </p> + <p> + I want to carry the mail to the hut as well as to the palace. I want to + carry the mail to the cabin of the white man or the colored man, no matter + whether in Georgia, Alabama, or in the Territories. I want to carry him + the mail and hand it to him as I hand it to a Vanderbilt or to a Jay + Gould. That is my doctrine. The law of 1851 did away with your + productiveness nonsense, and when the mails were first put upon railways + in the year 1838, the law made a limit, not on account of productiveness, + but a limit of cost, and said the mail should not cost to exceed three + hundred dollars a mile. Let me correct myself. In 1838 a law was passed + that the mails might be carried by railroad provided they did not cost in + excess of twenty-five per cent, over the cost of mail coaches. In 1839 + that law was repealed, and the law then provided that the pay on railways + should be limited to three hundred dollars a mile. So you see how much + productiveness has to do with this business. In 1861 Congress provided for + an overland mail. Did they look out for productiveness? The overland mail + in 1861 was a little golden thread by which the Pacific and the Atlantic + could be united through the great war. Just a mail, carrying now and then + a letter in 1861, and they were allowed, I think, twenty or thirty days to + cross. Was productiveness thought of? Congress provided that they might + pay for that service eight hundred thousand dollars a year. The mail did + not exceed a thousand pounds. Including everything. Some letters that were + carried from this side to the other cost the Government three hundred + dollars apiece. What was the object? It was simply that the hearts of the + Atlantic and the Pacific might feel each other's throb through the great + war. That is all. Suppose some poor misguided attorney had stood up at + that time and commenced talking about productiveness. In the presence of + these great national objects the cost fades, sinks. It is absolutely lost. + Wherever our flag flies I want to see the mail under it. After awhile we + established what is known as the free-delivery system. That was first + established on the idea of productiveness. Whenever you start a new idea, + as a rule, you have to appeal to all the meanness that is in conservatism. + Before you can induce conservatives to do a decent action you have to + prove to them that it will pay at least ten per cent. So they started that + way. They said, "We will only have this free delivery system where it + pays." We went on and found the system desirable, and that many people + wanted it, and that the revenues of the Post-Office Department were so + great that we could afford it, and we commenced having it where it did not + pay. Right here in the city of Washington, right here in the capital of + the great Republic, we have the free delivery system. Is it productive? + Last year we lost twenty-one thousand dollars distributing letters to the + attorneys for the prosecution and others. And yet now this District has + the impudence to talk about productiveness. If anybody wants to find that + fact it can be found on pages 42 and 45 of the Postmaster-General's + report. Productiveness! We have now a railway service in the United + States. I want to know if that is calculated upon the basis of + productiveness. A car starts from the city of New York, and runs twelve + hours ahead of the ordinary time to the city of Chicago for the simple + purpose of carrying the mail, stopping only where the engine needs water, + only when the monster whose bones are steel and whose breath is flame, is + tired. Do you suppose that pays? You could scarcely put letters enough + into the cars at three cents apiece to pay for the trip. At last we regard + this whole country as a unit for this business. We say the American people + are to be supplied. We do not care whether they live in New York or in + Durango; we do not care whether they are among the steeples of the East or + the crags of the West; we do not care whether they live in the villages of + New England or whether they are staked out on the plains of New Mexico. + For the purpose of the distribution of intelligence this great country is + one. Do you see what a big idea that is? When it gets into the heads of + some people you have no idea how uncomfortable they feel. I have as much + interest in this country as anybody, just exactly, and I am willing to + subscribe my share to have this mail carried so that the man on the very + western extreme, on the hem of the national garment, may have just as much + as the man who lives here in the shadow of the Capitol. You see whenever a + man gets to the height where he does not want anything that he is not + willing to give somebody else, then he first begins to appreciate what a + gentleman is and what an American should be. Productiveness! I say that + all the State and Territorial lines have been brushed aside. We do not + carry the mail in a State because it pays. We carry it because there are + people there; because there are American citizens there; not because it + pays. The post-office is not a miser; it is a national benefactor. There + are only seventeen States in this Union where the income of the + Post-Office Department is equal to the outlay; only seventeen States in + this Union. There are twenty-one States in which the mail is carried at a + loss. There are ten Territories in which we receive substantially nothing + in return for carrying the mail, and there is one District, the District + of Columbia. I do not know how many miles square this magnificent + territory is; I guess about six. Thirty-six square miles. How much is the + loss in this District per annum? About one thousand five hundred dollars a + square mile. The annual loss right here in this District is fifty-eight + thousand dollars, and yet the citizens of this town are rascally enough to + receive the mail, according to the prosecution. Why is it not stopped? Why + is not the Postmaster-General indicted for a conspiracy with some one? + This little territory, six miles square has a loss of fifty-eight thousand + dollars. + </p> + <p> + If there was a corresponding loss in Kansas, Nebraska, California, Dakota, + and Idaho, it would take more than the national debt to run the mail every + year. And yet here in thirty-six square miles comes the wail of + non-productiveness. It is almost a joke. We are carrying the mail in + Kansas at a loss of two hundred and fifty thousand dollars a year, and yet + Kansas has a hundred million bushels of wheat for sale. Good! I am willing + to send letters to such people. It is a vast and thriving country. It + contains men who have laid the foundation of future empires. I want people + big enough and broad enough and wide enough to understand that the valley + of the Mississippi will support five hundred millions of people. Let us + get some ideas, gentlemen. Let us get some sense. There is nothing like + it. We pay five hundred thousand dollars a year for the privilege of + carrying the mail in Nebraska. Do you know I am willing to pay my share. + Any man who will go out to Nebraska and just let the wind blow on him + deserves to have plenty of mail. You do not know here what wind is. You + have never felt anything but a zephyr. You have never felt anything but an + atmospheric caress. Go and try Nebraska. The wind there will blow a hole + out of the ground. Go out there and try one blizzard, a fellow that robs + the north pole and comes down on you, and you will be willing to carry the + mail to any man that will stay there and plow a hundred and sixty acres of + land. When I see a post-office clerk sitting in a good warm room and + making a fuss about a chap in Nebraska for not carrying the mail against a + blizzard, I have my sentiments. I know what I think of the man. In the + Territory of Utah we pay two hundred and thirty thousand dollars a year + for the privilege of carrying the mails, and the males in that country are + mostly polygamists. I want you to get an idea of this country. In the + State of California, that State of gold, that State of wheat, the State + that has added more to the metallic wealth of this nation than all others + combined, an empire of magnificence, we pay five hundred thousand dollars + a year for the privilege of distributing the mail. I am glad of it. I want + the pioneer fostered. I want the pioneer to feel the throb of national + generosity. I want him to feel that this is his country. You see the + post-office is about the only blessing he has. Every other visitor that + comes from the General Government wants taxes. The Post-Office Department + is the only evidence we possess of national beneficence. It is the only + thing that comes from the General Government that has not a warrant, that + does not intend to arrest us. In Texas, which is an empire of two hundred + and seventy-three thousand square miles, a territory greater than the + French empire, which at one time conquered Europe, we pay four hundred and + fifty-nine thousand dollars for the privilege of distributing the mail. I + am glad of it. It will not be long before that State will have millions of + people and give us back millions of dollars each year, and with that + surplus we will carry the mail to other Territories. A man who has not + pretty big ideas has no business in this country; not a bit. We pay one + hundred and eighty-nine thousand dollars for the sake of carrying letters + and papers around Arkansas; one hundred and eighty-three thousand dollars + for the privilege of wandering up and down Alabama; one hundred and seven + thousand dollars in Missouri; two hundred and forty thousand dollars in + Ohio; two hundred and eight thousand dollars in Georgia; three hundred and + twelve thousand dollars in old Virginia. When I first went to Illinois the + Government had to pay for the privilege of carrying the mail in that + State. Now Illinois turns around and hands six hundred and sixty thousand + dollars of profit to the United States each year. She says, "You carry the + mail to the other fellows that cannot afford it just the same as you + carried it for us. You rocked our cradle, and we will pay for rocking + somebody else's cradle." That is sense. In other words, in seventeen + States we have a profit of seven million dollars. In twenty-one States, + ten Territories, and the District of Columbia we have a loss of five + million dollars. When we regard the country as a unit, then we make money + out of the whole business. That is good. We have in the United States + about a hundred and ten thousand miles of railroad now, and we pay about + two hundred dollars a mile for carrying the mail on those railroads. We + have two hundred and twenty-seven thousand miles of star routes, and we + pay on them between twenty and thirty dollars a mile. I want you to think + about it. In looking over the Post-master-General's report I accidentally + came across this fact. You know, gentlemen, the present period is a + paroxysmal period of reform. We are having what is known as a virtuous + spasm. We have that every little while. It is a kind of fiscal mumps or + whooping-cough. I find by this report that a mail averaging twenty pounds + carried in a baggage-car from Connellsville to Uniontown, Pennsylvania, is + paid for at the rate of forty-two dollars and seventy-two cents a mile. + Under General Brady the star routes cost between twenty and thirty dollars + a mile. + </p> + <p> + Now, gentlemen, I have told you our connection with the star-route + business. I have told it all to you freely, frankly, and fully. Some + charges have been made against us, and I want to speak to you about them. + You understand that it often takes quite awhile to explain a charge that + is made in only a few words. One man can say another did so and so. It is + only a lie, and yet it may take pages for the accused man to make his + explanation. The worst lie in the world is a lie which is partly true. You + understand that. When you explain a lie that has a little circumstance + going along with it, certifying to it, and attesting to its truth, it + takes you a great deal longer to explain it than it did to tell it. The + first great charge is that for us—and I limit myself to my clients—orders + were antedated. That is one great charge. Let me tell you just how that + was. Mr. Bliss calls attention to the fact that Mr. Brady made orders + relating back, and in one case he alleged that the order was made, for the + benefit of my clients, to take effect six weeks prior to its being issued. + I want to explain that. A railroad was being constructed along the line of + one of these routes. It may be well enough for me to say that it was the + Denver and Rio Grande Railroad. The points from which the mail was carried + had to be changed as the road progressed. As it grew Mr. Brady increased + the service on the route to seven times a week. He increased it from the + end of the railroad, and he made it seven times a week because the mail on + the railroad was seven times a week. We were to carry the mail from the + end of the railroad, wherever that end might be. He increased the service + on this route from the end of the railroad to the other terminal point; + that is, he made it a daily mail so as to connect with the daily trains on + the railroad. At the time the seven trips were to be put on, distance + tables were sent out to postmasters at the terminal points to get the + distances. Let me tell you what a distance table is. The names of the + post-offices are on a circular, and the Post-Office Department sends that + circular to the postmasters along the route and they are asked to return + it with the distance from each station to every other marked upon it. Now, + until that table is returned it is impossible for the Second Assistant + Postmaster-General to tell how far they carry the mail. This railroad was + progressing every month, and as the railroad advanced the distance from + the end of the railroad to the other terminal point decreased. Now, the + Postmaster-General or the Second Assistant cannot fix that pay until he + has a return of the distance table. But before he has that return he can + order the contractor to carry the mail, and after the distance table is + returned then he can make up the formal order and have that order entered + upon the records of the department. That is all he ever did. I want you to + understand that perfectly. It might be four weeks after the contractor was + ordered to carry the mail from the termination of the railroad, or it + might be five or six weeks before the distance tables were returned and + the distance calculated. But do you not see it made no difference? There + was first an order either by telegraph or a short order, and after the + distance tables were returned then the distance was calculated, the amount + of money calculated, and the regular order written up and made of record, + and a warrant drawn for payment. That is all there is to it. And yet this + is what Mr. Bliss calls defrauding the Government. We are charged on that + kind of evidence with having defrauded the United States. We will show you + that no order of that kind was made except when the distance was unknown; + and that when the distance was ascertained, the formal order was made, + another order having been made before that time. Let me say right here + that orders of a similar nature have been made in the Post-Office + Department since its establishment. Since the construction of railways + there has not a month passed in that department—certainly not a year—when + such orders have not been made. And yet for the first time in the history + of the Government it is brought forward against us as an evidence of + fraud. We will show that the order was made exactly as I have stated. + </p> + <p> + The next badge of fraud that is charged is that after a route had been + awarded to us it was increased or expedited, or both, before the stock was + put on. Well, I will tell you just how that is, because you want to know. + This case, apparently complicated, is infinitely simple when it is + understood. There are in the United States, I believe, some ten thousand + of these star routes. They are all or nearly all in some way connected. + One depends upon another. It is a web woven over the entire West, and how + you run a mail here depends upon how one is run there, and the effort is + to have all these mails connect in a certain harmony so that time will not + be lost, and so that each letter will get to its destination in the + shortest possible time, and it requires not only a great deal of + experience, but it requires a great deal of ingenuity. It requires a great + deal of study and strict attention for a man so to arrange the routes and + the time in the United States that the letters can be gotten to their + destination in the shortest possible time. And yet that is the object. You + can see that. Now, you may be looking at the route from A to B, and say + that there is no sense in having it in that time; but if you will look at + the time of other routes, if you see with what routes that connects you + will say that it is sensible. Now, you go on to another route, and, + gentlemen, you see that every solitary route is touched, is compromised, + is affected by every other route. That is what I want you to understand. + </p> + <p> + Now, then, Mr. Bliss says that it was a badge of fraud to increase the + time and the service on a route before the stock was put on. Now let me + show you. Here you have your scheme. Here is the route, we will say, from + A to E. You let that for a weekly route, once a week. How fast? A hundred + hours. When you get the other routes and look at this business you see + that that crosses several places where the mail is lost. That is where a + day is lost, and you see, if instead of that being a hundred hours it were + seventy-five hours the mail at many stations would save one day or two + days. Now, then, the law vests in you the power before a solitary horse or + carriage goes upon that route to say to the man to whom the contract was + awarded, "You must carry that in seventy-five hours instead of one hundred + hours, and you must carry it four times a week instead of once a week." If + you take that power from the Postmaster-General and from the Second + Assistant those offices become useless. It is impossible for any human + intellect to take into consideration all the facts growing out of this + service. + </p> + <p> + There is another thing, gentlemen, which you must remember, and that is + that these advertisements for this service are not made the day the + service is wanted. These advertisements are put out six months before + there is to be any such service. + </p> + <p> + It is sometimes a year before that service is wanted, and if you know + anything about the West you know that in one year the whole thing may + change. That where there was not a city there may be a city, and where + there was a city nothing but desolation. Now, then, the law very wisely + has vested the power in the Second Assistant and the Postmaster-General to + rectify all the mistakes made either by themselves or by time, and to call + for faster time or for slower, that is, for less frequent trips. Now, + then, you see that that is no badge of fraud, do you not? If, before you + put a man or a horse on that route, the Government finds it wants twice as + many trips there is no fraud in saying so, and if they find they want to + go in fifty hours instead of a hundred hours there would be fraud in not + saying so. That has been the practice since this was a Government. + </p> + <p> + Now, what is the next? The next great charge against us, gentlemen, is + that when they agreed to carry a greater number of trips, or any swifter + time for money, Mr. Brady did not make us give an additional bond, and Mr. + Bliss talked about that I should think about a day. Nearly all the time I + heard him he was on that subject. "Why did they not when they were to + carry additional trips give a new bond?" Well, I will tell you why: + Because there is no law for it. There never was a law for it—never. + And Mr. Brady had no right to demand a bond unless the statute provided + for it. When I give a bond to carry the mail once a week, and the + Government finds that it wants it carried three times a week, the + Government cannot make me give an additional bond. Why? Because the + statute does not provide for it, and Mr. Brady had not the power to enact + new laws. That is all. Why, there never was such a bond given, and any + bond that is given under duress, by compulsion, not having the foundation + of a statute, is absolutely null and void. Everybody knows it that knows + anything. And yet the gentleman comes before you and says it is a sign of + fraud that we did not give an additional bond. There never was such a bond + given in the history of this Government—never; and in all + probability never will be unless these gentlemen get into Congress. You + know the law prescribes every bond that the contractor must give, and it + is bad enough without ever being increased during the contract term. + </p> + <p> + So much now for that frightful badge of fraud. I want to make this + statement so you will understand it. They have the unfairness, they have + the lack of candor to tell you that it is one of the evidences that we are + scoundrels, that we failed to give an additional bond, and when they made + that statement they knew that by law we could not give an additional bond, + and they knew that if we had given an additional bond it would not have + been worth the paper upon which it was written. And yet they lack candor + to that degree that they come into this court and tell you that that is + one of the evidences that we have conspired against the United States. It + won't do. + </p> + <p> + What is the next badge of fraud? And I want to tell you this is a case of + badges, and patches, and ravelings, and remnants, and rags. It is a kind + of a mental garret, full of odd boots, and strange cats, thrown at us, and + altogether it is called a case of conspiracy. Another badge of fraud is + that whenever we carried the mail one trip a week, and it was increased to + two trips a week, Brady was such a villain that he gave us double pay; and + Mr. Bliss informed the jury that they knew just as well as he did that it + did not cost twice as much to give two trips a week as it did to give one. + Well, who said it did? And yet they say that is an evidence of fraud. + Well, let us see. There is nothing like finding the evidence. + </p> + <p> + Now, when we come to this case we will introduce a bond that we gave at + that time, and when the jury read that bond they will find this, or + substantially this: + </p> + <p> + It is hereby agreed by the said contractor and his sureties that the + Postmaster-General may discontinue or extend this contract, change the + schedule, alter, increase, or extend the service, he allowing not to + exceed a pro rata increase of compensation for any additional service + thereby required, or for increased speed if the employment of additional + stock or carriers is rendered necessary, and in case of decrease, + curtailment, or discontinuance, as a full indemnity to said contractor, + one month's extra pay on the account of service dispensed with, and not to + exceed a pro rata compensation for the service retained: Provided, + however, That in case of increased expedition the contractor may, upon + timely notice, relinquish his contract. + </p> + <p> + Now, it is in that provided that if they call on him for double service he + is entitled to double pay. That is the law, and it has been the practice, + gentlemen, since we have had a Post-Office Department. And why? Let me + show you. Here is a man who carries a mail from A to Y. There are supposed + to be some commercial transactions between those two places. It is + supposed that now and then a human being goes from one of those places to + the other, and the man who carries the mail, as a rule carries passengers + and does the local business. Now, do you suppose that he would agree with + the Government that he would carry the mail once a week for a thousand + dollars a year, and that they might hire another man to carry it once a + week for a thousand dollars a year, and maybe that other man take all his + passengers and all his business. The understanding is that when I bid a + thousand dollars a year for once a week, if you put it to three times a + week I am to have three thousand dollars; four times a week, four thousand + dollars; seven times a week, seven thousand dollars, and that has been the + unbroken practice of this Government from the establishment of the + Post-Office Department until to-day. You can see the absolute propriety of + it, and you can see that any man would be almost crazy to take a contract + on any other terms, and that contract is this: "I will carry for you so + much a trip, and if you want more trips you can have them at the same + price as that fixed." That is fair. That is what we did. + </p> + <p> + So much for that badge of fraud. What is the next one? It is that the pay + was increased twice as much by the increase, and, as I said, that is the + law. + </p> + <p> + Now let us see what is the next great badge of fraud. That we received the + pay when the mail was not carried. I deny it, and we will show in this + case, gentlemen, that we never received pay except when the mail was + carried. And how do I know? Because General Brady established a system of + way-bills, so that a way-bill would accompany every pouch in which letters + were, and they would put on that way-bill the time that it got to the + post-office, and when that way-bill got to the terminal point it was sent + here to Washington and filed away, and at the end of every quarter a + report was made, and if a mail was behind at any post-office you would + find it on that way-bill, and if they had not made the trip then they were + fined. That way-bill system was inaugurated by General Brady, and under + that way-bill system we carried the mail, and we could not get pay unless + we had carried the mail. I call them way-bills. They are mail-bills that + go with the pouch and give a history of each mail that is carried. That is + all. + </p> + <p> + Now another great badge of fraud. The first was that he was to impose no + fines when the mail was not carried. The next was that he was to impose + fines and then take the fines off for half—fifty per cent. Now, + would not that be an intelligent contract? I carry the mails. You are the + Second Assistant Postmaster-General. I agree with you that if you fine me + and then will take the fine off I will give you half of it. About how long + would it take you to break me up? And yet that is honestly and solemnly + put forward here as a fact in the case. They tell a story of a man who was + bitten by a dog. Another man said to him, "I'll tell you what to do. You + just sop some bread in that blood and give it to the dog; it will cure + you." "Oh, my God!" says he, "if the other dogs hear of it they will eat + me up." And here it is, without a smile, urged before this jury that we + made a bargain that a fellow might fine us for the halves. Well, there may + be twelve men in this world who believe that. They are unfortunate. + </p> + <p> + The next charge is that a subcontract was made for less than the original + contract. Well, that is where most of the money in this world is made. + Thousands and millions of men have made fortunes by buying corn at sixty + cents a bushel to be delivered next February, and selling the same corn + for seventy cents. There is where fortunes live. The difference between a + contract and a subcontract is the territory of profit in which every + American loves to settle. You make a contract with the Government to + furnish, say, a thousand horses of a certain kind for one hundred and + fifty dollars apiece. You go and make a subcontract with some one to + furnish you those same horses for one hundred and twenty-five dollars + apiece. Is that a fraud? You have taken upon yourself the responsibility + and if your subcontractor fails you must make it good. There is no harm in + that. + </p> + <p> + Suppose I agree with you to-morrow that if you will furnish me one + thousand bushels of wheat on the first day of January, I will give you one + thousand five hundred dollars, and I find out that you made a bargain with + another fellow to do it for a thousand dollars. If I am an honest man I + suppose I will jump the contract, won't I? Not much. If I am an honest man + I will say, "Well, you made five hundred dollars; I am glad of it; good + for you." But the idea of the prosecution is that the moment Brady saw a + subcontract for less than the original contract he should have had a moral + spasm, and said, "I won't carry out the contract; I will swindle you, I + will rob you, and I will do it in the name of virtue." And that is the + meanest way a man ever did rob—in the name of virtue, reform. So + much for that. But if you ever make a contract with this Government and + can make a subcontract at the same price you do it as quick as you can. + </p> + <p> + The next is, that whenever he discontinued a route or any part of a route, + rather, he gave us a month's extra pay; you heard that, did you not? He + was on that subject about a half a day. How did he come to do that? I will + tell you. There is nothing like looking: + </p> + <p> + And in case of decrease, curtailment, or discontinuance of service, as a + full indemnity to said contractor one month's extra pay on the amount of + service dispensed with. + </p> + <p> + That is first the law, secondly the contract, and thirdly it was made in + the interest of the United States. And why? Suppose the United States made + a contract with a man to carry a mail from New York to Liverpool, and in + consequence of that contract the man bought steamships to perform the + service, and then the United States made up its mind not to carry the + mail. That man might get damages to the amount of hundreds and thousands + of dollars. Therefore the United States endeavored to protect itself and + say the limit of damage shall be one month's pay, and that has been the + law for years, and that law has been passed upon by the Supreme Court of + the United States. It was passed upon in the case of Garfielde against the + United States, where he claimed greater damages because he had all the + steamships to carry the mail from San Francisco to Portland, and the + Supreme Court said it made no difference what his expense had been. He was + bound by the letter of the law and the contract, and could have only one + month's extra pay as his entire damage. + </p> + <p> + Now, these gentlemen bring forward a law to protect the United States + Government, and they bring that forward as an evidence of conspiracy, as + evidence of a fraud. Nothing could be more unfair, nothing on earth could + show a greater want of character. Now, let us see what else. + </p> + <p> + The next great charge is false affidavits. They tell you that we made lots + of them; that we just had them for sale. False affidavits! And that Mr. + John W. Dorsey made two false affidavits in two cases. The evidence will + show that he did not. The evidence will show that he made only one in each + case, when we come to it. But I want to call your attention to this fact, + that in one case one affidavit was made where it said the number of men + and horses then necessary was eight, that on the expedited schedule it + would be twenty-four. Three times eight are twenty-four. The second + affidavit said the number of men and horses then was fifteen, and the + number on expedition and increase would be forty-five. Three times fifteen + are forty-five. So that the amount taken from the Government would be + exactly the same on both affidavits. You understand that. For instance, if + it took five horses and men to do the then business, and would require + fifteen to do the expedited and increased business, then you would be + entitled to three times the amount of pay. So in this case one affidavit + said it took eight and would take twenty-four, the other affidavit said it + took fifteen and would take forty-five. Three times eight are twenty-four. + Three times fifteen are forty-five. So that the amount of money taken from + the Government would be exactly the same under each affidavit. Now, that + is all there is of that. + </p> + <p> + In the next case, where he made two affidavits, I find that by the second + affidavit it took, I think, thirteen thousand dollars less from the + Government, and yet they call the second affidavit a piece of perjury. And + here is one thing that I want to impress upon all your minds. Where you + not only carry the mail but carry passengers, it is an exceedingly + difficult problem to say just how many horses and men it requires to carry + the mail, and then how many men and horses it requires to carry the + passengers. It is hard to make the divide you understand—very hard. + You can tell, for instance, the cost of mounting a railroad for a hundred + miles, but it is very difficult to tell the cost of the bridges or what + the spikes cost or what the deep cuts cost. You can take the whole + together and say it cost so much a year. So in this case we can say it + requires so many men and horses doing the business that we are doing, but + it is almost impossible for the brain to separate exactly the passengers, + the package business, from simply carrying the mail. As I said before, men + will differ in opinion. Some men will say it will take ten horses, others + twenty, others twenty-five, and then the next question arises, and I want + to call particular attention to that question, and that is, whether the + law means only the horses absolutely carrying the mail; whether the law + means by carriers only the men who ride the horses or drive the wagons. + Now, I will tell you what I mean. I undertake to carry the mail, we will + say from Omaha to San Francisco. How many men will it take? Now, I will + count all the men who are driving the stages, all the men who are + gathering forage, all the men who are attending to that business in any + way, and if on the way I have blacksmiths' shops where my horses are shod + I will count those men. If I have men engaged in drawing wood a hundred + miles, I will count those men. In other words, I will count all the men I + pay, no matter whether they are keeping books in New York or carrying the + mail across the desert. I will count all the men I pay; so will you. What + horses will you count? All the horses engaged in the business; those that + are drawing corn for the others, as well as the rest, will you not? There + is an old fable that a trumpeter was captured in the war and he said to + his captor, "I am not a soldier, I never shot anybody." "Ah," they said, + "but you incited others to shoot, and you are as much a soldier as + anybody; we want you." + </p> + <p> + Now, I say that we are entitled to count every man who carries the mail, + and every man necessary to perform that service. So do you. Now, there we + divide. The Government says we shall count simply the men carrying the + mail, nobody else, and we shall count simply the horses in actual service. + That is nonsense. For instance, you have got to have thirty horses. They + are going all the time. Do you depend on just that thirty? No, sir. If one + gets lame you cannot carry the mail. You have got to have twenty or thirty + horses in your corral, in the stables, so that if one of the others gives + out you will have enough. That is one great question in this case, + gentlemen. What I say to you now is that on every one of these routes in + which my clients are interested, or, I may say, in which anybody is + interested, the evidence will be that the affidavits were substantially + correct. In many cases there was a far greater difference between the men + and horses then used and the men and horses that were afterwards + necessary. + </p> + <p> + You must take another thing into consideration. In a country where there + are Indian depredations one man will not stay at a station by himself. He + wants somebody with him; he wants two or three with him, and the more + frightened he is the more men he will want. On that route from Bismarck to + Tongue River, as to which it was sworn it would take a hundred and fifty + men, the statement was made at a time when the men would not stay + separately; that they wanted five or six together at one station; that + they wanted men out on guard and watch. You will find before we get + through, gentlemen, that the affidavits do not overstate the number. You + will find in addition that these petitions were signed by the best men; + that that service was asked for by the best men, not simply in the + Territories, but by some of the best men in the United States; by members + of Congress, by Senators, by generals, by great and splendid men, men of + national reputation. So when we come to that we will show to you that the + affidavits made were substantially true. There is another charge that has + been made, and that is that the affidavits in Mr. Peck's name were not + made by him; that he never signed these affidavits. + </p> + <p> + Yet, gentlemen, we will prove to you as the Government once proved by Mr. + Taylor, a notary public in New Mexico, that Mr. Peck appeared personally + before him; that he was personally acquainted with Mr. Peck, and that he + signed and swore to those affidavits in his presence. That we will + substantiate in this trial as the Government substantiated it in the + other. These gentlemen, are among the charges that have been made against + us. I say to you to-day they will not be able to show that we ever put + upon the files of the Post-Office Department a solitary letter, a solitary + petition, a solitary communication that was not genuine and true. Not one. + They cannot do it. They never will do it. You will be astonished when you + hear these petitions to find the Government admitting that they are true. + If they do not read them we will read them. That is all. + </p> + <p> + Now, I have stated to you a few of the charges made against my clients up + to this point. I want to keep it in your mind. I want each man on this + jury to understand exactly what I say. Let us go over this ground a + little. I want to be sure you remember it. In the first place, S. W. + Dorsey was not interested in these routes. All the bids were made by John + W. Dorsey, John M. Peck, John R. Miner, and a man by the name of Boone. + All the information was gathered by Mr. Boone by sending circulars to + every postmaster on the routes. Upon that information John W. Dorsey, John + M. Peck, and John R. Miner made their calculations and made their bids, + numbering in all about twelve hundred. Of that number they had awarded to + them a hundred and thirty-four contracts. Recollect that. After those + contracts were awarded to them they were without the money to put the + stock on all the routes, because more contracts were awarded than they + expected. Thereupon John R. Miner borrowed some money from Stephen W. + Dorsey and kept up that borrowing until the amount reached some sixteen or + eighteen thousand dollars. Don't forget it. After it got to that point Mr. + Dorsey started for New Mexico. At Saint Louis he met John R. Miner, then + coming from Montana, and John R. Miner said to him, "We have got to have + some more money of you;" and Dorsey replied, "I have no more money to give + you." Miner then said, "You give your note or indorse mine for nine or ten + thousand dollars." Dorsey replied, "If you will give me post-office orders + and drafts, not only to secure the note I am about to indorse or make for + you, but also to the amount of the money I have advanced for you, I will + give the note." That was agreed upon. Thereupon he gave the note. It was + discounted in the German-American National Bank, and Mr. Miner deposited + with the note the orders on the Post-Office Department, not only to secure + the note, but the sixteen thousand dollars that Dorsey had before that + time advanced. Dorsey went on to New Mexico, and in May or July of that + year another law was passed, allowing a subcontractor to put his + subcontract on file. After he had advanced that money and indorsed or + signed the note, they made the contract with Mr. Vaile, turning these + routes over to him and giving him subcontracts on all these routes. When + Stephen W. Dorsey came back from New Mexico in December of that year he + found that the note at the German-American National Bank had been + protested, and that his collateral security was at that time worthless, + because the subcontracts had been filed and these subcontracts cut out the + post-office orders or drafts. Thereupon he wanted a settlement. Matters + drifted along until April, 1879, and a settlement was made. I have told + you that from the time the routes were given to Mr. Vaile until that time + nobody had the slightest thing to do with them except Mr. Vaile; that in + April, 1879, the division was made; that Mr. Vaile paid the note at the + German-American National Bank; that the division was made, as I told you, + by Mr. Vaile drawing one route, Mr. Dorsey one, and Mr. Miner one, and + keeping that up until they were all drawn. I forgot to tell you before + that Mr. S. W. Dorsey had sixteen thousand dollars, to which, if you add + the interest, it would be about eighteen thousand dollars; that John W. + Dorsey had ten thousand dollars and John M. Peck had ten thousand dollars, + and when that division was made Stephen W. Dorsey agreed to pay John W. + Dorsey ten thousand dollars, and to pay John M. Peck ten thousand dollars + for his interest. Gentlemen, he did pay John W. Dorsey ten thousand + dollars, and he did pay the same amount to Peck, and from that day to this + John W. Dorsey has never had the interest of one solitary cent in any one + of these routes. He was simply paid back the money that he expended. Not + another cent. John M. Peck never made by this business one solitary + dollar. He simply received back the money he had expended. After he had + paid back that money to both of these men, Stephen W. Dorsey took these + routes with a debt to him of between sixteen and eighteen thousand + dollars. Now, as to Mr. Rerdell. They say he was the private secretary of + Stephen W. Dorsey. He never was; not for a moment, not for a single moment + He attended to some of this business. I have no doubt that the Government + imagine they can debauch somebody in order to get information. I give them + notice now—GO on. There is no living man whose testimony we fear. + There is no living lawyer who has the genius to make perjury do us harm. I + want you to understand it. And I want them to understand that I know + precisely what they are endeavoring to do. There is only one way for them + to surprise me, and that is for them to do a kind thing. + </p> + <p> + Now, gentlemen, at that time—I want you to remember it; I do not + want you to forget it—when these routes came to Mr. Dorsey, he, not + understanding the business, turned it over to Mr. James W. Bosler. Mr. + Bosler, as I told you before, is a man of wealth. But, say these + gentlemen, "While these routes were in your possession, and while Stephen + W. Dorsey had an interest in them he asked men to sign petitions in favor + of an increase of trips and decrease of time." What if he did? Suppose you + have a house out here somewhere; you can petition to have a street opened, + even if you have the contract for paving the street. You have a right to + petition to have a schoolhouse located in your neighborhood even if you + have children. There is no harm about that. You certainly can petition to + have cows prevented from running at large even if there is no fence around + your yard. I think you could do so without being indicted for conspiracy. + I think a man might start a subscription for a church, even if he owned a + brick-yard and expected to sell bricks to build it. Now, suppose I had a + contract to carry the mail through the State of California from one end to + the other once a week, is there any harm in my asking the people of that + country to petition to have it carried twice a week? Do you not remember + what I told you? All the members of Congress out there, when they go home + want to say to the people when they meet at the convention with all the + delegates on hand. "Why, gentlemen, you did not used to get the New York + Herald or New York Times, or The Sun, until it was two weeks old, and now + it is only a week old. Where you only had one mail I have given you three. + I have got fifty thousand dollars to improve your harbor, and one hundred + thousand dollars for a new custom-house. Look at me, gentlemen, I am a + candidate for re-election." That is natural. This Court will instruct you + that any man who is carrying a mail anywhere in the United States has the + right to use his influence in getting up petitions for the increase of + that service or the expedition of that time. They say Dorsey did this. + What of it? They say Dorsey tried to manufacture public opinion. That is + what these gentlemen of the prosecution have been doing for eighteen + months, and now they object to the manufacture of public opinion. Public + opinion is their stock in trade. + </p> + <p> + Leaving that charge, every man who has a contract for carrying the mail + has the right to call the attention of every editor in that country to the + fact that they need more mail service. He has the right to send his agents + there and if the people want to petition for more service, and if Congress + is willing to give them more service, no human being has a right to + complain in this manner and in a criminal court. If any offence has been + committed it is of a political nature. If a member of Congress gets too + much service his people can keep him at home. If he does too much for his + locality they need not elect him the next time. It is a political offence + for which there is a political punishment and a political remedy. So much + for the right of petition. I am perfectly willing to tell all he did in + regard to the increase of service and the expedition. + </p> + <p> + While I am on that point I want you to distinctly understand what increase + is and what expedition is. Increase of service means more of the same + kind. Suppose I am to carry the mail from one place to another. We will + call it from Si-Wash to Oo-Ray. If I am to carry that mail once a week for + five hundred dollars and they want it twice a week, I have one thousand + dollars, but do not carry it any faster. That is an increase. Suppose I am + carrying it in say two hundred hours and they want it carried in half that + time. That is what they call expedition. Now, the question is as to the + difference in cost of carrying the mail at six miles an hour, or at two + and a half, or two, or one and a half. If I carry it slowly, I can go at a + reasonable rate in the day and can lie by at night. I want you to + understand distinctly the difference between increase of service, which is + more of the same kind, and expedition, which means the same kind at a + faster rate. Now, I can carry the mail twenty miles and back in a day and + do that a great deal easier than if I were to make the distance in four or + five hours. The difference is just about the same with a locomotive as + with a horse. If a train runs twenty miles an hour and you want to + increase its speed to thirty, it will cost altogether more than twice as + much as it does to run it at twenty. If you want to increase it still + further to forty or sixty, it will cost at sixty more than three times as + much as at twenty. The cost increases in an increased proportion. I want + you to understand that. Now, we are charged with having done some + frightful things on several of these routes, and for three days and a half + your ears were filled with charges of the rascality we have perpetrated. + We had some ten or eleven routes, and we are charged with having defrauded + the Government on those particular routes. Let us see what my clients did. + Do not understand me as saying that because my clients have done nothing + the other defendants have. I do not take that position. I take the + position that according to the evidence in this case there is nothing + against any of these defendants. Leave out passion, prejudice, falsehood, + and hatred and there is absolutely nothing left. If you will take from Mr. + Bliss's speech all the mistakes he made in law and fact, there will be + nothing left to answer; not a word. But I think it due to my client, + gentlemen, my client who is not able to be in this court, my client who + sits at home wrapped in darkness, that I should answer every allegation + touching every route in which he was interested. I think it due to him. + [Resuming] + </p> + <p> + I will call your attention to a few of the routes, possibly to all, in + which my clients were interested. It will take but a short time. I want + you to know whether or not these routes were important, whether it was + proper to carry the mails as they were carried, whether it was proper that + they should be carried from once to seven times a week, and whether it was + proper that the speed should be expedited. Now, you may think after + hearing the evidence that there were some routes that never should have + been established; but that does not establish a conspiracy. That simply + establishes the fact that Congress created routes where they were not + absolutely necessary. You may come to the conclusion that General Brady + ordered more trips on some of these routes than he should have ordered. + That does not establish a conspiracy. The most that it could establish + would be extravagance, and extravagance is not a crime. If it were, the + penitentiaries of the day would not be large enough—or rather would + be large enough, and too large, to hold the honest men. You may say after + you have heard the evidence that the time was faster than it need be; but + you must take into consideration all the connecting routes, and even if + you should so feel, it is for you to say whether that establishes any + conspiracy. All these things must be taken into consideration. + </p> + <p> + We will take first the route from Garland to Parrott City. *** + </p> + <p> + Now, I have gone over just a few of these charges. I have shown you that + they are false; that they are without the slightest shadow of foundation + in fact. Now, gentlemen, after you hear all this evidence, it is for you + to determine. It is for you to say whether these men entered into a + conspiracy to defraud this Government. It is for you to say whether our + testimony is to be believed, or whether you are to decide this case upon + the suspicions of the Government. It is for you to say whether you will + believe the contracts and the witnesses, or whether you will take the + prejudice of the public press; whether you will take the opinion of the + Attorney-General; whether you will take the letter of some counselor at + law, or whether you will be governed by the testimony in this case. It is + for you to say, gentlemen, whether a man shall be found guilty on + inference; whether a man shall be deprived of his liberty by prejudice. It + is for you to say whether reputation shall be destroyed by malice and by + ignorance. It is for you to say whether a man who fought to sustain this + Government shall not have the protection of the laws. It is for you + [indicating a juror] and it is for you [indicating another juror] and you + [indicating another juror] and you [indicating another juror] to say + whether a man who fought to take the chains off your body shall have + chains put upon his by your prejudice and by your ignorance. It is for you + to say whether you will be guided by law, by evidence, by justice, and by + reason, or whether you will be controlled by fear, by prejudice, and by + official power. That, gentlemen, is all I wish to say in this opening. + </p> + <p> + <a name="link0005" id="link0005"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /> <br /> <br /> <br /> + </div> + <h2> + CLOSING ADDRESS IN SECOND STAR ROUTE TRIAL + </h2> + <h3> + Closing Address to the Jury in the Second Star Route Trial. + </h3> + <p> + MAY it please the Court and gentlemen of the jury: Perhaps some of you, + may be all of you, will remember that I made one of the opening speeches + of this case, and that in that opening speech I endeavored to give you the + scheme or plan of the indictment. I told you, I believe, at that time, + that all these defendants were indicted for having conspired together to + defraud the United States. In that indictment they were kind enough to + tell us how we agreed to accomplish that object; that we went into + partnership with the Second Assistant Postmaster-General, he being one of + these defendants, and that we then and there agreed to get up false + petitions, to have them signed by persons who were not interested in the + mail service, to sign fictitious names to these petitions, those names + representing no actual, real, living persons; that we also agreed to have + false and fraudulent letters written to the department urging this + service; that in addition to all that we were to make and file false and + fraudulent affidavits, in which we were to swear falsely as to the number + of men and horses to be employed, and the number of men and horses then + necessary; that in addition to that we were to file fraudulent + subcontracts; that the Second Assistant Postmaster-General was to make + false and corrupt orders, and that all these things were to be done to + deceive, mislead, and blindfold the Postmaster-General. They also set out + that these orders so corruptly made were to be corruptly certified to the + Auditor of the Treasury for the Post-Office Department in order that we + might draw our pay. That is what is known as the general scheme or plan of + this indictment. You have heard the testimony, and remember some of it. Of + course you do not remember it all. Probably no man ever lived who could do + such a thing. You have heard the testimony discussed, I believe, for about + twenty days, so that I take it for granted you know something about it, or + at least have an idea that you do. The story that we told you in the first + place, and that we now tell you, is about this: + </p> + <p> + In 1877 Mr. Peck, Mr. Miner, and John W. Dorsey made up their minds to + make bids and to go into the mail business. I want you to remember that + there is not one word in this indictment about any false bid ever having + been made. Remember that. There is nothing in this indictment about a + false bond having been given; not a thing. There is nothing in this + indictment charging that any of the original contracts were false. I want + you to remember that. There is no evidence that any person signing any one + of those contracts as security was not perfectly solvent. There is no + evidence, not one syllable, that any proposal was fraudulent, or that any + bid was fraudulent. How is it possible for a bid to be fraudulent? I will + tell you. If you make a bid, and make a contract or enter into an + agreement at the same time with some of the Post-Office officials so that + your bid will be accepted when it is not the lowest, there is a fraud, and + there is a fraudulent bid. There is one other way, and that is to put in a + bid to carry the mail at so many thousand dollars, and then have below + that straw bidders, men not responsible, and when the time comes to accept + the bid of those gentlemen they refuse to carry it out, and then the law + is that it shall be given to the next highest, and he refuses, and the + next, and he refuses, and the next highest, and he refuses, and so on + until it comes to the highest bidder. There are such combinations and have + been, I have no doubt, for many years in the Post-Office Department. That + is called straw bidding, and it is fraudulent bidding. There is no such + charge as that in this case. Every bid that was made was made in good + faith, and every bid that was accepted was followed by a good and + sufficient contract entered into by the party making the bid, and so that + is the end of that. + </p> + <p> + Now, in 1877, I say these men entered into an agreement among themselves + that they would bid on certain routes, and Mr. Peck, or Mr. Miner, or John + W. Dorsey—they may have it as they choose—somebody, wrote a + letter to Stephen W. Dorsey and in that letter told what they were going + to do and requested him to get some man to obtain information in regard to + these routes. You know that testimony. Stephen W. Dorsey was then in the + United States Senate. He sent for Mr. Boone and he showed him that letter. + In consequence of that Mr. Boone sent out his circulars to the postmasters + all over the country, or all over the portion as to which they were to + bid, and asked them about the roads, about the price of oats and corn, + about the price of labor, and about the winters; in other words, all the + questions necessary for an intelligent man, after having received + intelligent answers, to make up his mind as to the amount for which he + could carry that mail. Mr. Boone, you remember, says that he was to have + at that time a certain share. There is a conflict of testimony there. Mr. + Dorsey says that he told Boone that when John W. Dorsey came here they + could arrange that, and he had no doubt that they would be willing to give + him a share; but that he did not give it to him. The circulars were sent + out and the information in some instances, and I do not know but all, came + back. Then they agreed upon the amounts they were to bid. I believe Mr. + Miner came here in December, and John W. Dorsey, I think, in January, and + in February the bids were made. All the amounts were put in the + bidding-book issued by the Government, by Mr. Miner and Mr. Boone; all + with two exceptions, and those amounts had been placed there by them, but + under the advice of Stephen W. Dorsey those amounts were lowered. I + remember one was upon the Tongue River route, the other route I have + forgotten. Mr. Miner, Mr. Peck, and John W. Dorsey were together. + Afterwards a partnership was formed between John W. Dorsey and A. E. + Boone. Stephen W. Dorsey advanced some money. There is nothing criminal + about that. It is often foolish to advance money, but it is not a crime. + It is often foolish to indorse for another, and many a man has been + convinced of that, but it is not a crime. He advanced until, I believe, he + was responsible for some fourteen or fifteen thousand dollars, and + thereupon he declined to advance any more. He saw Mr. Miner in Saint + Louis, and said to Mr. Miner, "This is the last I am going to advance." I + think he gave him some notes that he hypothecated or discounted at the + German-American National Bank. He wanted security, and thereupon they gave + him Post-Office drafts for the purpose of securing his debt. He would + advance no more money and went away to New Mexico. Mr. Miner had a power + of attorney from John W. Dorsey who was absent, and a power of attorney + from John M. Peck who was absent. I believe on the 7th of August, or about + that time, Mr. Boone went out. Why? They had not the money at the time to + put on the service. Why? A great many more bids had been accepted than + they had anticipated, and instead of getting twenty or thirty routes they + got, I believe, one hundred and thirty-four routes. The consequence was + they did not have the money to stock the routes. There was another + difficulty. + </p> + <p> + There was an investigation by Congress, and that delayed them a month or + two, and the consequence was that when the 1st of July came, the day upon + which the service should have been put on, it was not only not put on, but + they had not the means to do it. Then what happened? Then it was that Mr. + Miner took in Mr. Vaile, and an agreement was made which bears date the + 16th day of August, 1878. It was not finally signed by all the parties, I + believe, until some time in September or October. Under that contract, + which you have all heard read, Mr. Vaile was given an interest in this + business. More than that; subcontracts were given to Mr. Vaile, and under + the subcontract law which was passed on the 17th day of May, 1878, I + believe, Vaile could file his subcontract in the Post-Office Department, + and that rendered all Post-Office drafts or orders that had been given + absolutely worthless. That was done. The subcontracts were given to Vaile + under the powers of attorney that Miner held from Peck and John W. Dorsey, + and of course he could act for himself. That was the situation. Stephen W. + Dorsey was not here. When he returned he found that everything had been + disposed of except his liability, and that he would have to pay the notes. + His security was gone, and the subcontracts were filed. At that time he + and Mr. Vaile had a quarrel. That is our story. In the meantime John W. + Dorsey was on the Tongue River route. I believe he visited Washington in + November and left word that he would like to sell out all his interests in + these routes, and I believe fixed the price. Some time in November or + December Mr. Vaile made up his mind to take the routes, and afterwards + changed his mind. Stephen W. Dorsey was then in the Senate. On the 4th of + March, 1879, his term expired. I believe on that very day, or about that + day, he wrote a letter to Brady calling his attention to these + subcontracts that had been filed for the protection of Vaile and + denouncing them. That was the first thing he did. Then a few days + afterwards the parties met. In a little while afterwards they made a + division of this entire business. You know how the division was made. + Stephen W. Dorsey fell heir to about thirty of these routes, I think. In + addition he had to pay ten thousand dollars to his brother and ten + thousand dollars to Peck. Mr. Vaile, I think, took forty per cent, and Mr. + Miner thirty per cent. Mr. Vaile and Mr. Miner went into partnership and + Stephen W. Dorsey took his routes, and that ended it. Mr. Peck was out and + John W. Dorsey was out. That is our story. When they divided those routes, + in order to vest the property of those routes in the persons to whom they + fell, it was necessary to execute subcontracts and give PostOffice drafts + and things of that character. All those necessary papers they then and + there agreed to make. Up to this point there is not one act established by + the evidence not entirely consistent with perfect innocence; not an act. + That is our story. After these routes fell to us we did what we had the + right to do and what we could to make the routes of value. As business men + we had the right to do it, and we did only what we had the right to do. + </p> + <p> + The next question that arises, and which of course is at the very + threshold of this case, is, did these parties conspire? That is the great + question. In my judgment you should settle that the first thing when you + go to the jury-room. After having heard the case as it will be presented + by the Government, and after having heard the charge of the Court, the + first thing for you to decide is, was there a conspiracy? How is a + conspiracy proved? Precisely as everything else is proved. You prove that + men conspire precisely as you prove them guilty of larceny or murder or + any other crime or misdemeanor. It has been suggested to you that as + conspiracy is very hard to prove you should not require much evidence; + that you should take into consideration the hardships of the Government in + proving a crime which in its nature is secret. Nearly all crimes are + secret. Very few men steal publicly, with a band of music and with a torch + in each hand. They generally need their hands for other purposes, if they + are in that business. All crime loves darkness. We all know that. One of + the troubles about proving that a man has committed a crime is that he + tries to keep it as secret as possible. He does not carry a placard on his + breast or on his back stating what he is about to do. The consequence is + that it is nearly always difficult to prove men guilty as stated in the + indictment. But that does not relieve the prosecution. That burden is + taken by the Government, and they must prove men guilty of conspiracy + precisely as they prove anything else. Is circumstantial evidence + sufficient? Certainly, certainly. Circumstantial evidence will prove + anything, provided the circumstances are right, and provided further that + all the circumstances are right. A chain of circumstances is no stronger + than the weakest circumstance, as a chain of iron is no stronger than the + weakest link. Where you establish or attempt to establish a fact by + circumstances, each circumstance must be proved not only beyond a + reasonable doubt, but each circumstance must be wholly inconsistent with + the innocence of the defendants. Now, let me call your attention to what I + claim to be the law upon the subject, and I will call the attention of the + Court to it at the same time. I will take this as a kind of test: + </p> + <p> + The hypothesis of guilt must flow naturally from the facts proved and must + be consistent with them; not with some of them, not with the majority of + them, but with all of them. + </p> + <p> + In other words if they establish one hundred circumstances and ninety-nine + point to guilt and one circumstance thoroughly established is inconsistent + with guilt or perfectly consistent with innocence, that is the end of the + case. + </p> + <p> + It is as if you were building an arch. Every stone that you put into the + arch must fit with every other and must make that segment of the circle. + If one stone does not fit, the arch is not complete. So with + circumstantial evidence. Every circumstance must fit every other. Every + solitary circumstance must be of the exact shape to fit its neighbor, and + when they are all together the arch must be absolutely complete. Otherwise + you must find the defendants not guilty. The next sentence is: + </p> + <p> + The evidence must be such as to exclude every reasonable hypothesis except + that of guilt. In other words, all the facts proved must be consistent + with and point to the guilt of the defendants not only, but they must be + inconsistent, and every fact proved must be inconsistent, with their + innocence. + </p> + <p> + Now, what does that mean? It means that every fact that is absolutely + established in this case, must point to the guilt of the defendants. It + means that if there is one established fact that is inconsistent with + their guilt, that fact becomes instantly an impenetrable shield that no + honest verdict can pierce. That is what it means. That being so—and + the Court in my judgment will instruct you that that is the law—let + us talk a little about what has been established. + </p> + <p> + In the first place, nearly all that has been established, or I will not + say established, but nearly all that has been said, for the purpose of + showing that our motives were corrupt, and that we actually conspired, + rests upon evidence of what we call conversations. Some witness had a + conversation with somebody, three years ago, four years ago, or five years + ago. The unsafest and the most unsatisfactory evidence in this world is + evidence of conversation. Words leave no trace. They leave no scar in the + air, no footsteps. Memory writes upon the secret tablet of the brain words + that no human eye can see. No man can look into the brain of another and + tell whether he is giving a true transcript of what is there. It is + absolutely impossible for you to tell whether it is memory or imagination. + No one can do it. Another thing: Probably there is not a man in the world + whose memory makes an absolutely perfect record. The moment it is written + it begins to fade, and as the days pass it grows dim, and as the years go + by, no matter how deeply it may have been engraven, it is covered by the + moss of forgetfulness. And yet you are asked to take from men their + liberty, to take from citizens their reputation, to tear down roof-trees, + on testimony about conversation that happened years and years ago, as to + which the party testifying had not the slightest interest. As a rule, + memory is the child of attention—memory is the child of interest. + Take the avaricious man. He sets down a debt in his brain, and he graves + it as deep as graving upon stone. A man must have interest. His attention + must be aroused. Tell me that a man can remember a conversation of four or + five years ago in which he had no interest. We have been in this trial I + don't know how many years. I have seen you, gentlemen, gradually growing + gray. You have, during this trial, heard argument after argument as to + what some witness said, as to some line embodied in this library. + [Indicating record.] You have heard the counsel for the prosecution say + one thing, the counsel for the defence another, and often his Honor, + holding the impartial scales of memory, differs from us both, and then we + have turned to the record and found that all were mistaken. That has + happened again and again, and yet when that witness was testifying every + attorney for the defence was watching him, and every attorney for the + prosecution was looking at him. How hard it would be for you, Mr. Juror, + or for any one of you to tell what a witness has said in this case. Yet + men are brought here who had a casual conversation with one of the + defendants five years ago about a matter in which no one of the witnesses + was interested to the extent of one cent, and pretend to give that + conversation entire. For ray part, were I upon the jury, I would pay no + more attention to such evidence than I would to the idle wind. Such men + are not giving a true transcript of their brains. It is the result of + imagination. They wish to say something. They recollect they had a + conversation upon a certain subject, and then they fill it out to suit the + prosecution. + </p> + <p> + Now, I am told another thing; that after getting through with + conversations they then gave us notice that we must produce our books, our + papers, our letters, our stubs, and our checks; that we must produce + everything in which we have any interest, and hand them all over to this + prosecution. They say they only want what pertains to the mail business, + but who is to judge of that? They want to look at them to see if they do + pertain to the mail business. They won't take our word. We must produce + them all. It may be that with such a net they might bring in something + that would be calculated to get somebody in trouble about something, no + matter whether this business or not. They might find out something that + would annoy somebody. They gave us a notice wide enough and broad enough + to cover everything we had or were likely to have. What did they want with + those things? May be one of their witnesses wanted to see them. May be he + wanted to stake out his testimony. May be he did not entirely rely upon + his memory and wanted to find whether he should swear as to check-books or + a check-book, and whether he should swear as to one stub or as to many. + May be he wanted to look them all over so that he could fortify the story + he was going to tell. We did not give them the books. We would not do it. + We took the consequences. But what did we offer? That is the only way to + find out our motive. I believe that on page 3776 there is something upon + that subject. I will read what I said: + </p> + <p> + Now, gentlemen, with regard to the books. As there has been a good deal + said on that subject I make this proposition: Mr. Dorsey has books + extending over a period of twenty years, or somewhere in that + neighborhood. He has had accounts with a great many people on a great many + subjects. He does not wish to bring those books into court, or to have + those accounts gone over by this prosecution, not for reasons in this + case, but for reasons entirely outside of the case. If the gentlemen on + the other side will agree, or if the Court will appoint any two men or any + three men, we will present to those men all our books, every one that we + ever had in the world, and allow them to go over every solitary item and + report to this court every item pertaining to John W. Dorsey & Co., + Miner, Peck & Co., or Vaile, Miner & Co., with regard to every + dollar connected, directly or indirectly, with this entire business from + November or December, 1877, to the present moment, and report to this + Court exactly every item just as it is. I make that proposition. + </p> + <p> + That proposition was refused. What else did I do? I offered to bring into + court every check, including the time they said we drew money to pay + Brady. I offered to bring in every check on every bank in which we had one + dollar deposited; every one. That was not admitted. And why? Because the + Court distinctly said that it rests upon the oath of the defendant at + last; he may have had money in banks that we know nothing about. To which + I replied at the time that if we stated here in open court the name of + every bank in which we did business, and there is any other bank knowing + that we did do business with it, we will hear from it. So that we offered, + gentlemen, in this case, every check on every bank but one. I did not know + at that time that we had ever had an account with the German-American + Savings Bank; I did not find that out until afterwards. But you will + remember that Mr. Merrick held in his hand the account of Dorsey with that + bank; and Mr. Keyser, who, I believe, had charge of that bank, was here, + and if there had been anything upon those books, certainly the Government + would have shown it. + </p> + <p> + More than that; that bank went into the hands of a receiver, I think, + eight months before any of these checks are said to have been given for + money which was afterwards given to Brady. Now, they insist, that because + we failed to bring the books into court, therefore the law presumes that + the absolute evidence of our guilt is in those books. I believe they claim + that as the law. If my memory serves me rightly, Colonel Bliss so claimed + in his speech. In other words, that when they give us notice to produce a + book, and we do not produce it, there is a presumption against us. That is + not the law, gentlemen. When they give us notice to produce a book or + letter and we do not produce it, what can they do? They can prove the + contents of the book or letter. In other words, if we fail to produce what + is called the best evidence, then the Government can introduce secondary + evidence. They can prove the contents by the memory of some witness, by + some copy, no matter how; and that is the only possible consequence + flowing from a refusal to produce the book or letter. + </p> + <p> + And yet, in this case, gentlemen, Mr. Bliss wishes you to give a verdict + based upon two things: first, upon what we failed to prove; secondly, on + what the Court would not let them prove. He tells you that they offered to + prove so and so, but the Court would not let them; he wants you to take + that into consideration; and secondly, that there were certain things that + we did not prove; and that those two make up a case. That is their idea. + Now, let us see if I am right about the law. + </p> + <p> + The first case to which I will call the attention of the Court is a very + small one, but the principle is clear. It is the case of Lawson and + another, assignees of Shiffner, vs. Sherwood, and it is found in 2 English + Common-Law Reports; 1 Starkie, 314. + </p> + <p> + The Court. Colonel Ingersoll, you cannot argue that question to the jury; + you cannot cite an authority and discuss it to the jury. + </p> + <p> + Mr. Ingersoll. Then I will discuss it with the Court; it is immaterial to + me which way I turn when I am talking. I insist that the jury must at last + decide the law in this case. I will read another case to the Court, found + in 9 Maryland, Spring Garden Mutual Insurance Company, vs. Evans. + </p> + <p> + The Court decides in this case that the only consequence of their refusal + to produce the papers, they not denying that they had them, was to allow + the opposite party to prove their contents. That is all; that it could not + be patched out with a presumption. + </p> + <p> + The Court. But if afterwards they should attempt to contradict the + secondary evidence the Court would not have allowed them to do it. + </p> + <p> + Mr. Ingersoll. It does not say so. + </p> + <p> + The Court. That is the law. + </p> + <p> + Mr. Ingersoll. Suppose, after the other side had proved the contents, + there was an offer of the actual original papers. I can find plenty of + authority that they must be received. + </p> + <p> + The Court. I have never seen such authority, but I have seen a great many + to the contrary. + </p> + <p> + Mr. Ingersoll. I have never seen an authority to the contrary that was + very well reasoned. But, then, I will not argue about that, for that is + not a point in this case. + </p> + <p> + The Court. If you have the papers, and have received notice to produce + them, you are bound to produce them. If you do not produce them secondary + evidence is admissible to prove their contents. But after the secondary + evidence has been received, the Court will not allow you then, after + having first failed to produce the papers upon notice, to resort to the + primary evidence which you ought to have produced upon the notice, for the + purpose of contradicting the secondary evidence that was given. + </p> + <p> + Mr. Ingersoll. Now, let me give the Court a case in point: In this very + case that we are now trying, Mr. Rerdell in his statement to MacVeagh said + there was a check for seven thousand dollars; that the money was drawn + upon that check; that he and Dorsey went together to the Post-Office + Department and that Dorsey went into Brady's room; that that money was + drawn by Dorsey. That was his statement to MacVeagh and James. + </p> + <p> + The Court. It was not his statement here. + </p> + <p> + Mr. Ingersoll. Yes, that was his statement here, as I will show hereafter. + But let me state my point. He was coming upon the stand. The check, + instead of being for seven thousand dollars, was for seven thousand five + hundred dollars; instead of being drawn to the order of Dorsey or to + bearer, it was drawn to the order of Rerdell himself; instead of being + drawn at the bank by Dorsey, it was drawn by Rerdell in person and had his + indorsement upon the back of it. We were asked to produce that. I + preferred not to do it until I heard the testimony of Mr. Rerdell. Why? + Because I wanted to put that little piece of dynamite under his testimony + and see where the fragments went, and I did. That is my answer to that. + </p> + <p> + Now, I find another case in the first volume of Curtis's Circuit Court + Reports, where it is said, on page 402, that—By the common law a + notice to produce a paper—The Court. [Interposing.] Before we part + from what you were saying, I wish to say that I do not think that the + other side gave you notice to produce the checks; that is my memory. + </p> + <p> + Mr. Ingersoll. Yes. Let me state my memory to the Court: I do not remember + exactly every one of these four thousand pages of testimony; there are + three or four that I may be a little dim about; but I do remember that a + notice was given to us to produce everything in the universe, nearly, and + that the Court held that the scope was a little too broad. I have + forgotten the page, but I will tell you where it comes in: It was where + Mr. Rerdell swore about the stub-book. I find the notice, may it please + your Honor, on page 2255, and it was dated the 13th of February. This is + the notice, and it gave the same notice to all the defendants: + </p> + <p> + You are hereby notified to produce forthwith in court, in the above + entitled cause, all letters and communications, including all telegrams, + of every kind and description, purporting to come from any one of said + defendants and addressed to you or delivered to you, and all memoranda in + which reference is made to any contract or contracts of any one of said + defendants with the United States or with the Postmaster-General for + carrying the mail under the letting of 1878 on any route in the United + States, or in any way referring to any contract or contracts for so + carrying the mail, in which J. W. Bosler or any one of said defendants had + any interest, or in any way referring to any act, contract, or proceeding + thereunder, or to any payment, draft, warrant, check, or bill, or note, or + to any possible loss or profit in connection with such contract or + contracts, or to the management or execution thereof, or referring to any + possible gain or profit to be derived by any of said defendants from + contracts for carrying the mail of the United States, or to any payments + under such contract, or to the distribution of the proceeds made or to be + made of said payment, or to the management of any enterprise or + enterprises in connection with the transportation of the mail, or to + gains, profits, or losses accruing or likely to accrue from such + enterprises, or to the financial means for carrying on the same; and also + to produce any and all books containing any entry or entries in regard to + any of the subjects, matters, checks, drafts, or payments relating or + having reference to the subjects, &c., hereinbefore referred to; and + also any letter-book or letter-books containing letter-press copies of + letters referring to the said subject or subjects. + </p> + <p> + I believe just about that time, or a little after, another notice was + given. + </p> + <p> + Mr. Merrick. If the counsel will allow me, my impression is that that + notice was deemed by the Court to be too broad. + </p> + <p> + The Court. It was. + </p> + <p> + Mr. Ingersoll. Then another notice was given that specified all these + things. + </p> + <p> + Curtis says in this case that—By the common law, a notice to produce + a paper, merely enables the party to give parol evidence of its contents, + if it be not produced. Its non-production has no other legal consequence. + </p> + <p> + I find too, that in the Maryland case they make a reference to Cooper vs. + Gibson, 3 Camp., 303. I also have another case, to which I will call the + attention of the Court, United States vs. Chaffee, 18 Wallace, 516. I have + not the book here, but I can state what it is. My recollection of the case + is this: That an action was brought against some distillers; that by law + distillers have to keep certain books in which certain entries by law have + to be made. Notice was served upon the defendants to produce those books. + They refused so to do; and the question was whether any presumption arose + against the defendants on account of that refusal. + </p> + <p> + The Court. I agree with you entirely that far in your law, that the mere + fact of the failure to produce books or papers has no effect at all + against the party declining to produce them. But it is a different + question altogether, after secondary evidence has been given, in + consequence of such refusal, to supply the place of the primary evidence. + If the books and papers have an existence, and the party who has received + the notice has refused to produce them, and the other party has given + secondary evidence of the contents of such books and papers, that + secondary evidence will have to stand, under those circumstances, as the + proof in the case. + </p> + <p> + Mr. Ingersoll. That is not the point. Of course that will stand for what + it is worth. I was arguing this point: Can the jury hatch and putty and + plaster the secondary evidence with a presumption born of the failure to + produce the books and papers? + </p> + <p> + The Court. What I mean is just this: If you should fail to produce the + primary evidence, and then the secondary evidence of the contents is not + contradicted—— + </p> + <p> + Mr. Ingersoll. [Interposing.] It may not be contradicted, because it + happens to be inherently improbable. + </p> + <p> + Mr. Merrick. The Government claims the law to be as your Honor has + intimated, and we have formulated it in one of our prayers. But that + abstract proposition is hardly applicable in the present case, for the + Government claims the application of another and plainer proposition: That + wherever a defendant himself takes the stand and has in his possession a + certain paper which, when called upon on cross-examination to produce, he + refuses, then a presumption unquestionably arises of such potency that it + is difficult to resist. + </p> + <p> + Mr. Ingersoll. There is no difference, so far as the law is concerned, + whether the defendant, as a defendant, fails to produce the books and + papers, or whether, in his capacity as a witness, he fails to produce the + books and papers. The law, it seems to me, is exactly the same. + </p> + <p> + Now, in this case of the United States vs. Chaffee et al. (18 Wall., 544), + Justice Field denounces that you should presume against the party because + he fails to produce books and papers known to be in his possession. And + why? I suppose a party can not be presumed out of his liberty; he cannot + be presumed into the penitentiary; and you cannot make a prison out of a + presumption any more than you can make a gibbet out of a suspicion. + </p> + <p> + And again, the court instructed the jury that the law presumed that the + defendants kept the accounts usual and necessary for the correct + understanding of their large business and an accurate accounting between + the partners, and that the books were in existence and accessible to the + defendants unless the contrary were shown. + </p> + <p> + That same thing has been claimed here. + </p> + <p> + The Court. No. + </p> + <p> + Mr. Ingersoll. We have heard it very often that this was a large business. + </p> + <p> + The Court. You have not heard anything of that kind from the Court. + </p> + <p> + Mr. Ingersoll. I am not saying that. I said "claimed"; if I had referred + to your Honor I should have said "decided." Here is another instruction of + the court: + </p> + <p> + If you believe the books were kept which contained the facts necessary to + show the real amount of whiskey in the hands of the defendants in October, + 1865, and the amount which they had sold during the next ten months, or + that the defendants, or either of them, could by their own oath resolve + all doubts on this point; if you believe this, then the circumstances of + this case seem to come fully within this most necessary and beneficent + rule., + </p> + <p> + He applied the word "beneficent" to a rule that put a man in the + penitentiary on a presumption. + </p> + <p> + The Court. He was conservative. + </p> + <p> + Mr. Ingersoll. He ought to read some work on the use and abuse of words. + Now, Judge Field says further: + </p> + <p> + The purport of all this was to tell the jury that although the defendants + must be proved guilty beyond a reasonable doubt, yet if the Government had + made out a <i>prima facie</i> case against them, not one free from all + doubt, but one which disclosed circumstances requiring explanation, and + the defendants did not explain, the perplexing question of their guilt + need not disturb the minds of the jurors. + </p> + <p> + That is this case exactly: that is the exact claim of Colonel Bliss in + this case. Gentlemen, you have only to take into consideration, he says, + what we offered to prove and what the Court would not allow us, and what + the defendants failed to prove. "Why didn't they call Bosler?" + </p> + <p> + Now, gentlemen, we claim the law to be this: That while notice is given us + to produce books and papers and we fail to do it, the only legal + consequence is that the Government may then prove the contents of such + books and papers, and that their proof of the contents must be passed upon + by you. + </p> + <p> + The next thing to which I call your attention is the crime laid at our + door, that we exercised the right of petition. It is regarded as a very + suspicious circumstance that petitions were circulated, signed, and sent + to the office of the Second Assistant Postmaster-General. Why did these + people petition? Let me tell you. If you will look in every contract in + this case you will find certain provisions relative to carrying the mail. + Among others you will find this: That no contractor has any right to carry + any newspaper or any letter faster than the schedule time; that he has no + right to carry any commercial news, or to carry any man who has any + commercial news about his person, faster than the schedule time. No mail + can be carried by anybody except the United States, and if a community + wants more mail it has no right to establish an express that will carry + the mail faster, because the United States has the monopoly. Now, if you + want more mail, what are you to do? You cannot start one yourself; the + Government will not allow it. What have you to do? You have to petition + the Government to carry the mail faster or to carry it more frequently; + and the reason you have to ask the Government to do this is because the + Government will not permit you to do it; consequently you have only one + resort. What is that? Petition. And in this very case I believe his Honor + used this language: + </p> + <p> + Every man carrying the mail has the right to take care of his business. He + has the right to get up petitions. He has the right to call the attention + of the people to what he supposes to be their needs in that regard. He has + the right to do it, and the fact that he does it is not the slightest + evidence that he has conspired with any human being. + </p> + <p> + Now, if the man carrying the mail has the right to call the attention of + the people to their needs, have not the people the right to do all that + themselves? If the man carrying the mail has the right to get up a + petition, surely the people have the right; and if the people have the + right, surely the man has that right. That is the only way we can find out + in this country what the people want—that is, to hear from them. + They have the right to tell what they want. + </p> + <p> + But these gentlemen say, "Anybody will sign a petition." Well, if that is + true, there is no great necessity for forging one. Very few people will + steal what they can get for the asking. If a bank or a man offers you all + the money you want, you would hardly go and forge a check to get it. I + will come to that in a few moments. + </p> + <p> + Now, gentlemen, according to this evidence, you have got to determine, as + I said in the outset, Was there a conspiracy? The second question you have + to determine is, When? In every crime in the world you have got to prove + the four W's—Who, When, What, Where? Who conspired? When? What + about? Where? Now I want to ask you a few questions, and I want you to + keep this evidence in mind. Was there a conspiracy when Dorsey received + the letter from Peck or Miner? Had the egg of this crime then been laid? + Had it been hatched at that time? Is there any evidence of it? The object + then was to make some bids. It is not necessary to conspire to make bids. + You cannot conspire to make fraudulent bids unless you enter into an + agreement that the lowest bid is not to be accepted, or agree upon some + machinery by which the lowest bid is not received, or put in a bid with + fraudulent and worthless security. Will the Government say that there was + a conspiracy at the time Peck or Miner wrote to S. W. Dorsey? What + evidence have you that there was? None. What evidence have you that there + was not? The evidence of Miner and the evidence of S. W. Dorsey. What + else? Boone had not been seen at that time. John W. Dorsey was not here. + Peck was not here. Peck or Miner had written the letter. Was there any + conspiracy then? Is there any evidence of it? Is there enough to make a + respectable suspicion even in the mind of jealousy? Does it amount even to + a "Trifle light as air." + </p> + <p> + Was it when Dorsey sent for Boone? Boone says no. He ought to know. S. W. + Dorsey says no. John W. Dorsey was not here. Miner had not arrived. The + only suspicious thing up to that point is that Dorsey lived "in his + house;" that he received this letter "in his house," and that Boone + visited him "in his house." That is all. Now, if there is a particle of + evidence, I want the attorney for the Government who closes this case to + point it out, and to be fair. Was it when Miner got here in December, + 1877? Miner says no. Boone says no. Stephen W. Dorsey says no. John W. + Dorsey was not yet here. All the direct evidence says no. All the indirect + evidence says nothing. Now, let us keep our old text in view. I want to + ask you if there is a thing in all the evidence not consistent with + innocence? Was it not consistent with innocence that Peck and Miner and + John W. Dorsey should agree to bid? Was it not consistent with innocence + that John W. Dorsey met Peck at Oberlin, and that he met Miner in + Sandusky? Was not that consistent with innocence? Was it not consistent + with innocence for Peck to write S. W. Dorsey a letter? Was it not + consistent with innocence for Dorsey to open it and read it and then send + for Boone and give it to him? Boone in the meantime proceeded to get + information so that they could bid intelligently. Was that consistent with + innocence? Perfectly. More than that, it was inconsistent with guilt. What + next? May be this conspiracy was gotten up about the 16th of January, when + John W. Dorsey came here. Dorsey says no; Boone says no; Miner says no; + and S. W. Dorsey says no. That is the direct evidence. Where is the + indirect evidence? There is none. Ah, but they say, don't you remember + those Clendenning bonds? Yes. Is there anything in the indictment about + them? No. Was any contract granted upon those bonds or proposals? No. Was + the Government ever defrauded out of a cent by them? No. Is there any + charge in this case relative to them? No. Everybody says no. John W. + Dorsey entered into a partnership with A. E. Boone after he came here. Is + that consistent with innocence? Yes. No doubt many of the jury have been + in partnership with people. There is nothing wrong about that. He also + entered into partnership with Miner and Peck. There were two firms, John + W. Dorsey & Co., which meant A. E. Boone and John W. Dorsey, and + Miner, Peck & Co., which meant Miner, Peck and John W. Dorsey. Is + there anything criminal in that? No. They had a right to bid. They had a + right to form an association, a partnership. There was nothing more + suspicious in that than there would have been in evidence of their eating + and sleeping. Now, then, was this conspiracy entered into on August 7, + 1878, when Boone went out? Boone says no, and with charming frankness he + says if there had been a conspiracy he would have staid. He said, "If I + had even suspected one, I never would have gone out. If I had dreamed that + they had a good thing, I should have staid in." He swears that at that + time there was not any. Miner swears to it and S. W. Dorsey swears to it. + Everybody swears to it except the counsel for the prosecution. Rerdell + swears to it. That is the only suspicious thing about it. Now, at that + time, August 7, when Boone went out, S. W. Dorsey was not here and John W. + Dorsey was not here. Who was? Miner. What was the trouble? Brady told him, + "I want you to put on that service. If you don't I will declare you a + failing contractor." A little while before that Miner had met Dorsey in + Saint Louis, and Dorsey had said, "This is the last money I will furnish. + No matter whether I conspired or not, I am through. This magnificent + conspiracy, silver-plated and gold-lined, I give up. There are millions in + it, but I want no more. I am through." So Mr. Miner, using his power of + attorney from John W. Dorsey and Peck, took in Mr. Vaile. + </p> + <p> + I believe that Mr. Rerdell swears that the reason they took in Vaile was + that they wanted a man close to Brady. According to the Government they + had already conspired with Brady. They could not get much closer than + that, could they? Miner was a co-conspirator, and yet they wanted somebody + to introduce him to Brady. John W. Dorsey and S. W. Dorsey were in the + same position. They were conspirators. The bargain was all made, signed, + sealed, and delivered, and yet they went around hunting somebody that was + close to Brady. Brady said, "I will declare you all failing contractors. I + can't help it, though I have conspired with you. I give up all my + millions. This service has got to be put on. The only way to stop it is + for you to seek for a man that is close to me. You are not close enough." + Now, absurdity may go further than that, but I doubt it. You must + recollect that that contract was signed as of the 16th of August. You + remember its terms. At that time not a cent had been paid to S. W. Dorsey. + His Post-Office drafts had been cut out by the subcontracts. Afterwards he + had a quarrel with Vaile. We will call it December, 1878. + </p> + <p> + Was the conspiracy flagrant then? Let us have some good judgment about + this, gentlemen. You are to decide this question the same as you decide + others, except that you are to take into consideration the gravity of the + consequences flowing from the verdict. You must decide it with your + faculties all about you, with your intellectual eyes wide open, without a + bit of prejudice in your minds, and without a bit of fear. You must decide + it like men. You must judge men as you know them. Was there a conspiracy + between these defendants in December, 1878, when S. W. Dorsey came back + here and found out the security for his money was gone, and when he had + the quarrel with Mr Vaile? Is there the slightest scintilla of testimony + to show that Mr. Vaile came into this business through any improper + motive? I challenge the prosecution to point to one line of testimony that + any reasonable man can believe even tending to show that Mr. Vaile was + actuated by an improper motive. I defy them to show a line tending to + prove that John R. Miner was actuated by an improper motive when he asked + Vaile to assist him in this business. I defy them to show that Brady was + actuated by an improper motive when he told them, "You must put on that + service or I will declare you all failing contractors." Was there a + conspiracy then? I ask you, Mr. Foreman, and I ask each of you, Was there + a conspiracy at that time? Have the prosecution introduced one particle of + testimony to show that there was? In March was there a conspiracy? Will + you call dividing, a conspiracy? Will you call going apart, coming + together? If you will, then there must have been a conspiracy in March. A + conspiracy to do what? A conspiracy to separate; a conspiracy to have + nothing in common from that day forward. Mr. Vaile entered into a + conspiracy then that he would have no more business relations with S. W. + Dorsey. He swears that at that time nothing on earth would have tempted + him to go on. That is what they call being in a conspiring frame of mind. + Not another step would he go. In March they separated, and each one went + his way. It was finally fixed up, and finally settled in May. John W. + Dorsey was out with his ten thousand dollars, and Peck was out with his + ten thousand dollars. S. W. Dorsey, for the first time became the owner of + thirty routes, or something more, and Miner and Vaile of the balance, I + think about ninety-six. According to that contract of August 16, John W. + Dorsey only had a third interest in the routes he had with Boone, and not + another cent. There was a division. If there was a conspiracy of such a + magnitude, why should Boone go out of it? Why should John W. Dorsey sell + out for ten thousand dollars? Why should John W. Dorsey offer Boone + one-third of it? Why was Mr. A. W. Moore offered one-quarter of it?—a + gentleman who could be employed for one hundred and fifty dollars a month? + I ask you these questions, gentlemen. I ask you to answer them all in your + own minds. Recollect, on the 16th of August there was a conspiracy + involving hundreds of thousands of dollars. In that conspiracy was the + Second Assistant Postmaster-General. They had the Post-Office Department + by the throat. They had the Postmaster-General blindfolded. Yet Miner went + to Vaile and said, "Now, just furnish a little money to put on these + routes and you may have forty percent, of this conspiracy." He was giving + him hundreds of thousands of dollars. Is that the way people talk that + conspire together? Would not Miner have gone to Brady and said, "Look + here, what is the use of acting like a fool? What do you want me to give + forty per cent, of this thing to Vaile for? I had better give twenty per + cent, more to you. That would allow me to keep twenty per cent, more too, + and then there will be one less to keep the secret." He never thought of + that. + </p> + <p> + I want you to think of these things, gentlemen, all of you, and see how + they will strike your mind. What did they want of Boone? S. W. Dorsey they + say was the prime mover. He hatched this conspiracy. Miner, his own + brother, Peck, and everybody else were simply his instruments, his tools. + What did he want Boone for? He had a magnificent conspiracy from which + millions were to come. He told Boone, "I will give you a third of it." + What for? He told Moore, "I will give you one-quarter." Seven-twelfths + gone already. T. J. B. thirty-three and one-third per cent. That is about + all. Then sixty-five per cent, more to the subcontractors. I want you to + think about these things, gentlemen. If they had such a conspiracy what + did they want of Mr. Moore? + </p> + <p> + Mr. Ingersoll. [Resuming.] Gentlemen, was it natural for S. W. Dorsey to + get the money back that he had advanced, or some security for it? Was that + natural? When a man seeks to have a debt secured is that a suspicious + circumstance? That is all he did. He was out several thousand dollars. He + wanted to secure that debt and he took another debt of twenty thousand + dollars upon him as a burden. If this had been a conspiracy he could have + furnished this money that he had to pay to others to put the service on + the route. I leave it to each one of you if that action to secure that + debt was not perfectly natural. I will ask you another question. If he was + the originator of the conspiracy would he have taken thirty per cent, + burdened with a debt of twenty thousand dollars? The way to find out + whether there is sense in anything or not is to ask yourself questions. + Put yourself in that place; you, the master of the situation; you, the + author of the entire scheme. Would you take one-third of what you yourself + had produced, and that third burdened with twenty thousand dollars worth + of debt, and then make your debt out of the proceeds? I want every one of + you to ask yourself the question, because you have got to decide this case + with your brains and with your intelligence; not somebody else, but you, + yourself. We want your verdict; we want your individual opinion; not + somebody else's. There is the safety of the jury trial. We are to have the + opinions of twelve men, and those opinions agreeing. Where twelve honest + men agree, if they are also independent men, the rule is that the verdict + is right. The opinion of an honest man is always valuable, if he is only + honest, and if it is his opinion, it is valuable. It is valuable if he + does not go to some mental second-hand store and buy cheap opinions from + somebody else, or take cheap opinions. In this case I ask the individual + opinion of each one of you. I want each one of you to pass upon this + evidence; I want each one of you to say whether if Dorsey had been the + author and finisher of this conspiracy he would have taken thirty per + cent., burdened with twenty thousand dollars of debt to others and fifteen + thousand dollars of debt to himself? If you can answer that question in + the affirmative you can do anything. After that nothing can be impossible + to you, except a reasonable verdict. You cannot answer it that way. Why + should he have cared so much about fifteen or sixteen thousand dollars + with a conspiracy worth hundreds of thousands of dollars? Why run the risk + of making the whole conspiracy public? Why run the risk of his detection + and its destruction? You cannot answer it. Perhaps the prosecution can + answer it. I hope they will try. + </p> + <p> + Mr. Ker, on page 4493, makes a very important admission. + </p> + <p> + After they (meaning the defendants) had these contracts, there was a + combination, an agreement between all these people, that they were to do + certain things in order to get at the public Treasury and get more money. + </p> + <p> + What does that mean? That means that this conspiracy was entered into + after the defendants obtained the contracts, so that Mr. Ker fixes the + birth of this conspiracy after these contracts had been awarded to the + defendants. That being so, all the bids, proposals, Clendenning letter, + Haycock letter, proposals in blank, and bidders' names left out fade away. + </p> + <p> + The Chico letter I will come to after awhile. I will not be as afraid of + it as were the counsel for the prosecution. I will not, like the Levite, + pass on by the other side of the Chico letter. I will not treat it as if + it were a leper, as if it had a contagious disease. When I get to it I + will speak about it. All these things, then, under that admission, go for + naught, and have nothing to do with the case, and consequently nobody need + argue with regard to them any more, although incidentally I may allude to + them again. There is no doubt, recollect, after this admission. There is + no clause in the indictment saying that we endeavored to defraud this + Government by bids, by proposals, by bonds, or by contracts. Not a word. + That is all out; in my judgment it never should have been in the case at + all. What is the next thing we did? It is alleged that the moment Dorsey + got these contracts he laid the foundation to defraud the Government by a + new form of subcontract. Let me answer that fully, and let that put an end + to it from this time on. Until May 17, 1878, the Post-Office Department + did not recognize subcontractors. After these contracts came into the + possession of these defendants Congress passed a law recognizing + subcontractors. Consequently the contracts of the subcontractors that were + to be recognized by the Government had to be somewhere near the same form + as the contracts with the original contractors. The moment the contract of + the subcontractor was to be recognized by the Government then it was + necessary and proper to put a clause in that subcontract for expedition + and a clause in that subcontract for increase of service. Why? So that the + Government should know, if the route was expedited, what percentage the + subcontractor was entitled to. Instead of that clause in the subcontract + being evidence that Mr. Dorsey was endeavoring to swindle the Government, + the evidence is exactly the other way. It was put there for the purpose of + protecting the subcontractor, so that if expedition was put upon the route + the Government would know what per cent, of the expedition to pay the + subcontractor. If that clause had not been in that subcontract the + Government could not have told how much money to pay the subcontractor, + and as a consequence the subcontract would have been worthless as security + for the subcontractor. And yet a clause put in for the protection of the + subcontractor is referred to in your presence as evidence that the man who + suggested it was a thief and a robber. What more? They say to these + witnesses, "Did you ever see such a clause as that in a subcontract + before?" No. Why? The Government never recognized a subcontractor before + that time, and consequently there was no necessity for such a clause. + Think how they have endeavored to torture every circumstance, no matter + how honest, no matter how innocent, no matter how sensible; how they have + endeavored to twist it and turn it against these defendants. Gentlemen, + whenever you start out on the ground that a man is guilty, everything + looks like it. If you hate a neighbor and anything happens to your lot you + say he did it. If your horse is poisoned he is the man who did it. If your + fence is torn down he is the fellow. You will go to work and get all the + little circumstances that have nothing to do with the matter braided and + woven into one string. Everything will be accounted for as coming from + that enemy, and as something he has done. + </p> + <p> + They say another thing: That we defrauded the Government by filing + subcontracts. You cannot do it. When this case is being closed I want + somebody to explain to the jury how it is possible for a man to defraud + this Government by filing a subcontract. I do not claim to have much + ingenuity. I claim that I have not enough to decide that question or to + answer it. I can lay down the proposition that it is an absolute, + infinite, eternal impossibility to fraudulently file a subcontract as + against the Government. It cannot he done. Oh, but they say, the + subcontractor did not take the oath. There is no law that he should take + an oath and there never was. There may be at some time, but there is not + now. The law that everybody engaged in carrying the mail and every + salaried officer of the department shall take an oath was passed before + the law of the 17th of May, 1879, allowing a subcontractor to file his + subcontract. Before that time the Government had nothing to do with the + subcontractor. If he actually carried the mail; if he actually took + possession of the mail, he had to take the oath of the carrier. But I defy + these gentlemen to find in the law any oath for a subcontractor. There + never was such an oath. If there is one, find it. The law that every + salaried officer and every carrier of the mail shall take the oath was + passed years and years and years before the law was passed allowing + subcontracts to be filed. What of it? Suppose a man who is a subcontractor + carries the mail and does not take any oath. That is as good as to take + the oath and not carry the mail. What possible evidence is it of fraud? + Suppose it should turn out that the carrier did not take the oath, but + carried the mail honestly. What of it? Is it any evidence of fraud? If a + man tells the truth without being sworn, is that evidence that he is a + dishonest man? If a man carries the mail properly and in accordance with + law without being sworn to do so, it seems to me that is evidence that he + is an honest fellow, and you don't need to swear him. So when a + subcontractor takes a subcontract and carries the mail according to law it + does not make any difference whether he swears to do so or not. Is there + any evidence in this case that the subcontractors stole any letters on + account of not having taken the oath? When they answer, let them point to + the law that the subcontractor is to take an oath. There is no such law + and never was. + </p> + <p> + Now, according to this admission of Mr. Ker, the conspiracy commenced + after they got the contract. Very well. I need not talk about anything + back of that. I do not know whether the admission is binding upon the + Government or not. I believe the Court holds that the Government is not + bound by the admission of any agent, and that the Government only + authorizes an agent to admit facts. May be he is mistaken. The Government + only authorizes an agent to admit the law. At any rate Mr. Ker did the + very best he knew how, and he says this conspiracy commenced when they got + the contracts, and so we need not go back of that unless the Government is + now willing to say that Mr. Ker has made a mistake. I lay down the + proposition, gentlemen, that you need not go back of the division of these + routes. Then you must go forward. What was done after that? Recollect the + exact position of Senator Dorsey and the exact position of these other + people. + </p> + <p> + The next claim is, although there was no conspiracy until after they got + the contracts, that Senator Dorsey was interested in these contracts while + he was a Senator of the United States. If they could establish that fact + it would not tend to establish a conspiracy. There is nothing in this + indictment about it. I admit that if he were a Senator, and at the same + time interested in mail contracts, he might be tried and his robes of + office stripped from him, and that he could be rendered infamous. But that + is not what he is being tried for. They say he was in the Senate, and he + was anxious to keep it secret. Mr. Ker says he was so anxious to keep it + secret that he sent all these communications out West in Senate envelopes, + so they would think a Senator had something to do with it. Then it turned + out that all the envelopes were in blank; just plain white envelopes, with + nothing on them, and away went that theory. If he were in the Senate and + engaged in these routes also, and wished to keep it a profound secret, + because if known it would blast his reputation forever, do you think he + would have had all these circulars sent out in Senate envelopes and on + Senate paper? If he did allow that to be done, it is absolutely conclusive + evidence that he was not interested. Suppose I was trying to keep it an + absolute, profound, eternal, everlasting secret that I had anything to do + with a certain matter, would I write letters about it? Would I use paper + that had my name, the number of my office, and the character of my + business printed upon it? Would I? To ask that question is to answer it. + Another thing: They claim that he was in the Senate and infinitely anxious + to keep it a secret, and yet he found Mr. Moore, a perfect stranger, and + said to him in effect: "Yes, Mr. Moore; I don't know you, but I want you + to know me. I ama rascal. I am a member of the Senate, but I am engaged in + mail routes. I hope you will not tell anybody, because it would destroy + me. I have great confidence in you, because I don't know you." That is the + only way he could have had confidence in Moore. He would have to have it + the first time he saw him or it never would have come. To this perfect + stranger he said, "Here, I am in the Senate, but I am interested in these + routes. I am in a conspiracy. I want you to go out and attend to this + business. I want you to do all these things, and the reason I tell you is + because I am a Senator and I want it kept a profound secret. That is the + reason I tell you." That is what these gentlemen call probable. That is + their idea of reasonableness and of what is natural. That may be true in a + world where water always runs up hill. It can never be true in this world. + It is not in accordance with your experience. Not a man here has any + experience in accordance with that testimony or that doctrine; not one. + You never will have unless you become insane. If this trial lasts much + longer you may have that experience. It is a wonder to me it has not + happened already. + </p> + <p> + There is another queer circumstance connected with this case. While Dorsey + told it all to Moore he kept it a profound secret from Boone. Boone, you + know, was in at the first. Boone got up all this information. Boone was + interested in these bids, and yet he never told Boone. He had known Boone, + you see, for several weeks. He told Moore the first day, the first minute. + He wished to relieve his stuffed bosom of that secret. Moore was the first + empty thing he found, and he poured it into him. It is astonishing to me + that he succeeded in keeping that secret from Boone, but he did. He even + kept it from Rerdell. + </p> + <p> + Rerdell never heard of it—a gentleman who picks up every scrap, who + listens at the key-hole of an opportunity for the fragment of a sound. He + never heard it. John W. Dorsey did not even know anything about it. Nobody + but Moore. Now, I ask you, gentlemen, is there any sense in that story? I + ask you. I ask you, also, if the testimony of Stephen W. Dorsey with + regard to that transaction is not absolutely consistent with itself? Did + he not in every one of those transactions act like a reasonable, sensible, + good man? Oh, but they say it is not natural for a man to help his + brother; certainly it is not natural for a man to help his brother-in-law, + and nobody but a hardened scoundrel would help a friend, and Dorsey is not + that kind of a man. Occasionally in a case an accident will happen, and + from an unexpected quarter a side-light will be thrown upon the character + of a man, sometimes for good, and sometimes for evil. Sometimes a little + circumstance will come out that will cover a man with infamy, something + that nobody expected to prove, and that leaps out of the dark. Then, + again, sometimes by a similar accident a man will be covered with glory. + In this case there was a little fact that came to the surface about + Stephen W. Dorsey that made me proud that I was defending him. Oh, he is + not the man to help his brother; he is not the man to help his + brother-in-law; he is not the man to help a friend; and yet, when Torrey + was upon the stand, he was asked if he was working for Dorsey, and he said + no, and was asked if Dorsey paid him at a certain time, or if he owed him, + and he said no. He was asked why, and he replied, "Because only a little + while before, when I was not working for him, and my boy was dead, he gave + me a thousand dollars to put him beneath the sod." That is the kind of a + man Stephen W. Dorsey is. I like such people. A man capable of doing that + is capable of helping his brother, of helping his brother-in-law, and of + helping his friend. A man capable of doing that is capable of any great + and splendid action. Is there any other man connected with this trial that + ever did a more generous, nay, a more loving and lovely thing? How such a + man can excite the hatred of the prosecution is more than I can + understand. + </p> + <p> + Now, we have got to the division, and the question arises, was there a + division? Let us see. On page 5009 Mr. Bliss admits that Vaile, + immediately upon Dorsey's coming out of the Senate, came here for the + purpose of settling up this business; that he made up his mind to have no + more to do with Dorsey. Then Mr. Bliss makes this important admission, and + I do not want any attorney for the Government to deny it. + </p> + <p> + He admits that in May there was a final division, and that that division + was to take effect as from the 1st day of April, and that after that each + party took the routes allotted to him, and they became the uncontrolled + property of that person, no other person having the right to interfere. + There is your admission, just as broad as it can be made. Mr. Bliss, after + having made that admission, which virtually gives up the Government's + case, then threw a sheet-anchor to the windward and said, "But when they + divided they made a bargain with each other that they would make the + necessary papers." What for? To carry out the division. That is all. Now, + the only corner-stone for this conspiracy, the only pebble left in the + entire foundation is the agreement to make the necessary papers after the + division. That is all that is left. The rest has been dissolved or dug up + and carted away by this admission. Let us see what that agreement was. Mr. + Bliss turned to the evidence of John W. Dorsey, on page 4105: + </p> + <p> + Q. At the time you sold out, was there any understanding about your making + papers?—A. That was a part of the agreement. I was to sign all the + necessary papers to carry on the business. + </p> + <p> + When he sold out he agreed to sign all the necessary papers. It is like + this: Mr. Bliss says on such a day, for instance, they divided. Suppose, + instead of being routes it was all land. They divided the land and then + they agreed to make the deeds. That was the conspiracy; not in the land; + not in the agreement about the land; not in the bargain, but in the + execution of the papers in consequence of the bargain. That was the + conspiracy. They agreed to make all the necessary papers. That was the + agreement. Then the Court asked John W. Dorsey a question. + </p> + <p> + Q. You agreed to sign what?—A. All the necessary papers to carry on + the business. + </p> + <p> + That is what he agreed to do. What else? What were those papers? First, + they were to sign all the subcontracts that were necessary, all the + Post-Office drafts necessary, and they were to sign letters like this: + </p> + <p> + The Post-Office Department, in regard to this route, will hereafter send + all communications to the undersigned. + </p> + <p> + In other words, the object was to let the person who fell heir to a given + route in the division control that route. That was all. The man who was + the contractor agreed that he would sign all the necessary papers. For + what purpose? To allow each man who got a route to be the owner of it and + control it and draw the money. That is all. And yet it is considered + rascality. + </p> + <p> + Let me call your attention to another piece of evidence on this subject. + On page 5016, Mr. Bliss is talking about all these papers and these + letters that were written and apparently signed by Peck, but really signed + by Miner, saying, "I want you to send all communications in reference to + such a route to post-office box No. so and so, John M. Peck," sometimes + with an M. under it and sometimes without. He did that in consideration of + the agreement at the time he got the routes that had been originally + allotted to Peck. Mr. Bliss brought here a vast number of these papers, + and then he continued, on page 5017: + </p> + <p> + All those, gentlemen, are orders, dated after the division, many of them + coming away down into 1881, and all of them relating to routes with which + Peck had no connection, because he severed his connection with all the + routes prior to the 1st of April, or as of the 1st of April, 1879. John W. + Dorsey tells you that he signed papers right along—Of course he did. + He agreed to—and I have here a series of them. Many of them are + orders not in blank. There are among the papers, orders signed in blank, + but these are dated, and they are witnessed not always by the same person + as indicating that they got together and signed a lot of orders at the + time of the division. There is every indication that the dates are + correct. The witnesses are different at different times. + </p> + <p> + The Court. These same orders would have been made if the division had been + perfectly honest. + </p> + <p> + That is what I say. That is what we all say, gentlemen. + </p> + <p> + If the transaction then had been perfectly honest the papers would have + been precisely as they are. From the papers being precisely as they are, + do they tend to show that the transaction was dishonest, when it is + admitted by everybody and decided by the Court, that if the transaction + had been perfectly honest the papers would have been just as they are? + Recollect my text. Every fact when you are proving a circumstantial case + has to point to the guilt of the defendants, and their guilt has to be + found from all the facts in the case beyond a reasonable doubt. If there + is one fact inconsistent with their guilt, the case is gone. + </p> + <p> + There is another little admission to which I call your attention. Nothing + delights me so much as to have the prosecution in a moment of + forgetfulness, or we will say on purpose, admit a fact. Mr. Bliss said, on + page 5018: + </p> + <p> + You will bear in mind that the division took place some eight months + previous to that. + </p> + <p> + That was January 1, 1880, + </p> + <p> + However that may be, these papers are all papers which on their faces + might be innocent and fair and proper. They are papers which, under + ordinary circumstances, might be executed to enable others than the + contractor to draw the pay and to be tiled with the department, though it + appears, I think, by the evidence in this case that no draft could be + filed except shortly prior to the quarter as to which it applied. As to + these papers all that we have to say is this: they are papers on their + face apparently innocent, papers calculated to go through in the ordinary + practice as though there was nothing wrong about them. At the same time + the evidence shows that they were papers executed by these several parties + at the time of or in pursuance of the agreement of the division. + </p> + <p> + I do not want anything better. That settles the papers. They were made at + the time they agreed to make them. It was the only way in which they could + give the party who got the route absolute control of the route. + </p> + <p> + Now, gentlemen, apart from these papers, I believe they have three + witnesses, at least they are called witnesses, in this case. The first + witness that I will call your attention to, and who figures about as early + as anybody, is A. W. Moore. I want to ask you a few questions about his + testimony. I want you to understand exactly what he swears to and the + circumstances. Let us see. + </p> + <p> + He swears first that he had a conversation with Miner, in which he told + Miner that he would work for him for one hundred and fifty dollars a month + and expenses, with permission to put on some of his own service, I think, + in Oregon and California, and that Mr. Miner accepted his terms, and + employed him as the agent of Miner, Peck & Co. Recollect that, Miner, + Peck & Co. Second, that Miner told him to report at Dorsey's house to + get instructions. Miner at that time was staying at Dorsey's house. I do + not know whether it was to get instructions from Dorsey or from the house, + or from Miner. I take it, from Miner. No matter. Mr. Moore then swears + that he reported to Dorsey and Dorsey asked him his opinion about the + service. Moore had never been there and did not know one of the routes, + but Dorsey was anxious for his opinion. How did he know any more about the + service than Dorsey? There is no evidence that Moore knew the price. There + is no evidence that he knew the amount the Government was to pay on a + single route. He was a stranger. Then he had another conversation with + Dorsey in which Dorsey told him that they had bid on the long routes with + slow time, because that was the way to make money. Not satisfied with + that, Mr. Dorsey showed him the subcontracts with the blanks and with the + changes, and then he explained to him the descending scale, and he + explained to him the percentage of expedition. He said Dorsey told him + forty per cent, of the expedition. Boone swears it was sixty-five per + cent. There is a little difference; not much. Moore swears that he himself + was to have twenty-five per cent, of the stealings. Let us see how that + is. Boone swears that the subcontractor was to have sixty-five per cent. + Rerdell swears that Brady was to have thirty-three and one-third per cent. + That leaves one and two-third per cent, for the contractor. Do you see? + The subcontractor got sixty-five dollars out of one hundred dollars, and + then Brady got thirty-three dollars and thirty-three and one-third cents. + That makes ninety-eight dollars and thirty-three and one-third cents, + leaving the contractor one dollar and sixty-six and two-third cents. That + was all he got. Did you ever know of anybody on earth doing business at a + smaller per cent, and paying for the trouble? Now, Mr. Moore comes in with + his statement. He says the subcontractor got forty per cent, and then he + himself got twenty-five per cent. That makes sixty-five. Then, according + to Rerdell, Brady was to have thirty-three and one-third per cent. That + makes ninety-eight and one-third. There is the most wonderful coincidence + in this whole trial. Rerdell and Boone and Moore agree exactly that the + contractor gave up ninety-eight and one-third per cent, to others and took + one and two-thirds himself. Did you ever know as much humanity in a + conspiracy as that? Did you ever know such a streak of benevolence to + strike anybody? It reminds me of a case of disinterested benevolence that + happened in Southern Illinois. A young man there went to a lawyer and said + to him, "I want to get a divorce, I was married at a time when I was + drunk, and when I sobered up I didn't like the marriage. I want a + divorce." The lawyer asked, "What do you want of a divorce?" "Well," he + said, "do you know the widow Thompson?" "Yes." "She has been a widow there + for about forty years. Do you know her boy? He is the biggest thief in + this county. He went over the Ohio River the other day and stole a set of + harness and a mule." "What has that to do with this divorce case?" "Well," + he said, "I want to get a divorce and I want to marry that widow." "What + for?" "I want to get control of that boy and see if I can't break him from + stealing. I have got some humanity in me." Here are S. W. Dorsey, his + brother, his brother-in-law, Miner and Vaile starting a charity + conspiracy, and out of every hundred dollars that they steal they offer + ninety-eight dollars and thirty-three cents upon the altar of + disinterested friendship. You are asked to believe that. You will not do + it. + </p> + <p> + Mr. Moore also swears that he received some money by a check, but he does + not know whether the check was payable to him or payable to Miner, and he + got a power of attorney signed by Miner from John W. Dorsey and John M. + Peck, and then he started, S. W. Dorsey assuring him in the meantime that + he could tell the people out there that the service would be increased and + expedited in a few days. Mr. Moore is a peculiar man. He says that that + suited him exactly. He was willing to steal what little he could; he was + willing to steal for one hundred and fifty dollars a month if he couldn't + get any more, or he was willing to steal for a part of the stealing. If he + could not get that he would take an ordinary salary. I should think he was + a good man from what he says. You heard him. They were wonderfully anxious + to prove by Moore that Dorsey was the head and front of this whole + business. That was the object, and so he swore as to the instructions. He + said he was instructed to get up petitions so that they could be torn off + and the names pasted on other petitions. He swore he carried out those + instructions. He swore that Major agreed to do it, and I think a man by + the name of McBeau was going to do it. Yet, gentlemen, there never was + such a petition gotten up. Major swore here that he never heard of it; + that he never dreamed of it, and never agreed to it; that it was a lie; + that it was never suggested to him. Moore went out West and came back as + far as Denver, and at Denver met John R. Miner, and then came here and saw + Dorsey. What did he do with Dorsey? He swears that he went to Stephen W. + Dorsey and settled with him, and that Dorsey settled in a very generous + and magnanimous way, and did not want to look at his account, and did not + want to look at the book; had no anxiety or curiosity about the items. He + just said, "How much is it?" It happened to be even dollars—two + hundred and fifty dollars. When a man goes out West and has hotel bills + and all that sort of thing, when he comes to render his expense account it + is always even dollars. Moore said two hundred and fifty dollars. Dorsey + gave it to him; never looked at the book at all. Moore swears that he made + that settlement with Stephen W. Dorsey on the 11th day of July, 1878. + Dorsey was then in the Senate. + </p> + <p> + Look at page 1417. You see that Moore had been smart; that is what people + call smart. You know it is never smart to tell a lie. Very few men have + the brains to tell a good lie. It is an awfully awkward thing to deal with + after you? have told it. You see it will not fit anything else except + another lie that you make, and you have to start a factory in a short time + to make lies enough to support that poor little bantling that you left on + the door-step of your honesty. A man that is going to tell a lie should be + ingenious and he should have an excellent memory. That man swore that he + settled with Dorsey to the 11th day of July, 1878; swore it for the + purpose of convincing you that Dorsey employed him; that Dorsey gave him + instructions; that Dorsey was the head and front of the conspiracy. I then + handed him a little paper, and asked him, "Do you know anything about + that? Did you ever sign that?" And here it is: + </p> + <p> + Not July 11. That is the day he got the money of Dorsey. + </p> + <p> + July 24, 1878. + </p> + <p> + Received of Miner, Peck & Co., one hundred and sixty-six dollars, + balance of salary and expenses in full to July 11, 1878. + </p> + <p> + A. W. MOORE. + </p> + <p> + To when? To July 24? No, sir; he settled with Dorsey to July 11, 1878. The + gentlemen had forgotten that he gave that. If he had only had a little + more brains he would have avoided the two hundred and fifty dollars, that + even amount, and he would have said, "Dorsey did look over my books, and + we had a little dispute about some items, and we just jumped at two + hundred and fifty dollars." But he swears that was the actual settlement, + and then we bring in his receipt in writing, dated the 24th of July, 1878, + saying that he received one hundred and sixty-six dollars that day, and + that it was in full of his salary and expenses, not up to that date, but + up to the nth of July, 1878. If his testimony is true, he stole that one + hundred and sixty-six dollars. If his testimony is true, he settled with + Dorsey in full for two hundred and fifty dollars, and then he was mean + enough to go and get one hundred and sixty-six dollars more for the same + time. No, gentlemen, he was all right enough about it then; he told the + falsehood here. + </p> + <p> + Now, what does Dorsey swear? Dorsey swears that he received an order from + Miner to give this man two hundred and fifty dollars. Miner swears that if + Dorsey paid him anything it was on his, Miner's, request. That is a v + perfectly natural proceeding for Mr. Miner to request Dorsey to pay this + man two hundred and fifty dollars. The man came to Dorsey's house. Dorsey + gave him two hundred and fifty dollars upon Miner's order. He was trusting + John R. Miner for the money, and it was none of his business whether Miner + owed it or not, and consequently he did not look at his book. Now, every + fact is consistent with the truth of Mr. Dorsey's testimony; the fact is + consistent with the truth of Miner's testimony; and the receipt of this + man given to Miner on the 24th of July, 1878, demonstrates that he did not + tell the truth, under oath, in this court before you. + </p> + <p> + That is the end of Mr. Moore; that is the end of him. You never need + bother about him again as long as you live. + </p> + <p> + Why, they say, "Why didn't you impeach him?" He impeached himself. "Why + didn't you call so-and-so?" Because we had that receipt; that is why. No + need of killing a man that is dead. You need not give poison to a corpse. + When a thing is buried, let it go. When a man commits suicide, you need + not murder him. When he destroys his own testimony, let it alone; it will + not hurt you. + </p> + <p> + I am not afraid of the testimony of Mr. Moore. If these gentlemen can + galvanize it into the appearance of life, I should be very happy to see + them do it. Everything that he swore upon this stand that in any way + touched the defendants is shown not to be true. + </p> + <p> + Why should Dorsey have told him in 1878 to get up fraudulent petitions? + Even Rerdell does not swear that in 1879 Dorsey instructed him to get up + fraudulent petitions, and certainly he would go to the limit of the truth. + After he made his story out of a piece of true cloth there would be very + few scraps left. He would certainly go clear to the line. And yet, even he + does not swear that when he went West to make contracts, to get up + petitions, he was instructed by Mr. Dorsey to get up a fraudulent petition—not + once. And yet Moore swears that in 1878, when Dorsey was in the Senate, he + told him to get up these fraudulent petitions. It will not do. + </p> + <p> + Mr. Major swears that what he says about it is not true; Mr. McBean swears + that what he says about it is not true; and then we have Moore's own + receipt showing that it is not true. + </p> + <p> + On page 4757 Mr. Bliss says—Moore stands before you, therefore, so + far as all this testimony is concerned, wholly and absolutely + uncontradicted. + </p> + <p> + His testimony was that he was employed by Dorsey; his testimony was that + he was settled with by Dorsey, and the testimony of the receipt that he + signed is that he settled with Miner and not with Dorsey; the testimony of + Miner is that he was settled with by Miner, and not with by Dorsey; the + testimony of Dorsey is that he never had any conversation with him in the + world except at the time he paid him the two hundred and fifty dollars. + They say Rerdell was present at the conversation. Why did they not prove + it by Rerdell after Dorsey had sworn to the contrary? And yet Mr. Bliss + tells you that he is not contradicted—"utterly uncontradicted." + </p> + <p> + Mr. Ker, it seems, has an opinion of this same witness, I believe. He + says, on page 4511: + </p> + <p> + He says he started out and went to work, as these records show, and made + the subcontracts according to his instructions, and got up the petitions + according to his instructions. + </p> + <p> + He swears he did not get up a petition at all, not one; he swears that he + had not time. And yet these gentlemen say that he got up petitions + according to his instructions, and he swears he did not. He swears he told + Major to, and that Major signified his willingness to do it. Major swears + that that is a falsehood. He swears the same with reference to McBean, and + McBean swears that it is a falsehood. Now Mr. Ker goes on: + </p> + <p> + He fixed them up and changed the language a little in some, and in some he + did not take the trouble to change, but he fixed them all so that there + was a space between the writing and the names, so that they could be cut + off and pasted on other papers. + </p> + <p> + He expressly denies that he ever fixed a petition in the world. + </p> + <p> + Mr. Ker. What page? + </p> + <p> + Mr. Ingersoll. You ask the page! Talk to the jury seven days! I say that + this man never fixed up a petition, and he never says that he fixed up a + petition. Where is the page on which he says it? He was willing to do it, + but he had not the time. I will show you that language. There is what they + say about this man. Then he says he got a note from Miner, and went to + Denver and met Miner. That is right. Then Miner offered him a quarter + interest in the routes in this vast conspiracy. + </p> + <p> + Let us find what Moore thinks of himself. We find that on page 1398. He is + a good man, worthy of this case, according to the eternal fitness of + things. I come to this quicker than I thought I would. It is page 1396: + </p> + <p> + Q. Did you get up any?—A. No, sir; I didn't have the time. + </p> + <p> + There it is. Now, of course, Mr. Ker forgot. I call your attention to this + to show how little weight such evidence is entitled to in reference to a + conversation five years ago, when Mr. Ker could not remember this with the + book before him. + </p> + <p> + Mr. Ker. I asked you for the page on which Mr. McBean's testimony appears. + </p> + <p> + Mr. Ingersoll. Mr. Moore is the witness. Mr. Moore swears that he never + got up such a petition. Mr. Ker says he did. He and Mr. Ker will have to + settle their own difficulty. + </p> + <p> + On last Friday, in reply, I think, to a question of Mr. Ker, I stated that + I thought McBean swore that Mr. Moore did not make any arrangement with + him to get up false petitions. In that I was mistaken. Mr. Moore swore + that he made an arrangement with McBean to get up petitions. He did not + quite swear that McBean agreed to get up false and fraudulent petitions. + He just came to the edge of it and did not quite swear to it. Afterwards + McBean was recalled by the Government and the Government did not ask + McBean whether he had ever agreed to get up any petitions or whether he + had ever made any such arrangement with Moore. They did not ask him and we + did not ask him. I do not know why they did not ask him. They probably + know. + </p> + <p> + I also stated that Moore swore that he got his instructions about these + petitions from Dorsey. The evidence is that he got his instructions not + from Dorsey but from Miner; that Miner so instructed him, and that + thereupon he made the bargain to get up such petitions with a man by the + name of Major on the Redding and Alturas route. I make this correction + because I do not want you or any one else to think that I wish any + misstatement made in our favor. We do not need it and consequently there + is no need of making it. You will remember that after Moore swore that he + made a bargain with Major to get up false petitions, Major swore that it + was untrue. You will also remember that Judge Carpenter called for the + petitions that were gotten up upon the routes that Moore had something to + do with, and I think he showed you on one route eleven or twelve + petitions. Mr. Major swears that every petition was honest, that the + statements in each petition were true, and that the signatures were + genuine. All those petitions were shown to you. So that the result of the + Moore testimony is this: Moore swears that Miner told him to get up such + petitions. He then swears that he made that bargain with Major. Major says + it is not true. Moore almost swears that he made the same bargain with + McBean. McBean says nothing on the subject. Then we bring here the + petitions upon those very routes, and especially upon the Redding and + Alturas route, and we find no such petitions as are described by Moore. + That is enough in regard to Mr. Moore upon that one point. + </p> + <p> + There is one little piece of testimony to which I failed to call your + attention on Friday, and to which I will call your attention now. Moore + was the friend of Boone. Boone recommended him to Miner. It was through + Boone that Moore was employed. Now, I ask you if it is not wonderful that + Moore never told Boone that there was a conspiracy on foot? Is it not + wonderful that Moore did not tell Boone, his friend, the man to whom he + was indebted for the employment, "There is a conspiracy in this case. + Senator Dorsey as good as told me so. I know all about it." + </p> + <p> + The fact is he never said one word, and the reason we know it, is that + Boone swears that when he went out on the 7th or 8th of August he never + even suspected it. I cannot, it seems to me, make this point too plain. + Boone had been known by Dorsey for a long time. They were very good + friends. Dorsey had enough confidence in him to select him as the man to + get the necessary information after he had been requested so to do in the + letter. Boone was the man who attended to this business more than anybody + else. Boone was interested with John W. Dorsey. Boone had every reason to + find out exactly what was happening. He was at Dorsey's house, where Miner + was. He talked with Miner day after day. He helped get up the bids. He did + a great deal of mechanical work. He had the subcontracts printed. Yet + during all that time Dorsey never let fall a chance expression that gave + Boone even the dimmest dawn of a hint that there was a conspiracy. Nobody + told Boone. Moore, his friend, never spoke of it. + </p> + <p> + Now, there is one other point with regard to Mr. Moore. Mr. Moore swears, + on page 1371, that Miner offered him a fourth interest in these routes. + That was the conversation in which he said Mr. Miner told him they were + good affidavit men. According to Moore's testimony he then knew there was + a conspiracy, and he understood that he was part and parcel of it. Let me + ask you right here, is it probable that Moore would have been offered a + quarter interest at that time if a conspiracy existed, and if they had + their plans laid to make hundreds of thousands of dollars, and if the + profits had depended upon the affidavits alone? I ask you, as sensible, + reasonable men, if he would have been offered a quarter interest under + those circumstances? Now conies in what I believe to be the falsehood. Mr. + Moore says that the interest was offered to him by Miner, but Miner said + it would have to be ratified by Stephen W. Dorsey. That is brought in for + the purpose of having some evidence against Dorsey. You must recollect, + gentlemen, that this evidence was all purchased. This evidence was all + bargained for in the open shamble. You must recollect that there are upon + the records of this court some seven or ten indictments against A. E. + Boone. You must remember that Moore was Boone's friend. You must remember + that Moore was a part of the consideration that Boone was giving to the + Government for immunity. + </p> + <p> + Mr. Merrick. Is there any proof of that? + </p> + <p> + Mr. Ingersoll. I think there is. Mr. Moore swears as to the number of + indictments against Boone. He was his friend. The jury have a right to + infer what motive prompts a witness. Moore wished to swear enough, so that + Mr. Boone would not be troubled. In my judgment, Mr. Boone, being under + indictment, gave evidence in this case in order that the Government would + take its clutch from his throat. He swore under pressure. That is the + system, gentlemen, that is dangerous in any country. Whenever a Government + advertises for witnesses; whenever a Government says to a guilty man, or + to a man who is indicted, "All we ask of you is to help us convict + somebody else;" whenever they advertise for a villain, they get him. That + is the result of what they call the informer system—an infamous + system. A court of justice, where justice is done between man and man, is + the holiest place on earth. The informer system turns it into a den, into + a cavern, into a dungeon, where crawl the slimy monsters of perjury and + treachery. That is the informer system. It makes a court a den of wild + beasts. What else does it do? Under its brood and hatch come spies; spies + to watch witnesses, spies to watch counsel, spies to follow jurymen, so + that a juror cannot leave his house without the shadow of the spy falling + upon his door-step. That is not the proper attitude of a Government. The + business of a Government is to protect its citizens, not to spread nets. + The business of a Government is to throw its shield of power in front of + the rights of every citizen. I hold in utter, infinite, and absolute + contempt any Government that calls for informers and spies. Every trial + should be in the free air. All the work should be done openly. These + sinister motions in the dark, the crawling of these abnormal and slimy + things, I abhor. + </p> + <p> + Now, to come back to Moore. Upon my word I think he was trying to help his + friend. After Mr. Miner had offered him a quarter interest, then he came + back to Washington. He arrived here, according to his evidence, about the + 11th day of July, I think. He went immediately to see Stephen W. Dorsey. + Recollect that. That was the time Dorsey settled with him without looking + at his books. After he settled with him and gave him two hundred and fifty + dollars he asked him to telegraph to see if the service had been put on + The Dalles and Baker City route. He waited here until he received an + answer, and after that he talked with Dorsey not only about that matter, + but in that conversation Dorsey said, according to Moore, that it took a + good deal of money to keep up their influence in the department. When I + asked him when that conversation was, he said two or three days after the + first conversation. According to the evidence in this case Stephen W. + Dorsey left this city on the 12th of July. This man Moore arrived on the + nth, and he says two or three days after his arrival Dorsey said it took + money to keep up their influence here. When he swears that Dorsey told him + that, Dorsey was in the city of Oberlin, Ohio. Recollect these things. + Whoever tells stories of this character should have a most excellent + memory. + </p> + <p> + Now, there is another thing. When did Miner get back? He got back by the + 24th of July, because on the 24th of July he settled with Moore, and I + believe then Moore went West again. Now, remember there was a contract + made, as Moore swears. He has not got it. Nobody sees it. He says there + was a contract made by which he had a fourth interest in something. He got + back here I believe some time in November, and on the 20th of November he + and Miner settled. I will now look on page 1430 for that settlement. I + want you to see how everything was situated at that time. + </p> + <p> + I find on page 1430 that Mr. Miner settled for everybody with Mr. A. W. + Moore. Remember the situation. Moore knew there was a conspiracy. All the + service was on. You see, this was November 20, 1880. Vaile was in. They + had a man who was close to Brady. Everything was running in magnificent + style. Mr. Moore understood that there was a conspiracy. What more did he + understand? That he had the claw of his avarice in the flesh of a United + States Senator and in the flesh of a Second Assistant Postmaster-General. + Hundreds of thousands of dollars were to be made. He came back here and + settled up and sold out his interest for how much? Six hundred and + eighty-two dollars. Do you believe that? Credulity would not believe it. + Nobody believes it, that is if the rest of the story is true. Why did he + settle with him for so little? He said Mr. Miner told him he hadn't a + dollar. He did not reply to him, "When this conspiracy is completed you + will have plenty. I can wait." No. Miner said he hadn't anything and so + Moore settled for six hundred and eighty-two dollars. Then I asked him, + "You had a contract with Dorsey, did you?" "Yes; verbally." "Did you ever + say anything to Dorsey about it?" "No." "Did you ever claim anything from + Dorsey?" "No." "Did you ever write to him?" "No." "Did you ever say + anything to anybody that you had any claim against Dorsey?" "No." You saw + Mr. Moore, gentlemen, here upon the stand. Do you think he is the kind of + man who would let such a chance slip? It is for you to judge. In my + judgment that is the eternal end of Moore's testimony. We can call him + buried. We can put the sod over his grave. We can raise a stone to the + memory of A. W. Moore. Let him rest in peace, or to use the initials only, + let him R. I. P. That is the end of him. If the Government wishes to dig + up the corpse hereafter let them dig. + </p> + <p> + Mr. Ker. I would like— + </p> + <p> + Mr. Ingersoll. [Interposing.] I don't want to hear from you. + </p> + <p> + The Court. You do not know what he is going to say. + </p> + <p> + Mr. Ingersoll. He may be intending to make a motion that the jury be + instructed to find a verdict of not guilty. + </p> + <p> + Mr. Ker. As Mr. Merrick will have to answer, he simply wants to know the + page. + </p> + <p> + Mr. Ingersoll. If Mr. Merrick wants to know the page he shall have the + page, or anybody that wishes to answer. If counsel had simply asked me for + the page, without getting up in such a solemn manner, I would have told + him. + </p> + <p> + On page 1406, Mr. Moore says that he went to Dorsey and got the money, and + that then Dorsey requested him to telegraph to The Dalles, and that he did + not see Dorsey after he got the answer to his dispatch, I think, for two + or three days. He reached Washington, he says, about the 11th. On page + 1372, he speaks of telegraphing to The Dalles by instructions from Dorsey. + </p> + <p> + Now, gentlemen, I am going to call your attention for a little while to + another witness, Mr. Rerdell. And in the commencement, I need not refresh + your minds with regard to the part he has played. I need not, in the first + instance, tell you about his affidavit of June, 1881, nor his affidavit of + July 13, 1882, nor his pencil memorandum, nor his Chico letter, nor his + offer to pack the jury on behalf of the Government, nor the signals he had + agreed upon, nor the reports he made from day to day, nor the affidavit of + September that he made for the Government, nor of November nor of + February. All these things you remember and remember perfectly. I will + speak of them as I reach them, but I want you to keep in your minds who he + is. + </p> + <p> + I need not call any names. Epithets would glance from his reputation like + bird-shot from the turret of a monitor. The worst thing I can say about + him is to call him Mr. Rerdell. All epithets become meaningless in + comparison. The worst thing I can say after that would have the taint of + flattery in it. You will remember when Enobarbus was speaking to Agrippa + about Cæsar, he says, "Would you praise Cæsar, say Cæsar. + Go no further." And I can say, "If you wish to abuse this witness, say Mr. + Rerdell. Go no further." That is as far as I shall go. + </p> + <p> + You will remember that Mr. Rerdell was in the employ of Stephen W. Dorsey, + and had been for several years. He does not pretend that he was ever badly + used; he does not say before you that Mr. Dorsey ever did to him an unkind + act, ever said an unkind word. In all the record of the years that he was + with him he finds no page blotted with an unjust act, not one. He has no + complaint to make. Under those circumstances he voluntarily goes to see a + man by the name of Clayton, I think an ex-Senator from Arkansas, known to + him at that time to be an enemy of Stephen W. Dorsey, an enemy of his + employer, an enemy of his friend—his friend, whose bread this + witness had eaten for years, whose roof had protected him, who had trusted + and treated him like a human being. Yet he goes to this man Clayton, and + he says, in substance, "I want to sell out my friend to the Government." + He was not actuated exactly by patriotism, although he says he was. The + promptings of virtue may have started him, but after he got started he + said to himself, "I do not see that it hurts virtue to be rewarded." So he + said, "I want some pay for this; I want a steamboat route reinstated; I + want the Jennings claim allowed. Of course I am disinterested in what I am + doing, but I might as well have something, if it is going." "What else do + you want?" The disinterested patriot suggested that he would like to have + a clerkship for his father-in-law. "Anything else?" If you will read his + letter of July 5, 1882, which I will read to you before I get through, you + will see that he says, "If I had remained with the Government I have every + reason to believe I would have had a good position by this time." So he + must have demanded a clerkship for himself—good, honest man. At that + time he did not know, but swore it afterwards and swore it here upon the + stand, that Dorsey had never done anything wrong; and yet he was willing + to sell him to the Government, believing that he had never done anything + wrong. So he went and saw the Postmaster-General. The Postmaster-General + did not appear to take any great interest in the matter. He turned him + over to the Attorney-General. He showed the Postmaster-General what he + had, and read him, I believe, or showed him some memoranda. Then he went + and saw the Attorney-General. The Postmaster-General did not seem to give + him encouragement. Then when he went to see MacVeagh he took with him a + letter-book—I do not know but more than one—but we will say a + letter-book. Now, what was in that letter-book? And, gentlemen, the only + way to find whether a man tells the truth is to take all the circumstances + into consideration. What did he want to do? What was his object? And what + were the means at his command? For instance, it is said that a man left + his house with the intention of murdering another, and that he had on his + table a loaded revolver, and also had on his table a small walking-stick, + and he took with him the walking-stick. You would say he did not intend to + commit the murder; that if he had so intended he would have taken the + deadly weapon. In other words, you must believe that men, acting for the + accomplishment of a certain object, use the natural means within their + power. + </p> + <p> + Now, what did he have in that letter-book? He swears now that in that + letter-book there was a copy of a letter from Stephen W. Dorsey to James + W. Bosler; that the original letter was written by Stephen W. Dorsey. That + press-copy, of course, would show that the original letter was in the + handwriting of S. W. Dorsey. What does he swear was in that letter? He + swears that Dorsey made a proposition to Bosler to go into the business; + told him the profits, and told him that he had to give thirty-three and + one-third per cent, to T. J. B.; that he had already paid him, I think, + twenty thousand dollars, and had more to pay him. According to the + testimony of Mr. Rerdell, that was in the letter-book that he took to Mr. + MacVeagh. Now, recollect that. Why did he not show it? He had forgotten + it. He showed him what he had. Recollect now, that he had a tabular + statement. I think the letter showed so much money to T. J. B., and the + tabular statement thirty-three and one-third per cent, to T. J. B. He had + that tabular statement, and that was in Dorsey's handwriting. He says he + had it. Well, after that, the Attorney-General must have told him, "That + is not enough; I want some more." "Well," he says, "I can let you have + some more." "What more can you let us have?" Well, then he told him about + the red books; I do not know that he said they were red, but he told him + about the books and that those books were in New York, and he would go + over there and get them; that he was going to steal them; he says he went + over to get them, and afterwards admitted, I believe that lie was stealing + them. + </p> + <p> + Now, we must remember the position Rerdell was in. He had been to Clayton, + to the Postmaster-General in company with Mr. Woodward, and to the + Attorney-General in company with Mr. Woodward, and yet there was not + enough. Well, it was all he had. What more could he do? He suddenly found + himself caught in his own trap. He had furnished enough to trouble him, + but not enough to convict Dorsey, and not enough to be promised immunity. + Now, what had he to do? He did exactly as he did with Mr. Woodward in + September, when he made that affidavit, and when Woodward said it was not + enough; he said, "Very well, I will make another," the same as he did when + he made the affidavit of seventy pages in November and found it was a + little weak. He made another, and he would have made them right along. He + had a factory running night and day. Now, he tells you that while he was + talking with MacVeagh, just towards the last of the conversation, the idea + flashed into his brain that he might save Dorsey too. Don't you remember + that testimony? And as quick as he thought of that, he agreed to go to New + York and steal the books. The very last thing that MacVeagh said to him, + according to MacVeagh's testimony, and I believe according to his own, was + to be sure and get the books; that they were all important. So he went, as + he claims. Now, did it occur to him that he would save Dorsey in that way? + Did he think of saving Dorsey by going and getting these books? That was + the last thing, and he was going to get the books to be used as evidence + against Dorsey. + </p> + <p> + In a few days he says he started for New York, and the question arises, + why did Rerdell go to New York at all? Why did he want to see that the + books were in New York? Why did he pretend that he had any more evidence + unless he had it? You see you have got to get at the philosophy of this + man; you have got to find what actuated him; and although in many respects + he is abnormal, unnatural, monstrous, and morally deformed, still it may + be that we can find the philosophy upon which he acted. Why did he say he + was going to New York? Because the Attorney-General told him—he must + have told him—that the evidence he then had was not sufficient. + Rerdell could not break down right there and say, "That is all I have + got." That would give up the fight; that would tell him that he had + endeavored to sell out his friend and nobody would buy the evidence; that + would tell him that he had tried this and had failed; that he had simply + succeeded in showing his own treachery without involving his friend. He + could not stop there. You must recollect the evidence he had, and the + evidence he wanted. + </p> + <p> + Let us see what he had. Mr. Bliss says, "Why did he say the books were in + New York? Why did he not say they were in Washington?" That would not have + given him time, gentlemen. He would have been told, "Go and get them." + Then he could not have produced them. Consequently he put them in the + possession of somebody else, so that if he failed to get them, then he + could say that the other man destroyed them or had hid them; he could have + said, "I have done my best; they did exist, but they have been destroyed, + or they have been hidden, or they have been put out of the way." He wanted + time, and knowing that no such books existed, he could not say, "I have + them in Washington," because then he could give no excuse for their + non-production. He must state it in such a way that he could reasonably + fail; that is to say, that he could give a reason for his failure. He + could not say, "I have them in my house," because he would have been told + to go and get them. So he put them in the possession of another man, so + that, failing to get them, as fail he must, he could give a reasonable + excuse for the failure. + </p> + <p> + Why did he go to New York? I will tell you what my philosophy is: He found + that the Government did not wish to purchase the evidence that he had. He + found that, in the judgment of the expert of the Department of Justice, it + was not sufficient. The next thing was to retrace his steps. He did not + want to jump off of one boat into the sea and find no other boat to rescue + him. He said: "I have been too hasty; I will go to New York." Why? To find + out whether Dorsey had heard of this or not. That is what he went there + for. The inferior man always imagines that the superior knows what he is + doing, and knows what he has done. He found that he was about to fail with + the Government, and then the important question to him was: Has Dorsey + found this out? Can I go back to Dorsey? Or must I go on and be cast away + by him and be refused by the Government? + </p> + <p> + Now let me call another thing to your minds. I will come to it again, but + it forces itself upon me at this place, and it seems to me it ought to be + absolutely conclusive. + </p> + <p> + He swears that on the day after he went to MacVeagh with that letter-book, + in looking it over he found the press-copy of the original letter that + Dorsey wrote to Bosler on the 13th of July, 1879. says that the next day + he found that copy in that copy-book. Why did he not steal the book? + Conscientious scruples, gentlemen! You see he was going to New York to + steal another. Why not steal one that he already had possession of? And + how much better that book would have been than the other that he was going + to get. This was a copy of a letter in Dorsey's handwriting, in which he + admitted that he had paid twenty thousand dollars to T. J. B., and was + going to pay him some more, while that book in New York was not in + Dorsey's handwriting—admitting, for the sake of the argument, that + there was a book—but was in the handwriting of Donnelly or Rerdell. + See? And right there he had the evidence, absolutely conclusive, in the + handwriting of S. W. Dorsey himself, and he did not even keep it, he did + not even steal it, but he gave it back and went to New York to steal a + book that Dorsey did not write. He threw away primary evidence to get + secondary evidence. He threw away that which would have convicted Dorsey + beyond a doubt, which would have made him a welcome recruit to the + Government. He threw that away and went to New York to get another, a line + of which Dorsey never wrote; and then he would have to establish, after he + got that book, that "William Smith" stood for Thomas J. Brady; he would + have to prove after they got that book that "John Smith" or "Samuel Jones" + stood for Turner. Now, gentlemen, do you believe that that man, with his + ideas of honor, with the kind of a conscience he has in his bosom, with + the copy of a letter in Dorsey's handwriting in his possession admitting + that Dorsey gave twenty thousand dollars to T. J. B., would give that up + and then go to the city of New York to steal a book not in Dorsey's + handwriting, and that did not prove that Dorsey had ever paid a cent to + Thomas J. Brady, in which there was one charge to "William Smith," and + that would have to be eked out by the testimony of Rerdell himself, when + he had right there in his own grasp and clutch the press-copy of the + original letter written by Dorsey himself? Do you believe it? There is not + a man on that jury believes it; there is not a lawyer prosecuting this + case who believes it. + </p> + <p> + What else did he have? He had a letter that he himself, as he claims, + wrote to Bosler on the 22d of May, 1880, after he, Rerdell, had been + summoned to appear before a committee of Congress. He had, he says, those + three sheets. + </p> + <p> + What else did he have the morning after he was talking with MacVeagh? He + had the tabular statement in the handwriting of Stephen W. Dorsey, and + over the Brady column, "T. J. B., thirty-three and one-third per cent." + </p> + <p> + What more did that man have? He had the balance-sheets made out, as he + swears, by Donnelly, of those books. Were the balance-sheets just as good + as the books? + </p> + <p> + Now, just think what he had, according to his own testimony: A copy of the + original letter, written by Dorsey to Bosler, in which he admitted his + guilt; a copy of the tabular statement, written by Dorsey, in which he put + down thirty-three and one-third per cent, to T. J. B. What more? Copy of + the letter that he had written to Bosler on the 22d of May, 1880. He had + all that, and he must have had this memorandum, though I will show you + that he had not, and I think I will show you when he made it. And yet he + was going to New York to get some more evidence. He was going to steal + another book in New York that would simply create a suspicion, while he + gave up a book that was absolute certainty. That is the theory. But they + say, "Oh, he did not do that quite." What did he do? He went and had that + copied. He swears that he had copied that letter of May 13, 1879, that + Dorsey wrote to Bosler, in which he admitted that he gave twenty thousand + dollars to Brady. Now, a copy would not show in whose handwriting the + press-copy was, would it? That is a very important point. Who copied it? I + think he said Miss Nettie L. White copied it. We never hear of Miss Nettie + L. White again, though. These gentlemen admit that you are not to believe + Mr. Rerdell on any point that is not corroborated, and when he swears that + Miss Nettie L. White copied the letter you are not bound to believe there + was such a letter unless they bring Miss White or account for her absence. + They did not bring her. That is an extremely important point in their + case, infinitely more important than whether the red books ever existed. + Did Dorsey write a letter to Bosler in which he admitted his guilt? This + man says that he had complete and perfect evidence of it in his own hand; + that he gave that up; that he had that copied by Miss White. And they did + not bring Miss White. Certainly he had no scruples about tearing it out. + He says he tore out his letter to Bosler of the 22d of May, 1880. He had + no scruples about that. He did not refuse to keep the book because it + touched his honor, because in a day or two he was going to steal another + not half as good as that one, not one-tenth part as good. Just think. He + gave up evidence that was absolute and complete, and went to steal + evidence that was secondary and of the poorest character. You do not + believe it. He would have kept that book if he had kept any. If he was + going to steal any evidence, and had the best, he would have kept it. The + trouble was that there was no such letter in that book. There was his + letter of May 22, 1880; no doubt about that; and that man tore it out, and + then he made up one in his own mind, and had it of that date; that is all. + </p> + <p> + So he went to New York, and he swears that he went right up to the + Albemarle Hotel; that it was early in the morning; that Dorsey was not + then up; and that he had a conversation with Dorsey, in which Dorsey + charged him with having had something to do with the Government, with + having gone over to the Government. Dorsey had heard that there was + something going on about that time, and I suppose he asked Mr. Rerdell + about it. Rerdell denied it; said there was no truth in it; that nothing + of the kind, character, or sort had ever happened. + </p> + <p> + Now let us just see whether I can demonstrate to you that Rerdell, in the + conversation he had with Dorsey at the Albemarle Hotel, denied that he had + gone over to the Government, or that he had done anything that was not + perfectly honest, straightforward, and upright. I refer to it now, + although I may come to it again. + </p> + <p> + And, gentlemen, I am sorry for you; I pity every one of you, that you have + to hear all that has to be said in this case. But you must put yourselves, + for the moment, in our places. You must remember that these defendants + have borne this agony, have been roofed and surrounded with disorder for + two years. You must remember that the agents of the Government have + pursued them, they have watched over them and spied them night and day. + You must remember that they have been slandered for years in the public + press, although the tone of the public press is now changing, and changing + in such a marked degree that one of the attorneys here for the prosecution + claimed that we had bought up the correspondents. When you take into + consideration what my clients have suffered, the position they are now in, + fighting this great and powerful Government, I know you will excuse us for + inflicting upon you every thought and every argument that we think may be + for our defence. + </p> + <p> + I am doing for my clients what I would do for you, or any of you, if you + were defendants, and I am doing for them what I would want them to do for + me were I a defendant and they my counsel. + </p> + <p> + Now I am going to demonstrate this. When Mr. Rerdell got to Jersey City he + telegraphed back, according to the evidence of Mr. Dorsey: + </p> + <p> + Up to this moment I have been faithful to every trust. + </p> + <p> + I believe Rerdell swears that he did not send that. He had a + memorandum-book which he took out of his pocket. I think a leaf was torn + from it, and he ran his pencil through this line on the page on which he + had taken a copy of this dispatch, "Up to this moment I have been faithful + to every trust," and says he did not send it. Why did he put his pencil + through that? Because that line would not agree with the testimony he had + given upon the stand. "Up to this moment I have been faithful to every + trust" was in that dispatch. I want to ask you if you believe that Rerdell + could have sent that dispatch to a man to whom he had admitted that very + morning that he had gone over to the Government? Do you believe it? How + perfectly natural it would have been for him to send a dispatch from + Jersey City that harmonized and accorded with his denial of that morning. + </p> + <p> + Just look at that [handing the paper to the foreman of the jury.] Just + read it. I want the jury to look at it. He rubbed it out of his + memorandum-book. When? At the time? No, sir; when he found that he wanted + something to harmonize with his evidence here. Even he had not the brazen + effrontery to swear that he had told Dorsey that very morning that he + (Rerdell) had gone over to the Government, and then that very afternoon to + telegraph him—Up to this moment I have been faithful to every trust. + </p> + <p> + Why, in comparison with that cheek brass is a liquid. What is the next + sentence? + </p> + <p> + The affidavit story is a lie. + </p> + <p> + Why did he leave that in? Because technically that was true. He had not + then made an affidavit, and there is nothing so pleases a man who has made + up his mind to tell a lie as to have mixed with the mortar of that lie one + hair of truth. It is delightful to smell the perfume of a fact in the + hell-broth of his perjury. Just look at that. These two things show that + he had not admitted to Dorsey that he had told the Government anything + against Dorsey. He wanted Dorsey to understand that he, Rerdell, had not + communicated with the Government. Now, if you admit his evidence to be + true, at the time he sent that dispatch he had the stolen book under his + arm, and you, gentlemen of the jury, are asked to believe a man who would + do that thing. I would not. I would not convict the meanest, lowest wretch + that ever crawled between heaven and earth upon such testimony. Never. + Neither can you do it. A verdict must rest upon a fact. The fact must rest + upon the testimony of a witness. That witness must be, or seem to be, an + honest man. And unless a verdict is based upon the bed-rock of honesty, it + is infinitely rotten, and the jury that will give a verdict not based upon + honesty is corrupt. + </p> + <p> + Mr Crane (foreman of the jury.) I notice that this dispatch seems to have + been written with different pencils at different times. + </p> + <p> + Mr Ingersoll—Up to this moment I have been faithful to every trust—Is + written very dimly. + </p> + <p> + The affidavit story is a lie, but confidence between us is gone—Is + in still a different hand. + </p> + <p> + I resign my position and will turn everything over to any one you + designate—Is still another hand. Three hands, three pencils, in the + one memorandum. These papers have been manufactured, and when the + Government said, "This is not enough," another paragraph has been added. + </p> + <p> + How hard it is to perpetrate a piece of rascality and do it well. There + are an infinite number of things in this universe, and everything that is + in it is related to everything else; and when you get a falsehood in it + that does not belong to the family, it has not the family likeness; and + when anybody sees it who is acquainted with the family, he says, "That is + an adopted young one." + </p> + <p> + Mr. Rerdell now says, I believe, that he did not send that line, "Up to + this moment," &c. Dorsey swears that he did. Rerdell then produces + this book and this paper which I have shown to you. + </p> + <p> + Now, let us follow Mr. Rerdell from the Albemarle Hotel. + </p> + <p> + I will show that he crosses himself on almost every fact that he endeavors + to swear to. He swears that he went to Dorsey's; that from Dorsey's he + went immediately to Tor-rey's office; that he then went and got lunch and + then went to Jersey City. He also swears that he got his breakfast before + he went to Dorsey's. In the next examination he swears that he got his + breakfast after he went to Dorsey's, and after he got the book he went to + Jersey City, first walking up and down Broadway for about an hour. He had + forgotten about the lunch. There is nothing in it but a mass of + contradiction. He swears that he went down to Torrey's office. Why did he + not make it earlier, as soon as he got off the boat? Because he did not + have any key to the office. It would not do to swear that he broke into + the office and that nobody ever heard of it, and so he had to put the time + after the office would naturally be open. Well, now we have got him as far + as the office. He swears that he went in there and saw Mr. Torrey. After + chatting a little with Torrey, and telling him the object of his visit, + Torrey took him into the next room and took these books from a shelf or + desk, or something of that kind, and handed them both to him, and he + looked them over at his leisure, while Mr. Torrey went back to his + business. He finally took the journal and left the ledger. Why did he + leave the ledger? I will tell you after a while. Every lie, as well as + every truth, has its philosophy. He took the journal and came along out + with it under his arm, not wrapped up, not concealed. Then he had another + chat with Torrey about the weather or something, and then he went on. Why + did he swear that he had a conversation with Torrey in that office? I will + tell you. When he was giving that testimony, Torrey was in mid-ocean, + between New York and Liverpool. I guess Mr. Rerdell had heard that the man + was away. He thought he would be absolutely and perfectly safe, and so he + said he had a conversation with Torrey. The moment he repeated that + conversation with Torrey, I said, "Where is Torrey?" We telegraphed to New + York and we found that Torrey had left for the old country. We sent a + cablegram to Queenstown and we intercepted him. I think he staid a day in + the old country, and took the next ship and came back, arriving here in + time to swear that Rerdell never visited that office, that he never had + that conversation with him, and that he never got that book from that + office; more than that, that that book never was in that office. Who are + you going to believe, Torrey or Rerdell? + </p> + <p> + Another man was there on that very day, Mr. Mullins. He never had any + recollection of seeing Rerdell until he saw him here. All the books were + kept in the safe except the books that Torrey had in his desk. No such + books were in the safe and no such books were in Torrey's desk. Gentlemen, + no such books existed, and I will demonstrate it to you before I get + through. No doubt the man had some little expense-books of his own. He has + widened them, he has lengthened them, he has thickened them, he has + colored them. He has refreshed other people. When the Government tells a + man, "You have got an office, haven't you?" "Yes." "Well, we want you to + remember this." Then he is refreshed on the subject. The words the + Government speaks are rain and dew and sunlight upon the dry grass of his + memory and it springs up green. He says he has been refreshed. Before I + get through I will show you that these things were proved only by + gentlemen who had been refreshed. + </p> + <p> + Now, why did Rerdell say he took the journal and left the ledger? I will + tell you. There is more in the shirt theory than you would think. He had a + shirt in a paper, folded up just once over the bosom. Unexpectedly lie met + Mr. James on the train. He was very much surprised to meet him, because + James swears he was very much surprised to meet Rerdell. James knew that + he had gone over to New York to get those books, and he asked him, "Did + you get the books?" Rerdell had that beggarly little package. He could not + call that "books," because it was not large enough, and so he had to say + he had a book. That was the reason he said journal and not ledger. He had + too small a package for "books," and consequently he told James he had the + "book," and he is sticking to it; only one book. Another reason: He said + to James, and it was very smart of him, "I don't want to show you what I + have got in this package, because there is a fellow looking," and so the + shirt, in unconscious innocence, reposed unseen. Who was the fellow who + was looking? Chase Andrews. You recollect him. He came into the depot at + Jersey City at the time Rerdell was writing this virtuous dispatch, this + certificate of his honor and of his faithfulness. He shook hands with + Rerdell. Rerdell said he had a carpet-sack, but it was not big enough to + get one of these books in. He wanted the jury to think it was a pretty big + book. He hated to lose a chance of adding to the size of the book, and so + he swore that it was too big to put in the carpet-sack. If he had only had + sense enough to put it in the carpet-sack, and let it alone, we never + could have proven anything about it by Chase Andrews. Andrews would not + have sworn that he looked through the carpet-sack. But Rerdell in his + anxiety to have that book a big book said he could not get it into the + carpet-sack, and consequently must have held it in his hand. Chase Andrews + saw him in the depot at Jersey City, and rode in the next seat in the + Pullman car from Jersey City to Washington, and Rerdell had no book. Who + will you believe, Chase Andrews or Mr. Rerdell? + </p> + <p> + Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of the + jury. + </p> + <p> + It is also claimed by the prosecution that on the evening of the day on + which Rerdell was in New York and sent the telegram from Jersey City. + Dorsey wrote a letter to Rerdell in which he begged him for the sake of + his family, for the sake of his children, and everything to go no further. + I believe it is claimed that after Mr. Rerdell got back here to Washington + he showed that letter to his brother. It struck me as extremely wonderful + that he did not show his brother the book; that was such an important + thing, it being the thing that he went after, being something that was to + decide his fate with the Government. There was nothing about that. Let me + say right here: Suppose his story is true that he told Dorsey that he had + been to the Government. Would Dorsey write to that man a letter begging + him for God's sake not to go further? Would he not rather have sent some + man to see him? He knew at that time that he was utterly dishonest, having + received that very afternoon, according to Rerdell's testimony, a telegram + from Rerdell, in which Rerdell admitted that he had told a falsehood. + Would he then have put himself upon paper? Would he have put himself in + the power of that same man? I ask you, because you know there is about as + much human nature in one person as in another, on the average, and the + only way you can tell what another man will do is by thinking "What would + I do under the circumstances?" + </p> + <p> + I am going to demonstrate to you now with just one point that there were + no such books. When Rerdell came to make the affidavit of June 20, 1881, + Dorsey knew that Rerdell had talked with MacVeagh, James, and Clayton. He + also knew that Rerdell, according to his statement, had promised to go to + New York and get the red book. Rerdell swears in the affidavit of June, + 1881, that he promised MacVeagh to go to New York and get those books. + Dorsey knew at that time whether such books existed or not. If he knew + they did exist then he knew that Rerdell went after them. Why did not + Dorsey ask Rerdell at the time he made that affidavit, "Did you get a book + in New York?" Admitting, for the sake of the argument, that Rerdell's + story is true that the books were there and that Dorsey knew it, would not + Dorsey have asked him, when he was making the affidavit of June 20, 1881, + "Did you get a book in New York? What did you do with it, if you did?" + Rerdell swears that Dorsey did not mention that subject; that it was not + talked of between them. Why? Because both knew that no such books existed. + That is the reason he did not ask him if he got it. He knew that he did + not get it. Why? Because the book was not there to be obtained. Can you + explain that on any other hypothesis? Dorsey knew at this time, according + to the testimony of Rerdell, that Rerdell was dishonest; knew that Rerdell + had tried to sell him out to the Government; knew that Rerdell had + promised MacVeagh he would go to New York and get those books; knew that + Rerdell had been to New York; knew that Rerdell had gotten back, and yet + did not ask him, "Did you get a book?" Would he not naturally have said, + "I want that book that you got in New York. I want it now." It also + appears in evidence that on the very day that Rerdell was in New York and + says he was in Torrey's office, Torrey in the afternoon went to the + Albemarle Hotel to do some writing for Mr. Dorsey. Is it conceivable that + Torrey would not in that conversation have told Dorsey, "Your clerk, + Rerdell, came to the office to-day and I gave him the mail book or one of + those books"? Not a word. That affidavit was made in June, 1881, and was + the affidavit in which Rerdell disclosed what he had done with the + Government, and that he had agreed to get that very book, and yet Dorsey + did not take interest enough in the matter to ask him if he got a book. + </p> + <p> + Mr. Merrick. Is there any evidence of the conversation between Torrey and + Dorsey? + </p> + <p> + Mr. Ingersoll. No. The evidence is that Torrey went there that evening. + You claim that that was the topic of conversation, and that Dorsey sent + dispatches to Rerdell that night and wrote a letter to Rerdell. So, I say, + under the circumstances, and with the excitement then prevailing, it is + inconceivable that Torrey should not have said, "Your man Rerdell has been + at my office to-day, and got one of the books." + </p> + <p> + I say it is inconceivable that he did not tell him, and therefore Dorsey + must have known it had it been a fact, and had it been a fact when Rerdell + made the affidavit of 1881, Dorsey would have said, "I want that book. I + want the book you stole from my office." He did not even mention it. It + was not the subject of conversation. Yet, in that same affidavit, he said + that he agreed to go and get it, and in that same affidavit he said that + no such book ever existed. He swore to that affidavit from friendship. You + see, gentlemen, about how much friendship that man is capable of. He swore + for friendship that no such book existed; he now swears that it did. What + is that for? You want to consider these things. Nobody asked about that + book. The matter drifted along. The summer wore away. Autumn touched the + woods with gold. Nobody ever mentioned the book. Winter came. That book + was in a little carpet-sack hanging in a woodshed. A magnificent place to + secrete property. The snows descended; the winds howled around that + woodshed. The carpet-sack hung there with the book in it. Nobody touched + it. I think the next year, may be that summer, he wrote or telegraphed to + Mrs. Cushman to get the book. It suddenly occurred to him that a woodshed + was not a safe place for it. She got a book. She looked into it enough to + find out it was about the mail business. She put it away; finally that + book was brought from its hiding-place on the 13th of July, 1882, when + Rerdell says he handed it over to Dorsey, and there is not one syllable of + evidence going to show that it was ever spoken of from the time he visited + New York until he brought it to Dorsey, as he claimed, at Willard's Hotel. + What made him give it to him? Dorsey was mad. Dorsey threatened that he + would have Rerdell arrested for perjury, because Rerdell had sworn that + he, Dorsey, was innocent. That is enough to excite the wrath of an + ordinary man. Dorsey was then on trial. The first trial was then going on. + We were right in the midst of it. The year before that Rerdell had + solemnly taken his oath that Dorsey was an innocent man, and here Dorsey + was in a court insisting that he was innocent. Yet he threatened to have + Rerdell then and there punished for perjury because he had sworn that he + was innocent. That frightened Rerdell. I think it was calculated to + frighten any man. + </p> + <p> + Why did Dorsey allow Rerdell to keep that book? There is only one possible + explanation: The book never existed. That is all. Torrey would have told + about it if it had been taken from his office, because I believe the + evidence shows that that affidavit was shortly afterwards published. + Nobody seemed to have taken any interest in that book. All interest faded + away. Now, Mr. Rerdell made that affidavit on the 20th of June, 1881. I + believe, on page 2468, Rerdell swears that when he made the affidavit of + June 20, 1881, he had the copies of the original journal and ledger at + Dorsey's office. Afterwards he swears he had not. He swears that he then + gave them to Dorsey. Afterwards he says they were sent to New York the + year before. I will come to that after awhile. Now, let us see what the + position of affairs was on June 20, 1881. At this time Rerdell had + furnished the Government all the information he had, except the book. Then + they had said to him substantially, "The evidence is insufficient. We want + more." Rerdell agreed to furnish them the books, and went to New York to + get the books. + </p> + <p> + Now, he had Dorsey absolutely in his power, according to his account. What + did he do? He had, according to his testimony, the copy of the letter + Dorsey had written to Bosler on the 13th of May, 1879, the copy having + been made by Miss Nettie L. White. He had the tabular statement in + Dorsey's own handwriting, showing thirty-three and one-third per cent, to + T. J. B. He had the letter that he himself wrote to Bosler on the 22d of + May, 1880. He had the red book. According to his statement, on that day he + had Dorsey in his power. All he had to do was to take the next step and + secure absolute safety for himself and crush his employer. What did he do? + He then said, "I went to the Government and played the detective." He + retreated. He voluntarily put himself in a position a thousand times as + perilous as he had been in before. He put himself in a place where he had + to swear that what he told the Government was a lie, and that he was + simply endeavoring to find out the Government's case and was acting as a + detective. You must recollect that Rerdell is a man who does nothing for + money. He will make an affidavit for unadulterated friendship. He will + make it also from fright. He will make it also, he says, in the interest + of truth. At that time he made an affidavit, as he says, for friendship, + and it is for the jury to determine how much a man like Rerdell—because + you know what he is just as well as I do—would do for friendship. + You have seen him here day after day. You saw him sitting right at the + door when Mr. Ker and Mr. Bliss were demonstrating to you that he was a + guilty wretch, and you saw his face beaming with pleasure. He was + absolutely delighted. Yet when Mr. Wilson stood here and endeavored to + show that the man was not as bad as he said he was, endeavored to show + that his plea of guilty was absolutely false, he slunk away, covered with + the shame of innocence. He did not want to hear that. He wanted it + understood that he was guilty, and that it was the proudest moment of his + life. Now, it is for you to determine how much such a man would do for + friendship. It is for you to determine how you can take advantage of his + finer nature. He had Dorsey in his power, according to his story, but + instead of carrying out his original design he turned against the + Government. Why did he do that? Because of patriotism? No. Why? He did it + for his own benefit, gentlemen. He never acted from any other motive. Why + did he not stay with the Government? Because they would not give him his + price for his evidence. Why would they not give him his price for his + evidence? Because his evidence was not worth it. If he had had the copy of + the letter from Dorsey to Bosler they would have given him his price. They + would have followed him all over the United States to have given him his + price. There was the absolute evidence against Dorsey. There was the + evidence against the man whom Mr. MacVeagh wished to drag down. Why did + they not buy it? Because the man did not have it. Why did he desert the + Government? Because the Government would not give him his price. Again I + ask why would not the Government give him his price? Because he had not + the goods; he had not the evidence. Then what did he do? He sneaked back + and asked protection of the man he had endeavored to betray. That is what + he did. He again asked Dorsey to stand by him. Dorsey did not need this + man. This man needed him, and he instantly deserted the Government and + went back to Dorsey. For the sake of saving Dorsey? No. For the purpose of + saving himself. + </p> + <p> + He had not the evidence. Yet, according to this testimony of his, he did + what I told you. What else did he have? He had the route-book. What was + the route-book, gentlemen? From the evidence it appears that this man kept + a route-book, and that in it he had the name of each route, the number of + the route, where it started from, and where it went to, the name of the + contractor, the amount per year, the name of the subcontractor, the amount + per year, and then a column showing whether it had been increased, and, if + so, how much, and whether it had been expedited, and, if so, how much. He + had that book. He says he was subpoenaed to appear before the + Congressional committee. What book would that committee want? They would + want the book that showed the original contracts, the subcontracts, the + description of the routes, how much the Government paid to the contractor, + and how much the contractor paid to the subcontractor. That was the book + they wanted, and that was the book to hide if any hiding was to be done. + That was the book to have copied. That was the book in which figures + should have been changed, if in any. And yet he never said one word about + that route-book. He had it in his possession. Why should he not expect the + committee of Congress to call for that book? He did not tell you. He did + not have that book copied, and yet that was the book that had in it every + particle of information that the Congressional committee wanted. Not a + word on that subject. + </p> + <p> + It appears, too, in the evidence, that Mr. Rerdell had in his possession + certain notes that passed between him and Mr. Steele about the red books. + Why were not those notes produced in evidence? Mr. Steele was here on the + subpoena of the Government. Why were not those notes produced in evidence? + Not a word about that. Is it possible that those notes were about the + route-book? Why were they not produced? Rerdell went before that + Congressional committee. He did not take any route-book. What did he take? + He said that he had these books made up to take. Did they contain the + accounts of the subcontractors? No. Donnelly swears there were not more + than twelve accounts in the book. What was the use of taking that book, or + those books, before the committee? Another thing: He says that he went + immediately and got those books copied. Would he try to palm off the + copies as originals? Would not the committee ask him the very first thing, + "In whose handwriting are these books?" He could not say, "They are in + mine," because then he would be caught. He would have to say, "They are in + Mr. Donnelly's handwriting." The next question would be, "Where is Mr. + Donnelly?" And the answer would be, "Here in town." The committee would + send for him and would ask, "Mr. Donnelly, did you write in those books?" + "Yes." "Did you make the entries at the time they purport to have been + made?" "No, sir; I copied them from another set of books that Mr. Rerdell + gave to me." He would either say that or swear to a lie. Then they would + say, "Mr. Rerdell, we want the original books," and then he would be + caught. You cannot imagine a more shallow device. More than that, the + books would not have any information that the committee wanted, nothing + about these contracts, and nothing about the amount paid the + subcontractors. If the committee wanted anything they wanted to show that + the Government was paying a large price and the contractors were paying to + the subcontractors a small price. Rerdell says that when he was subpoenaed + to bring his books he never thought of the route-book. He thought of the + red books, and yet the route-book was the only book that had any + information that the committee wanted. How was he to palm that off? Is it + possible to think of a reason having in it less probability, less weight, + less human nature than the reason he gives for having those books copied? + There is another question. If Rerdell expected to palm off the copies as + the originals, why did he keep the originals? For instance. I have a book + here that I don't want Congress to see, and so I have it copied. + </p> + <p> + I am going to swear that that copy is the original; otherwise the device + is good for nothing. Why keep the original and run the perpetual danger of + discovery? Why not burn the original? Why keep the evidence of my own + guilt, liable to be found at any moment by accident, by a servant, by a + stranger? That is not human nature, gentlemen. Then there is another + question: If he were going to have a book copied and then swear that the + copy was the original, he would have copied it himself. If a man intends + to swear to a lie the first thing he does is not to take somebody into the + secret. Why should he have put himself in the power of Donnelly? He was + the man to be the witness before the committee, and if his device worked + he intended to swear before the committee that the copies were the + originals; and yet, by going to Donnelly to have the work done, he + manufactured a witness that would always stand ready to prove that he, + Rerdell, had sworn to a falsehood. What men work in that way? When a man + makes up his mind to swear to a lie does he take pains to go to one of his + neighbors and say, "I am going to swear to a lie to-morrow and I want to + give you the evidence of it. I am going to swear that a copy is an + original. I want you to make the copy so that I can swear to it." Would + not the neighbor then say, "I will be a witness against you in that case. + You had better copy it yourself." Just see what he did. He took pains to + have a witness so that if he swore falsely he could be contradicted and + convicted. Why did he not copy the books himself? After he got the + originals copied why did he not burn up the originals so that nobody could + ever find them in his possession? + </p> + <p> + Let us take another step. Finally, he got before the committee. When he + got before the committee what did he swear? He swore that he kept some + expense-books showing how he stood with the contractors. I think that was + the truth. I think that is what he did keep. He did not tell the committee + about the route-book. Not a word. That was the only book that he concealed + in his testimony. He said he kept some expense-books and those were all + that he kept. He did not tell about the route-book. That is the only book + that he failed to mention. Consequently, it seems to me, that was the only + book he did not want to show. Why? Because he thought at that time they + were going to make a great outcry about what was paid to the subcontractor + and to the contractor and he had no advices from anybody, except from + whom? Except from Mr. Bosler. What did Bosler tell him? Bosler told him, + "I see no reason why you should not exhibit your books and papers." Now, + according to Rerdell's testimony, on the 13th of May the year before, + Dorsey had written a letter to Bosler informing him that he had given + twenty thousand dollars to T. J. B. Bosler knew, if the testimony of + Rerdell is true, that that letter had been written, and Bosler had that + information. He knew if the letter had been copied, too, because every + letter that one receives gives evidence whether it has been copied or not. + And yet, knowing of that letter, he wrote to Rerdell or telegraphed him + that he saw no reason why he should not show all his books and papers. + Nobody believes that. Nobody ever will believe it! The earth may revolve + in its orbit for millions of years, and generations may come and go, + countless as the leaves of all the forests, and there never will be found + a man of average intelligence to believe that story. Just think of it. + Bosler, according to the testimony of Rerdell, had gone into partnership + with Dorsey knowing there was a conspiracy, knowing Dorsey was paying to + Brady thirty-three and one-third per cent, of the profits, and thereupon + the clerk who attended to the business writes or telegraphs to him, and + says he has been subpoenaed to appear before the Congressional committee + with the books and papers, and Mr. Bosler knowing of the existence of the + conspiracy, and knowing that Brady is getting thirty-three and one-third + per cent, writes or telegraphs back that he sees no reason why all the + books and papers should not be presented to the committee. Gentlemen, that + is impossible; it never happened and it never will. + </p> + <p> + Ah, but they say these books did exist. Why? Because Mr. Donnelly copied + them. Let us see whether he did or not. There is nothing like examining + these questions. Mr. Rerdell says that in his interview with Brady, Brady + suggested to him that he had better have them copied. This, I believe, was + on the 21st of May, 1880. Now he swears that in accordance with that view + or suggestion that he received from Brady he had the books copied by + Donnelly. When did he have it done? He had it done after the 21st day of + May, 1880. On page 2638 Donnelly swears that he copied these books in the + latter part of April or the forepart of May. On page 2636, where he was + asked if he had anything to do with copying a book of accounts for + Rerdell, he says that he had; and on being asked what kind of books they + were, says they were a small set of books. Donnelly swears that they + related to the mail business, and seemed to be the books of a firm. At + that time nobody was interested in the matter except S. W. Dorsey. How did + they appear to be the books of a firm? Donnelly swears, on page 2640, + "there were not more than a dozen accounts in the book." Let us see if + these were the mail books. He says there was an account against S. W. + Dorsey; that is one. An account against John W. Dorsey; that is two. + Against Donnelly himself; that is three. M. C. Rerdell; that is four. + Interest account; five. A mail account; six. An expense account; seven. A + profit and loss account, eight; and an account with William Smith, nine. + That is all he gives. But he says they were not to exceed a dozen. On page + 2644 Gibbs says there was an account against Colonel Steele and Mrs. + Steele. I take it they would be in one account. That makes ten. Then there + was an account against Jennings, making eleven; and an account against + Perkins, making twelve. Let us see if we can go a little further. Mr. + Rerdell swears to a cash account; that is thirteen. Also an account + against J. H. Mitchell; that is fourteen; and one against Belford, making + fifteen. You can deduct your Jones and your Smith and have one more + account in the book then than Donnelly swears was in it. He swears they + were not to exceed a dozen. That was the book with all this mail business. + We will follow it up a little. Rerdell says he opened the books according + to the memorandum, and swears consequently that there was a cash account + and an account with J. H. Mitchell. J. B. Belford, I believe, he + afterwards mentioned. Now, according to Gibb's testimony there was an + account with Perkins. Understand I say that the only book he had, if he + had any, was a private book in which he kept his own expense accounts and + his own matters, and it was not a book with which Stephen W. Dorsey had + any connection. I say that the William Smith and Samuel Jones account he + has added for the purpose of having something to sell to the Government. + That is my claim. I say they were his private books. There was an account + with Perkins. You have heard all the testimony, gentlemen. You know all + the contracts in this case. You know all the subcontracts. There is not a + single solitary account in this book with any subcontractor mentioned in + any of these subcontracts except Perkins and possibly Jennings. Who was + Perkins? Perkins was a subcontractor on the route from Rawlins to White + River. That is the route that Rerdell had an interest in himself. + </p> + <p> + Rerdell made the subcontract with Perkins himself, and consequently he had + an account with Perkins in his own private book, and had not any account + with the rest of the subcontractors. We also find, according to Gibbs, + that there was an account against Jennings. Who was Jennings? + </p> + <p> + That brings us to the Jennings's claim. That is the claim that he told Mr. + Woodward about, when he wanted to sell out in the first place, and that is + the claim that he told Mac-Veagh and the Postmaster-General about. + Strangely enough and wonderfully enough we find that claim in this very + book. That shows whether this was a private book or whether it was a book + kept for the accounts of Dorsey. + </p> + <p> + Now, by looking at the Post-Office reports I find that nine hundred and + ninety-four dollars was paid to Rerdell for Jennings on the 14th day of + April, 1880, and the question I ask is did he keep two sets of books at + that time? He produced in court a book of his own, kept at that time with + the Jennings account in it. The book that was copied had the Perkins + account, and why? Because it was a special account in which Rerdell was + interested. They have failed to prove that there was in that other book + any account in which Dorsey was necessarily interested, except the account + kept with Rerdell showing Rerdell's transactions with Dorsey. + </p> + <p> + We now come to the testimony of Mr. Gibbs. Mr. Gibbs says his wife copied + a journal between Christmas, 1879, and the 1st of March, 1880. Rerdell + says that she copied the journal and ledger both. The witness, Gibbs, + gives the color of the book. He says it was not red; it was either brown + or black. Mr. Gibbs remembers nothing about the Smith account, whether it + was large or whether it was small. He finally swears that he does not + really recollect anything about it, except that Rerdell brought the book + there and said he wanted to get a copy made to send to Dorsey in New York, + and that he returned the book and the copy to Rerdell. He swears that he + remembers as names in this book Smith, Jones, and S. W. Dorsey, and M. C. + Rerdell. Those were all he could think of. He does not remember the name + of John H. Mitchell. On page 2646, he says he believes that Rerdell came + to him and asked him during the trial if he recollected the name of + William Smith, and he swears that when Rerdell asked him if he recollected + the name of William Smith, he distinctly told him that he did not. Then he + asked him if he recollected the name of Jones, and he swears that he told + Rerdell when he asked him that question that he did not. I read from page + 2646: + </p> + <p> + I tried not to remember anything of this. + </p> + <p> + How can a man try not to remember? What mental muscle is it that he + contracts when he tries not to remember? That is a metaphysical question + that interested me greatly when the man was testifying, for he said he + tried not to remember. Why did he try not to remember? + </p> + <p> + I didn't want to be called into court if I could possibly help it, and for + quite a long time did not mention the fact that I knew anything of the + books. But when I was called into court, I thought of all the + circumstances connected with the time that I copied the books; and a few + days ago, or a week or so ago, in going home one night, and thinking this + thing over in my mind, and thinking of everything I could think of, my + mind reverted to a conversation I had had at the time, laughing and + looking over the books. + </p> + <p> + It was not only one book, then. + </p> + <p> + And I wrote a great many letters, and read a great many names—They + must have been in the letter-books—and was laughing about the + peculiarity of the names, and even made the remark, "There is even Smith + and Jones in it." + </p> + <p> + What a wonderful circumstance! In copying the books and making an index of + the three letter-books he found Smith and Jones. The difficulty would have + been not to find Smith or Jones. + </p> + <p> + That is the evidence of that man. When Rerdell first went to him, he told + Rerdell distinctly, "I remember no name of Smith; I remember no name of + Jones." And then he waited until Rerdell went on the stand and swore that + he copied those books, and that the names of Smith and Jones were in them, + and then his memory was refreshed, and he came here and swore that the + names of Smith and Jones were there. All of a sudden it came to him, like + a flash, and he subsequently had the conversation with his wife. + Gentlemen, you may believe it; I do not; not a word of it. He is mistaken. + He has mistaken imagination for memory; he has mistaken what Mr. Rerdell + told him now for something he thinks happened long ago. He took the + letter-books, too. May be there is where he found some of his strange + names. + </p> + <p> + Rerdell says, in swearing to the letter which he says was written by + Dorsey to Bosler on the 13th of May, 1879, that he (S. W. Dorsey) took + that book, all his own books that were not used for the mail business, and + boxed them up. When? In 1879. Mr. Kellogg swears that after they were + boxed up they were sent to New York. When? In 1879. And yet Rerdell swears + that between Christmas and New Year's, 1879, those books were at the house + of Mr. Gibbs to be indexed. It will not do. And Rerdell swears that he had + the letter-book containing the letter of May 13, here in 1881, when he + went to MacVeagh, and yet, according to his own testimony, that book was + sent to New York in 1879. And he swears that the three letter-books—and + I will call your attention to them after a while—that he had here, + commenced on the 15th of May, and ended, I think, in April or May, 1882. + He swears that the letter written by Dorsey to Bosler was written on the + 13th of May, 1879, and then he swears that the first letter in the three + letter-books was dated the 15th of May, two days afterward. So he had not + the book here. I knew he did not have it, because if he had had such a + book with such a letter, he never would have gone to New York to steal a + book; he would have stolen that one. + </p> + <p> + Torrey took charge of the books January 27, 1880, and he kept them until + the 1st of May, 1880, in the Boreel Building, and then at that time moved + to 145 Broadway, and kept them there until the last of April, 1882. + </p> + <p> + Now, gentlemen, I will come to those red books again in a moment. Here is + a little piece of evidence about the books. You know it was the hardest + thing in the world to find out how many books this man had, how many times + they were copied, who copied them, and what he did with the copies; and he + got us all mixed up—counsel for the prosecution, the Court, counsel + for the defence—none of us could understand it. "How many books did + you have? What did you do with them?" "Well, I took them to New York. No, + I did not; I had some of them here." Finally I manufactured out of my + imagination a carpet-sack for him. I said, "Didn't you take these books + over to New York in a carpet-sack?" He said "Yes," he did. He jumped at + that carpet-sack like a trout at a fly. Let me call your attention to some + other evidence, on page 2637, near the bottom. Donnelly is testifying: + </p> + <p> + Q. Was it an exact copy of the book?—A. It was not. + </p> + <p> + Q. In what did it differ from the book you were keeping?—There were + some items left out. + </p> + <p> + Q. What accounts did you leave out?—A. I left the William Smith + account out. + </p> + <p> + Q. What did you do with that amount in order to balance the books? + </p> + <p> + Now, I want you to pay particular attention to this answer. + </p> + <p> + A. My recollection is that I carried it to profit and loss. + </p> + <p> + Q. On the books or on the balance sheet?—A. On both. + </p> + <p> + Now, remember, these were the books made out to fool the committee. I + suppose there are some book-keepers on this jury. I suppose Mr. Greene + knows something about book-keeping, and Mr. Evans, and Mr. Crane, and Mr. + Gill. I do not know but you all do. And you know that when you carry an + amount to profit and loss you do not throw the name away; you keep the + name. If you have charged against Robert G. Ingersoll five thousand + dollars, which you never expect to get, and you want to charge it to + profit and loss, you make the charge and you put my name against that. You + put profit and loss against Robert G. Ingersoll's debt. Everybody that + ever kept a book knows that. If you carry an amount to profit and loss you + rewrite the name of the person who owes the debt. So that when he says, + "My recollection is that I carried it to profit and loss," there would be + a name twice in the book instead of once. If it was simply in the book + once it would be, "William Smith, debtor, eighteen thousand dollars." But + if you carry that to profit and loss you must credit profit and loss by + this William Smith amount, and consequently get the name in the book twice + instead of once. And that is what they call covering it up. They were so + afraid that somebody would see an account against William Smith in one + part of the book that they opened another account in the profit and loss + business and put it in again. That would be twice. Now, let us go on a + little: + </p> + <p> + Q. Were there any other accounts transferred in the same way?—A. I + rather think there were, but I am not certain. + </p> + <p> + Q. Did you make the books balance on your copy?—A. Yes, sir. + </p> + <p> + Q. How long were you working on that copy?—A. I was working on it + two evenings and all of one night. + </p> + <p> + Now, recollect, in the copy that he made, he carried the account of + William Smith—and may be Jones, he does not remember—to profit + and loss. + </p> + <p> + Now, let us take the next step. Let us go to page 2269. This is as good as + a play. Donnelly swears that when he made the first copy he carried the + William Smith account and some other to profit and loss. Rerdell swears + that acting upon the hint of General Brady he got a man to do—what? + To make another copy and leave out the items that had heretofore been + charged to profit and loss. Donnelly swears that he balanced the books, + and he is the only man that ever did balance the books, according to the + testimony. After Rerdell had been subpoenaed to appear before the + Congressional committee, he got another man, whom he swears he put to work + on the books, designating the entries to be left out by drawing a pencil + mark through them; that he told him to make up a new set of books, leaving + out those entries, but to leave the books so that they would balance, + taking the entries that were stricken out, and also the same amount that + had been carried to profit and loss, and leave them entirely out. Rerdell + swears that prior to that time these accounts had been carried to profit + and loss, and that he struck out the credits to Dorsey. + </p> + <p> + Then the evidence as it stands is this: Rerdell swears that Mrs. Gibbs + copied the journal and ledger. Gibbs does not swear it, but Rerdell does. + That made four books. Then he got Donnelly to make another set of books + with the William Smith and Dorsey accounts carried to profit and loss. + </p> + <p> + That is six books. After he had been subpoenaed by the committee he got + another man to make a new set of books and leave out the William Smith and + Dorsey accounts and the profit and loss account, and that makes eight + books. And there we are, so far as that is concerned. + </p> + <p> + Now, gentlemen, I have come to one other view of this case. I hope that + you will not forget—because I do not want to speak of it all the + time—that this man Rerdell swears that he had the original + letter-press copy of that letter which he says Dorsey wrote to Bosler. Do + not forget that. He says he had that before he went to New York to steal + the red books; do not forget that. And that he gave that testimony away; + do not forget that. That he says he had it copied by Miss White, and they + do not introduce Miss White to show that she copied it; do not forget + that. Do not forget, too, that he had when he was there the tabular + statement in the handwriting of S. W. Dorsey. + </p> + <p> + Mr. Ingersoll. [Resuming.] Gentlemen, on page 2286 Mr. Rerdell gives the + contents of a letter which he says Dorsey wrote to him the night he, + Rerdell, left New York, and when he says he had the book with him. He + swears, you remember, that afterwards Dorsey tore the letter up. Let me + read you the letter as he says it was written: + </p> + <p> + The letter started out by stating that he did not believe the report that + had been brought to him in reference to myself, and that he also believed + the affidavit story to be a lie. He plead in the letter for the sake of + his wife and children and himself, and his social and business relations, + and the friendship that had long existed between us not to do anything for + his injury; for God's sake to reconsider everything that I had done and + take no steps further until he could see me. It was in that strain, simply + begging me not to do anything further until he could see me. + </p> + <p> + Now, let us analyze that letter, keeping in our minds what Rerdell has + sworn. Rerdell has sworn that when he went to the Albermarle Hotel he told + Dorsey what he had done; that he had had the conversations with MacVeagh + and James. Let me call your attention to the dispatch from Jersey City. + First, Dorsey wrote to Rerdell that he did not believe the report that had + been brought to him; <i>that had been brought to him</i>. He could not + have used that word "brought" if Rerdell had been the bringer. If Rerdell + had made the report to him in person he could not have written to Rerdell, + "I do not believe the report that has been brought to me." The use of the + word "brought" shows that somebody else told him; not the person to whom + he wrote. "The report." What report? There is only one answer. The report + that Rerdell had been in consultation with the Government. He writes to + Rerdell, "I don't believe that report that has been brought to me," and + yet when he wrote it, if Rerdell's testimony is true, he knew that Rerdell + had given him that very report and he knew that Rerdell would know that + he, Rerdell, had told Dorsey that very thing. Second, that he, Dorsey'', + believed the affidavit story to be a lie. There is again in this horizon + of falsehood one little cloud of truth. Rerdell had not made an affidavit. + He had told James, MacVeagh, Woodward, and Clayton what you know, but he + had not made any affidavit, and when he was charged, if he was, with + having made an affidavit, it delighted him to have one little speck of + truth, just one thing that he could honestly deny. That was the one thing. + He had not yet made an affidavit. Third, Dorsey plead with him in the + letter for the sake of his wife, his children, himself, his social and + business relations, and the friendship that had long existed between them, + not to do what? Not to do anything further. According to Rerdell, he told + him in the letter he did not believe he had done anything. Rerdell swears + that he wrote to him in the letter that he did not believe the report; + that is, that he had yet done anything, and then wound up the letter by + begging him, for God's sake, not to do anything <i>further</i>. How came + he to use the word "further"? "Don't take any further steps. I know that + you have not taken any step at all, but do not, I pray you, take any + further steps." That letter will not hang together. Dorsey swears he never + wrote it. Finally, the letter comes down to this: "I don't believe the + report. I do not believe you have done anything. But, for God's sake, do + not do anything more." It is like the old Scotch verdict when a man was + tried for larceny. The jury found him not guilty, but stated at the end of + the verdict, "We hope the defendant will never do so again." The first + part of this letter shows that Dorsey did not believe that he had done + anything. The last part of it shows that he did believe he had done + something and that he must not go further. No one can tell why he + introduced the word "further" into this letter upon any other hypothesis. + Now, I read to you, from page 2287, what Rerdell says happened at the + Albermarle Hotel: + </p> + <p> + He charged me with holding interviews with Mr. James, the + Postmaster-General, and the Attorney-General, and asked me what I meant by + it. I told him my action was in his behalf; that I had been keeping up + with the newspapers, and knowing the facts in regard to this mail + business, what I had done was done in his behalf. + </p> + <p> + That is, he did not deny that he had these conversations, did not deny the + report, did not deny that he had met the Attorney-General and the + Postmaster-General, but said: + </p> + <p> + My action was in your behalf. + </p> + <p> + And then, according to Rerdell, after that Dorsey wrote him a letter, in + which he said, "I do not believe the report," although Rerdell had made + the report to him himself. May be that is the reason he did not believe + it. + </p> + <p> + Now, let me read to you the conversation on his return from New York and + see how it agrees with the letter. It is on page 2288: + </p> + <p> + Mr. Dorsey immediately brought up the conversation that we had had over in + New York, and what I had done by going to Mr. Mac-Veagh, and asked me if I + intended to ruin him. I said no, I did not; it was not my intention to + ruin him; it was my intention to help him out of what I thought to be a + bad difficulty. + </p> + <p> + Q. What did he say?—A. He then asked me if I had done anything + further since I had left him. + </p> + <p> + Yet in the letter that he wrote him from the Albermarle Hotel he said that + he did not believe the report and did not believe that he had done + anything against him. The first thing he asked him when he got here was, + "Have you done anything further against me?" + </p> + <p> + I said no, I had not; I had not been near Mr. MacVeagh. He then says, + "Well, how shall we get out of this?" I says. "Mr. Dorsey, I will do + anything that I can except to commit perjury." + </p> + <p> + A very natural remark for Mr. Rerdell to make. He would do anything but + that. That testimony shows that Dorsey never wrote the letter which + Rerdell says he did write from New York. That testimony shows that they + did not have the conversation in New York that Rerdell says they had. That + testimony shows that they did have exactly the conversation which Mr. + Dorsey swears they had. + </p> + <p> + Now, I come, gentlemen, to the affidavit of June 20,1881. I would like the + letter of July 5, 1882, which is on page 3733. + </p> + <p> + You understand this affidavit was made in consequence of the conversation, + as he says, that he had with Dorsey after Dorsey came back from New York, + in which he said he would do anything except commit perjury, and when + Dorsey told him, "Damn it, what does that amount to when a friend is + involved? I would not hesitate a moment." Consequently he swears that he + made up his mind for the sake of friendship to swear to a lie for Mr. + Dorsey. That is what he says now. On the 5th of July, 1882, while we were + in the midst of the other trial, and when Mr. Rerdell, as he says, + contemplated going over to the Government, and when he would not put + evidence in our hands against himself, he wrote this letter: + </p> + <p> + July 5, 1882. + </p> + <p> + Senator: What I am going to say here may surprise you, while, judging from + certain circumstances that to me are easily to be seen, you may not be + taken by surprise. + </p> + <p> + To commence with this, it will be necessary to go back about a year to the + time when, looking forward to the inevitable result of the star-route + matters—I started to put myself in accord with the Government. At + that time I had no thought of being included in any prosecution or + indictment, supposing that as an agent I could not be held criminally + responsible. Had I for one moment thought it possible nothing could have + changed my mind, even anxious as I was to benefit you. The consequence + was, I listened to Bosler and did what I will ever regret. First, because + of the unenviable notoriety given me in consequence of doing what he + persuaded me to do. + </p> + <p> + Who persuaded him? Mr. Bosler. He writes that on the 5th of July, 1882, + when, as he said, he had made up his mind to go over to the Government, + and when he would not willingly put a club in our hands with which to dash + out his brains. + </p> + <p> + Second, because, let this case go as it may, I am still left under a cloud—That + is a pitiable statement. That man under a cloud!—both with your + friends and acquaintances, and the public generally. + </p> + <p> + Here comes, gentlemen, the blossom and flower of this paragraph: + </p> + <p> + And that, too, almost penniless. + </p> + <p> + Then the letter goes on: + </p> + <p> + These are stern facts, and cannot be ignored, while had I continued acting + with the Government my reputation would have been clear, and no doubt been + appointed to a good position. + </p> + <p> + The Government must have promised the gentleman an office when he went, in + June, 1881, to Woodward and to Clayton and to the Attorney-General and to + the Postmaster-General. According to this letter, among other things he + was to have an office, the steamboat route was to be reinstated, the + Jennings' claim was to be allowed, his father-in law was to get a + clerkship, and according to this letter he also was to have a position. + That is civil service reform! What does he say? + </p> + <p> + At least I have every reason to believe such would have been the result. + </p> + <p> + He would have had an office, he has every reason to believe. Why? They + must have promised it to him. + </p> + <p> + This now brings us to the present time. I have an opportunity to redeem + myself, and think it best to do so, as by so doing I can be entirely + relieved of the indictment. + </p> + <p> + The Government then must have promised him in 1882 that the indictment + should be dismissed as against him. Is it possible that he would tell a + lie, gentlemen? Is it possible the prosecution will say that he lied on + the 13th of July, 1882, but in 1883, having met with a change of heart, he + told the truth? No. + </p> + <p> + In taking this step let me say this: It is the result of much thought and + also of preparation. + </p> + <p> + I think so. The preparation of several papers. + </p> + <p> + I have realized the fact that all you and Bosler desired was to use me, + and when no longer needed I could go to the devil. + </p> + <p> + Well, I think that is where he has gone. + </p> + <p> + Therefore I have concluded to be used no longer, and propose to look out + for myself. + </p> + <p> + To-day I am putting things in order, so as to commence right tomorrow. I + regret this on your family's account, but I too have a family, and owe it + to them to put myself right. + </p> + <p> + You see, gentlemen, he wanted to leave an unspotted reputation to his + children. + </p> + <p> + I deem it as being due to you that I should give you notice of my + intention. Very truly, + </p> + <p> + M. C. RERDELL. + </p> + <p> + Now, gentlemen, he comes on the stand and swears that he made this + affidavit, not being overpersuaded by Bosler, but because Dorsey with + tears and groans besought him to make it. Yet on the 5th of July, 1882, he + says he made it because he was overpersuaded by Bosler, and he says, too, + "Had I remained with the Government my reputation would have been clear, + and I have every reason to believe I would have had a good position." He + says, "I have another opportunity to be entirely relieved from the + indictment." These gentlemen say he never was promised immunity. That + simply shows you cannot believe Mr. Rerdell when he is not under oath, and + what he has sworn to here shows you cannot believe him when he is under + oath. + </p> + <p> + Now I come to the affidavit. I will not spend a great deal of time upon + it. Mr. Rerdell, with extreme ease, without the slightest hesitation, went + through that entire affidavit, picking out with all the facility + imaginable, every paragraph written by Dorsey and every paragraph written + by himself. I was astonished at his exhibition of memory. I finally asked + to look at the copy of the paper he had, and when I got that in my hand I + found that every word that he swore was written by Dorsey had been + underscored with a blue pencil. That accounted for the facility with which + he testified. I found afterwards that that paper had been given him by Mr. + Woodward and that he had gone through and marked such portions as Mr. + Dorsey wrote, according to his testimony, or had marked those that he + wrote, leaving the others unmarked, so that at a glance he could tell + which way to swear. Before I get through with the papers in this case + there is another thing to which I want to call your attention. All the + papers as to which witnesses were called on the subject of handwriting are + marked. I will show you that every one has a little secret mark upon it, + so that the man who swore might know which way to swear simply by looking + at the signature and at no other part. There has been a great deal of + preparation in this case. + </p> + <p> + Now, Rerdell swears as to the parts of the affidavit that Dorsey wrote and + the parts that he wrote. His object in swearing was to entirely relieve + Messrs. James and MacVeagh from having made any bargain with him to steal + Mr. Dorsey's books, and to entirely relieve them from any suspicion, as + well as to relieve every other official of the Government from any + suspicion of having promised him any pay in any shape or manner for the + making of this affidavit. He swears in the first place, that Dorsey wrote + this: + </p> + <p> + My story captured them completely, and I took occasion to refer to the + steamboat route and the Jennings' claim. Mr. James remarked that he knew + all about the Jennings' matter, that Jennings had been badly treated, and + he ought to get the money, and should; that he would investigate the + steamboat route and see if anything could be done; that that was the worst + part, and his special agents had reported it; nevertheless he would see if + something could not be done. + </p> + <p> + On page 2506, in his cross-examination, Mr. Rerdell swears that the words—Mr. + James remarked—were not written by Dorsey, but were written by + himself. On the same page he swears that the words—That Jennings had + been badly treated—were not written by Mr. Dorsey, but were written + by himself. + </p> + <p> + On his examination-in-chief he swore that these words were written by + Dorsey. + </p> + <p> + On his examination-in-chief he swore that Dorsey wrote this: + </p> + <p> + And to further deceive them and learn their plans, carried the letter-book + containing—And then he wrote—the much-talked of Oregon + correspondence. + </p> + <p> + Afterward, when cross-examined, he swears, I think upon the same page, + 2506, that he himself wrote the words: + </p> + <p> + Carried the letter-book containing. + </p> + <p> + That Dorsey did not write them. He also swears in his examination-in-chief + that Dorsey wrote these words: + </p> + <p> + Making only one mistake, or rather slip, by which Mr. MacVeagh could, as a + good lawyer, have detected me, and that was by stating that I had kept a + set of books. + </p> + <p> + On his examination-in-chief he swears that Mr. Dorsey wrote those words. + On cross-examination he admits that Dorsey did not write them and that he + wrote them. + </p> + <p> + On his examination-in-chief he swears that he wrote this himself: + </p> + <p> + He said, "Well, Mr. Rerdell, I am in a position where I cannot make + promises, but if you will place yourself in full accord with the + Government, you shall not lose by it, and I would advise you not to + receive any salary from Dorsey this month. It will be all right." + </p> + <p> + On cross-examination he takes it back, and swears, on page 2503, that + Dorsey wrote the words: + </p> + <p> + It will be all right. + </p> + <p> + He was afraid those words might be given too wide a significance and might + in some way touch the Attorney-General, and consequently he swore that he + swore wrong when he swore that he wrote them, and that as a matter of fact + Dorsey wrote them. Then, on his examination-in-chief with the marked paper + before him, and having plenty of time to manufacture his testimony, he + swore that he wrote the words: + </p> + <p> + He asked me—In his own handwriting, and that Dorsey wrote these + words—when I was going to New York to get those books. I replied, + "On Sunday night." He said, "Don't put it off too long, as they are + all-important." + </p> + <p> + On his examination-in-chief he swore that Dorsey wrote those words, and on + cross-examination he admitted that he wrote every one of those words + himself. When he was cross-examined he had not the paper before him. His + memory was not refreshed by the blue pencil mark. So on his + examination-in-chief he swore that he wrote these words: + </p> + <p> + As I was about leaving he—Meaning the Attorney-General—said, + "Mr. Rerdell, you have put yourself in full accord with us, and I have + this to say, you shall be well taken care of and your matters shall be + attended to." + </p> + <p> + On cross-examination, on page 2500, he swears that Dorsey wrote the words: + </p> + <p> + Your matters shall be attended to. + </p> + <p> + But he still admitted that he, Rerdell, wrote the words and put them in + the mouth of the Attorney-General: + </p> + <p> + You shall be well taken care of. + </p> + <p> + He says in his letter of July 5, 1882: + </p> + <p> + If I had remained with the Government I have every reason to believe I + would have a good position. + </p> + <p> + What next? Mr. Rerdell, in his examination-in-chief, swears that he + himself wrote these words: + </p> + <p> + The next evening I called on Mr. Woodward to see if he had anything more + to say, and he told me a place had been found for my father-in-law, and to + give the application to Senator Clayton; to make the application for the + Interior Department, as it was best not to put him into the Post-Office + Department for fear of criticism; that the appointment should be made at + once. It was all arranged. The next day I saw Clayton, who said the same + thing. + </p> + <p> + On cross-examination, at page 2505, he swears that Dorsey wrote a part of + this; that Dorsey wrote the following words: + </p> + <p> + As it was best not to put him into the Post-Office Department for fear of + criticism. + </p> + <p> + When he testified on direct examination he had this marked paper before + him; in the absence of the paper, on the cross-examination, he takes his + solemn oath that he did not write it, but that Senator Dorsey did. What + confidence can you put in that kind of testimony? I would like to have + you, gentlemen, some time, or I would like to have anybody who has the + slightest interest in the thing, read this affidavit and see whether it is + the work of two or the work of one. You let two men write, one writing one + paragraph and the other another paragraph, and then you read it; there is + no man in the world accustomed to read books that cannot instantly detect + the difference in style, the different mode of expression, the different + use of language. Nobody can see any difference in the writing; nobody can + see the slightest difference in the mode of expression; the sharpest + verbal mechanic that ever lived cannot see a joint between these + paragraphs. They emanated from the same brain; they were written by the + same hand; and if any man, who has ever read one book clear through, will + read that, he will see that one person wrote it all. But Mr. Bliss tells + you that here is a passage that shows the handiwork of S. W. Dorsey, + because Dorsey was a politician: + </p> + <p> + He also said that you, Mr. President, had told Mr. Dorsey you could not + interfere in this investigation and prosecution; that if you did, the + public would say that the President and a Secretary, who shall be + nameless, but whose name I could guess, had taken the money of the + star-route ring while they were in Congress, or the Postmaster-General and + Attorney-General had taken it since, and therefore he (Dorsey) must look + to the courts for vindication. + </p> + <p> + That is the passage upon which Mr. Bliss relies, among others, to show + that this was formed in the brain of S. W. Dorsey; and yet Rerdell swears + that that passage he wrote himself. It will not do, gentlemen. + </p> + <p> + Now, in order that you may know just about how much force to give to that, + let me read you a little from page 2379; and I read this for the purpose + of letting you know the ideas that this man Rerdell entertains of right + and wrong. + </p> + <p> + I want you to get at the moral nature of this man; I want you to + thoroughly understand him. When you examine these affidavits, when you + think of his testimony, I want you to know exactly the kind of nature he + has, and I want you to remember that he came here upon this stand and + swore in this case that he did not consider that it was wrong to interline + petitions; that he did not think it was wrong to fill up affidavits; and + that is the reason he made the affidavit of July 13, 1882. Although he + then knew that these things had been done, still he did not regard them as + wrong. You see it is worth something to get at a man, to get at his + philosophy of right and wrong; it is worth something to know how he + thinks; why he acts; and when you have found that out about a man, then + you know whether to believe him or not. + </p> + <p> + I believe the jury did look at this paper and saw all the parts that had + been marked by blue pencil, and those parts, I believe, he said Dorsey + wrote. That is the paper he had before him at the time he testified in + chief. But when he came to be cross-examined, not having the paper then + before his eyes, he swore in very many important things exactly the other + way. We were all astonished at the facility with which he remembered, he + pretending to know what parts he wrote and what parts Mr. Dorsey wrote. I + want you to understand this man, and before I get through with him, you + will. I want you to know him. + </p> + <p> + Now we come to an exceedingly important thing in this case, in the eyes of + the prosecution. It is the principal pillar supporting the testimony of + Mr. Rerdell. Without that pillar absolutely nothing is left, everything + falls into perjured ruin. + </p> + <p> + The first question that arises with regard to the pencil memorandum (31 X) + is who wrote it, and in order to ascertain who wrote it we must take into + consideration all the facts and circumstances that have been established + in this case. It is already in evidence, as you remember it, that Rerdell + kept a route-book. You will also remember that Mr. Dorsey had books of his + own; that he had a bookkeeper of his own, Mr. Kellogg; that Mr. Kellogg + swears that he kept those books and that nobody else ever made a scratch + of the pen in them; that he kept them up till the fall of 1879; they were + then sent to New York; that Mr. Torrey took possession of those books on + the 27th of January, 1880, and kept them continuously to the last of + April, 1882, and that nobody else ever put a mark in them. That is the + evidence. The evidence also is that there was in those books a complete + mail account. The evidence is also that in those books kept by Mr. Kellogg + were the charges and credits growing out of the purchase of John W. + Dorsey's interest and Peck's interest in the mail routes. + </p> + <p> + Mr. Merrick. Pardon me; point me to that evidence. + </p> + <p> + Mr. Ingersoll. I will refer to it hereafter. I do not wonder, gentlemen, + that they dislike this pencil memorandum. + </p> + <p> + Mr. Merrick. No, sir; I only want to keep you within correct limits. + </p> + <p> + Mr. Ingersoll. I understand that. I do not blame anybody for disliking + that pencil memorandum. + </p> + <p> + Mr. Merrick. You can convict Rerdell as much as you like. + </p> + <p> + Mr. Ingersoll. When you come to show that he is guilty his countenance + will light up with the transfiguration of joy. There will be no more + delighted auditor than Mr. Rerdell when his crimes are painted blackest. + It shows you the moral nature of the man. + </p> + <p> + Now, as I say, the evidence is that there was a route-book kept; that that + route book contained all the information that Mr. Dorsey or any one else + would want about the routes themselves; consequently, that there was no + propriety in keeping any other set of books. Mr. Rerdell could keep books + for himself, but not for S. W. Dorsey. Dorsey had a set of books, and had + another book-keeper. Why should he have another set opened by Rerdell? + Rerdell kept a route-book that gave him all the information that he could + possibly desire. + </p> + <p> + Mr. Wilson. Rerdell did not handle the money. + </p> + <p> + Mr. Ingersoll. Of course not; there was no money at that time to handle; + they had not got as far as the handle. + </p> + <p> + Now, there is another little point: Why should Dorsey voluntarily put + himself in the power of Rerdell by saying, "I have paid money to Brady"? + What was the necessity of it? What was the sense of it? Rerdell was his + clerk. Why should he take pains to put himself, the employer, absolutely + in the power of his clerk? Why should he take pains to make himself the + slave of the man he was hiring by the month? Why did he wish not only to + make Mr. Rerdell acquainted with his crime, but to put in the hands of + Rerdell evidence written by himself? See, gentlemen, you have got to look + at everything from a natural standpoint. Of what use was it to Mr. Dorsey + to keep that account? Dorsey at that time had no partner. Dorsey at that + time did not have to respond to anybody. Of what use was it to him to put + down in a book, "I paid Brady eighteen thousand dollars"? Was he afraid + Brady would forget it? Was he afraid he would forget it? Did he want his + clerk to help him keep the secret, knowing that if the secret got wings it + would render him infamous? Let us have some sense. The Government + introduced it. They also introduced a witness to prove that it was in + Dorsey's writing. Rerdell swore that it was. Their next witness, Boone, + thought part of it might be and part might not be; it did not look right + to him; he rather intimated that Mr. Rerdell wrote part of it. And right + there the Government dropped. No expert was brought. There were plenty of + experts right over here at the Bureau of Engraving and Printing, plenty of + experts in Philadelphia and New York, plenty of judges of handwriting. + Right up here in Congress were twenty or thirty Senators who sat for six + years in the Senate with Stephen W. Dorsey, served on the same committees + with him and had seen him write every day; clerks of those committees who + had copied page after page of his writing. Not one of them was called. The + Government, with its almost infinite power, with everything at its + command, brought no expert. That was the most important piece of paper in + their case. And yet they allowed their own witness to discredit it; their + own witness swore, in fact, that Rerdell had manufactured the + incriminating part of it. And yet they sent for no expert to swear to this + writing. Don't you believe that they talked with somebody? Has not each + one of you in his mind a reason why they did not bring the ones that they + talked with? They left it right there without another word. Now, why? + Simply because they could get no man to swear, except Rerdell, that this + is in the handwriting of S. W. Dorsey. That is the reason. + </p> + <p> + You know that Rerdell "kept this as a voucher." What for? Was any money + paid out on it? No. Was it a receipt for any money? No. But he "kept it as + a voucher." You see he was in a difficulty. How did he come to keep it all + this time? It would hardly do for him to say that he did not try to keep + it, that it had just been in the waste-basket of forgetfulness, and had + suddenly come to life by a conspiracy of chance and awkwardness. It would + not do for him to say that he made it. So that he had to say that he kept + it, and then he had to give a reason for keeping it. What was the reason? + He said he "kept it for a voucher." I suppose you [addressing Mr. Greene., + a juror] have kept books. Is that what you would call a voucher? Yet that + is the reason the poor man had to give. I pitied the man when he got to + the point. I am of such a nature that I cannot entirely, absolutely, and + perfectly hate anybody, and when I see the worst man in trouble I do not + enjoy it much; at least I am soon satisfied, and would like to see him out + of it. Here he was swearing that he had this for a voucher. + </p> + <p> + Now, there are some little things about this to which I will call your + attention. Here is the name of J. H. Mitchell. An account was opened with + Mitchell, but he does not tell him to charge Mitchell with anything; there + is nothing opposite Mitchell's name. How would he open an account with + Mitchell without anything to be charged against him or to be credited? He + put in the index of the book, "J. H. Mitchell, page 21." You turn over to + page 21, and you find Mitchell debtor to nothing, creditor the same—silence. + Not a cent opposite the name on either side. Mitchell was not an employee. + Mitchell was not a fellow that they were to have an account with by the + day. Then John Smith is rubbed out and Samuel Jones written under it. + Rerdell says he wrote Samuel Jones. I say he did not. I want you to look + at it after awhile and see whether he wrote it or not. + </p> + <p> + Now, gentlemen, it so happened that when this pencil memorandum was + introduced it struck me that the M. C. R. looked a great deal like + Rerdell's handwriting, and you will remember that I suggested it + instantly, and said to the jury, "Look at the M. C. R." Now, gentlemen of + the jury, I want you to look at that M. C. R.; I want you to see how the + first line of the M. is brought around to the middle of the letter, and + then I want you to see exactly how the C. and the R. are made. Take it, + Mr. Foreman, and look at it carefully. And, in connection with that pencil + memorandum (31 X), I will ask the jury also to look at this settlement + with John W. Dorsey, made in 1879 (87 X), and compare the initials M. C. + R. where they occur on both papers. M. C. R. occurs twice, I believe, on + this (87 X.) Now look at the formation of the M. C. R. on both papers, Mr. + Lowery, and do a good job of looking, too. + </p> + <p> + Now, gentlemen, this is one of the most valuable pieces of paper I have + ever had in this case, and it is as good luck as ever happened. I want you + to look at the J. W. D. on that paper, and then compare it with the J. W. + D. on this paper; you cannot spend your time better. + </p> + <p> + I did not suppose I would ever find one paper that would have everything + on it. But, as if there had been a conspiracy as to this paper, there is + an S. W. D. on this paper which is substantially the same as the S. W. D. + on the other. The M. C. R., the S. W. D., and the J. W. D. on both these + papers are all substantially the same, and I think when the jury have + looked at it they will say they were written by the same hand. + </p> + <p> + Now, gentlemen, there was the testimony of Mr. Boone that he thinks the + upper portion of this pencil memorandum (31 X) was written by S. W. + Dorsey; that it looks like his handwriting down to and including "profit + and loss," I believe; I may be mistaken; it may be down to "cash;" and + then after "profit and loss" come the names of J. H. Mitchell and J. W. + D., exactly the same J. W. D. that appears on 87 X. + </p> + <p> + Now, what paper is that 87 X? That is an account of John W. Dorsey against + S. W. Dorsey in 1879. He had been out West to take care of some of the + routes, and when he came back he settled, and Mr. Rerdell wrote up the + account. That is 87 X, and I proved that it was made in 1879. I believe + the prosecution thought at first that it was 1878. + </p> + <p> + That paper shows that it was manufactured by the one who wrote this paper, + and by nobody else. + </p> + <p> + Now, as I said before, there is no account against J. H. Mitchell. + Opposite William Smith there are the figures eighteen thousand. And + Rerdell says that he wrote Samuel Jones himself at the suggestion of Mr. + Dorsey. Again I ask you, gentlemen, why would Mr. Dorsey give such a paper + to Rerdell? Why would he give him this false name? Why would he put + himself in his power? It is very natural that he should give the amounts + ten thousand five hundred dollars, ten thousand dollars for John W. Dorsey + and ten thousand dollars for Peck, because the evidence shows that those + transactions actually occurred. The evidence shows, not only in one place + but in many, that the ten thousand dollars was paid to John W. Dorsey, the + ten thousand dollars was paid to Peck, and that the ten thousand five + hundred dollars was advanced at that time by S. W. Dorsey. Consequently + that is natural; it is proper. But my opinion is that he never wrote one + word, one line of the pencil memorandum. It was all made, every mark upon + it, by Mr. Rerdell. He is the man that made it. Did he have it when he + went to MacVeagh? No. Did he have it when he went to the + Postmaster-General? No. Did he have it when he went to Woodward? No. Did + he have it when he made his affidavit in July, 1882? No; or he would not + have made it. Did he have it when he went to Mr. Woodward in September? + No; or else Mr. Woodward would have taken the stand and sworn to it. Did + he have it when he made his affidavit in November? I say no. Who made it? + Rerdell manufactured it for this purpose: That he might have something to + dispose of to this Government; that he might have something to swap for + immunity. He "kept it as a voucher." + </p> + <p> + Why did not these gentlemen bring Senator Mitchell to show that he had + some account with Senator Dorsey in May, 1879? Why did not the Government + bring Mr. Mitchell? They knew that their witness had to be corroborated. + They knew that the law distinctly says that such a witness cannot be + believed unless he is corroborated. They also know that the law is that + unless such a witness is wholly corroborated he cannot be believed; that + you are not allowed to pick the raisins of truth out of the pudding of his + perjury. You must believe him all or not at all. He must be received + entire by the jury, or with the foot of indignation he must be kicked from + the threshold of belief. They know it. Why did they not bring Senator + Mitchell to show that he had some account with S. W. Dorsey in 1879? But + we heard not a word from them. + </p> + <p> + What more? Rerdell says that was either in April, before he went West, or + in May, after his return; and at that time, according to his testimony—that + is, according to this memorandum—eighteen thousand dollars had been + paid to Mr. Brady for expedition. And then following, in the month of + June, before the quarter ended, eighteen thousand dollars more. That makes + thirty-six thousand dollars paid to Brady. What else? Ten thousand dollars + to John W. Dorsey; forty-six thousand dollars that makes. Ten thousand + dollars paid to Peck; fifty-six thousand dollars that makes. He had also + advanced himself ten thousand five hundred dollars; that makes sixty-six + thousand five hundred dollars advanced, and not a dollar yet received from + the Government. And that by a man who gave away seventy per cent, of a + magnificent conspiracy because he had not the money to go on. All you have + to do is to think about this. Just think of the situation of the parties + at the time. I tell you I am going to stick to this subject until you + understand it. + </p> + <p> + Mr. Gibbs swears that the name of Mitchell was not in the books when he + saw them, and yet those books were opened from this memorandum. Gibbs is + the man who has such a control over his mind that he can "try not to + remember." When I was a boy I used to hear a story of a man going around + saying that nobody could control his mind for a minute; that nobody could + think of one thing for a minute without thinking of something else. But + there was one fellow who said, "I can; I can think of a thing a minute and + not think of anything else." He was told, "If you do it, I will give you + my horse, and he is the best riding-horse in the country; if you can say + the first verse of 'Mary had a little lamb,' and not think of anything + else, I will give you my horse, and he is the best riding-horse in the + country." The fellow says, "How will you tell?" "Oh, I will take your word + for it." So the fellow shut up his eyes and said: + </p> +<pre xml:space="preserve"> + Mary had a little lamb, + Its fleece was white as snow, + And everywhere that— +</pre> + <p> + "I suppose you will throw in the saddle and bridle?" + </p> + <p> + Mr. Gibbs is the man who had such control of his mind, and he tells you + that the name of J. H. Mitchell was not in the book. + </p> + <p> + Mr. Donnelly says he does not remember any such name as J. H. Mitchell, + and yet he holds an office. He has the poorest memory for any one under + the present Administration, I ever saw. He does not remember the name of + J. H. Mitchell. Who does remember it? Mr. Rerdell. But Mr. Rerdell does + not say what he had charged to J. H. Mitchell; he does not say what was in + the book as against J. H. Mitchell; he fights clear of that charge. And + why? He was afraid that John H. Mitchell might testify. According, I + think, to Mr. Rerdell, there was a charge against Belford on those books. + I do not know why Belford's name did not appear on the memorandum, but I + will come to Belford afterwards. + </p> + <p> + Mr. Bliss. Mr. Ingersoll, Mr. Donnelly does not mention in any way and is + not asked on the subject of Mr. Mitchell. + </p> + <p> + Mr. Ingersoll. I think he is. I will find it after awhile if I can, and if + I cannot I will admit that you are right. I do not know where it is. I do + not wish to be interrupted. + </p> + <p> + Mr. Bliss. I claim the right. + </p> + <p> + Mr. Ingersoll. Well, go on; the poor man only had seven days in which to + make his speech. + </p> + <p> + Mr. Bliss. I have before me Mr. Donnelly's evidence, and he does not + mention the name of Mitchell in any manner, and is not asked about it, so + far as I can see. I think when the statement is persisted in there should + be some reference given to the page. + </p> + <p> + Mr. Ingersoll. It is on page 2637. + </p> + <p> + Mr. Davidge. And at page 2639, about two inches from the top. + </p> + <p> + Mr. Ingersoll.—It is sufficient for my purpose, which is this: That + he gave the names of all the accounts he could remember, and in that list + of names he did not give the name of J. H. Mitchell. So I think I can + fairly say to you that that man did not remember any account against J. H. + Mitchell. Mr. Gibbs was asked directly whether there was any account + against J. H. Mitchell, and he did not remember any such. Now, the only + person that swears to it at all is Mr. Rerdell. Then you come across this + contradiction: Why should the name of J. H. Mitchell be there with nothing + opposite to it? I do not know. The prosecution, of course, will be able to + find writing of S. W. Dorsey that will resemble some of the writing on + this pencil memorandum. There is no doubt about that. If it was written by + Rerdell in imitation of Dorsey's writing, it is not surprising that + writing really written by Dorsey can be found that looks like it. Why? + Because it was written in imitation of his writing, and therefore you can + find writing of Dorsey's that looks like it; otherwise it would not be an + imitation. The next question arises, Can you find writing of Rerdell's + that looks like it? Yes; 87 X. The M. C. R., the S. W. D., and the J. W. + D. are all exactly like it. Now, is it not infinitely surprising that + Dorsey should imitate Rerdell without trying and without an object? Is it + not perfectly wonderful that this memorandum should be in imitation of + Rerdell's writing, when it was written by Dorsey? But if it was forged by + Rerdell, it is not wonderful that it looks like Dorsey's writing. If + Dorsey wrote it without thinking of Rerdell, I say the accident is + infinitely wonderful that he imitated Rerdell. Which is the more probable—that + Dorsey imitated Rerdell without design and without trying, or that Rerdell + imitated Dorsey with a design, and when trying to do so? That is the way + to put this argument, and I hope the gentlemen will answer it. The + ingenuity that would be displayed in the answer would a thousand times pay + me for the loss of the point. I want them to account for this, how + Dorsey's natural handwriting comes to look like Rerdell's, and how it is + that this looks precisely like Rerdell's in many instances. Why is it, + gentlemen? I will tell you. Mr. Rerdell had written the initials J. W. D., + S. W. D., and M. C. R. so often that when he came to put them upon this + memorandum he forgot to disguise his hand. That is the reason. You find on + 87 X the J. W. D. precisely as it is on the pencil memorandum. You find + the M. C. R. precisely as it is on the pencil memorandum. You see if you + have done the same thing many times with your hand, the hand gets a mind + of its own. It is in that way that you learn to play upon the piano. The + hand becomes educated and follows the keys through all the mazes of melody + without asking one question of the mind. You can write a name so often, + you can make initials so often, that when you come to write them, no + matter what your object is, the hand, educated with a mind of its own, + pursues the old accustomed motions and paths. That is the reason that J. + W. D. and S. W. D. and M. C. R. are exactly in the handwriting of Rerdell + in this pencil memorandum. According to that, Dorsey had paid out in all, + I think, about $65,000, or something like that There is no truth in it, + gentlemen. + </p> + <p> + Now, in order to prepare your mind for the next point I am going to make, + and in order that you may know something about this man Rerdell, I will + give you some further information about him. I do not think you are + sufficiently acquainted with his character, and any little points that I + have I want to give to you. I want to paint his portrait in every + lineament, every mark. I want to give you every hair in his head. Remember + that this witness is to be corroborated. He is to be propped and indorsed. + Everybody admits that he is the pewter of perjury and has to be plated + with the silver of respectability gotten from somebody else. They all + admit that. He is an empty bag. Somebody has to fill him up before he can + stand upright. They admit that. I want to call your attention to a few + things as to which he lacked corroboration. + </p> + <p> + On page 2215, Rerdell swears that Miner told him that the amounts in the + bids were filled in by S. W. Dorsey. On page 4177 Miner denies this, and + says that he filled in the bids with only two exceptions. + </p> + <p> + On page 2216 Rerdell swears that the mail matter for J. W. Dorsey, Peck, + and Miner was handed him by S. W. Dorsey, and that Dorsey said that he was + going to take the business out of Boone's hands. On page 3766, Dorsey + swears that he had no such conversation with Rerdell. + </p> + <p> + On page 2217, Rerdell swears that S. W. Dorsey applied to him to go West. + On page 3768 Dorsey swears that he did not employ him to go West. + </p> + <p> + On page 2218, Rerdell swears that he received instructions from S. W. + Dorsey as to what to do on the Bismarck route. On page 3769, S. W. Dorsey + swears that that is utterly untrue. + </p> + <p> + On page 2219, Rerdell says that he was instructed to establish a <i>paper + post-office</i> sixty miles north of the route. What was that for? + According to his testimony there was a mistake in the advertisement, and + the route was too long, and this was a device to shorten it by adding + sixty miles to it to make a post-office thirty miles off the route, or + sixty altogether, so as to get pay for the increase of distance. If it was + to be a fraud, why put the post-office off the route? Why not have it on + the route? Where would the fraud be if they traveled the sixty miles + except in having a postoffice where none was needed? They certainly would + make nothing from the Government by traveling the sixty miles. If they + traveled the sixty miles they would be paid for that sixty miles, but if + they wanted pay for the sixty miles without traveling that sixty miles, + they would not have put the post-office so far off the route. They would + have put it on the route, or very near to it, and pretended that it was + off the route. + </p> + <p> + Gentlemen, it is infinitely absurd to suppose that Stephen W. Dorsey would + have instructed that man to go out in that country and get up a false + post-office. How long would a fraud like that last and live? How long + could the money be drawn for that service in that country? They say no + human being lived there. Who was to be postmaster? Who was to make the + reports? How long, in your judgment, would it be before the department + would find out that there was no such post-office, no postmaster, and no + mail? No one could think of a more shallow device than that Stephen W. + Dorsey, a man who is blest with as much brain as any man it is my pleasure + to know, would never dream of such an idiotic device. And yet, that is the + testimony of Mr. Rerdell. + </p> + <p> + It may be that Mr. Rerdell when he got out there thought he could start a + town and make money in some other way. But it will not do to say that + Stephen W. Dorsey told him to get up a false and fraudulent post-office + when Mr. Dorsey must have known that the mail could not have been carried + to it but a few days before it would have become known that there was no + such office. They would have to appoint a postmaster and he would have to + live there in his loneliness a hermit of the plain, and would have to make + a report like that from Agate that gave such delight to Mr. Bliss to read. + There was not a letter sent to that place; not one, nor would there be. + Mr. Dorsey knew if there was a postmaster appointed he would have to + report, and in three months from that time he would have to report, first, + that there was no post-office; second, that there had never been any mail; + and third, that he did not expect any. You see it is utterly absurd to lay + such a charge at the door of Stephen W. Dorsey. + </p> + <p> + On page 3769 Dorsey swears that the statement is a falsehood—that he + never did any such thing. He also denies it on page 3924. + </p> + <p> + On page 2220 Rerdell swears that he gave Pennell a petition for a + post-office. On page 2156 Joseph Pennell swears that he never saw the + petition; and on page 2171 that he never signed it, and that none was + sent. + </p> + <p> + On page 2221 Rerdell swears that he was instructed by S. W. Dorsey to + build stations fifteen or sixteen miles apart, and use every third + station. On page 3769 S. W. Dorsey swears that no such instructions were + given. On page 4092 J. W. Dorsey swears that they started to build the + stations about thirty miles apart, and that after he saw General Miles and + was told by that officer that there would be, and must be a daily mail, + then he concluded to build stations between the stations that he had built + going over. + </p> + <p> + That is a sensible, straight story. When he went out they built the + stations some thirty-odd miles apart, and when he talked with General + Miles, General Miles told him that there must be a daily service, and then + he determined to build intermediate stations as he went back. What was + that testimony sworn to by Rerdell for? To make you believe, gentlemen, + that Stephen W. Dorsey when he sent Rerdell out knew that there was to be + expedition, and knew it because he was in conspiracy with the Second + Assistant Postmaster-General. The testimony of John W. Dorsey lets the + light in upon that story. The sun rises, and the mist goes. What is his + story? "I went there and built the stations about thirty miles apart, and + when I talked with General Miles he assured me that there must be + expedition and a daily mail, and then I built stations at the intermediate + points as we went back." That is the story. It is consistent with itself. + </p> + <p> + Is it not wonderful that the Government did not also prove by Pennell that + Rerdell gave him instructions to build the ranches, and told him that he + had been so instructed by S. W. Dorsey? + </p> + <p> + On page 2233 Rerdell swears that Miner told him that Vaile was close to + Brady. On page 4177, Miner swears that it is not true; that he never had + any such conversation. Why did they want a man close to Brady? As I + explained to you before, gentlemen, they had already, according to their + testimony, as they claim, proved that Miner had conspired with Brady, and + yet he was going around trying to find a man close to Brady. Being a + co-conspirator was not close enough. So Mr. Rerdell is corroborated there + again by Mr. Miner who swears that what Rerdell swears is a lie. + </p> + <p> + On page 2224 Rerdell swears that in November, 1878, Miner asked him to + write certain words in a line on petition 40104. On page 4178, Miner + swears that he never asked him to interline any petition. + </p> + <p> + On page 2225 Rerdell swears he had a conversation with Vaile and Miner on + the 20th of December, 1878, at the National Hotel, about his employment, + and that he had a great many conversations there. On page 4020, Vaile + swears that there never was any such conversation. On page 4021, Vaile + also swears that he has no recollection of such a conversation then or at + anytime. On page 4178, Miner swears that the talk was between Rerdell and + himself, and that Vaile was not there. + </p> + <p> + On page 2225 Rerdell swears that Vaile told him that the mail service they + had ought to reach six hundred thousand or seven hundred thousand dollars. + On page 4021, Vaile swears that he does not think he ever said any such + thing—does not think it was possible that he ever said any such + thing. On page 4179 Miner swears that Vaile never made any such statement + in his presence. + </p> + <p> + On page 2226 Rerdell swears that at the instance of Vaile and Miner he + went West, January 4, 1879, to put service on the Rawlins route. On 4022 + Vaile swears that Rerdell did not go West at his instance; that Miner gave + him, Rerdell, a subcontract for the entire pay, for the whole term, and + that Rerdell undertook it on his own behalf. On 4179 Miner swears that he + made the arrangements with Rerdell himself. + </p> + <p> + On page 2227 Rerdell says that Vaile and Miner both told him that the + service would be increased right away, and to make subcontracts with that + in view. On page 4180 Miner swears that he gave him no such directions, + and that Rerdell did all he did on his own responsibility, and that Vaile + did not give him any such authority. It is for you to say., gentlemen, + which of these men you will believe. + </p> + <p> + On page 2228 Rerdell swears that in March, 1879, had a conversation with + Vaile about an affidavit, and received instructions from Vaile or Miner. + On page 4024 Vaile swears that he recollects no such conversation and does + not think he ever had it. + </p> + <p> + On page 2228 Rerdell swears that Vaile said in the presence of Miner that + he could get Brady to accept an affidavit from a subcontractor. On page + 4024 Vaile swears that he is very sure that he did not say so, and that he + never asked Brady any such question. On page 4182 Miner swears that he + never made any such statement in Vaile's presence. + </p> + <p> + On page 2228 Rerdell swears that a day or two after Vaile says he had seen + Brady, and that Brady had agreed to accept an affidavit from a + subcontractor. On page 4024 Vaile denies this. + </p> + <p> + On the same page, 2228, Rerdell swears that he was instructed by Vaile and + Miner to write to Perkins and get him to send his affidavit. On page 4024 + Vaile swears, "Never!"—that he did not know Perkins was a + subcontractor. On page 4182 Miner swears that he has no recollection of + it, and that he never instructed Rerdell to send any form of affidavit to + Mr. Perkins. + </p> + <p> + On page 2230 Rerdell swears that Miner wrote a form of affidavit. On page + 4182 Miner swears that he has no recollection of it, and that he never + instructed Rerdell to send any form to Perkins. As a matter of fact the + Perkins affidavit is in the handwriting of Rerdell. Yet he tells you that + Miner wrote the form. It will not do. + </p> + <p> + On page 2231 Rerdell swears that he filled in blanks under the direction + of S. W. Dorsey—that is, of the Perkins affidavit—and filed it + under the direction of S. W. Dorsey. On page 3793 Dorsey swears that he + never knew there was such an affidavit, and that he never gave such + instructions; and more than that, that he never at any time or place gave + Rerdell authority to change any affidavit or any petition that was to be + filed. + </p> + <p> + On page 2233 Rerdell swears he was instructed to make the subcontract + without any reference to expedition; and that he, Dorsey, would guarantee + the payments if they were not filed. On page 3771 S. IV. Dorsey swears + that he gave him no such instructions. + </p> + <p> + On page 2234 Rerdell swears that affidavits of Peck and Dorsey were + acknowledged in blank. On page 4189 Miner swears that so far as he + remembers they were filled in before they were signed. + </p> + <p> + Again, it may be proper for me to say here: Why did not the Government + call J. S. Taylor, the notary of New Mexico, to prove that the affidavits + were in blank when they were sworn to by John M. Peck? Why did they not? + The law presumes that every officer has done his duty, and when we find at + the foot of an affidavit the certificate of a notary public the law + presumes that the paper above it was in the precise condition at the time + the certificate was placed there in which it is then. That is the + presumption of law, and there is only one way to overcome that + presumption. You must prove to the contrary. One of the easiest ways on + earth to do that is to bring the officer. They did not bring J. S. Taylor + here from New Mexico, the man before whom Peck acknowledged the affidavit + in this case. It would have been easy to have him come, and to have asked + him whether Peck did not swear to all these affidavits in blank. They did + not call him. They had him here once and that was enough. They did not + call him this time. They did not call Rufus Wainwright, of Middlebury, + Vermont. He is the officer before whom John W. Dorsey swore to these + affidavits. The gentlemen of the prosecution say the affidavits were in + blank, and yet they dare not put upon the stand the notary before whom + they were sworn to. It was not because they did not think of it. It was + not because they had not the money. The Government had money by the + million and agents by the thousand. You recollect how they tried to prove + the destruction of those dispatches in the Western Union office. You + recollect how they brought here the superintendent, how they brought here + agent after agent, how they brought here the man that went around and + collected the dispatches, and the man that drove the wagon, and the man + that owned the wagon, and the boys that received the dispatches on the + street, and the man in the cellar that received them after they got there, + and the man that bought them, and the book-keeper that made out the check + to pay for them. They brought the man that receipted for them at the + railroad, and they followed them from the railroad to Holyoke, + Massachusetts, and brought the superintendent of the factory and the books + of the railroad to show they had arrived. They followed those dispatches + from paper to pulp and yet it never occurred to them to send to Middlebury + and get Rufus Wainwright. They never thought to have J. S. Taylor + subpoenaed from New Mexico. They had all the conveniences of modern + civilization at their command and yet they never thought of getting + Wainwright or Taylor. + </p> + <p> + On page 3771 S. W. Dorsey swears that he never instructed Rerdell to get + any affidavits in blank. On pages 4126, and 4107, J. W. Dorsey swears that + he made none in blank; that he has no recollection of any such thing. On + page 2240, Rerdell swears that he had a conversation with S. W. Dorsey + about getting blank affidavits. On page 3771 S. W. Dorsey denies it. On + page 2241 Rerdell swears that S. W. Dorsey instructed him to make up the + affidavit on route 41119 and gave him the per cent, of the increase of + pay. What does he say there? From one hundred and fifty to two hundred per + cent. + </p> + <p> + Mr. Merrick. That was afterwards corrected. + </p> + <p> + Mr. Ingersoll. I thank you for the suggestion. That happened on Friday. We + adjourned until the next Monday morning. He came in the next Monday + morning, and he said that he had made a mistake, and that it ought to be + from one hundred and fifty to two hundred and fifty per cent. I + immediately went and got the affidavits on the Toquerville route, because + I said the percentage must be over two hundred per cent, in that affidavit + or he would not have changed. I found in the affidavit that it was two + hundred and fifty-five per cent., and I found that was why he changed. I + followed that out, and I found that was the same route upon which Mr. + Rerdell stole nearly five thousand dollars, according to the testimony of + S. W. Dorsey, and Rerdell did not deny it. So much for Toquerville and + Adairville. We will come to it again perhaps. + </p> + <p> + Let me give the pages where all these matters are found. On page 3772 + Dorsey denies the conversation about the affidavits, and also on page + 3773. Rerdell's, change of his evidence will be found on page 2277. + </p> + <p> + On page 2243 Rerdell swears that while he was in jail S. W. Dorsey had a + key to what he called his, Rerdell's, office. On page 3735 S. W. Dorsey + swears that he never had a key to Rerdell's office, and that he never was + in the office but twice, both times with Rerdell, and that he never took a + paper out of the office except what Rerdell gave him. It will also be + remembered that when Rerdell was asked in his examination-in-chief whether + anybody had a key to his office he replied that S. W. Dorsey had a key to + his office. He did not at that time state that his wife had a key. Why? + Because he wanted it understood that S. W. Dorsey was the only person that + had a key, and that S. W. Dorsey, while Rerdell was in jail, went to that + office and opened it and robbed it. On cross-examination I made him swear + that his wife had a key, and we afterwards found that his wife went there. + He knew she had a key. Still, in his cross-examination, when asked who had + a key, he said S. W. Dorsey. What was that for, gentlemen? + </p> + <p> + So that you would Infer that S. W. Dorsey was the only person who had a + key, and that he went there and robbed that office, as I said before. On + pages 2634 and 2635 Mrs. Cushman swears that she went to Rerdell's office + with Mrs. Rerdell. When? About six o'clock in the morning. And that they + found the office open? No. They found the office locked, but found papers + in a confused condition, and took away some papers. They were there about + fifteen minutes. Recollect this was the third morning that Rerdell was in + jail. Rerdell went to jail Monday evening. That made the visit of Mrs. + Cushman and Mrs. Rerdell on Thursday morning, and they went there at six + o'clock. Keep that in mind. Rerdell got out of jail on Friday. George A. + Calvert, the janitor, visited every room frequently. His testimony is on + page 2672. He swears he found the door of Rerdell's room unlocked. When? + The day before Rerdell got out of jail. What time of day? In the morning. + What morning was that? Thursday morning. When did Rerdell get out of jail? + Friday morning. When did Mrs. Rerdell and Mrs. Cushman visit the room? + Thursday morning. What time in the morning? Six o'clock. When did Calvert + find the room open? That same morning. The women swear that when they went + there the room was locked. Now the question arises, who opened it? The + women. That is all there is to that. + </p> + <p> + Mrs. Rerdell, on page 2635, swears she got the key on the second day after + Rerdell's incarceration, in the evening. That would be Wednesday evening. + She used it the next morning, Thursday. + </p> + <p> + On page 2247 Rerdell swears that on the 20th of December, 1878, Vaile + promised him a good salary. On page 4021 Vaile swears that he has no + recollection of any such promise. That is what they call corroboration. On + page 2348 Rerdell swears that in May, 1879, S. W. Dorsey said, "You know + that John is a man of very little judgment. He does not know how to talk + to these contractors." On page 3773 S. W. Dorsey swears that there never + was any such conversation. + </p> + <p> + On page 2249 Rerdell swears, "As secretary and manager, I kept the books + for a short time." On page 3636 W. F. Kellogg swears that he, Kellogg had + entire charge of Dorsey's books from the summer of 1872 to the fall of + 1879, and that nobody else ever made a scratch of a pen in those books. On + page 2270 Rerdell swears that Dorsey and Bosler were having a settlement + in New York and sent for the books, and that he took the original books + over and left them there, and that he went over to New York in June, 1881, + and saw both books there and brought the journal over and left the ledger. + On page 3955 Dorsey swears that the first settlement he had with Bosler + was in December, 1879, or January, 1880. Rerdell swears that the time he + got the copy made of his journal by the Gibbses, was between Christmas, + 1879, and 1880. Dorsey swears there was not another settlement until + November, 1882. The first settlement being in 1879, and Rerdell swearing + that he took the books over for a settlement, shows that he did not have + them here in Washington to be copied at the time he says and at the time + other people swear that they copied them. + </p> + <p> + On page 3788 S. W. Dorsey swears that he never sent for any transcript, + and that he, Dorsey, referred to the route-book, and that Rerdell never + sent any such book or books as he claimed. On page 2271 Rerdell swears + that he gave copies of the journal to Dorsey in June, 1881. That was the + time that he made the affidavit. His language by any natural + interpretation means that lie handed those copies over to Dorsey at the + time he made the affidavit on the 20th of June, 1881. On page 3988 Dorsey + swears that he did not, and on page 3785 he again swears that he never had + them. On page 3784 he again swears that Rerdell never brought any book to + him except the route-book. On page 2271 Rerdell swears that Dorsey, on the + 13th of May, 1879, him to make up a statement of the routes showing the + profits, and that he thinks he gave it to Bosler. On page 3875 Dorsey + swears that he never made up any such statement by his direction, and that + he never gave Rerdell such an order. Why should he? According to Rerdell's + own statement, in which there is not a particle of truth, Dorsey, on the + 13th of May, 1879, that very day, had written a letter to Bosler, in which + he told him about the profits, about how much it had cost him, and about + how much it would cost him, and about how much the profits would be, and + how much he paid to Brady. After writing such a letter to Bosler, + containing all the facts, why would he want Rerdell to make up a statement + that was already in the letter itself? Nobody can answer. There is not + genius enough in this world to make the answer. + </p> + <p> + On page 2272 Rerdell swears that he saw 7 B, which is a petition, in 1879, + and that there were three words in his own handwriting that were not there + when he first saw it, the three words being "and faster time." He also + swears that he was instructed to put them in by S. W. Dorsey. I now say + that Mr. Rerdell never wrote those three words. On page 783 it appears + that 7 B was filed April 18, 1879. On page 3786 S. W. Dorsey swears that + Rerdell's statement is false. I will now turn to the testimony of George + Sears about the petition, 7 B, which Mr. Rerdell swears was altered by + interlineation or the addition of three words, "and faster time." The page + is 829. + </p> + <p> + Here comes a witness of the Government, apparently a good and honest man, + and he swears that the words "and faster time" were in that petition when + he signed it. I will take his word for it. I will take his guess as + against the other man's oath. + </p> + <p> + On page 2273 Rerdell swears that he altered 11 B and 12 B by instructions + of S. W. Dorsey. Now, gentlemen, Stephen W. Dorsey got such a momentum of + crime on him and got running at such a rate that he could not stop, and + whenever a petition came in he had it altered without reading it. It did + not make a bit of difference what the petition asked for. He just said to + his clerk, "Look and see if there is not any line you can add something + to. I want something put in it, and I want it put in now." Mr. Rerdell + says he did these things without any thought. He just made the changes as + he was told, without considering whether it was right or wrong. He told + you here on the stand that at one time he was requested to get a petition, + and he had a lot of names on hand, and so he just wrote a petition and + stuck the names to it. He could not even remember the route it was on. It + was a matter of so little importance that he did not charge his memory + with it. He was told to get a petition in the regular way, and instead of + doing that he said he took some names that he had and just wrote a + petition and stuck the names on, because that was easier; and it was a + matter of so little importance he really did not remember. He was like the + gentleman in Texas who was tried for murder, but did not remember the name + of the man he killed; he did not charge his mind with it. + </p> + <p> + Now for 11 B: + </p> + <p> + Hon. D. M. Key, Postmaster-General: + </p> + <p> + We, the undersigned, citizens of the State of Colorado, residing near and + getting our mail at Muddy Creek post-office, on route 38135, from Pueblo + to Greenhorn, respectfully represent—I never noticed before that the + "p" is interlined in the word "represent." I have no doubt that was done + by order of Dorsey—that it is necessary that the service on said + route should be increased from two trips per week to six trips per week, + and a faster schedule. This section of the country is being rapidly + settled by people of intelelgence, and we ask the increased service for + the benefit of us who have already made our homes here, and also as an + inducement to others to settle. We also request that the schedule time be + reduced so as to run from Pueblo to Greenhorn in eight hours, so that + citizens along the route may get their mail at a seasonable hour. + </p> + <p> + I have read the petition as it was in the first place. The Government + tells you that after that petition came here, and after it had been + submitted to Stephen W. Dorsey, he told his clerk to add in the first part + of the words "on quicker time;" and yet if he had read the last paragraph + he would have seen quicker time was there called for. Rerdell says Dorsey + told him to insert the words "on quicker time," and when I read this last + paragraph to him he was stuck. Then what did he say? When he got into that + little corner and was looking for a mouse-hole, he said he didn't read it + and didn't know it was there. Do you believe that a man like Stephen W. + Dorsey would deliberately have a petition changed, would deliberately + forge a petition, without knowing what was in it and without knowing + whether the necessity existed for changing it or not? That falsehood has + not even a fig-leaf to cover its absurdity. + </p> + <p> + Here is 12 B. It would not have taken long to have read that. Rerdell said + Dorsey had him put in the words "and a faster schedule." I will read the + last paragraph to that: + </p> + <p> + We also respectfully request and urge that the running time be reduced so + as to run from Pueblo to Greenhorn in eight hours, so that citizens along + the line may get their mails in a seasonable hour. + </p> + <p> + He says Stephen W. Dorsey, a man of sense, got that petition, read it all + over, and then told this fellow to put in "and a faster schedule" when + right in the next paragraph it asked for eight hours. A man who will swear + that way had rather tell a lie on ninety days' credit than tell the truth + for cash. Just look at it. That is what they call a corroboration. The + more you look at this testimony the more absurdities you find. Every truth + has an infinite number of signs. Every truth has to fit an infinite number + of things. Infinite wisdom could not manufacture a falsehood that would + stand the test of investigation. + </p> + <p> + On page 2272 Rerdell says, speaking of the three petitions, 7 B, 11 B, and + 12 B, "We," meaning S. W. Dorsey and himself, "had examined these + petitions together, and he," meaning S. W. Dorsey, "told me to put in the + clause for expedition." Now, 7 B was filed April 18. That is the day he + left for the West, and 12 B were filed on the 8th of May. If they had them + all at one time together, and if he and Dorsey had talked about them, why + were they not filed at the same time? Why was one filed April 18th and the + other two on the 8th of May? That testimony of Rerdell's will not do. + </p> + <p> + On page 2279 Rerdell says that he found among Dorsey's papers the tabular + statement, about the middle of April, 1879. the first column was the + number of the route; in the second the termini; in the third the pay; in + the fourth the anticipated pay by percentages, and in the fifth the + percentage to T. J. B., thirty-three and one-third, with the figures + carried out at the end of the column. He tells you that he had that + tabular statement when he first went to MacVeagh. That tabular statement + was in the handwriting of S. W. Dorsey. Yet the Attorney-General was not + satisfied. He wanted that backed up by a book not in the handwriting of S. + W. Dorsey. That will not do. Rerdell also tells you that at the time he + went to the Attorney-General he not only had that tabular statement, but + he had a letter-press copy of the original letter that Dorsey wrote to + Bosler on the 13th day of May, 1879. He had that letter, the original of + which was in Dorsey's handwriting, in which he admitted he had paid Brady + twenty thousand dollars. He had the tabular statement in Dorsey's own + handwriting in which he was to pay thirty-three and one-third per cent, to + Brady. Yet the Attorney-General did not think there was sufficient + evidence, and said, "You had better go to New York and steal a book that + Dorsey never wrote a word in." Oh, no; that will not do. + </p> + <p> + On page 2280 Rerdell swears that he lost that memorandum. I guess he did. + On page 3785 S. W. Dorsey swears that he never made any such memorandum. + On page 2280 Rerdell swears that he employed Gibbs and wife to make a true + and correct copy of the books in March, 1880; that he was directed by S. + W. Dorsey to send him a true transcript of the books in order to settle + with Bosler, and that Gibbs and wife copied the journal and ledger, and + that he sent the copy to New York. On page 3788 Dorsey swears that he + never heard of the employment of Gibbs and wife, and that he never + received any such books or transcripts. On page 2644 Gibbs swears that his + wife copied only the journal, not the ledger. Yet Rerdell swears that he + copied the journal and the ledger. On page 2644 Gibbs again swears that + Rerdell brought him one book. What color was it, red, brown, or black? + Rerdell says he took him two red books. Gibbs swears he got one brown book + or one black book. That is what they call corroboration. On page 2320 + Rerdell swears with regard to the paper 2 A, that the words, "schedule + thirteen hours" were written by Miner. If those words, "schedule thirteen + hours," were not written by Rerdell, then—they were written by + somebody else. [2 A handed to Mr. Ingersoll.] I guess this is the petition + that was fixed up. It looks as if it had been to a hospital. Rerdell says + Miner wrote the words "schedule thirteen hours." Just look at that word + "thirteen," gentlemen. + </p> + <p> + You have no idea how it affects your imagination and brain to be indicted + seven times. On page 2209 Boone swears with regard to this same paper and + the same words, that there is nothing in the handwriting to indicate that + it was written by Miner; that it is a back-hand; a changed handwriting. On + page 4186 Miner swears that it is absolutely not true; that the words + "schedule thirteen hours" are absolutely and positively not in his + handwriting, and further that he never filed the petition. Gentlemen, + evidence of handwriting is very unsatisfactory necessarily. Men do not + always write the same. The same man does not always write the same hand. + There is the difference of pen, the difference of ink, the difference of + paper, the difference of position, and the difference, too, of the man's + feelings. At one time he feels in splendid health and at another time he + may be tired and worn out. The paper may not be in the same position. The + slope of the desk may be different. Countless reasons change the + handwriting of a person, and when a man swears that certain handwriting is + or is not another's handwriting he must swear on the general appearance; + he must swear on the impression that it first makes upon him. + </p> + <p> + I know Mr. Smith and I know Mr. Jones, but it may be that I could not + describe the differences in the faces of the two men so that a stranger + could afterwards tell them. Yet I know them. It is the effect of all the + features upon me. I cannot say it is because of the ear of one, or his + nose, or his mouth. I know the combination. I remember the grouping of the + features and the form, and that is all I remember. If I am shown a paper + and asked, "Is that Mr. Smith's handwriting?" I say it is, or I say no. + Why? Because it looks like it or it does not look like it. I cannot + recognize it because an "e" is made in a certain way or because a "d" is + turned in a certain way, because the next day he may turn it the other + way. You have got to go upon the general impression. On page 2336 Rerdell + swears that the oath on route 38140, marked 5 E, was filled in by S. W. + Dorsey; that the word "twelve" was written by him, Rerdell, after it was + filed, and was written because Turner told him that the schedule must be + twelve hours; that Turner handed him the oath and he thereupon changed the + "fifteen" to "twelve." On page 3355 Turner swears that he has no knowledge + of any alteration in any affidavit. On page 3793 S. W. Dorsey swears that + he did not know there was any such affidavit; and he also frequently + swears that he never asked Rerdell to change any affidavit that had been + filed, and that he never gave any such orders. These gentlemen find one + affidavit about which we did not ask Mr. Dorsey particularly and they say, + "You have not contradicted that." When a man swears that he never gave an + order about any affidavit, that covers every affidavit. + </p> + <p> + On page 2337 Rerdell swears that the oath marked 20 F, on route 38145, was + filled in by him after it was signed, under the direction of S. W. Dorsey. + On page 3793 Dorsey denies giving any such directions. + </p> + <p> + On page 2338 Rerdell swears that blanks in the oath 22 F, the second oath, + were filled in by S. W. Dorsey, but will not say whether before or after + execution. On page 3771 Dorsey says he does not remember doing any such + thing; but certainly there is no evidence that Dorsey did this after the + affidavit had been made. + </p> + <p> + On page 2339 Rerdell swears that the words "ninety-six" in the petition 14 + H, were written by Miner. Boone, on page 2709, declines to say that Miner + wrote them. On page 4273 Miner swears that the words are not in his + handwriting, that he never wrote them. On page 2298 Rerdell swears that he + signed a check "S. W. Dorsey by M. C. Rerdell," and that he had that check + at home. It may be that is one of the checks for June drawn upon + Middleton's bank that we could not find. + </p> + <p> + On page 2340 Rerdell says that the oath marked 8 I, on route 44140, was + filled in by him in Washington after it was signed and sworn to, under the + direction of S. W. Dorsey. On page 3792 S. W. Dorsey denies that he gave + any such directions. + </p> + <p> + On page 2342 Rerdell swears that S. W. Dorsey signed the name of J. M. + Peck to the warrant 55 G. I have forgotten the day that the draft was + given, but I think it was the 2d day of August. It was paid on August 25, + 1880. All I have to say is that there was an abundance of time for that + draft to go to New Mexico and to be signed by John M. Peck; there was + thousands of time. It makes not the slightest difference who signed the + name of John M. Peck to that warrant. The question is, was that money + coming to John M. Peck? No. John M. Peck had sold out his interest. He was + not entitled to one dollar, and it made no difference who signed his name + to the check. Does it show that there was a conspiracy if Dorsey signed + his name after Peck had sold out his interest in the routes? Any draft + coming to him came to him simply as the trustee and the draft was for the + benefit of the person who bought him out. Suppose Mr. Dorsey had signed + his name. Would that prove that there was any conspiracy? It would simply + be in accordance with his right as the matter then stood. He was entitled + to that draft and Peck was not entitled to that draft. Why? Because he had + bought him out and paid him ten thousand dollars for his interest. That + was all. Yet they would claim if that draft happened to be indorsed by Mr. + Dorsey that it would be evidence of a conspiracy entered into in the fall + of 1879. + </p> + <p> + On pages 2348 and 2361 Rerdell says that figures were inserted in all + affidavits given him by S. W. Dorsey, except on route 41119, and that + Dorsey told him, Rerdell, to put them in the blanks. On page 3793 S. W. + Dorsey denies that. + </p> + <p> + On page 2223 Rerdell says that in August, 1878, he had a talk with Miner, + who said that they could do nothing while Boone was in the combination; + that Brady was hostile to Boone, and that Boone's place was to be taken by + Vaile; and that Miner asked his opinion about Vaile, and asked what + Rerdell thought about Dorsey's approving it, adding that Vaile was very + close to Brady. On page 4177 Miner swears that he has no recollection of + the conversation, and does not believe any such conversation ever + occurred. + </p> + <p> + Ah, but they say that when a paper was handed to Mr. Miner, an affidavit, + for instance, he could not give you the history of it; he could not tell + you where he was when he wrote it; he could not tell you where he was when + he filled it. I would not have believed his testimony if he could. He had + to take care of some ninety-six routes. Upon those routes there were + numberless papers, notices from the department, notices of fines and + deductions, of remissions, and everything of that kind. On each route + there were probably a hundred papers, and may be more—petitions, + affidavits, and papers of all descriptions. If a man should stand up here + five years afterwards and pretend that he knew the history of each paper, + I would know he had not the slightest regard for truth. + </p> + <p> + Mr. Miner said when he was shown a paper, "I don't remember ever having + seen that paper before; I don't remember when it was written." That was + the truth. If he had wished to stain his heart with perjury he could have + said, "Yes, I remember it. I know absolutely the time I wrote it. I know I + sent it to New Mexico. I know it was filled up before it was sworn to"; + but he was honest enough and he was brave enough to face the truth and + say, "I don't remember," and I respected him for it when he did it. + Whenever you hear the truth, as a rule the first thought is, "May be it + won't do." But if it is the truth, the longer you think about it the + better it seems, while if it is a lie, the longer you think about it the + worse it gets. It would have been, apparently, to Mr. Miner's interest to + say, "I remember it perfectly," but the man had honor enough to tell the + truth. And when you come to investigate his evidence it sounds much better + than though he had pretended to remember time and place. + </p> + <p> + I call your attention to page 2446; that is about the affidavit. + </p> + <p> + On page 2384 Rerdell speaks of the charges made to Samuel Jones and James + B. Belford for two thousand dollars. Then Mr. Bliss in his speech, which I + will come to after a while, says that Mr. Rerdell spoke about a charge to + J. B. B. He never did, never. He said James B. Belford. I started the J. + B. B. business. I was the first one who ever said it, and Mr. Rerdell + never swore J. B. B. Then they sent out to Denver to get a fellow who had + the same initials. I will come to this man after a while. + </p> + <p> + On pages 2429 and 2430 Rerdell swears that he had two balance-sheets of + the books, made by Donnelly; that he showed them to MacVeagh and Woodward. + How does it happen that Woodward was not sworn about it? Nothing would + have been of more importance, if they wished to prove the existence of the + two red books, than to prove by Woodward that Mr. Rerdell, in June, 1881, + showed him copies of those balance-sheets or the balance-sheets + themselves. They did not bring Mr. Woodward on the stand. Why? Mr. + Woodward, in my judgment, had he come upon the stand, would have sworn to + the truth. Rerdell says, "I do not know where they are." Then he paused. + Then I saw the working of his mind just as plainly as though his skull had + been opened. He got himself together and swore that he gave them to Dorsey + in July, 1882. He had to get them out of his hands some way. + </p> + <p> + On page 3736 S. W. Dorsey swears that he, Rerdell, did not give him any + balance sheets. + </p> + <p> + On page 2434 Rerdell swears as to the papers he gave to Dorsey—the + original journal, and copy of the Oregon correspondence made by Miss + Nettie L. White. Miss White was not called. He gave these, he says, to + Dorsey, July 13, 1882. On page 2793 Dorsey swears that he did not give + them to him, nor did he give a paper of any kind. + </p> + <p> + On page 2461 Rerdell is asked if he did not admit to Judge + </p> + <p> + Carpenter, in January, 1882, that he had a memorandum written by himself, + which he showed to James and MacVeagh, and that he made it so much like + Dorsey's handwriting that he did not think anybody could tell it. What was + his answer? "I may have done so." Honest man! + </p> + <p> + On page 2462, in answer to the question, "Did you not tell Carpenter that + you brought no book from New York?" the honest man answered: + </p> + <p> + Very likely I said I brought no book over from New York. + </p> + <p> + On the same page, in answer to the question, "Did you not tell French that + you were trying to entrap James?" he admits that it is likely he was. + </p> + <p> + On page 2463 he admits that he may have told French that he had learned to + imitate the handwriting of Dorsey so well that Dorsey himself could not + tell the imitation; and that he wrote that memorandum in pencil because he + could the more easily deceive. Honest man! + </p> + <p> + Mr. Bliss holds S. W. Dorsey up to scorn because he endeavored to turn two + men out of the Cabinet on the testimony of Rerdell; and yet he is trying + to put four men in the penitentiary on the same oath. Do you not think + that it is better to get a man out of the Cabinet than to put another into + the penitentiary? And do you not think it is better that a man be put out + of office than that he be put into the penitentiary, his family destroyed, + and his home left to ruin, upon the oath of a man who swears that the oath + was a lie? Dorsey was an awfully wicked man to try to get Mr. MacVeagh out + of office on Rerdell's testimony. But now they turn around and want to put + Mr. Vaile and Mr. Miner into the penitentiary on the same testimony. The + other testimony was the best, because we did not promise him immunity. I + will come to it after a while. + </p> + <p> + On page 2465 Rerdell swears that he did not have any pencil memorandum + that he showed to MacVeagh, claiming that it was in the handwriting of + Dorsey, and was asked, "Did you not tell Bosler that you had?" What does + he say? "Possibly I did." "Did you not tell Bosler that you wrote it?" + "Possibly I did." + </p> + <p> + S. W. Dorsey swears on page 3810 that Rerdell told Bosler that it was in + the waste-basket, and Bosler took the pieces out and put them together. + Rerdell says he had written it, and in pencil, so that it would look more + like Dorsey's handwriting. Why did you not ask Bosler about it, gentlemen, + when you had him on the stand to prove your letter? Even Mr. Bliss, in his + speech, asked, "Why didn't they call Bosler?" Why didn't you have the + fairness to tell all the circumstances? I will tell them all when I get to + that part of it. Why did you not tell them that you had looked all through + Mr. Bosler's books? + </p> + <p> + On page 2466 Rerdell swears that he did not get that memorandum out of the + waste-basket, but got a note from Mac-Veagh, and that Dorsey was present. + </p> + <p> + On page 3810 Dorsey swears that it was a pencil memorandum imitating his + (Dorsey's) hand closely. + </p> + <p> + On page 2466 Rerdell admits that he very likely told Bosler in June, 1881, + that he had no book on the train and brought none from New York. In answer + to my question, he says, "Possibly I did," or "Probably I did," tell + Bosler. I cannot bring other witnesses to contradict him when he admits + that he did. That is enough for me. + </p> + <p> + On page 2467 he admits that he very likely told Judge Wilson about the + affidavit; that if he told him anything, he told him that no such book + existed, and that there was no necessity for any book except an expense + book. + </p> + <p> + On page 2469 Rerdell swears that he had a copy of the day-book and ledger + in June, 1881, in Dorsey's office; that Dorsey took them that day, and + that they had been there ever since they were made, to be carried to + Congress. Then he began to gather his ideas, and he says: + </p> + <p> + Hold on. I am mistaken. These books were all sent over to New York before + that, in the summer of 1880, when I carried the originals over for the + last settlement I was present at, between Dorsey and Bosler. + </p> + <p> + There was no settlement in 1880, the time he speaks of. Mr. Merrick then + says: + </p> + <p> + Q. There were two sets of those copies? + </p> + <p> + That would be four copies and two originals. + </p> + <p> + A. No, sir. + </p> + <p> + On page 3955, S. W. Dorsey swears that he had the first settlement with + Bosler in December, 1879, or January, 1880, and had no subsequent + adjustment until November or December, 1882; no settlement between those + dates. Yet Rerdell says that he took those books over in the summer of + 1880 for a settlement, when there was no settlement, and at the same time + carried the originals. A moment before he had sworn that the originals + were there in the office in June, 1881. + </p> + <p> + On page 2470 Rerdell swears that he did not give the books to Dorsey in + 1881. + </p> + <p> + On page 2447 he swears that he did not have the balance-sheet in New York; + that he had it in the office in June, 1881. + </p> + <p> + On page 2479, Rerdell, in speaking of the pencil memorandum, was cornered, + caught. He said, "I have kept it as a voucher." Then finally he admits + that it was not his property, but was the property of Dorsey; and the last + admission he made upon that subject was, "I stole it." He says that while + he was in jail somebody got into the office and destroyed his papers. And + yet, on page 2480, he tells that the first time it ever occurred to him to + use that pencil memorandum was after the first trial was over. Can you + believe that? He was trying to steal it on the 13th of July, 1882; was + trying to go over to the Government on the 5th day of July, 1882, and did + not think that he had that pencil memorandum! Writing a letter on that day + to Dorsey; giving him notice that he was going to desert him; saying in + that very letter that he had been persuaded by Bosler to make the first + affidavit; saying that he was making preparations to go to the Government, + was going to set himself right, and yet did not remember the pencil + memorandum! Why? Because he manufactured it afterwards. He says that + within a day or two after he was out of jail he found this paper a second + time. He found it before, and laid it carefully away as a voucher. Then he + lost sight of it. Then he was trying to sell it to the Government, and he + forgot it; trying to blackmail Bosler and Dorsey, and forgot it. When he + got out of jail he found it. That will not do. How does he say it got to + his house? His wife carried it from the office while he was in jail. And + yet he would have us believe that Dorsey broke into that office and stole + all the papers. And yet he says that was in the office, and Dorsey did not + take it. It will not do. He manufactured that paper after that time. + </p> + <p> + On page 2481 Rerdell swears that he did not know that he had that paper at + that time, at the time he says his wife got the papers. I say he did not; + I say he made it afterwards. + </p> + <p> + On page 2490 Rerdell swears that he had those red books in the office at + 1121 I street; that he never made any effort to conceal them. And yet + Kellogg never saw one of those books; never saw Rerdell working upon them, + and never saw them in the office. + </p> + <p> + On page 2491 Rerdell swears that he thinks Kellogg did some work on those + red books; that Kellogg helped him (Rerdell) make the first entries. On + page 3636 Kellogg swears not only that he did not help him to make those + entries, but positively swears that he never even saw any such books. + </p> + <p> + On page 3635 Kellogg swears positively that Rerdell did not keep any + books, but a private expense-book and a route-book; and that he (Kellogg) + never saw any other books; that he never saw a ledger or journal in red + leather, kept by Rerdell. He swears that he himself kept the three books + (the journal, ledger, and cash-book,) and that Rerdell never made an entry + in them. + </p> + <p> + On page 2512 Rerdell swears that he never imitated Dorsey's handwriting, + or tried to, in Kellogg's presence. On page 3636 Kellogg swears that he + saw him do it. + </p> + <p> + On the same page (2512) Rerdell swears that he never signed Dorsey's name + to show Kellogg that he could imitate it. On page 3636 Kellogg swears that + he did do it. + </p> + <p> + I have just given you a few, gentlemen, of the corroborations of this man + Rerdell. Recollect that you cannot believe him unless he is corroborated. + If you believe him at all you have got to believe all, unless you believe + he is mistaken. Where a man comes on the stand as an informer—and I + do not call him an informer—even in that capacity he has to be taken + altogether or not at all. + </p> + <p> + Now, with all these contradictions upon his head, I will now come to the + affidavit of July 13, 1882. You will remember that I read you the letter + of July 5, in which he says that Bosler got him to make the affidavit of + 1881. At page 2374 Rerdell gives an account of this affidavit. Dorsey got + him in Willard's Hotel, locked the door, and had him. Now, he said to him, + "Mr. Rerdell, I will tell you what I am going to do with you: I am going + to have you prosecuted for perjury." Let us imagine that conversation. + Rerdell replies, "What are you going to have me prosecuted for?" "For + making the affidavit of June, 1881." "Why," says Rerdell, "in that + affidavit I swore you were innocent." Says Dorsey, "Don't you know you + swore to a lie? Do you think I would stand a lie of that kind, sir? Do you + think I will allow any man willfully, maliciously, and with malice + aforethought, to swear that I am an innocent man? I will have you arrested + to-night, sir." "Well," says Rerdell, "my good God, ain't there any way I + can get out of this?" "Yes; make another affidavit just like it. Now, sir, + you have perjured yourself and I will arrest you for perjury unless you do + it again." "Well," says Rerdell, "when I get that done you will have two + cases against me." "I can't help it," Dorsey says. "Is that the way you + treat a friend? I swore to that lie from pure friendship. Don't you + remember you took me by both hands and begged me, for God's sake, and for + your wife's sake and your children's sake, to make that affidavit? And now + are you going to be such a perfect devil as to have me arrested for + perjury for making that same affidavit?" Dorsey says, "Yes, sir; that is + the kind of man I am." "Well, but," says Rerdell, "don't you know the + trial is going on now? They are trying to prove, now, that you are guilty, + and in that affidavit of mine I swore you are innocent, and how are you + going to prove a man guilty when you swear that he is innocent?" Dorsey + says, "That is my business, not yours. I am going to have you arrested." + "But," says Rerdell, "you had better hold on, I tell you." "Why?" "I have + got the red book that I got in New York." Dorsey says, "I don't care." + Rerdell says, "I have got the pencil memorandum that you made for me to + open the books upon, and charge William Smith with eighteen thousand + dollars. And you wrote John Smith first, and I changed it to Sam Jones, + don't you recollect, as otherwise there would be two Smiths? And there is + the account against J. H. Mitchell, and J. W. D., and cash, and profit and + loss." Dorsey says, "I don't care about that. I am not going to allow a + man to commit perjury. I am going to have you arrested." Rerdell says, + "You had better not have me arrested." Dorsey says, "Why? What else have + you got?" "I have got a copy of the letter that you wrote to Bosler on the + 13th of May, 1879, which you say that you paid twenty thousand dollars to + Thomas J. Brady. That copy was made by Miss Nettie L. White." "Do you + believe I care anything about that? You have perjured yourself, and it is + no difference to me whether it was in my favor or not. Justice must be + done, and I am going to have you arrested." Rerdell says, "You had better + not. I have got a tabular statement in your handwriting, Dorsey, where you + had a column for the amount due and the amount received, and another + column for thirty-three and one-third per cent, given to Brady, and then + at the top, in your handwriting, 'T. J. B., thirty-three and one-third.'" + Dorsey says, "I don't care what you have got." Rerdell says, "That ain't + all I have got, Dorsey. I tore out of your copy-book a copy of the letter + I wrote to Bosler on the 21st or 22d of May, 1880, in which I told him + that I had gone to Brady, and that Brady said you were a damn fool for + keeping a set of books, and suggested to me to have some copies made, and + I had the copies made, and I can prove the copies by Gibbs if he does not + try not to remember that he made them. Now, go on with your rat-killing; + go on with your perjury suit." Dorsey had him already locked up there, + don't you see? But Dorsey was bent on having that man arrested for perjury + because he had sworn that he (Dorsey) was innocent. Dorsey was implacable. + </p> + <p> + What else did he do? He put his hand in his pocket and said, "Do you see + those letters to that woman?" Then, sir, when he saw the handwriting he + was like that other gentlemen that saw the handwriting on the wall, and he + began to get weak in the knees, and says, "Dorsey, I hope you are not + going to have me arrested for perjury. I am willing to do it again right + now, on the same subject." + </p> + <p> + Now, it turns out that at that time Dorsey did not have those letters. + Dorsey swears that he never got those letters until after Rerdell was put + upon the stand. And after he swore that, the Government had the woman to + whom the letters were written subpoenaed. Why did they not place her on + the stand? That is for you to answer, gentlemen. That is the affidavit of + July 13. Recollect, there was a trial going on at that time in which + Dorsey was insisting that he was innocent, and although Rerdell had sworn + that he was, he was going to have him arrested right off. + </p> + <p> + What else did he have against Dorsey at that time? Now, says Rerdell, + "Dorsey, don't you have me arrested for perjury. I have got a memorandum + of that mining stock that was to be given to McGrew and Tyner and Turner + and Lilley for corrupt purposes." + </p> + <p> + What else did he have? After he had agreed to make the affidavit, Dorsey + wrote out what he wanted him to swear to, in pencil, and gave it to him. + And when he got his liberty, when he walked out of that room a free + citizen, he had all the papers I have spoken of not only, but he had in + his possession a draft, in Dorsey's handwriting, of the affidavit Dorsey + wanted him to make. He made the first affidavit from friendship; the + second from fright. You know he never took a dollar for an affidavit. He + was not that kind of a man. You might get around him by talking friendship + or you might scare him, but you could not bribe him; he wasn't that kind + of a man. Armed with all these papers he was frightened; so he made the + affidavit of July 13— + </p> + <p> + Now, let us see. He admits that—I will not say every word, but the + principal things in the affidavit of June, 1881, are false. He swore to + them knowing them to be false. But he tried to get out by saying he did + not write them all. Writing is not the crime. The crime is swearing that + they are true when they are not true. It does not make any difference who + wrote it. For instance, you swear to an affidavit, and you afterwards say, + "I did not write it." "Did you know the contents?" "Yes." "Did you swear + to it?" "Yes." What difference does it make who wrote it? And yet he + endeavors to get behind that breastwork and say, "I did not write all that + affidavit; I only wrote part of it. What I wrote was true, but what I + swore to was not." That will not do. + </p> + <p> + So the affidavit of July, 1882, he now swears was a lie. But he gives a + reason for writing that, that you know is utterly, perfectly, completely + false. You know that Dorsey never threatened to have him arrested for + perjury because he had sworn in favor of Dorsey. You know it, and all the + eloquence and all the genius of the world could not convince you that at + that time Rerdell was afraid that Dorsey would have him arrested for + perjury. No, sir. + </p> + <p> + Now, let us take the next step. Mr. Rerdell testified, on page 2275, that + this letter (32 X) was received by him in due course of mail in 1878. Upon + being asked whether he did not know that S. W. Dorsey was here in + Washington at that time, he replied that he knew he was not. I will read + it to you, gentlemen: + </p> + <p> + Chico Springs, P. O. + </p> + <p> + Mountain Spring Ranch, Colfax County, New Mexico, + </p> + <p> + "April 3, 1878. + </p> + <p> + "M. C. Rerdell, 1121 I Street: + </p> + <p> + "Dear Rerdell: I wish you would get fullest information in regard to all + the new post-office lettings and keep posted as to the schemes going on in + the department. There are certain routes we want advertised and others we + do not. I shall be in Washington as soon as the 12th unless something + unexpectedly happens, + </p> + <p> + "Faithfully, + </p> + <p> + "DORSEY." + </p> + <p> + Q. What Dorsey was that?—A. That is S. W. Dorsey's handwriting. + </p> + <p> + Q. And signature?—A. Yes, sir. + </p> + <p> + There is where he first speaks of it. At the time that letter was + introduced, or in a little time, gentlemen, they also introduced the + envelope. I do not know that I should have suspected the letter if they + had not introduced the envelope. Whenever there is an effort to make a + thing too certain I always suspect it. When that Morey letter was gotten + up, what made me suspect it was that they had the envelope, and I said to + myself, "Why did they want the envelope if it was clearly in the + handwriting of Garfield? What difference did it make whether it was sent + to Morey or to somebody else? What difference did it make when it came + from Washington?" The only question was, "Did Garfield write it?" And upon + that subject the envelope threw no light. When a man feels weak and thinks + that other people will know what he does not want them to know, then it is + that he wants to barricade and strengthen before the attack. So they got + up this envelope, and when I looked at that it did not look to me as if + that stamp had been through the mail. I noticed the handwriting of "Chico + Springs, N. M.," and then I noticed the 3 or the B on the postage stamp, + and then I knew that the man who wrote "Chico Springs" never made the + letter or figure on that stamp. It is utterly impossible for the man who + wrote that "Chico Springs" to make that mark on the stamp. This stamp + looked awfully clean, and I said, "Well, I wouldn't wonder if that was an + envelope used here in the city which has been got through the mail in some + way." They had it stamped on the back and I said, "Perhaps that was + written in 1879." No. You see, if it was not written in 1879 it did not do + any harm, because in 1879 Dorsey was not a member of the Senate. Having + gone out on the 4th of March, 1879, that letter was dated in April, 1879, + why then there was no harm in his writing to Mr. Rerdell and telling him + to look after the mail business. But if it was written on the 3d of April, + 1878, it went far to show that Dorsey was personally interested at that + time in mail routes. You will notice the printed date, April 3, 1878. They + introduced that letter. I noticed that that envelope was a funny looking + thing, and that the writing on it did not correspond with the mark on the + stamp. I noticed also that upon the back they had the stamp. I do not know + how they got it. When the Post-Office Department has possession of a paper + they can put almost anything on it. + </p> + <p> + When I said to Mr. Rerdell on cross-examination, not knowing anything + about the letter, "Was that not written in 1879?" he said, '"No, sir." + Said I, "Don't you know, as a matter of fact, that Dorsey was not here on + the 3d of April, 1879?" He said, "As a matter of fact I know that he was + here on the 3d of April, 1879." "Don't you know, as a matter of fact, that + he was here on the 3d of April, 1878?" He says, "I know as a matter of + fact that he was not here on the 3d of April, 1878; he was at Chico + Springs." He knew as a matter of fact that he was here in 1879, and he + swore that so as to preclude the possibility of his having written the + letter in 1879. And he swore to the positive fact that he was not here on + the 3d of April, 1878, so as to show that he wrote him that letter from + Chico Springs. They wanted some letter from Dorsey in 1878, to show that + he was personally interested in these routes while in the Senate. They + submitted that letter to Mr. Boone, who was their witness. He looks at it + and he tells you that Dorsey did not write that letter. A clear forgery. + Whom else do they bring now? They leave it right there, and by that admit + that Rerdell forged that letter. Mr. Boone, their witness, swears it. + Nobody swears to the contrary except Rerdell. Boone threw the letter from + him contemptuously, and said, "That is not Dorsey's handwriting," and they + dare not bring another witness. The country is filled with experts, + gentlemen, who know about handwriting; the United States had plenty of men + and plenty of money, and they never brought a solitary man. + </p> + <p> + Now, gentlemen, do you want to know how this fellow got caught? I will + tell you. There is the letter, and they dare not put a man on the stand to + swear that it is in Dorsey's handwriting. Look it all over. But I want to + tell you how Rerdell got caught about Dorsey being present on the 3d of + April, 1878, and I might as well tell you how I found it out. I do not + want to pretend to be any more ingenious than I am. I found it out because + I made the same mistake myself. I stumbled on that same root. I hit my toe + of heedlessness on the same obstruction. I went up to look at the Senate + journal. I opened a book to see whether Dorsey was here on the 3d of + April, 1878. You see at the bottom there of the title page, Mr. Foreman—Washington: + Government Printing Office. 1877. + </p> + <p> + You know I was not looking for the book of 1877, so I shut that book up. I + then took the next book and opened it, and it said at just the same place: + </p> + <p> + Washington: Government Printing Office. 1878. + </p> + <p> + I thought it was the book. So I looked over here, and I found that there + was no session of the Senate in April, and I said to myself, "Is that + possible that there was no session in April, 1878? Why, there must have + been." But the book said "no." I looked back here, and it still said 1878. + Then I happened to look back to this book that said 1877, and it said that + the session commenced December 3d, 1877, and consequently April 3d, would + be found in the book marked 1877 on the title page. So I turned right over + here and looked up at the top and saw the date, April 3d, 1878. He was + looking for the 1878 book, and that included April, 1879, and when he got + to April, 1879, there was no session of the Senate. So he came right in + here and swore that Dorsey was not here in 1878, but that he was here in + April, 1879. I looked in that book and found that Mr. Dorsey, on the 3d of + April, 1878, was appointed by the Vice-President on a committee of + conferees, on the part of the Senate, together with Senators Windoin and + Beck, and I saw exactly how Mr. Rerdell made his mistake. He opened the + book, and at the bottom-of the title page it said 1877. That was not what + he was looking for. He was looking for 1878. And the book that said 1878 + showed that in April the Senate was not in session. The book that said + 1877 showed that in April the Senate was in session on April 3d, 1878. + That man thought he was backed by the records of the Senate, and thereupon + he manufactured that letter. And that is the letter sworn by Boone not to + be in the handwriting of S. W. Dorsey. Now, gentlemen, there is nothing in + this world that a man would be prevented from doing, for its baseness, who + would do that. + </p> + <p> + There is more evidence than this. I asked Mr. Rerdell, "When you got that + letter did you understand it?" He said, "No." "Did you do anything on + account of it?" "No." "Did you know what it meant?" "No." And yet he has + the temerity to swear that he received that on the 3d of April, 1878. + </p> + <p> + How did he come to spell the name Reddell? I will tell you. On page 2275 + he had a letter to go by. That is the very page on which the Government + puts in that letter. This letter is a letter of introduction. When Rerdell + manufactured that letter he had this letter of introduction to go by: + </p> + <p> + Hon. J. L. Routt, Denver: + </p> + <p> + My Dear Governor: I wish to introduce my friend, Mr. M. C. Reddell. + </p> + <p> + It was written Reddell in that letter, and when this man wanted to + manufacture one he had one in his possession that Dorsey wrote about that + time (April 14, 1879), and he noticed that in that he spelled the name + Reddell. So when he wanted to get up a fraud he spelled the name Reddell. + That is the way. There is no pretence that Dorsey wrote that letter, and + they dare not bring an expert or another man on earth acquainted with the + handwriting of Dorsey and submit it to him and expect him to say that that + is the handwriting of S. W. Dorsey. So much for that. + </p> + <p> + Now, it is claimed that while Torrey was writing up Dorsey's books, having + in his possession the check stubs, he was uncertain as to whether a charge + was twenty-five dollars or twenty-five cents, and he thereupon sent to + Rerdell to ascertain the true state of the account, so that he might open + his books. Thereupon Rerdell made the calculation in the evidence marked + (94 X,) and Donnelly wrote under it that it was right. Donnelly made that + little certificate at the bottom. Here is the important paper [submitting + 94 X to the jury], another piece manufactured out of whole cloth, not + whole paper. Now, I ask a few questions about this. In the first place, + they knew that unless this was corroborated it was good for nothing, and + we find on it: + </p> + <p> + Lewis Johnson & Co., note due 28th October, three thousand dollars. + </p> + <p> + Was that note at Lewis Johnson & Co.'s? Why did they not bring some of + the officers of that bank, if there was such a note for three thousand + dollars there? But no one was brought. And yet they knew that everything + coming from Rerdell must be corroborated. + </p> + <p> + If Rerdell had come to Donnelly to find what the account was, how did it + happen to be in Rerdell's handwriting before it got to Donnelly? Donnelly + wrote this certificate at the bottom. Rerdell had written all the facts + before. If he went to Donnelly to get the facts, how did Rerdell happen to + write this before it got to Donnelly? It is like me wanting to get some + information from a man, and writing the information before going to him. + </p> + <p> + Now, if Donnelly wrote that after Rerdell had written, where did Rerdell + get the information? If Donnelly had the books, Donnelly should have given + the information. If Rerdell had the books, why did he want to go to + Donnelly for information? And if Donnelly had the books, how did Rerdell + write the information before he went to Donnelly? Then if he wanted that + information for Torrey, why did he not send it to him? How does it happen + that Rerdell wrote out the information for Donnelly, then got Donnelly to + certify it, because Torrey had asked it? And then how does it happen that + Rerdell kept it? It seems to me that that ought to have been sent to + Torrey. Torrey wrote to Rerdell for information; Rerdell wrote it all + down, and then got Mr. Donnelly to say it was so. If Donnelly had the + books, Donnelly should have given the information. If Rerdell had the + books, he did not have to go to Donnelly for information. That is another + manufactured paper. As I say, how does it happen to be in the possession + of Rerdell? They claim that it was for Torrey's benefit. I believe when + Torrey was on the stand they asked him if there was not some dispute about + thirty-five cents. Now they bring that here to show that there was a + dispute about twenty-five cents. Was there any reason for supposing that + it was twenty-five cents? No, except that it was in the dollar column, + that is all. Of what use was Donnelly's statement after Rerdell had made + the calculation? Nobody on earth can tell why that was given. Why did they + not bring some of the books or clerks from Lewis Johnson & Co.'s Bank + to show that there was a note there in October for three thousand dollars. + </p> + <p> + There is another little matter, a conversation between Rerdell and Brady. + Rerdell said he had a conversation with Brady in which he told him about + the Congressional committee; that he was summoned to bring his books. + Brady was astonished that Dorsey would be "Damn fool enough to keep + books," and suggested to have them copied. If this is true, Brady at that + time made a confident of Rerdell. If it is true, Brady at that time + admitted to Rerdell that he (Brady) was a conspirator; that he had + conspired with Dorsey. And yet Brady says that he never had but three or + four conversations, I believe, with this man, and Rerdell himself admits + that he never had but four or five, and when he is pinned down on + cross-examination he accounts for enough of these interviews, without any + interviews on the subject of the books, to exceed all that he ever had. Do + you believe that he ever had any such conversation? Do you believe that + Brady would make a confident of him? Do you believe that Brady would + substantially admit in his presence that he had been bribed by Dorsey? I + do not. + </p> + <p> + Now, in order that you may know what this man is, I want you to have an + idea of his character. So we will come to the next point. Mr. Rerdell + admits that he sat with the defendants during the early part of this + trial; that he was willing to make a bargain with the Government; that he + proposed to the Government that he would sit with his co-defendants, and + would challenge from the jury the friends of the defendants. Did any man + wearing the human form ever propose a more corrupt and infamous bargain? + That proposition ought to have been written on the tanned hide of a + Tewksbury pauper. He went to the Government and deliberately said, + "Gentlemen, I am willing to make a bargain with you. I am willing to sit + with my co-defendants, pretending to be their friend, and while so + pretending I will challenge their friends from the jury. I will so arrange + it that their enemies may be upon the panel." "And why do you say that, + Mr. Rerdell?" "In order to show my good faith towards the Government." He + made the first affidavit for friendship, the second for fear, and he made + this proposition to show his good faith. There never was a meaner + proposition made by a human being, under the circumstances, than that. He + proposed to do it. Mr. Blackmar says that the proposition was rejected; + but that does not affect Mr. Rerdell. He was willing to carry it out. + </p> + <p> + What more does he swear? He swears that he tried to carry it out. In other + words, that although it had been rejected, that made no difference to him. + Mr. Blackmar says they would not do it. Rerdell swears that he tried to: + went right along and did his level best; and if the Court had allowed him + four challenges he would have challenged four friends of the defendants + from the jury. + </p> + <p> + What more does he admit? That when the Court decided that all of us + together only had four, he endeavored to challenge one. Why? Because he + believed he was a friend of the defendants; because he believed he would + be against the prosecution; and he wanted to get the friends of the + defendants away. Why? To the end that the defendants might be tried by an + enemy. That is what he was trying to accomplish. + </p> + <p> + Let us take another step. That proposition reveals the entire man; that + takes his hide off; that takes his flesh all off; that leaves his heart + bare, naked; you can see what he is made of, and it shows the workings of + his spirit, the motions of his mind; and you see in there a den of vipers; + you see entangled, knotted adders. And yet that man is put upon the stand + stamped by the seal of the Department of Justice, and that department says + to twelve men, "Here is a gentleman that you can believe; that gentleman + proposes to sell out his co-defendants to us, but we would not buy; he is + an honorable kind of gentleman, but we would not buy." + </p> + <p> + Mr. Merrick. It should be interpolated there—if you will pardon me a + moment—that the Government refused to accept Rerdell until he + himself had pleaded guilty. + </p> + <p> + Mr. Ingersoll. I understand that. I say now, Mr. Merrick, that I would not + for anything in the world, on a subject of that kind, go the millionth + part of an inch beyond the testimony. Although you and I have not been + very cordial friends during this trial, and neither have I and Mr. Bliss, + yet if I know myself I would not for anything in this world put a stain + upon your reputation, or upon the reputation of either of you, by + misstating a word of this testimony. I would not do it. I am incapable of + it. I admit that the evidence is that the proposition was rejected, but I + also insist that the Government knew the proposition had been made, + otherwise it could not have been rejected. And so I say that after this + man had made that proposition, infamous enough to put a blush upon the + cheek of total depravity, the Government put that witness upon the stand, + sealed with the seal of the Department of Justice. + </p> + <p> + Now, we will go another step. He sat with us from day to day, gentlemen, + as you know, went in and out with us, as one of the co-defendants. In the + meantime—and there is a laughable side even to this infamy—he + borrowed money from Vaile. He went to him as a co-defendant, as a friend, + and said, "I want a hundred and forty dollars; I want to buy bread and + meat to give me strength to swear you into the penitentiary." And Vaile + gave him the money. Would you believe a man like that? You cannot think of + a man low enough, you cannot think of a defendant vile enough to be + convicted on such testimony. + </p> + <p> + Now, we will go another step. He wanted to make that bargain with Mr. + Blackmar. Mr. Blackmar swears that he told Mr. Merrick of it, and that Mr. + Merrick rejected it; would have nothing to do with it. + </p> + <p> + At that time Mr. Woodward had two affidavits of Rerdell in his possession—an + affidavit of Rerdell, made in September, supplemented by another + affidavit, I believe, of November, that he made in the city of Hartford, + covering seventy pages. When Mr. Woodward saw Mr. Rerdell sitting with the + defendants, pretending to go with them, he (Woodward) had those two + affidavits of Rerdell in his pocket. Did the prosecution know that Rerdell + had made the two affidavits? I do not say they did, gentlemen. I only go + right to the line of the evidence; there I stop. + </p> + <p> + Another thing: Mr. Blackmar swears that they had a signal to look at the + clock, and that night Rerdell would meet him at six or seven o'clock, I + have forgotten the hour; but Mr. Blackmar could not sit in his room all + the time waiting for him, and so he gave him a certain signal, so that he + would know he was to wait that night. Then what happened? Then Mr. Rerdell + came to Mr. Blackmar and gave to him written reports. Of what? I do not + know. He sat with the defendants; he gave to Mr. Blackmar written reports. + What were they? I do not know. What did Mr. Blackmar do with them? He + handed them to Colonel Bliss. What did he do with them? I do not know. Did + he read them? I do not know. Did he know that they were in the handwriting + of Mr. Rerdell? I do not know. That is for you. + </p> + <p> + Still another point: + </p> + <p> + Mr. Bliss, after this jury had been impaneled, stood before them while + Rerdell was sitting with us as a defendant, and said: + </p> + <p> + The ranks of the defendants are closed up, and he—Rerdell—stands + before you now as one of the defendants, whose testimony—Meaning the + confessions made to MacVeagh and to Postmaster-General James—will be + accepted by the Court and by you, &c. + </p> + <p> + The question arises, Did Mr. Bliss know at that time that Mr. Woodward had + in his pockets two affidavits made by Rerdell, one made in September and + the other in November? Did he know at that time that Rerdell had given his + papers over to Mr. Woodward? Did he know at that time that he had offered + to challenge the friends of the defendants from the panel? And so knowing, + did he give us to understand that Rerdell had passed from the influence of + the Government and was now acting as one of the co-defendants? Is it + possible that Mr. Bliss would furnish Rerdell with a mask behind which he + could gather information from the defendants and sell it to the Government + for immunity? Is it possible? Those were the circumstances. I do not say + that he knew. I do not know. + </p> + <p> + Gentlemen, I do not believe that it is the duty of a Government to + prosecute its citizens. I do not believe that it is the duty of a + Government to spread a net for one of the people whom it should protect. I + do not believe in the spy and informer system. I believe that every + Government should exist for the purpose of doing justice as between man + and man. The mission of a Government is to protect and preserve its + citizens from violence and fraud. The real object of a Government is to + enforce honest contracts, to protect the weak from the strong; not to + combine against the one, not to offer rewards for treachery, not to show + cold avarice in order that some citizen may have his liberty sworn away. + The objects of a good Government are the sublimest of which the + imagination can conceive. The means employed should be as pure as the ends + are noble and sacred. The Government should represent the opinions, + desires, and ideals of its greatest, its best, and its noblest citizens. + Every act of the Government should be a flower springing from the very + heart of honor. A Government should be incapable of deceit. The Department + of Justice should blow from the scales even the dust of prejudice. + Representing a supreme power, it should have the serenity and frankness of + omnipotence. Subterfuge is a confession of weakness. Behind every pretence + lurks cowardice. Our Government should be the incarnation of candor, of + courage, and of conscience. That is my idea of a great and noble + Government. + </p> + <p> + The next point to which I call your attention is the withdrawal of the + plea of not guilty by Mr. Rerdell. You probably remember the occurrence. I + will read to you what he said upon that occasion. I find it on page 2202: + </p> + <p> + After mature reflection and a full consideration of the whole subject, I + have determined to abandon any further defence of myself in this case, and + put myself at the mercy of the Court and the Government; and if desired to + do so by the counsel for the Government, to testify to all my knowledge of + any facts with reference to any of the defendants either against or for + them, myself included. Therefore, I now in person ask leave to withdraw my + plea of not guilty, heretofore interposed, and enter my plea of guilty, + and in so doing put myself upon the mercy of the Court I feel this to be a + duty I owe to myself, my family, and to truth. I have arrived at this + fixed determination upon my own reflections and responsibilities, and + without any previous consultation with my counsel, who, I believe, would + not have advised me to this course, and whom I now relieve from all and + any responsibility for the course I have adopted. + </p> + <p> + Now, gentlemen, is it not wonderful that if Mr. Rerdell was about to tell + the truth as a witness in this case, he could not even withdraw his plea + of not guilty without misstating the facts? Is it not wonderful that he + felt called upon at that time to tell several falsehoods? He says that he + took this step upon his own responsibility. He says that he did it without + the advice of his counsel. He tells you that he believes if he had asked + his counsel, his counsel would have been opposed to it. He says he is + willing to be a witness for the Government if the Government desires it, + leaving you to infer that at that time no arrangement had been made for + him to be a witness; that it was all in the regions of uncertainty; that + he had withdrawn into the recesses of his own mind, and consulting with + himself and nobody else had made up his mind to throw himself upon the + mercy of the Government and the Court, and took that step without even + allowing his counsel to know what he was about to do. + </p> + <p> + But he speaks further on the subject. I read from page 2523. I was then + examining him: + </p> + <p> + Q. How did you come to do it?—A. I finally made up my mind to what I + would do. I talked it over the evening before with my counsel. + </p> + <p> + He so states under oath; and yet when he stood up before this Court and + withdrew his plea of not guilty, he said he acted without the knowledge of + his counsel—I read this to show you that the statement he made to + the Court at the time he withdrew his plea was absolutely false. What + next? I will go on a little further. The same man Rerdell, after he had + made up his mind to go over to the Government; after he had made up his + mind to swear away, if it was within his power, the liberty of S. W. + Dorsey, admits, on page 2525, that he endeavored to get five thousand + dollars from Mr. Dorsey. + </p> + <p> + On page 2589 Mr. Rerdell swears positively that he did not know that he + was to be used as a witness for the Government until he was called in + court to take the stand. Let us look at the evidence of Mr. Bliss on page + 2590. I will read you what he said: + </p> + <p> + Mr. Bliss. Your Honor, we propose to show, in substance, that this + witness, for reasons with which we have nothing to do, connected with his + own views of his own safety, from an early period was desirous of being + accepted by the Government as a witness; that the counsel in the case + refused to communicate with him or to have anything to do with him until, + in the presence of his own counsel, he was brought to Mr. Merrick's + office, and there the whole thing was explained; and that then for the + first time the Government accepted his willingness to be a witness; and + they did it under circumstances which held out to him no inducement and + which involved no training or anything of the kind by anybody representing + the prosecution. + </p> + <p> + Now, let us go to the next step. I want to be perfectly fair. On page 2591 + Mr. Merrick asked Mr. Rerdell this question: + </p> + <p> + Q. When did you first learn that you would be put upon the stand after + pleading guilty?—A. It was the day before my plea was made in court. + </p> + <p> + Yet when he rose to withdraw the plea he expressed his willingness to go + upon the stand for the Government, leaving you to infer that no + arrangement had been made, and he afterwards finally swore that he did not + know that he was to be called until he was called. + </p> + <p> + These things, gentlemen, you must remember. + </p> + <p> + On page 2515 Rerdell swears that on the Sunday after he got out of jail he + proposed to Mr. Lilley to have Lilley act for him, and authorized Lilley + to say to the Government that if the Government would accept him he would + go on the stand and rebut Vaile. He told him that he had in his possession + a letter or two of Mr. Vaile's. Rerdell tells you that he made this + proposition on the 16th or 17th of September, 1882, which was after he + made the affidavit of June, 1881. On the same page he said it was just + after Vaile went off the stand. That is my recollection. In the last trial + Vaile testified on the 4th of August, 1882. So about that time Rerdell, + according to his testimony, went to Lilley and made a proposition to sell + out then. When he made the affidavit of July 13, 1882, the trial was then + in progress. The very next month, August, while the trial was still going + on, that same man, having made the affidavit of July 13, 1882, went to his + attorney, Mr. Lilley, and authorized him to say to the Government that Mr. + Rerdell would take the stand to swear against Mr. Vaile. Remember another + thing, gentlemen. The only thing he offered to do then to insure his own + safety was to swear against Vaile. He did not offer to swear against + Dorsey. He did not authorize Mr. Lilley to tell the Government about the + pencil memorandum and the tabular statement and his letter to Bosler and + Doisey's letter to Bosler and the Chico letter. Not a word. He simply went + and wanted to sell some letters he had that had been written by Vaile. Why + did he make that offer? Because that was all he had. + </p> + <p> + On page 2517 he says that nothing was said about pardon, but he says that + Lilley told him that he thought he could get him off. What does that mean? + That means pardon. On page 2518 he swears that he saw Woodward in November + in Hartford, and Woodward and he wrote out the statement, covering, I + believe, about seventy pages of legal cap. Then Mr. Rerdell, on page 2519, + swears that he never made an affidavit after that. Then he admits, on the + same page, that the day before he came into court he met Mr. Woodward and + made another affidavit. That was supplementary to the first. In the + meantime he found some new papers. So we find, according to his testimony, + these affidavits: + </p> + <p> + On page 2521 we find that he made an affidavit in June, 1881. Remember, + gentlemen, that he swore to that affidavit three or four times. + </p> + <p> + He made another affidavit in July, 1882, and another in September and + November of the same year, and another in February, 1883. And yet he + swears that he was not to have immunity. + </p> + <p> + Now, gentlemen, one point more about his plea of guilty. After having + withdrawn his plea of not guilty, after rising in court and solemnly + saying that he was guilty, and that he was guilty as charged in the + indictment, which says that Rerdell conspired with Brady and Vaile and + Miner and John W. Dorsey and S. W. Dorsey and Turner, that they all + conspired, and that all the false affidavits and false petitions and false + everything else mentioned in the indictment were made for the common + benefit of all, then on page 2570 he solemnly swears that he never entered + into any conspiracy or agreement with the defendants mentioned in the + indictment or any of them for the purpose of defrauding the Government. + When I asked him, With whom did you conspire, when did you conspire, and + what was the conspiracy? he could not tell; and yet he had stood up in + court and admitted that he was guilty, and then on oath denied it. Did he + not swear himself that after the division was made in the routes Stephen + W. Dorsey had not the interest of a cent in any route that went to Vaile + or Miner? Did he not also swear that Vaile and Miner had not the interest + of one cent in any route that went to Stephen W. Dorsey? Did he not swear + that they were not mutually interested, and yet did he not stand up in + court, and by a plea of guilty say that they were not only mutually + interested, but he was one of the interested parties himself? It seems + impossible for that man to tell the truth on any subject whatever. On page + 2571 he swears he never made any agreement with Vaile to defraud the + United States. He stood up in court and admitted, that he had. He swore + that he never made any agreement with John W. Dorsey. He admitted that he + had. He swore that he never made any agreement with S. W. Dorsey, and yet + stood up in court and admitted that he had. + </p> + <p> + Now let us see whether he expected immunity. He swears that he was taken + to Mr. Merrick's office by Mr. Woodward and his counsel. What Mr. Merrick + told him we find on page 2590: + </p> + <p> + Q. And did I not say that, under the circumstances, the Government would + have nothing to do with you unless you pleaded guilty?—A. You did. + </p> + <p> + Q. And that if you pleaded guilty you had nothing to trust to but the + mercy of the Government and the Court?—A. That is what you did, sir, + exactly. + </p> + <p> + Now, on page 2523: + </p> + <p> + Q. Was it not arranged that Mr. Woodward was to come to your house and + then take you to one of the attorneys for the prosecution, for the purpose + of arranging the terms and conditions upon which you were to take the + stand?—A. It was not. + </p> + <p> + In another place he swears that it was, and that the arrangement was + carried out. + </p> + <p> + The next point I wish to make, if the Court please, is that whenever what + is called an accomplice or an informer turns what is called State's + evidence, and whenever he is permitted by the court to be sworn as a + witness in a case, there is then upon the part of the Government an + implied promise that if he tells the truth he shall not be punished. I + read from the Whiskey cases, 9 Otto, page 595. Mr. Justice Clifford + delivers the opinion of the court. + </p> + <p> + Courts of justice everywhere agree that the established usage is that an + accomplice duly admitted as a witness in a criminal prosecution against + his associates in guilt, if he testifies fully and fairly, will not be + prosecuted for the same offence, and some of the decided cases and + standard text-writers give very satisfactory explanations of the origin + and scope of the usage in its ordinary application in actual practice. + </p> + <p> + The Court. What point are you now making to the Court? + </p> + <p> + Mr. Ingersoll. I am making this point: It appears from the evidence that + Mr. Wilshire, the attorney of Mr. Rerdell told him at the time he was + making up his mind whether he would go to the Government or not, about the + whiskey cases. + </p> + <p> + I make the point that when an accomplice turns State's evidence the State + cannot prosecute him after that if he testifies fully and fairly; that the + usage is immemorial, and that there is not an exception in the records of + all the cases in the books; consequently that when Mr. Merrick told him, + "You must look simply to the Government and to the Court and you will have + just exactly what the law gives you and no more," his remarks meant that + the law gave him perfect immunity, provided he went upon the stand and + swore truthfully. + </p> + <p> + The Court. You have demonstrated, as far as you have been able to, that he + has not sworn truthfully. + </p> + <p> + Mr. Ingersoll. He has not; he has not; and if the Government will act + fairly with him he will get no immunity. + </p> + <p> + When he went to the Government he understood the law to be that if he + swore fully and fairly, or if he swore in such a way that they could not + prove that he did not swear fully and fairly, he was to have immunity. He + understood that the more he swore against the defendants the better was + his chance for immunity. He knew that the Government would never complain + of any lie he swore against the defendants. + </p> + <p> + Now, the next question is what is the law of accomplices, of informers? + There was a remark made by Mr. Bliss in his speech, that they had plenty + of evidence in this case without the testimony of Mr. Walsh or Mr. Moore + or Mr. Rerdell; plenty of evidence without the testimony of Mr. Rerdell. + If that had been so then the Government had no right to put Mr. Rerdell on + the stand. There is but one excuse for using the testimony of a man who + pleads guilty, and that is that without his testimony a conviction cannot, + in all probability, be obtained. And upon that point I refer to 10 + Pickering, 478, and to 9 Cowen, 711; and not only upon that point, but + upon the point I made at first, that whenever you put such a man upon the + stand that of itself amounts to a promise of absolute immunity: + </p> + <p> + The object of admitting the evidence of accomplices is in order to effect + the discovery and punishment of crimes which cannot be proved against the + offenders without the aid of an accomplice's testimony. In order to + prevent this entire failure of justice recourse is had to the evidence of + accomplices.—I Phillips on Evidence, 107. + </p> + <p> + If, therefore, there be sufficient evidence to convict without his + testimony, the court will refuse to admit him as a witness.—Roscoe's + Criminal Evidence, 127. + </p> + <p> + Neither do I believe that Mr. Rerdell had a right to go upon the stand + until his case was finally disposed of. Precisely the same language is + used by Wharton on Criminal Evidence, 439: + </p> + <p> + An accomplice is used by the Government because his evidence is necessary + to a conviction. + </p> + <p> + That is the opinion of Mr. Justice MacLean, in 4 MacLean's Circuit Court + Reports, 103. + </p> + <p> + Mr. Merrick. If not improper I may remark that all those cases refer to a + condition of things prior to the trial in which the party appears as the + witness. + </p> + <p> + Mr. Ingersoll. The usual question is—and the court determines that + question—whether a man shall be a witness or not. + </p> + <p> + The Court. How can the court determine that without passing upon the + evidence in the case? That is not the duty of the court; it belongs to the + jury. + </p> + <p> + Mr. Ingersoll. The prosecuting attorney has to pass upon that himself when + he makes up his mind to put him upon the stand; and he only has the right + to do that when he believes that no conviction can be had without that + testimony. + </p> + <p> + The Court. Then it belongs to the prosecuting attorney. + </p> + <p> + Mr. Ingersoll. I go further than that, and say that the prosecuting + attorney cannot do that without consultation with the court, and without + saying to the court that he believes no conviction can be had without that + testimony. + </p> + <p> + Mr. Merrick. May I be allowed to suggest a point which probably you would + like to comment upon—that all these cases refer to accomplices prior + to the trial. My own opinion in reference to the case was that I would not + put Rerdell upon the stand until he had pleaded guilty. + </p> + <p> + The Court. I do not see the ground for the distinction between the cases. + Undoubtedly, when an accomplice goes over to the Government and offers his + testimony, he does it always in the hope of pardon or immunity from + prosecution. + </p> + <p> + Mr. Ingersoll. That is all I want at present. I want it understood, if the + Court please, that I shall argue to the jury that at the time he made up + his mind to go to the Government, he understood that that meant immunity. + </p> + <p> + The Court. Oh, well, of course it did. + </p> + <p> + Mr. Ingersoll. The next point is that the Court has to take all his story + or none; and I read from the second volume of Starkie on Evidence, + side-page 24: + </p> + <p> + In judging of the credit due to the testimony of an accomplice, it seems + to be a necessary principle that his testimony must be wholly received as + that of a credible witness or wholly rejected. His evidence on points + where he is confirmed by unimpeachable evidence is useless. The question + is whether he is to be believed upon points where he received no + confirmation. And of this the jury are to form their opinion from the + nature of the testimony, his manner of delivering it, and the confirmation + which it receives derived from other evidence which is unsuspected. If his + character be established as a witness of truth, he is credible in matters + where he is not corroborated. If, on the other hand, nothwithstanding the + corroboration upon particular points, doubts and suspicions still remain + as to his credit, his whole testimony becomes useless. + </p> + <p> + That is the point I want to make. If they are only to take his evidence + where it is corroborated, they might as well have had the corroboration in + the first place without him. + </p> + <p> + Now, gentlemen, the evidence, in my judgment, shows, and shows beyond a + doubt—and I believe it is now admitted—that at the time Mr. + Rerdell made up his mind to go to the Government he expected that he was + to have absolute immunity. You must judge of his evidence in the light of + that fact, in the light of that knowledge, in the light of what had been + told him by his counsel. Now, it is for you to say. You know something of + this man. You have seen him from day to day. You saw his manner upon the + stand. Why, they tell you that at one time he was overcome with emotion, + and that that is evidence that he was telling the truth. It may be that + there is left in that man some little spark of goodness still. When he was + swearing, or endeavoring to swear, away the liberty of the man who had + been his friend, may be at that time the memory of the past did for a + moment rush upon him. He may have remembered the thousand acts of + kindness; he may have remembered the years of liberality; he may have + remembered the days that he had spent beneath that hospitable roof; he may + have remembered the wife and children; he may have remembered all these + things, and for just that moment he may have realized what a wretch he + was. In no other way can you account for his having emotion. + </p> + <p> + But I am about through with that gentleman. I shall not take up your time + in the remainder of my speech by commenting upon Mr. Rerdell. Let us + finish his testimony now; let us put him out of sight; let us put him in + his coffin, close the lid, nail it down: + </p> + <p> + First nail—affidavit of June 20, 1881; drive it in. + </p> + <p> + Second nail—the letter of July 5, 1882, when he says that affidavit + of 1881 was made by the persuasion of Bosler; drive it in. + </p> + <p> + Third nail—affidavit of July 13, 1882, where he swears that they + were all perfectly innocent. + </p> + <p> + Fourth nail—the pencil memorandum; drive that in. + </p> + <p> + Fifth nail—the tabular statement that gave thirty-three and + one-third per cent, to Brady; drive it in. + </p> + <p> + Sixth nail—his pretended letter to Bosler telling about the advice + of Brady; drive that in. + </p> + <p> + Seventh nail—the letter he pretends that Dorsey, on the 13th of May, + 1879, wrote to Bosler, the copies being made by Miss White; drive that in. + </p> + <p> + Wind his corpse up in the balance-sheets from the red books made by + Donnelly. + </p> + <p> + Then you want a plate for his coffin. Let us paste right on there the + Chico letter, April 3, 1878. + </p> + <p> + Now, we want grave-stones. Let us take the red books, put one at his head + and one at his feet. + </p> + <p> + And let his epitaph, written upon the red book placed at his head, be—Up + to this moment I have been faithful to every trust. + </p> + <p> + My prayer to Gabriel is, "When you pass over that grave don't blow." Let + him sleep. There are, there never were, there never will be twelve honest + men who will deprive any citizen of his liberty upon the evidence of a man + like Mr. Rerdell. It never happened; it never will. + </p> + <p> + And now, gentlemen, it becomes my duty to answer a few points made by the + gentlemen who have addressed you on behalf of the Government. The first + gentleman who addressed you was Mr. Ker, and he had something to say—considerable + to say—about what are known as the Clendenning bonds. + </p> + <p> + They claim, gentlemen, first, that an immense fraud was in view when these + proposals—I think they are proposals—with accompanying bonds + and oaths of sureties were sent to Mr. Clendenning. I wish to give you, in + the first place, my explanation of this paper. See if I understand it. If + you sent this paper to that officer or to that gentleman as a form to + guide him in making up the bonds, you would only fill up that portion of + the bond in giving him a sample which you wanted him to fill up, and you + would fill it up in order to show him exactly how he was to fill it up; + and you would leave out that part which was already filled up in the bond. + That is exactly what was done in this case. There was not one of those + bonds that had an oath of the surety or the names of the sureties, because + they were unknown. The names were unknown, and the amounts that the + postmaster would certify to, and so all that was left in blank in the bond + sent. But this being only a sample, it was sent to him so that he might + know how to fill up the bonds that were sent. Consequently that portion + which was absolutely blank in the bond sent would be filled up as a guide + to him, and that portion which was filled up in the bonds sent would be + left blank in the guide, because he had nothing to do with that part. Now, + that is all there is to it. + </p> + <p> + What was left out, as they claim? Why they claim that the name of the + bidder was left out and the amount of the bid. It makes no difference. + That is not the slightest evidence of fraud, is it? + </p> + <p> + What was the next thing? They were never used, never. No bond included in + that bundle was ever accepted by the Government. No bonds were ever made, + no contract ever based upon them, not a solitary cent taken from the + Government by those papers. Why, then, this secrecy? Because when a man is + in this business he does not want anybody else to know that he is bidding, + in the first place; and, in the second place, he does not want anybody to + know the amount of the bid. If the amount of the bid is put in, then the + persons going security will know it, and they may tell. The postmaster who + approves the security will know it, and he may tell. The object of the + secrecy is not to defraud the Government, but to prevent other people + finding the amount of the bid and then underbidding. That is the object, + and it is the only object. And yet this little, poor, dried-up bond, + soaked in the water of suspicion, swells almost to bursting in the minds + of the counsel for the prosecution. There is nothing of it. It was never + worthy of mention, in the first place. You will never think of it when you + retire. It will never enter your minds; but if it does, remember that the + object of the secrecy was simply as a precaution against other bidders, + and had nothing whatever to do with the Government. + </p> + <p> + There is one other point. I believe Mr. Dorsey did say, in his + examination-in-chief, that he did not talk to anybody about it, and it + afterwards occurred that he did go and ask Mr. Edmunds whether what he had + asked Clendenning to do was illegal or improper. To that contradiction you + are welcome. + </p> + <p> + Mr. Ker gives the date of Boone's circular to postmasters asking for + information, and says it was dated December 1, 1879. Thereupon Mr. Merrick + corrects him, and says it was in 1878. The Court does the same. As a + matter of fact, these circulars were dated December, 1877. Gentlemen, I + just simply speak of this to show how easy it is for people to be + mistaken. Those circulars were gotten up for the purpose of getting + information before bidding. All the bids were put in in February, 1878. + The circulars were sent out, I believe, in November and December, 1877. + And yet upon that one point Mr. Ker is mistaken two years. + </p> + <p> + On page 4512 Mr. Ker states that Miner, in April, 1878, said to Moore that + it all depended upon affidavits of the contractors, and that "they were + all good affidavit men." The object of this, if it had an object, was to + show that this conspiracy was entered into with Moore, and that S. W. + Dorsey was a part of it in April, 1878. The evidence of Moore is that the + conversation took place, not in April, but in July, 1878, at the city of + Denver. And yet Mr. Ker tells you that it was in April. 1878. It is not, + perhaps, a very material point, but it simply serves to show you the + manner in which this evidence is repeated to you by the counsel for the + prosecution. + </p> + <p> + At page 4537 Mr. Ker says that before J. W. Dorsey went West he made an + arrangement with his brother to sell out his interest for ten thousand + dollars; that he did this before he started West; that he did it before + there was any service put on; and that these contracts were taken at such + low figures; yet John W. Dorsey had raised his interest up to ten thousand + dollars. Mr. Ker tells you that the evidence shows that before any service + was put on and before John W. Dorsey went West he tried to sell out his + interest for ten thousand dollars. Now, what was the object in making this + statement, unless it was pure forgetfulness? Why it was to connect Vaile + with this business some time in April, 1878. + </p> + <p> + On pages 4100 and 4102 J. W. Dorsey swears that he was here in Washington + in November, 1878; before that time he had gone to the Tongue River route; + he had come back from Bismarck; and it was then, not in April; it was + then, not before he went West; it was then, not before any service was put + on, that he talked with Vaile about selling out to him for ten thousand + dollars; and it was in November that he left the instructions for his + brother to sell to Vaile. It was not in April; it was not before he went + West; it was not before any service was put on. + </p> + <p> + At page 4540 Mr. Ker states that—Dorsey held thirty-three routes, + and there was not one of them, I suppose, that was not expedited to the + fullest extent. + </p> + <p> + What evidence is there of that? Is there any evidence that any route of + Dorsey's was expedited not mentioned in this indictment? + </p> + <p> + Did not Mr. Ker know whether the routes had been expedited or not? Did not + I offer in this court to prove what was done with every solitary route we + had? I say to the gentleman that the other routes were not expedited. I + say to the gentleman that only two other routes were, and we were not + interested in them. And I say also that they know the record, and they + knew the record when this statement was made; but they may have forgotten + it. But is it fair, gentlemen, for a prosecuting officer to state to you + that he supposed all the routes of Dorsey were expedited? One of those in + the indictment was not expedited; and not a route outside of the + indictment belonging to Dorsey, in which he had an interest, was + expedited. So much for that statement. + </p> + <p> + At page 4546 you are told by Mr. Ker that—Nobody ever heard of + expedition on a route before. + </p> + <p> + We proved what form of contracts had been in the PostOffice Department for + twenty years, and proved that in every one of them there was a clause for + expedition. So much for that evidence, gentlemen. + </p> + <p> + At page 4546 Mr. Ker tells us that J. W. Dorsey testified—That the + routes were taken so low as to cut out other people, but that they knew + they were to be expedited, and they knew they were to be increased. + </p> + <p> + J. W. Dorsey testified upon that subject, and his testimony will be found + at page 4085: + </p> + <p> + Q. Did you have an arrangement by which you should bid an extremely small + amount on the routes, with the further understanding that the service was + to be increased and expedited?—A. No, sir; I never thought of such a + thing. + </p> + <p> + And in his entire testimony in chief and cross, I believe there is not + another question on that subject. + </p> + <p> + On page 4549, referring to the letter of John M. Peck, which was in fact + written by Miner, Mr. Ker says: + </p> + <p> + Cedarville ought to have had as many mails as the other points between, + according to the order, but they were going to supply it only once a week. + . + </p> + <p> + As a matter of fact, gentlemen, this letter was written on the 22d of + October, 1878, and at the time the letter was written the mail, according + to the contract, was carried only once a week on that route, and + consequently Cedarville would have had exactly the same mail as any other + point; that is to say, once a week. + </p> + <p> + Page 556 of the record shows that three trips a week were put upon this + route to Loup City with a schedule of thirteen hours, but not until the + 10th of July, 1879, nine months after this letter was written. + </p> + <p> + On page 4609 Mr. Ker, in commenting upon an affidavit on the Toquerville + and Adairville route, reads from the evidence of John W. Dorsey, citing + page 3945, and ends at this question and answer: + </p> + <p> + Q. It was done so entirely, was it not?—A. It ought to have been so. + </p> + <p> + Now, let me read you the balance: + </p> + <p> + Q. Was it not so done?—A. No, sir. + </p> + <p> + Q It was not?—A. No, sir. + </p> + <p> + Q For whose benefit was it done?.—A. He—Meaning Rerdell—stole + five thousand dollars on that route, or very nearly that—four + thousand nine hundred dollars on that very route. + </p> + <p> + Q. When did he steal that five thousand dollars?—A. About a year ago + or a year and a half; I do not remember the time. + </p> + <p> + Q. From whom?—A. From Mr. Bosler and myself. + </p> + <p> + Q. At what time?—A. I should think in February, 1882. + </p> + <p> + The question now arises, did Mr. Rerdell take this money as charged? Read + now from the record, at pages 734 and 735, and you will find in the last + line of the tabular statement introduced in this case that on this very + route four thousand eight hundred and twenty-seven dollars and + eighty-three cents was paid to M. C. Rerdell as subcontractor on that + route. We also find that it was paid on the 4th of February, 1882. This is + the money that Dorsey swears Rerdell stole, and that gentleman never took + the stand to deny it. + </p> + <p> + At page 4616, Mr. Ker, after going over all the evidence with regard to + the affidavits as to the impossibility of the number of men and horses + doing the service rendered necessary by the affidavit, comes to the + following conclusion: That under the oath the proportion was, as nine to + twenty-three; that under the oath of Johnson the real proportion should + have been, and was, eight to twenty-two. + </p> + <p> + In other words, the real proportion, according to Mr. Ker's own statement, + would have taken more money from the Treasury than the wrong proportion + made under the fraudulent affidavit, and that was nine to twenty-three. + Nine into twenty-three goes twice and five-ninths; that is, two hundred + and fifty-five per cent, and a fraction. That is the fraudulent + proportion. Mr. Ker says that the real proportion was not as nine into + twenty-three, but as eight to twenty two. Eight into twenty-two goes twice + and six-eighths; that is to say, two and three-quarters; that is to say, + two hundred and seventy-five per cent. The fraudulent proportion, + according to his claim, only gave us two hundred and fifty-five per cent. + The real proportion, which Mr. Ker admits was right, according to the + evidence of Johnson, would have given us two hundred and seventy-five per + cent. In other words, we got twenty per cent, less under the fraud than we + would under the evidence of Johnson that Mr. Ker admits to be correct. + Finding that it is twenty per cent, less under the fraudulent affidavit + than under Johnson's estimate, he shouts fraud. + </p> + <p> + On page 4617 Mr. Ker tells us that Sanderson "had no more to do with the + route than you or I had." On page 731 I find that Mr. Sanderson drew all + the money on the route from Saguache to Lake City, I believe, with one + exception—the third quarter of one year—1878, it may be. He + drew every dollar upon that route, anyhow, up to February 17, 1882, except + for one quarter. And yet Mr. Ker stood up before you and said that + Sanderson "had no more to do with the route than you or I had." + </p> + <p> + Let us see if we have any more evidence. I find on page 3271 a subcontract + executed on route 38150, from Saguache to Lake City, by Miner, Peck & + Company to Sanderson for the whole time until June 30, 1882. I find that + subcontract is signed by John R. Miner and J. L. Sanderson. This contract + was to be from the 1st of July, 1878, and was made the 15th of May, 1878, + and here it is in evidence. The evidence is that the contract was made + between Miner, Peck & Company and Sanderson; the evidence also is that + Sanderson drew the pay. And yet Mr. Ker stands up before you and says that + Sanderson "had no more to do with the route than you or I had." + </p> + <p> + The subcontract, gentlemen, states that Sanderson is to have the entire + pay, and it was before the contract term began. So much for that. + </p> + <p> + Mr. Ker. When was it filed? + </p> + <p> + Mr. Wilson. That does not make any difference. + </p> + <p> + Mr. Ingersoll. "When was it filed?" There was a trial in my town of a suit + against the city, I believe, for allowing a culvert to get filled up and + flood a man's cellar. They brought in evidence to prove, don't you see, + that the culvert was not filled up, and one witness swore that the day + before the rain he saw a dog go through there. One of the jurors got up + and said that he would like to ask a question; he said, "What was the + color of that dog?" + </p> + <p> + On page 4631 Mr. Ker states that during the investigation by Congress—Contractors + got out printed letters and sent them to every subcontractor upon every + star route in the country, asking them to write to their members of + Congress urging their members of Congress to vote for this appropriation. + </p> + <p> + On page 1346 is Rerdell's letter upon this very route, in which not one + word is said about the contractor doing anything one way or the other. + There is no evidence that any other letter was written on that route. I + call your attention to it to show how the prosecution strained every + possible point, and how they endeavored to patch and piece and putty and + veneer this evidence. Mr. Miner wrote a letter (page 669). I do not + remember any other evidence upon this subject. And certainly it would be + impossible to write a milder letter than Mr. Miner wrote. He did not ask + the people to get up petitions against reduction, or ask for more service. + Here is what he says, and I will read you Mr. Miner's letter: + </p> + <p> + It will be well for the people of your section to send to the member of + Congress from your district such petitions as will express their opinions + on the subject of this reduction. + </p> + <p> + Truly, yours, + </p> + <p> + JNO. R. MINER, Ag't. + </p> + <p> + Could you write a milder letter than that, to save your life, and refer to + the subject? Could you write a fairer letter than that, to save your life? + </p> + <p> + He does not say, "Get up petitions against it." He does not say, "Send + those petitions to your member of Congress and tell him to do what he can + to prevent it." Not one word of that kind. + </p> + <p> + Yet that is considered as evidence of fraud; that is considered as + evidence of conspiracy. + </p> + <p> + The next point made is that Mr. Ker states, at page 4632, that Brady + endeavored to bribe the members of Congress into making this appropriation + by doubling every star route in the Southern and Middle States, and did so + during the Congressional investigation. What are the facts? The deficiency + bill passed April 7, 1880.. That appropriated money only for the purpose + of carrying the mails up to June 30, 1880. The regular appropriation bill + was passed at the same session, and appropriated money to carry the mails + from the 1st of July, 1880. Now let us see if Brady doubled the trips in + these Southern and Middle States during that investigation. On page 3393 + Brady says: + </p> + <p> + Practically on July 1, 1880, we doubled up the entire service for all the + Southern and Middle States. + </p> + <p> + This was after the deficiency bill had passed; it was after the money + appropriated by that bill had been expended; and it was paid for out of + the regular appropriation for the Post-Office Department. + </p> + <p> + Yet that was a bribe. It just shows that Congress by the regular + appropriation indorsed the policy of Mr. Key to have a daily mail to every + place where there was a county-seat. + </p> + <p> + At page 4652, on the route from Mineral Park to Pioche, there were two + petitions, marked 17 K and 18 K. It is somewhat singular that the + Government brought no persons whose names are on these petitions to show + that they had not authorized their names to be signed thereto, but they + brought persons to show that the signatures were not genuine. + </p> + <p> + On page 1621 the witness Wright swears that the names are the same on both + petitions. He is then asked if he knows the signatures of any other + people, and he says "Yes." He then says that the signature of John Deland + is not genuine. He swears that he knows nearly every one of the people. He + is then asked whether these signatures are in the handwriting of the + people, and he replies that he thinks not. Then he is asked as to the + signature of Cornell, and he says; That is not in his handwriting. + </p> + <p> + Here is his cross-examination, gentlemen: * * * + </p> + <p> + I asked him, "Do you know these people;" made him swear that he knew Mr. + Street; that he knew the signatures of many; that he knew these people. I + proved where they were living; that they are living in the country now, + good, respectable, honest people. And yet the Government did not bring one + man whose name had been written here to prove that he had not authorized + it. Why? Because they could not. They knew by the testimony here that the + petitions were absolutely and perfectly honest. And it is in that way that + they seek to deprive men of their liberty. They did not call a man whose + name appeared on those petitions to say that his signature was not genuine + or not authorized. I proved that many of them are still living and + first-rate men. + </p> + <p> + Now, gentlemen, you remember besides that, that Mr. H. S. Stevens, the + delegate from that Territory, recommended the same thing asked for by + those petitions (pages 1635, 1636), where it was admitted by counsel for + the Government that the letters of Stevens were genuine. It is upon that + same route that General Fremont also wrote a letter (page 1636). And I + will show you that the names are exactly or substantially the same on 18 K + as those found at pages 1638 and 1639. + </p> + <p> + Mr. Ker and Mr. Bliss both endeavored to show that there were no petitions + on this route, and that it was simply done on a letter. If you will look + at page 1603 you will find the evidence of Mr. Krider, who was postmaster + at Mineral Park, in which he says there were petitions. + </p> + <p> + In order to show that there was a conspiracy between these parties, or + between Dorsey and Vaile, or Dorsey, Rerdell, and Vaile, Mr. Ker called + the attention of the jury to two letters, one written by Rerdell to the + Sixth Auditor, and one written by Vaile. Here is a letter dated the 21st + of August, 1880. It is introduced, of course, to show that there was a + conspiracy at that time between Mr. Vaile and Mr. Dorsey. It was written + by Mr. Rerdell to the Sixth Auditor: + </p> + <p> + To the Sixth Auditor: + </p> + <p> + Sir: H. M. Vaile was subcontractor on route 40104 during the first quarter + of 1879. In the first settlement for that quarter Vaile was paid for + certain expedited service—it was subsequently discovered that the + expedition thus paid for was never performed—the department + therefore, and very properly, too, charged back to the route the amount + thus paid for expedition never performed, viz, some two thousand eight + hundred dollars. + </p> + <p> + Meanwhile Vaile, who alone was in fault, had ceased to have any connection + with the route—the charging back, therefore, fell on the wrong man, + the man who was in no way responsible for the non-performance of the + expedition, except so far as he stood between the department and the + subcontractor. + </p> + <p> + It is true that this payment was made by the regular contractor to the + subcontractor, but it is equally true that it was, in a measure, a + compulsory payment. By the rules of the Post-Office Department it is made + obligatory on the regular contractor to pay the subcontractor before the + department will settle with him—it is not, therefore, a payment as + between two individuals. The receipt is on the form prescribed by the + Post-Office Department, and is witnessed by (the then) Postmaster Edmunds, + as the rules prescribe. It is on file in the Post-Office Department, and I + maintain that our covenants were fulfilled when we put the receipt on + file. If Vaile had performed the service as he agreed he would do, and for + doing which he received this money, we should have been reimbursed by a + certificate of service from the contract office. Now, will you permit + Vaile to take advantage of his own wrong, and thus enable him to defraud + another man out of his money? + </p> + <p> + I refrain from discussing the question as to what would be the duty of the + department if Vaile, who had received the money wrongfully, had ceased to + have any connection with the department, because it is not pertinent to + this issue; if it were, I could cite you to many authorities and + precedents to the effect that even then it would be your duty to refund + the money to me. But this is not necessary, because Vaile is still doing + business with the department. + </p> + <p> + He is subcontractor on route 44156 for the full contract pay, which is + twenty-two thousand dollars per annum, hence the department will have no + difficulty in reimbursing itself for what was, in simple truth, an + overpayment. + </p> + <p> + I think you will agree with me when I ask that this money be refunded to + the subcontractor on route 40104 and charged to route 44156, because it is + simply correcting an error. You have the same authority to charge it to + one as you have to charge it to the other, and you have already charged it + to me. + </p> + <p> + The law-merchant would experience no difficulty in adjusting a matter of + this sort. The merchant who would refuse to correct an error of this + character would be justly called a lame duck, and would be scouted from + "'Change" Vaile was erroneously paid for the performance of a service + which he never did perform. Therefore I ask that he be compelled to render + unto Caesar the things that he ceasers. + </p> + <p> + Respectfully, + </p> + <p> + M. C. RERDELL. + </p> + <p> + Acting for himself and for the regular contractor on route 40104. + </p> + <p> + That is to show also, gentlemen, that there was a conspiracy between Vaile + and Rerdell. Now, Mr. Vaile wrote a letter also to the same man. I will + read it: + </p> + <p> + Washington, D. C., July 9, 1880. + </p> + <p> + Hon. J. McGrew: + </p> + <p> + Sir: In reply to yours of July 8th, relating to the Jennings case, I would + state that I did not receive the money in manner and form as stated by one + M. C. Rerdell, nor was the draft of J. W. Dorsey, on said route 40104, for + the quarter named, to get an advance of money for myself or for my own + use. + </p> + <p> + At the time I receipted for my pay as subcontractor on said route I did + not, in fact, receive any money, but did so receipt that J. W. Dorsey + might negotiate his draft on said route, and for no other purpose. + </p> + <p> + Although I was subcontractor of record on said route at the time named, I + was not a subcontractor in my own behalf, but as trustee for J. W. Dorsey, + S. W. Dorsey, Isaac Jennings, and others, to collect said money and pay it + over as said parties should direct. I further state that all money that + ever came into my hands from said route I did pay over to the parties + named as trustee, as by them directed. + </p> + <p> + Acting as trustee of said Jennings, and believing that he had performed + the mail service on said route as by him agreed, and in accordance with + the laws and regulations of the Post-Office Department, I did pay said + Jennings, on the 1st day of April, 1879, the sum of $1,257.73, a sum of + money he was entitled to provided he had carried the mail three days per + week on the schedule required, which I fully believed at that time he had + done, and for a long time after. + </p> + <p> + I further state that I am informed that said Jennings is not responsible; + that it would be utterly impossible for me to receive back the $2,800, or + any part thereof; that in fact this sum of money sought to be collected of + me, if collected for said Jennings's benefit, or go into his hands in + addition to the sum he now has unlawfully, doubly remunerating him for his + neglect of duty. + </p> + <p> + I further state that all the money collected on said route not paid to + said Jennings was paid to liquidate the debts of J. W. Dorsey, S. W. + Dorsey, and others previously contracted, and not one dollar ever remained + in my hands. + </p> + <p> + I further state I believe both J. W. Dorsey and S. W. Dorsey are + irresponsible, and it would be impossible for me to collect any part of + said money from them. As above stated, said money came into my hand only + as their agent or trustee, and at once paid out as they directed; that my + subcontract was put on file simply to enable J W. Dorsey to negotiate his + draft on said route, when in fact said Jennings was the real + subcontractor. Said Jennings agreed to perform the service on said route + strictly in accordance with the laws and regulations of the department, + for the annual sum of $12,600.00, the duplicate of which contract was + delivered over to S. W. Dorsey by myself, and which I believe is now in + the hands of M. C. Rerdell, and which, or a copy thereof, I demand shall + be filed with you in this case, that you may see what said Jennings agreed + to do. + </p> + <p> + This is certainly a strange claim. Jennings agreed to perform mail service + on said route. I believed he had done it, and paid him accordingly. It + turns out long after he did not properly perform the service, but was + attempting a swindle, and a deduction is ordered for not performing the + service properly. Then this man, the guilty party, having got money from + me, as trustee, wrongfully, as well as from the Government, and asks that + the Auditor compel me to pay him the sum of $2,800.00, when, as I am + informed, he is seeking to get this same deduction remitted. + </p> + <p> + Surely if he succeeded in all this he will make a good thing out of his + rascality and I a good victim without remedy. I state again I did not + hypothecate said draft for myself, did not receive one cent as + subcontractor, but became the payee of said draft that said J. W. Dorsey + might negotiate it, and I to dispose of the proceeds as he should direct, + all of which I did. Therefore I request you not to compel me to pay the + sum of money asked, but if I am liable at all let the parties seek their + redress at law, where all the facts can be obtained and justice rendered + me. And it is also well known that I am a man of means, and any judgment + rendered against me could and would be collected, dollar for dollar. + </p> + <p> + I am, very respectfully, + </p> + <p> + H. M. VAILE. + </p> + <p> + That was introduced to show that at the time Vaile was in a conspiracy + with S. W. Dorsey. Why did they introduce it? Simply for one line in it in + which he says he was acting as the trustee of S. W. Dorsey. He was. How? + Dorsey had advanced money. The routes were liable, and the persons who + held the routes had agreed to refund it. The subcontracts were made to + Vaile, and Vaile agreed out of the proceeds of the route to pay the debt + to S. W, Dorsey. To that extent he was the trustee of S. W. Dorsey. Dorsey + swears it. Vaile admits it, and we all claim it to be true. And yet they + introduced that letter simply because that line was there. Now, gentlemen, + I have read both of those letters, and I want you to remember them if you + can, and tell me whether at that time Vaile and Dorsey were in a + conspiracy together to defraud this Government. And yet the Government + introduced this letter just to prove that one thing, and no more. + </p> + <p> + On the Julian and Colton route there is this peculiarity: The Government + failed to prove the number of men and horses necessary on the original + schedule for three-times-a-week service, and consequently we are left + without any standard by which to judge; without any standard by which to + measure. + </p> + <p> + On page 4685 Mr. Ker calls attention to the fact that the proposal marked + 6 P, originally contained an offer to carry the mail at thirty-six hours + for seven thousand seven hundred and twenty-two dollars additional, but he + states that the thirty-six was rubbed out and twenty-six was put in its + place. + </p> + <p> + That is, they offered to carry it in thirty-six hours for seven thousand + and odd dollars, and then afterwards fraudulently, of course, rubbed out + the thirty-six and inserted twenty-six. But they did not change the sum + for which they offered to carry it. They offered to carry it in thirty-six + hours for seven thousand seven hundred and twenty-two dollars, and + afterwards they rubbed out the thirty-six and put in twenty-six, and then + offered to carry it in twenty-six hours for seven thousand seven hundred + and twenty-two dollars. The question arises, how did that hurt the + Government? The question arises, was that a fraud? If it had been + originally twenty-six hours and they had rubbed out those figures and put + in thirty-six hours, then you might say the intention was to defraud the + Government. But the proposition had to be accepted after that was done, + and consequently in no event could the Government be defrauded by the + change of the proposal before the Government accepted the proposal. I + might say to a man, "I will let you have a house and lot for ten thousand + dollars." He does not accept the proposal. Have I not the right on the + next day to charge him twelve thousand dollars for it? Is that a fraud? If + I tell him, "You may have it for ten thousand dollars," and he accepts, + then, as an honorable man, I cannot change the proposal. But if I tell him + he may have it for twelve thousand dollars and then afterwards tell him he + may have it for ten thousand dollars, Mr. Ker calls that a fraud of two + thousand dollars. If one of the jury should give me a contract to deliver + one hundred horses for ten thousand dollars, and I should scratch out the + one hundred and put in seventy-five, certainly you would not consider + yourself defrauded. Or if I agreed to carry the mail in thirty hours for + the Government for seven thousand seven hundred and twenty-two dollars, + and then afterwards changed and said I would carry it in ten hours less + time for the same price, can that be tortured into a fraud—unless I + might be indicted for defrauding myself? + </p> + <p> + On page 4569 Mr. Ker says that Mr. Farrish, who was the subcontractor + says: + </p> + <p> + I always carried the mail in from six to ten hours before expedition. I + carried the mail from Greenhorn to Pueblo. I did not stop at Saint + Charles. + </p> + <p> + On page 835 Mr. Farrish says he carried the mail for three months in 1881. + That is the only time Farrish carried the mail. This route was expedited + on the 26th day of June, 1879, and yet Mr. Ker says that Farrish carried + the mail before it was expedited and carried it in from six to ten hours. + Mr. Farrish did not carry the mail until about two years after it had been + expedited. + </p> + <p> + On page 4768 Mr. Ker, speaking of the two affidavits on the route from + Pueblo to Rosita, laughs at the idea that the proportion was the same in + both. + </p> + <p> + Now, what is the proportion in both? One affidavit says that on the then + schedule it would take eight men and horses; that is, the horses and men + added together make eight, and that on the proposed schedule it would take + twenty-four. Then they would be entitled to just three times the money + they were receiving on the original schedule, because three times eight + are twenty-four. Let me explain here what I mean by proportion. If I am + carrying the mail with, say, four horses and two men, making a total of + six, and if then that service is increased so that it takes twelve men and + horses, I get twice the original pay; if it takes eighteen men and horses, + I get three times the original pay. You understand that there is always a + relation between the pay and the number of men and horses used. If I am + using one man and one horse and am getting a thousand dollars for the + service, and if it is expedited so that I have to use two men and two + horses, I would get two thousand dollars. In the first affidavit they had + eight men and horses. If they put up the service to what they were going + to, it would take twenty-four. Three times eight are twenty-four. Then + they would get three times the original amount of money. In the second + affidavit he swears that it takes fifteen men and animals on the present + schedule, and on the proposed schedule it would take forty-five men and + animals. Three times fifteen are forty-five. Three times eight are + twenty-four. You see that on both affidavits you get the same amount of + money to a cent, because the proportion is absolutely and exactly the + same. Yet Mr. Ker laughs at the idea of the proportion being the same. It + took eight men and horses in the first affidavit on the present schedule, + and twenty-four on the proposed schedule. There the contractor would be + entitled to three times the original sum. In the next affidavit it took + fifteen men and horses on the original schedule and forty-five men and + horses on the proposed schedule. Again, he would be entitled to three + times the original sum. + </p> + <p> + On page 4579 Mr. Ker says the oath was put in for three trips. By looking + at page 867 we find that it was for seven trips and not three. There is + nothing like accuracy. + </p> + <p> + On page 4580 Ker says that Brady had on the jacket before him the evidence + that Hansom was a subcontractor at three thousand one hundred dollars a + year, and the contract gave the contractor a clear profit of five thousand + and forty-eight dollars. The fact is, that Brady's order was made on July + 8, 1879. That order is on page 866. Hansom's subcontract was filed October + 22, 1879, about three month's after Brady's order was made. And yet Mr. + Ker tells you that on that jacket when Brady made the order he had notice + of Hansom's subcontract. Unless he had the gift of seeing into the future + he knew nothing about it. He would have had to see into the future three + months in order to have had it before him at that time. + </p> + <p> + On page 4703 Mr. Ker says that the letter of J. W. Dorsey, written April + 26, 1879, referred to the Perkin's affidavit as not putting the number of + men and animals high enough. Let us see. Another case of arithmetic. The + letter refers to Dorsey's statement transmitted with the letter. It could + not be the way stated by Mr. Ker for the following reasons: The affidavit + of Perkins said three men and six animals one trip a week on the then + time. That makes nine. On one trip a week with the reduction to + eighty-four hours, eight men and twenty-four animals would be required. + That makes thirty-two. The proportion then gives three and five-ninths or + three hundred and fifty-five per cent, increase of pay. That is the + affidavit, he says, that Dorsey wrote out and said was not high enough, + and then fixed up one that was. The affidavit that John W. Dorsey sent in + the letter says that it will require for three trips a week on the then + time four men and twelve animals, making sixteen; on the proposed schedule + for the same number of trips eleven men and thirty-two animals, making + forty-three. As sixteen is to forty-three—that is, two hundred and + sixty-nine per cent, increase of pay. Now, that letter, he says, claims + that the Perkins affidavit did not put it high enough. I say that he did + not refer to the Perkins affidavit. He could not say that did not put it + high enough, because that put it at three hundred and fifty-five per + cent., and the affidavit he inclosed in the letter, put it at two hundred + and sixty-nine per cent.—nearly one hundred per cent. less. + According to Mr. Ker he was complaining that that affidavit was too low, + and so he inclosed one, one hundred per cent, lower. That will not do. + Besides all that the affidavit of John W. Dorsey is for forty-five hours, + while the first affidavit, I believe, is for eighty-four hours. John W. + Dorsey offers to carry it in forty-five hours for two hundred and + sixty-nine per cent., and the other affidavit on the basis of eighty-five + hours calls for three hundred and fifty-five per cent. Do you not see, + gentlemen, it is utterly impossible to believe that? + </p> + <p> + On page 4738 Mr. Ker again falls into mathematics. He says that Mr. Brady + allowed on the Bismarck route for three hundred men and three hundred + horses. + </p> + <p> + I tell you this prosecution ought to go into the stock business. One + hundred and fifty men and one hundred and fifty horses were called for by + the affidavit. Now, Mr. Ker says when Brady doubled the trips he doubled + the horses, and when he doubled the trips he doubled the men. That would + make three hundred men and three hundred horses. If he had doubled the + trips again he would have had six hundred men and six hundred horses, + enough cavalry to have protected that entire frontier. Yet after all the + Bismarck and Tongue River business, Mr. Vaile comes in and swears, on page + 4062, that the loss on that route to Vaile and Miner was at least fifty + thousand dollars; and Mr. Miner swears that the loss on the route was + between forty and fifty thousand dollars. Vaile says if he had known at + that time of the clause in the contract by which he could have gotten out + of it he would have abandoned the route, but that he had not read a + contract for ten or twelve years. Now, as a matter of fact, gentlemen, and + it seems to me the prosecution ought to be perfectly fair, Brady allowed + only forty per cent, of the affidavit made in regard to the one hundred + and fifty men and the one hundred and fifty horses, and yet according to + Mr. Ker he allowed for three hundred men and three hundred horses; instead + of allowing for forty per cent, of one hundred and fifty men and one + hundred and fifty horses, he allowed for one hundred per cent. more. That + would have run the pay up, I should think, to about a million dollars. Mr. + Ker also says that Mr. Vaile swears that he induced Brady to give an + extension to August 15th, and thereupon Mr. Ker makes the remarkable + statement that Vaile did not do it; that Boone did it; I am very thankful + for the admission. From that it appears that Boone was more potent with + Brady than Vaile was. + </p> + <p> + If he was, why did they have to get somebody close to Brady? Afterwards we + are told by Mr. Ker that Mr. Boone was kicked out to make a place for + Vaile, so as to get a man close to Brady. + </p> + <p> + Mr. Ker. Will you tell me what page it was I spoke about Boone? + </p> + <p> + Mr. Ingersoll. It was Mr. Bliss. It is Mr. Bliss's turn to explain now. + The notes that I have were handed to me by another, and I supposed + referred to Mr. Ker. Mr. Bliss said: + </p> + <p> + This, I think, can leave no doubt in the minds of any one that the + extension was obtained by Mr. Boone. + </p> + <p> + Mr. Bliss says that on page 4899, and so I will relieve Mr. Ker of that + charge. + </p> + <p> + Mr. Ker. I am glad to be relieved of something. + </p> + <p> + Mr. Ingersoll. I do not want to do any injustice to Mr. Ker; between Mr. + Bliss and Mr. Ker I am perfectly impartial. + </p> + <p> + Mr. Ker attacks the affidavit made by Vaile on the Vermillion and Sioux + Falls route. Let us get at the facts. The route was let as fifty miles + long. That is the distance that was given in the advertisement by the + Government. They wanted expedition on that route. The Government asked for + it. Mr. Vaile asked if he could make the affidavit, and he made it, + supposing the route was fifty miles long. He never had been over it. It + turned out that it was about seventy-three miles long, and consequently + the affidavit provided for too fast time. The affidavit called for ten + hours. That made over seven miles an hour; or, including the stoppages, I + presume about ten miles an hour. The difficulty arose out of the mistake + in the distance. Vaile so swears, on page 4030. He also swears that he + went to the department and there saw Mr. Brewer, who was in charge of that + bureau, or at least of that business, and it was Brewer who suggested to + him to make the affidavit. Mr. Vaile did not ask for any expedition on + that route. Mr. Brewer spoke to him about it. Mr. Vaile swears that Brewer + spoke to him first. Mr. Vaile swears that he made the affidavit at the + instigation of Mr. Brewer. Mr. Bliss says Brewer is an honest man, and + calls him honest Brewer. Why did he not call honest Brewer to the stand + and let him deny that he asked Mr. Vaile to make that affidavit? + </p> + <p> + The Court. Yes. + </p> + <p> + Mr. Ingersoll. [Resuming]. If the Court please, and gentlemen of the jury, + on page 4645 there is the letter from Miner to Carey. + </p> + <p> + John Carey, Esq., + </p> + <p> + Fort McDermitt, Nev. + </p> + <p> + Dear Sir: One S. H. Abbott, who was postmaster at Alvord, I find, by + accident, is writing to the department that you do not pay your bills, and + that there is no need of anything more than a weekly mail. + </p> + <p> + I wish you would see this man at once and satisfy him; pay him whatever is + reasonable and report to R. C. Williamson, at The Dalles. + </p> + <p> + I suppose that is what he is after. He knows nothing of the through mail, + and probably a weekly is all he needs; but more likely he wants some + money. He complained once before to the department that he had to make a + special trip to Camp McDermitt to make his returns, and I sent him thirty + dollars, and it was all right. Now, I suppose, he wants a little more + money. Yours, &c., + </p> + <p> + JOHN R. MINER. + </p> + <p> + That letter was introduced to show that there was a conspiracy between + Miner and Brady; and yet when that man complained that the service was not + put on at the time it should have been, and that he was postmaster, was + forced to carry his returns to the nearest post-office, and consequently + spent about thirty dollars, Miner sent him the money. Why? Because he and + Brady were not confederates; because they were not conspirators. For that + reason he sent the man thirty dollars. The letter says, "The man that was + postmaster." When this letter was written Mr. Abbott was not postmaster; + he had ceased to be postmaster. Yet they have endeavored to impress upon + you the idea that when this letter was written to Abbott he was then + postmaster. He had written a letter, stating that a weekly mail was all + that was wanted, and that Mr. Carey did not pay his bills. Mr. Miner wrote + to Carey on that account, "The man is trying to make trouble. He tried to + make trouble once before, and we sent him thirty dollars. He is not + postmaster now. He has no official position. Go and see him. Give him what + is reasonable, and tell him to mind his own business." Why? If he had been + in a conspiracy with Brady he would not care what Mr. Abbott wrote to the + department. If he was absolutely certain there he would not care anything + about it. But having no arrangement with the Second Assistant, having no + arrangement of the kind set forth in the indictment, he did not want Mr. + Abbott to write letters; he did not want Mr. Abbott to make trouble. That + letter, instead of showing that there was a conspiracy, shows absolutely + that there was not, and the letter was not written to him while he was an + official. The man was not then postmaster. He simply had been. + </p> + <p> + The next point made by Mr. Ker is a very powerful point, that Mr. Vaile + came from Independence, where the James boys came from, and where they + steal horses. Suppose I should say that Mr. Ker comes from Philadelphia, + the town that Mr. Phipps lives in, the man who stole the roof off of the + poorhouse. Would there be any argument in that? + </p> + <p> + Mr. Ker says that J. W. Dorsey wrote in his letter that the profits would + be one hundred thousand dollars a year. That was a mistake. I turn to the + letter and I find that it says one hundred thousand dollars in the life of + the contract, and not one hundred thousand dollars a year. + </p> + <p> + Mr. Bliss. Your Honor, I claim the right to call attention to the fact + that Mr. Ker read the letter in full referring to the one hundred thousand + dollars clear of expenses. He read it and then followed it by the + statement of one hundred thousand dollars a year, which was obviously a + mistake. + </p> + <p> + Mr. Ingersoll. That only makes it worse. After he had read the letter to + the jury, and while the echoes of the letter were still in the court-room, + he then said one hundred thousand dollars a year, while the letter said + one hundred thousand dollars within the life of the contract. Upon such + statements, gentlemen, they expect to strip a citizen of his liberty. [To + counsel for the Government.] You will have some work to do in a little + while. It may be that Mr. Ker forgets these things. I do not say how it + happened. + </p> + <p> + Mr. Ker also tells you that Miner wanted to cut out S. W. Dorsey and J. W. + Dorsey and Mr. Peck. Was that because he was a co-conspirator? He also + tells you that Miner deserted his friend S. W. Dorsey. Was he at that time + a conspirator? Mr. Ker tells you that S. W. Dorsey wanted to gratify his + spite against Vaile and that the first thing he did after he got out of + the Senate was to write that letter to the Second Assistant + Postmaster-General against the subcontracts. Does that show they were + co-conspirators? Did he want to gratify his spite because he had made a + bargain with them by which they were to realize hundreds of thousands of + dollars? + </p> + <p> + Mr. Ker also says that Miner's letter to Tuttle shows the conspiracy. + </p> + <p> + It is perfectly wonderful, gentlemen, how suspicion changes and poisons + everything. + </p> + <p> + Let me read you the letter from which Mr. Ker draws the inference that + there was a conspiracy. It is on page 885: + </p> + <p> + Washington, D. C., August 19, 1878. Frank A. Tuttle, Box 44, Pueblo, + Colo., + </p> + <p> + Dear Sir: Yours 14th received. We accept your proposition, provided (so + that there shall be no conflict) that a friend of ours, who has recently + gone to Colorado, has not made different arrangements before we can get + him word. + </p> + <p> + The petition for expedition should be separate from the petition for + increase of number of trips. We make no boast of being solid with anybody, + but can get what is reasonable. Yours, truly, + </p> + <p> + MINER, PECK & CO. + </p> + <p> + You are told that is evidence of a conspiracy. Suppose the letter had been + this way: "We boast of being solid. We can get anything, whether + reasonable or not." That probably would have been evidence of perfect + innocence. He writes a letter and says: + </p> + <p> + We make no boast of being solid with anybody, but can get what is + reasonable. + </p> + <p> + They say that is evidence of conspiracy. Suppose he had written the + opposite, "We do boast of being solid and we can get anything, whether it + is reasonable or not." According to their logic that would have been + evidence of absolute innocence. Whenever you are suspicious you extract + poison from the fairest and sweetest flowers. Prejudice and suspicion turn + every fact against a defendant. + </p> + <p> + On page 4557 Mr. Ker tells us that Vaile never saw Peck, and yet had the + impudence to write that his subcontract was signed by Peck in person. The + subcontract is in evidence here. Nobody pretends that it was not signed by + Peck, and yet that is brought forward as a suspicious circumstance against + Mr. Vaile, because there is no evidence that Mr. Vaile ever saw Mr. Peck. + Is there anything in a point like that? "My contract was signed by Mr. + Peck in person." He does not mean by that that he saw him sign it. The + evidence here is that it was signed by Peck, and yet the fact that he says + Peck did sign it, and the fact that he had never seen Peck, Mr. Ker + endeavors to torture so that you will think he wrote what he knew to be + untrue. + </p> + <p> + On page 3251 Mr. Ker says that Miner does not deny writing the letter + marked 63 E. This letter was dated the 10th day of May, 1879, and was on + one of the Dorsey routes. + </p> + <p> + Miner swears that he never signed a paper, never touched pen to paper on + any of the Dorsey routes after the 5th day of May, 1879. + </p> + <p> + Now, gentlemen, after having made all these statements to you, and I have + only taken up a few of them, these misstatements, these mistakes, Mr. Ker + winds up by telling you it is the safer plan to find a verdict of guilty, + because if you find them guilty wrongfully the Court will upset your + verdict. + </p> + <p> + Gentlemen, you have sworn to try this case according to the law and the + evidence. You are the supreme arbiters of this case. It is for you to + decide upon this evidence, and for you alone. Yet you are told by Mr. Ker + to shirk that responsibility. You are told by him to violate your oaths + and find against these defendants, for the sake of certainty, and then + turn them over to the mercy of the Court. That is not the law. These + defendants are being tried before you. They have the right to your honest + judgment. If you have any doubt as to their guilt you must find them not + guilty or violate your oaths. You are told it is the safer way to find + them guilty and then let them appeal to the Court for mercy! That doctrine + is monstrous. It is deformed. Such a verdict would be the spawn of + prejudice, and cowardice, and perjury. You cannot give such a verdict and + retain your self-respect. You cannot give such a verdict and retain your + manhood! If you have any doubt as to the guilt of these defendants you + must say they are not guilty. You have no right to turn them over to the + Court, no matter whether the Court is merciful or unmerciful. You must + pass upon their guilt, and you must do it honestly. + </p> + <p> + I never heard so preposterous, so cruel a sentiment uttered in a court of + justice. It amounts to this, gentlemen: If you have any doubt of guilt + resolve the doubt against the defendant. If the evidence is not quite + sufficient, find against the defendants and turn them over to the mercy of + the Court. Why should we have a jury at all? Why should you sit here at + all? Why should you hear this evidence, if after all you are to shirk the + responsibility and turn the defendants over to the Court? You never will + do it, gentlemen. + </p> + <p> + Now, gentlemen, I wish to call your attention to a few points made by + Colonel Bliss. You must remember that Colonel Bliss has been very highly + complimented by his associates as a kind of peripatetic index of this + case, an encyclopedia of all the papers; that he never makes a mistake; + that he recollects amounts with absolute certainty, and that he is + infallible. Keeping all these things in your mind, I wish to call your + attention to some statements that he has made. First of all, I will refer + to a little of his philosophy, or law, and that is, that in every + affidavit you should state not the number necessary on the then schedule, + but the actual number, and that there could be no doubt about the number + of men and horses used at the time when an affidavit was made, and that + consequently anybody making an affidavit should put in the number then + actually used. + </p> + <p> + Let us see how that will work. He says the oaths are false because they do + not state the actual number of men and horses employed in carrying the + mail at the time they were made. He says that the person making the + affidavit swore to the number actually employed, and that where that + number was not employed that fact of itself shows the affidavits to be + false. I say that is not the law. The law calls for the number necessary, + not the number actually employed. Let me show how easy it would be to + cheat the Government on the principle laid down by the gentleman. I will + show you how infinitely silly that is. Let me illustrate. Here is a route + one hundred and fifty miles long, once a week. You know it is possible for + one man and one horse for a little while to carry that mail and to go one + hundred and fifty miles one way and one hundred and fifty miles the other, + making three hundred miles in a week. You can take a magnificent horse and + a good, stout, tough man, and you can do it. + </p> + <p> + The Court. Or a boy. + </p> + <p> + Mr. Ingersoll. Or a stout, tough boy. + </p> + <p> + The Court. A boy would be best. + </p> + <p> + Mr. Ingersoll. You do not need any boy. Just one man and one horse will + answer. The man can ride the horse one hundred and fifty miles in three + days, and then ride one hundred and fifty miles back in the next three + days. All you have to swear to, according to Mr. Bliss, is the number + actually used, and so you would come in and swear to two on this route. + Now, when you are making an affidavit as to the number to be used on a + schedule to be made, you cannot swear to the number actually in use, + because they are not then in use. You have to swear to the number + necessary. You have to swear to the number required. + </p> + <p> + Now, see. On a mail route one hundred and fifty miles long I would only + want a good smart horse, and one good active man or boy. I would not need + to carry it more than one week, because I could make the affidavit for + that week, and then the question would be how many men and horses would be + required for a daily mail on the same route. I would put in a reasonable + number, and the difference between the number then actually used and the + reasonable number to use would be the standard by which to fix my pay. + </p> + <p> + If you take the man and horse actually used, and then take the number that + would reasonably be used, you would make a difference of a thousand per + cent. And yet that is the doctrine laid down here to guide us as to these + affidavits. + </p> + <p> + Let me tell you what the law is. It does not make any difference what you + are really using at the time. You must swear to the number that would be + reasonably necessary to carry the mail on the then schedule. You must + swear to the number that would be reasonably necessary to carry the mail + on the proposed schedule. In the first place, if you put a great deal of + work on a man and horse, you must put the same proportion on man and horse + in the second schedule. If you are easy on man and horse in the first + schedule, you must be easy on man and horse in the second. The only + object, gentlemen, is to keep the proportion, because you are to be paid + according to the number of men and horses used. + </p> + <p> + Now, they say it would be necessary to go out there in order to tell how + many men and horses would be necessary, and that the men who made these + affidavits had never been on the routes. There was no need of being on the + routes. I could give you the number required on any route two hundred or + five hundred miles long. I could give you the number of men and horses + reasonably required to carry the mail once, twice, three times, or seven + times a week; and I could give you the number reasonably required to carry + it at the rate of three miles an hour or five miles an hour or six miles + an hour without going there. I need not go there for the purpose of the + affidavit. I can take it for granted that the road is good and level, and + I can keep exactly the same proportion and nobody can be defrauded. If you + take the rule of Colonel Bliss it would be the easiest thing on earth to + defraud the Government. That would be by taking the actual number in use + and then taking the number necessary. + </p> + <p> + Oil page 4761 Mr. Bliss makes the point that according to law the Second + Assistant Postmaster-General was not bound to allow according to the + affidavits. He is right as to that. That is what Mr. Bliss says, and that + is what John W. Dorsey swore he thought, and that is what Mr. Thomas J. + Brady swore he did. He did not take the affidavit as a finality. Mr. + Thomas J. Brady said that he took it for granted that the man, when he + made the affidavit, thought it was true, and that the man, when he made + the affidavit, swore to the best of his knowledge and belief. But Thomas + J. Brady never swore that he considered himself bound by the affidavit. On + the contrary, he swore that he had a standard in his own mind, and that + expedition was to cost thirty dollars a mile, or something of that kind. + He went by that standard, and he gauged the affidavits by it. + </p> + <p> + On page 4762 Mr. Bliss says that Brady admitted that he made no inquiry as + to the truth of affidavits, and that he accepted them as absolutely + conclusive. On page 3434 Mr. Brady swears: + </p> + <p> + I accepted their statement as conclusive so far as they knew. + </p> + <p> + Brady also swears that he had his standard in his own mind, as I said + before, and that he had an opinion of his own, and that by that standard + and opinion he was governed. + </p> + <p> + On page 4765 Mr. Bliss charges that Brady took the oath of Perkins on + route 38113 as the basis for the expedition. Mr. Turner's calculation on + file shows that that affidavit was not the basis of the calculation. + </p> + <p> + Mr. Bliss. Your Honor, allow me to say that subsequently I stated to the + Court and to the jury distinctly that while the indorsement on the jacket + recited the Perkins affidavit as being the one used, or the affidavit of + the subcontractor, and while Mr. Brady transmitted to Congress that + Perkins affidavit as the one upon which he acted, I still believed that + the calculation showed that he used the other affidavit. + </p> + <p> + Mr. Wilson. He never made that statement until he made it during the + progress of my argument when I was discussing that very point. + </p> + <p> + Mr. Bliss. You are mistaken. + </p> + <p> + Mr. Merrick. He made it while I was here and I was not here during Mr. + Wilson's argument. + </p> + <p> + Mr. Ingersoll. If he has taken it back three times, that is enough. On + page 4766 Mr. Bliss charges Brady with having two affidavits on the Pueblo + and Greenhorn route, from John W. Dorsey, on the same day. + </p> + <p> + Mr. Bliss. Mr. Henkle called my attention to the fact that it was not the + Greenhorn route, but the Pueblo and Rosita route, and I corrected it. + </p> + <p> + Mr. Ingersoll. Good enough. I did not know about his taking it back. I was + not here at the time. The fact was, however, that only one affidavit was + ever filed, and that was an affidavit, not by J. W. Dorsey, but by John R. + Miner. + </p> + <p> + Mr. Bliss. There were two on the Pueblo and Rosita route by John W. + Dorsey. + </p> + <p> + Mr. Ingersoll. We will come to them. You will get tired of them before we + get through with them. + </p> + <p> + On page 4767 Mr. Bliss refers to two affidavits. The first affidavit, the + one not used, calls for three men and seven animals on the then schedule. + That makes ten. On the proposed schedule of eighty hours it called for + nine men and twenty-seven animals. That makes thirty-six. The proportion + then in this affidavit is 3.6, that is, the pay would be 3.6 times the + original pay. In the second affidavit five men and fifteen animals, twenty + in all, are called for on the then schedule, and on the proposed schedule + twelve men and forty-two animals. The proportion there is 2.7. So that the + affidavits, leaving out the fractions, which are substantially the same, + stand in this way: By the first the contract price would have been + multiplied by three and the contractor would have had three times the + original pay, and by the second he would have had twice the original pay. + Substituting an affidavit at only double the pay is called a fraud, + because they withdrew an affidavit for treble the pay. That is what Mr. + Bliss calls a fraud. He says still that it is a fraud. + </p> + <p> + Now, then, there were two affidavits, and these two affidavits, gentlemen, + Mr. Bliss well knew were filed on different schedules. The first affidavit + was filed on a proposed schedule of eighty hours. The second affidavit was + filed on a proposed schedule of fifty hours. The affidavit agreeing to + carry the mail in fifty hours offered to do it at double the pay. The + affidavit on eighty hours wanted three times the pay, or substantially + that. One was 3.7 and the other was 2.6. Just think of trying to make that + a fraud on the Government. Suppose they had filed a third affidavit and + offered to carry it for nothing. That would have been carrying a fraud to + the extreme. + </p> + <p> + Mr. Bliss. Your Honor, with reference to that, I said, expressly referring + to these two affidavits: It is not a question of proportion. The question + is whether the mere existence of those double affidavits did not give + Brady conclusive notice that the man who could make those affidavits was + not a reliable man, because no matter what the time was to which it was to + be increased, he stated the number necessary on the then schedule, as so + and so in one affidavit and in the other he stated the number differently. + I referred to it solely in that connection, as the language shows on the + page referred to. + </p> + <p> + Mr. Ingersoll. For instance, a man writes, "You owe me five hundred + dollars according to my books," and writes the next day, "I have made a + mistake. You don't owe me anything." Mr. Bliss insists that the second + letter would show that the man was not to be relied upon. That is his idea + of honesty. If in the first letter he had written that I did not owe him + anything, and in the second letter I did, that might be suspicious. But + when in the first he writes that I owe him and in the second that I do + not, there can be no suspicion as to his honesty. In the first affidavit + this man stated so much, and in the second affidavit he put it one-third + less. That simply shows the man was paying attention to it and wanted to + make an honest offer. And yet everything in this case is poisoned with + prejudice and suspicion. + </p> + <p> + Another point: Mr. Bliss, on page 4770, says that on the Pueblo and Rosita + route the number of trips was seven and that there was no increase. Upon + that statement he bases an argument of fraud. The argument is that there + was no increase of trips. Now, on page 866, the order shows that in the + first place there was one trip a week and there were six trips added. That + makes seven. The original pay was three hundred and eighty-eight dollars. + Six trips were added, and the value of the six trips, which gave two + thousand three hundred and twenty-eight dollars of additional pay. Yet Mr. + Bliss tells you that there was no increase of trips. As a matter of fact, + six trips were added, and that was all that could be added. + </p> + <p> + Mr. Bliss. Were they added coincidently with the affidavit for expedition? + </p> + <p> + Mr. Ingersoll. You say they were not added; I say they were. + </p> + <p> + Mr. Bliss. No, sir; I said at the time of the expedition there was no + increase of trips and the affidavit was based upon the seven trips. + </p> + <p> + Mr. Ingersoll. I say that at that time there was an increase. + </p> + <p> + Mr. Bliss. Your Honor, the point is this: I think I am right in saying + that the increase of trips took place after the expedition. That is my + recollection about it. I have not referred to the record. I think Colonel + Ingersoll will find that is so. + </p> + <p> + Mr. Ingersoll. We will see whether you are right. At the time the + affidavit was made there were just three trips, and afterward there were + four trips added. Let us get it exactly right. I read from page 866: + </p> + <p> + Date, July 8, 1879. State, Colorado. + </p> + <p> + Number of route, 38134. + </p> + <p> + Termini of route, Pueblo and Rosita. + </p> + <p> + Length of route, fifty miles. + </p> + <p> + Number of trips per week, one. + </p> + <p> + Mr. Bliss. I see you are right. The trips were increased. + </p> + <p> + Mr. Ingersoll. When anybody gives it up I will stop. That is fair and that + is honorable. + </p> + <p> + Now, the next point. On page 4771 Mr. Bliss says that the oath on the + Toquerville and Adairville route was made for seven trips, although the + order only gave them six trips, of course the inference being that they + got as much pay for six trips as they were entitled to for seven trips. On + page 3290 the original order was for one trip. Two trips were added. Look + on page 949 and you will find that more trips were added. The second order + increased four trips, and that made seven in all; and yet Mr. Bliss makes + the statement that there were only six. That is another mistake. + </p> + <p> + Another point. On page 4772 Mr. Bliss states that Mr. Rerdell spoke in his + testimony about J. B. B. I have referred to that. I have referred before + to the claim that Rerdell was sustained by the testimony of Mr. Bissell. + As a matter of fact, I do not remember that Mr. Rerdell ever said one word + in his testimony as to charging anything to J. B. B. + </p> + <p> + Ninth point. At page 4778 Mr. Bliss states that Dorsey admitted in his + letter to Anthony Joseph that the average rate for mail service on star + routes was only five dollars a mile. Mr. Dorsey says in his letter no such + thing. He says the "average cost of horseback service"; he does not use + the language employed by Mr. Bliss, "The average rate for mail service on + star routes," but he says, "The average cost of horseback service." That + is a small point, but it shows how anxious the gentlemen are to get the + thing fully as big as it is. + </p> + <p> + Tenth point. At page 4783 Mr. Bliss says that Brady cut off forty-nine + thousand dollars of increase on the Mineral Park and Pioche route on the + 22d of January, 1879, because the mail bills showed so little business. + That is another mistake. The order cutting off the forty-nine thousand + dollars was made on the 22d of January, 1880, not 1879. I mention this + simply for the sake of accuracy. + </p> + <p> + Eleventh point. At page 4785 Mr. Bliss says that the mail bills on the + Silverton and Parrott City route showed that Brady ran the service up from + seven hundred and forty-five dollars to fourteen thousand nine hundred + dollars, and that the fourteen thousand nine hundred dollars was + afterwards increased to thirty-one thousand three hundred and forty-three + dollars and seventy-six cents. The record shows nothing of the kind (see + pages 1894-5). The original pay was one thousand four hundred and + eighty-eight dollars (page 1854). The pay under the order of June 12, + 1879, was six thousand five hundred and twelve dollars and twenty-eight + cents (page 1855). No other increase was ever made. On page 1855 is the + increase and expedition, being in all fourteen thousand eight hundred and + eight dollars and sixty three cents. The original pay was one thousand + four hundred and eighty-eight dollars. A little change was made in the + route that brought it up to one thousand seven hundred and three dollars + and sixty-five cents. That, together with the expedition, makes a total of + sixteen thousand five hundred and twelve dollars and twenty-eight cents. + And yet Mr. Bliss told you that it was thirty-one thousand three hundred + and forty-three dollars and seventy-six cents. So that this encyclopædia + of the papers made a mistake, in one year, of fourteen thousand eight + hundred and thirty-one dollars and forty-eight cents. For the whole + contract time it would be a mistake of forty-five thousand dollars. And + yet, strange as it may appear, that mistake was made against the + defendants. Well, let us go on. + </p> + <p> + Twelfth point. On page 4800, bottom line, Mr. Bliss says: + </p> + <p> + They got so much in the way of offering petitions that Mr. Rerdell being + told by Stephen W. Dorsey, upon this route from Pueblo to Greenhorn, to go + to work and alter the petitions, inserted the words "and faster time." + </p> + <p> + As to this petition, 7 B, in which are the words "and faster time," George + Sears swears, at pages 829 and 830, that it is in the same condition now + as when it was signed by him, he thinks. Thereupon Mr. Bliss told you that + he was mistaken in the paper. You must recollect these things. + </p> + <p> + Mr. Bliss. Are there not two petitions there altered? + </p> + <p> + Mr. Ingersoll. That is on another route. There were 7 B, 11 B, and 12 B. 7 + B was the written paper, and you introduced 11 B and 12 B. One said + "quicker time," and one said "on faster schedule," and yet in the very + next paragraph they asked to have it run in eight hours. Mr. Rerdell had + to admit that he put in the words without knowing what the petition called + for, and that Dorsey instructed him to put them in. + </p> + <p> + Mr. Bliss. Your Honor, in the very same paragraph, the very line, where I + said "faster schedule," I called attention to the fact that the words were + unnecessary. + </p> + <p> + Mr. Ingersoll. That is not the only point. The point is, who wrote "faster + time"? + </p> + <p> + Mr. Bliss. That is not what I said. You have not given the whole sentence. + </p> + <p> + Mr. Ingersoll. You cannot expect me to read your whole seven days' speech. + That would be too much. This is what you said: + </p> + <p> + They got so much in the way of altering petitions that Mr. Rerdell being + told by Stephen W. Dorsey, upon this route from Pueblo to Greenhorn, to go + to work and alter the petitions, inserted the words "and faster time." + </p> + <p> + That is it exactly. + </p> + <p> + Mr. Bliss. Then follows this: + </p> + <p> + He inserted "and faster schedule," "on quicker time," though there was not + any necessity for doing that, because if they had gone further down, after + some argument in the petition, to the request for expedition, they would + have seen that there was no necessity for that little forgery up there. + </p> + <p> + Mr. Ingersoll. That is a magnificent admission. "There was no necessity + for" putting that in. I am glad he admits that. He would ask you to + believe that S. W. Dorsey, a man of intelligence and brains, would ask to + have a petition forged, altered, interlined, without knowing what was in + that petition. It will not do, gentlemen. + </p> + <p> + Thirteenth point. At page 4810, Mr. Bliss says that McBean told Moore, in + reference to route No. 44140, Eugene City to Bridge Creek, "that he could + carry all the mail in his pocket." + </p> + <p> + Now, as a matter of fact, Mr. McBean does not state any conversation with + Moore covering this route. That was another mistake. No matter. + </p> + <p> + Fourteenth point. At page 4814, Mr. Bliss, in speaking of the Ojo Caliente + route, says the service in fact never was performed in fifty hours; that + the evidence of that is conclusive. Now, let us see. Here is a jacket on + page 3008, and that jacket shows that out of seventy-eight half trips, + expedition was lost on twenty-three and made on fifty-five. Yet Mr. Bliss + tells you it never was made. The jacket on page 3040 shows that expedition + was lost on twelve half trips and made on sixty-six. And yet Mr. Bliss + says it was never made. The jacket on page 3056 shows that at the time + they were carrying seven trips a week, nineteen expeditions were lost out + of one hundred and ninety-two half trips. And yet Mr. Bliss says the + fifty-hour schedule never was made. Another mistake. + </p> + <p> + Mr. Bliss. That is long after the time I was referring to. As to the other + point, I simply repeat it. + </p> + <p> + Mr. Ingersoll. It will not help it to repeat it. For every expedition lost + on this route or any other the Government did not pay. When the expedition + was lost, the pay was deducted; when the expedition was made the pay was + given, and not otherwise. You see, gentlemen, how they have endeavored to + get the facts before you; what a struggle it has been over all these + obstacles—lack of memory, the immensity of this record—how + they have climbed the Himalayas of difficulty; how they have gone over the + Andes and Rocky Mountains of trouble to get at the facts! + </p> + <p> + Fifteenth point. On page 4820 Mr. Bliss states that there could not have + been legally allowed, on the evidence on The Dalles route, on expedition + over $4,144. As a matter of fact, the evidence does not cover the whole + route as to the number of men and horses used. The Government never proved + the number of men and horses necessary to carry the mail over the whole + route, but only a part. Mr. Ker admits that the evidence is defective in + that regard. When you have no standard, gentlemen, you cannot measure. + </p> + <p> + Sixteenth point. On page 4820 Mr. Bliss, in speaking of the route from + Eugene City to Bridge Creek, says that, taking the undisputed facts as + they were, before and after the expedition, Brady could not legally have + allowed more than $2,991.23. The evidence is (page 1343) that Wyckoff was + the subcontractor from July, 1878, to 1880. Powers first carried the mail + in 1880. The route was increased and expedited in June, 1879. Mr. Powers + never carried it from the expedition. Mr. Wyckoff was the only man who did + that, and Mr. Wyckoff was not called. Consequently there was no evidence + as to the number of men and horses used on either schedule. That left the + gentleman without a standard and without a measure. + </p> + <p> + Seventeenth point. On page 4820 Mr. Bliss says that on the Silverton and + Parrott City route the oath was made for seven trips a week on the present + schedule, when it ought to have been two trips on the old schedule and + seven trips for the new schedule. As there is no evidence as to the number + of men and horses used on the old schedule, of course there is no evidence + in this record to impeach that oath; you cannot find it. + </p> + <p> + Eighteenth point. On page 4822 Mr. Bliss states that after the passage of + the act of April 7, 1880, there were two increases upon the White River + route. The fact is there was just one after the passage of that law. Of + course a little mistake like that does not make much difference in a case + of this magnitude. + </p> + <p> + Nineteenth point. On page 4824 Mr. Bliss states that Raton was put on the + Trinidad route April 24, 1879 (Page 1031 ). The office was embraced on the + routes July 1, 1878. The first order in reference to it was made June 6, + 1878. It was put on the route from July 1, 1878, increasing the distance + twenty-three miles. Yet Mr. Bliss tells you that it was put on the route + April 24, 1879. + </p> + <p> + Mr. Bliss. Is not that the date of the order? + </p> + <p> + Mr. Ingersoll. It may have been the date of your order. + </p> + <p> + Mr. Bliss. Is not that the date of the order in the case? + </p> + <p> + Mr. Ingersoll. I do not know anything about that. I give you the exact + facts. + </p> + <p> + Twentieth point. On page 4825, Mr. Bliss, in speaking of the Ojo Caliente + route, charges that by the order increasing the trips on this route in + February, 1881, there was paid from the Treasury illegally two thousand + and eleven dollars and forty-six cents. As a matter of fact had we been + paid for that entire quarter it would have amounted to seven thousand one + hundred and thirty-nine dollars and forty-one cents. The pay was not + adjusted until April 22< 1881 (page 731). The amount that was then paid + was not seven thousand one hundred and thirty-nine dollars and forty-one + cents, but it was three thousand seven hundred and twenty-seven dollars + and twenty-two cents. It was not for the entire quarter, but simply for + the actual service rendered. The quarterly pay for the preceding quarter, + before the expedition, was three thousand three hundred and fifty-eight + dollars and twenty-six cents; showing that we received only for that + quarter an excess, on account of expedition, of three hundred and + sixty-eight dollars and ninety-six cents. But he told you that we got + illegally two thousand and eleven dollars and forty-six cents. That is a + small matter. + </p> + <p> + Twenty-first point. On page 4897, Mr. Bliss says in effect that Dorsey + undertook to state that he kept no books; that he was doing a business + amounting, I think he says, to six million dollars a year, and yet he kept + no books. On the contrary, Dorsey swore that he did keep books; on the + contrary, he swore that Kellogg was his book-keeper. Kellogg swore that he + did keep the books. Torrey swore that he was his book-keeper, and kept the + books. And yet Mr. Bliss stood up before this jury and said to you that + Mr. Dorsey wanted you to believe, or stated that he kept no hooks of that + immense business. It will not do. No books but the red books, I suppose, + were kept. + </p> + <p> + Twenty-second point. At page 4883, Mr. Bliss says that in regard to one of + Vaile and Miner's routes (Canyon City to Fort McDermitt) there were large + profits, amounting to twenty thousand dollars a year. Then he says eighty + thousand dollars during the four years. And yet Mr. Bliss knew at that + time that that expedition lasted only eleven months. Trying to fool the + jury about sixty-two thousand dollars. + </p> + <p> + Twenty-third point. On page 4815 Mr. Bliss states that the fines on the + Bismarck and Tongue River route, during Brady's administration, were only + thirteen thousand dollars. If you will look at page 727 of this record, + where the table is put in evidence as to the fines, you will find that he + deducted from the pay twenty-nine thousand two hundred and twenty-four + dollars. Mr. Bliss made a mistake of sixteen thousand two hundred and + twenty-four dollars. But in a case like this that is not important. + Gentlemen, you know you cannot always be accurate. + </p> + <p> + Mr. Bliss is an accurate man, as a rule. He has been called the index of + this business for the Government. Twenty-fourth point. On page 4987 Mr. + Bliss says: + </p> + <p> + The one fact of the evidence of the payment of money by Dorsey to Brady + remains the same whether the books were put out of the way by Dorsey or by + Rerdell. That is the great central point, so far as the books were + concerned; and as to that the testimony is absolutely uncontradicted. + </p> + <p> + Mr. Brady swears that Dorsey never gave him a dollar. Dorsey swears that + he never had a money transaction with Brady amounting to one cent. Mr. + Rerdell does not pretend to swear that he knows of Mr. Dorsey having paid + a dollar to Mr. Brady. He does not pretend to swear that he knows of any + one of these defendants having paid one dollar to Mr. Brady. And yet Mr. + Bliss will tell you that the fact that Dorsey paid Brady money is + uncontradicted. + </p> + <p> + Mr. Bliss. I did not intend that, Colonel Ingersoll. I do not think it is + capable of that interpretation. + </p> + <p> + Mr. Ingersoll. What did you mean? + </p> + <p> + Mr. Bliss. As to the statement being in the books it is uncontradicted. + </p> + <p> + Mr. Ingersoll. Let me see. He now turns and says he did not mean the + money, he meant the books. The evidence is overwhelming on our side that + the books did not exist. When you deny the existence of the book I take it + you deny the existence of any item in it. It is a question whether any + such books ever existed, gentlemen. Rerdell swore in the affidavit of June + 20, 1881, and he swore to that affidavit three times hand-running, that no + such books existed. He swore substantially the same thing on the 13th of + July, 1882. He told Mr. French that no such books ever existed. He told + Judge Carpenter that no such books ever existed. He stated to Bosler that + no such books ever existed. And now this gentleman says the evidence is + uncontradicted that Brady was charged in those books. That is a good deal + worse than the other. Let us go on. + </p> + <p> + Twenty-fifth point. At page 4962 Mr Bliss says that Mr. Dorsey, according + to his own statement—Had brought Rerdell up and led him to infamy. + </p> + <p> + Did Dorsey make any such statement? Did Mr. Dorsey, gentlemen, in your + presence, swear that he had brought Rerdell up? Did he, in your presence, + swear that he had led him to infamy? Did he, in your presence, swear that + he had done anything of the kind? I have got the exact words. + </p> + <p> + Who, according to his own statement, he, Dorsey, had brought up, had led + to infamy, and who, according to his own statement, had stated that + MacVeagh had told a lie. + </p> + <p> + A curious use of the English language. I believe it is in that connection, + though, that he speaks about Mr. Dorsey having the impudence to go to the + President of the United States. That is not a very impudent proceeding. In + this country a President is not so far above the citizen. In this country + we have not gotten to the sublimity of snobbery that a citizen cannot give + his opinion to the President; especially a citizen who did all he could to + make him President; especially a citizen in whom he had confidence. Not + much impudence in that. I do not think that during the campaign General + Garfield would have regarded it impudent on the part of Mr. Dorsey to + speak to him. I do not believe in a man, the moment he is elected + President, feeding upon meat that makes him so great that the man who + helped put him there cannot approach him, and every man who voted for him + helped to put him there. I am a believer in the doctrine that the + President is a servant of the people. I have not yet reached that other + refinement of snobbery. + </p> + <p> + Mr. Bliss. In point of fact, Colonel Ingersoll, I made no such statement. + Now let me read the passage on the very page you refer to. + </p> + <p> + Patched up the affidavit of Mr. Rerdell, addressed it to the President, + admittedly went to the President with it, and then had the impudence to + come here and malign the character of General Garfield by saying that upon + that affidavit of an accused man, instead of seeking a trial, he would + have removed two members of his Cabinet. + </p> + <p> + I meant nothing about the impudence of going to the President. + </p> + <p> + Mr. Ingersoll. He had the impudence then to come here and malign Garfield + by saying that upon that statement he would have turned out two members of + his Cabinet. That is Mr. Bliss's idea of impudence; and yet, upon the + testimony of the same man, he wants to put five men in the penitentiary. + </p> + <p> + Mr. Bliss. Not upon the sole testimony, I suppose. + </p> + <p> + Mr. Ingersoll. Not upon the soulless testimony. Now, I think that Mr. + Dorsey had a right to go and see Mr. Garfield. I think he had a right to + take that affidavit with him. General Garfield was told what this man had + said concerning Mr. Dorsey. He had the right to take that affidavit of + that man with him so that General Garfield, or the then Attorney-General + rather, might know how much confidence to put in the statement of that + man. He had a right to do that. If he found in this way that his + Attorney-General and his Postmaster-General were seeking to have a man + convicted by means not entirely honorable, then it was not only his + privilege, but it was his duty to discharge them from his Cabinet. But I + am not saying anything in regard to them now, because they are not here to + defend themselves. + </p> + <p> + Mr. Bliss. I want to correct myself. Further down on that page I see I did + refer to the impudence of this man going to Garfield. + </p> + <p> + Mr. Ingersoll. Well, as Mr. Bliss has been fair enough to state it, I will + not follow up my advantage. On another page Mr. Bliss says that the idea + that Mr. Vaile did what he did for Miner out of any sympathy is "too + thin." Mr. Bliss cannot believe that Vaile became Miner's friend so + suddenly, but he thinks it highly probable that they conspired instantly. + That is his view of human nature. Friendship is of slow growth; conspiracy + is a hot-house plant. Gentlemen, is that your view of human nature, that a + man cannot become the friend of another suddenly? Whenever he does become + his friend the friendship has to be formed suddenly, does it not? There is + a first time to everything. A moment before it did not exist; a moment + afterwards it is dead very suddenly. + </p> + <p> + There was a boy came to town one morning and met an old friend. The old + friend asked the boy, "How is your father?" He says, "Pretty well, for + him." "How is your mother?" "Pretty well, for her." "Well, how is your + grandmother?" "She is dead." "Well," says the old man, "she must have died + suddenly." "Well," said the boy, "pretty sudden, for her." + </p> + <p> + Whenever one man becomes the friend of another's, a moment before that he + was not, and a moment after he was. It must be sudden. But I imagine that + there was a friendship sprang up between Vaile and Miner, and I will tell + you why. They have been partners ever since. You, gentlemen, have had the + same experience a thousand times. It is not necessary to conspire with a + man in order to like him. Neither is it necessary to like him to conspire + with him. Men have conspired without friendship a thousand times more, + probably, than they have formed friendships without conspiracy. + </p> + <p> + Mr. Bliss says that because Miner failed to produce the power of attorney + that Moore swore was given to him when he went West, the jury have a right + to infer that instructions to get up false petitions were in writing and + were included in that power of attorney. Mr. Moore did not swear to the + contents of that power of attorney. Do you think that it is within the + realm of probability that a man ever gave a power of attorney to another + and inserted in it: "You are hereby authorized to get up false petitions; + you are further authorized to have them so written that you can tear them + off and paste others on? + </p> + <p> + "N. B. You will make such contracts with all contractors. + </p> + <p> + "P. S. Don't tell anybody." + </p> + <p> + There was another witness in this case, Mr. Grimes (page 808). Not the one + that wore the coat—All buttoned down before—but Mr. Grimes, + postmaster at Kearney. He came all the way here to swear that he stopped + using mail bills on the route from Kearney to Kent because he was so + ordered by a letter from the Post-Office Department. Then it was + discovered that he did not have the letter with him; he went home to get + the letter, but he never came back any more. + </p> + <p> + We introduced Spangler (page 341) from the inspection division of the + Post-Office Department; I think he was in charge of that division. He + swore, as a matter of fact, that there never were any mail bills on that + route at all. + </p> + <p> + Mr. Carpenter. He was in charge of the mail bills on that route. + </p> + <p> + Mr. Ingersoll. The mail bills on that particular route. That man Grimes + was brought clear here to prove that he stopped using mail bills, and then + we proved that there never were any mail bills used on that route for him + to stop using. I do not suppose that that man was dishonest. These people + just got around him and talked to him until he "remembered it." They just + planted the seed in his mind, and then came the dew and the rain and the + lightning until it began to sprout and in time blossomed and bore fruit—mail + bills. When we come to find out that there never were any mail bills used, + away went Mr. Grimes. + </p> + <p> + On page 4969 Mr. Bliss says: + </p> + <p> + They have not, up to this moment, dared to state under oath, I think, that + those books are not in their possession. + </p> + <p> + On page 3784 Dorsey swears that he never received any such books. Never + saw any such books. He swore again and again that he never heard of any + such books. + </p> + <p> + Mr. Bliss. I stated distinctly that the defendants had not stated that in + the form required to excuse them from the production. I stated that + distinctly. + </p> + <p> + Mr. Ingersoll. All right; away goes that. + </p> + <p> + On page 4983 Mr. Bliss says: + </p> + <p> + Is it not an absurdity to suppose that Dorsey would leave Rerdell in + charge of his business from July, 1879, to August, 1880, and then on from + that time until the close of the contract term in August, 1882; leave all + the business in that way, and then through Bosler settle the accounts with + Mr. Rerdell and have no knowledge in any way, not only of the entries + contained in the books which Rerdell kept, but have no knowledge that he + kept any books whatever? Is it not absurd to suppose any such thing? These + ten routes represented an income of two hundred and fifty-odd thousand + dollars a year, or a total business, including income and outgo, of five + hundred thousand dollars a year, for three years, going no further than + that. These ten routes alone represented transactions amounting to half a + million dollars a year. There were one hundred and thirty routes and Mr. + Dorsey took one-third in value if not in number. If the value was the + same, Mr. Dorsey took not less than forty routes. As ten routes involved a + business of one million five hundred thousand dollars in that period, the + forty routes involved in that proportion transactions amounting to six + million dollars. + </p> + <p> + You made a calculation on the supposition that all the routes were + expedited the same as those in the indictment, and when you made that + calculation you knew they were not expedited. + </p> + <p> + Mr. Bliss. I object, your Honor, to his making any such statement as that. + In the first place, it is not evidence; and in the second place, which is + of more importance, it is not true. I did not know any such thing, and I + do not know any such thing. + </p> + <p> + Mr. Ingersoll. Do you say now that the other routes of his, to the number + you talked of, were expedited? + </p> + <p> + Mr. Bliss. I am not on the stand to be cross-examined now. But I do say to + your Honor that there is no evidence of that in this case. And then I go + beyond that, and say that I did not know those things then and I do not + know them now. + </p> + <p> + Mr. Ingersoll. Very well; he made the argument on the supposition that all + the routes were expedited. I say that not one of them was expedited in + which Mr. Dorsey had an interest. + </p> + <p> + Mr. Bliss. There is no evidence on that subject. + </p> + <p> + Mr. Ingersoll. Is there any evidence of what you say? + </p> + <p> + Mr. Bliss. I put a supposititious case; you have stated a fact. + </p> + <p> + Mr. Ingersoll. I will put another supposititious case, and mine is that + the other routes were not expedited. + </p> + <p> + The Court. That is the right way to meet it. Counsel ought not to turn to + counsel on the other side and make an appeal to his knowledge in regard to + matters not in evidence. + </p> + <p> + Mr. Ingersoll. I know, but he said he did not know it. Then I asked him, + as a matter of fact, if he did not know— + </p> + <p> + The Court. [Interposing.] He stated his supposition, and you met that + supposition— + </p> + <p> + Mr. Ingersoll. [Interposing.] I am always glad to get information. Now, + then, I will go to another point, and that is the $7,500 check. Mr. Bliss + speaks of that check at page 4997, and he says: + </p> + <p> + There is a question raised as to whether it was drawn in Mr. Rerdell's + presence. + </p> + <p> + I do not think there was. How could such a question be raised, gentlemen? + The check was made payable to M. C. Rerdell, or his order. On the back of + the check is Mr. Rerdell's name, put there by himself. He is the only + indorser. And yet Mr. Bliss tells you that there is a question raised as + to whether the money was drawn in Mr. Rerdell's presence or not. The check + shows, and the evidence is absolutely perfect, that the money was paid to + Rerdell in person. The question is this: Whether it was drawn in Mr. + Rerdell's presence. If it was paid to him in person, I imagine that he was + in that neighborhood at that time. The check was written by him, + everything except the signature of Dorsey. It was drawn to Mr. Rerdell, or + order, and indorsed by Rerdell himself. There was no other indorser. So + that it is absolutely certain that he drew the money in question. And yet + Mr. Bliss says the question is whether it was drawn in Rerdell's presence + or not. + </p> + <p> + Mr. Bliss continues and states that the money went to S. W. Dorsey. Did + it? Mr. Dorsey, on page 3965, states the circumstances. He was packing to + go away. He had not the time to go to the bank himself. He had the check + written payable to Mr. Rerdell, or order, and he signed it. Rerdell went + to the bank, got the money, brought it back and put it in his carpet-sack. + That is the testimony. + </p> + <p> + Now, Mr. Bliss says: + </p> + <p> + No evidence was given as to what Stephen W. Dorsey was wanting just at + that time with seven thousand five hundred dollars in bills. + </p> + <p> + According to Mr. Rerdell, he wanted that money to give to Mr. Brady. That + is what Mr. Rerdell intended to swear. But when he found that that check + was made payable to him, and indorsed by him, then they had to take + another tack. They dare not say then, "That is the check." They dare not + say then, "That is the money." Rerdell had forgotten at the time he swore + that that check was payable to his order. When he told his seven thousand + dollar story to MacVeagh he forgot about that check. When he told it to + the Postmaster-General, if he did—I have forgotten whether he did or + not—he forgot about that. + </p> + <p> + Now, gentlemen, I will call your attention to the part to which I really + wish to direct your attention. It is an admission by the Government, an + admission by Colonel Bliss; it is in these words, on page 4997, speaking + of this very thing: + </p> + <p> + However that may be, they themselves put in a check here for seven + thousand five hundred dollars, drawn about the time Mr. Rerdell spoke of, + the money upon which admittedly went to Stephen W. Dorsey, though there is + a question raised as to whether it was drawn in Mr. Rerdell's presence or + whether it was not drawn by him. But the money went to Stephen W. Dorsey, + and there was a promise made to show you what was done with that seven + thousand five hundred dollars. But, like many another promise in this + case, it remains unfulfilled to-day. No evidence was given as to what + Stephen W. Dorsey was wanting just at that time with seven thousand five + hundred dollars in bills. + </p> + <p> + Mr. Dorsey offered to tell you what he did with it, and you said you did + not want it; you did not want to know when he was on the stand. He offered + to tell you what he did with the money, and you would not take his + statement. Hear what he says: + </p> + <p> + Mr. Dorsey was not taking seven thousand five hundred dollars in bills to + the West. + </p> + <p> + How do you know? Who ever told Mr. Bliss that he was not taking seven + thousand five hundred dollars to the West? He must have got that from Mr. + Rerdell. May be that is the reason they would not allow Dorsey to tell, + because before that time they had been informed that he would swear that + he took the seven thousand five hundred dollars to the West. How else did + Mr. Bliss find this out? + </p> + <p> + It is not in the evidence, not a line. Somebody must have told him. Who + could have told him? Nobody, I think, except Mr. Rerdell. Is it possible, + then, that Mr. Bliss was afraid that Mr. Dorsey would swear that he took + it West? And was he afraid also that you would believe it? I do not know. + He did not want him to state. Now here is what I want to call your + attention to: + </p> + <p> + After all the talk about that evidence, all the talk about the seven + thousand dollars, all the talk about the seven thousand five hundred + dollar check, Mr. Bliss at least, admits to this jury: + </p> + <p> + Of course all that transaction might have occurred precisely as Mr. + Rerdell testified, and there might have involved no corruption on Mr. + Brady's part. + </p> + <p> + If, then, it may have occurred exactly as Rerdell swore, and involved no + corruption, certainly it might have occurred as Mr. S. W. Dorsey swore and + involved no corruption. I will go on now with a little more from Mr. + Bliss: + </p> + <p> + The drawing of the money and going to Mr. Brady's room might have been a + mere accident, as a call there to attend to some other business. + </p> + <p> + Of course, that is reasonable. I might go the bank and draw five thousand + dollars, and then I might stop in the Treasury Department, but that is no + evidence that I am bribing the Secretary of the Treasury. I might step + over to see the President; that would be no reason to believe that I + bribed the Executive. + </p> + <p> + Of course that is not conclusive. It is only a little straw in this case, + as showing a transaction of that kind involved in connection with all the + evidence you have in this case—A little straw evidence of Mr. + Brady's acts, and particularly as at the time when that occurs evidence in + connection with the large increases which Mr. Brady was then ordering; + evidence in connection with the books, and the evidence they bear; + evidence in connection with the declarations of Brady to Walsh—evidence + all consistent. + </p> + <p> + And then he adds this piece of gratuitous information: + </p> + <p> + Mr. Dorsey was not taking seven thousand five hundred dollars in bills to + the West. + </p> + <p> + How does he know? How did he find that out? And has it come to, this? Has + all the testimony upon that point—has the confession of Rerdell to + MacVeagh and James shrunk to this little measure—that it is "only a + straw"? Has it shrunk to this measure that Mr. Bliss admits that the whole + thing might have been exactly as Rerdell swears, and yet have been + perfectly innocent? Has it shrunk to this little measure? The Government + would not tell us—I presume the Government will not tell us, what + check it was, the proceeds of which were taken by Mr. Dorsey to Mr. Brady. + Neither will they say whether that sum was made up in one check or by + adding together a number of checks; and, if so, what number? + </p> + <p> + At page 295 Mr. Bliss told you, in his opening speech, that Rerdell had on + one occasion gone with Mr. Stephen W. Dorsey to the bank, and that seven + thousand dollars had been drawn; that he had gone with Dorsey to the door + of the Post-Office Department, or to Brady's room, at the time—he + would not undertake to say which—Mr. Dorsey stating to him that he + intended to pay that money to Mr. Brady, and that he (Mr. Dorsey) then + went in. But when they come to put this man on the stand he will not swear + that Dorsey ever told him that he intended to pay the money to Brady. + Probably that part of the statement, that Dorsey told him that he was + going to pay that money to Brady, can be found in the affidavit made + before Mr. Woodward, in September, and repeated in the affidavit made at + Hartford in November. But it is not in evidence here. + </p> + <p> + Now, we brought all the checks that we had given on Middleton's bank, with + the exception of two, I believe, that amounted to some hundred and odd + dollars. We gave the Government counsel notice that there were two others. + </p> + <p> + Among those checks was this one for seven thousand five hundred dollars. + There were many others. I asked the gentlemen to pick out their check; + they would not do it. I asked the gentlemen to pick out the checks; they + did not do it. And now if we had failed to produce checks that were + important in this case, the Government could have produced the books and + clerks of Middleton & Company, and shown exactly the checks we drew + upon that bank that month. They did not do it. As a matter of fact, I + offered all the checks on all the banks I could think of that we had any + business with in any way, except one, and that turned out to be the + German-American Savings Bank, and it turned out that that went into + bankruptcy eight months before this business; so there is no trouble about + that. Why did they not pick out the checks upon which they claimed that + the money was drawn that was paid to Brady? + </p> + <p> + Mr. Rerdell, on page 2254, in speaking of the money, swore that money was + charged to Brady on the stub. He says that Dorsey told him, "You will find + the amount on the stub of the check-book." The jury will notice that he + speaks of the "amount," the "stub," and the "book," all in the singular. + That was followed, I believe, by about six pages of discussion, and + everybody who took part in that discussion, the Court included, spoke of + the sum of money as an "amount," upon a "stub," in a "checkbook." + </p> + <p> + I call attention to 2254-'55-'56-'57-'58-'59. On all those pages it is + spoken of as a stub of a check-book, or amount on a stub in a check-book. + After the discussion was closed, then the witness began to talk about + "books," "checks," "stubs," and "amounts." Why did he do that? + </p> + <p> + His object was to get the evidence broad enough—checks and + check-books enough—to fit their notice, to the end that they might + get possession of all the check-books, and of all the amounts on all the + stubs. + </p> + <p> + What more? The discussion convinced Mr. Rerdell that it would be far safer + to say "stubs" than "stub"; that it would be far better to say + "check-books" than "checkbook," and far better to say "amounts" than + "amount"; because he would have a better chance in adding these up so as + to make six thousand five hundred dollars, or seven thousand dollars, or + six thousand dollars, than to be brought down to one check, one amount, + and one stub-book. So he went off into the region of safety, into the + domain of the plural. + </p> + <p> + Now, the last point—at least for this evening—so far as Mr. + Bliss is concerned, I believe, is about the red books. Mr. Bliss tells you + that Mrs. Cushman was telegraphed to from the far West. There was a little + anxiety, I believe, on the part of Rerdell about the book, and he + telegraphed her. She found it there in the wood-shed, you know, hanging + up, I think, in the old family carpet-sack—I have forgotten where + she found it—and she put it away. Now, there is a question I want to + ask here, and I know that Mr. Merrick when he closes will answer it to his + entire satisfaction; I do not know whether he will to yours or to mine: + How does it happen that Mrs. Rerdell never saw that red book? How does it + happen that Mrs. Rerdell, when she was put on the stand, never mentioned + that red book? How does it happen that she never heard of it when her + husband went to New York to get it; when everything he had in the world, + according to his idea, was depending upon it; when it was his + sheet-anchor; when it was the corner-stone of his safety? And yet his wife + never heard of it, never saw it, did not know it was in the wood-shed, + slept in that house night after night and did not even dream that her + husband's safety depended on any book in a carpet-sack hanging in the + wood-shed. She never said a word about it on the stand, not a word. + Gentlemen, nobody can answer that question except by admitting that the + book was not there and did not exist. + </p> + <p> + But perhaps I have said enough about the speeches of Mr. Ker and Mr. + Bliss. Of course, their business is to do what they can to convict. I do + not know that I ought to take up much more time with them. I feel a good + deal as that man did in Pennsylvania who was offered one-quarter of a + field of wheat if he would harvest it. He went out and looked at it. + "Well," he says, "I don't believe I will do it." The owner says, "Why?" + "Well," he says, "there is a good deal of straw, and I don't think there + is wheat enough to make a quarter." + </p> + <p> + So now, gentlemen, if the Court will permit, I would like to adjourn till + to-morrow morning. + </p> + <p> + Now, gentlemen, the next witness to whose testimony I will invite your + attention is Mr. Boone. Mr. Boone was relied upon by the Government to + show that this conspiracy was born in the brain of Mr. Dorsey; that these + other men were simply tools and instrumentalities directed by him; that he + was the man who devised this scheme to defraud the Government, and that it + was Dorsey who suggested the fraudulent subcontracts. They brought Mr. + Boone upon the stand for that purpose, and I do not think it is improper + for me to say that Mr. Boone was swearing under great pressure. It is + disclosed by his own testimony that he had eleven hundred routes, and that + he had been declared a failing contractor by the department; and it also + appeared in evidence that he had been indicted some seven or eight times. + Gentlemen, that man was swearing under great pressure. I told you once + before that the hand of the Government had him clutched by the throat, and + the Government relied upon his testimony to show how this conspiracy + originated. Now I propose to call your attention to the evidence of Mr. + Boone upon this subject. + </p> + <p> + On page 1352 Mr. Boone swears substantially that on his first meeting with + Stephen W. Dorsey—that is, after they met at the house—he said + to Dorsey that he (Boone) would be satisfied with a one-third interest. + Now, the testimony of Boone is that Mr. Dorsey then and there agreed that + he might have the one-third interest. + </p> + <p> + Mr. Dorsey says it is not that way; that he told him that when the others + came they would probably give him that interest, or something to that + effect. + </p> + <p> + Mr. Boone further swears that when J. W. Dorsey did come there was a + contract—or articles of agreement you may call them—handed to + him by J. R. Miner, purporting to be articles of partnership between John + W. Dorsey and himself, and that he signed these articles; that that, I + believe, was on the 15th of January, 1878, and that it was by virtue of + that agreement that he had one-third. It was not by virtue of any talk he + had with S. W. Dorsey that he got an interest, and you will see how + perfectly that harmonizes with the statement of Stephen W. Dorsey. + </p> + <p> + Mr. Dorsey's statement is: "I cannot make the bargain with you, but when + John W. Dorsey comes I think he will, or they will." It turned out that + when John W. Dorsey did come in January he did enter into articles of + partnership with A. E. Boone, and did give him the one-third interest. So + the fact stands out that he got the one-third interest from John W. Dorsey + and not from Stephen W. Dorsey. If the paper had been written and signed + by Stephen W. Dorsey that would uphold the testimony of Boone. If Boone + had said, "I made the bargain with Stephen W. Dorsey," and the articles of + co-partnership were signed by him, I submit that that would have been a + perfect corroboration of Boone. Stephen W. Dorsey swears that the bargain + was made with John W. Dorsey, and you find that the agreement was signed + by John W. Dorsey, and not by Stephen W. Dorsey. I submit, therefore, that + that is a perfect corroboration of the testimony of Stephen W. Dorsey. + </p> + <p> + At page 1544 Mr. Boone says that, as a matter of fact, all contractors + endeavored to keep what they were doing secret from all other contractors. + Think of the talk we have heard about secrecy. If the bidders upon any of + these routes did not want the whole world to know the amount they had bid, + that secrecy was tortured into evidence of a criminal conspiracy. If John + W. Dorsey did not want the world to know what he was doing, if Mr. Boone + wanted to keep a secret, these gentlemen say it is because they were + engaged in a conspiracy to defraud the Government, and crime loves the + darkness. What does Mr. Boone say? As a matter of fact, that all + contractors endeavored to keep what they were doing secret from all other + contractors where they feared rivalry. Of course that is human nature. + </p> + <p> + Mr. Boone further says that he never knew of one contractor admitting even + that he was going to bid. He always pretended, don't you see, that he was + not going to bid. He wanted to throw the other contractors off their + guard. He did not want them to imagine that he was figuring upon that same + route, because if they thought he was, they might put in a much lower bid. + He wanted them to feel secure, so that they would put in a good high bid, + and then if he put in a tolerably low bid he would get the route. That is + simply human nature. + </p> + <p> + Boone further says that always when a letting came on he had his bids in; + that contractors keep their bids secret from rival contractors, not for + the purpose of defrauding the Government, but for the purpose of taking + care of their business. Now, gentlemen, when men make these proposals and + keep their business secret—as it turns out that in these cases they + were keeping their business secret—the fact that they are so doing + is not evidence going to show that they are keeping that business secret + because they have conspired. Have you not the right to draw the inference, + and is it not the law that you must draw the inference, that they kept + their business secret for the same reason that all honest men keep their + business secret? + </p> + <p> + At page 1545, Mr. Boone, swearing again about his talk with Mr. Dorsey + that night after the arrangement was concluded, says that he—Dorsey—told + me to be careful of Elkins, because Elkins was representing Roots & + Kerens, large contractors, * * * the largest in the department, at that + time, in the Southwest. + </p> + <p> + And yet that evidence has been alluded to as having in it the touch and + taint of crime, because S. W. Dorsey said to Boone to say nothing to + Elkins. Who was Elkins? He, at that time, as appears from the evidence, + was the attorney of Roots & Kerens; and who were they? Among the + largest, if not the largest contractors in the department; that is, the + largest in the Southwest. + </p> + <p> + Mr. Boone stated that the letter of Peck to S. W. Dorsey requested him to + get some man who knew the business to look after the bids or proposals. + Now, I want to ask you, gentlemen, and I want you to answer it like + sensible men, if Stephen W. Dorsey got up a conspiracy himself, why was it + that Peck wrote to him asking him to get some competent man to collect the + information about the bids—that is, about the country, about the + routes, about the cost of living, about wages, the condition of the roads, + and the topography of the country? + </p> + <p> + If it was hatched in the brain of Stephen W. Dorsey, how is it possible, + gentlemen, that a letter was written to him by Peck asking him to get a + competent man to gather that information? Mr. Boone swears that he had + such a letter. Mr. Boone swears that Dorsey showed the letter to him. Mr. + Boone swears that, in consequence of that letter, he went to work to + gather this information. Did Mr. Dorsey do anything about gathering + information? Nothing. Did he give any advice? None. Did he ask any + questions? Not one. Did he interfere with Mr. Boone in the business? + Never. + </p> + <p> + You know that was a very suspicious circumstance. I believe there was a + direction given that letters be sent to James H. Kepuer. That was another + suspicious circumstance. Mr. Boone swears that he was also in the mail + business; that he did not want the letters to go some place; that he had + to give at the department an address; that thereupon he chose the name of + James H. Kepner, his step-son, so that all the mail in regard to this + particular business would go in one box, and not be mingled with the mail + in reference to his individual business or the business represented by the + firm to which he belonged. What more does he swear? That neither Dorsey + nor any one of these defendants ever suggested that name, or ever + suggested that any such change be made; that it was made only as a matter + of convenience; that it was not intended to and could not in any way + defraud the Government. + </p> + <p> + Now, Mr. Boone has cleared up a little of this. He has cleared up the + letter; he has cleared up the charge of secrecy; he has cleared up the + charge that we had the letters addressed to James H. Kepner & Co.; he + has shown that everything done so far was perfectly natural, perfectly + innocent, and in accordance with the habits of men engaged in that + business. + </p> + <p> + Now I come to the next thing (page 1550). The next great circumstance in + this case, the great suspicious circumstance, was that the amount of the + bid was left blank in the proposals. The moment they saw those blanks in + the bids they knew then that the Government was to be defrauded, and they + brought Mr. Boone here for the purpose of showing that that was done to + lay the foundation for a fraud. What does Boone swear? He swears that he + always left that part of the proposal blank; always had done so; had been + engaged in the mail business for years, and never filled that blank up in + his life, in which the amount of the bid should be inserted. It was not + left blank to defraud the Government, but to prevent the postmasters and + sureties, or any other persons, finding out the amount of the bid. Away + goes that suspicious circumstance. + </p> + <p> + After the bids had been properly executed and came back into the hands of + the contractors, from the time the figures were put into those routes, + what does he say they did? + </p> + <p> + We slept with them until we could get them to the department. + </p> + <p> + He says they never allowed anybody to see them after the amount of the bid + had been inserted; that they would not allow anybody to see the amount of + the bids; that it was left out, however, only for self-protection, and for + no other reason. That is the Government's own witness. He is the man they + brought to show that this blank in the bid was a suspicious circumstance. + He is the man they brought here to show that because Stephen W. Dorsey had + told him to say nothing to Elkins, that injunction of secrecy was evidence + of a conspiracy. + </p> + <p> + At page 1552, Mr. Boone, in speaking of these same things, says that + however they were made, whether the name of the bidder or the route was + put in, or whatever he did—that is, Boone—he did not do it for + the purpose of defrauding the Government. They say to him, "Don't you know + that you left out not only the amount of the bid, but the name of the + bidder?" He says, "Whatever I did, whether I left out the amount of the + bid or the name of the bidder, I did not do it for the purpose of + defrauding the Government; I had no such idea, no idea of defrauding the + Government by leaving any blank or any blanks." He did the work. Stephen + W. Dorsey left no blank; A. E. Boone left every blank; and yet they + brought him forward to prove that that was the result of a conspiracy; and + after he comes upon the stand he swears, "I left those blanks myself; I + always left them in proposals exactly in that way; and whether I left out + the amount of the bid or the name of the bidder, I did not do it to + defraud the Government; I did it simply to protect myself, as I had the + right to do." So much for that. That is gone. + </p> + <p> + So, speaking of these other proposals (the Clendenning proposals) what + does Mr. Boone say—the witness for the Government, the very man who + got up those proposals, the man who wrote them, the man who wrapped them + up, and sealed them? What does he say? "Those proposals were not gotten up + for the purpose of defrauding the Government; I did not send them to + Clendenning for that purpose." That is the end of that. No conspiracy + there. + </p> + <p> + The object, don't you see, gentlemen, was to show by Boone that he acted + under the direction of Dorsey; that Dorsey was responsible for everything + that Boone did; and that although Boone was guilty of no crime in leaving + the bid blank, still if he did it by authority of Dorsey, Dorsey had an + ulterior motive of which Boone was ignorant. Let us see. + </p> + <p> + At page 1554, Mr. Boone swears that Dorsey never told him at any time or + any place that he wanted any blanks left. And yet they were endeavoring by + that witness to saddle that upon S. W. Dorsey. But that witness swears + that Dorsey never even told him that he wanted any blanks left in any + paper, proposal, bid, or bond. He says that Dorsey never at any time or + place told him (Boone) that he (Dorsey) wanted any blanks left, or any + proposals of any particular form printed, to the end that a fraud might be + perpetrated upon the Government—not a word. + </p> + <p> + And, gentlemen, I am now in that space of time where they say this + conspiracy was born. At page 1567, before Miner got here, Mr. Boone swears + that Dorsey told him that he would advance money for the other defendants, + and Mr. Boone swears that after he got here he never asked Dorsey for a + dollar except through Miner; that Dorsey never gave a dollar except + through Miner. + </p> + <p> + What more? This is the witness that is going to establish the guilt of + Stephen W. Dorsey. Stephen W. Dorsey never told Boone at any time that he + had any interest whatever in those mail routes. Boone never heard of it. + Dorsey never told him to print a proposal with a blank; never told him to + leave a blank after it was printed; never told him to do anything for the + purpose of defrauding the Government in any way at any time. This is + extremely good reading, gentlemen, when you take into consideration that + this is the witness of the Government, their main prop until the paragon + of virtue made his appearance upon the stand. + </p> + <p> + Page 1558. Another great point: That in preparing the subcontracts, Dorsey + having it in his mind to conspire against the Government, or really having + conspired, according to their story, wanted a provision in a subcontract + for increase and expedition. + </p> + <p> + Why, it strikes me, gentlemen, that that is evidence of honesty rather + than dishonesty. If these subcontracts were to hold good during the + contract term, and if in the contract given to the contractor by the + Government there was a clause for increase and expedition, why should not + the subcontract provide for the same contingencies that the contract + provided for with the Government? That looks honest, doesn't it? + </p> + <p> + It was advertising the subcontractor that the moment he signed his + subcontract the trips were liable to be increased and the time was liable + to be shortened, and that if the time was shortened or the trips increased + the pay was to be correspondingly increased. But I will go on with the + testimony. + </p> + <p> + Page 1558: In preparing the subcontract Mr. Dorsey instructed Boone to + provide for an expedition clause. That was a suspicious circumstance. What + for? To conform to the expedition clause in the contract with the + Government. If making it like the Government contract is evidence of + conspiracy, the fact that the Government contracts have that clause is + evidence that the Government conspired with somebody. It is just as good + one way as the other. The Government made a contract with the contractor, + the contractor made one with the subcontractor, and the contractor so far + forgot his duties, so far forgot his moral obligations, that he made it + just the same as his contract with the Government. Gentlemen, is there any + depth of depravity below that? Absolutely copying the contract that the + Government was going to make with him, and treating the subcontractor, so + far as the contract was concerned, as the Government had treated him, he + (Boone) prepared a clause which he thought filled the bill, and which he + still thinks, I believe, would have been better to use than the other. + When he showed that to Stephen W. Dorsey, Dorsey suggested another form. + It was the same thing exactly, but in different words. There was the + testimony I have read to you, and now here is what Mr. Bliss states about + it at page 4865: + </p> + <p> + But Stephen W. Dorsey, away back there, knew sufficient about expedition + to appreciate the importance of keeping for the contractors thirty-five + per cent, and giving to the men who were performing the service only + sixty-five per cent. + </p> + <p> + Why not? Is that a crime? Suppose I agreed to carry the mail four years + for $10,000 a year and I subcontract with another man. Have I not the + right to get it carried as cheaply as I can? I just ask you that as a + business proposition. Or has every mail to treat this Government as though + it was in its dotage? Must you do business with the Government as though + you were contracting with an infant or an idiot? Must you look at both + sides of the contract? That is the question. The Government, for instance, + advertises for so much granite, and I put in a bid which is accepted; at + the same time I know that I could furnish that granite for twenty-five per + cent. less. Is it my duty under such circumstances to go and notify the + Government that I have cheated it, and that I would like to have it put + the contract down? There may be heights of morality that would see the + propriety of such action, but it is not for every-day wear and tear. Very + few people have it; it scarcely ever comes into play in trading horses. + Must we treat the Government as though it were imbecile? I say it was a + simple business transaction. The Government advertises for proposals to + carry the mail; I make my bid for $10,000, and we will say that my bid is + accepted. Now, I admit that I could carry it for $5,000 and make money. + </p> + <p> + Am I criminal if I go on and perform the contract as I agreed and draw the + money? Or suppose the people along the route do not want it expedited and + increased, and so I talk to them about it; I go to Mr. Brown and say, "Mr. + Brown, you are living in this smart, thriving town, and you need a daily + mail." I go to the next village and I say, "Why, gentlemen, you will never + have a town here until you have a daily mail; I am the fellow now carrying + the mail." And I keep talking about it, you know, and finally get a fellow + to get up a petition, or I write one myself, and send it around, and say + to them, "Gentlemen, what you want is more mail, faster mail; the mail is + the pioneer of civilization, gentlemen; have a daily mail, and along the + line at once towns and villages and cities will spring up, and all the + hillsides will be covered with farms, and school-houses will be here, and + wealth will be universal." Any crime about that. Every railroad has been + built just that way. Every park has been laid out in every city by just + such means. Nearly every street that has been improved has been improved + in that way, by men who had some interest in the property, by men who were + to be benefited by it themselves, and who ought to be benefited. Should + the men that get the public attention in that direction be benefited, or + the men who do nothing? I say that the men who give attention to the + business have a right to be benefited by it. And yet here is the crime, + gentlemen. And then we only gave these fellows sixty-five per cent, and + took thirty-five ourselves, because we were bound to the Government to + fulfill the contract, as was explained to you so admirably, so perfectly, + by Judge Wilson. The contract was to run for four years, and I believe in + a certain contingency for six months thereafter. We had to carry out the + contract, whether the subcontractor carried out his contract with us or + not. + </p> + <p> + Now, this is what Mr. Bliss says: + </p> + <p> + So, after a large mass of subcontracts had been struck from the press, + which gave to the subcontractors all the increase—There never was a + subcontract that gave to the subcontractors all the increase; there is no + evidence that there ever was such a subcontract, he—That is, Stephen + W. Dorsey—directed them to be put back on the press. + </p> + <p> + I should think he would. If he found any subcontracts were printed that + gave to the subcontractor all the increase, I do not wonder that he had + them destroyed. + </p> + <p> + Here you get, we will say, a contract for ten thousand dollars for one + trip, with the agreement that if there are two trips the compensation + shall be twenty thousand dollars. Thereupon you make a contract with a + subcontractor, and you agree in that subcontract that he shall have all + the increase. Of course, you want that made over again; of course, you + would not make that kind of a subcontract. + </p> + <p> + He directed them to be put back on the press, and this provision giving + the subcontractor his money struck out and this other clause put in. + </p> + <p> + Gentlemen, that is an entire and absolute mistake. There is no such + evidence, there never was in this case, and I take it there never will be. + The evidence was—and you remember it; and you remember it; and you + remember it; and you [addressing different jurors]—that Stephen W. + Dorsey allowed to the subcontractor sixty-five per cent, of the + expedition, and that same subcontractor provided what he should have for + one trip, and what he should have for two trips; that is to say, what he + should have for increase; and it provided at the same time for sixty-five + per cent, on expedition. Mr. Boone swears it; others swear it. Not only + that, but it is printed in the record again and again and again. Why did + Stephen W. Dorsey do that? I can tell you why: He did not. Why did Stephen + W. Dorsey do that, if it was not because his fertile imagination had + already conceived the plan of defrauding the United States, and he was + making an arrangement by which that fraud could be consummated? How would + that help him consummate a fraud? Suppose he struck out all the per cent, + to the subcontractors; suppose he had not had any subcontract printed; + suppose the subcontract was printed, and printed on purpose to deceive and + defraud the subcontractors; how does that show that he was trying to + defraud the United States? Why, if it proves anything it proves the other, + that he had not entered into a conspiracy by which he could get the money + from the United States, but had endeavored to get it from the + subcontractors. If it proves anything it proves that. But the reason it + does not prove anything is because the statement is not correct. + </p> + <p> + Now, just see how a conspiracy can be built of that material. A man that + can do that can make a cover for Barnum's Circus with one postage-stamp; + he can make a suit of clothes out of a rabbit-skin; he can make a grain of + mustard seed cover the whole air without growing. + </p> + <p> + That is given as an evidence that Dorsey had conspired. There is not a + thing on the earth that he could have done that would not prove conspiracy + just as well as that—just exactly—no other act. Humph! That is + the way they build a conspiracy. + </p> + <p> + Why not take another step? Why not have a little bit of ordinary good hard + sense? On the 17th day of May, I believe, 1878, the act was passed + allowing the subcontractor to put his subcontract on file. Now, that + contract ought to provide for all the contingencies of the service, so + that if the trips were increased the Government would know how much to pay + that subcontractor; so that if the time was expedited the Government would + know how much to pay the subcontractor. The subcontract ought to have been + made in that way, and it would be perfectly proper to make it in that way. + </p> + <p> + I once went to see a friend of mine who had the erysipelas and who was a + little crazy. I sat down by his bedside, and he said, "Ingersoll, I have + made a discovery; I just tell you I am going to be a millionaire." Said I, + "What is it?" He says, "I have found out that if four persons take hold of + hands after they have had a hole made in the ground and put a piece of + stove-pipe in it, and then run around it as hard as they can from left to + right, a ball of butter will come out of the pipe." Now, I think that is + about as reasonable as the way conspiracies are made, according to Mr. + Bliss. + </p> + <p> + Now, we come to Mr. Boone (page 1560). He says that the action he had + taken was upon his own responsibility, and that at no time had any papers + been gotten up with any view of defrauding the Government. That was good. + </p> + <p> + I am like the Democrat who said, after hearing the returns from Berks + County, "That sounds good." Then, here is a question asked him: + </p> + <p> + Q. I understood you to say that the contract was made between you and + somebody, fixing your interest in all this business?—A. Yes, sir. + </p> + <p> + Q. Do you recollect about the date of that?—A. I think it is on the + day John W. Dorsey got here in Washington. + </p> + <p> + On page 1561 he swears that at the time Boone made that contract with John + W. Dorsey he and Dorsey had not conspired to defraud the Government in any + way, nor did they ever do so after that contract was made. When was that + contract made? It was made on the 15th day of January, 1878. Who made it? + John W. Dorsey of the one part, and Albert E. Boone of the other. And they + tell exactly what that contract was for. Here is the contract, on page + 1561, and this shows that the statement of Stephen W. Dorsey, that the + matter was deferred until John W Dorsey should come, is absolutely + correct: + </p> + <p> + That the parties to this agreement shall share in all the profits, gains, + and losses as follows: John W. Dorsey shall have two-thirds and Albert E. + Boone, share one-third. + </p> + <p> + Now, gentlemen, there was the original partnership agreement. Let us see + if that was ever dissolved. + </p> + <p> + The next contract was made on the 12th of September, 1878. + </p> + <p> + Now, therefore, in consideration of one dollar in hand paid, the receipt + whereof is hereby acknowledged, I hereby, sell, assign, and transfer to + Albert E. Boone all my said two-thirds interest in the routes in the name + of said Boone in the States of Texas, Louisiana Arkansas, Kansas, and + Nebraska, and in the name of said Dorsey in the States of Texas, + Louisiana, and Arkansas. + </p> + <p> + The reason he did that was because Mr. Miner had made a contract with + Boone to that effect; and probably I had better read that now so that you + will have it exactly and know what we are doing. I read from page 1569; + </p> + <p> + Washington, D. C, August 7, 1878. + </p> + <p> + Whereas A. E. Boone has this day, for the purpose of saving a failure in + the routes in the name of John R. Miner, John M. Peck, and John W. Dorsey—"For + the purpose of saving a failure," recollect. Although Stephen W. Dorsey, + according to the prosecution, was a conspirator, and although John W. + Dorsey was another, and Peck was another, yet on the 7th day of August, + 1878, "for the purpose of saving a failure," they made this: assigned to + John R. Miner his one-third interest in the routes in their names, now, + therefore, I, John R. Miner, agree that John W. Dorsey shall assign his + interest in routes in the name of A. E. Boone in Kansas and Nebraska, + Texas and Louisiana, and Arkansas; in the name of John W. Dorsey, in + Texas, Louisiana, and Kansas. The latter clause not guaranteed. + </p> + <p> + JOHN R. MINER. + </p> + <p> + Now, he said to Mr. Boone, "I have got to have another man come in; we + haven't got the money to run these routes; I have got to get somebody with + us; if you will go out, I will agree that John W. Dorsey will assign to + you his two-thirds interest in all the routes in Kansas, Nebraska, Texas, + Louisiana, and Arkansas. I will agree that John W. Dorsey, although he has + a two-thirds interest in all these routes, shall assign them to you, A. E. + Boone, and they shall thereupon become your property." That agreement was + made on the 7th of August, 1878; and then, as I read you before, on the + 12th day of September, Miner made that promise good, and John W. Dorsey + did assign to Boone his two-thirds interest in all the routes that Miner + said he would. Then Boone was out of it. He had no more to do with Miner, + Peck & Co., and no more to do with John W. Dorsey; he went his road + and they went theirs. He went out in consideration that John W. Dorsey + would give him (Boone) two-thirds of all the routes that he before that + time had one-third in. Then Miner took in Mr. Vaile, because he had the + money to go on with the business. + </p> + <p> + Page 1562, still talking about Mr. Boone. There is another very suspicious + circumstance that was brought up by the prosecution. These bids were put + in in different names, and that was looked at as a very suspicious + circumstance. What does Boone say about that? He says that the object in + bidding in separate names was not to defraud the Government, but was to + have the service divided up and not to bid against each other. That was + reasonable. The arrangement was simply to keep from injuring themselves; + it was not made to defraud the Government, but it was made so that they + might not by accident injure each other. It was a common thing for members + of a firm to bid in that way, and it is a common thing for persons to + organize themselves for the purpose of bidding and running contracts, and + when they thus bid they always bid in their individual names. The fact + that we bid in our individual names was taken as a circumstance going to + show that we had conspired to defraud the Government, and a witness they + bring forward to prove that fact swears that it has been the custom for + all firms to bid in their individual names. Away goes that suspicion. The + coat-tail of that point horizontalizes in the dim distance. + </p> + <p> + Page 1563. The point was made, gentlemen, that we bid on long routes with + slow time, knowing—understand, knowing—that the service would + be increased and that the time would be shortened. The only word I object + to there is the word "knowing." That we bid on long routes with slow time + thinking that the service would be increased and the time shortened was + undoubtedly true. That we bid expecting that the service might be + increased and the time shortened is undoubtedly true. That when we bid we + took into consideration the probability of the service being increased and + the time shortened is undoubtedly true. The only difference is the + difference between thinking and knowing; between taking into account + probabilities and making the bid because we had made a bargain with the + Second Assistant Postmaster-General. That is the difference. Let us see + what Boone says about it. I read from page 1563: + </p> + <p> + On all service of three times a week and under there is a chance for + improvement in getting it up to six or seven times a week. + </p> + <p> + Everybody who has ordinary common sense knows that! If I bid on service + for once a week there is a great deal better chance for getting an + increase of trips than if there were seven when I started. Everybody knows + that. There is about six times as good a chance. + </p> + <p> + All contractors consider that—That chance—in their bids, and + bid lower on one, two, and three times a week service than on a daily + service—Why?—because the chances are the route will be + increased. + </p> + <p> + Boone swears on the same page that he always did that himself; that he + always had done it. Yet that is lugged in here as evidence of a + conspiracy. + </p> + <p> + There is a great deal better chance for expedition when a route is let at + two or three miles an hour, than when it is let at six or seven. + </p> + <p> + Of course there is. The slower it is let the better chance of getting it + expedited. The faster it is let the less chance of getting it expedited. + There is no need of bringing a man here to show that. You know that. If + you thought there was more money in expedition and increase than on the + original schedule, you would, as I insist, bid on such routes as the + advertisement showed the time was to be slow and the service infrequent + upon. Now, gentlemen, to take advantage of such a perfectly apparent thing + as that will not do. You have heard a good deal about star routes, + gentlemen. Every one of you by this time ought to make a pretty good + guess. + </p> + <p> + Postmaster-General; every one of you. If you do not know all about this + subject, you never will. + </p> + <p> + The Foreman (Mr. Crane). We ought to be good lawyers, too. + </p> + <p> + Mr. Ingersoll. You also ought to be good lawyers, at least on this + subject! I do not know that you have all the testimony in your minds, as + there have been so many misstatements made, but if you ever are to know + anything on this subject you know something now; and if you, Mr. Foreman, + or you Mr Renshaw, were to-morrow to go to work to bid on some star routes + you would bid on the longest routes, on the slowest time, and with the + most infrequent trips. You would do that. Then would you say, "That is + evidence that we have conspired"? Has a man got to be so stupid that he + will not take advantage of a perfectly plain thing in order to escape the + charge of conspiracy? If you were to put your money in land in the Western + country you would not go where the country was settled up, and give one + hundred dollars an acre for land. You would go where you could get laud + for two, or three, or four, or five dollars an acre, and say, "There is a + chance for land to rise." That is not conspiracy. So if you were going to + bid on mail service you would bid where the time is slow, or the route + long, and the service once a week. Then you would say that the country + might grow, that railroads might be built and that they might get the + service up to seven trips a week; and that instead of going on two miles + an hour may be they would want to make it seven miles an hour. That is the + service to make money on. Is it a crime to make money? Is it a crime to + make a good bargain with the Government? I suppose these gentlemen of the + prosecution made the best bargain they could with the Government + themselves. Is it a crime? I say no. Is a man to be regarded as a + conspirator because some outsider thinks he got too good a bargain? That + will not do. Boone says he always did that. Of course he did. He says + another thing. These gentlemen say that we did not go above three trips, + and that is another evidence of fraud. They say we did not bid on any + route with more than three trips a week. Mr. Boone tells you, on page + 1565, that the department never advertised for four trips a week. That is + the reason I think they did not bid on any of these. He also swears that + they never advertised for five trips. That is a good reason for our not + taking any routes with five trips, is it not? There were not any + advertised. The Government did not offer to let us have any. That is a + good reason for not taking any of them. The Government had not any of that + kind. After you get beyond three trips Boone swears that the next number + is six or seven; never four, never five. Don't you see? And yet it is a + very suspicious circumstance that we did not bid on any four-trip routes, + or any five-trip routes; that we stopped at three. Why did we stop at + three? Because if we had not stopped at three we would have had to go to + six. Why did we not go to six? Because at six trips a week we would have + been obliged to put up too much money, and to put up too many certified + checks. It required too many men to go on the bonds. That is the reason. + Gentlemen, if there had been a conspiracy it would have been just about as + well for us to bid on six or seven trips to get the expedition of time. If + there had been a conspiracy to make money, and it had been understood by + the Second Assistant Postmaster-General, he could have just as well given + us routes with seven trips a week, and put the service up to seven, eight, + nine, or ten miles an hour, and he could have done that in the + thickly-populated parts of the country; if it had been the result of a + conspiracy. + </p> + <p> + Let me read more from what Mr. Boone says on page 1565: + </p> + <p> + The proposals that I destroyed were upon routes of at least six times per + week. + </p> + <p> + How did he come to destroy them? Another suspicious circumstance against + Dorsey! Boone said when he went into the business he just took the + bidding-book and commenced at A, and was going right straight through to + X, Y, and Z, and make a bid, I believe, on every route that was in the + book. I think that is his testimony. Boone says: + </p> + <p> + I was going on without instructions. I was going on without authority from + anybody, working on the bids. + </p> + <p> + He thinks it was the same day that Miner got here, or the day afterwards, + and he—I suppose meaning Dorsey—came up to the room and saw + what the witness was doing. He was making up bids for every route in the + advertisement, going right along with big and little, when Dorsey said + there was a mistake. No proposals were to be made for over three times a + week or for routes under fifty miles. When Miner came into the room + witness asked what was the reason of that. I say upon this point that + Stephen W. Dorsey never said a word about it, and that Boone is mistaken. + But he says he asked Miner the reason. What did Miner say? Did he say to + him, "It is because we have got a conspiracy? We have got it fixed with + the Second Assistant Postmaster-General"? No. He said this, he said for + fear of failure in getting bonds; that they could not get the bonds for + all the service and could not get certified checks for all the service. + Boone was going clear through the book from preface to finis. They could + not get bonds for all the service and could not get certified checks for + all the service. You remember that for all the service over five thousand + dollars they had to put up five per cent., I think, in certified checks. + Now, there was an immense volume, of three or four thousand routes and he + was going to put in a bid on every one of them. That is what Boone was + going to do. He did not understand the conspiracy at that time. Miner + explained to him, "We cannot get the certified checks. We cannot get the + bondsmen." He did not tell him, "Good Lord, my friend, you don't understand + the terms of the conspiracy. We are taking no such service as that. We are + taking none over three times a week, because, don't you see, we want the + chance for increase. We want the lowest. If we can find any service where + the horses agree to stand still, that is the service to take. You must + look over the terms of the conspiracy and have some sense about it." + </p> + <p> + Boone says he was starting in, taking the advertisements, going right + through the territory, all over that country, and bidding on every route, + not missing one. He never saw Stephen W. Dorsey do any work on the bids. + The proposals sent down to the postmasters in Arkansas, including those to + Clendenning, he (Boone) fixed himself and sealed them. Gentlemen, there is + no evidence that Mr. Dorsey, as I understand it, ever saw one of those + papers, but simply the form that was written out by Boone that was sent to + Clendenning with instructions what to do with the proposals. That I + understand to be the evidence. They proved by Boone that Dorsey never saw + them; never wrote them; never ordered them to be written; never ordered a + blank to be left unfilled. And yet, gentlemen, he was the man whom they + say had brooded over this conspiracy; the man that gave to it life and + form. He is the man that used Boone and John W. Dorsey and Peck and Miner + as instrumentalities and tools. + </p> + <p> + What more? Did Boone take those bonds up to Dorsey and show them to him? + He says that he did not open them; that he did not show them to Dorsey. + That is what Mr. Boone swears. Surely Mr. Boone is an honorable man, + stamped with the seal of the Department of Justice. He did not even show + them to Dorsey. Dorsey never saw anything except the form after Boone had + made it out. I showed you that form on yesterday, I think, marked 16 X. + That is the only thing that Dorsey saw. He did not know what blanks were + left in the bonds, or whether any were left. He never gave any orders + about them, and never saw them. Yet the prosecution want you to hold him + responsible as a conspirator for those bonds. + </p> + <p> + What more, gentlemen? Those bonds were never used. Nobody was ever + defrauded. Not a proposal was put in the Post-Office Department. They + never came to life. Dead! No contract, says Mr. Boone, was ever awarded on + those proposals, even the proposals sent back, unless it was a contract to + him, Boone. That is what he swears. And yet Dorsey is to be held + responsible. + </p> + <p> + Let us hurry along, gentlemen. See how Dorsey came to do this. How did + that arch-conspirator, as they claim him to be, happen to write that + letter to Clendenning? On page 1567 Boone says that he suggested to Dorsey + that he had better send a note with the proposals to Clendenning. Boone + suggested it. He was not a conspirator, but he suggested it. Dorsey was + the conspirator, but never dreamed of it. How fortunate for a conspirator + to have an innocent man think of the means of carrying out a conspiracy; + never thinking of crime, but having it all suggested by perfect innocence + and then crime taking advantage of it. That is the position! He suggested + that Dorsey would better send a note with the proposals to Clendenning. I + will read from page 1568: + </p> + <p> + Q. Was there not danger that he would be declared a failing contractor? + Was it at that time the practice of the department if a man, for instance, + had fifty contracts and failed on one to declare him a failing contractor + on all?—A. No, sir; but they would declare him a failing contractor + on that one route and suspend his pay until he paid up the loss to the + Government—just my case now, exactly. + </p> + <p> + Q. That was one of the reasons that you had. Now, you were informed at + that time that they had not the money to carry this on. + </p> + <p> + When, as a matter of fact, did you go out of the concern?—A. The 8th + day of August, 1878. + </p> + <p> + Q. Was S. W. Dorsey then in Washington?—A. No, sir; he was not. He + had been gone ten or twelve days. + </p> + <p> + Now, then, we come to August 7, 1878, the time that Mr. Boone went out. He + did it for the purpose of saving a failure on the routes in the names of + Miner, Peck, Dorsey, and himself. That is what he went out for, and that + is his only reason. On page 1570 Mr. Boone swears that so far as he knows + neither John W. Dorsey, John R. Miner, John M. Peck, nor Stephen W. Dorsey + had any arrangement with the Second Assistant Postmaster-General to + increase the service; none whatever. + </p> + <p> + Boone went out on the 7th day of August, 1878. S. W. Dorsey was in New + Mexico. He did not return here until about the time Congress assembled in + December. Boone swears that he then learned from S. W. Dorsey that he, + Dorsey, did not know that Boone was out of the concern; did not know that + he had left on the 7th day of August, 1878. Now, gentlemen, if Stephen W. + Dorsey was the main conspirator, if he was doing this entire business, is + it possible that A. E. Boone went out on the 7th day of August, that John + W. Dorsey assigned his interest in all the routes mentioned in the + agreement, and John R. Miner took in Vaile, and the service was put on + those routes by the money furnished by Vaile, that all that was done and + yet Stephen W. Dorsey never heard of it and did not even know that Boone + was out, did not even know that Vaile was in? Besides that, gentlemen, as + I told you, Dorsey was not here. He was in New Mexico. He was in utter + ignorance of this entire business, and yet they claim that he was the + directing spirit. + </p> + <p> + Mr. Boone further testifies, on page 1571, that Brady showed him a + telegram from the postmistress at The Dalles, saying that the service was + down. When I read that I thought may be that was where Moore got his hint + to swear that he telegraphed to find out what was done with that service. + Boone further swears that Brady said that it must be put on; that he said + it could not be put on at the contract price, and that Brady told him, "I + advise you to telegraph and put it on at any price," and that unless all + the service was on by the 15th day of August he would declare the + contractor a failing contractor on every route the service was down upon. + That is what Brady told him. Stephen W. Dorsey was not here. According to + the testimony of Moore he knew when he went away that the service in + Oregon was not put on, but he abandoned it, and paid no attention to it. + He happened to meet Miner at Saint Louis, and told him, I believe, "There + are my notes for eight thousand five hundred dollars. That is all I will + do. I am through! I have already advanced thirteen or fourteen thousand + dollars. I will not advance another dollar." Why did not Miner tell him, + "If you are not going on with this conspiracy I am going home"? Why didn't + Miner tell him then, "What did you get up a conspiracy like this for, just + to abandon it"? Why did not Miner say to him, "This is your child. I + became a criminal at your suggestion. I entered into this conspiracy + because you urged me to, and now after we have got the routes, you are + going to abandon it"? Why did he not say to him, "Dorsey, if you are not + going on with this conspiracy I am going back to Sandusky"? Did Dorsey at + Saint Louis treat it as his bantling? or did he say to Miner, "This is all + I will do"? Did he mean for himself? No. "All I will do for you." + </p> + <p> + Certainly he would not have made the threat to Miner that he would not do + anything more for himself. He then said to Miner, "I am through!" Miner + knew at that time that Stephen W. Dorsey had not the interest of one + solitary dollar except the money he had advanced. Stephen W. Dorsey, + according to the testimony of this prosecution, knew when he left this + city that the routes were not in operation in Eastern Oregon. He went away + knowing that J. W. Dorsey and John R. Miner and John M. Peck were in + danger of being declared failing contractors. Yet he never even called on + Brady to see about it. He never asked to have the time extended a minute. + He never took the least interest in the business. He started for New + Mexico, and went by way of Oberlin, Ohio. He happened to meet Miner in + Saint Louis, and for Miner's sake, for Peck's sake, for John W. Dorsey's + sake, and not for his own sake, he gave them some notes to the extent of + eight thousand five hundred dollars that they could have discounted, and + said to Miner then and there. "That is the last dollar. That is the last + cent." What more did he do? He abandoned the whole business. He went to + New Mexico. He never wrote about it; he never spoke about it; he never + received a dispatch concerning it until the following December, when he + came back to Washington, and then for the first time found that Boone had + gone out and that Vaile had come in. What more? Although he was interested + to the extent of thirteen or fourteen thousand dollars, he did not know + until he came back in December that his security had been rendered + worthless. He found that out then for the first time. That is a fine model + of a conspirator. Reading again from Boone's testimony, on page 1371: + </p> + <p> + Fully a month and a half of the time had been taken up by the + Congressional investigation, and we—That is to say, Miner, Peck, + Boone, and the rest—did not know what to do with the service. We + dared not to move. We expected that the contracts would be taken from us. + </p> + <p> + Do you tell me that under such circumstances, if Stephen W. Dorsey had + conceived this thing, he would have gone off and left it? Do you tell me, + with the entire business trembling in the balance, without the money to + put the service on, at the mercy of Thomas J. Brady, that if Stephen W. + Dorsey had gotten up that conspiracy, and also put in thirteen or fourteen + thousand dollars, he would have gone away and left it, and told Miner and + the others, "I will have no more to do with it," and leave it so + effectually and so perfectly that he did not even know that Boone had gone + out and Vaile had come in until the following December, when he came here + to take his seat in the Senate? + </p> + <p> + On page 1580, again quoting from Mr. Boone: + </p> + <p> + The fact—Here is something that rises like the Rock of Gibraltar. It + is one of those indications of truth that rascality never had ingenuity + enough to invent: + </p> + <p> + The fact that Dorsey refused to advance any more money on account of this + business was taken into consideration by me when I made up my mind to go + out. + </p> + <p> + Do you want any better testimony than that, that Dorsey did refuse to + advance any more money? + </p> + <p> + Don't you see how everything fits together when you get at the facts? How + naturally they all blend and harmonize when you get at the facts. Now, + here is some more from Mr. Boone: + </p> + <p> + If I had not gone out the service would have undoubtedly failed, unless + they got the money to put it on. When Mr. Dorsey declined to furnish any + more money or to indorse any more notes, there was nothing else to do but + for me to go out and let somebody else come in who had the money. + </p> + <p> + That is a witness for the Government, and yet at the time that happened + they say there was a great conspiracy; that the Second Assistant + Postmaster-General was in it; that a Senator of the United States was in + it; and that these other men were simply tools. It will not do, gentlemen. + If that had been the case Stephen W. Dorsey would have remained here. He + would have gone to Mr. Brady and said, "I must have time," and Mr. Brady + would have given him all the time he desired, because, according to this + prosecution, it was their partnership business. Brady had ten times as + great an interest as Stephen W. Dorsey. According to the testimony of Mr. + Rerdell, Brady had an interest of thirty-three and one-third per cent., + and according to the testimony of Rerdell and Boone, Dorsey only had an + interest of seven-eighths of one per cent. + </p> + <p> + That means, as I understand it, according to their testimony, thirty-three + and one-third per cent, of the gross expedition; not profits, but of the + gross expedition. That is what they swear. When he gave on a route an + expedition of, say, six thousand dollars, two thousand dollars would go to + Brady each year. In other words, thirty-three and one-third per cent, of + the money paid for expedition went to Brady. + </p> + <p> + Mr. Walsh testified and gave the exact figures, and called the amount, if + the Court will recollect, sixty thousand dollars, and twenty per cent, he + said of that is twelve thousand dollars. That had to run, he says, for + three years, and that made thirty-six thousand dollars. That is the + testimony in this case, gentlemen. If you should have a row of men as long + as the row of kings that Banquo saw, stretching out "to the crack of + doom," and they should swear to it, I should still die an unbeliever; but + that is their testimony. Dorsey ran away and left his conspiracy and Brady + would not attend to his own business. Now, I read again from Boone: + </p> + <p> + With regard to the preparation of circulars, the sending of them to + postmasters, the printing of proposals, the printing of bonds and + subcontracts, there was nothing done differently from what I had always + done before. + </p> + <p> + Recollect that. He is a Government witness. Dorsey in a conspiracy got + Boone to help him, and in helping him Boone did nothing different from + what he had always done before. There is not much left of this case, + gentlemen, but I will keep going on just the same. Mr. Boone swears that + he followed the regular custom and practice of doing business. + </p> + <p> + Then, there is another suspicious circumstance. At the bottom of the + contracts published by the Government, for the purpose of informing + contractors as to how the bonds or contracts are to be signed, and exactly + what is to be done by each person, there are a lot of instructions. + </p> + <p> + Mr. Carpenter. On the proposals. + </p> + <p> + Mr. Ingersoll. On the proposals. When they got up the proposals of their + own, they, understanding the business, left off all those directions that + the Government put upon its forms. Why? Those directions were put there + for the benefit of men who did not understand the business. These men did + understand the business, and consequently it was nonsense for them if they + had to have the printing done, to put on the bottom of the contracts two + or three paragraphs of directions to themselves. They understood exactly + how to do it without the directions. + </p> + <p> + Who left them off? Stephen W. Dorsey? No. John W. Dorsey? No. He had + nothing to do with it. Miner? No. He had nothing to do with it. Who left + them off? Boone says he did. Was he instructed to do it? No. Did it take a + conspiracy to leave them off? No. He left them off for two reasons, and + good ones, too. One was to save the expense of printing. That was a good + reason. There was no conspiracy needed for that. The other was, that + knowing how to perfect the proposals, and understanding all those + instructions, there was no need of having them printed for their benefit. + </p> + <p> + Next, on page 1582. What instructions as a matter of fact did Mr. Boone + receive from Mr. Dorsey, if he received any? The question arises, upon + what subject? In reference to what particular point? Boone says on this + page that he received no instructions from Dorsey in reference to the + business except in regard to the subcontract blanks. + </p> + <p> + That is the one subject on which he received any instructions from S. W. + Dorsey. I have shown you that those instructions were in the interests of + honesty and fair dealing. Those were the only instructions he received. On + every other subject there is not a word. Why? Here Boone gives the reason. + "I did not require any." Why? Because he understood the business himself. + What else? "I was to go ahead and do whatever was necessary to be done." + He did it without consulting anybody. He did it in his own way. He did it + as he thought best for all concerned. Now, gentlemen, there will be an + effort made to convince you that Stephen W. Dorsey did everything during + all that period. If you are told that, when you are told it remember what + I tell you now: that Mr. Boone swears that he did it himself; that he + attended to the entire business, and that he was instructed by Dorsey in + no particular except as to that one blank, and that I have clearly + demonstrated was in the interests of honesty and in the interests of the + subcontractor, so that the subcontract might agree with or be similar to + the contract made with the Government. That is all. + </p> + <p> + Now we come to another point. You must recollect that Mr. Boone got out + the circulars. Mr. Boone sent to all the postmasters to know about the + roads and the price of grain and the price of labor, about the snow in + winter and the rain in the spring. He got all that up. He went through the + bidding-book originally and made the bids. He it was who prepared most of + these proposals. He did all the work until Miner came. S. W. Dorsey did + not do any of it. Boone never saw him working upon or touching the + proposals. What S. W. Dorsey did he did at Boone's request. What he did he + did at Miner's request. What he did he did simply because he was a friend. + Boone attended to it all. Now, what does Boone say on page 1584? He swears + that so far as he knew there never was any conspiracy on the part of these + defendants with him, with each other, or anybody else, in reference to + these routes, or any route bid for and awarded to them during that time. + There was no conspiracy to defraud the Government in any way. That is what + the Government witness swears to—a man brought here to stain the + reputation of Stephen W. Dorsey. That is what a Government witness swears; + swearing, too, under pressure; swearing, too, under circumstances where + the Post-Office Department could strip him of everything he had on earth; + swearing under circumstances where if he did not please the Government + they could pursue him as they have pursued us. Perhaps I had better read + what he says. I read from page 1583 of my examination: + </p> + <p> + Now, then, so far as you know, Mr. Boone, was there any conspiracy on the + part of any of these defendants with you, or with anybody else, to your + knowledge, in respect of these routes mentioned in the indictment or of + any routes bid for and awarded to them during that time—any + conspiracy to defraud the Government in any way? + </p> + <p> + And he answered: + </p> + <p> + No, sir. + </p> + <p> + That was a Government witness, acquainted with all the transactions during + that time. He was swearing under the shadow of power, with the sword + hanging over his head, and yet he swears he never knew or heard of any + such thing. + </p> + <p> + Let us go on. On page 1589 he swears that Mr. Dorsey told him to fix the + blanks and make them up and to write what he wanted done in Arkansas, and + that while he, Boone, was engaged in so doing he said to Dorsey, "Had you + not better write a note so that I can attach it to the blanks?" And Dorsey + did so. Dorsey told him to fill up what he wanted in Arkansas, and what + was necessary to be executed there, and he did so. + </p> + <p> + Boone indicated exactly what he wanted put in. I showed you the + Clendenning bonds yesterday and showed you just what Boone did. He filled + up the blanks that he wanted to have filled down there. Of course, the + blanks that were already filled in he did not want interfered with. That + is what he says. There is another part of his testimony. I want to call + the attention of the gentlemen to it. "I hand you," said they, "32 X." Mr. + Bliss did the handing. What was that? That was the Chico letter. What did + they want to introduce that for? To show that S. W. Dorsey was interested + personally in these routes in 1878. That was a magnificent piece of + testimony for them to show that Dorsey in 1878 was writing to Rerdell to + watch the advertisement of these routes. So they introduced that letter. + Mr. Boone looked at it. He was a Government witness. The noose was around + his neck and the other end of the rope was in the hands of Mr. Bliss. What + did Mr. Boone say? "Mr. Dorsey never wrote that letter." Then said Mr. + Bliss to him, "That is not Mr. Dorsey's writing?" And Mr. Boone said "No, + sir." And at the same time threw the forged scrap away contemptuously. + What else? On April 3, 1878, Mr. Dorsey was here. + </p> + <p> + Mr. Merrick. Was Mr Dorsey here at that time? + </p> + <p> + Witness. He was here, sir; and I was in communication with him on that + very day. + </p> + <p> + That is the evidence of a Government witness; a man who was depended upon + to show that not only my client, but that Mr. Miner entered into a + conspiracy in the fall of 1877 to defraud this Government. I want you to + remember one thing which I was about to forget. Mr. Ker, I believe, spoke + six or seven days and I do not remember of his having mentioned the Chico + letter. He acted as if it had a contagious disease. He was followed by Mr. + Bliss in another week, but he did not mention the Chico letter; at least I + have never happened to read it in his speech. Both of them are as dumb as + oysters after a clap of thunder. Not a word. They did not, either of them, + have the courage to refer to it. They did not have the nerve to ask you to + believe it. I tell you one thing, gentlemen, I would either admit that it + was a forgery, or I would swear that it was genuine. I would do something + with it. I would not allow that paper, blown by the wind, to scare me from + the highway of the argument! I would do one thing or the other. I would + either admit that Mr. Rerdell forged it, or I would insist that it was the + handwriting of Stephen W. Dorsey. Why was it left where it was, gentlemen? + They could not get anybody to swear that it was Dorsey's handwriting. That + is all. + </p> + <p> + Now we will take the next step. They had so much confidence in that + witness that they concluded they would prove the pencil memorandum by him. + They had such a clutch on him. So they stuck that up to him. Recollecting + the position he was in, recollecting the danger, recollecting all that + might probably follow speaking the truth, here is what he says: + </p> + <p> + Everything above "profit and loss" in that memorandum favors the + handwriting of S. W. Dorsey. + </p> + <p> + What else? + </p> + <p> + And everything below favors the handwriting of M. C. Rerdell. + </p> + <p> + Fit conclusion for a Government witness, brought here to show that Stephen + W. Dorsey was the arch-conspirator. And they ended the witness; dismissed + him from the stand, after he had shown that Dorsey did not conspire; after + he had shown that he himself fixed the subcontracts, with the exception of + only one; after he had shown that he himself filled out the blanks to send + to Clendenning; after he had shown that he did everything without being + advised by S. W. Dorsey, and then he swore that their principal witness + was a forger. Then they dismissed him. That was the end of the Government + witness who was to brand the word "conspirator" upon the forehead of + Stephen W. Dorsey's reputation. But instead of putting "conspirator" + there, he put the word "forger" upon the principal witness for the + Government. Magnificent exchange! Now, gentlemen, you know as well as I do + that Mr. Boone knew all that was happening during that entire time. You + know as well as I do that he did not swear anything for the defence that + he could help swearing. + </p> + <p> + What else? Mr. Bliss, on page 303, says that: + </p> + <p> + Parties conspiring make an informal verbal agreement. + </p> + <p> + When did we make that agreement? When does the testimony show that we made + an informal verbal agreement? Who were present at the time? Where were we? + Do you recollect the number of the house? Do you recollect the day of the + month? Has any one of you ever had in his mind which side of the street + that was on? What town was it in? Could you locate it if you had a good + map? I do not care whether it is informal or formal. Did we make one? In + order to make a verbal agreement you have to use some words. Is there any + evidence as to the words we used? Not a word that I have heard, not a + word. + </p> + <p> + What else? He says that this is necessarily secret and intended to be + secret. The first thing done was that Dorsey told it to Moore. Then, for + fear it would get out, J. W. Dorsey told it to Pennell and to thirty + fellows around the camp-fire out in Dakota. And there was a suspicion in + Brady's mind that somebody might hear of it, and so he told Rerdell. He + says, "Get the books copied; this is a secret thing." Then Dorsey wrote it + to Bosler, and he was so awfully afraid that it would get out that he kept + a copy of the letter. You see, Mr. Bliss says the object was to keep it + secret. Then Miner and Vaile told it to Rerdell for fear he would not + believe it when Brady told him. They were bound the thing should not get + out. Yes, sir. And then Rerdell, just bursting with the importance of + keeping that secret, told it to Perkins and Taylor; went away out there + for that purpose. And then Moore, he gave it away to Major and McBean for + the purpose of keeping it secret. Then Miner told Moore. From whom did + they keep it secret? Nobody in God's world but Boone. He is the only + fellow that nobody told. Boone went through it all, saw all the plan and + heard all the whispering, and he is the only man in the country, I think, + that did not suspect it. And on the 7th day of August he left the concern + because there was not a conspiracy, and admits to you that if he had had + even a suspicion of it he would have staid—staid or died. + </p> + <p> + Now, was there ever a conspiracy published so widely, that one end of the + country kept so secret from the other? Was there ever a conspiracy like + that, the news of which ran through the West like wild-fire, while the + fellows at the East never heard of it? Everybody knew it out on the + plains. All you had to do was to subpoena a fellow that wanted to come to + Washington, and he would remember it. And yet that is the evidence that + the prosecution desires you to believe. I do not believe it. I do not + think I ever shall. But then they promised so much at the beginning, and + they have done so little in many respects. + </p> + <p> + Something had to be said, and so Mr. Bliss, on page 265, in a little burst + of confidence to the jury, says: + </p> + <p> + At least one United States Senator was the paid agent of these defendants. + </p> + <p> + Who was the Senator? + </p> + <p> + Mr. Bliss. Did I say that, sir? + </p> + <p> + Mr. Ingersoll. Look at page 265 and see whether you did. + </p> + <p> + Mr. Bliss. Read all that I said there. + </p> + <p> + Mr. Ingersoll. I will do that. + </p> + <p> + But we shall show to you that at least one United States Senator, urging + such increase, was the paid agent of these defendants. + </p> + <p> + Mr. Bliss. I then went on and said we should show it if you put him on the + stand. + </p> + <p> + Mr. Ingersoll. Yes, if we furnished you the evidence. + </p> + <p> + Mr. Bliss. No, sir; that is not what I said. + </p> + <p> + Mr. Ingersoll. Why didn't you produce the Senator? + </p> + <p> + Mr. Bliss. Why didn't you put him on the stand? + </p> + <p> + Mr. Ingersoll. How did I know what Senator you meant? + </p> + <p> + Mr. Bliss. Did you have two? + </p> + <p> + Mr. Ingersoll. No, sir; and we did not have the one. If you could have + proved it, it was your duty, as the attorney of the United States, to do + it, and if you did not do it, you did not do your duty in this case. + </p> + <p> + Mr. Bliss. Whose name is expressed in the memorandum? + </p> + <p> + Mr. Ingersoll. Why did you not say that to the jury? You dared not do it. + That is like what was said here the other day before this jury, and taken + out of the record. We will come to it. These are the gentlemen who did not + wish to stain the names of citizens. These are the gentlemen who did not + wish to bring anybody into this case that had not been indicted. And yet + Mr. Bliss, in his opening, said that he would show you at least one + Senator who was the paid agent of these defendants; and now, having failed + to do it, he stands here before you and asks whose name was on the pencil + memorandum, meaning that J. H. Mitchell was the paid agent of these + defendants. + </p> + <p> + Ah, gentlemen, I would not, for the sake of convicting any man on this + earth, stain the reputation of another in a place and in a way where that + other could not defend himself. I would not do it. I do not think there is + any crime beyond that. It is as bad to stab the reputation as it is to + stab the flesh; it is as bad to kill the honor of the man as to put a + dagger into his heart. + </p> + <p> + There are so many things in these papers that I would never get through, + if I commented upon them all, if I talked forty years. I now refer to page + 4509. I have to change from one of these lawyers to the other. Now, on + this subject of subcontracts, showing how we are endeavoring to cheat and + defraud the Government, Mr. Ker says, at page 4509: + </p> + <p> + Acting upon Stephen W. Dorsey's advice he put in this clause giving the + subcontractors sixty-five per cent, of the increase. I want you to + remember the sixty-five per cent., because I will show you some + subcontracts with that amount in, but I do not want you to think for one + moment that the subcontractors ever got a dollar out of it. + </p> + <p> + Gentlemen, the evidence is that the subcontractors were paid the amount + mentioned in their subcontracts. I believe all of them are on file in this + case, and on all that were filed in the department the money was paid + directly to the subcontractor. And yet Mr. Ker tells you that he does not + want you to think for a moment that the subcontractors ever got one dollar + out of it. Is it possible, gentlemen, that there is any necessity for + resorting to such statements? Can you conceive of any reason for doing it, + except that they are actually mistaken, except for the fact that they know + they have not the evidence to convict these defendants? + </p> + <p> + We are not begging of you. We are not upon our knees before you. But we do + want to be tried according to the evidence and according to the law. We do + not want your mind, nor yours, nor yours [addressing different jurors] + poisoned with a misstatement. We want to be tried, and we want the verdict + rendered by you when every fact is as luminous in your mind as the sun at + mid-day. We want every fact to stand out like stars in a perfect night, + without a cloud of doubt between you and the fact. That is the kind of a + verdict we want. We want a verdict that comes from a clear head and a + brave heart. We do not want a verdict simply from sympathy. We want a + verdict according to the evidence and according to the law. And when the + verdict is given we want every one of you to say, "That is my verdict; I + found it upon the evidence and upon the law; dig beneath it and you will + not find used as the corner-stone a misstatement, or a mistake, or a + falsehood; it stands upon the rock of fact, upon the foundation of + absolute truth." + </p> + <p> + Do you know that if I were prosecuting a man, trying to take from him his + liberty, trying to take from him his home, trying to rob his fireside and + make it desolate, and if I should succeed and afterwards know that I had + made a misstatement of the evidence to the jury, I could not sleep until I + had done what was in my power to release that man; and after he was + released, or even if he were not released, I would go to him when he was + wearing the prison garb, and I would get down on my knees and beg him to + forgive me. I would rather be sent to the penitentiary myself, I would + rather wear the stripes of eternal degradation, than to send another man + there by a misstatement or a mistake that I had made. That is my feeling. + I may be wrong. + </p> + <p> + It may be that I am guilty, according to Colonel Bliss, of sneering at + everything that people hold sacred. But I do not sneer at justice. I + believe that over all, justice sits the eternal queen, holding in her hand + the scales in which are weighed the deeds of men. I believe that it is my + duty to make the world a little better, because I have lived in it. I + believe in helping my fellow-men. I do no not sneer at charity; I do not + sneer at justice, and I do not sneer at liberty. And why did he make that + remark to you, gentlemen? Is it possible that for a moment he dreamed that + he might prejudice your minds against the case of my client, because, I, + his attorney, am not what is called a believer? Is it possible that he has + so mean an opinion of a Christian that a Christian would violate his oath + when upon the jury, simply to get even with a lawyer who happened to be an + infidel? Is that his idea of Christianity? It is not mine; it is not mine. + I stand before you to-day, gentlemen, as a man having the rights you have, + and no more; and I am willing to work and toil and suffer to give you + every right that I enjoy. And I know that not one of you will allow + himself to be prejudiced against my client because you and I happen to + disagree upon subjects about which none of us know anything for certain. I + do not believe you will. And yet, that remark was made, gentlemen—I + will not say that it was made, but may be it was—hoping that it + would lodge the seed of prejudice in your minds, hoping that it might + bring to life that little adder of hatred that sleeps unknown to us in + nearly all of our bosoms. I have too much confidence in you, too much + confidence in human nature to believe that can affect my client. + </p> + <p> + Now, gentlemen, there is no pretence, there is no evidence that every + subcontractor did not get the per cent, mentioned in his subcontract, + except one, and that was Mr. French, on the route from Kearney to Kent; + and the evidence there is that Miner settled with him, I believe, and gave + him a certain amount of money in lieu of expedition. That is the solitary + exception. + </p> + <p> + Now, gentlemen, I come to a most interesting part of this discussion, and + I hope we will live through it. In the first place, what is a conspiracy? + Well, in this case, they must establish that it was an agreement entered + into between the persons mentioned in this indictment, or two of them, to + defraud the Government. How? By the means pointed out and described in the + indictment. While it may not be absolutely necessary to describe the + means, I hold that if they do describe them, tell how the conspiracy was + to be accomplished, they are bound by their description; they must prove + such a conspiracy as they describe. If a man is indicted for stealing a + horse and the color of the horse is given, it will not do to prove a horse + of another color. If they describe the offence they are bound by the + description. + </p> + <p> + Now, this is a conspiracy entered into, as they claim, by the persons + mentioned in the indictment, to do a certain thing. What is the object of + the conspiracy? To defraud the Government. And, gentlemen, I believe the + Court will instruct you that the conspiring is the crime. The object of + the conspiracy is to defraud the United States. What are the means? + According to this indictment false petitions, false oaths, false letters, + false orders. What I insist on is that the means cannot take the place of + the object; that the means cannot take the place of the conspiracy + described. When you describe a conspiracy by certain means to defraud the + Government, and set out the means so that the Second Assistant + Postmaster-General is a necessity, then you cannot turn and shift your + ground, and say that it was not the conspiracy set out in the indictment, + but that it was a conspiracy to do some of the things recited as means in + the indictment; you cannot say that it was not a conspiracy entered into + with the Second Assistant Postmaster-General, but was a conspiracy entered + into with some others to make a false petition or a false affidavit. The + ostrich of this prosecution will not be allowed to hide its head under the + leaf of an affidavit. They must prove, in my judgment, the conspiracy that + they describe in the indictment, and none other. + </p> + <p> + Now, what else? You must be prepared, gentlemen, when you make up a + verdict, if you say that there was a conspiracy, to say when it was + entered into and who entered into it. And I suppose when you retire, the + first question for you to decide will be: Was there a conspiracy? Has any + conspiracy been established beyond a reasonable doubt? If you say yes, + then the next question for you to decide is, who conspired? Who were the + members of that conspiracy? + </p> + <p> + After you do that there is one other thing you have to do: You have to + find that one of the conspirators, for the purpose of carrying the + conspiracy into effect, did something; that is called an overt act. You + have to find, that at least one of them did something to effect the object + of that conspiracy. You must remember, gentlemen, that the overt act must + come after the conspiracy. In other words, you cannot commit an overt act + and make a conspiracy to fit it; you must have the conspiracy first, and + then do an overt act for the purpose of accomplishing the object of that + conspiracy. The conspiracy must come first, and the overt act afterwards. + You all understand that now. + </p> + <p> + Now, this indictment is so framed that the earliest time within the life + of the statute of limitations for an overt act is the 23d day of May, + 1879. Why? The indictment charges that as the day, the conspiracy was + entered into. Any overt act in consequence of that conspiracy must have + been done after the 23d of May, 1879. Now, get that in your heads, level + and square. The conspiracy, according to this, is not back of the 23d of + May, 1879, and any overt act done, in order to be considered an overt act, + must be done after the date of that conspiracy. If they prove any act done + before that time, it shows that it was not an overt act belonging to the + conspiracy mentioned in the indictment. If it is an overt act at all, it + is an overt act of another conspiracy entered into before the date + mentioned in this indictment, and consequently will not do for an overt + act in this case. Now, I want you all to understand that. + </p> + <p> + I forget how many overt acts are charged in this indictment; some sixty or + seventy, I think. And understand me, now, gentlemen, no matter what date + they fix to an overt act in the indictment, no matter whether there is any + date to it or not in the indictment, if it turns out to have been done + before the time fixed for the conspiracy it is dead as an overt act: it is + good for nothing. The overt act is the fruit of the conspiracy; the + conspiracy is not the result of the overt act. Now let me make a statement + to you, so that you will understand it. + </p> + <p> + Every petition, every letter, every affidavit, upon which orders for + expedition were based, was filed before the 23d of May, 1879, except on + two routes—Toquerville to Adair-ville and Eugene City to Bridge + Creek. If that is true, then not a solitary petition filed in this case + can be considered as an overt act; and a conspiracy without an overt act + is nothing; it simply exists in the imagination; it is an agreement made + of words and air, and never was vitalized with an act done by one of the + conspirators for the purpose of giving it effect. Recollect that every + petition, every affidavit, every letter filed, was filed before the 23d + day of May, with the two exceptions I have mentioned. That is the date + when the conspiracy came into being. And consequently an overt act must be + after that time. + </p> + <p> + Now,'when they came to write this indictment, why did they not tell the + truth in it? I do not mean that in an offensive sense, because a man has + the right to write in that indictment what he wants to. That is a matter + of pleading. But why did they not tell the facts? Why did they put in the + indictment that a certain petition was filed on the 26th day of June, when + they had the petition before them and knew that it was filed in April, + 1879? Why did they put in that indictment that a certain affidavit was + filed on the 26th or 27th of May, I think it was, when they knew that it + was filed in April or March? Why? Because if they had put that in the + indictment the indictment would have been quashed, so far as their overt + acts were concerned. The Court would have said, "I cannot allow you to put + on paper that a man entered into a conspiracy on the 23d of May, and then + did an act to carry that conspiracy into effect in April before that time. + I cannot allow you to do that, because that is infinitely absurd, and + pleadings have to be reasonable on their face." But you see they stated + that this was done after the conspiracy. They had to do it or they would + be gone. I believe there is no dispute about this law that if they + describe the overt act—and they must describe it, because it is a + part of the offence—that is, the offence is not complete without it—they + must prove it exactly as they describe it. + </p> + <p> + If they describe it with infinite minuteness, they must prove it with + infinite minuteness. If they set out that an affidavit was written on + bark, they must produce a bark affidavit. If they were foolish enough to + say it was written in red ink they must produce it in red ink. If they + allege that an oath was sworn to twice before two notaries public they + must produce an oath sworn to twice. They are bound to prove exactly what + they charge, and if they were too particular about it that is their fault, + not ours. + </p> + <p> + I say that all these, with the exception of the two routes I have named, + were filed too early to play any important part in this case. Now, I will + come to those routes. Remember, that every overt act must be after the + conspiracy. There are two exceptions, and those two exceptions include + petitions and affidavits. And there is a splendid kind of justice in the + way this thing is coming out, so far as that is concerned. + </p> + <p> + The petitions filed on the Toquerville route and on Bridge Creek route, I + believe, are genuine; I believe the Government admits that they are + honest; and they were not attacked except upon one point, and that was + that a daily mail did not mean seven times a week. The point made by the + Government was that a daily mail meant six trips a week—that is, + where you have them every day. We took the ground that daily mail meant a + mail every day, and that in the Western country, as here, they have seven + days in a week. + </p> + <p> + We contended that you cannot have a daily mail without having seven trips + a week. I think that was the only point made against these petitions—that + they were for a daily mail, and that somebody put in a figure 7. + </p> + <p> + No petition for increase of service alone was ever attacked by the + Government in this case, except 25 L, on The Dalles route, and 20 H and 29 + H, on the Canyon City route. 25 L was filed April 23, 1879. That was one + month before the conspiracy had life. Consequently that is mustered out of + this case as an overt act. + </p> + <p> + 23 L was filed June 27, 1879, and is in time, provided it had been a + dishonest petition. And it is the only petition filed on the date alleged + in the indictment, and it was not attacked. It was signed by the business + men of Baker City, and is set out, I believe, on page 1617. + </p> + <p> + 20 H was filed May 7th. That is not in time. That is gone. + </p> + <p> + 29 H has no file mark, and never was proved. So that goes. + </p> + <p> + All the allegations as to false petitions for increase of service—and + by that I mean additional trips—are shown to have been genuine, + honest, true petitions. + </p> + <p> + There are but two affidavits, one correctly described. Both were made by + Peck. Mr. Bliss admits that Peck had nothing to do with any of these + routes after April 1, 1879, and both of them were made by Peck, and were + sworn to before that date. + </p> + <p> + The affidavit on the Toquerville route was filed by M. C. Rerdell, who + swears that he was not in any conspiracy to defraud the United States; + that he was not in a conspiracy with Vaile and Miner and John W. Dorsey, + nor with anybody else. It was filed by the subcontractor of record, M. C. + Rerdell, and it is the same route on which Mr. Rerdell, by virtue of his + subcontract, appropriated about five thousand dollars of money belonging + to other people. + </p> + <p> + The other exception is on the Bridge Creek route, and, strange as it may + appear, that was also filed by Mr. Rerdell. + </p> + <p> + And, strange as it may appear, it has not been successfully impeached as + to the men and horses necessary under the existing and proposed schedule. + The overt act is not proved, because the oath is not proved to be false, + and because Peck and Rerdell, according to Mr. Bliss's admission and + according to Rerdell's oath, were not in the conspiracy, and the overt act + has to be done by one of the conspirators, of course. + </p> + <p> + The Court. I understood—I do not know whether I have been under a + delusion all this time or not—that the indictment charged that these + affidavits and false petitions were the means by which the conspiracy was + to be carried into execution; that they were not the overt acts. If they + had been set out as overt acts in the indictment, the Court would have + seen that they antedated the time, and if an objection had been made to + them the Court would not have received them as overt acts. The reason why + they have been admitted and regarded as in the case all along, to my mind, + was that they were acts tending to prove, so far as they tended to prove + anything, the nature of the combination between these parties anterior to + the 23d of May. + </p> + <p> + Mr. Ingersoll. Before the conspiracy. + </p> + <p> + The Court. Before the conspiracy. So that whatever character belonged to + that association anterior to that time, if it was continued on after that + time, carried out with overt acts done subsequently to that time, they + were properly received as evidence going to establish the conspiracy—not + as overt acts, but as means to show the character of the combination + amongst the parties anterior to that date. + </p> + <p> + Mr. Ingersoll. That saves me a great deal of argument. Now, I understand, + gentlemen, that the Court will instruct you that you cannot take any + petition, any letter, any oath, any paper of any kind that was filed or + written or used prior to the 23d of May, 1879, as an overt act; that all + that that evidence is for is to show you the relation sustained by the + parties before that time. + </p> + <p> + The Court. Yes; you are right. + </p> + <p> + Mr. Ingersoll. Now, that saves a great deal of trouble. + </p> + <p> + There are on the Toquerville and Adairville route, and on the Eugene City + and Bridge Creek route, petitions filed after the 23d of May, 1879, set + out in indictment as overt acts. I shall insist, if the Court will allow + me, that if there is no evidence that those petitions were dishonest, no + evidence going to show that they were not genuine, those petitions cannot + be used as overt acts for the reason that they are charged in the + indictment as false and fraudulent petitions. So, gentlemen, I take that + ground, that as to the petitions filed after the 23d day of May on the + only two routes left for these gentlemen to find overt acts upon (Eugene + City to Bridge Creek, and Toquerville to Adairville), if those petitions + have not been proved to be false they cannot be regarded as overt acts for + the reason that they were described in the indictment itself as false and + fraudulent petitions. It is perfectly clear, is it not? + </p> + <p> + What else have we left? A couple of affidavits. Who made them? Mr. Peck. + When? Before the 1st day of April, 1879, and Mr. Bliss admits that from + that time on he never had anything to do with this business. Mr. Rerdell + filed them, and Mr. Rerdell swears that he was never in any conspiracy; + and Mr. Bliss admits that Peck, after the 1st of April, had nothing to do + with this business. That substantially knocks the bottom out of that dish. + </p> + <p> + Now, they attacked the affidavit on the Bridge Creek route, but they did + not succeed in showing that it was not an honest affidavit. + </p> + <p> + Now, gentlemen, after what the Court has decided I want to call your + attention to another thing. + </p> + <p> + Do not forget what the Court has decided—that all these things are + not overt acts, but that they simply show the relations of the parties. + </p> + <p> + Now, if you go and find Vaile and Miner getting up petitions on their + routes, and you also find Dorsey getting up petitions on his routes, then + they claim that that is the result of an agreement between them. That is + not the law. Neither is there in that the scintilla of common sense. If I + find you plowing in your field and your neighbor plowing in his field, I + have no right to draw the conclusion that you have conspired to plow or to + help each other. But if I find your neighbor and you plowing in your + field, and I afterwards find you and your neighbor plowing in his field, I + have the right to conclude that you have swapped work and that you have + something in common. If I find you plowing in your field and your neighbor + walking behind you sowing grain or dropping corn, and then I find you in + the fall shucking out the corn together, and I find your neighbor taking + half of it to his barn and you taking half of it to your barn, I make up + my mind that you have had some dealings on the corn question. + </p> + <p> + Now, we find that on May 5, 1879, these parties absolutely divided, and + after that, when Vaile and Miner got up a petition on their route, Dorsey + did not help them; and when Dorsey got up one on his, Vaile and Miner did + not help him. That shows what the relations of the parties were. Does that + show that they were then in a conspiracy? Does it show that they had any + conspiracy before that time? They had separated their interest; they had + ceased to act together; one did nothing for the other. If there had been a + conspiracy before that time that conspiracy died on the 5th of May, 1879; + and if it did, then there is no possibility of any conviction in this + case, no matter what the evidence is—not the slightest. + </p> + <p> + Now, I want you to understand that ground exactly. I am not begging the + question. I am not afraid to meet every point, every paper, every scratch, + in this case. But I want you to understand it. All those things were + allowed for the purpose of showing the relations of the parties, the + relations that the defendants sustained to each other; and the evidence is + that they sustained no relations to each other after 1879; that each went + his own road to attend to his own business in his own way. That is the + evidence. + </p> + <p> + Now comes the next point. What are the overt acts in the indictment? + Really they are the orders made by Mr. Brady, unless you take this poor + little affidavit made by Peck and filed by Rerdell. + </p> + <p> + Then comes the next point. You cannot treat anything as an overt act + unless it was made by one of the conspirators. Is there any evidence in + this case that Mr. Brady ever conspired with anybody? Not the slightest. + And unless he conspired with us, any other made by him cannot be regarded + as an overt act in this case. I think everybody will admit that. Unless + Brady conspired with us, and we with him, any order of his cannot be + regarded as an overt act. + </p> + <p> + I ask you, gentlemen, what evidence is there in this case that Mr. Brady + ever conspired with any of these defendants? I will answer that question + before I get through, and I think I will answer it to your entire + satisfaction. + </p> + <p> + I will go a step further in this case, and I may go a little further than + the Court will go. I say that when they state in that indictment that an + order is made for the benefit of Miner, Vaile, and Dorsey, and the + evidence is that it was made for the benefit only of Vaile and Miner, that + is a fatal variance, and it cannot be treated as an overt act for any + conspiracy. And when the indictment charges that an order was made for the + benefit of S. W. Dorsey, and Vaile, and Miner, and it turns out that it + was made for the sole benefit of S. W. Dorsey, I claim that that is a + fatal variance. + </p> + <p> + Gentlemen, I was going through all these overt acts and all these terrible + false claims. But the decision of the Court has utterly and entirely + relieved me from that duty. So I will turn my attention to another person. + </p> + <p> + The next defendant to whom I may call your attention is Mr. John W. + Dorsey. It is claimed that John W. Dorsey was one of the original + conspirators; that he helped to hatch and plot this terrible design. Let + us see what interest John W. Dorsey had. You have heard me read the + agreement he made, have you not, with Miner? Now, let me read to you the + agreement that he made on the 16th day of August, 1878. Now, we will find + out what interest John W. Dorsey had in all this conspiracy. On the 16th + of August, 1878, there was no reason for telling any lie about it. They + could not get on the routes in August, 1878; they had not the money, and + so they took in Vaile. At that time, gentlemen, there was no reason for + their writing anything in this paper that was not true, not the slightest. + And I take it for granted that most people tell the truth when there is no + possible object in telling anything else, if their memory is good: + </p> + <p> + 4th. The profits accruing from the business shall be divided as follows: + From routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M. + Vaile, one-third. + </p> + <p> + To John R. Miner, one-sixth; to John M. Peck, one-sixth; and to John W. + Dorsey, one-third. + </p> + <p> + From routes in Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, + Idaho, Washington, Oregon, Nevada, and California, to H. M. Vaile, + one-third; to John R. Miner, one-third; to John M. Peck, one-third. [Page + 4014.] + </p> + <p> + And to John W. Dorsey nothing. The entire interest of John W. Dorsey in + the whole business was one-third of the profits on routes in the Indian + Territory, Kansas, Nebraska, and Dakota. This was signed by H. M. Vaile, + John R. Miner, John M. Peck, and John W. Dorsey, and I believe these are + all admitted to be the genuine signatures of the parties. + </p> + <p> + The only routes mentioned in this indictment in which John W. Dorsey on + the 16th day of August, 1878, had any interest whatever were: Kearney to + Kent in Nebraska, Vermillion to Sioux Falls in Dakota, and Bismarck to + Tongue River in Dakota. Remember that, gentlemen. That is very important. + The evidence is that he sold out his interest in the following December, + made a bargain for ten thousand dollars, and the evidence is that he + received the money, and the evidence is that after that he never had any + interest in the profits, no matter how much was made. And yet these + gentlemen say that he was part and parcel of a conspiracy formed on the + 23d of May, 1879. Long before that time he had sold out every dollar's + interest he had, and had no more interest in it than though he had never + existed. He got his ten thousand dollars; that was all. Now let us see + what he did when the routes were divided. + </p> + <p> + Mr. Merrick. When did you say he sold out and got the money? + </p> + <p> + Mr. Ingersoll. The bargain was made in December, and his brother wrote to + him at first that Vaile would not give it to him, and then that he would. + Don't you recollect the two letters you asked Dorsey so much about? + </p> + <p> + It had been agreed to once, and then after S. W. Dorsey came out of the + Senate John W. Dorsey was paid ten thousand dollars, and Miner swears that + the division was absolute, perfect, and complete; and that nothing was + signed by one for the other after the 5th of May, 1879. + </p> + <p> + Mr. Bliss. Miner does not say when. He swore that he, signed no papers + after the 5th of May, 1879. + </p> + <p> + Mr. Ingersoll. He says that he signed no papers for the other side, and + that the other side signed none for Vaile and Miner. + </p> + <p> + Mr. Davidge. You are talking of two different things. + </p> + <p> + Mr. Ingersoll. I will show you after awhile that you are wrong, as I + always do. I never made a mistake on you yet. + </p> + <p> + The only routes mentioned in this indictment in which John W. Dorsey on + the 16th day of August, 1878, had any interest whatever were from Kearney + to Kent, in Nebraska; Vermillion to Sioux Falls, in Dakota; and Bismarck + to Tongue River, in Dakota. And I will say right here that if at any time + I do injustice to Mr. Bliss or anybody else, if it is pointed out I will + take it back cheerfully, and if it is not pointed out, and they show that + I did it, I will get up and admit it and say that I was mistaken. + </p> + <p> + Mr. Bliss. You will have a great deal to admit. + </p> + <p> + Mr. Ingersoll. Very well, I will do it, for I have the courage of + conviction, and I have the courage to say that I am mistaken when I am. + </p> + <p> + Now, the evidence is that John W. Dorsey sold out his interest for ten + thousand dollars, and that he received the money, and that after that he + had no interest in the profits when the three routes were divided, and the + only three were the ones I have mentioned. + </p> + <p> + On the first route, from Vermillion to Sioux Falls, John W. Dorsey was the + subcontractor and he gave Mr. Vaile the entire pay for all increases and + all expeditions. John W. Dorsey had the right to subcontract, and Mr. + Vaile had the right to make the contract. The statement on page 726 shows + simply that John W. Dorsey never drew a dollar upon that route. That is + one route fairly and squarely disposed of. Understand, I cast no + imputation upon Mr. Vaile for having the contract and for getting the + money. When I come to it I will show you that he had a right to. + </p> + <p> + The next route is from Kearney to Kent. John W. Dorsey had an interest in + that route, according to the agreement of August 16th, of one-third. You + will see from page 726 of the record that the first quarter John M. Peck + got the money, two hundred and forty-five dollars and six cents. John W. + Dorsey was entitled to one-third of that, if it was profit. The next + quarter was paid on the 22d of January, 1879—that is, for the fourth + quarter of 1878, and that was paid to H. M. Vaile. And never another + solitary cent was paid to anybody in such a way that John W. Dorsey was + entitled to any part or portion of it. That gets that route out of + trouble, so far as John W. Dorsey was concerned, no matter what the + increase may have been after that, no matter what the expedition was, no + matter whether French carried it for nothing, no matter what happened to + Cedarville or that city of Fitzalon; it was no interest to John W. Dorsey, + no matter whether the road ran direct from Fitzalon to Cedarville or not. + He was entitled to one-third of the profits on one payment to Peck, and + that payment was two hundred and forty-five dollars and six cents; whether + he ever got it I do not know. + </p> + <p> + Let us see how he came out on the next route, from Bismarck to Tongue + River. He went out there to build stations. I will come to that in a + little while. Now, I call attention to page 727. The third quarter from + July 1 to September 30, 1878, was paid November 8, 1878, to H. M. Vaile. + Never a solitary dollar on the route was paid to John W. Dorsey, according + to this record, if you can rely on these books. + </p> + <p> + That is the state of the case on these three routes. And yet it is + solemnly averred in the indictment that all the orders on these routes + were made for the joint benefit of John W. Dorsey and others. Now, before + another payment was made the division of the routes had been completed, + and John W. Dorsey sold out his interest in these routes and all others + for ten thousand dollars. So that he never received a dollar upon the + Bismarck route and the Vermillion route except as it is included in the + gross sum of ten thousand dollars which he received for his entire + interest, and that entire interest is described perfectly in the contract + of August 16, 1878. Now, it John W. Dorsey had no interest in any route + except as stated in the contract, of course nothing was done upon any + other route for his benefit; nothing was done in which he, by any + possibility, had the slightest pecuniary interest. How were the petitions + filed for his benefit? How were the affidavits made for his benefit? How + were the orders made for his benefit? He had no interest; he had parted + with it, and had nothing more to do with it than the attorneys for the + prosecution in this case. + </p> + <p> + It is claimed by Mr. Bliss that when John W. Dorsey sold out he agreed to + make the necessary papers for the routes, and he tried to impress upon + your minds the idea that the bargain was that John W. Dorsey knew that for + ten thousand dollars he had to commit perjury and forgery and several + other cheerful crimes, from time to time, as he might be called upon by + the gentlemen who had been his co-conspirators. + </p> + <p> + J. W. Dorsey frankly and cheerfully swore that he agreed to make the + necessary papers. He did not swear that he agreed to commit any frauds, + perjuries, or forgeries. Nothing of the kind. He agreed to execute, of + course, the necessary legal papers—the papers that, as contractor, + were necessary for him to make to vest title of the route in the person to + whom he had sold—just the necessary papers that would allow the man + who had paid him for the route to draw the money from the Government if he + performed the service. + </p> + <p> + Now, what were the papers? I say right here, gentlemen, that under the law + as it was then, under the law as it is now, it is impossible for a + contractor to assign his contract so as to be relieved from responsibility + to the Government; the Government will not permit it. The Government will + permit him to make a subcontract, and that is what John W. Dorsey did; + that is one of the things he agreed to do. In order to make that + subcontract absolutely certain; in order to put it beyond his power to do + anything with it, that subcontract was made for the entire pay, for the + entire increase and expedition. And what more? In order to make that + absolutely perfect, so they would not have a loop-hole anywhere, he signed + blank drafts upon the Post-Office Department for the entire pay of every + quarter during the contract term. And then, if they were fined—and + nobody knew how much they would be fined—they had the right to fill + up that order for the amount due them from the Post-Office Department + after deducting fines. + </p> + <p> + He sold out in March, 1879. The regulation or order making it necessary + for the contractor to make an oath as to additional stock and men was not + in existence, was not a binding law or regulation, until the 1st day of + July, 1879. When he sold out in March, unless he were gifted with + prophecy, he would not know what the regulation of the 1st of July + following would be. + </p> + <p> + Now, there were two affidavits made by John W. Dorsey on route 38134, + Pueblo to Rosita. Around those affidavits Mr. Bliss hovered and Mr. Ker + remained. John W. Dorsey testifies that he received one of those + affidavits in the morning and swore to it, and that it was filled up when + he swore to it. Mr. Bliss and Mr. Ker, I believe, both say that it was not + filled up. + </p> + <p> + Mr. Bliss. Where does Mr. Dorsey say that it was filled up when he swore + to it? + </p> + <p> + Mr. Ingersoll. I have not the page here, but I will give it to you. He + swore that a dozen times, that he never swore to any blank affidavits. + </p> + <p> + Mr. Bliss. I undertake to say that it cannot be found in his evidence. + </p> + <p> + The Court. He testified that he received them both by mail, and that the + second one was contained in a letter which said that there was an error in + the first, and the second was sent for the purpose of correcting that + error. + </p> + <p> + Mr. Ingersoll. There could not have been any error in the first unless it + had been filled up. You cannot make an error in blank. On page 4838, Mr. + Rerdell swore that he left this city on the 17th or 18th of April for the + West, and then he adds, "I think on the 18th." Then the Government brought + the hotel-keepers from Sydney, Nebraska, and from Denver, and from some + other place, nearly as many witnesses as you had about the paper pulp. And + they proved that Rerdell was beyond the Missouri River on the 21 st of + April. + </p> + <p> + Now see what Mr. Bliss says on page 4914: + </p> + <p> + And yet, gentlemen, it is beyond dispute that as early as the 15th of + April, 1879, Mr. Rerdell had left this city and gone West. + </p> + <p> + Why did he have it stated on the 15th, gentlemen? I will tell you. Oh, I + tell you the human mind is a queer thing when it gets to working. John W. + Dorsey was in Middlebury, Vermont; if a letter had been sent from here on + the 15th, it certainly would have got up there before the 21st. So they + wanted Rerdell out of this town as early as possible, so that it would + make it highly improbable that it would take a letter from that time to + the 21st to get to Middlebury. Now, the evidence is that he left here, he + thinks, on the 18th. When did the letter get up there? I think the 20th or + 21st. + </p> + <p> + Mr. Davidge. There was a Sunday intervened. + </p> + <p> + Mr. Ingersoll. They say, gentlemen, that there is no evidence that the + blanks were filled, and yet John W. Dorsey swears that he received a + letter stating that the first affidavit was erroneous, and the second one + was sent to him to correct it. How would you correct one affidavit in + blank by another affidavit in blank? How did he ever get those affidavits? + I will tell you. We will have that little matter settled. Here is what + Rerdell swears on page 2232: + </p> + <p> + Q. When did you return from that visit?—A. I returned about the 5th + of May. + </p> + <p> + Q. State whether or not after you returned, you found blank affidavits + among the papers connected with the business?—A. Yes, sir. + </p> + <p> + Q. How many did you find?—A. Well, there were several blank + affidavits of John W. Dorsey's and several of John M. Peck's. I don't know + how many there were. + </p> + <p> + Q. Were they blank affidavits?—A. Well, sir, they were blank + affidavits similar to that one I sent, leaving out the number of men and + animals in each case. + </p> + <p> + Q. Did they purport to have been sworn to?—A. Yes, sir. + </p> + <p> + Q. Were those affidavits among the papers when you left here to go West?—A. + Some of them were. I think those of Peck's were here, probably four or + five, or half a dozen, and I had made out, before I left here, a lot of + them and sent them to John W. Dorsey. In the mean time, when I returned + here, John W. Dorsey was here. + </p> + <p> + Mr. Rerdell swears that just before he went away he sent the affidavits to + John W. Dorsey, and the only question between them is, were they in blank, + or were they filled. John W. Dorsey swears that they were filled, because + when he received the second he received a letter stating that there was an + error in the first, and that error had been corrected in the second. The + last nail in the coffin of that doctrine. + </p> + <p> + Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of the + jury, before finishing what I am about to say in regard to the two + affidavits of John W. Dorsey I will now call your attention to a statement + made by Mr. Bliss, on page 304, in his opening speech to you: + </p> + <p> + Mr. Dorsey, while Senator, was, I think, chairman of the Committee on + Post-Offices, and chairman of the subcommittee in charge of all the + appropriations. That brought him, of course, directly in connection with + the Post-Office Department and its officials, and gave him, as we all + understand, necessarily, from the nature of the case, the possession of + some exceptional power over officials of the department—greater + power than a Senator would have when occupying som'-other position. + </p> + <p> + That statement was made to you, gentlemen, for the purpose of making you + believe that while Senator Dorsey was a member of the Senate he was also + chairman of the PostOffice Committee, and of the subcommittee having power + over the appropriations, and that he not only took advantage of being a + Senator, but by virtue of being chairman of that committee had exceptional + power over the officials of the Post-Office Department. He was trying to + convince you that, finding himself chairman of that committee, finding + himself with this power, he thereupon entered into a conspiracy. + </p> + <p> + What evidence did the Government offer upon that point? Nothing. Did Mr. + Bliss at that time suppose that Mr. Dorsey was chairman of that committee? + The records were all here. The Government had plenty of agents to + ascertain what the fact was; and yet, without knowing the facts, Mr. Bliss + stated to this jury that he believed that; that Dorsey was chairman of the + Post-Office Committee and of the sub-committee; wanting to poison your + minds with the idea that Mr. Dorsey had taken advantage of having held + that position. Now, the only evidence upon that point I find on page 3992, + and that is the evidence of Mr. Dorsey himself. He is asked, Were you a + member of the Post-Office Committee in 1877? No. In 1878? No. Or chairman + of the subcommittee? Here is what he says, that he had not been on that + Post-Office Committee "for nearly two years" prior to July 1, 1878. And + yet an attorney representing the United States, representing the greatness + and honor, the grandeur and the glory of fifty millions of people, for the + purpose of poisoning your minds, there made that statement without knowing + anything about it or without caring anything about it. I thought I would + clear that point up the first thing this morning. + </p> + <p> + Now we will go on with the affidavits. You know these terrible affidavits + that were sworn to in Vermont. It was stated that the first affidavit was + wrong and that the second affidavit was substituted for the first. Now, if + the second affidavit took more money out of the Treasury than the first + affidavit you might say that there was a sinister motive, a dishonest + motive in withdrawing the first and substituting the second, unless it + appeared clearly that the second was true. But suppose it turns out that + the substitution did not take an extra dollar from the United States? Then + what motive do you say they had in doing it? Was it a motive to steal + something, or was it a motive simply to be correct? What other motive + could there have been? + </p> + <p> + Now, let us see. The first affidavit said three men and twelve animals; + for the expedition, seven men and thirty-eight animals; and the proportion + was exactly three hundred per cent—that is, three times as much. + Now, then, they put in another affidavit. The second affidavit says two + men and six animals. That makes eight. And on the expedited schedule six + men and eighteen animals, which makes twenty-four; and three times eight + are twenty-four; exactly the same. Three times fifteen are forty-five, and + three times eight are twenty-four, and the amount of money drawn under the + second affidavit is precisely the same that would have been drawn under + the first affidavit. + </p> + <p> + Now, do you pretend to tell me that they took the trouble to withdraw the + first affidavit and put in the second affidavit because they were trying + to defraud somebody? On the contrary, they took that trouble because there + was a mistake made in the first affidavit and they wanted to correct it, + not for the purpose of getting more money, but for the purpose of getting + a correct affidavit. + </p> + <p> + Mr. Crane (foreman of the jury). Was not that first affidavit interlined? + </p> + <p> + Mr. Ingersoll. No, sir. + </p> + <p> + If there had been any fraud about it, would they not have withdrawn the + paper? They had a right to withdraw it. Yet they left the paper there; + they left it there as a witness. Why? Because it did not prove anything + against them; it only proved they desired to be correct. + </p> + <p> + My recollection is there were erasures in both affidavits. Let us find + them. Before I get through I will endeavor to show you that every erasure + and interlineation is an evidence of honesty instead of dishonesty. What + are the numbers of these affidavits? [Examining the papers.] They are + number 4 C and 5 C. Route 38134. I will read them. + </p> + <p> + Hon. Thomas J. Brady, + </p> + <p> + Second Assistant Postmaster-General: + </p> + <p> + Sir: The number of men and animals necessary to carry the mail on route + 38134 on the present schedule is three men and twelve animals. The number + necessary on a schedule of ten hours, seven times a week, is seven men and + thirty-eight animals. + </p> + <p> + Respectfully, + </p> + <p> + JOHN W. DORSEY, + </p> + <p> + Subcontractor. + </p> + <p> + There does not appear to be any erasure or interlineation or anything else + in that affidavit. Now, here is the other one: + </p> + <p> + Hon. Thomas J. Brady, + </p> + <p> + Second Assistant Postmaster-General: + </p> + <p> + Sir: The number of men and animals necessary to carry the mails on route + 38134 on the present schedule, seven times a week, is two men and six + animals. The number necessary on the schedule of ten hours, seven times a + week, is six men and eighteen animals. + </p> + <p> + Respectfully, + </p> + <p> + JOHN W. DORSEY, + </p> + <p> + Subcontractor. + </p> + <p> + That is the second affidavit. The first was withdrawn. That is, they had + permission to withdraw it, and in the second affidavit is the + interlineation "seven times a week," isn't it? That is simply an + interlineation, because there had been an omission to state the service + that was then being performed or that was to be performed. + </p> + <p> + Mr. Crane (foreman of the jury). That has puzzled me a good deal, to + understand the motive of those two affidavits. + </p> + <p> + Mr. Ingersoll. There certainly could not be any motive for putting in + seven or three times a week, for this is simply to make it agree with the + truth. If I give a note to a man for five hundred dollars and should + happen to write in the word "hundred" and not the word "five," and then + should take it back and write in the word "five" above it, that is not a + sign of fraud. + </p> + <p> + Will somebody give me number 18 K; I just happened to see something there + which may be worth something, or may not. + </p> + <p> + Now, gentlemen, here is a petition marked 2 A, that Rerdell swears that + the words "schedule thirteen hours" were written in by Miner. In one of + these papers I happened to see the word "schedule." Just notice the word + "schedule" on this paper [exhibiting to the jury,] and then have the + kindness to look at the word "schedule" in this other one [exhibiting to + the jury,] and see whether you think one man wrote them both. Rerdell says + he wrote the word "schedule" in that one [indicating,] and that Miner + wrote the word "schedule" in this other one [indicating.] + </p> + <p> + Now, gentlemen, there is another charge against John W. Dorsey, on route + 38145, and upon that route he made two affidavits. In the first affidavit + he swore it would require three men and seven animals on the schedule as + it then was, and that makes ten; that with the proposed schedule it would + take eleven men and twenty-six animals, making thirty-seven. Now, if it + took ten on the schedule as it then was, and thirty-seven on the proposed + schedule, then the Government, which accepted that affidavit, would have + to pay him three times and seven-tenths as much, which is the relation + between ten and thirty-seven. The proportion then is three and + seven-tenths. On the first affidavit his pay would have been twelve + thousand nine hundred and thirty-five dollars and fifty-two cents a year. + </p> + <p> + Now I come to the second affidavit, which said that for the schedule as it + then stood ijt would take twenty men and animals. On the proposed schedule + he said it would take twelve men and forty-two animals, making fifty-four. + Now, the ratio of the second affidavit was as twenty is to fifty-four. The + ratio in the first affidavit was as ten is to thirty-seven, so that under + the second affidavit, which they say was willful and corrupt perjury, he + got eight thousand four hundred and fifty-seven dollars a year instead of + twelve thousand nine hundred and thirty-five dollars and fifty-two cents. + There were three years for the contract to run, and a little over. Under + the first affidavit he would have received thirteen thousand nine hundred + and ninety-two dollars and seventy-five cents during the contract term + more than he took under the second. An affidavit was put in there that he + thought was erroneous. He withdrew that affidavit and put in a second one. + If he had allowed the first to remain and they had calculated the amount + on the first he would have received thirteen thousand nine hundred and + ninety-two dollars and seventy-five cents more than he did under the + second affidavit. But he withdrew the first and put in the second, and + took from the Treasury thirteen thousand nine hundred and ninety-two + dollars and seventy-five cents less, and they charge that as a fraud, as + an evidence of conspiracy and perjury. Now, that is all there is against + John W. Dorsey. + </p> + <p> + On page 4090 John W. Dorsey swears that General Miles wanted to know how + far apart he (Dorsey) was building the stations on the Tongue River and + Bismarck route. Let us turn to page 4090. You know they were trying to + prove that when John W. Dorsey went out there and built the ranches that + he was going to build them about fifteen or seventeen miles apart, because + it was claimed that they knew there was to be increase and expedition. You + remember that. Now, when John W. Dorsey came upon the stand he swore that + when they went out there they started to build those stations, I believe, + somewhere in the neighborhood of thirty or thirty-five miles apart, as + they could get water. Then he swore that when he went himself over, I + think, to Miles City, where General Miles was, that General Miles asked + him how far he was building his stations apart. John W. Dorsey told him. + Then General Miles gave him his advice. Now, I want to read this to you. I + asked him this question: + </p> + <p> + Q. When you got to Fort Keogh did you go to see General Miles?—A. + Yes, sir. + </p> + <p> + Q. Did you have any conversation with him in regard to this route, with + regard to the needs of the country for mail service; and, if so, what was + it? A. I told him all about the business generally. He seemed to + understand it pretty well. He wanted to know how far apart we were + building stations. I told him. He wanted to know how often the mails would + run, and I told him it would be weekly service, I thought. "We have been + pent up here two or three years," he says, "with mails from eighteen to + twenty days apart, reaching us by the way of Ogden and Bozeman." And he + says, "We can get it in seven or eight days over this line." And now I + would like to say that he did not say that he knew there would be an + increase, but he said he should like to have it increased to three trips a + week, or daily, and fifty hours' time. I told him there was no use to try + to get it at all; that it could not be done at present; that nobody knew + the distance through that country; that we expected to have it measured; + that it was claimed by everybody that it was a good deal more than two + hundred and fifty and probably over three hundred miles, and nobody would + undertake to carry it. Said I, "If you extend it the contractor can throw + up his contract and you will be without any mail." He said, "We are going + to ask for what we want, but we will take what they will give us." + </p> + <p> + "Your stations are too far apart; you can't run any fast time with your + stations so far apart; you want more stations, and nearer together." The + result was that when I went back I met Mr. Pennell, who had built the + stations thirty to thirty-five miles apart, and going back we put in + intermediate stations. We only carried out lumber enough from Bismarck to + build eight or nine stations, for the windows, &c.; we did not think + of building any more at that time. Mr. Pennell says the order was to build + the stations seventeen to twenty miles apart in going out. That is no such + thing. There was not a station built going out closer than thirty to + thirty-five miles. + </p> + <p> + Q. What, if anything, did General Miles say that convinced you that you + ought to build stations nearer together? + </p> + <p> + Then he testifies that on account of what he said he did this, and that he + had no instructions from Washington. + </p> + <p> + That is the testimony. Mr. Bliss endeavored to frighten the witness by + stating in his presence that he (Bliss) did not believe General Miles + would swear to any such thing, judging, of course, from the conversation + that he (Mr. Bliss) had had with General Miles. Notwithstanding that + threat, John W. Dorsey, confident that he was telling the truth, knowing + that he was telling the truth, told his story, and the Government never + brought General Miles to contradict him. + </p> + <p> + Now, the next thing about John W. Dorsey is the conversation that he had + with some men in July or August out on the road, that I have spoken to you + about before. Nothing could be more perfectly improbable. It may be that + he did tell some man that he was a brother of Senator Dorsey, and, + perhaps, he did say that if he got into a tight place or hard up for money + he could borrow money from his brother. I do not know what he may have + said on that subject. But, gentlemen, there is not a man on this jury, not + one of you, who has the slightest suspicion that John W. Dorsey at that + time told those men substantially that his brother was in a conspiracy + with the Second Assistant Postmaster-General, and that he, John W. Dorsey, + was also a conspirator. There is not one of you who believes that, not + one, and you never will. Why not? Because it is so utterly and infinitely + unreasonable and absurd. Now, that is the evidence against John W. Dorsey. + My attention is called to one other point in his case, and so I will call + your attention to it. + </p> + <p> + Mr. Bliss, gentlemen, on page 243, in speaking of the two affidavits on + the Pueblo and Rosita route, says: + </p> + <p> + We find this extraordinary condition of things. On route 38134, from + Pueblo to Rosita, which, I think, is the same route upon which the + obliging Mr. John W. Dorsey, as I have just stated to you, was allowed to + make the affidavit instead of Mr. Miner. + </p> + <p> + Now, he goes on to describe these two affidavits, and then he says: + </p> + <p> + Those two affidavits were before Mr. Brady, made by John W. Dorsey on the + same day, and yet Mr. Brady chose to pick out one or the other of them and + say, "I believe that as the absolutely conclusive statement of the number + of men and animals that are now in use upon that route, and upon that + affidavit I will make my order taking from the Treasury thousands of + dollars of money." You will see that the first affidavit made the number + two men and six animals, making eight as the number of stock and carriers + then in use; but the other one called for three men and twelve animals, + making fifteen as the number then in use, and, therefore, according as he + accepted one or the other, by the rule of three, to which I called your + attention just now, there would be twice the amount of money allowed from + the Treasury under the one affidavit that there would be under the other. + </p> + <p> + Just think of that, gentlemen. The number of men and animals then in use + has nothing to do with the number of men and animals stated in the other + affidavit; those amounts bear no relation to each other. The number of men + and animals in use in the first affidavit, and the number that would be + necessary on the next schedule, do bear a relation to each other. The + number of men and animals on the second affidavit on the then schedule + bears relation to the proposed number on the proposed schedule, and not to + the number on the other affidavit. And yet Mr. Bliss stood right before + you, with those two affidavits that would take the same amount of money + out of the Treasury, to a fraction, precisely the same—not the + difference of the billionth part of a farthing—and stated to you + that one would take twice as much money from the Treasury as the other. + You will think that he is as defective in mathematics as in law. I say to + you now that the amount that would be taken out of the Treasury on those + two affidavits is precisely the same. + </p> + <p> + I did not think that anybody could excel Mr. Ker in mathematics, but Mr. + Bliss bears off the palm. He bean, off the palm even in misstatement, and + bears off the palm in mistake. The two affidavits would call for the same + amount of money precisely, and yet Mr. Bliss stands up before you and says + there is twice as much on one as the other. Now, what is that for? That is + to prejudice you: that is all. + </p> + <p> + Gentlemen, you saw John W. Dorsey; you heard his testimony; you know + whether he is a man to be believed. It is for you to judge whether he is + honest or dishonest, and I leave his testimony with you. It was direct; it + was to the point; and his manner on the stand was absolutely and perfectly + honest. + </p> + <p> + Now, there is another point made. You know you have to think of these + things as you can, and step on them and then go on. Another point is made, + and it was urged by Mr. Bliss day after day. And what is that? That Mr. + Brady took the affidavits of all these men as absolutely true; that he + allowed them to fix the limit of the money they would take out of the + Treasury; that he allowed interested men to make the affidavits, and then + he took the affidavits as absolutely true; that he allowed the contractors + themselves to fix the sum they would seize. Now let us see what that is. + Mr. Brady swears that he regarded the affidavit as the honest opinion of + the man who made it, but not as necessarily true; that he had a standard + of his own. Your views upon all such questions, gentlemen, will depend + upon which side of human nature you stand—whether you are a believer + in total depravity, or whether you think there is a little virtue left in + human nature. If you stand on the side of suspicion, if you allow the + snake of prejudice to forever whisper in your ear, why, your idea will be + that every man is a rascal; and whenever he does a decent action you will + say, "This action is a little velvet in the paw for the purpose of + covering the claw of some devilment that he has in store." If you judge + from that side you can torture any act, no matter what it is, into + evidence of guilt. But you may judge from the other side and say that men, + as a rule, are decent; that they would rather do a kind act than a mean + thing; that they would rather tell the truth than tell a lie. I tell you + to-day that there is an immensity of good in human nature. There are + hundreds and thousands and millions of men to-day who are honest, who + would not for anything stain the whiteness of their souls with a lie. They + are laboring-men, it may be, working by the day for a dollar or a dollar + and a half, and only taking enough of it to keep life and strength in + their bodies and giving the rest to wife and child. And there are battles + as grand as were ever won by a celebrated general, and just as bravely + fought, with poverty day after day; and the man who fights the battles + gains the victory and goes down to the grave with his manhood untarnished. + You know it, and so do I. And yet you are all the time told to suspect + everything, no matter what it is. There is a flower there; ah, but there + is a snake under it! Always making that remark; accounting for every + decent looking action by a base motive. That is not my view of human + nature. + </p> + <p> + Now, Mr. Brady says that he had a standard of his own; that he let these + men make their statements, and he took their statements as being what they + believed to be the truth. And why not? Suppose I say to a man, "What will + you take for that horse?" And the man says, "That horse is worth a hundred + dollars." Suppose he goes and swears to it; that would not make any + difference in the price I would give for the horse, not a bit. You see I + am not buying an affidavit, I am buying a horse. So, when Brady says to + the contractor, "What will you carry the mail at six miles an hour for?" + and the man says "Twenty-five thousand dollars," and he swears to it, + Brady is not buying the affidavit; it is the service. If he does not + believe the service is worth that much, he says, "I can't do it," and that + is all. But they say "No; that is not what Brady did." + </p> + <p> + Now, as a matter of fact, there are nineteen routes in this indictment, + and I believe eighteen of them were expedited. I have made a calculation + for the purpose of showing that the amount to be paid was a matter of + bargain; that it was a matter talked over between the parties; that it was + the result of agreement, and that Mr. Brady did not take the affidavit as + the actual amount, and that they were not bound to take the amount that he + actually said. Now, I have deducted what was allowed from what could have + been allowed on the affidavits, and I find that the price did not depend + upon the affidavits. I find that there was a difference between the amount + called for by the affidavits and the amount granted of over three hundred + thousand dollars. And yet these gentlemen say to you that Brady allowed + the men who made the affidavits absolutely to fix the amount. Gentlemen, + that will not do. It was a matter of agreement, a matter of bargain, the + same as any other agreement or any other bargain. + </p> + <p> + Now, gentlemen, suppose they had had a conspiracy and said, "We want to + get all the money we can out of the Treasury." They would have agreed upon + a per cent.; they would have had all those affidavits showing + substantially the same per cent., wouldn't they? Because they would have + wanted harmony in it. They would have said, "It won't do for you to make + an affidavit on that route with one thousand two hundred per cent., on + this route with five hundred, on that route with two hundred and twenty + per cent., and on the other route with three hundred and forty per cent. + That won't do; that is nonsense; we are in a conspiracy and we want all + these things to agree and harmonize." And the result would have been that + they would have had about the same per cent, in all those affidavits. And + yet those affidavits vary in per cent, all the way from two hundred and + twenty to one thousand two hundred. They say, "Result of conspiracy." I do + not look at it in that way. + </p> + <p> + It is also claimed that the persons who sold out—that is to say, + John M. Peck and John W. Dorsey—agreed to make the necessary papers + that the other parties required. That being so, why should not affidavits + have been made in blank? Now, I ask you if the other parties were willing + to swear to anything that these men would write, why were they made that + way? Why not avoid the suspicious circumstance of blanks and put the + amount in at first, knowing that the men would not hesitate to swear? Of + what use was it, gentlemen, to have an affidavit suspiciously made, to + have blanks suspiciously left, when the men were willing to swear to any + numbers they would put in? Why did not the parties who made the affidavits + write in the amounts? Does not that very fact, that blanks were left, show + that they were to take the judgment of the men who were to do the + swearing? Why would they leave blanks? Why did they not fill them up at + the time and have them sworn to? + </p> + <p> + Why were they not continuously written? That is another point, if this was + a conspiracy. Guilt is always conscious that it is guilty. Guilt is always + suspecting detection. Guilt is infinitely suspicious. Guilt would make all + the papers as nearly right as possible. Guilt would look out for erasures. + Guilt would abhor blots. Guilt would have avoided having blanks filled in + with different colored inks. Guilt would want everything fitting + everything else, nothing to excite suspicion. Innocence is negligent. The + man with honest intentions is the one that does not care. But the guilty + man does not travel in the snow. He wants no tracks left. + </p> + <p> + Now, another thing: The fact that no effort was made to have the + affidavits in the same handwriting, no effort to have the blanks + apparently filled at the same time, that they were interlined, that there + were erasures—all those things tend to show that the parties were + honest in what they did. It was just as easy to have one without an + erasure as with it; ii was just as easy to have one continuously written + as to have the blanks filled up; just as easy to have one without any + interlineations as with it. And yet these parties, knowing that they were + conspirators (according to these gentlemen), Mr. Brady occupying a high + and responsible position, were so careless of their reputations, that they + did not even endeavor to make the papers passable upon their face. + </p> + <p> + Another thing: These very routes were investigated by Congress in 1878—this + very business. If the parties at that time had been conscious of guilt, + why were any suspicious papers left on file? Why were not others + substituted that had no suspicious interlineations, no suspicious + erasures, no suspicious blanks that had been filed? Why were these very + affidavits at that time reported to Congress? + </p> + <p> + The first investigation was in 1878, and on account of that investigation + the contractors for about a month and a half were left. Then there was + another investigation in 1880. + </p> + <p> + Mr. Merrick. Is there any evidence that they were all reported to + Congress? + </p> + <p> + Mr. Ingersoll. I think so; I think that is here in the record. I + understand the evidence to be that it was all reported to Congress. + </p> + <p> + Mr. Merrick. The investigation of 1880 was general, and not as to these + particular routes. + </p> + <p> + Mr. Ingersoll. In 1878 there was a special investigation growing out of + these Clendenning bonds and out of the Peck bids, and out of the + connection that they said Stephen W. Dorsey had with this business. That + is what it grew out of. Now, in the light of that investigation, let us + take it for granted for one moment that according to their statement the + parties had conspired. If anything on earth would make them afraid about + papers I think it would have been that investigation; and yet no effort + was made to conceal one, not the slightest. + </p> + <p> + Then we will go another step. General Brady was Second Assistant + Postmaster-General. All these papers were absolutely in his power. He + could have called for them at any time. Every suspicious paper could have + been destroyed or an unsuspicious one substituted for it. + </p> + <p> + Now, I want to know if it is conceivable that General Brady, under these + charges, when the new administration came in, under the threat of the + Government, would voluntarily leave those papers upon the files if they + had been dishonest and he knew it? + </p> + <p> + Take another step. So far as we have learned from the prosecution I + believe there is one paper claimed by them to have been lost. They do + claim that there was a second affidavit on the Bismarck and Tongue River + route. One is gone and one remains. Which remains? The affidavit for one + hundred and fifty men and one hundred and fifty horses. It seems to me + absolutely capable of demonstration that we did not take the one that is + gone. Had we been going to take anything we would have taken the one for + one hundred and fifty men and one hundred and fifty horses, and left the + other. But the other, about which nobody ever did complain, was taken, and + the one upon which they build their great argument of fraud upon that + route was left. And then it turned out that General Brady only allowed + forty per cent, of that affidavit. + </p> + <p> + Now, this prosecution was not begun in a moment. It was talked about for + weeks and months, I might almost say for years. Talk, talk, talk in the + papers everywhere. These men were not suddenly charged with this offence. + They understood it; they knew it. I think I have been engaged in this + suit, or suits growing out of this business, for two years. It was a + matter of slow growth. Mr. Brady retired, I believe, some time in April, + 1881, knowing at that time that these charges had been made and that the + charges were being pressed. Mr. Dorsey knew it at the same time. All these + defendants knew it. Now they say that at that time we were in conspiracy + with Mr. Brady, and they say that at that time we were in conspiracy with + Mr. Turner. We had the papers in our power. + </p> + <p> + Now, if Mr. Dorsey was wicked enough to conspire, if Mr. Brady was + villainous enough to conspire, I ask you whether they would have left + behind the evidence of their conspiracy? Why were the papers left? Because + General Brady never dreamed that one of them was dishonest. + </p> + <p> + Why did not Vaile and Miner, John W. Dorsey and Peck and Stephen W. Dorsey + ask for the papers? Because they believed every one to be honest, and they + had no use for them. They were willing that the Government should make out + of them what it could. I ask again, is it conceivable that John R. Miner, + if he knew there was on the files of the department a petition that he had + changed, that he had erased, that he had interlined or forged, is it + conceivable, if he had been wicked enough to enter into the conspiracy, + that he would have been foolish enough to leave the paper there? Would he + not have gone to Brady and said to him, "I conspired; you know it; I + changed the petition, and I want it; I erased a word in a petition, I want + it; I signed a name to a petition, I want it"? And Brady would have said, + "Yes, and you ought to have called for it long ago; you can have it." If + S. W. Dorsey had interlined an affidavit or had filled a blank, if S. W. + Dorsey had made an erasure or an interlineation, he, of course, must have + known it, and if he conspired with Brady he must have known it, and he + must have gone to General Brady and said, "I want that affidavit on such a + route; we can write another, and I want that; I want that petition;" and + it would have been given. You cannot conceive of such infinite stupidity + as to say that those people knew that those papers were dishonest, and + that they still left them on file as weapons for their enemies. You cannot + do it. + </p> + <p> + So much, gentlemen, for the affidavits, and so much for the papers. + </p> + <p> + Now, there is another question, and I have no doubt that you have asked it + yourselves. It has been asked a great many times by the prosecution. That + question is this: Why did Dorsey retain Rerdell in his employ after the + 20th of June, 1881? These gentleman tell you that it is evidence of guilt + that he did it. I will tell you why he did it. At that time the public + mind was almost infinitely excited on this question. At that time the + public was ready to believe anything. It had its mouth wide open, like a + young robin, ready for worms or shingle-nails—it made no difference—anything + that dropped in. Every newspaper was charging that these defendants were + guilty, that Stephen W. Dorsey was a conspirator, that millions had been + taken from the Treasury, and there were nearly as many mistakes in the + press then as in the speech of Mr. Bliss now. But I can excuse that, + because it was before the evidence. Now, what was Mr. Dorsey to do in the + then state of the public mind? That man, no matter how bad he was, how + base he was, had the power to have him indicted. That man could have gone + before the grand jury and had Mr. Dorsey or any other public man indicted + in the then state of excitement and feeling of the public. What was the + result of his going even to James and MacVeagh? I believe Mr. Turner says + that on account of the statement of this man Rerdell, he (Turner) was + turned out of his office. That is the effect. What became of McGrew? What + became of Lilley? What became of Lake? What became of twenty or thirty + other officials upon whose reputation this man had breathed the poison of + slander? Stephen W. Dorsey at that time knew that that man in the then + state of public excitement was powerful for mischief. That man made the + affidavit of June, 1881, at the request of James W. Bosler, as he himself + says, and swore that he went to the Government simply to find out the + Government's secrets; swore that he was still upon the side of Stephen W. + Dorsey; took back what he had said, and swore that it was a lie. The + question then was what to do with him? Stephen W. Dorsey made up his mind + not to do anything more, just to let him alone, just let him stay as he + was. That was the wise course. It was the course that any wise man, in my + judgment, would have pursued under the circumstances. What else could he + do? Let him alone. Let him alone. He did not at that time expect that he + would ever be indicted. He shrank from an indictment, as every sensitive + man does, because when you have indicted a man you have put a stain upon + him that even the verdict of not guilty does not altogether remove. He did + not want that stain. He was a man of power; he was a man of position, a + man of social and political standing, a man wielding as much influence as + any other one man in the United States. He did not wish to be indicted. He + did not wish his reputation to be soiled and stained. And so he allowed + that man to stay where he was. He may have made a mistake, but whether + mistake or not, that is what he did. + </p> + <p> + There is another question. Why did we fail to produce our books and + papers? I will tell you. The notice to produce them was given to us on the + 13th day of February. We had noticed curious motions. Two days afterwards, + Mr. Rerdell went on the stand. What did they want the books and papers + for? For Mr. Rerdell to look at. Why did he want to look at the books and + papers? To stake out his testimony. He hated to depend upon his memory. We + took the responsibility of letting the witness swear to the contents of + the books and papers, and let them call that secondary evidence. We took + that responsibility rather than to furnish the books and papers to be + looked at by that man in order that he might make no mistakes in his + testimony. What happened afterwards justified our course. If we had shown + to him the books and papers, and checks, and stubs, do you think he would + have made any mistake about that seven thousand five hundred dollar check? + Would he have said that he went with Dorsey, and that Dorsey drew the + money, and that he looked over his shoulder, and that then he and Dorsey + walked down to the Post-Office Department, if he had known that that check + was drawn to his order? If he had known before he swore, that he indorsed + that check, he would have said he went down and got the money himself; he + would not have said that Dorsey did. He would have made no mistakes there. + He would not have been driven into the corner of saying "stub" or "stubs," + "checkbook" or "check-books," "amount" or "amounts." No, sir. And that one + thing justified absolutely the wisdom of our course. + </p> + <p> + Then the Court decided that, having failed to produce our books on notice + and allowed the other side to introduce secondary evidence of their + contents, we would not be allowed then to produce them. I insisted that we + had the right then to produce them, and the Court decided that we had not. + We took the responsibility of refusing, and we took that responsibility + because we made up our minds that we would not allow that man to look over + the books, checks, and stubs for the purpose of manufacturing his + testimony. + </p> + <p> + The Court. Where did you offer to produce the books? + </p> + <p> + Mr. Merrick. Where did you offer the production of the books? That is just + what I was about to ask. + </p> + <p> + Mr. Carpenter. The Court said we could not. + </p> + <p> + Mr. Merrick. Where did you make the offer? + </p> + <p> + The Court. I want to know. + </p> + <p> + Mr. Carpenter. Mr. Ingersoll did not say he made the offer. + </p> + <p> + Mr. Merrick. I think he did. + </p> + <p> + The Court. I think he did. + </p> + <p> + Mr. Carpenter. Just read it, Mr. Stenographer. He says nothing of the + kind. + </p> + <p> + The Stenographer, (reading) + </p> + <p> + I insisted that we had the right then to produce them, and the Court + decided that we had not. + </p> + <p> + Mr. Ingersoll. That is exactly what I say. + </p> + <p> + The Court. The Court did not give any intimation at that time, but after + that point in the trial had passed, several days, several weeks, I think, + the attention of the Court was called to this question, and the Court + remarked, in the course of the opinion, that it understood the law to be + that after a party, upon whom notice had been given to produce books, had + failed to produce the books, and the other side had given secondary + evidence, then the Court would not allow the party having the books to + produce them for the purpose of contradicting the secondary evidence. + </p> + <p> + Mr. Ingersoll. That is all I claim. + </p> + <p> + The Court. But there was no such offer made, so far as I recollect. + </p> + <p> + Mr. Ingersoll. Why should we make the offer after your Honor had decided + that we could not do it? + </p> + <p> + Mr. Merrick. I will answer the question. Because whether it would have + been accepted or not was a question for the counsel for the Government + when the offer was made. And again, the learned counsel will recollect + that after the notice was given, when S. W. Dorsey was on the stand on + cross-examination, I demanded those books and those stubs, and he asked + leave to consult his counsel. The Court denied that request, and then + there was a peremptory refusal to produce any book or any paper. + </p> + <p> + The Court. Oh, yes. Mr. Ingersoll and Mr. Davidge repeatedly announced to + the Court that they were not going to produce books to assist the + prosecution. + </p> + <p> + Mr. Ingersoll. Yes; I said that twenty times, and the Court, as I + understood it, held that after we had refused to produce the books and + driven the other party to secondary evidence, we could not then produce + the books. + </p> + <p> + The Court. You made no offer to produce the books. + </p> + <p> + Mr. Ingersoll. I resisted the opinion of the Court and made the best + argument I could, but the Court said that was not the law. + </p> + <p> + The Court. The remark of the Court arose upon an argument on the part of + Mr. Ingersoll, and if I am not mistaken, upon the effect of the refusal to + produce the books and papers, Mr. Ingersoll contending that there was no + presumption against his client on account of the refusal to produce the + books and papers, and that the jury ought to be instructed that the only + effect of refusing to produce the books and papers was to leave the case + upon the secondary evidence. + </p> + <p> + Mr. Ingersoll. I am not referring to that discussion, nor to that decision + of your Honor; I am referring to the decision you made during the trial. + </p> + <p> + The Court. That was the only occasion since this trial began, in which the + Court referred to that rule of law which denied the right to introduce + primary evidence for the purpose of contradicting the secondary evidence, + after the primary evidence had been withheld in the first instance. + </p> + <p> + Mr. Ingersoll. Of course, I am not absolutely certain, I never am; but I + will endeavor to find in the record exactly what you said on that subject. + </p> + <p> + And now, in order that we may be perfectly correct, and in order to show, + too, how easy it is to be mistaken, Mr. Merrick just said upon that very + subject of the books and papers, that while Mr. Dorsey was upon the stand, + he asked leave to consult his counsel. If Mr. Merrick will read the + testimony he will find that Mr. Dorsey made that remark when he was asked + about the affidavit of June 20, 1881. + </p> + <p> + Mr. Merrick. You are right. + </p> + <p> + Mr. Ingersoll. That just shows how easy it is to make a mistake when it + comes to a matter of recollection. + </p> + <p> + Mr. Merrick. I think it was upon a question of the insertion of the change + in the character of the affidavit—its being addressed to the + President; and when I asked him if he had not made that change he asked + leave to consult his counsel. For the moment I thought it was upon the + books. But the substance still remains, that, on the question of the + books, I asked him on his cross-examination—and the counsel will + state his recollection to be the same—about the stubs and the books, + and called upon him to produce them, and the counsel replied, "We will + not." + </p> + <p> + Mr. Ingersoll. I presume I did. I made that reply a good many times. + </p> + <p> + Mr. Merrick. Will the counsel be frank enough to state when that decision + was made? + </p> + <p> + Mr. Ingersoll. Which decision? + </p> + <p> + Mr. Merrick. When he was on the stand on cross-examination. + </p> + <p> + Mr. Ingersoll. And I said we would not produce them? + </p> + <p> + Mr. Merrick. After the testimony in chief and Rerdell was gone. + </p> + <p> + Mr. Ingersoll. Then I said we would not produce them. And now I will say + that the decision of the Court was made before that time that we could not + produce them, and if I do not show it then I will publicly take it back. + </p> + <p> + The Court. I do not think you can show it. + </p> + <p> + Mr. Ingersoll. If I do not, then I will beg your Honor's pardon, and if I + do—if I do—Now, I think what happened afterwards in this case + with that very witness justifies the course that we pursued. He also + stated at the time that we had, I believe, some twenty thousand pages of + letters on all possible subjects to a great number of people. We knew that + there was a spirit abroad—and some of it in a part of the + prosecution—to find something against somebody else somewhere. We + made up our minds that our private books and correspondence never should + be ransacked by this Department of Justice. We took the consequences, and + we are willing to take them. We say that the inference from our refusal is + an inference of fact, and must be decided by the jury, and is not an + inference of law. + </p> + <p> + We have been asked a good many times why we did not put James W. Bosler on + the stand. The prosecution subpoenaed Mr. Bosler. They appeared to have an + affection for him. They subpoenaed him, and he came here. Afterwards they + issued an attachment for him. They had him, arrested at midnight and + brought here. He gave some testimony, and you will find it on page 2611. + </p> + <p> + Mr. Merrick. I do not know that there was an attachment. + </p> + <p> + Mr. Ingersoll. You know you have a right to prove things by circumstances. + Now, it is said that he put the marshal out of the house; I think that is + evidence tending to show that an attachment was issued. + </p> + <p> + Mr. Ker. And kept him out with a club. + </p> + <p> + The Court. I understood also that Mr. Dorsey kicked somebody else out of + his house about the same time. + </p> + <p> + Mr. Ingersoll. Oh, yes; it has been a very lively term of court. + </p> + <p> + There were two very important things that they were to prove by Mr. + Bosler, and they were patting him on the back here for weeks. Friendship + sprang up between them. It was a very young plant at first, but the Bosler + ivy grew upon the oak of the prosecution. I saw him sitting here, + everything delightful. The prosecution, I hoped, began to flatter itself + that Mr. Bosler was on their side; I hoped that was so. Finally they put + Mr. Bosler on the stand. What did they want to prove by him? That Dorsey + wrote a letter to him on the 13th of May, 1879, telling how much money he + had given to Brady; that is one thing they wanted to prove by him. The + second thing was that Rerdell had written a letter to Bosler, I believe, + on the 20th of May or 22d of May, 1880, stating that he (Rerdell) had been + subpoenaed to go before the Congressional committee and take his books and + papers; that he got very much frightened; that he had taken the advice of + Brady and got a very valuable suggestion from Brady, which he was going to + follow. They wanted to prove that by Mr. Bosler. + </p> + <p> + Rerdell had already sworn that Dorsey sent a letter to Bosler on the 13th + of May, 1879. Rerdell had sworn to the contents of that letter; that the + contents were that he had paid Brady so much money, &c., which you + remember, and then that he, in 1880, had written a letter to Mr. Bosler, + and I believe he pretended to have a copy of it. Now, here comes Bosler's + testimony, on page 2611. + </p> + <p> + Q. Have you made a search among your papers to find a letter alleged to + have been written to you by Stephen W. Dorsey, and dated on or about the + 13th of May, 1879?—Yes, sir. + </p> + <p> + That is the letter that Rerdell swore about. + </p> + <p> + Q. Have you searched?—A. I have. + </p> + <p> + Q. Did you find it?-A. No, sir. + </p> + <p> + Q. Have you made search for a letter purporting to have been written by + him to you, and dated on or about the 22d of May, 1880?—A. Yes, sir. + </p> + <p> + Q. Did you find that letter?—A. I did not. + </p> + <p> + The Court: Was there ever such a letter? + </p> + <p> + Bosler replied: "There never was such a letter received by me." + </p> + <p> + There is the testimony of Mr. Bosler, and on that testimony the two + letters of May 13, 1879, and May 22, 1880, turn to dust and ashes. + </p> + <p> + Now, they say, "Why didn't you put Bosler on?" Not much necessity of Mr. + Bosler after that. And besides, gentlemen, I believe I will take you into + my confidence just a little bit. The evidence of Rerdell as to the + affidavit of June 20, 1881, and the affidavit of July 13, 1882 (an + affidavit in which he swore that there was nothing against Mr. Bosler, an + affidavit that was made apparently for the benefit of Bosler), all that + evidence, the evidence of Mr. Stephen W. Dorsey upon those questions, + advertised the prosecution that Mr. Bosler knew of many circumstances; + that he was present a portion of the time, and I did not know but finally + the prosecution would get so much confidence in Mr. Bosler that they would + call him. I was hoping they would. They did not. It did not work quite as + I expected. That is all there is about that. + </p> + <p> + Now, there is one further point to which I wish to call your attention. I + want you to remember that a partnership is not a conspiracy, although all + the facts about a partnership are consistent with the idea of a conspiracy + up to a certain point; and all the facts about a conspiracy are consistent + with a partnership up to a certain point. The fact that men act together + does not show that they have conspired; does not show that they have a + wicked design. The fact that they are engaged in the same business does + not show that they have a wicked design or that they are there by + conspiracy. In other words, I want your minds so that you will distinguish + between a fact that may be innocent, and generally is innocent, and a fact + that must be evidence of guilt. I want you to distinguish between the + facts common to all partnerships, common to all agreements, and those + facts that necessarily imply a criminal intent. If you wil do that + gentlemen, you will have but little trouble. + </p> + <p> + [At this point a volume of the report of the trial was handed up to the + Court by Mr. Ingersoll with a reference to a certain page]. + </p> + <p> + The Court. Without looking at the book I take risk of saying that the + Court never announced its opinion on that question until the case referred + to a few moments ago. + </p> + <p> + Mr. Ingersoll. I just gave my memory on the subject. It does not make any + great difference in this case, of course. + </p> + <p> + Mr. Carpenter. This is during the cross-examination of Rerdell. + </p> + <p> + The Court. Yes, the Court did state on that occasion: + </p> + <p> + That is not the point here. If they are allowed to go on and cross-examine + this way without the production of the books, they cannot contradict the + witness afterwards by producing the books. + </p> + <p> + I had forgotten that I had announced it twice. + </p> + <p> + Mr. Ingersoll. If the Court please, I did not want to bring this up, + because I knew you had, and so I thought I would slip you the book and let + you off easy. + </p> + <p> + The Court. I do not think it weakens the position at all that the same + announcement has been made twice instead of once. + </p> + <p> + Mr. Carpenter. We thought it made it stronger. + </p> + <p> + The Court. Still, the books were not produced. + </p> + <p> + Mr. Ingersoll. Now, if the Court please, I am not arguing— + </p> + <p> + The Court. [Interposing.] I will leave you to the jury. + </p> + <p> + Mr. Ingersoll. Your Honor knows that I have always shown great modesty + about trying to do anything against any decision. + </p> + <p> + The Court. I do not dispute that. + </p> + <p> + Mr. Ingersoll. Now, the next question, gentlemen, is what is meant by + corroboration? If you tell a man that he is not a great painter, he does + not get angry. He says he does not pretend to paint, or is not a great + sculptor. But if you tell him he has no logic, he loses his temper. Yet + logic is perhaps the rarest quality of the human mind. There are thousands + of painters and sculptors where there is one logician. A man swears, for + instance, that he went down to a man's house in the morning at six + o'clock, and that Mr. Thomas was standing just in front of the house, and + when he went in the dog tried to bite him, and that after he got in he had + such and such conversation. Now, there are thousands of people who have + brains of that quality that they think the fact that he did go there at + six o'clock in the morning, and did see Mr. Thomas standing out in front + of the house, and especially the fact that the dog did try to bite him, is + a corroboration of the conversation that took place in the house. There + are just such people. In this case, for instance, in Mr. Brady's matter, + they say that the fact of Walsh being in his house is important. Suppose + that he was, what of it? Is that corroboration? Corroboration must be on + the very point in dispute. It must be the very hinge of the question. Then + it is corroboration, if the question is what did the man say. It is not + corroboration to prove that the man was there unless the man swears that + he was not there. Then the inference is drawn that if he would lie about + being there he might lie about what he said. + </p> + <p> + Now, understand me. They will say, for instance, "Here is an affidavit, + and these blanks have been filled up. Rerdell says they were filled up, + and he says they were filled up after they were sworn to." Now, the fact + that the affidavit is there and that the blanks are filled up is not + corroboration, because the point to be corroborated is that it was done + after it was sworn to. And so the existence of the affidavit, while it is + necessary, is no corroboration; the filling up of the blank is no + corroboration; its being on file is no corroboration. Why? The point to be + corroborated is not that the blanks were filled, but that they were filled + after the paper had been sworn to! That is the point. And when they begin + to talk to you about corroboration I want you to have it in your minds all + the time that to be corroborated about an immaterial matter is nothing; it + has nothing to do with the question; but there must be corroboration on + the very heart of the point at issue! + </p> + <p> + There is another thing, gentlemen. It does not make any difference what I + say about this man, or that man, or the other man, unless there is reason + in what I say. If I tell you that the evidence of a witness is not worthy + of belief, I must tell you why. I must give you the reason. If I simply + say the witness is a perjurer, that shows that I either underrate your + sense, or have none of my own, because that is not calculated to convince + any human mind one way or the other. You are not to take my statement; you + are to take the evidence, and such reasons as I give, and only such as + appeal to your good sense. If I say, "You must not believe that man," I + must give you the reason why. If the reason I give is a good one, you will + act upon it. If it is a bad one I cannot make it better by piling epithet + upon epithet. There is no logic in abuse; there is no argument in an + epithet. + </p> + <p> + And there is another thing. An attorney has a certain privilege; he is + protected by the court. He is given almost absolute liberty of speech, and + it is a privilege that he never should abuse. He should remember if he + attacks a defendant, that the defendant cannot open his mouth. He should + remember that it does not take as much courage to attack, as it does not + to attack. He should remember, too, that by the use of epithets, by abuse, + that he is appealing to the lowest and basest part of every juror's head + and heart. It is on a low level. It is a fight with the club of a + barbarian instead of with an intellectual cimeter. There is no logic in + abuse. There is no argument in epithet. Remember that. The weight and + worth of an argument is the effect it has upon an unprejudiced mind, and + that is all it is worth. Therefore I do not want you, gentlemen, to be + carried away by any assault that may be made—I do not say that any + will be made—but any that may be made, that is not absolutely + justified by the evidence. + </p> + <p> + There has been one little thing said during this trial; that is, about the + testimony of defendants. I believe Mr. Bliss takes the ground that you + cannot believe a defendant; that defendants cannot be believed unless they + are corroborated. Mr. Bliss has the kindness to put the defendants in this + case on an equality with his witness Rerdell. Gentlemen, you cannot + believe any witness unless his evidence is reasonable. Every witness has + to be corroborated by the naturalness of his story. Every witness is to be + corroborated by his manner upon the stand and by the thousand little + indications that catch the eye of a juror or of a judge or of an attorney. + Congress has passed a law allowing defendants to swear when they are put + upon trial. Will you tell me that that law is a net, a snare, and a + delusion, and the moment a defendant takes the stand the prosecution is to + say, "Of course he will lie"? Why do they say that? Because he is a + defendant, and you cannot believe a word that he says; he is swearing in + his own behalf. There is that same low, slimy view of human nature again, + that a defendant who swears in his own behalf must swear falsely. I do not + take that view. The defendant has the same right upon the stand that + anybody else has, and if his character is not good his character can be + attacked; it can be impeached by the prosecution precisely as you would + impeach the reputation of any other witness. If he tells a story which is + reasonable you will believe it, and you will believe it notwithstanding he + is a defendant and notwithstanding he has an interest in the verdict. In + old times they would not allow a man to swear at all if he had the + interest of a cent in any civil suit. They would not allow him to testify + when he was on trial for his own liberty and his own life. That was + barbarism. The enemy—the man who hated him—he could tell his + story, but the man attacked, the man defending his own liberty and his own + life, his mouth was closed and sealed. We have gotten over that barbarism + in nearly all the States of this Union, and now we say, "Let every man + tell his story; don't allow any avenue to truth to be closed; let us hear + all sides, and whatever is reasonable take as the truth, and what is + unreasonable throw away." And, gentlemen, let me say here that it is not + your business to go to work picking a witness's testimony all apart and + saying, "Well, I guess there is a little scrap now that there is some + truth in," or "here is a line, and I guess that is so, but the next eleven + lines I do not believe; the next sentence, I think, will do." That is not + the way to do. If a witness is of that character you must throw his entire + evidence to the winds, for it is tainted and the fountains of justice + should not be tainted with such evidence, and a verdict should not be + touched and corrupted with such testimony. You will take the evidence of + these defendants as you would take that of any other man, and it is for + you to say whether that evidence is true. It is for you to say that. + </p> + <p> + If corroboration was so necessary why were not their witnesses + corroborated? Why didn't they call Mr. Bosler to corroborate their + witness? + </p> + <p> + Now, one of the defendants in this case is Mr. John R. Miner, and I want + you to think of the terrible things they have against him. One of the + charges made against him is that he wrote a petition and wrote in six + names attached to it. His explanation is, that if he did anything of that + kind it was because he received a petition which was so worn that it could + not be presented, and he copied it, and that the six names were found on + that petition. There was no other way on earth for him to get those names, + and we find them on the same route in, I believe, seven other petitions + which were filed; we find that those very names are on the other + petitions, and I think Mr. Hall's name—the one the most trouble was + made about—was on three or four petitions of the other kind. + </p> + <p> + Mr. Carpenter. He admitted that he wrote them. + </p> + <p> + Mr. Ingersoll. Yes; Hall admitted that he wrote them. But I believe this + petition was never filed in the department. + </p> + <p> + I think Mr. Woodward said he found it among the papers at some other + place. + </p> + <p> + There is a petition called the Utah petition that has some names in Utah. + I think Mr. Woodward swore that he tound it in room No. 22 or 23. + </p> + <p> + Mr. Merrick. In the case itself, in the department. + </p> + <p> + Mr. Ingersoll. Yes; but it has no file mark. Mr. Woodward says he does not + now remember how it got in there. As I was about to remark, there was a + petition called the Utah petition with some names of persons living off + the route, I believe—two or three sheets. The petition itself was + genuine, and was indorsed, I believe, by Senators Slater and Grover and by + Congressman Whiteaker. Now, then, how did these names come in there? The + petition is ample without those names; large enough. I will tell you what + I think. I think that it is a part of another petition, and that it was + the result of an accident. I think it was done in the Post-Office + Department, not intentionally, but as an accident. The evidence is that + they kept three routes in one pigeonhole, and that the papers sometimes + got mixed; that is Mr. Brewer's testimony. A very strange thing happened + to that petition. While it was before this jury it came apart again. And + if some clerk not absolutely familiar with the papers had taken it up, he + would have been just as liable to put it on the wrong petition as on the + right one. My plan is to account for a thing in some way consistent with + evidence, if I naturally can. I do not go out of my way hunting for + evidence of crime. And when there was a petition, large enough, with a + plenty of genuine names on it, I cannot imagine anybody would go and get + names from any other petition and paste them on to that. But being in this + same country, and the testimony being that they had three of these routes + in one pigeon-hole, my idea is that the papers got mixed and mingled + sometimes, and I say the probability is that it was an accident. That is + the best way to account for it. If Miner had known that that petition was + there that he had made, would he have allowed it to stay there? Why would + he want to do such a thing if he was in a conspiracy with Brady? Why would + he have to resort to perjury and interlineation in order to get Brady to + make orders that he, Brady, had conspired to make? Absurdity cannot go + beyond that. Here is the doctrine: "I have conspired with the Second + Assistant Postmaster-General. He will do anything for me that I want. Now, + I will go and forge some petitions." That seems to me perfectly idiotic. + This petition was indorsed by Senators Grover and Slater and Congressman + Whiteaker. + </p> + <p> + Then, there is another petition; that one I showed you this morning, with + the words "schedule thirteen hours," and the evidence was (that is, if you + call what Rerdell stated evidence) that Miner wrote the words "schedule + thirteen hours." I have shown you, this morning, those words, and without + any other particle of argument I want to leave it to you who wrote those + words—whether Rerdell wrote them or Miner. + </p> + <p> + Then, there is another wonderful thing about that petition. It is not on + any of the routes in this indictment, and has no business here—I + mean the Ehrenberg petition. The one I spoke of was the Kearney and Kent. + </p> + <p> + The next petition is the Ehrenberg and Mineral Park. They say that there + has been some word erased and another written in. Nobody pretends that it + is not a genuine petition. Nobody pretends that it was not signed by every + one of the persons by whom it purports to be signed. Then, another + peculiarity; it is not on any route in this indictment, and has no more to + do with this case than the last leaf of the Mormon Bible; not the least. + </p> + <p> + Let us see if they have any more of these terrible things. Here is + petition 2 A, on the Kearney and Kent route. That is the petition that has + the words "schedule thirteen hours." + </p> + <p> + That is the one indorsed by Senator Saunders. Petition 18 K, on the route + from Ehrenberg to Mineral Park, is not a route in this case. It turned out + that the names on it are genuine, and the genuineness of the petition has + not been challenged. The only point made is that the word "Ehrenberg" has + been written by somebody else. There is no evidence to show that the + petition was not properly signed; that the persons on there did not sign + their names or authorize somebody else to do it. The probability is there + may have been some mistake in the name, or it may have been misspelled. + There was some mistake made, and the word "Ehrenberg" was written in. On + page 4186 Mr. Miner swears positively that in regard to the petition 2 A + he never wrote the words "schedule thirteen hours." + </p> + <p> + Then, there is another petition, I think it is on page 1247, the Camp + McDermitt petition. There are the words "ninety-six hours." And they get + that down there to a fine point. Mr. Boone swore that he did not know who + wrote the word "ninety," but that Miner wrote the word "six.." Well, that + is too fine a point, gentlemen, to put on handwriting. It seems there is + an interlineation there of the words "ninety-six," and they say they do + not know who wrote the word "ninety" and that Miner wrote the word "six." + But Miner swears that he did not write it at all. + </p> + <p> + Now, then, you take away the evidence of Mr. Rerdell as to Miner, and what + is left? The evidence left is that of A. W. Moore. And what is that? It is + that Miner instructed him to get up false petitions. This was the first + time he ever went out. But Moore swore that he made arrangements to do + what Miner instructed him to do; that he made such arrangements with + Major; but Major swears he did not. Moore swore that he made some + arrangement with McBean, and the Government did not ask McBean whether he + did or not, but I will show that he did not. The testimony shows that on + the first trip, at the time he saw Major, he did not see McBean. Now, just + see. He swore, in the first place, that he made that arrangement with + Major and McBean. I find afterwards that his evidence shows that he did + not see McBean on the first trip, but he did see him on the second. + </p> + <p> + On page 1408 we find that when Moore went West the second time—when + he left here and had made a bargain with Dorsey for one-quarter interest + in his route, and Miner told him to go West and let Dorsey's routes go to + the devil, and he said he would, and never notified Dorsey that he was + going to do it—that man comes here now and swears that he made a + contract with Dorsey for one-quarter interest, and then started West and + made a contract with Miner, letting Dorsey's routes go. He did not have + the decency to even notify Dorsey that he was going to do so. That is the + man. On the first trip he did not agree with anybody about petitions. Now, + understand my point, because it kills Mr. Moore again. We have to keep + killing these people—keep killing them. It is something like the boy + who was found pounding a woodchuck. He was pounding him away in the road + with all his might, and a man came along and said to him, "What are you + pounding that woodchuck for?" He said, "Oh, I am just pounding him." + "But," the man said, "he is dead." "Yes, I know it," said the boy, "but I + am pounding him to show him that there is punishment after death." + </p> + <p> + Now, on page 1408, we find that this man Moore went to the West a second + time. I have shown you that the first time, he swears that he did not see + McBean at all. He saw Major and made the arrangement with him, he says. + Major swears that he did not. They do not put McBean on the stand. Now, he + goes a second time. + </p> + <p> + On the second trip, he says he had nothing to do with the petition + business at all, and did not explain the petition business to anybody + because he had not the time, and on the first trip did not see McBean at + all. And yet he swears that he made an arrangement with McBean about these + very petitions. The proof that he did not see Mc-Bean on his first trip is + found on page 1398. + </p> + <p> + There is one other point about which we have heard an immensity of talk + and upon which a great deal of air has been wasted, and that is, that + there was a bargain that Brady was to have fifty per cent, of all the + fines that he remitted. In other words, that he made a bargain with his + co-conspirators that if he fined them a thousand dollars and then remitted + it, that he was to have five hundred dollars or one-half of that fine. + That is a nice bargain; for me to put myself in the power of a man and + say, "Now, you fine me what you want to, and then if you will take it off, + I will give you half of it." It seems to me that that would be quite an + inducement for him to fine me. Yet, here is a man who makes a bargain that + Brady may impose a fine upon them and that he may have half of it back—that + is, upon their doctrine, although they have never proved it, but they + state it just the same as though they had. But here are the facts. Here + are the fines and deductions on twelve routes. The fines amount to + eighty-nine thousand six hundred and thirty-eight dollars and twenty-two + cents and the remissions amount to seven thousand four hundred and + twenty-eight dollars and fifty-four cents; that is all. And yet they + pretend that we had a bargain. Now, come to the mail routes, and we find + that the fines amounted to sixty-one thousand two hundred and thirty-two + dollars and twenty cents and all that they could get their co-conspirators + to take off of that (although according to the doctrine of the prosecution + they were to have fifty per cent.) was thirteen thousand eight hundred and + fifty dollars and sixteen cents. That was all they could get off. There + are the figures. There has been talk enough on that subject, but all the + air that wraps the earth could not answer those facts. Words enough to + wear out all human lips could not change those facts. Fines eighty-nine + thousand dollars, remissions seven thousand dollars; fines sixty-one + thousand dollars, remissions thirteen thousand dollars. And yet they + pretend that he had a bargain by which he had fifty per cent, of all he + remitted. I need not make any more argument on that point. + </p> + <p> + There have been one or two things in this trial that I have regretted, and + one I find in Mr. Ker's speech. And I find frequent reference to it in + other places, and that is the blindness of S. W. Dorsey. Affidavits were + made by Drs. Marmion, Bliss, and Sowers that Mr. Dorsey had lost at least + eleven-twelfths of his vision. And yet it has been constantly thrown out + to you that it was a ruse, a device, and I believe Mr. Ker said in his + speech that Mr. Dorsey saw a paper in Mr. Merrick's hand, Mr. Merrick, I + believe, holding a balance-sheet from the German-American Savings Bank—a + paper several feet wide or long—and because Mr. Dorsey said to him, + "I believe you have it in your hand," why they said this man is pretending + to be blind. His testimony was that he had been in a dark room for three + months; that his eyes had not been visited by one ray of light for three + months, and that for six months he had not read a solitary word. And yet + the prosecution sneeringly pretended that there was nothing the matter + with his eyes. They subpoenaed Dr. Marmion, but they dare not put him on + the stand. They threw out hints and innuendoes that these doctors had + sworn falsely, but they dare not put it to the test. It seems that nothing + in the world can satisfy them about Stephen W. Dorsey except to see him + convicted, except to have them put their feet upon his neck. Gentlemen, + you never will enjoy that pleasure. You never will while the world swings + in its orbit find twelve honest men to convict Stephen W. Dorsey—never. + This Government may put forth its utmost power; it may spend every dollar + in its Treasury; it may hire all the ingenuity and brain of the country, + and it can never find twelve men who will put Stephen W. Dorsey in the + penitentiary—never, and you might as well give it up one time as + another. Try it year after year; poison the mind of the entire public with + the newspapers; get all the informers you can; bring all the witnesses you + can find; put all of those whom you call accomplices on the stand, and I + give you notice that it never can be done, and I want you to know it. + Spend your millions, and you will end where you start. As long as the + average man runs there will always be one or two honest men in a dozen; so + you cannot convict one of these defendants. Go on, but it will never be + accomplished. + </p> + <p> + There is one other thing which perhaps may be worth noticing. I believe + that they proved by Mr. Dorsey that he wrote an account of his relation to + this business, and published it in the <i>New York Herald</i>. The only + point with which Mr. Merrick quarreled in that entire paper was the + statement that Peck was a large contractor, and when Dorsey was put on the + stand he explained that while Peck had not many routes in his own name, + that he was the partner of a man named Chidester. That is the only thing + of which he complained, and yet that communication pretended to tell the + relation that Dorsey sustained to this entire business, and if that had + not accorded precisely with Dorsey's testimony on the stand every word of + it would have been read to you again and again. And Mr. Ker says that + letter was written for the purpose of poisoning public opinion. Was the + letter of the Attorney-General of the United States, written just before + this trial began, written to bias public opinion also? + </p> + <p> + Mr. Merrick. Is there any evidence of that letter in this trial? If not I + object to any reference to it. + </p> + <p> + The Court, You cannot refer to that, because it is not in the case. + </p> + <p> + Mr. Ingersoll. I take it back. Was Dickson indicted to bias public + opinion? + </p> + <p> + Mr. Merrick. I object to that also. He was indicted by the grand jury on + competent testimony. + </p> + <p> + The Court. There is no evidence in this case that he was indicted. + </p> + <p> + Mr. Ingersoll. I will take it back then. I would ask the Court, however, + after the attorney for the Government has said that Dorsey wrote that + letter to bias public opinion, if I have not the right to say that he + wrote that letter because letters had been written by others. + </p> + <p> + Mr. Merrick. Not unless those letters are in proof. + </p> + <p> + The Court. The fact that he wrote the letter is in evidence in the case. + That of course makes it the proper subject of comment on either side. + Anything else not in evidence is not a subject of controversy. + </p> + <p> + Mr. Ingersoll. I will take it for granted, however, that the jury + understand what is going on in this case. + </p> + <p> + Mr. Merrick. Yes, they understand the evidence. + </p> + <p> + Mr. Ingersoll. I understand that the jury, as members of this community, + as citizens of the United States, have at least a vague idea of what the + Department of Justice has done. + </p> + <p> + It is also claimed, and has been claimed, and I have answered it again and + again and again, that S. W. Dorsey is the chief conspirator. Why? Is it + possible that it is because he was the chief man politically? Is it + possible that any politician was envious of his place and power? Is it + possible that any politician was envious of the influence he had with + President Garfield? Is it possible that he had interfered with the career + of some piece of mediocrity? Why is it that he is made the chief figure? + These are questions that are asked and questions that you can answer. How + does it happen that his name never figures in any division? That his name + never figures in any paper made in regard to this business? How does it + happen that when he was contending with the German-American National Bank + that he must be paid, how is it that it never occurred to Miner or Vaile + to tell him, "Why, this is a conspiracy of your own hatching. You advanced + this money to give life to your own bantling, and you have got to wait + until the conspiracy bears fruit, and if you are not willing to wait you + can do the next worse thing, have it made public"? If at that time, when + he was opposing and fighting Vaile because he had cut out his security, + Vaile had known that Dorsey was in the conspiracy, one word from him and + Stephen W. Dorsey's mouth would have remained shut forever. But it did not + occur to Miner, it did not occur to Vaile. That won't do. Why didn't Vaile + say to him, "Mr. Dorsey, you are making a great deal of fuss about a few + thousand dollars. You are in the Senate; you are interested in these + routes, and I want to hear no more from you"? Why didn't he say it? + Because it was not true; that is why. + </p> + <p> + Now, gentlemen, if what the prosecution claims is true, not only Stephen + W. Dorsey, not only Thomas J. Brady, not only John R. Miner, not only H. + M. Vaile, and John W. Dorsey are guilty of conspiracy, but hundreds and + hundreds of other people. Do you believe it is possible that all the + persons who petitioned for an increase of service, who petitioned for + expedition—do you believe they were in a conspiracy? Do you believe + they were dishonest men, and do you believe they asked for what they did + not want? Do you believe that these defendants had at their beck and call + the representatives of the entire great Northwest? Do you believe that + members of Congress of the Lower House and of the Senate were their agents + and tools? Was Senator Hill a conspirator? Was the present Secretary of + the Interior a conspirator? Were Senator Grover and Senator Slater also + conspirators? Were generals, judges, district attorneys, members of State + and Territorial Legislatures—were they all conspirators? Did they + indorse false petitions for the purpose of putting money in the pockets of + these defendants? Let us be honest. Do you believe that General Miles was + a conspirator, or that General Sherman, whose title is next to that of the + President, and whose name is one synonymous of victory, entered into a + conspiracy? Do you believe that he knows as much about the mail business + as Colonel Bliss? Do you believe that he knows as much about the wants of + the great Northwest as the gentlemen who are prosecuting this case? Was he + a conspirator with their Representative in Congress from Oregon? Was + Horace F. Page a conspirator? These are questions, gentlemen, that you + must answer. Were all these men, these officers of the Army, State + officers, Federal officers, and men of national reputation—were they + all engaged in a conspiracy; were they endeavoring to assist these + defendants in plundering the Treasury of these United States? These are + questions for you to ask and questions for you to answer. Is it not + wonderful that such a conspiracy should have existed in all the Western + States at one time? + </p> + <p> + Gentlemen, is it wonderful that all the people of the West want mails? Do + you not know, and do I not know, that the mail is the substantial benefit + we get from the General Government? Don't you know that the mail is the + pioneer of civilization? Do you not know that there ought to be a mail + wherever the flag floats? Do you not know that the only way to keep a + great country like this together, a vast territory of three million square + miles—three million five hundred thousand square miles—is by + the free distribution of the mail? If you are going to keep the people who + populate that territory together, if you are going to keep them of one + heart and one mind, if you are going to make them keep step to this Union + and to the progress of this nation, you must have frequent intercourse + with them all. The telegraph must reach to the remotest hamlet; the little + electric spark, freighted with intelligence and patriotism, must visit + every home; and the newspaper and the letter, bearing words of love from + home and news from abroad, must visit every house, so that every man, + whether digging in the mine or working on the farm, may feel the throb and + thrill of the great world, and be a citizen of a mighty nation instead of + an ignorant provincial. + </p> + <p> + I am in favor of frequent mails everywhere, all over the plains, all + through the mountains, everywhere, wherever the flag flies, I want the man + who sits under it to feel that the Government has not forgotten him; that + is what I want. I take pride in this country. I am one of the men who + believe that there is only air enough in this entire continent to float + one flag. I am one of the men who believe that it is the destiny of the + United States to control every inch of soil from the Arctic to the + Antarctic, and that when a nation loses its ambition to grow, increase, + and expand it begins to die. And what right has a man who is carrying the + mail to interfere with the policy of the Post-Office Department? These are + large questions, gentlemen of the jury, and I want you to deal with them + in a large and splendid American spirit. I want you to feel that we are + citizens of the greatest Government on this globe. I want you to feel that + here, to every man, no matter from what clime he may come, no matter of + what people, no matter of what religion, the soil will give emolument, the + sun will give its light and heat, the Government will give its protection. + I like to feel that way about the Government. And yet, because the + department adopted a splendid and generous policy, it is tortured into + evidence of conspiracy. + </p> + <p> + Now let me speak just a moment about these people—the defendants in + this case. First, there is Stephen W. Dorsey. I take a great interest in + this case; I admit it. I would rather lose my right hand than have you + convict Stephen W. Dorsey. I admit it. I admit that if he were convicted I + would lose confidence in trial by jury; I would believe that there were no + twelve men in the world that had the honor and the manhood to stand by + what they believed to be the evidence and the law. I would feel as though + trial by jury was a failure. I admit I have that interest in it—all + that anybody can have in any case. You can only convict that man by the + testimony of A. W. Moore and M. C. Rerdell. That testimony withdrawn from + the record and there is not one word against him. I want you to know and I + want you to remember what kind of a man he is. You have seen him; you know + him; and you know something of him. It is for you to decide whether you + will take the testimony of Rerdell as against that man. It is for you to + decide whether you will take the testimony of A. W. Moore as against that + man. These men who are prosecuting him seem to forget who he is and what + he has been. Yet men disgrace the position that Stephen W. Dorsey helped + to give them, by attacking him. + </p> + <p> + John W. Dorsey can be convicted by the testimony of nobody. There is no + testimony against him, except that of one man. He is an honest man. He + told exactly what he did, and he told it like an honest man. He told why + he did not put his money in the bank at Middlebury, Vermont, because they + thought that he owed a debt which he did not think he owed. He need not + have told it, but he is an honest man, and that is the reason he told it. + The prosecution does not appreciate that kind of man, that is, they say + they do not. + </p> + <p> + The only witnesses against Miner are Rerdell and Moore, and they being + dead, that is the end of it. + </p> + <p> + What evidence is there against Harvey M. Vaile? One witness, Mr. Rerdell. + What did Harvey M. Vaile do? At the solicitation of Mr. Miner he advanced + money to prevent his having a failing contract. What else did he do? He + wrote a letter saying that he was trustee for S. W. Dorsey, and he was, + because the concern owed S. W. Dorsey a few thousand dollars, and agreed + out of the profits to repay Stephen W. Dorsey. That is all. That is all. + You have seen Mr. Vaile here from day to day. You know that he is a man of + mind. I think he is an honest man. I think he testified to the exact + truth. He did what any other man had the right to do, he helped a man, not + entirely from charity, but believing after all that it might be a good + investment, as you have done if you have ever had the opportunity. And + there is not the slightest scintilla of evidence against him, not the + slightest. I believe every word that he testified, and so do you. + </p> + <p> + And then they come to Thomas J. Brady, and they tell you that that man is + to be convicted upon the testimony of whom? Mr. Walsh. And who else? Mr. + Rerdell. You have some idea of human nature. You have a little and I have + a little. Here is Mr. Walsh, an athlete; a man who, had he lived in Rome + in ancient times, might have been a gladiator. He loans Mr. Brady + twenty-five thousand or thirty thousand dollars. For some of this money he + has notes, for other portions he has not. He sends word to Brady that he + would like to fix the interest. He goes there and Brady takes these notes + and puts them in his pocket and they part as philosophers. If we believe + that, we must believe it as idiots. You do not believe it. You do not + believe any man ever allowed another to take twenty-five thousand dollars + in notes belonging to him and put them in his pocket and walk off, he + taking off his hat at the door and you bowing and wishing him a happy + voyage. My mind is so constructed that I cannot believe that; I cannot + help it. I imagine your minds are built a little after the same model. I + do not believe the story; you do not. + </p> + <p> + Who is the next witness against Mr. Brady? Mr. Rerdell. + </p> + <p> + It is sufficient for me to speak the name. I need argue no further. That + is enough. You saw Mr. Brady on the stand and you heard him give his + testimony. No man could listen to it without knowing it to be true. I say + now to each one of you that when you heard it you believed it, and every + one of you believed it was the truth. Take from this record the testimony + of Rerdell, Walsh, and Moore, and what is left? Some papers, petitions, + orders, affidavits, all made, signed and filed in the cloudless light of + day. That is all that is left. Where is your conspiracy? Faded into thin + air, nothing left. + </p> + <p> + I presume it will be said by the prosecution that I spent about three days + on Mr. Rerdell. I admit it. Why? Because I regarded Rerdell as your case. + Because I made up my mind that when I killed Rerdell the case had breathed + its last. That is the reason. And had it been necessary to spend a few + weeks more I should have done so. But it is not necessary. Probably I + wasted a great deal of time upon the subject, but if he is not dead I do + not want it in the power of any human being to say that it was my fault. I + went at him with intent to kill, and I kept at him after I knew that he + was dead. I admit it. + </p> + <p> + Now, gentlemen, let us see what I have proved. Let us see what up to this + time I have substantiated in my judgment. + </p> + <p> + First, I think I have shown that John W. Dorsey, John M. Peck, and John R. + Miner agreed in 1877, to go into the mail business. That Peck wrote a + letter to Stephen W. Dorsey, who was then a United States Senator, asking + him to get some competent man to get reliable information as to the cost + of service on routes in the Western States and Territories then advertised + by the General Government. That S. W. Dorsey gave that letter to A. E. + Boone. That he told him to say nothing about it to other contractors. That + Boone sent out circulars for the purpose of getting the requisite + information; that is, the cost of corn and oats and the wages of men. + </p> + <p> + That John R. Miner came to Washington on the 1st of December, 1877. That + he went to the house of Stephen W. Dorsey, as had been the custom for + several years. That he occupied a room in that house, and that he and Mr. + Boone went on with the business of making proposals and getting up forms + of contracts. + </p> + <p> + That John W. Dorsey came here in the early part of January, 1878. That + after his arrival the partnership was formed between him and A. E. Boone, + and that the partnership was dated the 15th day of January, 1878. + </p> + <p> + That S. W. Dorsey, at the request of his brother and brother-in-law, + advanced the amount of money necessary to pay incidental expenses. That he + gave his advice whenever it was asked. That he assisted the parties all + that he conveniently could. + </p> + <p> + That the last bids or proposals were put in by these parties on the 2d of + February, 1878. That the awards were made on the 15th day of March of the + same year. That Miner, Peck, Dorsey, and Boone received about five times + as many awards as they had anticipated. Thereupon another partnership was + formed with the style of Miner, Peck & Co., and that the partners in + this firm were John R. Miner, John M. Peck, and John W. Dorsey. That + thereupon John W. Dorsey and John R. Miner went West for the purpose of + subcontracting the routes. That John R. Miner on his return from the West + met Stephen W. Dorsey at Saint Louis about the 16th of July, 1878. That + Stephen W. Dorsey up to that time had advanced eight thousand or nine + thousand dollars. That he then gave to Mr. Miner notes amounting to about + eight thousand five hundred dollars to be by him discounted at the + German-American National Bank of Washington. That Stephen W. Dorsey then + told Miner that he would advance no more and would indorse no more. That + Stephen W. Dorsey went from Saint Louis to New Mexico; that John R. Miner + came to the city of Washington, arriving here about the 20th of July. That + John R. Miner then found that service in eastern Oregon was not in + operation, although it had been subcontracted; but he then applied to + Thomas J. Brady for an extension of time. That Brady refused to give it. + That Miner, Peck & Co. had not the money to stock the routes not then + in operation, and that Stephen W. Dorsey had refused to advance further + means. That John W. Dorsey was then in the West and that John M. Peck was + then in New Mexico. That thereupon Mr. Miner applied to Harvey M. Vaile, + and that Mr. Vaile went to Mr. Brady and asked whether an extension of + time could be given, provided he undertook to put the service on those + routes. That Brady then gave him until the 16th day of August, 1878. That + thereupon Miner, under the authority of powers of attorney from John M. + Peck and John W. Dorsey, agreed upon the terms on which H. M. Vaile should + advance the money necessary to put the service in operation. + </p> + <p> + That the contract bears date the 16th day of August, 1878, and was duly + executed by all the parties on the last of September or first of October + of that year. + </p> + <p> + That the service was not in operation by the 16th of August, and that in + August, Brady telegraphed to H. M. Vaile to know what routes he was going + to put service on. + </p> + <p> + That thereupon Vaile replied that he would see that all the service of + Miner, Peck, and Dorsey was put in operation. That through the assistance + of Mr. Vaile the service was put in operation. + </p> + <p> + That before that time Stephen W. Dorsey had been secured by Miner, Peck, + and John W. Dorsey executing PostOffice drafts upon the routes that had + been awarded to them. + </p> + <p> + That on the 17th day of May, 1878, an act was passed by the Congress of + the United States allowing subcontractors to place their subcontracts on + file. + </p> + <p> + That after Vaile came in and agreed to furnish the money necessary to put + the service in operation, John R. Miner having powers of attorney from + Peck and John W. Dorsey, executed to H. M. Vaile subcontracts for the + purpose of securing him for the money he had advanced. + </p> + <p> + That H. M. Vaile put these subcontracts on file, thus cutting out and + rendering worthless as security the PostOffice drafts that had been given + to S. W. Dorsey for the purpose of securing him. + </p> + <p> + That John W. Dorsey returned from the Bismarck and Tongue River route in + November, 1878, and that he then offered to sell out his entire interest + in the business to Vaile for ten thousand dollars, and left instructions + authorizing his brother, S. W. Dorsey, to make such sale for such amount. + That John W. Dorsey then returned to the Tongue River route. + </p> + <p> + That Stephen W. Dorsey returned to Washington in December, 1878, and for + the first time found that the subcontracts had been given to Vaile. That + he and Mr. Vaile had a quarrel with the German-American National Bank on + that question. + </p> + <p> + That afterwards Dorsey was to give ten thousand dollars to John W. Dorsey, + and ten thousand dollars to John M. Peck. That he then concluded not to do + so. + </p> + <p> + That on the 4th day of March, when S. W. Dorsey's Senatorial term expired, + he immediately wrote a letter to Brady insisting that the subcontracts + that had been filed by Vaile were in fraud of his rights. That thereupon + the parties in interest came together. That S. W. Dorsey acting for Peck, + his brother, and himself agreed with Vaile and Miner to a division of the + routes. + </p> + <p> + That S. W. Dorsey paid Peck ten thousand dollars for his interest, paid + John W. Dorsey ten thousand dollars for his interest, and took + substantially thirty per cent, of the routes and paid himself the money + that was owing to him by Miner, Peck & Co. + </p> + <p> + That the parties at the time executed to each other subcontracts and such + other papers as were necessary to vest, as far as they then under the law + could vest, the routes so divided in the parties to whom they fell. + </p> + <p> + That on the 5th of May, 1879, the division was completed, and that from + that time forward Vaile and Miner had no interest in the routes that fell + to Stephen W. Dorsey, and that from that time forward Stephen W. Dorsey + had no interest in the routes that fell to Vaile and Miner, and that John + W. Dorsey and John M. Peck had no interest in any route from that date + forward until the present moment. That S. W. Dorsey took entire and + absolute control of his routes, and that Miner and Vaile took entire + control of their routes. That from that time until the present neither + party interfered with the routes of the other. + </p> + <p> + That Vaile and Miner made no paper of any sort, character, or kind for + Stephen W. Dorsey after the 5th of May, 1879, and that neither John W. + Dorsey, nor John M. Peck, made any papers of any kind, sort or character + for Miner or Vaile after that date, no matter what date papers bear that + were made before that time. That S. W. Dorsey made no papers for Miner or + Vaile after that date. And that Miner and Vaile made no papers for S. W. + Dorsey after that date, May 5, 1879. That all the papers bearing date + after the 5th of May, were in fact signed by the parties at or before that + time. That they were so signed for the purpose of making the division + complete. + </p> + <p> + That Vaile and Miner on their routes got up petitions that they had a + right to do. That S. W. Dorsey upon his routes got up petitions, as he had + a right to do. + </p> + <p> + That the routes were increased and expedited by the Second Assistant + Postmaster-General in accordance with the policy of the department and in + accordance with the petitions filed and the affidavits made, as he had a + right to do. + </p> + <p> + That it was not for the contractors to settle the policy of the + Post-Office Department. + </p> + <p> + That the evidence of A. W. Moore is unworthy of belief, and that his + statement that he settled with S. W. Dorsey is demonstrated to be false by + the receipts that he afterwards gave in final settlement to John R. Miner, + as admitted by himself. That his testimony as to the existence of a + conspiracy is rendered worthless and absurd by the fact that he sold out + not only his interest, but his services up to that time, for six hundred + and eighty-two dollars. That his conversations with Miner could not have + taken place. That he never made or offered to make such contracts with + Major as he pretended he was instructed to make, and as he swore that he + did make. That his conversation with S. W. Dorsey never occurred. + </p> + <p> + That the testimony of Rerdell is utterly and infinitely unworthy of + credit. That he is not only contradicted by all the evidence, but by + himself, and how can you corroborate a man who tells no truth? There must + be something to be corroborated. + </p> + <p> + That the red books never existed. + </p> + <p> + That the pencil memorandum was forged by himself. + </p> + <p> + That the Chico letter was written by him. + </p> + <p> + And that the letter from Dorsey to Bosler, said to have been dated May 13, + 1879, was born of the imagination of Mr. Rerdell. + </p> + <p> + That Rerdell's letter to Bosler of the 22d of May, 1880, was never sent, + was never received, and was never written until after this man made up his + mind to become a witness for the Government. That Bosler never received + that letter, or the letter pretended to have been written by Dorsey on the + 13th of May, 1879. + </p> + <p> + That the tabular statement in which thirty-three and one-third per cent, + was allowed to Brady never existed. That Rerdell did not visit Dorsey's + office in New York in June, 1881, and that he had no conversation with + Torrey. That Rerdell was not there. That he did not have the conversation + detailed by him with Dorsey at the Albermarle Hotel. That Dorsey did not + write the letter of the 13th of June, 1881. + </p> + <p> + That Rerdell swore in June, 1881, that Dorsey was entirely innocent. That + he swore to three affidavits of the same kind. That he again swore to the + same thing on the 13th of July, 1882. That he admitted by his letter of + July 5, 1882, that S. W. Dorsey did not even ask him to make the affidavit + of June, 1881, but that he was persuaded to do it by James W. Bosler. That + he was not locked up at Willard's Hotel. That he was not threatened with a + prosecution for perjury. That he was not shown the letters he had written + to a woman. That the whole story with regard to the making of that + affidavit was utterly and unqualifiedly false. That he never had the + conversation with Thomas J. Brady that he claimed. That Brady never + suggested to to him to have any books copied. That there were no books of + Dorsey's that needed to be copied. That he did not see S. W. Dorsey draw + any money at Middleton's bank at the time he states. That he, Rerdell, + drew the money himself. And that his entire testimony is absurd, + contradictory, and utterly unworthy of credit. + </p> + <p> + Let me say another thing to you, gentlemen, right here. It would be better + a thousand times that all the defendants tried in the next hundred years + should escape punishment than that one man should be convicted upon the + evidence of a man like this—a man who offered to the Government to + make a bargain while the trial was in progress, that he would challenge + from the jury all the friends of the defendants, and help the Government + to get the enemies of the defendants upon the jury. You never can afford + to take the evidence of such a man. It turns a court-house into a den of + wild beasts. You cannot do it. + </p> + <p> + I have shown that the story of Walsh is improbable, and that all that + Boone swears against these defendants cannot be believed. That Walsh never + loaned the money to Brady that he claimed, and that Brady never took from + him the notes as he says. That Brady never made in his presence the + admissions that he swears to. Think of it; Brady robbing Walsh, and at the + same time saying to Walsh, "I am a thief and public robber." + </p> + <p> + I have shown to you, gentlemen, it seems to me, that no reasonable human + being, taking all this evidence into consideration, can base upon it a + verdict of guilty. It cannot be done. + </p> + <p> + Now, gentlemen, the responsibility is upon you, and what is that + responsibility? You are to decide a question involving all that these + defendants are. You are to decide a question involving all that these + defendants hope to be. Their fate is in your hands. Everything they love, + everything they hold dear, is in your power. With this fearful + responsibility upon you, you have no right to listen to the whispers of + suspicion. You have no right to be guided or influenced by prejudice. You + have no right to act from fear. You must act with absolute and perfect + honesty. You must beware of prejudice. You must beware of taking anything + into consideration except the sworn testimony in this case. You must not + be controlled by the last word instead of by the last argument! You must + not be controlled by the last epithet instead of by the last fact. You + must give to every argument, whether made by defendant or prosecution, its + full and honest weight. You must put the evidence in the scales of your + judgment, and your manhood must stand at the scales, and then you must + have the courage to tell which side goes down and which side rises. + </p> + <p> + That is all we ask. We ask the mercy of an honest verdict, and of your + honest opinion. We ask the mercy of a verdict born of your courage, a + verdict born of your sense of justice, a verdict born of your manhood, + remembering that you are the peers of any in the world. And it is for you + to say, gentlemen, whether these defendants are worthy to live among their + fellow-citizens; whether they shall be taken from the sunshine and from + the free air, and whether they are worthy to be men among men. + </p> + <p> + It is for you to say whether they are to be taken from their homes, from + their pursuits, from their wives, from their children. That responsibility + rests upon you. + </p> + <p> + It is for you to say whether they shall be clothed in dishonor, whether + they shall be clad in shame, whether their day of life shall set without a + star in all the future's sky; that is for you. + </p> + <p> + It is for you to say whether Stephen W. Dorsey, John W. Dorsey, John R. + Miner, Thomas J. Brady, and H. M. Vaile shall be branded as criminals. + </p> + <p> + It is for you to say, after they have suffered what they have, after they + have been pursued by this Government as no defendants were ever pursued + before, whether they shall be branded as criminals. + </p> + <p> + It is for you to say whether their homes shall be blasted and blackened by + the lightning of a false verdict. + </p> + <p> + It is for you to say whether there shall be left to these defendants and + to those they love, a future of agony, of grief and tears. Nothing beneath + the stars of heaven is so profoundly sad as the wreck of a human being. + Nothing is so profoundly mournful as a home that has been covered with + shame—a wife that is worse than widowed—children worse than + orphaned. Nothing in this world is so infinitely sad as a verdict that + will cast a stain upon children yet unborn. + </p> + <p> + It is for you to say, gentlemen, whether there shall be such a verdict, or + whether there shall be a verdict in accordance with the evidence and in + accordance with law. + </p> + <p> + And let me say right here that I believe the attorneys for the + prosecution, eager as they are in the chase, excited with the hunt, after + the sober second thought, would be a thousand times better pleased with a + verdict of not guilty. Of course they want victory. They want to put in + their cap the little feather of success, and they want you to give in the + scales of your judgment greater weight to that feather than to the homes + and wives and children of these defendants. Do not do it. Do not do it. + </p> + <p> + I want a verdict in accordance with the evidence. I want a verdict in + accordance with the law. I want a verdict that will relieve my clients + from the agony of two years. I want a verdict that will drive the darkness + from the heart of the wife. I want a verdict that will take the cloud of + agony from the roof and the home. I want a verdict that will fill the + coming days and nights with joy. I want a verdict that, like a splendid + flower, will fill the future of their lives with a sense of thankfulness + and gratitude to you, gentlemen, one and all. + </p> + <p> + The Court. Let me inquire of the counsel for the defence if there are to + be any other arguments upon their side? + </p> + <p> + Mr. Henkle. May it please your Honor, inasmuch as I alone represent two of + the defendants, it is perhaps due to this jury and to myself to explain + why I do not propose to argue the case. I had prepared myself, with a good + deal of labor and painstaking, to submit an argument to the jury. + </p> + <p> + But after the exhaustive and able argument of my Brother Wilson, I and my + colleagues were of the opinion that there was room but for one more + argument on the part of the defence, and with entire unanimity we selected + our colleague, Brother Ingersoll, to make that argument. And how grandly + he has justified the choice, the jury, your Honor, and the spectators will + determine. + </p> + <p> + I saw some time ago a little paragraph in a paper in this city, which + represents the interest of the Government, in which it was said that the + defendants' counsel were afraid to argue this case because they would come + in collision with each other; that each would try to throw the conspiracy + at the door of the others and exonerate himself, and that therefore they + were afraid to argue the case. I want to say to your Honor that so far + from being afraid to argue the case, I should have been very happy to + pursue the argument, so far as I am concerned. But out of tender + consideration to the jury, who have been kept for six long months from + their business and their interests, which I know are suffering, we have + unanimously concluded that we would close the argument with that which + your Honor has just heard. And I simply want to say further, that I not + only do not antagonize with anything that has been said by my Brother + Wilson, or by my eloquent friend who has just concluded, but I indorse + most fully and cordially every word that has been uttered. And so far as + my clients are concerned, gentlemen of the jury, the case is with you. + </p> + <p> + Mr. Davidge. May it please your Honor, perhaps I ought to add a single + word. It was understood among counsel when Colonel Ingersoll, as stated by + General Henkle, was unanimously selected to represent the defendants, that + both Colonel Ingersoll and myself should have the privilege of addressing + the jury if, in the judgment of either, it should be necessary. I have + felt such a deep interest in the present case that I have almost hoped he + might leave unoccupied some portion of the field of argument. I have + listened to every word that has fallen from his lips. He has filled the + whole area of the case with such matchless ability and eloquence that I + have no ground upon which I could stand in making any further argument. He + has so fully uncovered the origin of this so-called prosecution, its + methods, and the character and weight of the evidence upon which a + conviction is sought, that I can add nothing whatever to what he has said. + I need not add that every syllable he has uttered receives my grateful + indorsement, as well as that of all the defendants and their counsel in + this case.* + </p> +<pre xml:space="preserve"> + * Twelve jury men decided this morning that the Government + had not legally established a case of conspiracy against the + Star Route defendants. This verdict of absolute acquittal + coming so unexpectedly has created a very marked sensation. + The announcement in the court room of the verdict was + followed by an uproarious scene of applause, tears, + hysterics and cheers. Every one expected the jury to + disagree. Judge Wylie himself, a week or ten days ago, + called up the counsel for the prosecution and said to them, + "I do not think you are going to get a verdict out of that + jury. I have watched it carefully, and I am certain that + four of the best men on it are in doubt." Last night an + employee of the Department of Justice reported that the jury + stood eleven to one for acquittal. This came from one of the + bailiffs, who claimed to have overheard a vote. + + At any rate the prosecution had intended, if a disagreement + was reported, to ask to have the jury dismissed, on the + ground of the condition of Juror Vernon. Had this been + attempted, Dr. Sowers, who attended Vernon yesterday would + have testified that Vernon was all right mentally, after he + had braced him up with two drinks of brandy. + + The court room was crowded when the jurors took their + places. Every one of the defendants was there. Dorsey sat by + his wife, flushed and expectant. Upon the left of Mrs. + Dorsey was her sister Mrs. Peck. Brady was just back of his + special counsel. Judge Wilson, looking as hard and grim as + ever. All of the counsel for the Star Route defendants were + in their seats. Colonel Ingersoll's face showed great self- + control, although he was evidently laboring under strong + nervous excitement. He was flanked by his entire family. + + Mr. Farrell, Mr. Baker (Colonel Ingersoll's secretary), and + the white-haired and white-bearded Mr. Bush, the hard + working associate of Colonel Ingersoll, were also present. + + When the jurors took their places in the court room + precisely at ten o'clock, Judge Wylie looked at them, and + said In his slow hesitating way: "Gentlemen, I have sent + for you to learn—ahem—to learn if you have agreed—ahem— + upon a verdict." Mr. Crane the foreman said: "We have + agreed." + + Judge Wylie gave a start of surprise and looked towards the + seats for the counsel of the Government. Not one of them was + present. This looked very ominous for the Government's case, + and indicated besides that the bailiffs must have betrayed + the secrets of the jury room to the prosecution, as neither + Bliss nor Merrick came to the court room at all. Mr. Ker, + one of the counsel for the prosecution, came in and stood In + the door as the Judge said to the Clerk, "Receive this + verdict." There was the usual silence as every one turned + toward the foreman. Mr. Crane said very deliberately. "We + find the defendants not guilty." + + Then there followed a scene of great confusion and uproar, + which the Judge could not restrain. Indeed he did not try. + The triumph of such an unexpected success after two years of + fighting in the face of the entire power of the Government, + made the humblest person connected in the most remote degree + with the defence crazy with joy. When Colonel Ingersoll came + out of the Court House a crowd gathered in front of him, and + then one stout-lunged, broad shouldered man cried out "Three + cheers for Colonel Ingersoll." There was a wild scene of + tiger-like cheering from the excited crowd. This + demonstration was a personal compliment to the Colonel, for + when the defendants passed out there was not the slightest + sign of approval or disapproval beyond the congratulations + of personal friends. Colonel Ingersoll stood on the broad + steps of the Court House and smiled with the benevolent air + of a popular orator in front of a congenial crowd, and + laughed outright when some over-euthusiastic admirer called, + "Speech, speech." + + The morning was clear and bright. Colonel Ingersoll watched + the crowd a moment, himself a picture of radiant good + nature, as he stood with his white straw hut encircled with + a blue band, pushed back from his face. His short thin black + coat was partially buttoned over a white duck waistcoat. He + rested his hands in the pockets of his gray trousers. The + request for "Speech, speech" so amused him that he chuckled + over It all the way to his open carriage, which came up a + moment after. He was driven through Pennsylvania Avenue with + his family. People called out to him from the sidewalk, and + he was obliged to lift his hat so much that he finally sat + bareheaded, like a conquering hero, waving his hands to the + right and to the left. His house was thronged all day. Mrs. + Blaine and her daughter Margaret were among the first who + called. There was a profession of people all day long who + had no sympathy at all with the defendants, and who were + perfectly indifferent whether they went to the penitentiary + or not, but who were most heartily glad that their friend + Colonel Ingersoll had accomplished such a great personal + victory. + + Now that the case is over, it is time to tell some facts + about the prosecution which have been withheld until the + case was closed. In the first place, the management of the + prosecution has been equally scandalous with the crimes + charged against the defendants. The District Attorney here + has always been allowed a five dollar fee for the + prosecution of cases. Attorney-Generals who preceded Mr. + Brewster ruled that this should be the official fee of + special counsel. This was made up by allowing the payment of + lump sums as retainers. When Bliss and Merrick were put upon + the extravagant pay of one hundred and fifty dollars per day + it was inevitable that they would prolong the case to the + uttermost. Bliss has, on top of all this pay, put in an + extraordinary list of personal expenses, which have been + allowed up to a very recent date. The amount of extra matter + run into this case only to prolong it has resulted in so + confusing the case as to materially aid the defence. + + Then the reporting of the case has been turned into a huge + job. The stenographers will clear between thirty and forty + thousand dollars on their work. + + The other day I estimated from official sources, the cost of + the Star Route trials at one million dollars. It will go + above that. It will foot up near one million two hundred + thousand dollars. This evening Col. Ingersoll was serenaded. + + There was a large gathering of friends of the Star Route + defendants at Colonel Ingersoll's house to-night. Indoors + the acquitted men, their counsel, and a large number of + their more intimate friends, many of them women, met to + exchange mutual congratulations. And in the street a crowd + had gathered, partly out of curiosity—and partly to express + their sympathy with the defendants. They cheered Ingersoll + and the other counsel as well as the defendants and the + jury, and called for speeches. Colonel Ingersoll and Judges + Wilson and Carpenter spoke briefly. + + Col. Ingersoll's speech was short and vigorous. He hailed + the verdict of the jury as a victory for truth and justice, + and as a notice to the administration that it could not + terrorize a jury by indicting jurymen, and a warning to the + President that he could not force a verdict by turning + honest servants out of office. + + The Sun, New York, June 15,1883. +</pre> + <p> + <a name="link0007" id="link0007"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /> <br /> <br /> <br /> + </div> + <h2> + ADDRESS TO THE JURY IN THE DAVIS WILL CASE. + </h2> +<pre xml:space="preserve"> + * The matchless eloquence of Ingersoll! Where will one look + for the like of it? What other man living has the faculty of + blending wit and humor, pathos and fact and logic with such + exquisite grace, or with such impressive force? Senator + Sanders this morning begged the jury to beware of the + oratory of Ingersoll as it transcended that of Greece. + Sanders was not far amiss. In fierce and terrible invective + Ingersoll is not to be compared to Demosthenes. But in no + other respect is Demosthenes his superior. To a modern + audience, at least, Demosthenes on the Crown would seem a + pretty poor sort of affair by the side of Ingersoll on the + Davis will. It was a great effort, and its chief greatness + lay in its extreme simplicity. + + Ingersoll stepped up to the jurors as near as he could get + and kept slowly walking up and down before them. At times he + would single out a single juryman, stop in front of him, + gaze steadily into his face and direct his remarks for a + minute or two to that one man alone. Again he would turn and + address himself to Senator Sanders, Judge Dixon or somebody + else of those interested in establishing the will as + genuine, At times the gravity of the jury and the audience + was so completely upset that Judge McHatton had to rap for + order, but presently the Colonel would change his mood and + the audience would be hushed into deepest silence. If the + jury could have retired immediately upon the conclusion of + Ingersoll's argument, there is little doubt as to what the + verdict would have been. + + If Ingersoll himself is not absolutely convinced that the + will is a forgery, he certainly had the art of making people + believe that he was so convinced. He said he hoped he might + never win a case that he ought not to win as a matter of + right and justice. The idea which he sought to convey and + which he did convey was that he believed he was right, no + matter whether he could make others believe as he did or + not. In that lies Ingersoll's power. + + Whether by accident or design the will got torn this + morning. A piece in the form of a triangle was torn from one + end. Ingersoll made quite a point this afternoon by passing + the pieces around among the jury, and asking each man of + them to note that the ink at the torn edges had not sunk + into, the paper. In doing this he adopted a conversational + tone and kept pressing the point until the juror he was + working upon nodded his head in approval. + + Both Judge Dixon and Senator Sanders interrupted Ingersoll + early in his speech to take exception to certain of his + remarks, but the Colonel's dangerous repartee and delicate + art in twisting anything they might say to his own advantage + soon put a stop to the interruptions and the speaker had + full sway during the rest of the time at his disposal. The + crowd—it was as big as circumstances would permit, every + available inch of space in the room and in the court house + corridors being occupied—enjoyed Ingersoll' a speech + immensely, and only respect for the proprieties of the place + prevented frequent bursts of applause as an accompaniment to + the frequent bursts of eloquence.—Anaconda Standard, Butte, + Montana, Sept. 5,1891. +</pre> + <p> + MAY it please the Court and gentlemen of the jury, waiving + congratulations, reminiscences and animadversions, I will proceed to the + business in hand. There are two principal and important questions to be + decided by you: First, is the will sought to be probated, the will of + Andrew J. Davis? Is it genuine? Is it honest? + </p> + <p> + And second, did Andrew J. Davis make a will after 1866 revoking all former + wills, or were the provisions such that they were inconsistent with the + provisions of the will of 1866? + </p> + <p> + These are the questions, and as we examine them, other questions arise + that have to be answered. The first question then is: Who wrote the will + of 1866? Whose work is it? When, where and by whom was it done? And I + don't want you, gentlemen, to pay any attention to what I say unless it + appeals to your reason and to your good sense. Don't be afraid of me + because I am a sinner.* I admit that I am. I am not like the other + gentleman who thanked God "that he was not as other men." + </p> +<pre xml:space="preserve"> + * Col. Ingersoll when speaking of himself as a sinner in + this address is referring to the remarks made by Senator + Sanders, who in the preceding address said: + + "In an old book occur the words, 'My son if sinners entice + thee consent thou not.' I will not apply this to you, + gentlemen of the jury. But I have a right to demand of you + that you hold your minds and hearts free from all influences + calculated to swerve you until you have heard the last words + in this case." The Senator enjoined them not to be beguiled + by the eloquence of a man who was famed for his eloquence + over two continents and in the islands of the sea; a man + whose eloquence fittingly transcended that of Greece in the + time of Alexander. +</pre> + <p> + I have the faults and frailties common to the human race, but in spite of + being a sinner I strive to be at least a good-natured one, and I am such a + sinner that if there is any good in any other world I am willing to share + it with all the children of men. To that extent at least I am a sinner; + and I hope, gentlemen, that you will not be prejudiced against me on that + account, or decide for the proponent simply upon the perfections of + Senator Sanders. Now, I say, the question is: Who wrote this will? The + testimony offered by the proponent is that it was written by Job Davis. We + have heard a great deal, gentlemen, of the difference between fact and + opinion. There is a difference between fact and opinion, but sometimes + when we have to establish a fact by persons, we are hardly as certain that + the fact ever existed as we are of the opinion, and although one swears + that he saw a thing or heard a thing we all know that the accuracy of that + statement must be decided by something besides his word. + </p> + <p> + There is this beautiful peculiarity in nature—a lie never fits a + fact, never. You only fit a lie with another lie, made for the express + purpose, because you can change a lie but you can't change a fact, and + after a while the time comes when the last lie you tell has to be fitted + to a fact, and right there is a bad joint; consequently you must test the + statements of people who say they saw, not by what they say but by other + facts, by the surroundings, by what are called probabilities; by the + naturalness of the statement. If we only had to hear what witnesses say, + jurymen would need nothing but ears. Their brains could be dispensed with; + but after you hear what they say you call a council in your brain and make + up your mind whether the statement, in view of all the circumstances, is + true or false. + </p> + <p> + Did Job Davis write the will? I would be willing to risk this entire case + on that one proposition. Did Job Davis write this will? And I propose to + demonstrate to you by the evidence on both sides that Job Davis did not + write that will. Why do I say so? + </p> + <p> + First: The evidence of all the parties is that Job Davis wrote a very good + hand; that his letters were even. He wrote a good hand; a kind of + schoolmaster, copy-book hand. Is this will written in that kind of hand? I + ask Judge Woolworth to tell you whether that is written in a clerkly hand; + whether it was written by a man who wrote an even hand; whether it was + written by a man who closed his "a's" and "o's"; whether it was written by + one who made his "h's" and "b's" different. Job Davis was a good scholar. + </p> + <p> + No good penman ever wrote the body of that will. If there were nothing + else I would be satisfied, and, in my judgment, you would be, that it is + not the writing of Job Davis. + </p> + <p> + It is the writing; of a poor penman; it is the writing of a careless + penman, who, for that time, endeavored to write a little smaller than + usual, and why? When people forge a will they write the names first on the + blank paper. They will not write the body of the will and then forge the + name to it, because if they are not successful in the forgery of the name + they would have to write the whole business over again; so the first thing + they would do would be to write the name and the next thing that they + would do would be to write the will so as to bring it within the space + that was left, and here they wrote it a little shorter even than was + necessary and quit there [indicating on the will] and made these six or + seven marks and then turned over, and on the other side they were a little + crowded before they got to the name of A. J. Davis. + </p> + <p> + Now, the next question is, was Job Davis a good speller? Let us be honest + about it. How delighted they would have been to show that he was an + ignorant booby. But their witnesses and our witnesses both swear that he + was the best speller in the neighborhood; and when they brought men from + other communities to a spelling match, after all had fallen on the field, + after the floor was covered with dead and wounded, Job Davis stood proudly + up, not having missed a word. He was the best speller in that county, and + not only so, but at sixteen years of age he wasn't simply studying + arithmetic, he was in algebra; and not only so, after he had finished what + you may call this common school education in Salt Creek township, he went + to the Normal school of Iowa and prepared himself to be a teacher, and + came back and taught a school. + </p> + <p> + Now, did Job Davis write this will? Senator Sanders says there are three + or four misspelled words in this document, while the fact is there are + twenty words in the document that are clearly and absolutely misspelled. + And what kind of words are misspelled? Some of the easiest and most common + in the English language. Will you say upon your oaths that Job Davis, + having the reputation of the champion speller of the neighborhood—will + you, upon your oaths, say that when he wrote this will (probably the only + document of any importance, if he did write it, that he ever wrote) he + spelled shall "shal" every time it occurs in the will? Will you say that + this champion speller spelled the word whether with two "r's," and made it + "wherther," making two mistakes, first as to the word itself, and second, + as to the spelling? Will you say that this champion speller could not + spell the word dispose, but wrote it "depose"? And will you say the + ordinary word give was spelled by this educated young man "guive"? And it + seems that Colonel Sanders has ransacked the misspelled world to find + somebody idiotic enough to twist a "u" in the word give, and even in the + Century dictionary—I suppose they call it the Century dictionary + because they looked a hundred years to find that peculiarity of spelling—even + there, although give is spelled four ways, besides the right way, no "u" + is there. And will you say that Job Davis did not know the word + administrators? + </p> + <p> + Now, let us be honest about this matter—let us be fair. It is not a + personal quarrel between lawyers. I never quarrel with anybody; my + philosophy being that everybody does as he must, and if he is in bad luck + and does wrong, why, let us pity him, and if we happen to have good luck, + and take the path where roses bloom, why, let us be joyful. That is my + doctrine; no need of fighting about these little things. They are all over + in a little while anyway. Do you believe that Job Davis spelled sheet—a + sheet of paper—"sheat"? That is the way he spells it in this + document. Now, let us be honor bright with each other, and do not let the + lawyers on the other side treat you as if you were twelve imbeciles. You + would better be misled by a sensible sinner than by the most pious + absurdities that ever floated out from the lips of man. Let us have some + good, hard sense, as we would in ordinary business life. Do you believe + that Job Davis, the educated young man, the school teacher, the one who + attended the Normal school would put periods in the middle of sentences + and none at the end? That he would put a period on one side of an "n" and + then fearing the "n" might get away, put one on the other; and then when + he got the sentence done, be out of periods, so that he could not put one + there, and put so many periods in the writing that it looked as if it had + broken out with some kind of punctuation measles? + </p> + <p> + Job Davis, an educated man! And you are going to tell this jury that that + man wrote that will! I think your cheeks will get a little red while you + are doing it. This man, when he comes to this little word "is" in the + middle of a sentence, his desire for equality is so great that he wishes + to put that word on a level with others, and starts it with a capital, so + that it will not be ashamed to appear with longer words. + </p> + <p> + And yet the will was written by Job Davis, and Sconce saw him write it, + and Mrs. Downey saw him write it. If there were one million Sconces, and a + million Mrs. Downeys, and they held their hands up high and swore that + they did, I know that they did not, unless all the witnesses who have + testified to the education of Job Davis have testified lies. There is + where I told you a little while ago that when a lie comes in contact with + a fact it will not fit. These other people in Salt Creek township that + have come here and sworn to that, did not know whether it was spelled + right or wrong. They did not take that into consideration. + </p> + <p> + It seems to me utterly, absolutely, infinitely impossible that this will + was written by a good speller. I know it was not. So do you. There is not + a man on the jury that does not know it was not written by a good speller—not + a man. And you cannot, upon your oaths, say that you believe two things—first, + that Job Davis was a good speller, and, secondly, that he wrote this will. + Utterly impossible. There is another word here, "wordly"—"all my + wordly goods." "Worldly" it ought to be; but this Job Davis, this scholar, + did not know that there was such a word as worldly, he left out the "l" + and called it wordly, "all my wordly goods," and they want you to find on + your oath that it was written by a good speller. There are twenty words + misspelled in this short will, and the most common words, some of them, in + the English language. Now, I say that these twenty misspelled words are + twenty witnesses—twenty witnesses that tell the truth without being + on their oath, and that you cannot mix by cross-examination. Twenty + witnesses! Every misspelled word holds up its maimed and mutilated hand + and swears that Job Davis did not write that will—every one. Suppose + witnesses had sworn that Judge Woolworth wrote this will. How many Salt + Creekers do you think it would take to convince you that he was around + spelling sheet "sheat"? + </p> + <p> + Mr. Woolworth. I have done worse than that a great many times. + </p> + <p> + Mr. Ingersoll. You have acted worse than that, but you have never spelled + worse than that. + </p> + <p> + Now, this Job Davis died in 1868. Nobody has seen him write for + twenty-three years, but everybody, their witnesses and ours, positively + swears that he was a good speller. Now, comes another question: Who wrote + this will? Colonel Sanders tells us that it is immaterial whether Job + Davis wrote it or not. To me that is a very strange remark. If Job Davis + did not write it, Mr. Sconce has sworn falsely. If Job Davis did not write + it, then there was no will on the 20th of July, 1866, and all the Glasgows + and Quigleys and Downeys and the rest are mistaken—not one word of + truth in their testimony unless Job Davis wrote that will. + </p> + <p> + And yet a learned counsel, who says that his object is to assist you in + finding a correct verdict, says it don't make any difference whether Job + Davis wrote the will or not. I don't think it will in this case. + </p> + <p> + Who wrote the will? I am going to tell you, and I am going to demonstrate + it, so that you need not think anything about it—so that you will + know it; that is to say, it will be a moral certainty. + </p> + <p> + Who wrote this will? I will tell you who, and I have not the slightest + hesitation in saying it. James R. Eddy wrote this will. And why do I say + it? Many witnesses have sworn that they were well acquainted with Mr. + Eddy's handwriting—many. Several of the witnesses here had the + writing of Eddy with them. That writing was handed to the counsel on the + other side, so that they might frame questions for cross-examination. + Those witnesses founded their answers as to peculiarities upon the + writings given to the other side, and not on the writing in this will—just + on the writings of letters and documents they had in their possession, and + that we handed to the opposite counsel. Now, what do they say? Every + witness who has testified on that subject said that Eddy had this + peculiarity: First, that whenever a word ended with the letter "d," he + made that "d" separate from the rest of the word. + </p> + <p> + And, gentlemen, there are twenty-eight words in this short will ending + with the letter "d"; clearly, unequivocally, in twenty-seven of the words + ending in "d," the "d" is separate from the rest of the word. + </p> + <p> + I do not include the twenty-eighth, because there is a little doubt about + it. The testimony is unvarying, except the writing that Eddy has done + since he has been found out to be the forger of that will. Nobody has + sworn that he had a letter from him in which that is not the fact, unless + that letter was written since the institution of this suit. Twenty-seven + of these words end with "d" and the "d" is made separate from the rest of + the word. Will Judge Woolworth please tell the jury whether any witness + testified that Job Davis made these separate from the rest of the word? + Poor Job, dead, and his tombstone is being ornamented with "guive," and he + is now made to appear as an ignorant nobody. + </p> + <p> + Twenty-eight words ending with "d." Now, if that were all, I would say + that might be an accident—a coincidence, and that we could not build + upon that as a rock. I would say we must go further, we must find whether + any more peculiarities exist in Eddy's writing that also exist in this + will. We must be honest with him. Now, let us see. He always had the + peculiarity of terminating that "d" abruptly, down just above the line, or + at the line, lifting his pen suddenly, making no mark to the right. Every + one of the "d's" in the will is made exactly that way. Corroboration + number two. These twenty-seven witnesses, the "d's," swear that Eddy is + their father, that they are the children of his hand, that he made them. + </p> + <p> + Another peculiarity: They say that Eddy always made a double "l" in a + peculiar manner. The last "l" came down to the line of the up stroke, and + that "l" as a rule stopped there. It did not go on to the right—a + peculiarity. Now, let us see. In this will there are nine words that end + with a double "l" (and I want you to look at that when you go out); each + one is made exactly the same way—each one. Nine more witnesses that + take the stand and swear to the authorship of this will. + </p> + <p> + Has anybody shown that that was Job Davis's habit? Poor, dead dust cannot + swear; nobody has said that. Another peculiarity is that Eddy made a "p" + without making any loop to the right in the middle of it. Now and then he + makes one with a loop, but his habit is to make one without. Moses Downey + swore that Job Davis made a "p" with three loops, a loop at the top, a + loop at the bottom and a loop in the middle. That is exactly what he + swore, and he was the one who taught Job to write; and he said he made his + letters carefully, he closed his "a's" at the top, he made his "o's" + round, he made his "h's" after the orthodox pattern, he was all right on + the "b's"—your witness. + </p> + <p> + Now, gentlemen, you remember how that "p" looks, without any loop; and + there are twenty-one "p's" that have no loop to the right—twenty-one + in this will. Twenty-one more witnesses, and every one of them is worth a + hundred Sconces, with his sheep and hogs floating in the air. Twenty-one + witnesses that swear to the paternity of this will. Moses Downey, your own + witness, swears that Job made a "p" with three loops. There is not a "p" + in the will with three loops, and there are twenty-one without any, and + the evidence of all the witnesses on our side was that it was his habit to + make "p's" without any loop, and they were given the papers that they + might cross-examine every one. + </p> + <p> + Now, do you see, we are getting along on the edge of demonstration. + </p> + <p> + These things cannot conspire and happen. They may in Omaha, but they can't + in Butte, or even in Salt Creek township. Nature is substantially the same + everywhere and I believe her laws are substantially the same everywhere, + from a grain of sand to the blazing Arcturus; everywhere the probabilities + are the same. Let us take another step. + </p> + <p> + It is also sworn by intelligent men who have the writing of Eddy in their + possession, (writing shown to the other side) that it was his habit to use + "a's," "o's" and "u's" indiscriminately. For instance, "thut" that, you + all remember in the will. When you go out you will see it. He often uses + an "o" where an "a" should be, an "a" where a "u" should be, a "u" where + an "a" or "o" should be; in other words, he uses them interchangeably or + indiscriminately. How many cases of that occur in this will? Twenty-two—twenty-two + instances in this will in which one of these vowels is used where another + ought to have been used. + </p> + <p> + Twenty-two more witnesses that James R. Eddy wrote this will. Twenty-two + more. They have taken the stand; they won't have to be sworn, because they + can't lie. It would be splendid if all witnesses were under that + disability—that they had to tell the truth. That cannot be answered + by logwood ink. Eddy made "p's" just the same, whether he used logwood or + nigrosin, and he used his "a's" and "o's" and "u's" indiscriminately, no + matter whether he was writing in ink, red, blue, brown, iron, Carter's, + Arnold's, Stafford's, or anybody else's. Another witness testified that he + used "r" where he ought to use "s," and that he used "s" where he ought to + use "r," or that he made his "r's" and "s's" the same. Many instances of + that kind occur in this will, and every "r" says to Eddy, "you are the + man"—every one. Every "s" swears that your will is a poor, ignorant, + impudent forgery. + </p> + <p> + That is what it is—the most ignorant forgery ever presented in a + court of justice since the art of writing was invented. It comes in + covered with the ear marks of fraud. And yet I am told that it requires + audacity to say that it is a forgery. What on earth does it require to say + that it is genuine? Audacity, in comparison with what is essential to say + that it is genuine, is rank meekness and cowardice. Words lose their + meaning. All swear that Eddy scattered his periods with a liberal hand, + like a farmer sowing his grain. Now, we will take the twenty-third line of + the will. "To their use (period) and (period) benefit (another period) + forever (another period)"; twenty-fifth line: "Davis (period) and (another + period) Job (another period) Davis (another period) of (another period) + Davis (another period) County (another period)." What a spendthrift of + punctuation this man was! And yet he was well educated, studying algebra, + going to the Normal school in Iowa, champion speller of the neighborhood. + Every period certifies and swears that Job Davis did not write that will. + He had studied grammar. Punctuation is a part of grammar and no one but + the most arrant, blundering, stumbling ignoramus, would think of putting + six or eight periods along in a sentence, and then leaving the end of that + sentence naked without anything. Another peculiarity is, Mr. Eddy uses "b" + and "h" interchangeably. He makes a "b" exactly like an "h," makes an "h" + exactly like a "b." You can see that all through the will. There are + several instances of it, and each one says that Job Davis did not write + it. Downey says he did not write that way, and each one says that Mr. Eddy + did write it, and nobody else. + </p> + <p> + I am not through yet. The testimony is that Eddy was a poor speller. + </p> + <p> + Now, the learned counsel, Mr. Dixon, says that in this case we must be + governed by the probable, by the natural, by the reasonable—three + splendid words, and they should be in the mind of every juror when + examining this testimony. Is it natural, is it probable, is it reasonable? + We have shown that Eddy was the poorest speller in the business. Whenever + they went to a spelling match, at the first fire he dropped; never + outlived, I think, the first volley. And one man by the name of Sharp + distinctly recollects that they gave out a sentence to be spelled: "Give + alms to the poor," and Eddy had to spell the first word, give; and he + lugged in his "u" with both ears—"guive," and he dropped dead the + first fire. The man remembers it because it is such a curious spelling of + give; and if I had heard anybody spell it with a "u" when I was six years + old it would linger in my memory still. + </p> + <p> + Now, let us take Judge Dixon's test. It is a good one, well stated, and it + is for you to decide whether the misspelled words were misspelled by a + good speller or a poor speller. If you say Job Davis wrote it, then you + are unnatural, unreasonable and improbable. + </p> + <p> + Isn't it altogether more natural, more reasonable, more probable, to say + that a bad speller misspelled the words than that a good speller did? + </p> + <p> + Let us stick to his standard, and see if Eddy spelled give "guive"—and, + gentlemen, you cannot find in all the writing of James R. Eddy, written + before he was charged with this forgery, where the word give appears, that + it is not written with a "u"—I defy you to find a line in the world + where "given" is "guivin." Now, let us go another step. Everybody admits + that he was a poor speller, and is it not more reasonable to say that he + wrote the will on the spelling, than that the champion speller did? We + have some more evidence on Mr. Eddy as good as anything I have stated. + </p> + <p> + Now, do not be misled because I am a sinner. Let us stick to the facts. + William H. Davis testified to the spelling of Eddy, and while he + testified, held in his hand a will that he had seen James R. Eddy write. + In this will there were twenty words misspelled; shall, "shal" and in the + James Davis will, shall "shal." Good! Whether, in our will "wherther"; in + the other will, "wherther"—just the same; sheet of paper, "sheat" in + our will; "sheat" in the other will; in our will "guive," in that "guive." + Did Job Davis rise from the dead and write another will? Was one copied + from the other, and the copy so slavish that it was misspelled exactly the + same? You cannot say it was entirely copied, for now and then a word, by + accident, is right. + </p> + <p> + Judge Dixon tells you that Eddy did not disguise his spelling. Good Lord! + How could he disguise his spelling? He spelled as he thought was right. No + man of his education would think of disguising his spelling. He knows how + to spell give; he believes it is with a "u" still There is a prejudice + against "u" since he was charged with forgery, and so he has dropped it; + but he thinks it is right, nevertheless. Now, isn't it perfectly + wonderful, is it not a miracle, that James R. Eddy made exactly the same + mistakes in spelling and writing one will that Job Davis did in writing + another? + </p> + <p> + Isn't it wonderful beyond the circumference of belief, that a good speller + and bad speller happened to misspell the same words? It won't do. There is + something rotten about this will, and the rotten thing about it is that + James R. Eddy wrote it, and he wrote it about March, 1890. That is when he + wrote it, and he let the proponent in this case have it. We will get to + that shortly. So, gentlemen, I tell you that every misspelled word is a + witness in our favor. There is something more. Eddy uses the character "&" + in writing, instead of writing "and." The will is full of them; and it is + stated that sometimes when he endeavors to write out the word "and" he + only gets "an," and that peculiarity is in this will. "An" for "and"; that + you will find in the seventeenth line in the last word of the line. + Colonel Jacques swore that one of Eddy's misspelled words was the word + "judgment"; that he put in a superfluous "e," and in this case here is + "judgement"—"shall give the annuity that in the judgement of the + executors shall be final;" there is the superfluous "e"—judgement. + Now, there is another. Their witnesses swore that as a rule he turns the + bottom of his "y's" and "g's" to the left. Now, you will find the same + peculiarity in this will, and the amusing peculiarity that he turns the + "g's" a little more than he does the "y's." I don't want these things + answered by an essay on immutable justice. I want them to say how this is. + Another thing, how he makes a "t," with a little pot hook at the top, and + that hook has caught Mr. Eddy. You will find them made in the will, + exactly, where the "t" commences a word—where it is what we call the + initial letter. And what else? When he makes a small "e" commencing a + word, he always makes it like a capital "E," only smaller. That is the + testimony, and that happens in this will and it happens in the papers and + letters. + </p> + <p> + Now, I say, that all these peculiarities taken together, the same words + misspelled, the same letters used interchangeably, the same mistakes in + punctuation, the same mistakes in the words themselves—all these + things amount to an absolute demonstration. So, I told you, he uses the + capital "I" with the word "is" and that he does twice in this will. + </p> + <p> + Here are hundreds, almost, of witnesses that take the stand and swear that + Eddy is the author of that will. He wrote it—every word of it. He + negotiated with John A. Davis for it, and I will come to that after a + little. And how do they support this will that has in it the internal + evidence that it was written by James R. Eddy? Why do I say it is + impossible that he should have written it, and the will should be genuine? + Because at the date of that will, or the date it purports to bear, Eddy + was only eight years old. And we don't know the real date, gentlemen, of + that will yet. My opinion is that it was dated by mistake, so that it came + on a date that Davis was not there, or came on a day that was Sunday, and + then they folded up that will, and scratched it and rubbed it until the + date is absolutely illegible, and nobody can say whether it is June, July, + or January. There was a purpose. The day may have been Sunday, or they may + have afterward ascertained that he was not there. It is a suspicious + circumstance that the day is left loose so they can have a month to play + on, maybe more. Now, they say, can you impeach Sconce? + </p> + <p> + Every misspelled word in the will impeaches Sconce, ever; period impeaches + Sconce, every "a" that is used as "o" impeaches him, and "o" as "u"; every + "b" that is made like an "h" impeaches him, every "h" that is made like a + "b" impeaches him. + </p> + <p> + In other words, every peculiarity of James R. Eddy that appears in that + will impeaches J. C. Sconce, Sr.—Captain Sconce. There is a thing + about this will which, to my mind, is a demonstration. It may be that it + is because I am a sinner, but I find, and so do you find it in the second + initial of Sconce, in the letter "C." There are two punctures, and you + will find that exactly where the punctures are there is a little spatter + in the ink—a disturbance of the line, in the capital first; in the + small "c" there is another puncture and another disturbance of the line. + Professor Elwell says that these holes were made afterwards. Let's see. + There is a hole, and there is a splatter and a change of the line. There + is another hole and there is another change. There is another hole and + there is another change. What is natural? What is reasonable? What is + probable? It is that the hole being there, interrupted the pen, and + accounts for the diversion of the line, and for the spatter. That is + natural, isn't it? but they take the unnatural side. They say that these + holes were made after the writing. Would it not be a miracle that just + three holes should happen to strike just the three places where there had + been a division of the line and a little spatter of the ink? Take up your + table of logarithms and figure away until you are blind, and such an + accident could not happen in as many thousand, billion, trillion, + quintillion years as you can express by figures. + </p> + <p> + Three holes by accident hitting just the three places where the pen was + impeded and where the spatters were. Never such a thing in the world. It + might happen once. Nobody could make me believe that it happened twice—that + is, a hole might happen to get where the pen was interrupted once; as to + the second hole, I would bet all I have on earth, as to the third hole, I + know it did not. I just know it did not. And yet Mr. Elwell says that + these holes were made afterwards, and he goes still further, and says that + there is not any trouble in the line. If anybody will look at it, even + with the natural eye, they can see that there is; and, in a kind of + diversion, they called Professor Hagan, when he called attention to it, + Professor Pin-holes and pin-hole expert. He might have replied that that + was a pin-head objection. + </p> + <p> + Professor Elwell accounts for all the dirt on this will by perspiration, + all on one side and made by the thumb, and although there were four + fingers under it at the same time, the fingers were so contrary they + wouldn't perspire. This left the thumb to do all the sweating. I need not + call him a professor of perspiration, for that throws no light on the + subject; but I say to you, gentlemen, that those marks, those punctures, + were in that paper when Sconce wrote his name. Sconce says they were not—he + remembered. He has got a magnificent memory. I say that even that shows + that he is not telling the facts. + </p> + <p> + Now, what else? We went around among the neighbors. He was charged with + passing counterfeit money, with stealing sheep, with stealing hogs, with + stealing cattle and with stealing harness. + </p> + <p> + Mr. Woolworth. It was not proved that this man was accused of + counterfeiting, of passing counterfeit money. + </p> + <p> + Mr. Ingersoll. I tell you how I prove it. A man by the name of Lanman was + on the stand. He swore he was acquainted with Sconce's reputation. Colonel + Sanders asked him who he had ever heard say anything about it. He said + Lewis Miller and Abraham Miller and a man by the name of Hopkins and + several others. What did they say? I asked them afterwards, and among + other things I recollect he was charged with passing counterfeit money, + stealing hogs, stealing sheep, stealing harness, killing another man's + heifer in the woods. I don't think I am mistaken, but if I am I will take + counterfeit money back. I won't try to pass counterfeit money myself, + although a sinner. + </p> + <p> + Mr. Woolworth. (Interrupting): He was not charged with killing a heifer. + </p> + <p> + Mr. Ingersoll. No, no; the heifer was there. I have a very good memory; I + suppose it comes from the habit of taking no notes. Lanman was the man, + and while we are on Sconce there is a thing almost too good to be passed. + </p> + <p> + Mr. Jackson was on the stand, Senator Sanders asked him, "Whoever told you + anything against him?" "Well," Jackson answered, "I asked Hopkins—" + "Who else?" "Well," he said, "I had a private conversation, I don't like + to tell." "You have got to tell." Mr. Jackson said to the Court: "Must I + tell; it was a private conversation." "You must tell." "Well," he said, + "it was with Mr. Carruthers, one of the counsel for proponent;" and he + said that what Mr. Carruthers said had more influence upon him than + anything else, because Carruthers was in a position to know. + </p> + <p> + Mr. Sanders. (Interrupting). Were those his exact words? + </p> + <p> + Mr. Ingersoll. Yes, that he was an attorney. I tell you that was a + death-blow; that came like thunder out of a clear sky, when you haven't + seen a cloud for a month. + </p> + <p> + Besides that he was impeached in open court. What else? The witnesses that + came to the rescue of Sconce; how did they rescue him? They lived down + there and never heard anything against him. All these rumors, thick in the + air, the bleating of sheep following him wherever lie went; the low of + cattle and yet these people never heard it. Tried for stealing harness, + they never heard of it They were not acquainted with him. They said that + they had some personal dealings with him and he was all right and one man + endeavored to draw a distinction between truth and honesty. A man could be + a very truthful man and a very dishonest man. Just think of that + distinction, a man of truth but dishonest. That won't do. Even Senator + Sanders said: "Some accusations, probably a dozen," to use his excellent + language—what memories we have! Let me read the exact words: "Some + accusations; probably a dozen or more, of stealing sheep and hogs <i>lit + on</i> Sconce." + </p> + <p> + Mr. Sanders: I didn't say that. + </p> + <p> + Mr. Ingersoll. I don't insist; but those are the exact words I remember. + And don't you remember that he went into a kind of homily on neighborhood + gossip, that hardly anybody escaped? I believe a good many of this jury + have escaped and a good many in this audience have escaped. You can pick + out a great many men that a dozen accusations of stealing hogs and sheep + and heifers have not lit on. + </p> + <p> + Then, there is another thing about Sconce that I don't like, gentlemen. + Sconce, in giving the history of the affair in Arkansas, was asked if he + didn't say, "Did I say that Davis' name was on it when I signed it?" and + right there he skulked and stated under oath that when he said that he + alluded to the photograph. Could he by any possibility have alluded to the + photograph when he said: "Did I say that Davis's name was on it when I + signed it?" Did he ever sign the photograph? No; he never signed the + photograph. Davis never signed the photograph, and if he ever said those + words he said them with reference to the original will, and he knows it. + And yet, in your presence, under oath, he pretended that when he made that + remark he alluded to the photograph. I wish somebody would reply to that + and tell us whether, as a matter of fact, he alluded to the photograph. + </p> + <p> + Now, Mr. Sconce, as you know, has the most peculiar memory in the world. + He remembers things that had nothing whatever to do with the subject, + photographed in all details, everywhere; and yet, gentlemen, your + knowledge of human nature is sufficient to tell you that that kind of + memory is not the possession of any human being. + </p> + <p> + Thousands of people imagine that detail in memory is evidence of truth. I + don't think it; if there is something in the details that is striking, + then there is; but naturalness, and, above all, probability, is the test + of truth. Probability is the torch that every juryman should hold, and by + the light of that torch he should march to his verdict. Probability! Now, + let us take that for a text. Probability is the test of truth. Let us + follow the natural, let us follow the reasonable. + </p> + <p> + At the time they say this will was made, Andrew J. Davis had removed from + Iowa years before; had settled, I believe, in Gallatin county. His + interests in Iowa were nothing compared with his interests in this + Territory at that time. From the time he left Iowa he began to make money; + I mean money of some account. He began to amass wealth. He was, I think, a + sagacious man. + </p> + <p> + Judge Dixon says that he was a man of great business sagacity. I am + thankful for that admission. In a little while he became worth several + hundreds of thousands of dollars. Afterwards he acquired millions. Now, + during all that time, from the 20th of July, 1866, up to the day of his + death, he never inquired after the James Davis will. It is a little + curious he never wrote a letter to James Davis and said, "Where is the + will, have you got it?" Not once. They have not shown a letter of that + kind, not a word. Threw it in the waste-basket of forgetfulness and turned + his face to Montana. Years rolled by, he never wrote about it, never + inquired after it. + </p> + <p> + They have brought no witnesses to show that A. J. Davis ever spoke of the + will; not a word. Gentlemen, let us be controlled by the natural, by the + reasonable, by the probable. + </p> + <p> + In 1868 one of the executors died—Job Davis. I think Colonel Sanders + said that if a man of Judge Davis's intelligence, knowing what a difficult + thing a will is to write, should have allowed Mr. Knight, a Kentucky + lawyer, to draw his will, who had not had much practice, why, he is + astonished at that, and in the next breath tells you that Andrew J. Davis + employed a twenty-two year old boy who could not spell "give" to draw up + his will in 1866. Isn't it wonderful what strange things people can + swallow and then find fault with others! Now, remember: + </p> + <p> + In 1868 Job Davis died; then there was only one executor to that will. A. + J. Davis went on piling up his money, thousands on thousands. Greed grew + with age, as it generally does. Gold is spurned by the young and loved by + the old. There is something magnificent after all about the extravagance + of youth, and there is something pitiful about the greed of old age. But + he kept getting money, more and more, and in '85 he had sold the Lexington + mine. He was then a millionaire. In '85, I think. They say he sold that + mine in '81, maybe he was then a millionaire. There was the will of '66 + down in Salt Creek township, used as a model for other wills, for the + purpose of teaching the neighbors spelling and elocution, to say nothing + of punctuation. They got up little will soirees down there—will + parties—and all the neighbors came in and Mrs. Downey read it aloud + and wept when she thought it was the writing of her brother Job. That + accounts for the tear drops, I suppose; the round spots on the will. 1885; + Andrew J. Davis worth millions. Then what happened? Then James Davis, the + other executor, died. Then there was a will floating around down in Salt + Creek township, sometimes in a trunk, sometimes in a box, other times in + an old envelope, other times in a wrapper, and when I think of the shadowy + adventures of that document it makes me lonesome. James is dead, poor Job + nothing but dust; a will down there with no executors at all; and A. J. + Davis did not know in whose possession it was, and never wrote to find + out. Let us be governed by the natural, gentlemen, by the probable. Never + found out, never inquired, and after James Davis died he lived four years + more. I think James Davis died on the 5th of December, 1885, then he lived + a little more than three years after he knew that both executors were dead + and did not know whether the will existed or not. Judge Dixon tells us + perhaps if he had made a will before he died it would have been different + from this. I think perhaps it would. What makes him think that it would + have been different? If that will existed in Salt Creek township he knew + it, and he knew it in 1885, 6, 7, 8, 9, and when death touched with his + icy finger his heart he knew it then, and if he made that will in '66, it + was his will when he died unless it had been revoked. He knew what he was + doing. + </p> + <p> + I tell you there was no will down in Salt Creek township at all; there + wasn't any here. There have been a good many since. Now, where is the + evidence that he ever thought of this will, that he ever spoke of it? + </p> + <p> + What else? He appointed three executors of his will, that is, in '66, if + he made it, and in that he provided that a like maintenance should be + given to Thomas Jefferson, Pet Davis and Miss Bergett, all three of Van + Buren County, State of Iowa. What else did he say? That the executors + should have the right of fixing that amount, and whatever amount in their + judgment should be fixed should be final. What is the legal effect of + that? The legal effect of that is that the estate could not have passed to + John A. Davis until the last who had a life interest was dead. The + proceeds could have been taken, every cent of them, from that estate and + given to the three persons for life maintenance, and the youngest of those + persons was four years old. John A. Davis would have had to wait seventeen + years. And do you think that A. J. Davis ever made a will like that, + putting it into the power of two executors to divert the entire income to + certain persons and that there could be no division until they were all + dead. + </p> + <p> + Now, another improbability. Recollect, all the time, that we are to be + governed by reason and naturalness. Now, then, it was claimed that Judge + Davis held certain relations with a certain Miss Caroline Bergett. It was + claimed that a daughter known as Pet Davis was his. It was also claimed + that a boy, Thomas Jefferson Davis, was his son. Nobody tells the truth in + this will although it has been alluded to and argued as well, I think, as + could be. There is this trouble in the will that though the boy Jeff was + never in Van Buren County until he was twelve years old—was never + there until six years after the will was dated, yet his supposed father + describes him as of Van Buren County. + </p> + <p> + Next, Miss Caroline Bergett had married a man by the name of W. V. Smith + in 1853, and in 1858, W. V. Smith took his wife and children and moved to + Texas—eight years before this will was made, and yet A. J. Davis + forgot her name, forgot her residence, forgot the residence of the boy + that was imputed to him; that of itself is enough to show that he was not + present when the will was made. If there is anything on earth that he + would remember this is it, and you know it. Although Mrs. Downey could not + remember when she was married or when her first child was born, she does + remember the time it took her to dust the room where there was a + clothes-press, a table and three or four chairs. She recollects that. + </p> + <p> + Another improbability: + </p> + <p> + John A. Davis, the proponent, had charge of the Davis farm down in Iowa + and stayed there for six years after this alleged will was made, and + although he was acquainted with the Quigleys, the Henshaws, the Sconces, + and all the aristocracy of the neighborhood, he says he never heard of the + existence of this will which so many people of that section talked about. + What a place for keeping secrets! + </p> + <p> + Senator Sanders says that the reason Judge Davis made his will in Salt + Creek township was because in that township they knew about this woman or + these women and these children, and he didn't want to go into any other + community and make his will. + </p> + <p> + Any need of publishing his will? Any need of reading any more than the + attesting clause to the attesting witnesses? Any need to divulge a line? + None. Ah, but Senator Sanders said that he wanted to keep the secret. That + is the reason he left the will upon that table and rode away in a + debonnair kind of style on his roan horse with the bobtail, leaving a + congregation of Salt Creek loafers to read his will. He wanted to keep it + secret; hoped that it would never get out. Imagine the scene, Job Davis + writing the will; Mrs. Downey with a duster tucked under her arm like the + soubrette in a theatre. Well, when he was writing the will she was looking + over his shoulder and read the will as fast as he wrote it. That makes me + think of the fellow who was writing a letter and there was a man looking + over his shoulder, so he said: "I would write more but there is a dirty + dog looking over my shoulder," and the fellow said: "You are a liar." + </p> + <p> + Everybody read it. Mrs. Downey read it; she read it as Job wrote it; then + he read it aloud; and then he went and got Sconce and read it again; then + in comes Glasgow and he read it. I think Mrs. Downey must have read this + will ten or twelve times. + </p> + <p> + Mr. Myers. She said twenty-five. + </p> + <p> + Mr. Ingersoll. Oh, yes; twenty-five, because it was in Job's handwriting; + and whenever the twilight crept around the farm bringing a little sadness, + a little pathetic feeling, she would light a candle and hunt the will, and + read it just to think about Job. She would see the words "guive" and + "wherther" and all that brought back Job, and she used to wonder + "wherther" he was in Paradise or not. + </p> + <p> + Now, John A. lived down there and knew all these people and never heard of + that will. + </p> + <p> + What do you think of that? Why is it that John never got any information + from Sconce? Sconce, who saw the will written and who was one of the + attesting witnesses. Why didn't he hear of it from old Downey? Why didn't + he hear of it from the Quigleys or the Dotsons? Why didn't he hear of it + in Salt Creek township, when it was seen and read and read and read again + until I think many of them knew it by heart? And yet the only person + really interested was walking around unconscious of his great good + fortune, and nobody ever told him. There is another thing: For four months + after Andrew J. Davis died nobody told John about the will. Nearly four + months passed away; I think he died on the 11th of March, 1890, and this + will came to John on the first day of July. All the neighbors knew it. + Just as soon as A. J. died, they all said: "John is coming right into the + fortune now" only nobody told John; and the first man we find with the + will is James R. Eddy, and the next man we find with the will is John A. + Davis, the proponent. When John A. Davis saw this will, leaving him four + or five million dollars, it did not take much to convince him that the + signature was genuine. Human nature is made that way. If it was leaving + four or five millions to either of us, including the sinner who addresses + you, the probability is that I would say, "Well, that looks pretty genuine—pretty + genuine." And then if I could get a few other fellows to swear that it + was, I would feel certain, and say, "That is my money." + </p> + <p> + Now, another improbability. All the evidence shows that Judge Davis was a + business-like, quiet, methodical, careful, suspicious man, secretive, + keeping his business to himself, keeper of his own counsels; and when he + did make a will it was sealed; it was given to one of his friends to put + away, and to keep. It did not become the common property of the + neighborhood. He did not mount his roan horse and ask the people of the + community to look at it. He was a methodical, business-like man, and I + suppose many of you, gentlemen of the jury, knew him; and I shall rely + somewhat on your knowledge of A. J. Davis, for you to say whether he made + this will, whether in 1866 he left his old father naked to the world; + whether he cared nothing for brothers and sisters; whether he cared + nothing for the children of the sister that raised him. I leave it for you + to say. You probably know something about this matter. Andrew J. Davis, + when he was a child, when all the children were gathered around the same + knee, the children that had been nourished at the same tender and holy + breast, he would not have done this then. If some good fortune came to + one, it was divided. + </p> + <p> + How beautiful the generosity, the hospitality of childhood! But as they + grow old there comes the love of gold, and the love of gold seems to have + the same effect upon the heart that it does upon the country where it is + found. All the roses fade, the beautiful green trees lose their leaves, + and there is nothing in the heart but sage brush. And so it is with the + land that holds within the miserly grip of rocks what we call the precious + metals. + </p> + <p> + The next question in the case is the Knight will. Was any such will made? + And I say here to-day, knowing what I am saying, I never saw upon the + witness stand a man who appeared to be more candid, more anxious and + desirous of telling the exact truth than E. W. Knight, and from what I + have heard there is not a man in Montana with a better reputation. He has + no interest in this business, not one penny; and it was months and months + after the death of Judge Davis that we knew such a will ever existed—that + is, on our side. Either Mr. Knight was telling what he believed to be + true, or he was perjuring himself. No ifs and ands about it. He is a man + of intelligence and knows what he is saying. He swears that A. J. Davis + made a will. + </p> + <p> + And what else does he swear to? That there was also the draft of a will, + which gave away the mine or provided for its working, and then at the end + of that draft, provided that the rest of the property should be divided in + accordance with the statute. Thereupon Mr. Knight told him: "Your heirs + would interfere by injunction, and you had better bequeath your whole + property and fix the amount to be expended in the development of the + mine." Thereupon he made another will, and that will was signed. + </p> + <p> + Now, Mr. Knight knows whether it was signed or not. The will was signed or + Mr Knight committed perjury knowingly, willfully and corruptly. What does + he say? That it was signed. What else? That it was attested. Then these + gentlemen came forward with Mr. Talbot, who says that Knight said that + when Davis came to the bank to get the will he thought he was going to + execute it. That is, the idea being, it was not signed. + </p> + <p> + What was it attested for if it was not signed? That is absurd to the verge + of idiocy. But they say that Mr. Knight is not corroborated. Let us see. + He says that Andrew J. Davis made a will. Mr. Keith swears that A. J. + Davis made a will. Knight says that Davis went out and brought Keith in, + and Keith swears that he lived next door and A. J. Davis did come in there + and get him and he knows the time on account of the sickness of his child. + Corroboration number two. Knight swears that Davis then went for another + man. Keith says that he did go and get Caleb Irvine. Corroboration number + three. Knight said one of the men who signed the will was in his working + clothes. Corroboration number four. Knight swears that Davis read the + attesting clause. Keith swears the same. Keith swears that Davis signed + it, that he signed it, and then Irvine signed it. What more? He swears + that Knight wrote it, and he was writing it when he went in. And yet they + have—and I will use an expression of one of the learned counsel—the + audacity to say that Mr. Knight has not been corroborated. + </p> + <p> + And they would have you believe that Knight took that will over to Helena + and put it in the safe when it was not signed by A. J. Davis, and they + would make you think besides that, that it was attested by two witnesses, + and that two witnesses had to say that they saw A. J. Davis sign it, that + he signed it in their presence, and that they attested his signature in + his presence and in the presence of each other. They proved a little too + much, gentlemen. They proved that by Talbot. They proved that by Andrew J. + Davis, Jr., who expects to fall heir to all that is taken, and they proved + it also by John A. Davis, the proponent. + </p> + <p> + Recess. + </p> + <p> + May it please the Court and gentlemen: When we adjourned I was talking + about the testimony of Mr. Knight, and the making of the Knight will. The + evidence is, the way that will came to be made, or what started it, is, as + follows: A. J. Davis borrowed of the First National Bank of Helena forty + thousand dollars to put in the mines, and Governor Hauser remarked when he + got the money: "Another old man going to fool with mines until he gets + broke." And that it seems piqued A. J. Davis, touched his vanity a little, + and then he said: "That mine shall be developed whether I live or die. I + am satisfied that it is a good mine, and I am going to make a will and I + am going to provide in that will for the mine being developed." And + thereupon he talked with Mr. Knight. And finally Knight drew up a draft of + a will, according to his testimony, providing for the working of that + mine. And what did he say when he got through with it? "Now as to the + balance of the property, let it be divided according to law. That makes a + good will." That is what he said. Then Mr. Knight said to him: "If you + make the will that way it may be that the heirs will come in and enjoin + the working of the mine on the ground that it is a waste of money. You had + better make a full will and dispose of all your property as you may + desire, and fix the amount to be used in the devolopment of that mine." + </p> + <p> + Now, this is either true or false. It is true if Mr. Knight can be + believed; and he can be believed if any gentleman can be trusted. + </p> + <p> + What more? Knight says that A. J. Davis made the memoranda from which to + draw that will, had his manager come, and in that will it told how the + shafts should be run, how much work should be done, and charged his + trustees to do development work up to a certain amount. + </p> + <p> + Is that all born of the fancy of this gentleman? And can you believe that + a man like Mr. Knight, who has run the largest bank in Montana for + twenty-five years—can you believe that such a man, who is not in any + necessity, who is not in need of money, comes here and swears to what he + knows to be a lie, and makes this all out of his own head, carves it out + of his imagination? + </p> + <p> + The second will was made, the second will was signed, the second will was + attested, the second will was given Mr. Knight to keep. They say it was + not signed, and yet Mr. Knight swears he told one man about it. He told + Mr. Kleinschmidt, so that if anything happened to him, Knight, he would + know that Knight had in that vault the will of Andrew J. Davis. Do you + think he would have done that if the will had not been signed, if it were + worth only waste paper? And yet they are driven to that absurdity for the + purpose of attacking the evidence of this man. It will not do. + </p> + <p> + Judge Knowles said that in a conversation at Garrison, he said that in the + will the mine was left to Erwin Davis, and the reason given for it was + that Erwin Davis was a business man. Now, the only way that can be + explained, is one of two ways. One is that Judge Knowles has gotten two + matters mixed; the other is that he is absolutely mistaken. + </p> + <p> + Judge Knowles, the President of the First National Bank of Butte—Judge + Knowles, who has been the attorney of Andrew J. Davis, Jr.—Judge + Knowles had this conversation, or some conversation, with Knight; and why + would Knight have taken pains to tell him a deliberate falsehood? + </p> + <p> + There is something more. After all this occurred, Andrew J. Davis, Jr. + went to Mr. Knight and asked him to write out what he remembered about + that will, and Knight dictated it on the spot and sent it to him. + </p> + <p> + Where is that letter? Here it is. I want to read that letter to this jury. + That was a letter written long ago. A letter written before this will was + filed in this court. A letter written before Mr. Knight knew that A. J. + Davis, Jr. had any will. A letter written before Knight imagined there + could ever be a lawsuit on the subject. Andrew J. Davis Jr. went to him + and asked him to write out what he knew about that will, and he turned, + according to his own testimony, and dictated it, and sent it to him, like + a frank, candid, honest man; and before I get through I will read that + letter, and when it is read I want you to see how it harmonizes absolutely + and perfectly with his testimony here on the stand. + </p> + <p> + I will draw another distinction. Mr. Knight gave two depositions in this + case. These depositions have not been suppressed like the deposition taken + of Sconce. Not suppressed. Why? Because we are willing that the jury + should read the two depositions and hear his testimony besides, and there + is not the slightest contradiction in the depositions themselves, or + between the depositions or either one of them and his evidence that he + gave here—except two that they claim; and think what immense + contradictions they are. + </p> + <p> + In one deposition he says that A. J. Davis left some bequests to some + aunts. Mr. Knight swears on the stand that he never said aunts, he said + sisters, but if he did say aunts he meant sisters, because he never heard + of his having any aunts, and yet that is held up as a contradiction, and + to such an extent that you are to throw away the testimony of this man. + </p> + <p> + Now, here is the letter. This will was filed July 24, 1890, and when he + wrote this letter he did not know that A. J. Davis Jr. knew of a will, or + that John A. Davis knew of a will. And this is what he writes: + </p> + <p> + Helena, Montana, July 22, 1890. + </p> + <p> + I beg to say that some time in 1877 or 1878, I made a draft of a will for + your uncle Andrew J. Davis, which he duly executed, and left the same on + file with me, as a special deposit for two or three years, when the same + was canceled and destroyed; when I was led to believe and to conclude that + he had made and executed a will to supersede and take the place of that. + </p> + <p> + That explains Talbot's testimony. Instead of saying to Talbot that A. J. + Davis came there, as he thought, to execute the will, and destroyed that + will, it not being signed, what he said was that he destroyed the will, + but from the way he acted he thought he was going to make another, that he + was going to execute a will; and this is exactly what Mr. Talbot said. To + execute a will, and it took a re-direct examination to swap the "a" for + "the." + </p> + <p> + I cannot satisfactorily recall the considerations and provisions of said + will drawn by me, but the main burden and desire was that the work on the + mine known as the Lexington, should be continued to a certain amount of + development, and that the mill should be carried on under a certain + management, and after providing for the payment of his just debts, he made + certain bequests naming certain nephews and nieces, running from ten + thousand to fifteen thousand dollars each, and you are especially named + for the sum of twenty-five thousand dollars, and if the estate exceeded in + value the net sum of five hundred thousand dollars, then those bequests + were to be increased; and if in excess of one million dollars, the further + increase was named and specified. + </p> + <p> + That is the letter he wrote before he ever knew there would be this suit; + before he knew of the existence of this will. + </p> + <p> + A certain boy named Jefferson—claimed to be his son—was given + the sum of twenty thousand dollars to be paid to him in yearly sums of + five thousand dollars for four years, and the same provision as to a + certain girl, claimed to be his child. + </p> + <p> + Is that not exactly what he swore to on this stand? + </p> + <p> + Certain executors named E. W. Knight, S. T. Hauser, and W. W. Dixon, each + to receive the sum of ten thousand dollars for services. + </p> + <p> + Yours truly, + </p> + <p> + E. W. KNIGHT. + </p> + <p> + Now, gentlemen, they were informed of the existence of that will and of + its destruction, and were so informed before John A. Davis filed this + will. And when we pleaded this will, John A. Davis pleaded that it had + been republished, and yet no evidence was given in of any republication. + They knew that under the statute of Montana, when a man makes will number + one, and afterwards makes will number two, and afterwards destroys will + number two, that will number one is not revived; that the making of the + second will kills the first, and the destruction of the second kills that, + and leaves the man intestate and without any will. Now, there is the + letter of Mr. Knight—full, free, frank, candid, honorable, like the + man himself. He says there that he does not remember all the provisions, + but he does remember that he provided for some nephews and nieces, and + provided for Andrew J. Davis, Jr., twenty-five thousand dollars, for one + Jefferson twenty thousand, for the girl about the same, and that he + provided also for the executors of the will, and appointed Knight, Hauser, + and Dixon as his executors. That is exactly what he says here. + </p> + <p> + Now, was that will made? Have they impeached Mr. Keith? I tell them now + that they cannot impeach him. He has sworn to the making of that will, + apart and separate from Mr. Knight. Oh, they say, why didn't they bring + Knight in, and prove by him that he then recollected Mr. Keith? What has + that to do with it? Mr. Keith recollected Mr. Knight, swore that he wrote + the will, and that he was writing it when he came in, and swore that he + attested it, that Davis signed it, and Irvine also signed it. What more do + we want on that will? I say, gentlemen, that the will of 1880 ends this + case. There is not ingenuity enough in the world to get around it, and + there was and never will be enough brains crammed into one head to dodge + it. That will was made, and every man on the jury knows it. That will was + executed by Andrew J. Davis, every man of you knows it, and the will was + afterwards destroyed. + </p> + <p> + Now, the question is, did that second will revoke the first will? Had it a + revoking clause in it? E. W. Knight swears it had, and he swears that he + copied it from a will made by an uncle of his named John Knight, and he + had that will in his possession here and in that will there are two + revocation clauses, and Knight swears that he copied those clauses, and + right here it may be well enough to make another remark. When he read the + will to A. J. Davis, and the passage "hereby revoking all wills," Davis + said: "There is no need of putting that in. I never made any other will. + This is the first." Knight said to him, "Well, that is the way, that is + the form, and I think it is safer to have it that way." And Davis said: + "All right; let it go." + </p> + <p> + How do you fix that? There is no way out of it, that the will was made in + 1880, revoking all former wills. What else? The conditions of the will of + 1880, with regard to working the mine, with regard to bequests to nephews, + with regard to bequests to others, with regard to the twenty thousand + dollars given to Jeff Davis, and the twenty thousand dollars given to the + girl; these provisions are absolutely inconsistent with the provisions of + this will of 1866. So on both grounds the will of 1880 destroys, cancels, + and forever renders null and void the will of 1866, even if it had been + the genuine will of A. J. Davis, and the Court will instruct you to that + effect. + </p> + <p> + And after Mr. Keith had testified, the proponents in this case subpoenaed + Mr. Knight, and if they thought that Knight would swear that Keith was not + the man, why did they not put him on the stand? They ran no risk. He is an + honest man. He would tell the truth. I never had the slightest fear in + bringing an honest man on the stand. Never. I want facts, and I hope as + long as I live that I shall never win a case that I ought not to win on + the facts. No man should wish or endeavor to win a case that he knows is + wrong. + </p> + <p> + I say there is not a man on this jury but believes in his heart and soul + this minute that this will was made. You have to throw aside the testimony + of a perfectly good man, and no matter whether what he said about Erwin + Davis to Judge Knowles was true or not—and I must say that I never + saw a witness on the stand in my life more eager to tell his story than + Judge Knowles was. Never. He was bound to get it in or die. He answered + questions over objections before the Court was allowed to pass upon the + objections. Why? Because he is the President of the First National Bank. + Now, without saying that he was dishonest about it, I say he was mistaken. + Knight never said one word of that kind to him. + </p> + <p> + It was impossible that he could have said it. So is Mr. Talbot mistaken. + So is Andrew J. Davis, Jr. mistaken, and so is John A. Davis mistaken. + Think of the idiotic idea that a will, not signed, was given to Knight to + keep, attested by two witnesses, and not signed by the testator. Idiotic! + Now, as I understand it, gentlemen, you will have to find that that will + was made. + </p> + <p> + Now, what is the next great question in this case, and the question that + will be argued at some length, probably, by the other side? And why? + Because it is the first and only point, so far as facts are concerned, + that they have won in this case. Just one. And what is that? Our experts + said that they thought that the ink was nigrosin ink, and the fact that + they wanted a test proves that they were sincere. Their witnesses said + they did not think it was nigrosin ink. Mr. Hodges said it had too much + lustre, but that there was only one way in which it could be absolutely + determined and that was by a chemical test. But, say these gentlemen, or + rather said Judge Dixon, "the moment that ink turned red the whole case of + the contestants was wrecked." Let us see. + </p> + <p> + If there had been no logwood ink in existence—not a particle—after + the 20th day of July, 1866; if, on the night of the 20th of July, 1866, + all the logwood ink on earth had been destroyed and then this ink had + turned out to be logwood, why, of course, it would have been a + demonstration that this paper was written as far back as the 20th of July, + 1866. If it had turned out that it was written in nigrosin ink and that + that had only been invented in 1878, it would have been a demonstration + that the will was a forgery. But you must recollect the fact that it is + written in logwood ink is not only consistent with its genuineness, but + consistent with its being a forgery. Why? There was logwood ink in + existence in 1890, plenty of it, and if Mr. Eddy wrote this will in 1890, + he could have written it in logwood ink; and the fact that it is written + in logwood ink does not show that it was written in 1866. Why? Because + there was logwood ink in existence every year since 1866, till now. + </p> + <p> + Suppose I said that the paper was only ten years old and it turned out + that it was forty, is that a demonstration in favor of the other side? If + it turned out to be ten, it is a demonstration on our side. + </p> + <p> + But if it turned out to be forty, is not that consistent with the + genuineness of the instrument, and also with the spuriousness of the same + instrument? You can see that. Nobody's smart enough to fool you on that. + Nobody. Take the whole question of ink out and the question is still + whether Eddy wrote it or not. Take the ink all out and it is still the + question whether Job Davis wrote it or not. Absolutely, and all the test + proved was, that our experts—some of them—were mistaken about + its being nigrosin ink. Mr. Tolman stated that it was impossible to tell + without a chemical test; that it looked like nigrosin ink and from the + manner in which it seemed to run he thought it was nigrosin ink, but that + it was impossible to tell without a test. Mr. Hodges, their expert, said + it looked to him like logwood ink; that it had too much lustre for + nigrosin, but he added that it was impossible to tell without a chemical + test. That is what he said. Mr. Ames said the same thing, and I appeal to + you, gentlemen, if Mr. Ames did not have the appearance of an honest, of a + candid, and of a fair man. Professor Hagan said that it was nigrosin ink, + but he admitted that the only way to know was to test it. And what else? + Their own expert, Mr. Hodges, said that logwood ink penetrates the paper. + If this ink has been on here twenty-five years it penetrates the paper. + </p> + <p> + Sometimes an accident happens in our favor; a piece of that will was torn + off this morning. You see the edge there torn off slanting. You see that + "o-f"; how much that ink has sunk into that paper. Not the millionth part + of a hair. It lies dead upon the top. Just see how the ink went in there—not + a particle. It lies right on top. I would call that "float." There is the + other edge. There is where the ink stops. It has not entered a particle. + And when you go to your room I want you to look at it. That ink has not + penetrated a particle. And let us see what this witness Hodges says: + "Logwood ink penetrates the paper." + </p> + <p> + There it is, "to determine the nature of the ink, use hydrochloric acid." + What else? + </p> + <p> + "I think this will was written with Reimal's ink, and that was made in + Germany in the neighborhood of 1840. Reimal's ink penetrates the paper." + And then they say that we endeavored to draw a distinction between modern + and ancient. This is what Mr. Hodges says about it. + </p> + <p> + On the addition of hydrochloric acid to logwood ink it will turn to a + bright red. The old-fashioned ink was manufactured by mixing a decoction + of logwood with chromide of potash and formed a blue black solution. + Logwood inks as made to-day differ from those, in that the modern logwood + inks contain another sort of chrome than chromide of potash; they contain + chromium in the form of an acetate or a chlorine. + </p> + <p> + Hodges was the man that talked about ancient and modern logwood inks; and + he, before the test was made, said that the old logwood ink would turn a + bright red, modern logwood not so bright. And after the evidence was all + in, Professor Elwell came smilingly to the post and said, "they have got + it exactly wrong end to; the older the duller and the newer the brighter." + And after a moment said, "This was kind of dull." Before the test was + made, Mr. Tolman swore, "I agree with Professor Hodges that if it is an + old logwood ink it will turn a bright, scarlet red. In the case of modern + logwood inks I don't agree with him, but to that extent I think his tests + are good," and he drew that distinction before the test was made. + </p> + <p> + Gentlemen, you saw this will. I want to call your attention to it again. + You see that "J" in Sconce's name, that is pretty red. Not so awfully + scarlet, though, that it would affect a turkey gobbler. You see it in + "Job"; you see it in "James Davis," but there it is brown, and not red, + and not scarlet, and no flame in it, and Professor Hodges himself said + that although both were logwood inks, he would not swear that Job Davis + and James Davis were written with the same ink. Do you see the red in that + "Job"? + </p> + <p> + Now find the red on that "s" of "James." He said he would not swear that + they were written in the same ink, but both in logwood ink, that is to + say, they might have been different inks. While I would not swear that + they were the same inks, I would swear that both inks contained logwood. + And that is all he swore to, and I must say that I believe he was a + perfectly honest, fair gentleman. + </p> + <p> + Now, all that the ink test proves on earth is that it is logwood instead + of nigrosin, and that does not prove that Eddy did not write the will, + because there was plenty of logwood ink when he did write it. That is the + kind of ink he used. And it has no more bearing—the fact that it + turned out to be logwood—to show that it is a genuine will than + though it had turned out to be iron ink. Suppose the experts had been + wrong on both sides, and it had turned out to be iron ink, what would have + happened then? Is it a genuine will? Nothing can be more absurd than to + argue that that test settled the genuineness of this will. + </p> + <p> + Hodges says another thing; that perhaps the pen went to the bottom of the + ink bottle and got a little of the settlings of the ink on it, when he + wrote "James Davis," and consequently that has a different color. Well, if + the pen had gotten some of this sediment on it, the more sediment the more + logwood, and the more logwood the brighter the color. Instead of that, it + is dull. + </p> + <p> + There is another trouble: With regard to the experts, while undoubtedly + there are some men who do not swear to the exact truth, whether paid or + not, undoubtedly some men swear truthfully who are paid. I do not believe + that you doubt the testimony of Hodges simply because you paid him so much + a day. I don't. And certainly we have found no men philanthropic enough to + go around the country swearing for nothing. I judge of the man's oath, not + by what he is paid, but by the manner in which he gives his testimony—by + the reason there is behind it. That is the way I judge and yet Senator + Sanders judges otherwise, as he told you in a burst of Montana zeal. * * * + </p> + <p> + I like Montana, too, and I believe the Montana people are big enough and + broad enough not to have prejudice against a man because he comes from + another State. Every State in this Union is represented in Montana, and + the people who left the old settled States and came out to the new + Territories, dropped their prejudices on the way—and sometimes I + have thought that that is what killed the grass. I like a good, brave, + free, candid, chivalric people. I don't care where you come from—I + don't care where you were born. We are all men, and we all have our + rights; and as long as the old flag floats over me, I have just as many + rights in Montana as I have in New York. And when you come to New York I + will see that you have as many rights, if you are in my neighborhood, as + you have in Montana. That is the kind of nationality I believe in. I hate + this little, provincial prejudice; and yet Senator Sanders invoked that + prejudice. That insults you. We did not insult you when we asked you when + you went on the jury, if you cared whether the money stayed in Butte or + not, or whether you were interested or not, or related or not. Those were + the questions asked every juror, and we relied absolutely on your answers + when you said that you were unprejudiced, and that you would give us a + fair trial; and we believe you will. + </p> + <p> + Now, then, with regard to these experts, you have got to judge each one by + his testimony; and it is foolish it seems to me, to call them vipers and + pirates, as Senator Sanders did. A very strong expression—"vipers, + pirates" living off, he said, the substance of others; and yet he had an + expert on the stand, Mr. Dickinson; he had another, Mr. Elwell; he had + another, Mr. Hodges; and after that he rises up before this jury and calls + them "three vipers" and "three pirates." I never will do that, If I ask a + man to swear for me, and he does the best he can, I will leave the + "pirate" out. + </p> + <p> + I will drop the "viper," and I will stand by him, if I think he is telling + the truth; and if he is not I won't say much about him; I don't want to + hurt his feelings. But I want to call your attention again to the fact + that every expert on our side swore, knowing that they had three experts + on the other side, and that if we made a mistake they could catch us in + it; and we did make a mistake in that ink; and the test showed that we + made a mistake, and that is all the test did show; but it did not show + that the will is genuine any more than if it had turned out to be carbon + ink; then both sides would have been mistaken. And yet after all it did + turn out to be modern logwood ink, and it did turn out not to be Reimal's + logwood ink, made of the chromate of potassium; did turn out not to be + that, and I say on this will that there is an absolute, decided and + distinct difference between the color on the name Job Davis and the name + James Davis. And right here, I might as well say that that man Jackson, + who came here from Butler, Mo.—and when I said Butler was a pretty + tough place, rose up in his wrath and said it was as good as New York any + day—that man says that when he saw the will he does not remember of + seeing the names of James Davis and Sconce in it, but he did remember of + seeing the name of Job Davis. I don't think he saw any of it. Now, there + is another question here—because I have said enough about ink, at + least enough to give you an inkling of my views. + </p> + <p> + There is another question. Why didn't John A. Davis take the stand? That + is a serious question. John A. Davis had sworn, on the 13th of March, + 1890, that his brother died without a will. John A. Davis, on the 24th day + of July, 1890, filed a will in which he was the legatee. That will came + into his possession under suspicious circumstances. What would a perfectly + frank and candid man have done? What would you have done? You would not + have allowed yourself to remain under suspicion one moment. You would have + said, "I got that will so and so." You would have let in the light, "I + obtained it in such a place, it is an honest, genuine will, and here it + is, and here are the witnesses to that will." But instead of that, John A. + Davis never opened his mouth, except to file a petition swearing that it + came into his possession on the first day of July. He knew that he was + suspected, didn't he? He knew that the men in whose veins his blood flowed + believed that the will was a forgery—knew that good men and women + believed that he was a robber, and that he was endeavoring to steal their + portion. He knew that, and any man that loves his own reputation and any + man that ever felt the glow of honor in his heart one moment, would not + have been willing to rest under such a suspicion or under such an + imputation. He would have said: "Here is its history, here is where I got + it, it is not a forged will. It is genuine. Here are the witnesses that + know all about it. Here is how I came into possession of it." + </p> + <p> + No, sir. Not a word. Speechless—tongueless. And he comes into this + court and comes on to this stand to be a witness, and is asked about a + conversation he had with Burchett, and then we asked him, "How did you + come into the possession of that will?" All his lawyers leaped between him + and the answer to that question. They objected. If he came by that will + honestly he would have said, "I am going to tell the whole story." He + wants you to believe that he came by it honestly, doesn't he? He wants you + to believe it. He not only wants you to believe it, gentlemen, but he asks + twelve men—you—to swear that he came by it honestly, doesn't + he? If you give your verdict that that is a genuine will, then you give + your oath that John A. Davis came by it honestly; and he wants you twelve + men to swear it. And yet he dare not swear it himself. He wants you to do + his swearing. He is afraid to stand in your presence and tell the history + of that will. He is afraid to tell the name of the man from whom he + received it. He is afraid to tell how much he gave for it; afraid to tell + how much he promised. He is afraid to tell how they obtained witnesses to + substantiate it in the way they have. Well, now, ought not you to let him + tell his own story, ought not you, gentlemen, to be clever enough to let + him do his own swearing? + </p> + <p> + Now, I will ask you again if he came by that will honestly, fairly, above + board, would he not be glad to tell you the story? Would he not be glad to + make it plain to you? If that was a perfectly honest will and came to him + through perfectly pure channels, would he not want you to know it? Would + he not want every man and woman in this city to know it? Would he not want + all his neighbors to know it? And yet, he is willing, when this case is + being tried, and when he is on the stand, and asked how he got the will—he + is willing to close his mouth—willing to admit that he is afraid to + tell; and I tell you to-day, gentlemen, that the silence of John A. Davis + is a confession of guilt, and he knows it, and his attorneys know it. A + client afraid to swear that he did not forge a will, or have it forged, + and then want to hire a man to defend him and call him honest! Well, he + would have to hire him; he would not get anybody for nothing. And yet he + is asking you to do it. If John A. Davis came properly by it, let him say + so under oath. Don't you swear to it for him, not one of you. + </p> + <p> + Now, there is another question. Why did not James R. Eddy take the stand? + We charged him with forging the will. We made an affidavit setting forth + that he did forge the will, and in this very court Mr. Dixon arose and + said he was glad that the charge had been fixed, and the man had been + designated. Judge Dixon said here, before this jury, when this case was + opened, "the man who was charged with forging this will will be here. He + will stand before this jury face to face; and he will explain his + connections with the will to your satisfaction." That is what Judge Dixon + said. Where is your witness? Where is James R. Eddy? Why did you not bring + him forward? I know he is here now—delighted with the notoriety that + this charge of forgery gives him—with a moral nature that is an + abyss of shallowness,—delighted to be charged with it, and he will + probably be my friend as long as he lives, because I have added to his + notoriety by saying he is a forger. Why did they not bring him on the + stand? Mr. Dixon gives one reason. Because the jury would not believe him. + And that is the man who is first found in possession of this will. That is + the man in whose hands it is, and it is from that man that John A. Davis + received it. And the reason that he is not put on the stand is that it is + the deliberate opinion of the learned counsel in this case that no jury + would believe him. + </p> + <p> + How does that work with you? James R. Eddy here—his deposition here—and + they could not read his deposition because he was here—and they had + him here and kept him here, so that we could not read his deposition. They + were bound that he should not go on the stand. Why? Because the moment he + got there he could be asked, Where did you find the will? Who was present + when you found it? When did you first tell anybody about it? When did you + first show it to John A. Davis? How much did he agree to give you for it? + What witnesses have you talked to in this case? What witnesses have you + written to in this case? What work have you done in this case? What + affidavits have you made in this case? And what have you done with the + other three wills that you have in this case? + </p> + <p> + Such questions might be asked him, and they were afraid to put him on the + stand. Every letter that he had written would have been identified by him + if he had been put on the stand. Maybe he would have been compelled to + write in the presence of the jury, to see whether he would spell words + correctly. + </p> + <p> + They knew that the moment he went on the stand their case was as dead as + Julius Cæsar. They knew it and kept him off. + </p> + <p> + Now, there is only one way for them to win this case. And that is to keep + out the evidence. Only one way to win the case—suppress John A. + Davis. Keep your mouth closed or defeat will leap out of it. Eddy, keep + still. Don't let anything be seen that will throw any light upon this. I + ask you, gentlemen of the jury, to take cognizance of what has been done + in this case. Who is it that has tried to get the light? Who is it that + has tried to get the evidence? Who is it that has objected? Who is it that + wants you to try this case in the dark? Who is it that wants you to guess + on your oaths? The failure of Eddy to testify is a confession of guilt. + They dare not put him on the stand—dare not. + </p> + <p> + Now, gentlemen, there is a little more evidence in this case to which I am + going to call your attention. Something has been said about a conversation + in March, 1891. Sconce had his deposition taken in Bloomfield, Iowa. That + deposition has been suppressed. John A. Davis was there at the time it was + taken. John A. Davis and Sconce went into the passage leading up to the + office of Carruthers. Mr. Burchett, sheriff of the county, a man having no + possible earthly or heavenly interest in this business, happened to stop + at the corner to read his paper—looked at it as he opened it—and + he then and there heard John A. Davis say, "Stick to that story and I will + see that you get all the money you have been promised," and thereupon + Sconce replied, "All right I'll do it." Sconce denies it, and that denial + is not worth the breath that he wasted in forming the denial. John A. + Davis denies it. Of course he denies it. But he dare not tell where he got + that will. He dare not do it. He wants you to do that for him. He wants + you to lift him out of the gutter and wash the mud off him. He is afraid + to do it himself. + </p> + <p> + I want to call your attention to that conversation, and that of itself is + enough to impeach Sconce. That is enough of itself to show that John A. + Davis was entering into a conspiracy or rather had entered into one with + Mr. Sconce. Now, gentlemen, there is another thing, and we must not forget + it. Curious people down in Salt Creek township, on the other side; of + course there are plenty of good men there or the township could not exist, + and we had a good many of them here—good, straight, honest, + intelligent looking men. But the other side had some—all in the + family—all of them. + </p> + <p> + Swaim, he was not in the family, but he is a clerk in Trimble's bank, + where Wallace is the cashier, where they suppress depositions; say they + are not finished when they are signed by the person who swears to them. + </p> + <p> + John C. Sconce, the only living witness, whose "ancient but ignoble blood + has crept through rascals ever since the flood," cousin to James Davis, + cousin to Job Davis, cousin to Mrs. Downey, cousin to Eddy, cousin to Dr. + Downey by marriage, brother to T. J. Sconce, Jr., brother-in-law to Abe + Wilkinson, cousin to Tom Glasgow and Sam, cousin to Moses Davis, cousin to + Alex. Davis, uncle to Henshaw's daughter, and father-in-law of George + Quigley. Every one of them united. Blood is thicker than water. Eddy stuck + to his family. + </p> + <p> + James R. Eddy—cousin to Sconce, son of Mrs. Downey, (Mrs. Downey, + the duster lady, who remembers that Davis asked her to remain, but didn't + ask her advice, didn't have her sign the will, didn't give her any + bequest, but there she was with her duster), grandson of James Davis, + nephew of Job Davis, and related by blood or marriage to both the + Glasgows, Moses and Alexander Davis, to T. J. Scotice and J. C. Sconce, + Jr., Abe Wilkinson, George Quigley, S M. Henshaw, (the celebrated lawyer). + J. L. Hughes, and Eli Dye, brother-in-law to C. O. Hughes, and foster + brother to John Lisle, and Mrs. A. S. Bishop. And it is just lovely about + John Lisle. + </p> + <p> + John Lisle is one of the fellows that saw this will. "How did you come to + see it, John?" "James Davis," he says, "was my guardian and he had to give + a bond, and so one day when James Davis was away from home, I thought I + would go and see the bond." + </p> + <p> + Of course he thought James Davis kept the bond that he gave to somebody + else—to the county judge; but Mr. Lisle pretends that he thought the + bond would be in the possession of the man who gave it. And so he sneaked + in to look among the papers. Now, do you believe such a story—that + he thought that man had the bond? Didn't he know that the bond was given + to somebody else? Foolish! Bishop swears the same thing; James Davis was + guardian for his wife, and he was looking to see if James had the bond; + and another fellow by the name of Sconce, was looking for a note, and when + he opened this double sheet of paper folded four times and happened to see + Sconce's name he said: "Here it is—a promissory note." + </p> + <p> + Mary Ann Davis—that is to say, Mrs. Eddy, that is to say, Mrs. + Downey, is the mother of J. R. Eddy, daughter of James Davis, sister to + Job, second cousin to Sconce, wife of Downey, and related by blood or + marriage to Tom and Sam Glasgow, Moses and Alexander Davis, Abe Wilkinson, + S. M. Henshaw, J. C. Sconce, Jr., T. J. Sconce, George Quigley and C. O. + Hughes. All right in there, woven together. + </p> + <p> + E. H. Downey—son-in-law of James Davis, brother-in-law of Job, + husband of Mary Ann Davis-Eddy-Downey, and step-father of Mr. Eddy. + </p> + <p> + J. C. Sconce. Jr.—cousin to Eddy, nephew of J. C. Sconce, Sr., + cousin to Mrs. Downey, cousin of E. H. Downey, son-in-law of Henshaw, + cousin to George Quigley, related to Tom and Sam Glasgow, Abe Wilkinson + and Moses and Alex. Davis. + </p> + <p> + George Quigley—son-in-law of Sconce. + </p> + <p> + Sam Glasgow—cousin of Sconce, son-in-law of Dye, brother to Tom + Glasgow, brother-in-law to Moses and Alex. Davis, cousin to Abe Wilkinson, + and related by marriage to J. R. Eddy. Here they are, same blood. All have + the same kind of memory; runs in the blood. + </p> + <p> + Henshaw—father-in-law to J. C. Sconce, Jr. Lisle—adopted son + of James Davis, and his ward, and foster brother to Eddy. A. S. Bishop—married + to Allie Lisle, ward of James Davis, foster sister of James R. Eddy. + </p> + <p> + T. J. Sconce—Eddy's cousin, J. R. Sconce's brother, brother-in-law + and cousin to the Glasgows, cousin to Alex, and Moses Davis, + brother-in-law to Abe Wilkinson and uncle to J. C. Sconce, Jr. + </p> + <p> + Moses Davis—cousin of Sconce, brother-in-law to the Glasgows, cousin + to Abe Wilkinson, brother of Alex. Davis, and related to Eddy and Arthur + Quigley. + </p> + <p> + Alexander Davis—cousin to Sconce, brother of Moses Davis, + brother-in-law to the Glasgows, cousin to Wilkinson and related by + marriage to Arthur Quigley. + </p> + <p> + Abe Wilkinson—brother-in-law to Sconce, cousin to Alex, and Moses + Davis, and cousin to the Glasgows. + </p> + <p> + Tom Glasgow—cousin to Sconce, and Abe Wilkinson, and a + brother-in-law of Moses Davis, and a brother to Sam Glasgow, and related + by marriage to Eddy. + </p> + <p> + Arthur Quigley—brother-in-law to Alex. Davis, and brother to George + Quigley, who is a son-in-law of Sconce. John L. Hughes—his nephew + married Eddy's wife's sister. Eli Dye—father-in-law of Sam Glasgow. + </p> + <p> + There they are, all of them related except Swaim and Duckworth and Taylor; + and Duckworth, he is in the tie business along with Eddy. There is the + family tree. All growing on the same tree, and there is a wonderful + likeness in the fruit. Why, that Glasgow has as good a memory as Sconce. + He remembers that this is the same will he saw—paper like that, and + he swears—I think it is Sam Glasgow—that he did not read the + contents or see a signature. And yet he comes here, twenty-five years + afterwards, and swears it is the same paper. And then the paper was clean + and now it is covered with all kinds and sorts of stains. + </p> + <p> + Now, gentlemen, take the signature of A. J. Davis, and I want you all to + look at it. I say it is made of pieces. I say it is a patchwork. It is a + dead signature. It has no personality—no vitality in it, and I want + you to look at it, and look at it carefully. I say it is made of pieces. + Of course every counterfeit that is worth anything, looks like the + original, and the nearer it looks like the original the better the + counterfeit. All the witnesses on the side of the proponent who have sworn + that it is his signature, also swear that he wrote a rapid, firm hand—nervous, + bold, free, and that he scarcely ever took his pen from the paper from the + time he commenced his name until he finished; and I want you to look at + that name. I will risk your sense; I will risk your judgment—honest, + fair and free—whether that is a made signature, or whether it is the + honest signature of any human being. + </p> + <p> + And now, gentlemen, one word more. I contend, first, that the evidence + shows beyond all doubt that Job Davis did not write this will. Second, + that it is shown beyond all doubt, that James R. Eddy did write this will, + and that that evidence amounts to a demonstration. I claim that the will + of 1880 was made precisely as E. W. Knight and Mr. Keith swear; that that + will was utterly inconsistent with the will of 1866, even if that had been + genuine; that it revokes that will, that its provisions were inconsistent, + and that afterwards that will was destroyed, and that there is not one + particle of evidence beneath the canopy of heaven to show that it was not + made and to show that it was not destroyed. + </p> + <p> + And the Court will instruct you that the will of 1866, even if genuine, is + not revived. + </p> + <p> + This is the end of the case. So I claim that the probabilities, the + reason, the naturalness, are all on the side of the contestants in this + case—all. And I tell you, that if the evidence can be depended on at + all, A. J. Davis went to his grave with the idea that the law made a will + good enough for him. Do you believe, if he were here, if he had a voice, + that he would take this property and give it to John A. Davis; that he + would leave out the children of the very woman who raised him; that he + would leave out his other sisters, that he would leave out the children of + his sisters and brothers? Do you believe it? I know that not one man on + that jury believes it. + </p> + <p> + This case is in your hands. That property is in your hands. All the + millions, however many there may be, are in your hands; they are to be + disposed of by you under instructions from the Court as to the law. You + are to do it. And, do you know, there is no prouder position in the world, + there is no more splendid thing, than to be in a place where you can do + justice. Above everybody and above everything should be the idea of + justice; and whenever a man happens to sit on a jury in a case like this, + or in any other important case, he ought to congratulate himself that he + has the opportunity of showing, first, that he is a man, and second, of + doing what in his judgment ought to be done, and there will never be a + prouder recollection come to you hereafter than that you did your honest + duty in this case. Say to this proponent: "If you wanted to show us that + you got this will honestly, why didn't you swear it; if you wanted us to + believe it was a genuine will, why didn't you have the nerve to take your + oath that it is a genuine will?" + </p> + <p> + Now, you have the opportunity, gentlemen, of doing what is right. Your + prejudice has been appealed to, but I say that you have the manhood, that + you have the intelligence, and that you have the honesty to do exactly + what you believe to be right; and whether you agree with me or not, I + shall not call in question your integrity or your manhood. I am generous + enough to allow for differences of opinion. But when you come to make up + your verdict, I implore you to demand of yourselves the reasons; to be + guided by what is natural; to be guided by what is reasonable. I want you + to find that this will was found in the possession of Eddy in April or + March, next in the hands of John A. Davis; and that John A. Davis dare not + tell how he came in possession of it. John A. Davis, on the edge of the + grave—for this world but a few days, and according to the law + without that will he could have had an income of over fifty thousand a + year. He was not satisfied with that. He wanted to take from his own + brothers and sisters, wanted to leave his own blood in beggary. + </p> + <p> + He never saw the time in his life that he could earn five thousand a year—never. + And he was not satisfied with fifty thousand—he wanted four and a + half millions for himself. . + </p> + <p> + Gentlemen, I want you to do justice between all these heirs. I want you to + show to the United States that you have the manhood, that you are free + from prejudice, that you are influenced only by the facts, only by the + evidence, and that being so influenced, you give a perfectly fair verdict—a + verdict that you will be proud of as long as you live. How would you feel, + to find a verdict here that this is a good will, and afterwards have it + turn out to be what it is—an impudent, ignorant forgery? + </p> + <p> + Now, all I ask of you is to take this evidence into consideration. Don't + be misled even by a Christian, or by a sinner, for that matter. Let us be + absolutely honest with each other. We have been together for several + weeks. We have gotten tolerably well acquainted. I have tried to treat + everybody fairly and kindly, and I have tried to do so in this address. + </p> + <p> + I have had hard work to keep within certain limits. There would words get + into my mouth and insist on coming out, but I said: "go away; go away." I + don't want to hurt people's feelings if I can help it. I don't want anyone + unnecessarily humiliated, but I say whatever stands between you and + justice must give way; and if you have to walk over reputations—and + if they become pavement you cannot help it. You must do exactly what is + right, and let those who have done wrong bear the consequences. + </p> + <p> + Now, gentlemen, I have confidence in you. I have confidence in this + verdict. I think I know what it will be. It will be that the will is + spurious, and that the will of 1880 revoked it, whether spurious or not. + That is my judgment, and I don't think there is any man in the world smart + enough or ingenious enough to get any other verdict from you as long as + John A. Davis was afraid to swear that it was an honest will; as long as + James R. Eddy, the forger, dare not take the stand; and they will never + get a verdict in this world without taking the stand, and if they do take + it, that is the end. There is where they are. + </p> + <p> + Now, all I ask in the world, as I said, is a fair, honest, impartial + verdict at your hands. That I expect. More than that I do not ask. And + now, gentlemen, I may never see you again after this trial is over—separated + we may be forever—but I want to thank you from the bottom of my + heart for the attention you have paid to the evidence in this case and for + the patient hearing you have given me. + </p> + <p> + Note: The Jury disagreed and the case was compromised. + </p> + <p> + <a name="link0008" id="link0008"> + <!-- H2 anchor --> </a> + </p> + <div style="height: 4em;"> + <br /> <br /> <br /> <br /> + </div> + <h2> + ARGUMENT BEFORE THE VICE-CHANCELLOR IN THE RUSSELL CASE. + </h2> +<pre xml:space="preserve"> + * Russell vs. Russell, before Martin P. Grey. V. C., Camden, + N. J., June 21, 1899. This was Colonel Ingersoll's last + appearance in public. The report of this argument has been + made from the stenographer's notes and therefore of + necessity incomplete. It was delivered without notes and the + proofs were not seen or corrected by the author. No + decision in this case has as yet been rendered, August 1, + 1900 +</pre> + <p> + IF your Honor please: I agree with Mr. Pancoast at least in one remark + that he made—I think about the only one—that John Russell is + dead. I think there is no controversy about that. But as to the other + remarks made and the positions taken by him, I fail to agree. + </p> + <p> + In the first place, for several hundred years the courts of England, and + for more than a hundred years the courts of this country, have very + jealously guarded the right of dower; and wherever a woman has by + antenuptial agreement given up her right of dower, all the courts have + decided—and I know of no exception, and Mr. Pancoast has brought + forward none—that at the time she made the contract waiving her + dower she must have been in the possession of all of the facts, so that + she could act with absolutely full knowledge. And where a man seeks to + make an agreement by virtue of which the wife, or the supposed wife, shall + waive her dower, decision after decision says that he must tell the truth, + and the whole truth, and that it is just as fraudulent to suppress a fact + as to manufacture one. He must tell the absolute truth. The relation of + the parties is such, and the dower right is such, that the courts will not + take the right away from the woman unless she gives it freely, and, at the + time she gives it, knows all the facts bearing upon the question as to + whether she should or should not release or waive her dower. + </p> + <p> + Now, on that same line the courts have taken another step. They do not put + upon the wife the burden of showing that the husband was guilty of fraud + directly; they simply put the burden upon the wife of showing what his + property was and what the consideration was in the agreement; and then the + court steps forward and says that if the amount is disproportionate when + you take into consideration his wealth, then the burden is immediately + shifted, and the person seeking something under his will, or seeking his + property, must show that when the woman signed the antenuptial agreement + she had been put in possession of all the facts; that she then knew, and + knew from him, what he was worth; and that if she did not and the amount + in the agreement is disproportionate to his estate, the agreement is null + and void. Then gentlemen who represented the heirs of the testator, or the + legatees, said: "Well, it was generally known that he was a rich man; that + was his reputation in the neighborhood; and she, if she had taken any + pains or acted with reasonable discretion, could have ascertained the + fact." + </p> + <p> + The Court then took another step in advance and said that it was not her + duty; she was not bound to inquire as to his wealth; and yet Mr. Pancoast + talks as though the maxim of caveat emptor applies in this business—as + though it had been a bargain between two sharpers, she making what she + could out of his admiration, and he cheapening her to the extent of his + power, driving the best possible bargain, saying that she should have + looked out for her rights; that she should have investigated and found out + about his property; that she should have called in a detective to + ascertain what it was, and that the courtship should have been carried on + in that commercial spirit. + </p> + <p> + But the law says: No; she is not obliged to ask a question. She is not + obliged to take into consideration any thing that is said in the + neighborhood. She relies upon one source for her information, and that is + the man whom she is going to marry. And the law says he shall meet her + with perfect candor, and there shall pass from his lips nothing but words + of truth; and then if, being in full possession of all the truth, she + makes the contract, that contract shall stand; otherwise, that it shall + not. + </p> + <p> + There is no use of my quoting these decisions—there is no decision + any other way. + </p> + <p> + The first question that arises is as to the condition of this contract + under evidence—this antenuptial contract. Is the amount + disproportionate to his estate? + </p> + <p> + If we are to try this case relying on the notions of Mr. Russell, and say + that his opinion shall govern, why, it may be said that Russell imagined + that he was generous. That would be astonishing, but hardly as astonishing + as the fact that Mr. Pancoast thinks he is generous. + </p> + <p> + Mr. Pancoast: You don't know me very well. + </p> + <p> + Mr. Ingersoll: I don't think you would do so badly as that. It may be that + Russell imagined that one thousand dollars in stock of some bank was a + liberal provision in his will. I don't know whether he did, and I do not + care whether he did or not. The question is not for Mr. Russell; it is not + a question for Mr. Pancoast, and it is not a question for myself; it is + for your Honor to decide. Is the amount mentioned in this antenuptial + contract, taken together, if you please, with the fifteen hundred dollars + in the will—is the amount made by the addition of the two amounts—disproportionate + to this estate? + </p> + <p> + There is a case here from Illinois, Achilles vs. Achilles (which ought to + be a strong case), in which I believe the man was worth seventeen or + eighteen thousand dollars; and my recollection is that he provided an + annuity of three hundred dollars for his wife, with rent free of a house; + also rent free of a vacant lot for a garden. That is what he gave her—what + would be about four hundred dollars or five hundred dollars a year; and he + had eighteen thousand dollars. The Supreme Court of Illinois thought that + amount so disproportionate to the value of the estate that the provision + was set aside. + </p> + <p> + Now, in this case, five thousand dollars or six thousand dollars—we + will say five thousand anyhow—is the amount; and there is an estate + worth a quarter of a million or, to come even within their own testimony, + worth two hundred thousand dollars. + </p> + <p> + The first question for your Honor to decide is whether that amount is so + disproportionate to his estate that—unless the other side show that + she was put in possession of all the facts—it must be set aside. + </p> + <p> + The defendants in this case have not endeavored to show that Mr. Russell + ever informed the complainant what he was worth. The only evidence we have + on that point is what he said with regard to his poverty—not one + word about how much he had, and as to his poverty, only indirectly. And + here is the way the old man's mind worked: They were first engaged to be + married. Mr. Pancoast believes, or at least he has expressed himself as + though he thought, that a man of seventy-five could not be in love (I do + not know what his experience is, but I hope no fate like that will + overtake me), and that a woman of fifty could not feel the tender flame. I + do not know enough about biology to state with accuracy how that is, but I + heard a story once about a colored woman having lived to be one hundred + and twenty-five, and a man interested in the question that Mr. Pancoast + has raised asked this aged lady how old a woman had to be before she + ceased to have thoughts about love? + </p> + <p> + And the old woman said: "I don't know, honey; you will have to ask + somebody older than I is." And I guess that is about the experience of the + race. + </p> + <p> + Mr. Russell said to this woman: "I want to make a contract with you, and I + will give you fifteen thousand dollars." She said that was satisfactory, + and Russell—having a little Semitic blood in his veins, I guess—said + to himself, "I must have offered too much, she accepted so readily." So + the next time he saw her he said, "I do not think I can make it more than + ten thousand dollars." "Well," she said, "all right; ten thousand dollars + will do." In the meantime he was getting a little older, and the last time + he came he said he could not make it more than five thousand dollars, + because his estate was so entangled that he did not know that he would be + able to pay it—that it would be a pretty difficult job to pay that + amount within six months. Well, she accepted, and in order that she should + accept it, he said that, in addition, he would provide well for her in his + will—that he would make a liberal provision. There is the contract. + No evidence in the world that he told her what he was worth; the only + evidence is that he pleaded poverty. + </p> + <p> + And right at this point, I say that all the decisions I know of declare + the contract void unless the defence, on their part, show that she was put + in full possession of all the facts; and that the defence in this case did + not do. + </p> + <p> + Now, so far as this contract is concerned, on the evidence it is void, and + void notwithstanding the fact that the trustees paid her five hundred + dollars; and Mr. Pancoast, according to my recollection, is mistaken when + he says that she demanded the balance. He offered her the balance, and she + stated that she had been informed that she had some rights against the + estate, and therefore refused to receive it. That is the fact about it. He + sent her five hundred dollars, and wanted to send her the balance, but she + would not have it. Then he asked her to take it, and showed her a receipt + to be signed, in which she waived everything, and she refused to sign it. + </p> + <p> + Under those circumstances I do not think it is possible for your Honor to + say that she has been estopped. + </p> + <p> + The next point raised by Mr. Pancoast is that the oral agreement to + provide well for her in the will is void under the statute of frauds. + </p> + <p> + Well, I am free to say that I do not know how it is in New Jersey, but in + every other State in which I am acquainted with the law, the statute of + frauds, to be operative, must always be pleaded. I do not know how it is + here. That statute has not been pleaded in this case, and I never heard of + it until the argument to-day. If it is to be pleaded before it can be + invoked, it is too late to cite it now. But let us go on the supposition + that he is right, that the antenuptial contract is void, and that the + other contract to provide for her in the will is also void. Then where + does that leave us? That leaves us exactly as though no contract had been + made. That leaves us without any antenuptial contract, without any + agreement to provide liberally for her in the will. Then what is our + condition? Then the wife is entitled to her dower in the real estate; that + follows as a necessity. She loses her interest in the personalty, because + that is given away by the will, but if the antenuptial contract and parole + agreement are both dead—one because disproportionate to the estate + and because of the fraud of Russell, and the other on account of the + statute of frauds, then she is left with her dower in the real estate. It + is impossible, it seems to me, to arrive at any other conclusion. It + certainly would be inequitable to say that she had been estopped on + account of what was done with the five thousand dollars in the hands of + the trustees. + </p> + <p> + There is another view of it. There has been, if the contracts are good, a + partial performance; and that of itself would take it out of the statute + of frauds. + </p> + <p> + Then the question is, if it is out of the statute of frauds, and if it is + out because the contract has been partially performed, the next question, + and, it seems to me, the only question that arises, is, has a court of + equity the right to determine what the words "You shall be well provided + for," "I will provide for you liberally in my will," or "I will make a + liberal provision for you in my will"—what those words mean? + </p> + <p> + According to the idea of counsel on the other side, the Court is bound to + decide according to the meaning that was in the mind of Mr. Russell. But + there comes in here another principle. The only way we can find the + meaning in his mind is by finding the words that he used; and we are not + to import his meanness into the words, if he had meanness; neither would + we import his generosity, if he had generosity. We would give to those + words their natural meaning, apart from the thought of the one who used + them, and apart from the thought of the one who heard them, because the + words are known, their meaning is known and can be ascertained by the + Court. + </p> + <p> + Now, the word "reasonable" is about as hard a word to define as a court + was ever called upon to define, and yet courts of law and courts of + equity, in hundreds and thousands of instances, have passed upon the + meaning of the word "reasonable," and have not only passed upon its + meaning, but have given it from time to time definitions. + </p> + <p> + A man must give reasonable care to the property of another given into his + keeping. Well, what is reasonable care? Is it reasonable for him to take + such care of it as he does of his own? Not if he is unreasonably careless + of his own. And the law takes another step, and says you must take such + care of it as is reasonable, as a reasonable man would, and the courts + then go on to define what a reasonable man under the circumstances would + do. Now, there is no word in the language that courts have been called + upon to define that is vaguer—where the line between dawn and dusk, + between light and dawn, has to be drawn with greater care or greater + intelligence—than that word "reasonable." The word "appropriate" has + been decided again and again. The word "necessary," the word "convenient," + the word "suitable"—"suitable to his or her condition in life"—"suitable + to the condition of the party"—all these words have been given + judicial meaning hundreds and thousands of times. + </p> + <p> + And now we come to the word "liberal," is that a hard word to define? + </p> + <p> + Everybody in the world has his notion of what liberal means. Given the + circumstances and the actions of the man, and everyone you meet is ready + to decide whether he is liberal or illiberal. A man loses his pocketbook; + five thousand dollars in it; a boy finds it, returns it to him, and he + gives the boy five cents. There is not a man in the world, no matter + whether he is a judge or not, who would say that was liberal—nobody. + If there was only a dollar in the pocketbook and he gave him half of it, + you would say that was liberal. You would have to take the circumstances + into consideration. You also take into consideration the circumstances of + the man who found it. If he is a poor man you can not be liberal unless + you give him more than you would give the man who did not need it. + </p> + <p> + What is a liberal provision for a wife that has no means of making her own + living? If the man is able, nothing less than a sufficient sum to take + care of her. Suppose Mr. Vanderbilt, who is worth two or three hundred + millions—I do not know what he is worth, and I do not care, but I + suppose he is worth a hundred millions—should agree to make a + liberal provision for his wife, and make it so that he gets away from the + statute of frauds, and thereupon leaves her twenty-five hundred dollars. + Nobody would say that was liberal. Why? Because that word is capable of a + clear and reasonably exact definition. To be liberal, he would have to + leave her enough to live in the same style that she has been living in + with him, and enough to keep her during her life. Anything less than that + would be illiberal, mean, contemptible. + </p> + <p> + So I might go through all the actions of men in regard to contracts, + payments, divisions. We all know what liberal means, and it always means a + little more than the law could compel you to do. If a man hires another + and says, "I will give you five dollars a day," and the other works twenty + days, and he gives him one hundred dollars; nobody says he is liberal, and + nobody says he is mean. But when the man goes further and says, "You have + worked well; I am very much pleased with what you have done; there is + fifty dollars (or twenty-five dollars) as a present," everybody says, + "Why, that is liberal, that is generous." But no man ever yet got the + reputation of being generous by doing exactly what he was bound to do. He + may have the reputation of being just, honest, of keeping his contracts, + of being a good, fair, square man, but he never got the reputation of + being generous, and he never got the reputation of being liberal, by + simply doing what the law compelled him to do, or what his contract + compelled him to do, or what he did in consideration of that for which he + had received value. + </p> + <p> + In this case Russell said, "I will make a liberal provision for you in my + will." If he had made no will the law would have given her one-third of + his personal property. That would not have been liberal. That would simply + have been the law. That is the law, and that is what the law has said is + just. Whether the law is right or not, I do not know, but that is what the + law says. That is just, and no man can be liberal unless he goes just a + little beyond justness—just a little. + </p> + <p> + So when he says, "I will provide for you liberally in my will," in order + to comply with that agreement he has got to go somewhat beyond the law, + and the law says one-third; it is impossible for him to be liberal without + going a little beyond one-third, and then he is only liberal to the extent + that he does go beyond what the law fixes. + </p> + <p> + Now, it seems to me that there is no escape from that. Neither does it + seem to me that there is the slightest difficulty in your Honor fixing + what is liberal—no more difficulty than you would have in saying + what is right; and we have hundreds of cases where a man has said, "If you + will do so and so I will do what is right," and it has been enforced—has + been enforced thousands and thousands of times. "I will do what is right," + "I will do what is just," "I will do what is liberal," "I will do what is + necessary and proper"—all these words have been judicially + determined and their meaning fixed by hundreds and thousands of decisions. + I do not see the slightest trouble in that. + </p> + <p> + So, in this case, looking at the parole contract as bad—and it is + bad—the woman is at the very least entitled to her dower; and the + only way that she can be robbed of it is by holding that a contract is + good which was made by her without any knowledge of the value of the + property that he held. But every decision says that makes the contract + void, and that she is not bound to make examination herself; he is bound + to give her that information. The law says that when two hearts come + together in that way, and there is supposed to be affection, they must be + candid. He must conceal nothing. His hands must be open; not only must + what he says be the truth, but he must tell it all, and she cannot be + bound by any contract that she does not make in the full blaze of all the + facts. She must have them all, and if he keeps back any, if he makes + himself poorer than he is, he destroys the contract. If he tries to take + advantage of her the law says he only takes advantage of himself. The + Court is her attorney; the Court appears for her for the preservation of + her dower right; and the Court will not allow a man to take advantage of + any misstatement, of any suppression, of any fraud, no matter whether + active fraud, or a fraud that rests in non-action. The Court is her + attorney and says the contract is bad, and if you try to deceive her you + deceive yourself; and if you fail to put her in possession of all the + facts the consideration of the contract fails and it is dead and done. + </p> + <p> + If these decisions have any meaning, that is the law, and if there is a + decision on the other side, I should like to hear it. I haven't found one, + not one; and in all the cases where applications have been made to set + aside an antenuptial contract, I have not found one where the + disproportion was as great as it appears in this case. The difference is + between six thousand five hundred dollars and an estate of a quarter of a + million. I have not found one that had anywhere near that disproportion, + and yet case after case is set aside on the disproportion of about four + hundred dollars or five hundred dollars a year and the fortune of eighteen + thousand dollars—one where it is thirty thousand and she gets about + five hundred dollars. I do not know of a solitary case where the deception + was as great as in this. I do not say that he intentionally deceived, + because I do not know, and, as Mr. Pancoast remarked, he is dead. We + simply go on the facts that are shown. + </p> + <p> + Now, as to the value of the property, I do not think there is any real + dispute about that. Mr. Russell is one of the executors, and when he went + over the real estate here on the stand he had in his hand a list of all + that real estate, with the values put upon it by our two witnesses; and he + was asked the value, and he looked at the parcel, and he looked at the + amount, and I tried it here myself, just to see if I could guess what his + answer would be. I deducted in my own mind fifty per cent, sometimes, + sometimes thirty per cent., sometimes forty per cent., and I hit it within + five dollars in fifteen cases, just guessing by myself what he would say, + because I knew that he was going by the figures without the slightest + reference, in many cases, to what the property was worth. He estimated one + parcel at two thousand two hundred dollars; I think it was worth about + five thousand dollars. He fixed another at three thousand two hundred and + fifty dollars; I think it is worth about five thousand dollars. He fixed a + third at four hundred dollars; I think it is worth about six hundred + dollars. When he was asked about those same parcels, without the figures + he sometimes went beyond the price that our experts had fixed; sometimes + he doubled his own price, and sometimes he fell below his price. I think + in one or two instances he even fell below; but that at the time he had in + his mind, any knowledge apart from the figures that had been made by the + experts, I do not believe. + </p> + <p> + The Vice Chancellor: Is it of any significance? If your argument is right + the disproportion is so great that it makes no difference. + </p> + <p> + Mr. Ingersoll: Perhaps not. Then his co-executor was not called at all. So + I take it that we can safely say that the property was worth in all two + hundred thousand dollars, taking it according to their own estimate. The + estimate of the man who fixed it on account of the inheritance tax, I do + not think is of any weight. He did not go over it all and did not see it. + I say the disproportion is so great—they having failed to show that + the knowledge was in her possession, put there by him—that the + contract must be set aside. That we insist upon. + </p> + <p> + One of two things has to be done, it seems to me: Both those contracts set + aside and her dower in the real estate given to her, or both contracts + allowed to stand and the court to fix what is a liberal provision in the + will—and in that, for one, I see no difficulty. "Liberal" is a word + as easily understood at least as the word "reasonable"—certainly as + the word "necessary," certainly as the word "convenient," certainly as the + word "suitable," and in fact I might say as almost any other word except + some scientific term that limits its own definition. + </p> + <p> + Now, we have already said that a liberal provision could not be less than + the law gives us. In that view of the case, she should have, in lieu of + her dower, the five thousand dollars, and, on account of the will she + should have at least whatever one-third of the personal property is worth. + </p> + <p> + It seems to me that one of those two courses must be pursued. Here is an + old man who wants to get a woman some twenty-five years younger than he + is. Just think how Mr. Pancoast's blood would throb at a woman twenty-five + years younger than he. Think what visions would haunt his brain. Think of + the Cupids that, with outstretched wings, would follow in the darkness of + the night as he contemplated his happiness. Here was a man of that age who + wanted this woman, and taking into consideration his ideas of money—a + man that considered a thousand dollars a liberal provision; one worth two + hundred and thirty thousand dollars or two hundred and forty thousand + dollars, offering her five thousand dollars—he wanted her badly. You + can hardly think of a more wonderful thought visiting his brain than that + of giving all that money for a woman nearly twenty-five years younger than + himself. + </p> + <p> + I want to be kind to Mr. Russell; I want to say that he was honestly in + love with this woman. I want to be respectful to her by saying that the + affection was reciprocated, and that on her part it was absolutely honest. + But I do say that Mr. Russell withheld from her the information as to his + property. Mr. Russell endeavored to drive the best bargain he could, and I + say that by keeping back the facts that he was bound to make known to her, + he defeated himself—that while he did deceive her, he destroyed his + contract. + </p> + <p> + Now, by no way of reasoning I can think of can you arrive at any different + conclusion. All matters of this kind, of course, should be dealt with from + a high standard, the highest standard we have, the very highest. The + affection that man has for woman is, in my judgment, the holiest and the + most beautiful thing in nature; the affection that woman has for man—that + affection, that something that we call love—has done all there is of + value in the world. It has civilized mankind; made all the poems, painted + all the pictures, and composed all the music. Take it from the world and + we shall be simply wild beasts—far worse than wild beasts, for they + have affection for each other and for their young. + </p> + <p> + So I say this should be treated from the highest possible standpoint, and + treating it in that way your Honor must say that a woman must act with a + full knowledge of every fact that had any bearing upon the question to be + decided by her; and if she was not put in possession of all of these + facts, by the man who said he loved her, then the contract is void. + </p> + <p> + On the other hand, if the contract is held valid, and with it the + agreement to provide liberally for her in his will, then I say that there + can be no liberality that does not go beyond the law. In the one case she + is entitled to five thousand dollars and one-third of the personalty, and + in the other case she is entitled to her dower. + </p> + <div style="height: 6em;"> + <br /> <br /> <br /> <br /> + <table summary="" border="3" cellpadding="4"> + <tbody> + <tr> + <td> + <big><big><a + href="http://www.gutenberg.org/files/38813/38813-h/38813-h.htm"> + TABLE OF CONTENTS FOR ALL 12 EBOOKS IN THIS SET</a></big></big> + </td> + <td></td> + </tr> + </tbody> + </table> + <br /> <br /> <br /> <br /> + </div> +<pre xml:space="preserve"> + + + + + +End of the Project Gutenberg EBook of The Works of Robert G. Ingersoll, Vol. +10 (of 12), by Robert G. 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