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+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]
+
+Language: English
+
+Character set encoding: ASCII
+
+*** START OF THIS PROJECT GUTENBERG EBOOK WORKS OF INGERSOLL ***
+
+
+
+
+Produced by David Widger
+
+
+
+
+
+
+THE WORKS OF ROBERT G. INGERSOLL
+
+By Robert G. Ingersoll
+
+"JUSTICE SHOULD REMOVE THE BANDAGE FROM HER EYES LONG ENOUGH TO
+DISTINGUISH BETWEEN THE VICIOUS AND THE UNFORTUNATE."
+
+In Twelve Volumes, Volume X.
+
+Legal
+
+Dresden Edition
+
+
+
+
+CONTENTS OF VOLUME X.
+
+
+ADDRESS TO THE JURY IN THE MUNN TRIAL.
+
+Demoralization caused by Alcohol--Note from the Chicago
+_Times_--Prejudice--Review of the Testimony of Jacob Rehm--Perjury
+Characterized--The Defendant and the Offence Charged (p. 21)--Testimony
+of Golsen Reviewed--Rehm's Testimony before the Grand Jury--Good
+Character (p. 29)--Suspicion not Evidence.
+
+
+CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL.
+
+Note from the Washington _Capital_--The Assertion Denied that we are
+a Demoralized Country and that our Country is Distinguished among
+the Nations only for Corruption--Duties of Jurors and Duties of
+Lawyers--Section under which the Indictment is Found--Cases cited to
+Show that Overt Acts charged and also the Crime itself must be Proved
+as Described--Routes upon which Indictments are Based and Overt Acts
+Charged (pp. 54-76)--Routes on which the Making of False Claims is
+Alleged--Authorities on Proofs of Conspiracy (pp. 91-94)--Examination
+of the Evidence against Stephen W. and John W. Dorsey (pp. 96-117)--The
+Corpus Delicti in a Case of Conspiracy and the Acts Necessary to be Done
+in Order to Establish Conspiracy (pp. 120-123)--Testimony of Walsh
+and the Confession of Rerdell--Extravagance in Mail Carrying (p.
+128)--Productiveness of Mail Routes (p. 131)--Hypothesis of Guilt and
+Law of Evidence--Dangerous Influence of Suspicion--Terrorizing the
+Jury--The Woman at Her Husband's Side.
+
+
+OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.
+
+Juries the Bulwark of Civil Liberty--Suspicion Not Evidence--Brief
+Statement of the Case--John M. Peck, John W. Dorsey, Stephen W. Dorsey,
+John R. Miner, Mr. (A. E. ) Boone (p.p. 150-156)--The Clendenning
+Bonds--Miner's, Peck's, and Dorsey's Bids--Why they Bid on Cheap
+Routes--Number of Routes upon which there are Indictments--The
+Arrangement between Stephen W. Dorsey and John R. Miner--Appearance
+of Mr. Vaile in the Contracts--Partnership Formed--The Routes
+Divided--Senator Dorsey's Course after Getting the Routes--His Routes
+turned over to James W. Bosler--Profits of the Business (p. 181)--The
+Petitions for More Mails--Productive and Unproductive Post-offices--Men
+who Add to the Wealth of the World--Where the Idea of the Productiveness
+of Post routes was Hatched--Cost of Letters to Recipients in 1843--The
+Overland Mail (p. 190)--Loss in Distributing the Mail in the District
+of Columbia and Other Territories--Post-office the only Evidence
+of National Beneficence--Profit and Loss of Mail Carrying--Orders
+Antedated, and Why--Routes Increased and Expedited--Additional Bonds for
+Additional Trips--The Charge that Pay was Received when the Mail was
+not Carried--Fining on Shares--Subcontracts for Less than the Original
+Contracts--Pay on Discontinued Routes--Alleged False Affidavits--Right
+of Petition--Reviewing the Ground.
+
+
+CLOSING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.
+
+Scheme of the Indictment--Story of the Case--What Constitutes Fraudulent
+Bidding--How a Conspiracy Must be Proved--The Hypothesis of Guilt and
+Law of Evidence--Conversation Unsatisfactory Evidence--Fallibility of
+Memory--Proposition to Produce Mr. Dorsey's Books--Interruption of the
+Court to Decide that Primary Evidence, having Once been Refused, can not
+afterwards be Introduced to Contradict Secondary Evidence--A Defendant
+may not be Presumed into the Penitentiary--A Decision by Justice
+Field--The Right of Petition--Was there a Conspiracy?--Dorsey's
+Benevolence (p. 250)--The Chico Springs Letter--Evidence of Moore
+Reviewed--Mr. Ker's Defective Memory--The Informer System--Testimony
+of Rerdell Reviewed--His Letter to Dorsey (p. 304)--The Affidavit of
+Rerdell and Dorsey--Petitions for Faster Time--Uncertainty Regarding
+Handwriting--Government Should be Incapable of Deceit--Rerdell's
+withdrawal of the Plea of Not Guilty (p. 362)--Informers, their Immunity
+and Evidence--Nailing Down the Lid of Rerdell's Coffin--Mistakes of
+Messrs. Ker and Merrick and the Court--Letter of H. M. Vaile to the
+Sixth Auditor--Miner's Letter to Carey--Miner, Peck & Co. to Frank A.
+Tuttle--Answering Points Raised by Mr. Bliss (396 et seq.)--Evidence
+regarding the Payment of Money by Dorsey to Brady--A. E. Boone's
+Testimony Reviewed--Secrecy of Contractors Regarding the Amount of their
+Bids--Boone's Partnership Agreement with Dorsey--Explanation of Bids
+in Different Names--Omission of Instructions from Proposals (p.
+450)--Accusation that Senator Mitchell was the Paid Agent of
+the Defendants--Alleged Sneers at Things held Sacred--What is a
+Conspiracy?--The Theory that there was a Conspiracy--Dorsey's Alleged
+Interest--The Two Affidavits in Evidence--Inquiry of General Miles--Why
+the Defendant's Books were not Produced--Tames W. Bosler's Testimony
+Read (p. 500)--The Court shown to be Mistaken Regarding a Decision
+Previously Made (pp. 496-502)--No Logic in Abuse--Charges against John
+W. Miner--Testimony of A. W. Moore Reviewed-The Verdict Predicted--The
+Defendants in the Case--What is left for the Jury to Say--Remarks of
+Messrs. Henkle and Davidge--The Verdict.
+
+
+ADDRESS TO THE JURY IN THE DAVIS WILL CASE.
+
+Note from the Anaconda _Standard_--Senator Sander's Warning to the Jury
+Not to be Enticed by Sinners--Evidence, based on Quality of Handwriting,
+that Davis did not Write the Will--Evidence of the Spelling--Assertion
+that the Will was Forged--Peculiarities of Eddy's Handwriting--Holes
+in Sconce's Signature and Reputation--His Memory--Business Sagacity
+of Davis--His Alleged Children--Date of his Death--Testimony of Mr.
+Knight--Ink used in Writing the Will--Expert Evidence--Speechlessness
+of John A. Davis--Eddy's Failure to take the Stand--Testimony of
+Carruthers--Relatives of Sconce--Mary Ann Davis's Connections--The
+Family Tree--The Signature of the Will--What the Evidence Shows--Duty
+and Opportunity of the Jury.
+
+
+ARGUMENT BEFORE THE VICE-CHANCELLOR IN THE RUSSELL CASE.
+
+Antenuptial Waiving of Dower by Women--A Case from Illinois--At What
+Age Men and Women Cease to Feel the Tender Flame--Russell's Bargain with
+Mrs. Russell--Antenuptial Contract and Parole Agreement--Definition
+of "Liberal Provision "--The Woman not Bound by a Contract Made in
+Ignorance of the Facts--Contract Destroyed by Deception.
+
+
+
+
+ADDRESS TO THE JURY IN THE MUNN TRIAL.
+
+     * 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.
+
+
+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.
+
+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.
+
+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?
+
+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!
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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?
+
+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?
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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."
+
+"Why?"
+
+"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."
+
+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.
+
+Now, gentlemen, the reason Munn gave was that the men there would notice
+it and make a disturbance about it.
+
+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.
+
+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?
+
+"Mr. Rehm, did you ever give Mr. Burroughs notice that Mr. Munn was
+coming in order that he might put his house in order?"
+
+Mr. Rehm says, "No."
+
+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.
+
+"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."
+
+That is another instance of the attorney's idea of corroboration.
+
+"Did you tell Hesing that Hoyt was innocent?" "I did not." "Mr. Hesing,
+did Mr. Rehm tell you that Hoyt was innocent?" "He did."
+
+Another corroboration.
+
+"Did you tell him that Munn never was in it--that Munn was innocent?"
+"No."
+
+We then asked him,
+
+"Did he tell you that?" "He did."
+
+We say to Burroughs,
+
+"In 1874, in 1873, in 1872, did Rehm tell you that Munn was not in it?"
+"He did."
+
+That is another idea I suppose of corroboration.
+
+Q. Mr. Rehm, how much money did the house of Dickenson &c Leach give
+you? A. Twenty-five thousand dollars.
+
+Q. Will you swear they did not give you thirty? A. I will.
+
+Mr. Leach on the stand:
+
+Q. How much money did your house give Rehm? A. Between forty thousand
+and fifty thousand dollars.
+
+Another instance of corroboration.
+
+We then called Mr. Burroughs upon the stand. He belonged to the same
+house:
+
+Q. How much money did you give Jacob Rehm? A. Fifty-two thousand
+dollars.
+
+Another instance of corroboration.
+
+Q. Mr. Rehm, did Mr. Abel ever give you any money? A. Yes, sir.
+
+Q. How many times? A. Once.
+
+Q. How much? A. Five hundred dollars.
+
+Q. Will you swear it was not a thousand? A. Yes.
+
+Mr. Abel take the stand.
+
+Q. Did you ever pay Jacob Rehm any money? A. Yes.
+
+Q. How often? A. Once.
+
+Q. How much? A. Two thousand dollars.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+What more? Col. Eastman was there at the same time.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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:
+
+Q. Were you sworn before that grand jury by anybody? A. Yes, sir.
+
+Q. Were you asked any question about this whiskey business? A. Yes, sir.
+
+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.
+
+Q. I ask you in regard to your answer to that, if you did not say you
+did not? A. I did not.
+
+Q. What did you say? A. The question was not asked in that way.
+
+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."
+
+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."
+
+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."
+
+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.
+
+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.
+
+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.
+
+They say, "Why don't you bring somebody to impeach Mr. Jacob Rehm?" Why?
+because he has impeached himself.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+[The Jury rendered a verdict of "Not Guilty."]
+
+
+
+
+CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL.
+
+     * 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.
+
+
+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.
+
+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.
+
+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?" "_Going to America_." 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.
+
+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, _everything_, 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.
+
+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.
+
+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:
+
+"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."
+
+Now, the court, in deciding this, says:
+
+"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."
+
+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."
+
+I also cite the case of the State against Clark, 3 Foster, New
+Hampshire, 429:
+
+"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.
+
+"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.
+
+"The jury found a verdict of guilty, which the defendant moved to set
+aside."
+
+Upon that the court says:
+
+"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."
+
+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.
+
+Clark vs. Commonwealth, 16 B., Monroe, 213:
+
+"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."
+
+And in this case I cite Dorsett's case, 5th Roger's Record, 77:
+
+"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."
+
+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:
+
+"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."
+
+This I understand was a decoy letter.
+
+"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."
+
+Upon that the court says:
+
+"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.
+
+"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."
+
+So I refer to the State vs. Langley, 34th New Hampshire, 530.
+
+The Court. I think, Colonel Ingersoll, there is no doubt about this
+doctrine.
+
+Mr. Ingersoll. I do not want any doubt about it.
+
+The Court. There cannot be.
+
+Mr. Ingersoll. Well, I will just read this because I do not want any
+doubt about it in anybody's mind.
+
+The Court. I have no doubt about it.
+
+Mr. Ingersoll. Very well:
+
+"If a recovery is to be had, it must be _secundum allegata et probata_;
+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."
+
+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:
+
+"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:
+
+"That difficulty does not exist here, for the overt act is part of the
+offence, and must be proved as laid in the indictment."
+
+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:
+
+"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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+"I shall take the responsibility of dispensing with the reading of
+petitions when there is no point made with regard to them."
+
+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:
+
+"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."
+
+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.
+
+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:
+
+"Mr. Bliss. The petitions under your Honor's ruling I am not going to
+offer."
+
+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:
+
+"The petitions under your Honor's ruling I am not going to offer."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Court. What is the date of the indictment?
+
+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?
+
+"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."
+
+He would not have discovered it if it had not been there, would he? That
+shows it was there.
+
+"I would not have recommended a ten-hour schedule on a seventy-mile
+route."
+
+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.
+
+The Court. I understand that.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+That is a fatal variance. This indictment charges it was filed July 16,
+1880. The petition cannot be considered.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Court. I never understood them as being offered as overt acts.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Fourth. To make and procure false oaths, declarations, and statements.
+Those I shall examine.
+
+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.
+
+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.
+
+The Court. Thirty-nine dollars.
+
+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.
+
+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. * * *
+
+"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."
+
+No matter whether the description was necessary or unnecessary:
+
+"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."
+
+Nothing can be plainer than that. I refer also to Starkie on Evidence,
+7th American edition, vol. 1, page 442. There he says:
+
+"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."
+
+I also cite Russell on Crimes, 9th American edition, vol. 3, page 305,
+and Roscoe's Criminal Evidence, 7th edition, page 86.
+
+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:
+
+"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."
+
+The indictment went on and stated various overt acts in furtherance of
+the conspiracy.
+
+"There were several other counts which all laid the conspiracy in the
+same way."
+
+Now I come to the part of the case which, in my judgment, affects this:
+
+"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."
+
+He was a co-conspirator, and he knew that the money was to be deposited
+at this place.
+
+He knew that, but he did not know that Sarah Harvey was to have a part
+of it.
+
+"Lord Ellenborough threw out a doubt whether as to Watson the indictment
+was supported by the evidence."
+
+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:
+
+"The attorney-general contended that the words in italics coming under
+a _videlicet_ 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."
+
+True.
+
+"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.
+
+"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?"
+
+I think that reasoning is bad. I think the crime is exactly the same.
+
+"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."
+
+That is good sense.
+
+"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.
+
+"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?"
+
+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?
+
+"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."
+
+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.
+
+"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."
+
+That is what the attorney for the Government says. Lord Ellenborough
+replies:
+
+"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."
+
+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.
+
+The Court. In that case Watson was acquitted. What was done with the
+others?
+
+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.
+
+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.
+
+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?
+
+The Court. The question is not what was done. The question is with what
+view the conspiracy was entered into.
+
+Mr. Ingersoll. Certainly.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+_A suspicious circumstance_. Why did they not get _under the lamp?_ 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.
+
+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.
+
+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.
+
+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:
+
+"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."
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+Mr. Ingersoll. Partially so.
+
+Mr. Merrick. The opening by their counsel.
+
+The Court. By their counsel.
+
+Mr. Merrick. By their counsel, Mr. McSweeney.
+
+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?"
+
+The Court. Where did they say that?
+
+Mr. Ingersoll. They said it in their speeches. Mr. Merrick said it.
+
+Mr. Merrick. Not to prove as to the money.
+
+Mr. Ingersoll. Ay, "Why did you not bring James W. Bosler?"
+
+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.
+
+The Court. I shall not interfere.
+
+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.
+
+The Court. I understand it is a remark in reply to an observation of
+your own.
+
+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.
+
+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?
+
+The Court. The defence has no right to avail itself of--Mr. Ingersoll.
+[Interposing.] Of what it says.
+
+The Court. Of what it says in its opening unless it is followed by
+evidence.
+
+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.
+
+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:
+
+"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."
+
+Good!
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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!
+
+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.
+
+Route 38113. Charge: Fraudulently filing a subcontract. That is all. You
+cannot fraudulently file a subcontract.
+
+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.
+
+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.
+
+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:
+
+"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.'"
+
+This is quoted.
+
+"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."
+
+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:
+
+"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."
+
+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:
+
+"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."
+
+What does that mean? Boone cannot remember Whether he called him Miner
+or called him a friend of his from Sandusky. What else?
+
+"A. There was to be nobody that I understood outside of the parties I
+spoke of.
+
+"Q. You and John W. Dorsey and Peck?--A. And Mr. Miner."
+
+"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."
+
+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.
+
+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.
+
+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.
+
+The Court. You offered to prove that.
+
+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.
+
+The Court. You offered to prove the fact.
+
+Mr. Ingersoll. I do not remember offering to prove it. I proved it.
+
+The Court. If it was not proven--Mr. Ingersoll. [Interposing.] I did
+prove it as a fact.
+
+The Court. That he made a statement.
+
+Mr. Ingersoll. Yes, sir. Right here it is [taking up the record].
+
+The Court. Oh, well, you cannot base any remarks upon that.
+
+Mr. Ingersoll. Let me read what the evidence says:
+
+"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?
+
+"The Witness. To what statement do you refer?
+
+"Mr. Ingersoll. To the statement that was made in writing and given to
+you and the attorney-general by ex-Senator S. W. Dorsey?
+
+"A. It must have been after that.
+
+"Q. You mean Rerdell's statement was after that?--A. Yes, sir.
+
+"Q. Did you ever see that statement made by Senator Dorsey?--A. It was
+referred to the attorney-general.
+
+"Q. Did you ever see it?--A. Certainly.
+
+"Q. Do you know where it now is?--A. I do not."
+
+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.
+
+The Court. For anything the Court knows it might have been a confession.
+We do not know anything about it.
+
+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.
+
+The Court. Probably it would.
+
+Mr. Ingersoll. Yes, sir; that is my point.
+
+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.
+
+Mr. Ingersoll. No, sir; and no man has a right to say that because he
+did deny it is evidence of his innocence.
+
+The Court. It is not evidence either way.
+
+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.
+
+The Court. On the principle, I suppose, of an account rendered and no
+objection made?
+
+Mr. Ingersoll. Good. That is a good idea.
+
+The Court. I do not see anything in that.
+
+Mr. Ingersoll. I see a great deal in it, and it is a question whether
+the jury can see anything in it.
+
+The Court. It is a question whether the Court too----
+
+Mr. Ingersoll. [Interposing.] Very well.
+
+The Court. [Continuing.] Whether the Court is going to allow an argument
+to be based upon a mere vacuum--wind, nothing.
+
+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.
+
+The next question, then, is what is the _corpus delicti_; 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:
+
+"The corpus delicti, the body of an offence, is the fact of its actually
+having been committed."
+
+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.
+
+"The corpus delicti is the body, substance or foundation of the
+offence. It is the substantial and fundamental fact of its having been
+committed."
+
+1 Haggard, 105, opinion by Lord Stowell.
+
+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:
+
+"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."
+
+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.
+
+"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."
+
+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.
+
+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.
+
+Mr. Ingersoll. Certainly; it made no difference. Everybody is supposed
+to know the law.
+
+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.
+
+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.
+
+The Court. Did you not say that the decision there was that the
+conspiracy might be inferred from the combination to do the act?
+
+Mr. Ingersoll. I will just read it and then there will be no guessing
+about it:
+
+"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.
+
+"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.
+
+"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."
+
+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.
+
+"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."
+
+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.
+
+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?
+
+Now, take the testimony of Mr. Walsh, and I find some improbabilities in
+it. Just let me read you a few:
+
+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.
+
+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.
+
+3. Bankers and brokers do not, as a rule, take notes payable on demand,
+because such notes are not negotiable.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+There are also other improbabilities connected with this testimony.
+
+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.
+
+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:
+
+"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."
+
+That the conspiracy has been established.
+
+"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."
+
+"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."
+
+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:
+
+"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."
+
+Now, let us see what the court says about it:
+
+"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."
+
+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.
+
+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.
+
+The Court. What evidence do you refer to?
+
+Mr. Ingersoll. I refer to the Star Route investigation in Congress.
+
+The Court. That record is not in evidence.
+
+Mr. Ingersoll. I thought that was in evidence.
+
+The Court. No, sir.
+
+Mr. Ingersoll. It was used as if it was in evidence. I saw people
+reading from it, and supposed it was in evidence.
+
+The Court. It is not in evidence.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+"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."
+
+Let me read that again:
+
+"_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_."
+
+The second proposition is:
+
+"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."
+
+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:
+
+"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."
+
+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.
+
+"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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+You were also told that the people generally have anticipated your
+verdict.
+
+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?
+
+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.
+
+If I were on the jury I would, in the language of the greatest man that
+ever trod this earth--
+
+  Strip myself to death, as to a bed
+  That longing have been sick for, before I would give a false verdict.
+
+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:
+
+"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.
+
+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:
+
+"Man when he undertakes to judge his brother-man undertakes to perform
+the highest duty given to humanity."
+
+Good!
+
+He should perform that duty without fear, without prejudice, without
+hatred, and without malice. He should perform that duty honestly,
+grandly, nobly.
+
+I read on:
+
+"Inclosed within the jury-box or on the bench he is separated from the
+great mass of mankind--"
+
+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:
+
+     "and sentiments of brotherhood die away."
+
+About that time you would be nice men:
+
+"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."
+
+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:
+
+     "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."
+
+And yet the only mercy we ask in this case, gentlemen, is the mercy of
+an honest verdict. That is all.
+
+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.
+
+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 _holiest word
+is wife_.
+
+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.
+
+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--_Not Guilty_. 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.
+
+
+
+
+OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.
+
+
+Washington, D. C., Dec. 21, 1882.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.]
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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]
+
+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.
+
+We will take first the route from Garland to Parrott City. ***
+
+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.
+
+
+
+
+CLOSING ADDRESS IN SECOND STAR ROUTE TRIAL
+
+Closing Address to the Jury in the Second Star Route Trial.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Court. Colonel Ingersoll, you cannot argue that question to the
+jury; you cannot cite an authority and discuss it to the jury.
+
+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.
+
+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.
+
+The Court. But if afterwards they should attempt to contradict the
+secondary evidence the Court would not have allowed them to do it.
+
+Mr. Ingersoll. It does not say so.
+
+The Court. That is the law.
+
+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.
+
+The Court. I have never seen such authority, but I have seen a great
+many to the contrary.
+
+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.
+
+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.
+
+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.
+
+The Court. It was not his statement here.
+
+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.
+
+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.
+
+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:
+
+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.
+
+I believe just about that time, or a little after, another notice was
+given.
+
+Mr. Merrick. If the counsel will allow me, my impression is that that
+notice was deemed by the Court to be too broad.
+
+The Court. It was.
+
+Mr. Ingersoll. Then another notice was given that specified all these
+things.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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----
+
+Mr. Ingersoll. [Interposing.] It may not be contradicted, because it
+happens to be inherently improbable.
+
+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.
+
+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.
+
+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.
+
+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.
+
+That same thing has been claimed here.
+
+The Court. No.
+
+Mr. Ingersoll. We have heard it very often that this was a large
+business.
+
+The Court. You have not heard anything of that kind from the Court.
+
+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:
+
+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.,
+
+He applied the word "beneficent" to a rule that put a man in the
+penitentiary on a presumption.
+
+The Court. He was conservative.
+
+Mr. Ingersoll. He ought to read some work on the use and abuse of words.
+Now, Judge Field says further:
+
+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 _prima facie_ 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.
+
+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?"
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+Mr. Ker, on page 4493, makes a very important admission.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+Q. You agreed to sign what?--A. All the necessary papers to carry on the
+business.
+
+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:
+
+The Post-Office Department, in regard to this route, will hereafter send
+all communications to the undersigned.
+
+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.
+
+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:
+
+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.
+
+The Court. These same orders would have been made if the division had
+been perfectly honest.
+
+That is what I say. That is what we all say, gentlemen.
+
+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.
+
+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:
+
+You will bear in mind that the division took place some eight months
+previous to that.
+
+That was January 1, 1880,
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+Not July 11. That is the day he got the money of Dorsey.
+
+July 24, 1878.
+
+Received of Miner, Peck & Co., one hundred and sixty-six dollars,
+balance of salary and expenses in full to July 11, 1878.
+
+A. W. MOORE.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+On page 4757 Mr. Bliss says--Moore stands before you, therefore, so
+far as all this testimony is concerned, wholly and absolutely
+uncontradicted.
+
+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."
+
+Mr. Ker, it seems, has an opinion of this same witness, I believe. He
+says, on page 4511:
+
+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.
+
+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:
+
+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.
+
+He expressly denies that he ever fixed a petition in the world.
+
+Mr. Ker. What page?
+
+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.
+
+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:
+
+Q. Did you get up any?--A. No, sir; I didn't have the time.
+
+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.
+
+Mr. Ker. I asked you for the page on which Mr. McBean's testimony
+appears.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+Mr. Merrick. Is there any proof of that?
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Ker. I would like--
+
+Mr. Ingersoll. [Interposing.] I don't want to hear from you.
+
+The Court. You do not know what he is going to say.
+
+Mr. Ingersoll. He may be intending to make a motion that the jury be
+instructed to find a verdict of not guilty.
+
+Mr. Ker. As Mr. Merrick will have to answer, he simply wants to know the
+page.
+
+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.
+
+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.
+
+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.
+
+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 Caesar, he says, "Would you praise Caesar, say Caesar. 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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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."
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Now I am going to demonstrate this. When Mr. Rerdell got to Jersey City
+he telegraphed back, according to the evidence of Mr. Dorsey:
+
+Up to this moment I have been faithful to every trust.
+
+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.
+
+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.
+
+Why, in comparison with that cheek brass is a liquid. What is the next
+sentence?
+
+The affidavit story is a lie.
+
+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.
+
+Mr Crane (foreman of the jury.) I notice that this dispatch seems to
+have been written with different pencils at different times.
+
+Mr Ingersoll--Up to this moment I have been faithful to every trust--Is
+written very dimly.
+
+The affidavit story is a lie, but confidence between us is gone--Is in
+still a different hand.
+
+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.
+
+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."
+
+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.
+
+Now, let us follow Mr. Rerdell from the Albemarle Hotel.
+
+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?
+
+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.
+
+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?
+
+Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of the
+jury.
+
+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?"
+
+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.
+
+Mr. Merrick. Is there any evidence of the conversation between Torrey
+and Dorsey?
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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:
+
+I tried not to remember anything of this.
+
+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?
+
+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.
+
+It was not only one book, then.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+Q. Was it an exact copy of the book?--A. It was not.
+
+Q. In what did it differ from the book you were keeping?--There were
+some items left out.
+
+Q. What accounts did you leave out?--A. I left the William Smith account
+out.
+
+Q. What did you do with that amount in order to balance the books?
+
+Now, I want you to pay particular attention to this answer.
+
+A. My recollection is that I carried it to profit and loss.
+
+Q. On the books or on the balance sheet?--A. On both.
+
+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:
+
+Q. Were there any other accounts transferred in the same way?--A. I
+rather think there were, but I am not certain.
+
+Q. Did you make the books balance on your copy?--A. Yes, sir.
+
+Q. How long were you working on that copy?--A. I was working on it two
+evenings and all of one night.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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; _that had been brought to him_. 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 _further_. 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:
+
+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.
+
+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:
+
+My action was in your behalf.
+
+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.
+
+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:
+
+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.
+
+Q. What did he say?--A. He then asked me if I had done anything further
+since I had left him.
+
+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?"
+
+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."
+
+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.
+
+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.
+
+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:
+
+July 5, 1882.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Here comes, gentlemen, the blossom and flower of this paragraph:
+
+And that, too, almost penniless.
+
+Then the letter goes on:
+
+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.
+
+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?
+
+At least I have every reason to believe such would have been the result.
+
+He would have had an office, he has every reason to believe. Why? They
+must have promised it to him.
+
+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.
+
+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.
+
+In taking this step let me say this: It is the result of much thought
+and also of preparation.
+
+I think so. The preparation of several papers.
+
+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.
+
+Well, I think that is where he has gone.
+
+Therefore I have concluded to be used no longer, and propose to look out
+for myself.
+
+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.
+
+You see, gentlemen, he wanted to leave an unspotted reputation to his
+children.
+
+I deem it as being due to you that I should give you notice of my
+intention. Very truly,
+
+M. C. RERDELL.
+
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+On his examination-in-chief he swore that these words were written by
+Dorsey.
+
+On his examination-in-chief he swore that Dorsey wrote this:
+
+And to further deceive them and learn their plans, carried the
+letter-book containing--And then he wrote--the much-talked of Oregon
+correspondence.
+
+Afterward, when cross-examined, he swears, I think upon the same page,
+2506, that he himself wrote the words:
+
+Carried the letter-book containing.
+
+That Dorsey did not write them. He also swears in his
+examination-in-chief that Dorsey wrote these words:
+
+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.
+
+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.
+
+On his examination-in-chief he swears that he wrote this himself:
+
+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."
+
+On cross-examination he takes it back, and swears, on page 2503, that
+Dorsey wrote the words:
+
+It will be all right.
+
+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:
+
+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."
+
+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:
+
+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."
+
+On cross-examination, on page 2500, he swears that Dorsey wrote the
+words:
+
+Your matters shall be attended to.
+
+But he still admitted that he, Rerdell, wrote the words and put them in
+the mouth of the Attorney-General:
+
+You shall be well taken care of.
+
+He says in his letter of July 5, 1882:
+
+If I had remained with the Government I have every reason to believe I
+would have a good position.
+
+What next? Mr. Rerdell, in his examination-in-chief, swears that he
+himself wrote these words:
+
+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.
+
+On cross-examination, at page 2505, he swears that Dorsey wrote a part
+of this; that Dorsey wrote the following words:
+
+As it was best not to put him into the Post-Office Department for fear
+of criticism.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Merrick. Pardon me; point me to that evidence.
+
+Mr. Ingersoll. I will refer to it hereafter. I do not wonder, gentlemen,
+that they dislike this pencil memorandum.
+
+Mr. Merrick. No, sir; I only want to keep you within correct limits.
+
+Mr. Ingersoll. I understand that. I do not blame anybody for disliking
+that pencil memorandum.
+
+Mr. Merrick. You can convict Rerdell as much as you like.
+
+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.
+
+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.
+
+Mr. Wilson. Rerdell did not handle the money.
+
+Mr. Ingersoll. Of course not; there was no money at that time to handle;
+they had not got as far as the handle.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+That paper shows that it was manufactured by the one who wrote this
+paper, and by nobody else.
+
+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."
+
+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.
+
+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.
+
+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:
+
+     Mary had a little lamb,
+     Its fleece was white as snow,
+     And everywhere that--
+
+"I suppose you will throw in the saddle and bridle?"
+
+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.
+
+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.
+
+Mr. Bliss. Mr. Ingersoll, Mr. Donnelly does not mention in any way and
+is not asked on the subject of Mr. Mitchell.
+
+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.
+
+Mr. Bliss. I claim the right.
+
+Mr. Ingersoll. Well, go on; the poor man only had seven days in which to
+make his speech.
+
+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.
+
+Mr. Ingersoll. It is on page 2637.
+
+Mr. Davidge. And at page 2639, about two inches from the top.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+On page 2219, Rerdell says that he was instructed to establish a
+_paper post-office_ 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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Merrick. That was afterwards corrected.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Now for 11 B:
+
+Hon. D. M. Key, Postmaster-General:
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+I call your attention to page 2446; that is about the affidavit.
+
+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.
+
+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.
+
+On page 3736 S. W. Dorsey swears that he, Rerdell, did not give him any
+balance sheets.
+
+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.
+
+On page 2461 Rerdell is asked if he did not admit to Judge
+
+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!
+
+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:
+
+Very likely I said I brought no book over from New York.
+
+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.
+
+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!
+
+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.
+
+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."
+
+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?
+
+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.
+
+On page 3810 Dorsey swears that it was a pencil memorandum imitating his
+(Dorsey's) hand closely.
+
+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.
+
+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.
+
+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:
+
+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.
+
+There was no settlement in 1880, the time he speaks of. Mr. Merrick then
+says:
+
+Q. There were two sets of those copies?
+
+That would be four copies and two originals.
+
+A. No, sir.
+
+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.
+
+On page 2470 Rerdell swears that he did not give the books to Dorsey in
+1881.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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."
+
+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--
+
+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.
+
+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.
+
+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:
+
+Chico Springs, P. O.
+
+Mountain Spring Ranch, Colfax County, New Mexico,
+
+"April 3, 1878.
+
+"M. C. Rerdell, 1121 I Street:
+
+"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,
+
+"Faithfully,
+
+"DORSEY."
+
+Q. What Dorsey was that?--A. That is S. W. Dorsey's handwriting.
+
+Q. And signature?--A. Yes, sir.
+
+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.
+
+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.
+
+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.
+
+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:
+
+Washington: Government Printing Office. 1878.
+
+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.
+
+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.
+
+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:
+
+Hon. J. L. Routt, Denver:
+
+My Dear Governor: I wish to introduce my friend, Mr. M. C. Reddell.
+
+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.
+
+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:
+
+Lewis Johnson & Co., note due 28th October, three thousand dollars.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Still another point:
+
+Mr. Bliss, after this jury had been impaneled, stood before them while
+Rerdell was sitting with us as a defendant, and said:
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+But he speaks further on the subject. I read from page 2523. I was then
+examining him:
+
+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.
+
+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.
+
+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:
+
+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.
+
+Now, let us go to the next step. I want to be perfectly fair. On page
+2591 Mr. Merrick asked Mr. Rerdell this question:
+
+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.
+
+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.
+
+These things, gentlemen, you must remember.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+Now, on page 2523:
+
+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.
+
+In another place he swears that it was, and that the arrangement was
+carried out.
+
+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.
+
+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.
+
+The Court. What point are you now making to the Court?
+
+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.
+
+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.
+
+The Court. You have demonstrated, as far as you have been able to, that
+he has not sworn truthfully.
+
+Mr. Ingersoll. He has not; he has not; and if the Government will act
+fairly with him he will get no immunity.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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:
+
+An accomplice is used by the Government because his evidence is
+necessary to a conviction.
+
+That is the opinion of Mr. Justice MacLean, in 4 MacLean's Circuit Court
+Reports, 103.
+
+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.
+
+Mr. Ingersoll. The usual question is--and the court determines that
+question--whether a man shall be a witness or not.
+
+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.
+
+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.
+
+The Court. Then it belongs to the prosecuting attorney.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Court. Oh, well, of course it did.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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:
+
+First nail--affidavit of June 20, 1881; drive it in.
+
+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.
+
+Third nail--affidavit of July 13, 1882, where he swears that they were
+all perfectly innocent.
+
+Fourth nail--the pencil memorandum; drive that in.
+
+Fifth nail--the tabular statement that gave thirty-three and one-third
+per cent, to Brady; drive it in.
+
+Sixth nail--his pretended letter to Bosler telling about the advice of
+Brady; drive that in.
+
+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.
+
+Wind his corpse up in the balance-sheets from the red books made by
+Donnelly.
+
+Then you want a plate for his coffin. Let us paste right on there the
+Chico letter, April 3, 1878.
+
+Now, we want grave-stones. Let us take the red books, put one at his
+head and one at his feet.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+What evidence is there of that? Is there any evidence that any route of
+Dorsey's was expedited not mentioned in this indictment?
+
+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.
+
+At page 4546 you are told by Mr. Ker that--Nobody ever heard of
+expedition on a route before.
+
+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.
+
+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.
+
+J. W. Dorsey testified upon that subject, and his testimony will be
+found at page 4085:
+
+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.
+
+And in his entire testimony in chief and cross, I believe there is not
+another question on that subject.
+
+On page 4549, referring to the letter of John M. Peck, which was in fact
+written by Miner, Mr. Ker says:
+
+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. .
+
+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.
+
+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.
+
+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:
+
+Q. It was done so entirely, was it not?--A. It ought to have been so.
+
+Now, let me read you the balance:
+
+Q. Was it not so done?--A. No, sir.
+
+Q It was not?--A. No, sir.
+
+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.
+
+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.
+
+Q. From whom?--A. From Mr. Bosler and myself.
+
+Q. At what time?--A. I should think in February, 1882.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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."
+
+The subcontract, gentlemen, states that Sanderson is to have the entire
+pay, and it was before the contract term began. So much for that.
+
+Mr. Ker. When was it filed?
+
+Mr. Wilson. That does not make any difference.
+
+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?"
+
+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.
+
+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:
+
+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.
+
+Truly, yours,
+
+JNO. R. MINER, Ag't.
+
+
+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?
+
+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.
+
+Yet that is considered as evidence of fraud; that is considered as
+evidence of conspiracy.
+
+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:
+
+Practically on July 1, 1880, we doubled up the entire service for all
+the Southern and Middle States.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Here is his cross-examination, gentlemen: * * *
+
+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.
+
+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.
+
+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.
+
+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:
+
+To the Sixth Auditor:
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+Respectfully,
+
+M. C. RERDELL.
+
+
+Acting for himself and for the regular contractor on route 40104.
+
+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:
+
+Washington, D. C., July 9, 1880.
+
+Hon. J. McGrew:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+I am, very respectfully,
+
+H. M. VAILE.
+
+
+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.
+
+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.
+
+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.
+
+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?
+
+On page 4569 Mr. Ker says that Mr. Farrish, who was the subcontractor
+says:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+Mr. Ker. Will you tell me what page it was I spoke about Boone?
+
+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:
+
+This, I think, can leave no doubt in the minds of any one that the
+extension was obtained by Mr. Boone.
+
+Mr. Bliss says that on page 4899, and so I will relieve Mr. Ker of that
+charge.
+
+Mr. Ker. I am glad to be relieved of something.
+
+Mr. Ingersoll. I do not want to do any injustice to Mr. Ker; between Mr.
+Bliss and Mr. Ker I am perfectly impartial.
+
+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?
+
+The Court. Yes.
+
+Mr. Ingersoll. [Resuming]. If the Court please, and gentlemen of the
+jury, on page 4645 there is the letter from Miner to Carey.
+
+John Carey, Esq.,
+
+Fort McDermitt, Nev.
+
+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.
+
+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.
+
+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.,
+
+JOHN R. MINER.
+
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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?
+
+Mr. Ker also says that Miner's letter to Tuttle shows the conspiracy.
+
+It is perfectly wonderful, gentlemen, how suspicion changes and poisons
+everything.
+
+Let me read you the letter from which Mr. Ker draws the inference that
+there was a conspiracy. It is on page 885:
+
+Washington, D. C., August 19, 1878. Frank A. Tuttle, Box 44, Pueblo,
+Colo.,
+
+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.
+
+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,
+
+MINER, PECK & CO.
+
+
+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:
+
+We make no boast of being solid with anybody, but can get what is
+reasonable.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Court. Or a boy.
+
+Mr. Ingersoll. Or a stout, tough boy.
+
+The Court. A boy would be best.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+I accepted their statement as conclusive so far as they knew.
+
+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.
+
+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.
+
+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.
+
+Mr. Wilson. He never made that statement until he made it during the
+progress of my argument when I was discussing that very point.
+
+Mr. Bliss. You are mistaken.
+
+Mr. Merrick. He made it while I was here and I was not here during Mr.
+Wilson's argument.
+
+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.
+
+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.
+
+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.
+
+Mr. Bliss. There were two on the Pueblo and Rosita route by John W.
+Dorsey.
+
+Mr. Ingersoll. We will come to them. You will get tired of them before
+we get through with them.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Bliss. Were they added coincidently with the affidavit for
+expedition?
+
+Mr. Ingersoll. You say they were not added; I say they were.
+
+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.
+
+Mr. Ingersoll. I say that at that time there was an increase.
+
+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.
+
+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:
+
+Date, July 8, 1879. State, Colorado.
+
+Number of route, 38134.
+
+Termini of route, Pueblo and Rosita.
+
+Length of route, fifty miles.
+
+Number of trips per week, one.
+
+Mr. Bliss. I see you are right. The trips were increased.
+
+Mr. Ingersoll. When anybody gives it up I will stop. That is fair and
+that is honorable.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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 encyclopaedia 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.
+
+Twelfth point. On page 4800, bottom line, Mr. Bliss says:
+
+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."
+
+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.
+
+Mr. Bliss. Are there not two petitions there altered?
+
+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.
+
+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.
+
+Mr. Ingersoll. That is not the only point. The point is, who wrote
+"faster time"?
+
+Mr. Bliss. That is not what I said. You have not given the whole
+sentence.
+
+Mr. Ingersoll. You cannot expect me to read your whole seven days'
+speech. That would be too much. This is what you said:
+
+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."
+
+That is it exactly.
+
+Mr. Bliss. Then follows this:
+
+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.
+
+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.
+
+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."
+
+Now, as a matter of fact, Mr. McBean does not state any conversation
+with Moore covering this route. That was another mistake. No matter.
+
+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.
+
+Mr. Bliss. That is long after the time I was referring to. As to the
+other point, I simply repeat it.
+
+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!
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Bliss. Is not that the date of the order?
+
+Mr. Ingersoll. It may have been the date of your order.
+
+Mr. Bliss. Is not that the date of the order in the case?
+
+Mr. Ingersoll. I do not know anything about that. I give you the exact
+facts.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+Mr. Bliss. I did not intend that, Colonel Ingersoll. I do not think it
+is capable of that interpretation.
+
+Mr. Ingersoll. What did you mean?
+
+Mr. Bliss. As to the statement being in the books it is uncontradicted.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+I meant nothing about the impudence of going to the President.
+
+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.
+
+Mr. Bliss. Not upon the sole testimony, I suppose.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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?
+
+"N. B. You will make such contracts with all contractors.
+
+"P. S. Don't tell anybody."
+
+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.
+
+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.
+
+Mr. Carpenter. He was in charge of the mail bills on that route.
+
+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.
+
+On page 4969 Mr. Bliss says:
+
+They have not, up to this moment, dared to state under oath, I think,
+that those books are not in their possession.
+
+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.
+
+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.
+
+Mr. Ingersoll. All right; away goes that.
+
+On page 4983 Mr. Bliss says:
+
+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.
+
+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.
+
+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.
+
+Mr. Ingersoll. Do you say now that the other routes of his, to the
+number you talked of, were expedited?
+
+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.
+
+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.
+
+Mr. Bliss. There is no evidence on that subject.
+
+Mr. Ingersoll. Is there any evidence of what you say?
+
+Mr. Bliss. I put a supposititious case; you have stated a fact.
+
+Mr. Ingersoll. I will put another supposititious case, and mine is that
+the other routes were not expedited.
+
+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.
+
+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--
+
+The Court. [Interposing.] He stated his supposition, and you met that
+supposition--
+
+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:
+
+There is a question raised as to whether it was drawn in Mr. Rerdell's
+presence.
+
+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.
+
+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.
+
+Now, Mr. Bliss says:
+
+No evidence was given as to what Stephen W. Dorsey was wanting just at
+that time with seven thousand five hundred dollars in bills.
+
+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.
+
+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:
+
+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.
+
+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:
+
+Mr. Dorsey was not taking seven thousand five hundred dollars in bills
+to the West.
+
+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?
+
+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:
+
+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:
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+And then he adds this piece of gratuitous information:
+
+Mr. Dorsey was not taking seven thousand five hundred dollars in bills
+to the West.
+
+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?
+
+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.
+
+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.
+
+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?
+
+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."
+
+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?
+
+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.
+
+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.
+
+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.
+
+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."
+
+So now, gentlemen, if the Court will permit, I would like to adjourn
+till to-morrow morning.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+We slept with them until we could get them to the department.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+Now, this is what Mr. Bliss says:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+I am like the Democrat who said, after hearing the returns from Berks
+County, "That sounds good." Then, here is a question asked him:
+
+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.
+
+Q. Do you recollect about the date of that?--A. I think it is on the day
+John W. Dorsey got here in Washington.
+
+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:
+
+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.
+
+Now, gentlemen, there was the original partnership agreement. Let us see
+if that was ever dissolved.
+
+The next contract was made on the 12th of September, 1878.
+
+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.
+
+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;
+
+Washington, D. C, August 7, 1878.
+
+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.
+
+JOHN R. MINER.
+
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Postmaster-General; every one of you. If you do not know all about this
+subject, you never will.
+
+The Foreman (Mr. Crane). We ought to be good lawyers, too.
+
+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.
+
+Let me read more from what Mr. Boone says on page 1565:
+
+The proposals that I destroyed were upon routes of at least six times
+per week.
+
+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:
+
+I was going on without instructions. I was going on without authority
+from anybody, working on the bids.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+When, as a matter of fact, did you go out of the concern?--A. The 8th
+day of August, 1878.
+
+Q. Was S. W. Dorsey then in Washington?--A. No, sir; he was not. He had
+been gone ten or twelve days.
+
+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.
+
+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.
+
+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."
+
+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:
+
+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.
+
+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?
+
+On page 1580, again quoting from Mr. Boone:
+
+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:
+
+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.
+
+Do you want any better testimony than that, that Dorsey did refuse to
+advance any more money?
+
+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:
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+Mr. Carpenter. On the proposals.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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?
+
+And he answered:
+
+No, sir.
+
+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.
+
+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.
+
+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.
+
+Mr. Merrick. Was Mr Dorsey here at that time?
+
+Witness. He was here, sir; and I was in communication with him on that
+very day.
+
+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.
+
+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:
+
+Everything above "profit and loss" in that memorandum favors the
+handwriting of S. W. Dorsey.
+
+What else?
+
+And everything below favors the handwriting of M. C. Rerdell.
+
+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.
+
+What else? Mr. Bliss, on page 303, says that:
+
+Parties conspiring make an informal verbal agreement.
+
+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.
+
+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.
+
+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.
+
+Something had to be said, and so Mr. Bliss, on page 265, in a little
+burst of confidence to the jury, says:
+
+At least one United States Senator was the paid agent of these
+defendants.
+
+Who was the Senator?
+
+Mr. Bliss. Did I say that, sir?
+
+Mr. Ingersoll. Look at page 265 and see whether you did.
+
+Mr. Bliss. Read all that I said there.
+
+Mr. Ingersoll. I will do that.
+
+But we shall show to you that at least one United States Senator, urging
+such increase, was the paid agent of these defendants.
+
+Mr. Bliss. I then went on and said we should show it if you put him on
+the stand.
+
+Mr. Ingersoll. Yes, if we furnished you the evidence.
+
+Mr. Bliss. No, sir; that is not what I said.
+
+Mr. Ingersoll. Why didn't you produce the Senator?
+
+Mr. Bliss. Why didn't you put him on the stand?
+
+Mr. Ingersoll. How did I know what Senator you meant?
+
+Mr. Bliss. Did you have two?
+
+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.
+
+Mr. Bliss. Whose name is expressed in the memorandum?
+
+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.
+
+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.
+
+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:
+
+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.
+
+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?
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+20 H was filed May 7th. That is not in time. That is gone.
+
+29 H has no file mark, and never was proved. So that goes.
+
+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.
+
+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.
+
+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.
+
+The other exception is on the Bridge Creek route, and, strange as it may
+appear, that was also filed by Mr. Rerdell.
+
+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.
+
+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.
+
+Mr. Ingersoll. Before the conspiracy.
+
+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.
+
+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.
+
+The Court. Yes; you are right.
+
+Mr. Ingersoll. Now, that saves a great deal of trouble.
+
+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?
+
+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.
+
+Now, they attacked the affidavit on the Bridge Creek route, but they did
+not succeed in showing that it was not an honest affidavit.
+
+Now, gentlemen, after what the Court has decided I want to call your
+attention to another thing.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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, Oregon, Nevada, and California, to H. M. Vaile,
+one-third; to John R. Miner, one-third; to John M. Peck, one-third.
+[Page 4014.]
+
+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.
+
+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.
+
+Mr. Merrick. When did you say he sold out and got the money?
+
+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?
+
+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.
+
+Mr. Bliss. Miner does not say when. He swore that he, signed no papers
+after the 5th of May, 1879.
+
+Mr. Ingersoll. He says that he signed no papers for the other side, and
+that the other side signed none for Vaile and Miner.
+
+Mr. Davidge. You are talking of two different things.
+
+Mr. Ingersoll. I will show you after awhile that you are wrong, as I
+always do. I never made a mistake on you yet.
+
+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.
+
+Mr. Bliss. You will have a great deal to admit.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Bliss. Where does Mr. Dorsey say that it was filled up when he swore
+to it?
+
+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.
+
+Mr. Bliss. I undertake to say that it cannot be found in his evidence.
+
+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.
+
+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.
+
+Now see what Mr. Bliss says on page 4914:
+
+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.
+
+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.
+
+Mr. Davidge. There was a Sunday intervened.
+
+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:
+
+Q. When did you return from that visit?--A. I returned about the 5th of
+May.
+
+Q. State whether or not after you returned, you found blank affidavits
+among the papers connected with the business?--A. Yes, sir.
+
+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.
+
+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.
+
+Q. Did they purport to have been sworn to?--A. Yes, sir.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+Mr. Crane (foreman of the jury). Was not that first affidavit
+interlined?
+
+Mr. Ingersoll. No, sir.
+
+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.
+
+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.
+
+Hon. Thomas J. Brady,
+
+Second Assistant Postmaster-General:
+
+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.
+
+Respectfully,
+
+JOHN W. DORSEY,
+
+Subcontractor.
+
+There does not appear to be any erasure or interlineation or anything
+else in that affidavit. Now, here is the other one:
+
+Hon. Thomas J. Brady,
+
+Second Assistant Postmaster-General:
+
+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.
+
+Respectfully,
+
+JOHN W. DORSEY,
+
+Subcontractor.
+
+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.
+
+Mr. Crane (foreman of the jury). That has puzzled me a good deal, to
+understand the motive of those two affidavits.
+
+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.
+
+Will somebody give me number 18 K; I just happened to see something
+there which may be worth something, or may not.
+
+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.]
+
+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.
+
+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.
+
+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:
+
+Q. When you got to Fort Keogh did you go to see General Miles?--A. Yes,
+sir.
+
+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."
+
+"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.
+
+Q. What, if anything, did General Miles say that convinced you that you
+ought to build stations nearer together?
+
+Then he testifies that on account of what he said he did this, and that
+he had no instructions from Washington.
+
+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.
+
+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.
+
+Mr. Bliss, gentlemen, on page 243, in speaking of the two affidavits on
+the Pueblo and Rosita route, says:
+
+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.
+
+Now, he goes on to describe these two affidavits, and then he says:
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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?
+
+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.
+
+Mr. Merrick. Is there any evidence that they were all reported to
+Congress?
+
+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.
+
+Mr. Merrick. The investigation of 1880 was general, and not as to these
+particular routes.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+So much, gentlemen, for the affidavits, and so much for the papers.
+
+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.
+
+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.
+
+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.
+
+The Court. Where did you offer to produce the books?
+
+Mr. Merrick. Where did you offer the production of the books? That is
+just what I was about to ask.
+
+Mr. Carpenter. The Court said we could not.
+
+Mr. Merrick. Where did you make the offer?
+
+The Court. I want to know.
+
+Mr. Carpenter. Mr. Ingersoll did not say he made the offer.
+
+Mr. Merrick. I think he did.
+
+The Court. I think he did.
+
+Mr. Carpenter. Just read it, Mr. Stenographer. He says nothing of the
+kind.
+
+The Stenographer, (reading)
+
+I insisted that we had the right then to produce them, and the Court
+decided that we had not.
+
+Mr. Ingersoll. That is exactly what I say.
+
+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.
+
+Mr. Ingersoll. That is all I claim.
+
+The Court. But there was no such offer made, so far as I recollect.
+
+Mr. Ingersoll. Why should we make the offer after your Honor had decided
+that we could not do it?
+
+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.
+
+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.
+
+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.
+
+The Court. You made no offer to produce the books.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Merrick. You are right.
+
+Mr. Ingersoll. That just shows how easy it is to make a mistake when it
+comes to a matter of recollection.
+
+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."
+
+Mr. Ingersoll. I presume I did. I made that reply a good many times.
+
+Mr. Merrick. Will the counsel be frank enough to state when that
+decision was made?
+
+Mr. Ingersoll. Which decision?
+
+Mr. Merrick. When he was on the stand on cross-examination.
+
+Mr. Ingersoll. And I said we would not produce them?
+
+Mr. Merrick. After the testimony in chief and Rerdell was gone.
+
+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.
+
+The Court. I do not think you can show it.
+
+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.
+
+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.
+
+Mr. Merrick. I do not know that there was an attachment.
+
+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.
+
+Mr. Ker. And kept him out with a club.
+
+The Court. I understood also that Mr. Dorsey kicked somebody else out of
+his house about the same time.
+
+Mr. Ingersoll. Oh, yes; it has been a very lively term of court.
+
+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.
+
+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.
+
+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.
+
+That is the letter that Rerdell swore about.
+
+Q. Have you searched?--A. I have.
+
+Q. Did you find it?-A. No, sir.
+
+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.
+
+Q. Did you find that letter?--A. I did not.
+
+The Court: Was there ever such a letter?
+
+Bosler replied: "There never was such a letter received by me."
+
+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.
+
+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.
+
+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.
+
+[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].
+
+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.
+
+Mr. Ingersoll. I just gave my memory on the subject. It does not make
+any great difference in this case, of course.
+
+Mr. Carpenter. This is during the cross-examination of Rerdell.
+
+The Court. Yes, the Court did state on that occasion:
+
+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.
+
+I had forgotten that I had announced it twice.
+
+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.
+
+The Court. I do not think it weakens the position at all that the same
+announcement has been made twice instead of once.
+
+Mr. Carpenter. We thought it made it stronger.
+
+The Court. Still, the books were not produced.
+
+Mr. Ingersoll. Now, if the Court please, I am not arguing--
+
+The Court. [Interposing.] I will leave you to the jury.
+
+Mr. Ingersoll. Your Honor knows that I have always shown great modesty
+about trying to do anything against any decision.
+
+The Court. I do not dispute that.
+
+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.
+
+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!
+
+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.
+
+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.
+
+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.
+
+If corroboration was so necessary why were not their witnesses
+corroborated? Why didn't they call Mr. Bosler to corroborate their
+witness?
+
+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.
+
+Mr. Carpenter. He admitted that he wrote them.
+
+Mr. Ingersoll. Yes; Hall admitted that he wrote them. But I believe this
+petition was never filed in the department.
+
+I think Mr. Woodward said he found it among the papers at some other
+place.
+
+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.
+
+Mr. Merrick. In the case itself, in the department.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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."
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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 _New York Herald_. 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?
+
+Mr. Merrick. Is there any evidence of that letter in this trial? If not
+I object to any reference to it.
+
+The Court, You cannot refer to that, because it is not in the case.
+
+Mr. Ingersoll. I take it back. Was Dickson indicted to bias public
+opinion?
+
+Mr. Merrick. I object to that also. He was indicted by the grand jury on
+competent testimony.
+
+The Court. There is no evidence in this case that he was indicted.
+
+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.
+
+Mr. Merrick. Not unless those letters are in proof.
+
+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.
+
+Mr. Ingersoll. I will take it for granted, however, that the jury
+understand what is going on in this case.
+
+Mr. Merrick. Yes, they understand the evidence.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+The only witnesses against Miner are Rerdell and Moore, and they being
+dead, that is the end of it.
+
+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.
+
+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.
+
+Who is the next witness against Mr. Brady? Mr. Rerdell.
+
+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.
+
+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.
+
+Now, gentlemen, let us see what I have proved. Let us see what up to
+this time I have substantiated in my judgment.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+That it was not for the contractors to settle the policy of the
+Post-Office Department.
+
+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.
+
+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.
+
+That the red books never existed.
+
+That the pencil memorandum was forged by himself.
+
+That the Chico letter was written by him.
+
+And that the letter from Dorsey to Bosler, said to have been dated May
+13, 1879, was born of the imagination of Mr. Rerdell.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+It is for you to say whether their homes shall be blasted and blackened
+by the lightning of a false verdict.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Court. Let me inquire of the counsel for the defence if there are to
+be any other arguments upon their side?
+
+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.
+
+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.
+
+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.
+
+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.*
+
+     * 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.
+
+
+
+
+ADDRESS TO THE JURY IN THE DAVIS WILL CASE.
+
+
+     * 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.
+
+
+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?
+
+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?
+
+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."
+
+     * 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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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?
+
+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.
+
+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.
+
+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"?
+
+Mr. Woolworth. I have done worse than that a great many times.
+
+Mr. Ingersoll. You have acted worse than that, but you have never
+spelled worse than that.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Now, do you see, we are getting along on the edge of demonstration.
+
+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.
+
+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.
+
+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.
+
+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.
+
+I am not through yet. The testimony is that Eddy was a poor speller.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Mr. Woolworth. It was not proved that this man was accused of
+counterfeiting, of passing counterfeit money.
+
+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.
+
+Mr. Woolworth. (Interrupting): He was not charged with killing a heifer.
+
+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.
+
+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.
+
+Mr. Sanders. (Interrupting). Were those his exact words?
+
+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.
+
+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
+_lit on_ Sconce."
+
+Mr. Sanders: I didn't say that.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+Another improbability:
+
+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!
+
+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.
+
+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."
+
+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.
+
+Mr. Myers. She said twenty-five.
+
+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.
+
+Now, John A. lived down there and knew all these people and never heard
+of that will.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Recess.
+
+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."
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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:
+
+Helena, Montana, July 22, 1890.
+
+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.
+
+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."
+
+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.
+
+That is the letter he wrote before he ever knew there would be this
+suit; before he knew of the existence of this will.
+
+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.
+
+Is that not exactly what he swore to on this stand?
+
+Certain executors named E. W. Knight, S. T. Hauser, and W. W. Dixon,
+each to receive the sum of ten thousand dollars for services.
+
+Yours truly,
+
+E. W. KNIGHT.
+
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+There it is, "to determine the nature of the ink, use hydrochloric
+acid." What else?
+
+"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.
+
+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.
+
+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.
+
+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"?
+
+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.
+
+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.
+
+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.
+
+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. * * *
+
+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.
+
+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.
+
+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.
+
+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."
+
+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?
+
+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.
+
+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.
+
+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?
+
+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.
+
+They knew that the moment he went on the stand their case was as dead as
+Julius Caesar. They knew it and kept him off.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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."
+
+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."
+
+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.
+
+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.
+
+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.
+
+George Quigley--son-in-law of Sconce.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+Abe Wilkinson--brother-in-law to Sconce, cousin to Alex, and Moses
+Davis, and cousin to the Glasgows.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+And the Court will instruct you that the will of 1866, even if genuine,
+is not revived.
+
+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.
+
+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?"
+
+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.
+
+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. .
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+Note: The Jury disagreed and the case was compromised.
+
+
+
+
+ARGUMENT BEFORE THE VICE-CHANCELLOR IN THE RUSSELL CASE.
+
+     * 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
+
+
+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.
+
+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.
+
+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."
+
+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.
+
+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.
+
+There is no use of my quoting these decisions--there is no decision any
+other way.
+
+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?
+
+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.
+
+Mr. Pancoast: You don't know me very well.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+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.
+
+Under those circumstances I do not think it is possible for your Honor
+to say that she has been estopped.
+
+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.
+
+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.
+
+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.
+
+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?
+
+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.
+
+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.
+
+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.
+
+And now we come to the word "liberal," is that a hard word to define?
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+The Vice Chancellor: Is it of any significance? If your argument is
+right the disproportion is so great that it makes no difference.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+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.
+
+
+
+
+
+
+
+
+
+End of the Project Gutenberg EBook of The Works of Robert G. Ingersoll, Vol.
+10 (of 12), by Robert G. Ingersoll
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