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diff --git a/old/orig38810-h/main.htm b/old/orig38810-h/main.htm new file mode 100644 index 0000000..7a19b7d --- /dev/null +++ b/old/orig38810-h/main.htm @@ -0,0 +1,19115 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Transitional//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-transitional.dtd"> +<html lang="en" xmlns="http://www.w3.org/1999/xhtml" xml:lang="en"> +<head> +<meta name="generator" content="HTML-Kit Tools HTML Tidy plugin" /> +<meta http-equiv="Content-Type" content= +"text/html; charset=us-ascii" /> +<title>The Works of Robert G. Ingersoll, Vol. 10 (of 12) by Robert +G. Ingersoll</title> + +<style type="text/css"> +/*<![CDATA[*/ + <!-- + body { text-align:justify} + P { margin:15%; + margin-top: .75em; + margin-bottom: .75em; } + H1,H2,H3,H4,H5,H6 { text-align: center; margin-left: 15%; margin-right: 15%; } + hr { width: 50%; text-align: center;} + hr.full { width: 100%; } + .foot { margin-left: 20%; margin-right: 20%; text-align: justify; text-indent: -3em; font-size: 90%; } + .play { margin-left: 15%; margin-right: 15%; text-align: justify; font-size: 100%; } + img {border: 0;} + blockquote {font-size: 97%; margin-left: 30%; margin-right: 20%;} + .pagenum { /* uncomment the next line for invisible page numbers */ + /* visibility: hidden; */ + position: absolute; + left: 1%; + font-size: smaller; + text-align: left; + color: gray; + } /* page numbers */ + .figleft {float: left; margin-left: 10%; margin-right: 1%;} + .figright {float: right; margin-right: 10%; margin-left: 1%;} + .mynote {background-color: #DDE; color: #000; padding: .5em; + margin-left: 20%; margin-right: 20%; font-family: sans-serif; font-size: 95%;} + .toc { margin-left: 35%; margin-bottom: .75em; font-size: 110%;} + .toc2 { margin-left: 5%;} + .indent {font-style: italic; font-size: 100%; margin-left: 10%; margin-right: 10%;} + CENTER { padding: 10px;} + PRE { font-family: Times; font-style: italic; font-size: 100%; margin-left: 25%;} + --> +/*]]>*/ +</style> +</head> +<body> +<div style="height: 8em;"><br /> +<br /> +<br /> +<br /> +<br /> +<br /> +<br /> +<br /></div> +<a name="title" id="title"></a> +<h1>THE WORKS OF ROBERT G. INGERSOLL</h1> +<br /> +<h2>By Robert G. Ingersoll</h2> +<br /> +<center>"JUSTICE SHOULD REMOVE THE BANDAGE FROM HER EYES LONG +ENOUGH<br /> +TO DISTINGUISH BETWEEN THE VICIOUS AND THE UNFORTUNATE."</center> +<h3>In Twelve Volumes, Volume X.</h3> +<br /> +<h2>LEGAL</h2> +<br /> +<h3>Dresden Edition</h3> +<br /> +<center><img alt="titlepage (63K)" src="images/titlepage.jpg" +height="967" width="632" /></center> +<br /> +<br /> +<center><img alt="portrait (64K)" src="images/portrait.jpg" height= +"976" width="636" /></center> +<br /> +<br /> +<br /> +<hr /> +<br /> +<br /> +<h2>Contents</h2> +<p class="toc"><a href="#linkTOC">CONTENTS OF VOLUME X.</a></p> +<p class="toc"><a href="#link0001">ADDRESS TO THE JURY IN THE MUNN +TRIAL.</a></p> +<p class="toc"><a href="#link0002">CLOSING ADDRESS TO THE JURY IN +THE FIRST STAR ROUTE TRIAL.</a></p> +<p class="toc"><a href="#link0004">OPENING ADDRESS TO THE JURY IN +THE SECOND STAR ROUTE TRIAL.</a></p> +<p class="toc"><a href="#link0005">CLOSING ADDRESS IN SECOND STAR +ROUTE TRIAL</a></p> +<p class="toc"><a href="#link0007">ADDRESS TO THE JURY IN THE DAVIS +WILL CASE.</a></p> +<p class="toc"><a href="#link0008">ARGUMENT BEFORE THE +VICE-CHANCELLOR IN THE RUSSELL CASE.</a></p> +<br /> +<br /> +<hr /> +<br /> +<br /> +<a name="linkTOC" id="linkTOC"><!-- H2 anchor --></a> +<div style="height: 4em;"><br /> +<br /> +<br /> +<br /></div> +<h2>CONTENTS OF VOLUME X.</h2> +<blockquote> +<p class="toc"><a href="#link0001">ADDRESS TO THE JURY IN THE MUNN +TRIAL.</a></p> +ADDRESS TO THE JURY IN THE MUNN TRIAL.<br /> +Demoralization caused by Alcohol—Note from the Chicago<br /> +<i>Times</i>—Prejudice—Review of the Testimony of Jacob +Rehm—Perjury<br /> +Characterized—The Defendant and the Offence Charged (p. +21)—Testimony<br /> +of Golsen Reviewed—Rehm's Testimony before the Grand +Jury—Good<br /> +Character (p. 29)—Suspicion not Evidence.<br /> +<p class="toc"><a href="#link0002">CLOSING ADDRESS TO THE JURY IN +THE FIRST STAR ROUTE TRIAL.</a></p> +CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL.<br /> +Note from the Washington <i>Capital</i>—The Assertion Denied +that we are<br /> +a Demoralized Country and that our Country is Distinguished +among<br /> +the Nations only for Corruption—Duties of Jurors and Duties +of<br /> +Lawyers—Section under which the Indictment is +Found—Cases cited to<br /> +Show that Overt Acts charged and also the Crime itself must be +Proved<br /> +as Described—Routes upon which Indictments are Based and +Overt Acts<br /> +Charged (pp. 54-76)—Routes on which the Making of False +Claims is<br /> +Alleged—Authorities on Proofs of Conspiracy (pp. +91-94)—Examination<br /> +of the Evidence against Stephen W. and John W. Dorsey (pp. +96-117)—The<br /> +Corpus Delicti in a Case of Conspiracy and the Acts Necessary to be +Done<br /> +in Order to Establish Conspiracy (pp. 120-123)—Testimony of +Walsh<br /> +and the Confession of Rerdell—Extravagance in Mail Carrying +(p.<br /> +128)—Productiveness of Mail Routes (p. 131)—Hypothesis +of Guilt and<br /> +Law of Evidence—Dangerous Influence of +Suspicion—Terrorizing the<br /> +Jury—The Woman at Her Husband's Side.<br /> +<p class="toc"><a href="#link0004">OPENING ADDRESS TO THE JURY IN +THE SECOND STAR ROUTE TRIAL.</a></p> +OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.<br /> +Juries the Bulwark of Civil Liberty—Suspicion Not +Evidence—Brief<br /> +Statement of the Case—John M. Peck, John W. Dorsey, Stephen +W. Dorsey,<br /> +John R. Miner, Mr. (A. E. ) Boone (p.p. 150-156)—The +Clendenning<br /> +Bonds—Miner's, Peck's, and Dorsey's Bids—Why they Bid +on Cheap<br /> +Routes—Number of Routes upon which there are +Indictments—The<br /> +Arrangement between Stephen W. Dorsey and John R. +Miner—Appearance<br /> +of Mr. Vaile in the Contracts—Partnership Formed—The +Routes<br /> +Divided—Senator Dorsey's Course after Getting the +Routes—His Routes<br /> +turned over to James W. Bosler—Profits of the Business (p. +181)—The<br /> +Petitions for More Mails—Productive and Unproductive +Post-offices—Men<br /> +who Add to the Wealth of the World—Where the Idea of the +Productiveness<br /> +of Post routes was Hatched—Cost of Letters to Recipients in +1843—The<br /> +Overland Mail (p. 190)—Loss in Distributing the Mail in the +District<br /> +of Columbia and Other Territories—Post-office the only +Evidence<br /> +of National Beneficence—Profit and Loss of Mail +Carrying—Orders<br /> +Antedated, and Why—Routes Increased and +Expedited—Additional Bonds for<br /> +Additional Trips—The Charge that Pay was Received when the +Mail was<br /> +not Carried—Fining on Shares—Subcontracts for Less than +the Original<br /> +Contracts—Pay on Discontinued Routes—Alleged False +Affidavits—Right<br /> +of Petition—Reviewing the Ground.<br /> +CLOSING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.<br /> +Scheme of the Indictment—Story of the Case—What +Constitutes Fraudulent<br /> +Bidding—How a Conspiracy Must be Proved—The Hypothesis +of Guilt and<br /> +Law of Evidence—Conversation Unsatisfactory +Evidence—Fallibility of<br /> +Memory—Proposition to Produce Mr. Dorsey's +Books—Interruption of the<br /> +Court to Decide that Primary Evidence, having Once been Refused, +can not<br /> +afterwards be Introduced to Contradict Secondary Evidence—A +Defendant<br /> +may not be Presumed into the Penitentiary—A Decision by +Justice<br /> +Field—The Right of Petition—Was there a +Conspiracy?—Dorsey's<br /> +Benevolence (p. 250)—The Chico Springs Letter—Evidence +of Moore<br /> +Reviewed—Mr. Ker's Defective Memory—The Informer +System—Testimony<br /> +of Rerdell Reviewed—His Letter to Dorsey (p. 304)—The +Affidavit of<br /> +Rerdell and Dorsey—Petitions for Faster +Time—Uncertainty Regarding<br /> +Handwriting—Government Should be Incapable of +Deceit—Rerdell's<br /> +withdrawal of the Plea of Not Guilty (p. 362)—Informers, +their Immunity<br /> +and Evidence—Nailing Down the Lid of Rerdell's +Coffin—Mistakes of<br /> +Messrs. Ker and Merrick and the Court—Letter of H. M. Vaile +to the<br /> +Sixth Auditor—Miner's Letter to Carey—Miner, Peck & +Co. to Frank A.<br /> +Tuttle—Answering Points Raised by Mr. Bliss (396 et +seq.)—Evidence<br /> +regarding the Payment of Money by Dorsey to Brady—A. E. +Boone's<br /> +Testimony Reviewed—Secrecy of Contractors Regarding the +Amount of their<br /> +Bids—Boone's Partnership Agreement with +Dorsey—Explanation of Bids<br /> +in Different Names—Omission of Instructions from Proposals +(p.<br /> +450)—Accusation that Senator Mitchell was the Paid Agent +of<br /> +the Defendants—Alleged Sneers at Things held +Sacred—What is a<br /> +Conspiracy?—The Theory that there was a +Conspiracy—Dorsey's Alleged<br /> +Interest—The Two Affidavits in Evidence—Inquiry of +General Miles—Why<br /> +the Defendant's Books were not Produced—Tames W. Bosler's +Testimony<br /> +Read (p. 500)—The Court shown to be Mistaken Regarding a +Decision<br /> +Previously Made (pp. 496-502)—No Logic in Abuse—Charges +against John<br /> +W. Miner—Testimony of A. W. Moore Reviewed-The Verdict +Predicted—The<br /> +Defendants in the Case—What is left for the Jury to +Say—Remarks of<br /> +Messrs. Henkle and Davidge—The Verdict.<br /> +<p class="toc"><a href="#link0007">ADDRESS TO THE JURY IN THE DAVIS +WILL CASE.</a></p> +ADDRESS TO THE JURY IN THE DAVIS WILL CASE.<br /> +Note from the Anaconda <i>Standard</i>—Senator Sander's +Warning to the Jury<br /> +Not to be Enticed by Sinners—Evidence, based on Quality of +Handwriting,<br /> +that Davis did not Write the Will—Evidence of the +Spelling—Assertion<br /> +that the Will was Forged—Peculiarities of Eddy's +Handwriting—Holes<br /> +in Sconce's Signature and Reputation—His +Memory—Business Sagacity<br /> +of Davis—His Alleged Children—Date of his +Death—Testimony of Mr.<br /> +Knight—Ink used in Writing the Will—Expert +Evidence—Speechlessness<br /> +of John A. Davis—Eddy's Failure to take the +Stand—Testimony of<br /> +Carruthers—Relatives of Sconce—Mary Ann Davis's +Connections—The<br /> +Family Tree—The Signature of the Will—What the Evidence +Shows—Duty<br /> +and Opportunity of the Jury.<br /> +<p class="toc"><a href="#link0008">ARGUMENT BEFORE THE +VICE-CHANCELLOR IN THE RUSSELL CASE.</a></p> +Antenuptial Waiving of Dower by Women—A Case from +Illinois—At What<br /> +Age Men and Women Cease to Feel the Tender Flame—Russell's +Bargain with<br /> +Mrs. Russell—Antenuptial Contract and Parole +Agreement—Definition<br /> +of "Liberal Provision "—The Woman not Bound by a Contract +Made in<br /> +Ignorance of the Facts—Contract Destroyed by +Deception.<br /></blockquote> +<br /> +<br /> +<hr /> +<br /> +<br /> +<a name="link0001" id="link0001"><!-- H2 anchor --></a> +<div style="height: 4em;"><br /> +<br /> +<br /> +<br /></div> +<h2>ADDRESS TO THE JURY IN THE MUNN TRIAL.</h2> +<pre> + * The United States vs. Daniel W. Munn, Deputy Supervisor of + Internal Revenue, who was indicted under Section 5440 of the + Revised Statutes of the United States. + + There was an unusual rush to obtain admission to the United + States District Courtroom yesterday to listen to the closing + arguments of counsel in the Munn whiskey conspiracy trial + which has attracted so much attention during the past ten + days. The stalwart deputy who guards the entrance to this + judicial precinct was compelled to employ his entire + strength and power of persuasion to keep the eager, anxious + crowd from trespassing on the convenience and dignity of the + court. About ten o'clock the Court took the bench, and Col. + Ingersoll walked into the room, took off a broad-brimmed + felt hat, which gives the barrister, while he has it on, + somewhat the appearance of a full-grown, well-developed + Quaker in good standing in the society to which he belongs. + When he has the hat removed, however, the counsellor's + appearance undergoes a marked change. He then looks like the + crop-haired follower of the house of Montague in the + Shakespearean play. He sat down on a crazy old chair which + threatened every moment to break down beneath his weight, + and listened to the remarks of Judge Doolittle for the + remainder of the morning, until it came his time to talk. + Colonel Ingersoll never troubles himself to take notes of + anything. What he cannot recollect he does not have any use + for. + + Judge Doolittle occupied the morning session until the time + for adjournment at one o'clock, with a review of the case on + the side of the defence. He was followed by Mr. Ingersoll in + the afternoon. + + At two o' clock the court-room was more crowded than before, + and at that hour Mr. Ingersoll appeared in the forum and + delivered his speech in behalf of the defendant.—The Times, + Chicago, Ills., May 23, 1876. +</pre> +<p>IF the Court please and the gentlemen of the jury: Out of an +abundance of caution and, as it were, an extravagance of prudence, +I propose to make a few remarks to you in this case. The evidence +has been gone over by my associates, and arguments have been +submitted to you which, in my judgment, are perfectly convincing as +far as the innocence of this defendant is concerned. I am aware, +however, that there is a prejudice against a case of this +character. I am aware that there is a prejudice against any man +engaged in the manufacture of alcohol. I know there is a prejudice +against a case of this kind; and there is a very good reason for +it. I believe to a certain degree with the district attorney in +this case, who has said that every man who makes whiskey is +demoralized. I believe, gentlemen, to a certain degree, it +demoralizes those who make it, those who sell it, and those who +drink it. I believe from the time it issues from the coiled and +poisonous worm of the distillery, until it empties into the hell of +crime, dishonor, and death, that it demoralizes everybody that +touches it. I do not believe anybody can contemplate the subject +without becoming prejudiced against this liquid crime. All we have +to do, gentlemen, is to think of the wrecks upon either bank of the +stream of death—of the suicides, of the insanity, of the +poverty, of the ignorance, of the distress, of the little children +tugging at the faded dresses of weeping and despairing wives, +asking for bread; of the men of genius it has wrecked; the millions +struggling with imaginary serpents produced by this devilish thing. +And when you think of the jails, of the almshouses, of the asylums, +of the prisons, of the scaffolds upon either bank—I do not +wonder that every thoughtful man is prejudiced against the damned +stuff called alcohol. And I know that we, to a certain degree, have +to fight that prejudice in this case; and so I say, for this reason +among others, I deem it proper that I should submit to you, +gentlemen, the ideas that occur to my mind upon this subject.</p> +<p>It may be proper for me to say here that I thank you, one and +all, for the patience you have shown during this trial. You have +patiently heard this testimony; you have patiently given your +attention, I believe, to every word that has fallen from the lips +of these witnesses, and for one I am grateful to you for it.</p> +<p>Now, gentlemen, understanding that there is this prejudice, +knowing at the time the case commenced that it existed, I asked +each one of you if there was any prejudice in your minds which in +your judgment would prevent your giving a fair and candid verdict +in this case, and you all, honestly, I know, replied that there was +not. The district attorney, Judge Bangs, stated to you in the +opening of this case, for the purpose of preparing your minds for +the examination of this testimony, that you must, first of all, +divest your minds of sympathy. I do not say that, gentlemen, +neither would I say it were I the attorney of the Government of the +United States, but I do say this: Divest yourselves of prejudice if +you have it, but do not, gentlemen, divest yourselves of sympathy. +What is the great distinguishing characteristic of man? What is it +that distinguishes you and me from the lower animals—from the +beasts? More, I say, than anything else, human sympathy—human +sympathy. Were it not for sympathy, gentlemen, the idea of justice +never would have entered the human brain. This thing called +sympathy is the mother of justice, and although justice has been +painted blind, never has she been represented as heartless until so +represented by the district attorney in this case. I tell you there +is no more sacred, no more holy, and no purer thing than what you +and I call sympathy; and the man who is unsympathetic is not a man. +Gentlemen, the white breast of the lily is filthy as compared to +the human heart perfumed with love and sympathy. I do not want you +to divest yourselves of sympathy, neither do I want you to try the +case entirely upon sympathy, but I want you sympathetic enough to +put yourselves honestly in the place of this defendant. Now, +gentlemen, as a matter of fact, this case resolves itself into +simply one point; all the rest is nothing; all the rest is the +merest fog that can be brushed from the mind with a wave of the +hand, and it is all resolved down to simply one point, and that is: +Is Jacob Rehin worthy of credit? Has Jacob Rehm told against this +defendant a true story?</p> +<p>Now, that is all there is in this case. The other points that +they raise, and which I shall allude to before I get through, are +valuable only as they cast a certain amount of suspicion upon the +defendant, but the real point is, and the attorneys for the +Government know it, Is Mr. Jacob Rehm's story worthy of credit? Did +he tell the truth? Judge Bangs felt that was the only question, and +for that reason, in advance, he defended the reputation of Jacob +Rehm for truth and veracity; and he made to the jury this +remarkable statement: "The reputation of Jacob Rehm for truth and +veracity is good. It spreads all over the city of Chicago like +sunlight." That was the statement made by the district attorney of +the United States. I do not believe that he would swear to that +part of his speech. It was an insult to every person on this jury. +It was an insult to this court; it was an insult to the +intelligence of every bystander, that the reputation of Jacob Rehm +spread like sunlight all over the city of Chicago! My God! what +kind of sunlight do you mean? Think of it!</p> +<p>Now, then, gentlemen, he knew it was necessary to defend the +character of Mr. Rehm; he knew it was necessary to defend that +statement. He knew that the testimony of Mr. Rehm was the only nail +upon which the jury could possibly hang a verdict of guilty in this +case.</p> +<p>And now I propose to examine a little the testimony of Mr. Jacob +Rehm. I believe it was stated by Judge Bangs that one of the best +tests of truth was that a lie was at war with all the facts in the +universe, and that every fact standing, as it were, on guard, was a +member of the police of the universe to arrest all lies.</p> +<p>Let me state another truth. Every fact in the universe will fit +every other fact in the universe. A lie never did, never will, fit +anything but another lie made to fit it. Never, never! A lie is +unnatural. A lie, in the nature of things, is a monstrosity. A lie +is no part of the great circle, including the universe within its +grasp, and consequently, as I said before, will fit nothing except +another lie. Now, then, to examine the testimony of a witness, you +examine into its naturalness, into its probability, because you +expect another man to act something as you would under the same +circumstances. We have no other way to judge other people except by +our own experience and an authenticated record of the experience of +others, consequently, when a man is telling a story, you have to +apply to it the test of your own experience, and as I say the +recorded tests of other honest men.</p> +<p>Now, let us suppose just for a moment that the testimony of Mr. +Jacob Rehm is true. Let us suppose it. It has been stated to you, +and admirably stated, by Judge Doolittle,—admirably +stated,—that it was the height of absurdity to suppose that a +man would do as he did for nothing. But let me put it in another +light somewhat. According to the testimony of Mr. Jacob Rehm, he +first tried to stop this stealing. Nobody offered him any money to +stop it, but he simply went to the collector, Irwin, and said they +were stealing, and that it must be stopped; and thereupon Collector +Irwin changed the gaugers for the purpose of stopping the stealing. +A few days thereafter, somebody came to him and wanted the stealing +to commence, and he told them they would have to pay for it, and +the amount they would have to pay for it, and he then went to +Collector Irwin, whom he supposed at that time to be a perfectly +honest and upright man, and told him, in short, that they wanted to +steal, and would give five hundred dollars a month. Irwin said, "Go +ahead."</p> +<p>He admits that they did steal. He admits that they made a +bargain with him. He admits that that happened, and he assigned all +these gaugers and store-keepers. He admits that he did that for two +years. He admits that he received at least one hundred and twenty +thousand dollars of this money. He admits that in order to carry +out this scheme he knew that every distiller would have to sign a +lie every time he made a report to the Government. He admits that +he knew every gauger would have to swear to a lie at the end of +every month in his report of the transactions of each day. He +admits that every store-keeper would be guilty of perjury every +time he made a report. He admits that he knew that the thing that +he was committing for two years was a daily penitentiary offence. +He admits that he put himself in the power of all these gaugers and +all these store-keepers, and all these distillers and +rectifiers,—put it in their power to have him arrested for a +penitentiary offence at any moment during the whole two years, and +yet he tells you that he did this absolutely for nothing! He tells +you every cent he received he divided and paid over; that he never +kept a solitary dollar, except it may be for a box of cigars. I +want the attorney for the Government to tell this jury that he +believes that story. And if he does tell you so, gentlemen, I will +give you notice now that you need not believe any other word Mr. +Ayer says—if he says he believes that.</p> +<p>Now, then, what more? He knew that all these men were committing +these penitentiary offences, and that he was putting himself in the +power of all these men; and what was his motive? What, gentlemen, +was his object?</p> +<p>It is impossible for me to imagine. If he got no money, if he +made nothing out of this transaction, it is impossible for me to +imagine why he embarked in such a course of crime. Why then did he +say to you, gentlemen, that he paid all this money over? It was to +build up a reputation with you. It was to make you think that +whereas he paid this all over, that whereas he did all this +business simply to accommodate his friends, that he was worthy of +credit in his statement of this case. He told you that he did not +keep a dollar simply to make a reputation with you. What did he +want a reputation with you for? So that he would be believed. And +what did he want to be believed for? So that he could send Munn to +the penitentiary and, as the price of Munn's incarceration, get his +own liberty. That is the reason he swore it, and there is no other +reason in the world. Is it probable a man would commit all these +crimes for nothing? Is it possible that he would hire and bribe +other men to commit these crimes for nothing? I ask you; I ask your +common sense; I appeal to your brains: Is it probable that he would +do all that absolutely for nothing? Is it probable he would lay +himself liable to the penitentiary every hour in the day for two +years for nothing? There is and can be but one answer to such a +question as that. Why, gentlemen, if his statement is true that he +did all this for nothing, he is the most disinterested villain, the +most self-sacrificing and self-denying thief of which the history +of the world gives any record. Is it possible?</p> +<p>Is it possible, I say, that a man would make himself the sewer +of all the official rot in this city, in which was deposited the +excrement of frauds? Is it possible he would turn himself into a +scavenger cart into which should be thrown all the moral offal of +the city of Chicago for nothing? Whoever answers that question in +the affirmative is, in my judgment, an idiot. Nobody can. Nobody +has a mind so constructed that it can lodge an affirmative answer +to that question within its brain.</p> +<p>What next? He tells you that Munn was in this plot; and that he, +Mr. Rehm, at the same time was selling protection to these +distillers. No distillers—and you know it—would have +given him ten dollars a barrel unless they expected protection. He +then was engaged in the sale of protection, was he not? Did you +ever know of a vender crying down his own wares? Did you ever hear +of a merchant crying down the quality of the cloth he wished to +sell? Did you ever hear of a grocery man endeavoring to cry down +that which he wished you to buy?</p> +<p>Jacob Rehm was selling protection at ten dollars a barrel, and +sometimes asking twelve dollars and fifty cents. Was it not natural +for him to endeavor to convince distillers that he had plenty of +protection to sell? Was it not natural for him to make the +distillers believe, "If you will give me ten dollars a barrel you +will have perfect protection"? Would it be natural for him to say, +"I will protect you for ten dollars a barrel, and yet I have none +of the officers in my pay"? They would say, "What kind of +protection have you got, sir?" Would it not be natural for him to +make out his protection as good as he possibly could? Would it not +be natural for him to tell you, "I have got all these officers on +my side, from the lowest gauger to the gentleman who presides over +the internal revenue department at the city of Washington"? The +more protection he had the more money he could get, and +consequently it would not be natural for him to cry down his own +protection.</p> +<p>If Mr. Munn was in it, and if Mr. Munn at that time was the +superior officer of the collector, and this man had protection to +sell, would he not have said that Munn was also in the ring? When +he was trying to sell protection to George Burrows at ten dollars a +barrel, George Burrows asked him if Munn was in the ring and he +said he was not. If Mr. Munn had been why didn't he say that Munn +was? For the reason that that would make his protection appear to +be of a better quality, and he could have sold it at a better +price. But he said "no," and that they did not need him, because +they could manage him, and fool him through this man Bridges, and +you will recollect that Bridges was appointed directly by the +Government and not by Munn; and Bridges reported directly to the +Government and not to Munn. He had nothing to do with him one way +or the other, except that they were both in the Revenue +Department.</p> +<p>Now, I say if it is possible that a man can cry down his own +wares that he wishes to sell, then you may say that the statement +of Rehm is natural.</p> +<p>Now, gentlemen, why should he inform Burrows that Munn was about +to make a visit here? In order that Burrows might have an +opportunity to have his house put in order. Why should he have sent +notices to other distillers that Munn was coming? Why should he +tell them to put their houses in order? So as to be ready for a +visit from Mr. Munn. It may be that the counsel for the Government +will say, "This shows the infinite fidelity of this infinite +rascal."</p> +<p>Now, I will come to this part of my argument again, but the next +thing I will speak of is his story, where he says that he actually +paid the money to Munn himself, and if there is anything left of +that after I get through with it you are at perfect liberty to find +the defendant guilty. You must recollect that he had a bargain. +Now, according to his story, he paid this money to Bridges. You +must recollect, according to his story, that Munn at that time was +one of the conspirators, had been receiving money—a half of +thirty-five thousand dollars or forty-five thousand dollars having +gone into his pocket. Recollect that. He goes over one day to the +rectifying-house of Roelle & Junker, and there are some barrels +found, the stamps of which had not been scratched. Mr. Munn was +assured by Roelle that there was no fraud. Roelle still swears that +there was no fraud. He was afterward assured by Junker that there +was no fraud. Junker still swears that there was no fraud.</p> +<p>Now, what does Rehm come in to swear? Rehm says that Bridges +came to him and told him that Munn was going to make +trouble—going to make trouble about these barrels that had +the stamps on that were not scratched off. Why did not Rehm say to +him, "How is he going to make a fuss? He has got twenty thousand +dollars of money already. He is in the conspiracy. He is a nice man +to make a fuss! What is he going to make a fuss about?" Would it +not have been just as likely that Bridges should have made a fuss +as that Munn should have made it? Bridges, according to the +testimony of your immaculate witness, was in this no more than +Munn—not one particle. And why was Munn going to make +trouble? Mr. Rehm has endeavored to answer that question. Mr. Rehm +then goes to Munn, sent there by Bridges—it would be very +hard to find out why he did not give the money to +Bridges,—but he went to Munn and says: "You are going to make +some trouble about what you found at Roelle & Junker's?" +"Yes."</p> +<p>"Why?"</p> +<p>"Because," he says, "the men at work there—the persons +employed there—will make a fuss about it, but they will see +it and say that it is overlooked."</p> +<p>Now, that is the reason that Rehm puts in the mouth of the +defendant. Afterward he goes himself to Junker and advises him to +give him five hundred dollars, and Junker proposes one thousand +dollars, and gives him one thousand dollars, and then he sends for +Munn and he comes to his office, and he hands him one thousand +dollars.</p> +<p>Now, gentlemen, the reason Munn gave was that the men there +would notice it and make a disturbance about it.</p> +<p>Well, then, why not pay the men? What is the use of paying Munn? +If this was done to prevent the men working at the rectifying-house +from making trouble, why not pay the men? Why not pay the men who +were going to make the trouble? Why give an extra thousand dollars +to a conspirator to whom you had already given twenty thousand +dollars, and who, at that time, according to the testimony of Rehm, +was officially rotten? Why not give the money to men who were going +to make the trouble? And the next question is this—and if you +will recollect the testimony of Roelle, he swears that when the +defendant came to the rectifying-house, he (Roelle) was alone. He +swears that he was alone. He swears that all the rest had gone to +dinner, and according to Roelle's testimony there was nobody there +but himself. Where were the men that were going to make this +disturbance? Where were the men that were going to notice this +oversight? Where were the men that were going to stir up +difficulties at Washington or any other place? According to the +testimony of Roelle those people were at dinner, and where, +gentlemen, is the philosophy of that lie which they have told? +Where is it? Why should he have paid Munn money? Why didn't he pay +it to Bridges? If it was for the purpose of stopping the men from +making trouble, why not pay it to the men they wished to stop? I +ask the gentlemen to answer that question. I ask the gentlemen to +tell us what men were in danger of making this trouble? Was it the +gauger who received six hundred dollars a month for being a liar +and a thief? Was it the book-keeper who, every report that he made, +swore to a lie? Was there any danger of these liars and of these +thieves making a fuss on their own account? Was there any danger of +that gauger stopping his own pay? Was there any danger of that +book-keeper trying to throw himself out of employment? Was there +any danger of any thief or of any conspirator saying anything +calculated to bring this rascality to the surface? If a bribed +gauger would not tell it; if a bribed book-keeper would not tell +it, I ask the Attorney-General for the Government, would Munn tell +it, who had received, according to your evidence, over twenty +thousand dollars of fraudulent money? Was there any danger of Munn +turning state's evidence against himself? Was there not just as +much danger of Bridges making a fuss as Munn? Was there not, +according to their testimony, the same danger of Rehm himself going +to Washington as there would be of a bribed gauger, and of a lying +book-keeper? Gentlemen, your story won't hang together. There is no +philosophy in it, and it will not fit anything except another lie +made on purpose to fit it; and it has got to be made by a better +mechanic than Jacob Rehm.</p> +<p>Now, then, gentlemen, what more? The district attorney told you, +and I was astonished when he told it—I was +astonished—he said that the testimony of Jacob Rehm was not +impeached; that, on the contrary, it was sustained by these other +witnesses. Had he made such a statement under oath I am afraid an +indictment for perjury would lie. He said that the testimony had +been sustained rather than impeached. How sustained?</p> +<p>"Mr. Rehm, did you ever give Mr. Burroughs notice that Mr. Munn +was coming in order that he might put his house in order?"</p> +<p>Mr. Rehm says, "No."</p> +<p>We then asked Mr. Burroughs, "Did Mr. Rehm ever give you such +notice?" and he corroborates Mr. Rehm by saying "Yes," if that is +what you call corroboration.</p> +<p>"Did you tell Mr. Hesing that Munn was not in it?" "I did not." +"Mr. Hesing, did Mr. Rehm tell you that Munn was not in it." "He +did."</p> +<p>That is another instance of the attorney's idea of +corroboration.</p> +<p>"Did you tell Hesing that Hoyt was innocent?" "I did not." "Mr. +Hesing, did Mr. Rehm tell you that Hoyt was innocent?" "He +did."</p> +<p>Another corroboration.</p> +<p>"Did you tell him that Munn never was in it—that Munn was +innocent?" "No."</p> +<p>We then asked him,</p> +<p>"Did he tell you that?" "He did."</p> +<p>We say to Burroughs,</p> +<p>"In 1874, in 1873, in 1872, did Rehm tell you that Munn was not +in it?" "He did."</p> +<p>That is another idea I suppose of corroboration.</p> +<p>Q. Mr. Rehm, how much money did the house of Dickenson &c +Leach give you? A. Twenty-five thousand dollars.</p> +<p>Q. Will you swear they did not give you thirty? A. I will.</p> +<p>Mr. Leach on the stand:</p> +<p>Q. How much money did your house give Rehm? A. Between forty +thousand and fifty thousand dollars.</p> +<p>Another instance of corroboration.</p> +<p>We then called Mr. Burroughs upon the stand. He belonged to the +same house:</p> +<p>Q. How much money did you give Jacob Rehm? A. Fifty-two thousand +dollars.</p> +<p>Another instance of corroboration.</p> +<p>Q. Mr. Rehm, did Mr. Abel ever give you any money? A. Yes, +sir.</p> +<p>Q. How many times? A. Once.</p> +<p>Q. How much? A. Five hundred dollars.</p> +<p>Q. Will you swear it was not a thousand? A. Yes.</p> +<p>Mr. Abel take the stand.</p> +<p>Q. Did you ever pay Jacob Rehm any money? A. Yes.</p> +<p>Q. How often? A. Once.</p> +<p>Q. How much? A. Two thousand dollars.</p> +<p>And that is another instance of the corroboration of Jacob Rehm. +And when a man is thus corroborated, gentlemen, his reputation for +truth and veracity "spreads like sunlight all over the city of +Chicago." There was not a circumstance, there was not a statement +made by Mr. Rehm except it was made in the presence of Bridges, who +is in Canada; of Irwin, who is in his grave, or in the presence of +the defendant, who stands here with his mouth closed—not one +solitary circumstance, with those exceptions, that has not been +contradicted. Can you believe this man? Can you believe this man +who has been contradicted by every one brought upon the stand? Can +you take his word after he has sworn as he has? I tell you, +gentlemen, you cannot do it, and as Judge Doolittle told you, if +there is an infamous crime in the world, it is the crime of +perjury. All the sneaking instincts; all the groveling, crawling +instincts unite and blend in this one crime called perjury. It +clothes itself, gentlemen, in the shining vestments of an oath in +order that it may tell a lie.</p> +<p>Perjury poisons the wells of truth, the sources of justice. +Perjury leaps from the hedges of circumstance, from the walls of +fact, to assassinate justice and innocence. Perjury is the basest +and meanest and most cowardly of crimes. What can it do? Perjury +can change the common air that we breathe into the axe of an +executioner. Perjury out of this air can forge manacles for free +hands. Perjury out of a single word can make a hangman's rope and +noose. Perjury out of a word can build a scaffold upon which the +great and noble must suffer. It was told during the Middle Ages and +in the time of the Inquisition, that the inquisitors had a statue +of the Virgin Mary, and when a man was brave enough to think his +own thoughts he was brought before this tribunal and before this +beautiful statue, robed in gorgeous robes and decked with jewels, +and as a punishment he was made to embrace it. The inquisitor +touched a hidden spring; the arms of the statue clutched the victim +and drew him to a breast filled with daggers. Such, gentlemen, is +perjury, and if you take into consideration the evidence of this +witness when you retire to the jury-room, you, in my judgment, will +commit an outrage. Every man here should spurn that man from the +threshold of his conscience as he would a rabid cur from the +threshold of his house.</p> +<p>Is there any safety in the world if you take the testimony of +these men, especially when character avails nothing? Is there any +safety in human society if you will take the testimony of a +perjured man? Is there any safety in living among mankind if this +is the law,—if the statement of a confessed conspirator makes +the character of a great and good man worthless? For one I had +rather flee to the woods and live with wild beasts and savage +nature.</p> +<p>Gentlemen, I know that you will pay no attention to that kind of +testimony. I know it. I know that you cannot do it. And why? You +know that that man is swearing a lie for the purpose of protection. +You know that that man is swearing a lie under the smile of the +Government of the United States. You know it. You know he expects a +benefit from it. You know it. When the other witnesses, Burroughs +and Hesing, that swear here—understand that they are swearing +beneath a frown. Understand that they know that no mercy will be +extended to them by the attorneys that they have offended. +Understand that, and when you understand that a man is swearing to +protect himself, and when he is a man that will swear to a lie for +money, of course he will swear to a lie to keep himself out of the +penitentiary, or to shorten his time—I say, when you know a +man is placed in that condition, you have no right to give the +least weight to his testimony, not one particle.</p> +<p>What more, gentlemen. Why, they have another witness, and he has +sworn nothing. He has sworn nothing that has anything to do with +this conspiracy one way or the other. Nothing! The only evidence +against the defendant, I tell you, is the evidence of Mr. Jacob +Rehm.</p> +<p>The defendant, gentlemen, was an officer of the revenue for +several years. When he came to Chicago, in 1871, the district +attorney said the distillers were here in full blast making illicit +whiskey. If he had read the evidence he knew better; if he had not, +he had no business to make any statement about it. In 1871, when +the defendant came here, according to the testimony of all these +men, the distilleries were running straight, and the rascality did +not commence until the fall of 1872, when Jacob Rehm sold +protection to these distillers. The defendant had been here a year +before any frauds were committed. He was then supervisor of +internal revenue up to May, 1875. During that time he did many +official acts; during that time he wrote hundreds and thousands of +letters; during that time he made hundreds and hundreds of visits +to all these establishments. They have searched the records; they +have had every nook and cranny looked at by a hired detective, and +all that they can possibly bring forward is the beggarly account +presented in this case: First, that there were four or five barrels +of rum without the ten cent stamps, and that, you know, is a thing +that ought to send a man to the penitentiary; next, twenty-five +barrels of which the stamps had not been scratched, but about which +there was no fraud. Ought a man to be sent to the penitentiary +because he does not seize a house when there has been a technical +violation without any fraud? A supervisor that will do it ought to +be kicked out of office; he ought to be kicked out of the society +of honest and decent men, and if this defendant was satisfied from +the story of Roelle and Junker that there had been no fraud +committed by leaving the stamps on the twenty-five barrels +unscratched, and had seized that house, that would have been an act +of meanness, an act of oppression, which I do not believe even a +Government attorney would uphold unless he was hired in the case. +Now, what next did he do? The next thing he did he went to Golsen +& Eastman. Gentlemen, I do not care to speak much of Golsen. If +there ever was a man utterly devoid of such a thing as principle, +if there ever was a man that would read the statute against +stealing, and stand in perfect amazement that anybody ever thought +of making such a statute, it certainly must be Golsen. You heard +him, and he is the man that said he told lies in business; he is +the man that said he did not think it was wrong to swear lies in +business, and his business now is to keep out of the penitentiary; +that is his principal business, that is one of the gentlemen they +have hired, that is one of the gentlemen they have brought forward +here to offend the nostrils of decent men. Now, then, he went to +Golsen & Eastman. Judge Bangs told you in his speech that +Golsen then and there explained his infamy to Munn.</p> +<p>If there is anything which makes my blood boil it is to have the +evidence misstated for the purpose of putting a man in the +penitentiary. I never will make a misstatement to add to my +reputation.</p> +<p>I recollect that evidence so perfectly. I recollected it so +clearly that it shocked me when he stated that the man Golsen +explained all his rascality and villainy to Munn. Why, I never +heard of such evidence. What was it? It was said by Mr. Ayer in the +opening that in the presence of Munn, Golsen said to Bridges, "It +is not now all right," or something like that, "but I can make it +right," or that he said in the presence of Munn, to Bridges, +something that should have put Munn on his guard. I heard that, and +I heard Golsen, when he came on the stand, say that he said that to +Bridges, and you will bear me out when I say that I asked him in +his cross-examination, "Did Munn hear it? Did you say it thinking +that Munn did hear it?" and he did not pretend any such thing. He +did not pretend it, and I tell you I was hurt, I was touched, I +admit it, when Judge Bangs made the statement. I have an interest +in this case. I am not only an attorney in this case, but, +gentlemen, I am proud to say I am the defendant's friend. I am more +than his attorney; I am his friend, and when an attorney makes a +statement like that I must say it shocks me. Golsen did not swear +that he explained his villainy to Munn—not a word of that +kind or character. On the contrary he simply said he told this to +Bridges, not to Munn, and that Munn did not hear it.</p> +<p>What more? Col. Eastman was there at the same time.</p> +<p>Col. Eastman says he did everything he could to impress upon Mr. +Munn that it was an honest transaction. What more? Then he went +through the rectifying-house like an honest man. How did he act? +Like an honest man. Did he act like somebody trying to cover up a +fraud? No, he acted like an honest man, and I tell you up to that +time Mr. Eastman had borne a good reputation—a good character +in the state of Illinois. Munn believed what he said. He believed +there had been an accident. Munn believed they made the charge in +the books not for the purpose of covering up a fraud, but for the +purpose of making the books agree with the facts. So much for +that.</p> +<p>I do not recollect any others. I do not recollect any others +that amount to anything—that can throw the slightest +suspicion on this defendant. If he were upon trial now for failing +to make a report; if he were on trial now for malfeasance or +non-feasance or negligence as an officer, it would be proper to +bring all these things before this jury, but that is not the case. +He is here for entering into a conspiracy to defraud the +Government, and these things that they have shown +outside,—and it is perfectly amazing to me they have not +shown more,—it is perfectly amazing to me that a man could be +in that position the years he was without making more +mistakes—I say, all they prove in the world is (give them +their very worst construction), that he was guilty of some +negligence as an officer, but they do not attempt to prove that he +was in a conspiracy with Mr. Jacob Rehm to steal.</p> +<p>The next point, gentlemen, to which I wish to call your +attention is the testimony of Mr. Rehm before the grand jury. You +recollect when we put on Mr. Ward to show what Rehm testified to +before the grand jury, that Mr. Ayer suggested that we had better +have the notes. I saw then that he was extremely anxious for +Schlichter to get on the stand. Then we introduced Mr. Oleson, and +he still spoke about having the notes. I understood that it was a +part of his case to have Schlichter brought on the stand in some +way. Now, then, it does not make any difference to me whether +Schlichter swore to the truth or not. Not a particle, not a +particle, but I think he did. But if he did swear a lie, and he +will swear a lie every chance he gets, in the course of time he +will get such a character and such a reputation that a district +attorney of the United States will stand up and say: "Schlichter's +reputation is good; it spreads like sunlight all over the city of +Chicago." Now, then, you have been told by Judge Doolittle all the +men who swore that he did swear before the grand jury, that he did +not know of any crookedness. You have heard the testimony of men +who swear that he did swear before the grand jury that he knew of +no fraud. If he did so swear he perjured himself or he has perjured +himself now. But what more? Whether he swore that or not, he swore +this according to their own statements:</p> +<p>Q. At the time you burned your books had you any knowledge that +they contained any evidence of fraud against the Government? A. No, +sir.</p> +<p>Now, he knew the distillers used a certain amount of malt to +make a certain amount of high-wines, and he knew the more malt they +used the more high-wines they would have to account for, and if +they bought twice as much malt as was necessary to make the whiskey +upon which they paid the tax, he knew that that was evidence that +they had been running without paying the tax. If it takes a certain +amount of malt for a gallon of high-wines, and his books would show +they had used twice as much malt as they had paid taxes, according +to gallons, then he did know that his books did contain evidence +showing that they had committed fraud. And when he said his books +did not, he told what he knew was a deliberate lie. What more does +he say? He says these books were burned up about the first of May +just to get them out of the way,—for no earthly object except +simply to get them out of the way,—and he swears that he sold +to nearly all these distillers malt, and he knew that the amount of +malt sold to each of these distilleries would determine the amount +of whiskey they had made, that is, not into a barrel or into a +gallon, but approximately, and he knew the more malt they used the +more tax they would have to show that they had paid. And he knew +that his books would be evidence against every distiller in the +city. He knew that, and yet he swears here, squarely and fairly, +that at the time he burned his books he did not know that they were +of any value as evidence against these distillers.</p> +<p>Now, gentlemen, I want to call your attention to another thing. +When I asked him, when he was called here on the stand, if he was +not asked about crookedness, whether he was not asked about fraud, +at first he stumbled into telling the truth, as far as that was +concerned, as far as being asked was concerned, and then told a lie +as to how he answered it. Now, let me read it to you; you may have +forgotten it. There is nothing like having these things +printed:</p> +<p>Q. Were you sworn before that grand jury by anybody? A. Yes, +sir.</p> +<p>Q. Were you asked any question about this whiskey business? A. +Yes, sir.</p> +<p>Q. Were you asked by one of the grand jurors whether you knew of +any illicit whiskey being made in this city by any of those +distilleries? A. No, sir.</p> +<p>Q. I ask you in regard to your answer to that, if you did not +say you did not? A. I did not.</p> +<p>Q. What did you say? A. The question was not asked in that +way.</p> +<p>Q. Well, wait until I ask you, and then you can tell. Were you +not asked if you knew of any crookedness about whiskey, and didn't +you reply "No"? A. No; I answered "Yes."</p> +<p>There is his testimony. He was afraid then that he was caught, +and he was going to swear deliberately that he swore before the +grand jury, that he did know of crookedness. Then he changed his +idea, and says afterward that it is about the one hundred and fifty +barrels. He says now, "Put your question." Then I put this +question—"Put your question." [Question repeated.] "A. The +question was not put to me in that way."</p> +<p>Now, he gets out of it and says it was the one hundred and fifty +barrels he talked about; but I asked him then if he was not asked +if he did not know about any crookedness here and how he answered +it, and he says that he answered it "Yes." That is, before he found +out that it was necessary to change his answer or to change his +mind upon that question. That is what he says. And it is utterly +impossible, gentlemen, to get out of the fact that he did, before +that grand jury, swear that he knew of no crookedness. You can not +get out upon Mr. Roelle's testimony. You can not get out upon the +idea that Schlichter put it in. Schlichter did not put it into the +memory of the old man Samson. Schlichter did not write it in the +memory of Mr. Hoag. Schlichter did not write it in the +consciousness of Mr. Oleson. Schlichter did not write it in +short-hand in the head of J. D. Ward. Schlichter, I tell you, by +his short-hand necromancy, has not changed six or seven men into +liars whether he put that in the second line from the top or not. +He cannot do that with his short-hand, gentlemen. He could not make +old Mr. Samson come here and say, "I asked that question myself; I +thought that when he was there he was the head centre of all the +rascality. And so just before he went out I put one of those +general, pinching questions as to whether he knew anything. It was +a kind of conscience scraper." The old man put that question just +as these witnesses were going out: "Do you know anything about any +fraud? Do you know anything about any crookedness?" It was a kind +of a last question that would cover the case, and the old man +recollects that he put it to Jacob Rehm and he recollects why he +put it to him, because he believed at that time that he was the +head centre of the villainy. Mr. Hoag says the same thing. Mr. Hoag +says that he looked upon him as the great rascal in the business; +and he recollects distinctly that he asked him that question; and +he recollects as distinctly how he answered it. J. D. Ward was the +attorney of the United States, and he swears to it that he +recollects it perfectly. Oleson was an attorney of the United +States. He says that he recollects it perfectly. And yet is this +all to be accounted for, gentlemen, by saying that Mr. Schlichter +inserted it in his notes and that all these other gentlemen are +mistaken? The fact is, gentlemen, that Mr. Rehm, when he was there, +had not made up his mind to vomit; he had not yet made up his mind +that he could make a bargain with the United States to get out of +punishment. He did not know at that time that he need not go to the +penitentiary if he would furnish a substitute. He did not know, +gentlemen, at that time that he could have any understanding with +anybody; if he would bring better blood than his they would deal +lightly with him. He did not know at that time that two owls could +be traded off for an eagle. He did not know at that time that two +snakes could be traded off for a decent man. As soon as he found +that out, then, instead of saying that he did not know anything +about any crookedness; instead of saying that he did not know +anything about any fraud, he said, gentlemen, "I know all about it. +I know all of them; every one of them."</p> +<p>Now, gentlemen, I want you to put against that man's testimony +the lies he swore to himself. I want you to put against that man's +testimony the improbability that he would commit numberless crimes +for nothing. I want you to put against that man's testimony the +testimony of every one who has contradicted and disputed him. I +want you to put against that man's testimony the idea and the fact +that he warned these other men against the approach of Munn. I want +you to put against that man's testimony all the circumstances of +the lies he has sworn; and I want you, in addition to that, to put +against that man's testimony the evidence of this defendant.</p> +<p>You have been told by the district attorney—and if I have +said anything too strong in the warmth of this discussion I beg his +pardon. I have known Judge Bangs a long time, I have been his +friend, I respect him; but I must say I felt a little outraged at +what he said, because he said he had sympathy with this defendant. +He got up here and said that the defendant bore a most excellent +reputation. He got up and said that he sympathized with him, and +all at once I saw his sympathy was a cloak under which he concealed +a dagger to stab him. Now, then, he says good character is nothing. +Good character is nothing! Good character, gentlemen, is not made +in a day. It is the work of a life. The walls of that grand edifice +called a good character have to be worked at during life. All the +good deeds, all the good words, everything right and true and +honest that he does, goes into this edifice, and it is domed and +pinnacled with lofty aspirations and grand ambitions. It is not +made in a day, neither can it be crumbled into blackened dust by a +word from the putrid mouth of a perjurer. Let these snakes writhe +and hiss about it. Let the bats fly in at its windows if they can. +They cannot destroy it; but above them all rises the grand dome of +a good character, not with the bats and snakes, but up, gentlemen, +with eagles in the sunlight. They cannot prevail against a good +character. Is it worth anything? If ever I am indicted for any +offence and stand before a jury, I hope that I shall be able to +prove as unsullied a reputation as Daniel W. Munn has proved. And +when I read those letters, not only saying that his character was +good, but adding "above reproach," it thrilled me and I thought to +myself then, "if ever you get in trouble will anybody certify as +splendidly and as grandly to your reputation?" There is not a man +of this jury that can prove a better reputation. There is not a +judge on the bench in the United States that can prove a better +reputation. There never was and there never will be an attorney at +this bar that can prove a better reputation. There is not one in +this audience that can prove a better reputation. And yet we are +told that that splendid fabric called a good character cannot stand +for a moment against a word from a gratuitous villain—not one +moment.</p> +<p>Such, gentlemen, is not the law of this country. Such, +gentlemen, never will be the law of this land or of any other. I +deny it, and I hurl it back with scorn. A good character will stand +against the testimony of all the thieves on earth. A good +character, like a Gibraltar, will stand against the testimony of +all the rascals in the universe, no matter how they assail it. It +will stand, and it will stand firmer and grander the more it is +assaulted. What is the use of doing honestly? What is the use of +working and toiling? What is the use of taking care of your wife +and your children? Where is the use, I say, of being honest in your +business? What is the use of always paying your debts as you agree? +What is the use of living for others? Character is made of duty and +love and sympathy, and, above all, of living and working for +others. What is the use of being true to principle? What is the use +of taking a sublime stand in favor of the right with the world +against you? What is the use of being true to yourself? What is the +use, I say, if all this character, if all this noble action, if all +this efflorescence of soul can be blasted and blown from the world +simply by a word from the mouth of a confessed felon? And yet we +are assured here in this august tribunal, in a Federal court of the +United States, where the defendant stands under the protection of +the the Constitution of his country, that his character is +absolutely worthless.</p> +<p>They say, "Why don't you bring somebody to impeach Mr. Jacob +Rehm?" Why? because he has impeached himself.</p> +<p>To impeach a man is the last method. If he tells an improbable +story, that impeaches him. If he tells an unnatural story, that +impeaches him. If you prove he has sworn a different way, that +impeaches him. If you show he has stated a different way, that +impeaches him. What is the use of impeaching him any more? That +would be a waste of time.</p> +<p>Now, gentlemen, I say to you, and I say to you once for all, I +want you to get out of your minds and out of your hearts any +prejudice against this man on account of these times. I understand +now that in every man's pathway hiss and writhe the serpents of +suspicion. I understand now that every man in high place can be +pointed at with the dirty finger of a scurvy rascal. I understand +that. I understand that no matter how high his position is, that +any man, no matter how low, how leprous he may be, what a cancerous +heart he may have, he can point his finger at the man high up on +the ladder of fame, and the man has to come down and explain to the +wretched villain. I understand that; but these prejudices I want +out of your mind. I want you to try this case according to the +evidence and nothing else. I want you to say whether you believe +the testimony of these conspirators and scoundrels. I want you to +say whether you are going to take the testimony of that man, and if +you bring in a verdict of guilty I want you to be able to defend +yourselves when you go to the defendant and tell him: "We found you +guilty upon a man's testimony who admitted that he was a thief: who +admitted that he was a perjurer; who admitted that he hired others +to swear lies, and who committed crimes without number year after +year." I want you to say whether that is an excuse to give to him. +Is it an excuse to give to his pallid, invalid wife? Is it an +excuse to give to his father eighty years old, trembling upon the +verge of the grave: "I sent your son to the penitentiary upon the +evidence of a convicted thief"? I say is it an excuse to give to +his weeping wife? Is it an excuse to give to his child: "I sent +your father to the penitentiary upon the evidence of Jacob Rehm"? +There is not one of you can go to the child, or to the sick wife, +or to the old man, or to the defendant himself, and without the +blush of shame say: "I sent you to the penitentiary upon the +evidence of Jacob Rehm." You cannot do it. It is not in human +nature to do it.</p> +<p>Now, gentlemen, there is one other thing I want to say. +Suspicion is not evidence. Suspicious circumstances are not +evidence. All the suspicion in the world, all the suspicious +circumstances in the world, amount not to evidence. I want to say +one more thing. They say that the testimony of a thief ought to be +corroborated. By whom? another thief? No. Because that other thief +wants corroboration, and that other thief would want corroboration, +and so on until thieves ran out, which I think would be a long time +in this particular community at this particular time. Understand +that whatever one thief swears, that it is not corroborated because +another thief swears to the same thing, and upon the point upon +which Judge Doolittle dwelt so splendidly he must be corroborated +upon the exact point. For instance, Mr. Munn went to his house, Mr. +Munn went to his office, and another man says, I saw him there. +That is not corroboration. He must be corroborated in the fact that +he gave him the money, not that Munn went to his house—not +that he had an opportunity to give him the money—not that he +was there, but he must be corroborated as to the exact, identical +point that makes the guilt.</p> +<p>Now, gentlemen, I am going to leave this case with you. I feel a +great interest in it. The defendant feels an infinite interest in +it, infinite, I tell you. It is all he has on earth, all he has is +with you. You are going to take his hopes; you are going to take +his aspirations; you are going to take his ambition; you are going +to take his family; you are going to take his child; you are going +to take everything he has in this world into your power. It is a +fearful thing to take this responsibility. I know it. But you are +going to take it—his future, everything he has dreamed and +hoped for, everything that he has expected to attain—his +character, everything he has that is dear to him, and you are going +to say "Not guilty," or you are going to cover him with the mantle +of infamy and shame forever; you are going to disgrace his blood; +you are going to bring those that love him down with sorrow to +their graves; you are either going to do that or you are going to +say, "We will not believe the testimony of self-convicted robbers +and thieves." And, gentlemen, I ask you, I implore you, I beseech +you, more than that, I demand of you that you find in this case a +verdict of "Not guilty." Put yourself in his place. Do you want to +be convicted on that kind of testimony? Do you want to go to the +penitentiary with that kind of witnesses against you? Do you want +to be locked up on that kind of testimony? Do you want to be +separated from your wife or your child on that kind of evidence? Do +you want to be rendered infamous during your life upon the +testimony of such men as Golsen and Conklin and Rehm? Do you? Do +you? Do you? Does any man in the world imagine that twelve honest +men can be found that can rob another of his citizenship, of his +honor, of his character, of his home, and of his entire fortune, +simply upon the testimony of such scoundrels? No, gentlemen. For +myself, for this defendant, I have no fear. All I ask is that you +will give to this evidence the weight that it deserves. All I ask +of the prosecuting attorney in this case is that he do his duty. +All I ask of him is to state just as nearly as he can, as I have no +doubt he will, the evidence in the case. All I ask of him is that +he give to all these circumstances their due weight, and no more. I +ask him to fight for justice and not for his reputation. I ask him +to fight for the honor of the Government. I ask him to fight for +the complete doing of justice, if he can, but I hope he will leave +out of the case all idea that he must win a case or that I must +lose a case. We are contending for too great a stake. Personally, I +care nothing about it, whether I make or lose what you please to +call reputation in this affair. I care everything for my client. I +care everything for his honor, and more than that, gentlemen, I +love the United States of America. I love this Government, I love +this form of government, and I do not want to see the sources of +government poisoned. I do not want to see a state of things in the +United States of America whereby a man can be consigned to a +dungeon upon the testimony of a robber and thief, simply upon a +political issue, simply by the testimony of some man who wishes to +purchase immunity at the price of another's liberty and honor.</p> +<p>One more point, and I have done. I had forgotten it, or I should +have mentioned it before. They have appealed to you all along to +say that the fact that high-wines were so cheap during all this +time put Mr. Munn upon his information, so to speak, that there +were frauds. Let me take those books and let us see. On the 6th day +of June, 1874, the tax on spirits was seventy cents, and the price +was ninety-four cents. That made them get twenty-four cents a +gallon for the whiskey. Understand, the tax was seventy, the price +was ninety-four. That made them get twenty-four cents for the +whiskey. Now, then, on the 10th of June it was ninety-six and a +half cents. That made twenty-six and a half for the whiskey. On the +10th of June, 1874, twenty-six and a half they got for the whiskey. +February 11, 1874, ninety-six cents, which made twenty-six cents; +and so it went on in that way, until what? Until the tax was raised +from seventy cents to ninety cents, and what is it now? The tax on +whiskey, gentlemen, is ninety cents, and the price on the 10th day +of May, 1876, is one dollar and seven cents; so that the price of +whiskey now is only seventeen cents above the tax, and at the time +that Mr. Munn ought to have known that everybody was a thief and +rascal, the price was twenty-six cents above the tax, ten cents +more than now. From these figures, gentlemen, you will see it, and +how high did it go? The day Mr. Munn was turned out of +office—gentlemen, on the tenth day of May, 1875,—the +tax then being ninety cents, whiskey was worth one dollar and +fifteen cents. The day he was turned out. It was nine cents more +than it is today. You are welcome to all you can make out of that +argument. It was worth nine cents more a gallon above the tax the +day he was turned out than it is to-day, and if Mr. Munn was bound +to take judicial notice that there was nothing but frauds in the +district, and every distillery was running crooked, I say that the +officers of the Government are bound to take that notice to-day, +and you must recollect, gentlemen, that it was admitted in this +case that there were frauds all over the country, that there were +distilleries running in St. Louis, in San Francisco, in Milwaukee, +in Peoria or Pekin, in Peoria, I believe, in my town, not a sound +has been heard, and not a solitary man, I believe, charged with +fraud—in St. Louis, in Louisville, in Cincinnati, in all +these towns. Now, where was the whiskey being made that was +crooked? Nobody could tell. If there was a vast amount being made +in Cincinnati it would lessen the price in Chicago, no matter +whether the Chicago distillers were running honestly or not. If +there was a vast amount being made in St. Louis it would lessen the +price, no matter whether the other distilleries were running +honestly or not, consequently it was impossible for the supervisor +to tell it.</p> +<p>There is another thing I forgot. During all the time Jacob Rehm +was doing this gratuitous rascality he was one of the bondsmen on +the official bond of Hoyt. He was not only helping Hoyt steal and +giving him all the money, but he was making himself responsible for +the money he stole, and he did not charge any commission on it. He +did not charge for any shrinkage or shortage or anything in the +world, but made himself liable for the uttermost farthing. He was +on the bond of Collector Irwin, called the stamp bond, and so do +not forget that he did not only not take any money, but he went on +the acknowledgments of the thieves that stole it. He not only did +not take any himself, but he made himself liable as a bondsman for +what he gave to them. Do not forget these things.</p> +<p>Now, gentlemen, I believe I have said about all I wish to say to +you; the rest is for you. You must take the case, and, as I said, +you do not want to go off on any prejudice against the kind or the +character of the case. You do not want to go off on the idea that +the air is full of rascality because some of us are to be tried +next. We don't know. Let us try this case fairly and squarely on +the evidence, and the next time I meet you, gentlemen, every one of +you will be glad that you found this defendant not guilty, as you +cannot avoid doing.</p> +<p>[The Jury rendered a verdict of "Not Guilty."]</p> +<a name="link0002" id="link0002"><!-- H2 anchor --></a> +<div style="height: 4em;"><br /> +<br /> +<br /> +<br /></div> +<h2>CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL.</h2> +<pre> + * The most characteristic feature of the Star-route trial, + which has been the central point of interest in our city for + the past three months, was the marvelously powerful speech + of Colonel Robert G. Ingersoll before the jury and the judge + last week. + + People who knew this gifted gentleman only superficially, + had supposed that he was merely superficial as a lawyer. + While acknowledging his remarkable ability as an orator and + his vast accomplishments as a speaker, they doubted the + depth of his power. They heard him, and the doubt ceased. It + can be said of Ingersoll, as was written of Castelar, that + his eloquent utterances are as the finely-fashioned + ornamental designs upon the Damascus blade—the blade cuts + as keenly and the embellishments beautify without retarding + its power. + + The following is Colonel Ingersoll's speech. Its swift + incisiveness, keen and comprehensive logic and apt + deductions from proper premises are only equaled by the + grand manner of its delivery, and under the circumstances + incidental to the case and the routes to be traversed, by + its expedition of action and brevity.—Washington, D. C., + The Capital, Sept. 16th, 1882. +</pre> +<p>MAY it please the Court and gentlemen of the jury: Let us +understand each other at the very threshold. For one I am as much +opposed to official dishonesty as any man in this world. The taxes +in this country are paid by labor and by industry, and they should +be collected and disbursed by integrity. The man that is untrue to +his official oath, the man that is untrue to the position the +people have honored him with, ought to be punished. I have not one +word to say in defence of any man who I believe has robbed the +Treasury of the United States. I want it understood in the first +place that we are not defending; that we are not excusing; that we +are not endeavoring to palliate in the slightest degree dishonesty +in any Government official. I will go still further: I will not +defend any citizen who has committed what I believe to be a fraud +upon the Treasury of this Government. Let us understand each other +at the commencement.</p> +<p>You have been told that we are a demoralized people; that the +tide of dishonesty is rising ready to sweep from one shore of our +country to the other. You have been appealed to to find innocent +men guilty in order that that tide may be successfully resisted. +You have been told—and I have heard the story a thousand +times—that this country was demoralized by what the gentlemen +are pleased to call the war, and that owing to the demoralization +of the war it is necessary to make an example of somebody that the +country may take finally the road to honesty. We were in a war +lasting four years, but I take this occasion to deny that that war +demoralized the people of the United States. Whoever fights for the +right, or whoever fights for what he believes to be right, does not +demoralize himself. He ennobles himself. The war through which we +passed did not demoralize the people. It was not a demoralization; +it was a reformation. It was a period of moral enthusiasm, during +which the people of the United States became a thousand times +grander and nobler than they had ever been before. The effect of +that war has been good, and only good. We were not demoralized by +it. When we broke the shackles from four millions of men, women and +children it did not demoralize us. When we changed the hut of the +slave into the castle of the freeman it did not demoralize us. When +we put the protecting arm of the law about that hut and the flag of +this nation above it, it was not very demoralizing. When we stopped +stealing babes the country did not suddenly become corrupted. That +war was the noblest affirmation of humanity in the history of this +world. We are a greater people, we are a grander people, than we +were before that war. That war repealed statutes that had been made +by robbery and theft. It made this country the home of man. We were +not demoralized.</p> +<p>There is another thing you have been told in order that you +might find somebody guilty. You have been told that our country is +distinguished among the nations of the world only for corruption. +That is what you have been told. I care not who said it first. It +makes no difference to me that it was quoted from a Republican +Senator. I deny it. This country is not distinguished for +corruption. No true patriot believes it. This country is +distinguished for something else. The credit of the United States +is perfect. Its bonds are the highest in the world. Its promise is +absolute pure gold. Is that the result of being distinguished for +corruption? I have heard that nonsense, that intellectual rot all +my life, that the people used to be honest, but at present they are +exceedingly bad. It is the capital stock of every prosecuting +lawyer; but in it there is not one word of truth. Is this country +distinguished only for its corruption throughout Europe? No. It is +respected by every prince and by every king; it is loved by every +peasant. Is it because we have such a reputation for corruption +that a million people from foreign lands sought homes under our +flag last year? Is corruption all we are distinguished for? Is it +because we are a nation of rascals that the word America sheds +light in every hut and in every tenement in Europe? Is it because +we are distinguished for corruption that that one word, America, is +the dawn of a career to every poor man in the Old World? I always +supposed that we were distinguished for free schools, for free +speech, for just laws; not for corruption. A country covered with +schoolhouses, where the children of the poor are put upon an exact +equality with those of the rich, is not distinguished for +corruption. And yet in the name of this universal corruption you +are appealed to to become also corrupt. This nation is +substantially a hundred years old, and to-day the assessed property +of the United States is valued at $50,000,000,000. Is that the +result of corruption, or is it the result of labor, of integrity +and of virtue? I deny that my country is distinguished for +corruption. I assert that it rises above the other nations +distinguished for humanity as high as Chimborazo above the plains. +Never will I put a stain upon the forehead of my country in order +that I may win some case, and in order that I may consign some +honest man to the penitentiary. I stand here to deny that this is a +corrupt country. Let me say that the only tribute that I ever heard +paid to corruption was indirectly paid by Mr. Merrick himself. He +told you that official corruption destroyed the French Empire, and +upon the ruins of that empire arose the French Republic. He makes +official corruption the father of French liberty. If it works that +way I hope they will have it in every monarchy on the globe. +Napoleon stole something besides money; he stole liberty, and the +French people finally got to that condition of mind where they +preferred to be trampled on by Germany rather than to have their +liberty devoured by Napoleon. From that splendid sentiment sprang +the French Republic. This country is the land not of slavery, but +of liberty, not of unpaid toil, but of successful industry. There +is not a poor man to-day in all Europe or a poor boy who does not +think about America. I recollect one time in Ireland that I met +with a little fellow about ten years old with a couple of rags for +pantaloons and a string for a suspender. I said, "My little man, +what are you going to do when you grow up?" "<i>Going to +America</i>." It is the dream of every peasant in Germany. He will +go to America; not because it is the land of corruption, but +because it is the land of plenty, the land of free schools, the +land where humanity is respected.</p> +<p>There is another thing about this country. We have a king here, +and that king is the law. That king is the legally expressed will +of a majority, and that law is your sovereign and mine. You have no +right to violate one law to carry out another. We all stand equal +before that law, and the law must be upheld as an entirety, and in +no other way. If in this case you believe these defendants beyond a +doubt to be guilty, it is your duty to find them so, and you must +find them so in order to preserve your own respect. I do not agree +with this prosecution in the idea that the perpetuity of the +Republic depends upon this verdict. Decide as badly as you please, +as horribly as you can, the Republic will stand. The Republic will +stand in spite of this verdict, and the Republic will stand until +people lose confidence in verdicts—until they lose confidence +in legal redress. When the time comes that we have no confidence in +courts and no confidence in juries, then the great temple will lean +to its fall, and not until then. As long as we can get redress in +the courts, as long as the laws shall be honestly administered, as +long as honesty and intelligence sit upon the bench, as long as +intelligence sits in the chairs of jurors, this country will stand, +the law will be enforced and the law will be respected. But so far +as my clients are concerned, everything they have, everything they +love, everything for which they hope, home, friends, wife, +children, and that priceless something called reputation, without +which a man is simply living clay, everything they have is at +stake, and everything depends upon your verdict. I want you to +understand that everything depends upon your decision, and yet my +clients with their world at stake, home, everything, +<i>everything</i>, ask only at your hands the mercy of an honest +verdict according to the evidence and according to the law. That is +all we ask, and that we expect. By an honest verdict I mean a +verdict in accordance with the testimony and in accordance with the +law, a verdict that is a true and honest transcript of each juror's +mind, a verdict that is the honest result of this evidence. Whoever +takes into consideration the desire, or the supposed desire, of the +outside public is bribed. Whoever finds a verdict to please power, +whoever violates his conscience that he may be in accord, or in +supposed accord, with an administration or with the Government, is +bribed. Whoever finds a verdict that he may increase his own +reputation is bribed. Whoever finds a verdict for fear he will lose +his reputation is bribed. Whoever bends to the public judgment, +whoever bows before the public press, is bribed.</p> +<p>Fear, prejudice, malice, and the love of approbation bribe a +thousand men where gold bribes one. An honest verdict is the result +not of fear, but of courage; not of prejudice, but of candor; not +of malice, but of kindness. Above all, it is the result of a love +of justice. Allow me to say right here that I believe every +solitary man on this jury wishes to give a verdict exactly in +accordance with this testimony and exactly in accordance with the +law. Every man on this jury wishes to preserve his own manhood. +Every man on this jury wishes to give an honest verdict. There are +no words sufficiently base to describe a man who will knowingly +give a dishonest verdict. I believe every man upon this jury to be +absolutely honest in this case. The mind of every juror, like the +needle to the pole, should be governed simply by the evidence. That +needle is not disturbed by wind or wave, and the mind of the honest +juror never should be disturbed by clamor, nor by prejudice, nor by +suspicion. Your minds should not be affected by the fume, by the +froth, by the fiction, or by the fury of this prosecution. You +should pay attention simply to the evidence, and to use the +language of one of my clients, you should be governed by the frozen +facts. That is all you have any right to think of and all you have +any right to examine.</p> +<p>Having now said thus much about the duties of jurors, let me say +one word about the duties of lawyers. I believe it is the duty of a +lawyer, no matter whether prosecuting or defending, to make the +testimony as clear as he can. If there is anything contradictory it +is his business if he possibly can to make it clear. If there is +any question of law about which there is a doubt, it is his right +and it is his duty to give to the court the result of his study and +of his thoughts, for the purpose of enlightening the court upon +that particular branch of law. No matter if he may believe the +court understands it, if there is the slightest fear that the court +does not or has forgotten it, it is his duty to bring the attention +of the court to that law. It is not his duty to abuse anybody. It +is not my duty to abuse anybody. There is no logic in abuse; not +the slightest; and when a lawyer, under the pretext of explaining +the evidence to the jury, calls a defendant a thief and a robber, +he steps beyond the line of duty and, in my judgment, beyond the +line of his privilege. What light does that throw upon the case? In +his effort to explain the law to the court what cloud does it +remove from the intellectual horizon of his honor for the attorney +to call the defendant a robber, a thief, or a pickpocket? I shall +in this case give you what I believe to be the facts. I shall call +your attention to the testimony. I shall endeavor to throw what +light I am capable of throwing upon this entire question. I shall +not deal in personalities. They are beneath me. I shall not deal in +epithets. Nobody worth convincing can be convinced in that way. +Now, let us see what the law is, and let us see what our facts are. +In the beginning of this dusty branch I shall ask the pardon of +every juror in advance for going over these facts once again. You +see they strike every man in a peculiar way. No two minds are +exactly alike. No pair of eyes distinguish exactly the same object +or the same peculiarities of the objects. This is an indictment +under section 5440 of the Revised Statutes, and there must not only +be a conspiracy to defraud, but there must be an overt act done in +pursuance of that conspiracy for the purpose of effecting the +object of it. Now, then, how must these overt acts be stated in +this indictment? Is the overt act a part of the crime, and must it, +be described with the same particularity that you describe the +offence? Which of the overt acts set out in this indictment is the +overt act depended upon, together with the act of conspiring, to +make this offence? I hold, may it please your Honor, that every +overt act set out in the indictment must be proved exactly as it is +alleged, no matter whether the description was necessary to be put +in the indictment or not. No matter how foolish, how unnecessary +the description, it must be substantiated, and it must be proven +precisely as it is charged. No matter whether the particular thing +described is of importance or not, no matter how infinitely +unnecessary it was to speak of it, still, if it is a matter of +description, it must be proven precisely as it is charged. Upon +that subject I wish to call the attention of the Court to some +authorities, and it will take me but a few moments. I will call the +attention of the Court first to the case of the State against +Noble, 15 Maine, 476. Here a man was indicted for fraudulently and +willfully taking from the river and converting to his own use +certain logs. These logs were described as marked "W" with a cross, +and "H" with another cross, and with a girdle. Now, it seems that a +part of this mark was not found, according to the testimony upon +the logs taken:</p> +<p>"The description of these logs in the indictment is the only way +the logs could be distinguished and could not be rejected as +surplusage. It has been settled that if a man be indicted for +stealing a black horse, and the evidence be that he stole a white +one, he cannot be convicted. The description of a log by the mark +is more essential than that of a horse by its color. If it was not +necessary to describe the log so particularly by the mark, yet so +having stated it, there can be no conviction without proof of +it."</p> +<p>Now, the court, in deciding this, says:</p> +<p>"It may be regarded as a general rule, both in criminal +prosecutions and in civil actions, that an unnecessary averment may +be rejected where enough remains to show that an offence has been +committed, or that a cause of action exists. In Ricketts vs. +Solway, 2 Barn., & Aid., 360, Abbott, C. J., says: 'There is +one exception, however, to this rule, which is, where the +allegation contains matter of description. Then, if the proof given +be different from the statement, the variance is fatal.' As an +illustration of this exception, Starkie puts the case of a man +charged with stealing a black horse. The allegation of color is +unnecessary, yet as it is descriptive of that, which is the +subject-matter of the charge, it cannot be rejected as surplusage, +and the man convicted of stealing a white horse. The color is not +essential to the offence of larceny, but it is made material to fix +the identity of that, which the accused is charged with +stealing."</p> +<p>3 Stark., 1531. "In the case before us the subject-matter is a +pine log marked in a particular manner described. The marks +determine the identity, and are, therefore, matter purely of +description. It would not be easy to adduce a stronger case of this +character. It' might have been sufficient to have stated that the +defendant took a log merely, in the words of the statute. But under +the charge of taking a pine log we are quite clear that the +defendant could not be convicted of taking an oak or a birch log. +The offence would be the same; but the charge to which the party +was called to answer, and which it was incumbent on him to meet, is +for taking a log of an entirely different description. The kind of +timber and the artificial marks by which it was distinguished are +descriptive parts of the subject-matter of the charge which cannot +be disregarded, although they may have been unnecessarily +introduced. The log proved to have been taken was a different one +from that charged in the indictment; and the defendant could be +legally called upon to answer only for taking the log there +described. In our judgment, therefore, the jury were erroneously +instructed that the marks might be rejected as surplusage; and the +exceptions are accordingly sustained."</p> +<p>I also cite the case of the State against Clark, 3 Foster, New +Hampshire, 429:</p> +<p>"Indictment for fraudulently altering the assignment of a +mortgage. The indictment set forth the mortgage, and also the +assignment, as it was alleged to have been originally made from +Miles Burnham to Noah Clark, the respondent; and alleged that the +assignment was signed, sealed, delivered, witnessed by two +witnesses, and duly and legally recorded at length, in the registry +of deeds of Rockingham county, on the 18th of September, 1844. It +then alleged that this assignment was fraudulently altered on the +28th of June, 1844, by inserting the letter 'S' in two places, +between the words 'Noah' and 'Clark,' so that the assignment +originally made to Noah Clark, after the alteration appeared as if +it were made to Noah S. Clark.</p> +<p>"On trial the records of deeds were produced, and there was +found a record of the assignment purporting to be made to Noah S. +Clark, the record bearing date September 18, 1844, but there was no +record of any assignment to Noah Clark. The respondent's counsel +objected that this evidence did not support the allegations of the +indictment. The forgery was alleged to have been committed on the +28th of June, 1844, and the court admitted evidence that Miles +Burnham, who executed the assignment, being applied to about the +30th of July, 1846, for a loan of money upon a mortgage of the same +property, declined to make the loan unless he was satisfied there +was no mortgage of conveyance of the land by Noah Clark, and the +person who drew the assignment searched the records with Burnham, +and found no such deed on record. This evidence was objected to, +but was understood to be introductory to other material and +pertinent evidence, and was therefore admitted; but no such other +evidence, to which it was introductory, was offered.</p> +<p>"The jury found a verdict of guilty, which the defendant moved +to set aside."</p> +<p>Upon that the court says:</p> +<p>"We are not able to look upon this statement that the deed was +duly recorded as well as witnessed and acknowledged according to +the statute, in any other light than as part of the description of +the deed and conveyance which the defendant was charged with +altering. We are, therefore, of opinion that the evidence upon this +point did not sustain the indictment."</p> +<p>Now, if the statement that the mortgage was recorded was such a +material part of the description that a failure to prove the record +as charged was fatal, so, I say, in these overt acts, if they +charge that a thing was done or a paper filed on a certain day and +it turns out not to be so, that is a fatal variance, and under that +description in the indictment the charge cannot be substantiated. I +refer to the case against Northumberland, 46 New Hampshire, 158, +and also to the King against Wennard, 6 Carrington & Paine, +586.</p> +<p>Clark vs. Commonwealth, 16 B., Monroe, 213:</p> +<p>"The doctrine seems to have been well settled in England and +this country, that in criminal cases, although words merely formal +in their character may be treated as surplusage and rejected as +such, a descriptive averment in an indictment must be proved as +laid, and no allegation, whether it be necessary or unnecessary, +more or less particular, which is descriptive of the identity of +what is legally essential to the charge in the indictment, can be +rejected as surplusage."</p> +<p>And in this case I cite Dorsett's case, 5th Roger's Record, +77:</p> +<p>"On an indictment for coining there was an alleged possession of +a die made of iron and steel, when, in fact, it was made of zinc +and antimony. The variance was deemed fatal."</p> +<p>And yet it was not necessary to state of what the die was made. +If the indictment had simply said he had in his possession this +die, it would have been enough, but the pleader went on and +described it, saying it was made of iron and steel. It turned out +upon the trial that it was made of zinc and antimony, and the +variance was held to be fatal. So I cite the court to Wharton's +American Crim. Law, 3rd edition, page 291, and to Roscoe on +Criminal Evidence, 151. Now I cite the case of the United States +against Foye, 1st Curtis's Circuit Court Reports, 368, and I do not +think it will be easy to find a case going any further than this. +It goes to the end of the road:</p> +<p>"A letter containing money deposited in the mail for the purpose +of ascertaining whether its contents were stolen on a particular +route and actually sent on a post-route, is a letter intended to be +sent by post within the meaning of the post-office act."</p> +<p>This I understand was a decoy letter.</p> +<p>"The description of the termini between which the letter was +intended to be sent by post cannot be rejected as surplusage, but +must be proved as laid."</p> +<p>Upon that the court says:</p> +<p>"But a far more difficult question arises under the other part +of the objection. The indictment alleges, not only that this letter +was intended to be conveyed by post, but describes where it was to +be conveyed; it fixes the termini as Georgetown and Ipswich. The +allegation is, in substance, that the letter was intended to be +conveyed by post from Georgetown to Ipswich. The question is, +whether the words from Georgetown to Ipswich can be treated as +surplusage. It was necessary to allege that the letter was intended +to be conveyed by post. The words from Georgetown to Ipswich are +descriptive of this intent. They describe, more particularly, that +intent which it was necessary to allege. In United States vs. +Howard, 3 Sumner, 15, Mr. Justice Story lays down the following +rule, which we consider to be correct: 'No allegation, whether it +be necessary or unnecessary, whether it be more or less particular, +which is descriptive of the identity of that which is legally +essential to the charge in the indictment, can ever be rejected as +surplusage.' Apply that rule to this case. It is legally essential +to the charge to allege some intent to have the letter conveyed +somewhere by post. Suppose the indictment had alleged an intent to +have it conveyed between two places where no post-office existed, +and over a post-route where no postroad was established by law. +Inasmuch as the court must take notice of the laws establishing +post-offices and post-roads, the indictment would then have been +bad; because this necessary allegation would, on its face, have +been false. Words, therefore, which describe the termini and the +route, and thus show what in particular was intended, do identify +the intent, and show it to be such an intent as was capable, in +point of law, of existing.</p> +<p>"And we are obliged to conclude that they cannot be treated as +surplusage, and must be proved, substantially, as laid. We are of +opinion, therefore, that there was a variance between the +indictment and the proof; and that, for this cause, a new trial +should be granted."</p> +<p>So I refer to the State vs. Langley, 34th New Hampshire, +530.</p> +<p>The Court. I think, Colonel Ingersoll, there is no doubt about +this doctrine.</p> +<p>Mr. Ingersoll. I do not want any doubt about it.</p> +<p>The Court. There cannot be.</p> +<p>Mr. Ingersoll. Well, I will just read this because I do not want +any doubt about it in anybody's mind.</p> +<p>The Court. I have no doubt about it.</p> +<p>Mr. Ingersoll. Very well:</p> +<p>"If a recovery is to be had, it must be <i>secundum allegata et +probata</i>; and the rule is one of entire inflexibility in respect +to all such descriptive averments of material matters. The cases +upon this point, many of which are collected in the case of State +vs. Copp, 15 N. H., 2F5, are quite uniform."</p> +<p>Now, if the Court please, I not only read this with regard to +the overt acts, but with regard to the description of the crime +itself—the conspiracy. I will then refer to State against +Copp, 15th New Hampshire. I will also refer to the case of Rex +against Whelpley, 4th Carrington & Payne, 132; to 3d Starkie on +Evidence, sections 1542 to 1544, inclusive; also to the United +States against Denee and others, 3d Wood, page 48, and a case under +this exact section, 5440:</p> +<p>"It seems clear that the statute upon which this indictment is +based is not intended to relieve the pleader from any supposed +necessity of setting out the means agreed upon to carry out the +conspiracy by requiring him to aver some overt act done in +pursuance of the conspiracy and make such act a necessary +ingredient of the offence." The court then refers to the +Commonwealth against Shed, 7th Cushing, 514, and continues—in +that case it was different:</p> +<p>"That difficulty does not exist here, for the overt act is part +of the offence, and must be proved as laid in the indictment."</p> +<p>So I find that the court passed upon this very question, and I +wish to call the attention of the Court again to one line on page +961 of the record in this case:</p> +<p>"But in all cases the principle is simply this: That where the +act which was done in pursuance of the conspiracy is described in +the indictment it must be described with accuracy and completeness, +and if there is a variance in the proof it is fatal to the +prosecution."</p> +<p>When I come to that part as to the necessity of describing +offences then I will cite the Court to some other authorities in +connection with these.</p> +<p>Now, then, we have got it established, gentlemen of the jury. +There is no longer any doubt about that law, and the Court will so +instruct you, that wherever they set out in the indictment that we +did a certain thing in pursuance of the conspiracy, they must prove +that thing precisely as charged, no matter whether the description +was necessary or unnecessary. They must prove precisely as they +state. They wrote the indictment, and they wrote it knowing they +must prove it, and if they wrote it badly it is not the business of +this jury to help them out of that dilemma.</p> +<p>Now, as I say, we come to the dust and ashes of this case, the +overt acts, and I take up these routes precisely in the order in +which they were proved by the prosecution. First. I take up route +34149. Now, let us see where we are. The first charge is that we +filed false and altered petitions by Peck, Miner, Vaile, and +Rerdell. When did we file them? The indictment charges that we +filed them on the 10th day of July, 1879. When did the evidence +show they were filed? On the 3d day of April, 1878. That is a fatal +variance, and that is the end eternal, everlasting, of that overt +act. Without taking into consideration the fact that every petition +was true and genuine, the petitions were not sent by the persons as +charged. It was presented by Senator Saunders, and that is the +absolute end of that overt act, and you have no right to take it +into consideration any more than if nothing had been said upon the +subject.</p> +<p>Second. That on the 10th of July a false oath was placed upon +the records. Now, that is an overt act, and you know as well as I +do that the description of that must be perfect. If they say it is +of one date and the evidence shows that it is of another, it is of +no use. It is gone. They say, then, that a false oath was filed. +When? On the 10th day of July. Suppose the oath to have been false. +When was it filed? The evidence says April 3, 1879. That is the end +of the false oath, no matter whether that oath is good or bad. No +matter whether they committed perjury or wrote it with perfect and +absolute honesty, it is utterly and entirely worthless as an overt +act.</p> +<p>Third. An order for expedition July 10, 1879, alleged to have +been made by Brady. As a matter of fact the order was signed by +French. There is a misdescription. No matter if Brady told him to +sign it, it was not as a matter of fact signed by Brady—it +was signed by French. They described it as an order signed by +Brady. It is an order signed by French, and the misdescription of +variance is absolutely fatal, and you have no more right to +consider it than you have the decree of some empire long since +vanished from the earth. Now, this is all the evidence on this +route. That is all of it with the exception of who received the +money, and I will come to that after awhile. That is route +34149.</p> +<p>According to their statement in the indictment, holding them by +that, there is not the slightest testimony. We can consider that +route out. We have only eighteen now to look after. That is the end +of that. It has not a solitary prop; upon the roof of that route +not a shingle is left—not one.</p> +<p>Let us take the next route, 38135. What do we do in that +according to the indictment? And now, gentlemen, recollect, they +wrote this indictment. You would think we did, but we didn't. They +wrote it, and they are bound by it. But if I had been employed on +behalf of the defendants to write it I should have written it just +in that way.</p> +<p>First. Sending and filing a false oath. When did we send it; +when did we file it? On the 26th day of June. That is what the +indictment says. What does the evidence say? April 18, 1879. Now, +that is the end of that. It was a true oath, but that does not make +any difference. That oath is gone. That has been sworn out of the +case, and dated out of the case. What is the next?</p> +<p>Second. Filing false petitions. When did we file them? The 26th +day of June, 1879. The last petition was filed the 8th of May, +1879, and it does not make one particle of difference whether these +dates were before or after the conspiracy as set forth, but as a +matter of fact, every one of the petitions was true. That charge is +gone, A fatal variance. What is the next fraudulent order? That of +June 20. There was never the slightest evidence introduced to show +that it was a fraudulent order—not the slightest. And what is +the next charge? Fraudulently filing a subcontract. And right here +I stop to ask the Court, of course not expecting an answer now, but +in the charge to the jury, is it possible to defraud the Government +of the United States by filing a subcontract?</p> +<p>Now, gentlemen, I want you to think of it. How would you go to +work to defraud the Government by filing a subcontract? If the +subcontract provides for a greater amount of pay than the +Government is giving the original contractor, the Government will +not pay it; it will only pay up to the amount that it agreed to pay +the contractor. It is like A giving an order on B to pay C what A +owes B. He need not pay him any more. That is all. And if the +ingenuity of malice can think of a way by which the Government +could be defrauded by the filing of a subcontract I will abandon +the case. It is an impossible, absurd charge, something that never +happened and never will happen. Well, that is the end of this route +with one exception. This is the Agate route. This is the route +where thirty dollars it is claimed has been taken from the +Government. It is that route. You remember the productiveness of +that post-office. They established an office and nobody found it +out except the fellow that was postmaster, and in his lonely +grandeur I think he remained about eighteen months and never sold a +stamp. That is all that is left in that route, that order putting +Agate upon the route and taking it off, and then giving one month's +extra pay. That is all—another child +washed—38135—that is all there is to that route; no +evidence except epithets, no testimony except abuse. If anything is +left under that it is simply "robber, thief, pickpocket." That is +all.</p> +<p>Now we come to another route, and I again beg pardon for calling +attention to these little things. The Government has forced us to +do it. It is like a lawsuit among neighbors. Each is so anxious to +beat the other they begin to charge for things that they never +dreamed of at the time they were delivered. They will charge for +neighborly acts, time lost in attending the funeral of members of +each other's family before they get through the lawsuit. So the +Government started out in this case, and not finding a great point +had to put in little ones, and we have to answer the kind of points +they make.</p> +<p>41119. Overt acts. First. Filing a false oath. When did we file +it? The 25th day of June, the indictment says. Who filed it? Peck +and Miner. Well, when was it filed or when was it transmitted? +According to their story, June 23, 1879. This oath is marked 8 C, +and an effort was made to prove by a man by the name of Blois that +it was a forgery. That was objected to, first, that it was not +charged to be forged in the indictment; and second, that a notary +public had already sworn that it was genuine, and that he could not +be impeached in that way, and thereupon that oath was withdrawn, +and you will never hear of it any more. I do not know whether it is +true or not. That is found on record, page 1469. Now, recollect +that oath was withdrawn. That is the end of it.</p> +<p>Second. Filing false petitions. When were they filed? July 8, +1879, and it turned out that that charge was true, with two +exceptions: First, that they were not filed at that time; and, +second, that all the petitions were true. That is the only harm +about that charge.</p> +<p>Third. A fraudulent order made by Brady, July 8th. Now let us +see what the fraud consists in. The fraud is claimed to be in +expediting to thirty-three hours when the petition only called for +forty-eight. You remember the charge expediting to thirty-three +hours, when the petition only called for forty-eight. Now, let us +see. It is claimed that to grant more than the petitions ask is a +crime; certainly it must be admitted that to grant less is equally +a crime. The only evidence now of fraud in this is that he was +asked to expedite the forty-eight hours, but he expedited to +thirty-three. That is to say, he violated the petitions, and if +that is good doctrine, then the petitions must settle whether +expedition is to be granted or not. If that is good doctrine there +is no appeal from the petition. I do not believe that doctrine, +gentlemen. I believe it is the business of the Post-Office +Department to grant all the facilities to the people of the United +States that the people need. He must get his information from the +people, and from the representatives of the people; and while he is +not bound to give all they ask, if he does give what the people +want, and what their representatives indorse, you cannot twist or +torture it into a crime. That is what I insist. Now, the only +charge is here, and while they ask for forty-eight hours he gave +thirty-three. That is the only crime. Did he pay too much for it? +There is no evidence of it. Before I get through I will show you +that there is no evidence that he ever paid a dollar too much for +any service whatever.</p> +<p>Now, then, if the doctrine contended for by the Government is +correct, then a petition is the standard of duty and the warrant of +action, and if they gain upon this route they lose upon every other +route. Let us examine. There are three charges. First, false +petitions. They were all true. Second, false oaths. They offered to +prove it, and then withdrew it. Third, that while the petitions +called for forty-eight hours he granted thirty-three, and before +you can find that that was fraudulent you must understand the +precise connections that this mail made with all others, and it was +incumbent upon them to prove, not an inference, but a fact, that +there was not only reason, but reason in money—sound reason +for expediting it instead of forty-eight to thirty-three. That is +the end of that route. There is not a jury on earth, let it be +summoned by prejudice and presided over by ignorance, that would +find a verdict of guilty upon the testimony in that route. It is +impossible. Another child gone.</p> +<p>44155. Let us see what we get there, and I have not got to my +client yet. First, filing false petitions, by Peck, Miner, Vaile +and Rerdell. When? On the 27th of June, 1879. Were they false? Let +us see. Mr. Bliss, speaking of these petitions contained in a +jacket held in his hand, dated the 29th of June, 1879, record, page +687, said: "We do not attack the genuineness of these petitions." +That is the end of that. So much for that.</p> +<p>Second. A fraudulent order increasing service, and yet all the +petitions are admitted to be genuine, and the order was in +accordance with the petitions on the route. Before the order was +fraudulent because it was not in accordance with the petitions, and +in this route it is a fraud because it is in accordance with the +petitions. Now, just take it. Here is the route. Every petition is +genuine, the oath is true, not a petition attacked, the order in +accordance therewith, and the only evidence that the order is a +fraud is that it was in accordance with genuine petitions +recommended by the people and by the representatives of the people. +That is all.</p> +<p>Let me tell you another thing. Expedition had been granted on +the route long before, and this was simply an increase of trips, +and no charge was made that the order granting the expedition ever +was a fraud.</p> +<p>Third. Another fraudulent order by Brady, of April 17, 1880, and +it turns out that this order was in fact made by French. That was +the only evidence that it was fraudulent, but the mere fact that +French made it takes it out of this case, and you have no more +right to consider it than you would an order made in the Treasury +Department. The only objection to this order now is what? That it +was in violation of the petitions. How? That it took off one or two +of the trips. That was the fraud of the order of April 17, 1880. +The fraud consisted in taking off two or three trips that had been +put on.</p> +<p>Now, let us see. The next fraudulent order was July 16, 1880. +What was that for? For putting the service back precisely as it +was. Now, I want you, gentlemen, to understand that, every one of +you. Here is a charge in the indictment of a fraudulent order that +took off, say, two trips from the service. That is a fraud they +say. Then the next order put those two trips back, and that they +say is another fraud. It would have been very hard to have made an +order in that case to have satisfied the Government; it was an +order to decrease it; it was an order to put it back where it was; +that is, it was a fraud, consequently it was a fraud to do anything +about it. That is all there is in that case.</p> +<p>Let us boil it down. False petitions. That is the charge. The +evidence is that the petitions are all true. A false oath is the +charge. The evidence is that the oath is true. A fraudulent order +decreasing the service, another fraudulent order increasing the +service, that is, leaving it just where he found it. In other +words, according to this indictment, Brady committed a fraud in +reducing the trips, and another fraud by putting the trips back. I +think it was only one trip that he reduced. Now, that is all there +is in that case. People may talk about it one day or one year. That +is all there is, and that is nothing.</p> +<p>38145. Fraudulently filing what? A subcontract with J. L. +Sanderson. I say you cannot fraudulently file a subcontract against +the Government. It is an impossibility. Besides all that, Mr. +Sanderson filed his own subcontract. There is no evidence that +anybody else did file it or present it for filing. It was not our +contract; it was Sanderson's subcontract. How comes that in his +indictment? Let me tell you. In the first indictment they had +Sanderson; and when they copied that first indictment, with certain +variations to make this, they forgot this part and put in the +fraudulent filing of Sanderson's contract. It never should have +been in this case. It has not the slightest relationship. The real +charge of fraud in this route is that a retrospective order was +made, and this order bore date February 26, 1881, and was +retrospective in this: that it was to take effect from the 15th of +January, 1881; but understand me, this was Sanderson's route. He +received that money, and it has nothing to do with us. Still I will +answer it. That retrospective order gave pay from the 15th of +January, 1881. Now, it seems that before the order of February 26, +an order had been made by telegraph, dated 15th of January, 1881, +to Sanderson, and this telegraphic order was for daily service on +eighty-nine miles. The jacket order of February 26, 1881, was for +daily service on the whole route from January 15, 1881. If that +order had been carried out he would have received pay for daily +service on the whole route, instead of for daily service on the +eighty-nine miles to which he was entitled. It turned out that the +order of February 26, 1881, was signed by Postmaster-General +Maynard. The only possible charge is that Sanderson received pay +for a daily service on the whole route from January 15, 1881, to +February 26, 1881, instead of eighty-nine miles. But we find in the +table of payments introduced by the Government, that for that +quarter a deduction was made of three thousand four hundred and +twenty-two dollars and nineteen cents, showing that the department +could only have paid for the daily service on the eighty-nine +miles, and that is exactly what the daily service would come to on +the balance of the route. That ends that route. We had nothing to +do with it anyway. It was Sanderson. He filed his own contract, he +got his own orders, he collected his own money and settled with the +department. We have nothing to do with it and we will bid it +farewell.</p> +<p>The next is No. 38156. First, filing false oath June 12, 1879. +The oath was filed May 6, 1879.. That is the end of that. I do not +care whether it is true or false, that is, so far as this verdict +is concerned. I care whether it is true or false, so far as my +clients are concerned, but so far as this verdict is concerned, it +makes no difference. There is a fatal variance. Second, it is +alleged that Brady made a fraudulent order June 12, 1879. The order +of June 12, 1879, was made by French. There is another fatal +variance. You have no right to take it into consideration. French +is not one of the parties here. Third, sending a subcontract of +Dorsey and filing it. As I told you before, you cannot by any +possibility thus defraud the Government; not even if you set up +nights to think about it. There is no proof that the subcontract +was a fraud. Let us have some sense. It is an absolute +impossibility to commit this offence, and therefore we will talk no +more about it. Fourth, the fraudulent order of Brady increasing the +distance four miles. This was done on the 20th of December, 1880. +That is the only real charge in this route. I turn to the record +and find from the evidence, on page 943, that the distance was from +five to six miles, according to the Government's own proof. Beside +all that, the order of which they complain is not in the record. It +was never proved by the Government and never offered by the +Government, so far as I can find. That is the end of that route. +The only charge in it is that they increased the distance four +miles, and the evidence of the Government is that it was from five +to six.</p> +<p>The next is 46132. Overt acts: Filing a false oath by everybody +June 24, 1879. The evidence shows it was filed April 11, 1879. That +is the end of that. No matter whether it is true or false, it is +gone. Second, the fraudulent filing of a subcontract. Well, I have +shown you that that cannot be fraudulent. The subcontract of Vaile +shows that Vaile was to receive one hundred per cent. It was +executed April 1, 1878, in consequence, as my friend General Henkle +explained, of a conspiracy made on the 23d of May following. The +service commenced July 1, 1878. There could have been no fraud in +it. It was filed as a matter of fact May 24, 1879, and not June 4. +Even if it had been a fraud, which is an impossibility, the +description is wrong and the variance is fatal. There is no +evidence that any order was fraudulent. Every one in this case is +supported by petitions, and every petition is admitted to be +honest, or proved to be honest and genuine. There is no proof at +all, and not the slightest attempt on the part of the Government to +prove that there was any fraud on this route. So much for that.</p> +<p>No. 46247. Let us see just where we are. First, filing false and +forged petitions. When? July 26, 1879. By whom? By Peck, Dorsey, +and Rerdell. Now, after they had solemnly written that in the +indictment, and after it had been solemnly found to be a fact by +the grand jury, the attorneys for the Government come into court +and admit during the trial that all the petitions upon this route +were genuine; every one. It was admitted, I say, that every +petition was genuine. Read from page 1008 of the record and there +you will find what the Court said about these very petitions:</p> +<p>"I shall take the responsibility of dispensing with the reading +of petitions when there is no point made with regard to them."</p> +<p>The petitions were so good, they were so honest, they were so +genuine, they were so sensible, that the curiosity of the Court was +aroused to find what on earth they were being read for on the part +of the prosecution. You remember it. Every one genuine, honor +bright, from the first line to the last. In reply to the Court at +that time Mr. Bliss said:</p> +<p>"There is no point made as to the increase of trips. +These—" Meaning the petitions—"relate to the increase +of trips. There is no point made there."</p> +<p>It is thus admitted that every petition was genuine. Second, a +fraudulent order increasing one trip. This order was never proved +by the Government. It was not even offered by the Government, so +that the route stands in this way: First, a charge of false +petitions; second, an admission that the petitions were all +genuine; third, a charge that a fraudulent order was made; fourth, +no proof that the order was made. That is all there is to that. And +that is the end of it.</p> +<p>No. 38134. First, sending false and fraudulent petitions, and +filing the same. When? July 8,1879. On page 1031 of the record I +find the following:</p> +<p>"Mr. Bliss. The petitions under your Honor's ruling I am not +going to offer."</p> +<p>Why? Because they were all genuine. The court had mildly +suggested the impropriety of the Government proving its case by +reading honest petitions. Consequently, when it came to this, the +next route, he said:</p> +<p>"The petitions under your Honor's ruling I am not going to +offer."</p> +<p>Why? Because they are all honest, and under a charge in the +indictment that they are all fraudulent he did not see the +propriety of reading them. That is what he meant. This remark was +made because the Government admitted these petitions to be honest. +When were these petitions filed? The indictment says July 8. The +evidence says May 6. So that if every petition had been a forgery +you could not take them into consideration on this route. It is +charged that Miner & Co. signed and placed in Brady's office a +false oath on July 8. On record, page 1032, it appears that it was +filed May 8, 1879, and not as described in the indictment. The +pleader has the privilege of describing it right or describing it +wrong. If he describes it right it can go in evidence. If he +describes it wrong it cannot go in evidence, and they have no right +to complain if you throw out evidence that they make it impossible +for you to receive. It has been charged with regard to this +affidavit that Dorsey was not at that time contractor, and +therefore had no right to make the affidavit. The affidavit was +made April 21, 1879, and the regulation that such affidavits must +be made by the contractors was made July 1, 1879. That is a +sufficient answer. The next charge is a fraudulent order made by +Brady, July 8. The petitions were all admitted to be genuine. There +was no evidence that the order was not asked for by the petitions. +There was no evidence that the order in and of itself was +fraudulent; not the slightest. There is nothing like taking these +things up as we go and seeing what the Government has established. +I know that you want to know exactly what has been done in this +case and you want to find a verdict in accordance with the +evidence.</p> +<p>Route 38140. Overt acts: First, making, sending, and filing +false petitions. When were they made and sent? The 23d day of May, +1879. There were some petitions filed May 10, 1879, and there was a +letter of the same date. They are misdescribed. They are all +genuine but they are out of the case as far as this is concerned. I +will tell you after awhile where they are applicable in this case. +A letter of Belford, of April 29, 1879, and a letter of Senator +Chaffee, of April 24, 1879, we have, while the indictment charges +that they were all filed May 23, 1879. There is an absolute and a +fatal variance. All these petitions, however, are admitted to be +genuine and honest. See record, pages 1001-1003. The charge in the +indictment is that they were forged, false, and altered. The +admission in open court, by the representatives of the Government, +is, that they were genuine and honest. There is the difference +between an indictment and testimony. There is the difference +between public rumor and fact. There is the difference between the +press and the evidence. The next is that a false oath was filed by +John W. Dorsey on the 23d of May, 1879. When was that oath filed? +April 30, 1879. A fatal variance. Yet the man who wrote the +indictment had the affidavit before him. Why did he not put in the +true date? I will tell you after awhile. Did he know it was not +true when he put it in the indictment? He did, undoubtedly.</p> +<p>Third. Fraudulent order of May 23; reducing the time from +nineteen and three-quarter hours to twelve hours. As a matter of +fact, no order was made on the 23d of May upon this route. It is +charged in the indictment that it was made on the 23d of May. The +evidence shows that it was on the 9th of May. There is a fatal +variance, and that order cannot be considered by this jury as to +this branch of the case. Here is an order of which they complain. +They charge that it was made on the 23d day of May, the same day +the conspiracy was entered into. As a matter of fact, it was made +on the 9th of May. On this description it goes out, and it goes out +on a still higher principle: That an order could not have been made +on the 9th of May in pursuance of a conspiracy made on the 23d of +that month. But I am speaking now simply as to the description of +this offence.</p> +<p>Fourth. A subcontract was fraudulently filed. I have shown you +it is impossible to fraudulently file a contract; utterly +impossible. All the agreements imaginable between the contractor +and subcontractor cannot even tend to defraud the Government of a +solitary dollar. I make a bid and the contract is awarded to me at +so much. The mail has to be carried. The Government pays, say five +thousand dollars a year, it makes no difference to the Government +who carries the mail under that contract, so long as it is carried. +It is utterly impossible to defraud the Government by contracting +with A, B, C, or D. That is the end of that route. The order itself +is misdescribed, and that is all there is in it. When the order is +gone everything is gone.</p> +<p>No. 38113. Overt acts: Fraudulently filing a subcontract. We do +not need to talk about that any more. Second, Brady fraudulently +made an order for increase of trips. The evidence is that an +increase was asked for by a great many officers, a great many +representatives, and by hundreds of citizens, and that the increase +was insisted upon not only by the officers who were upon the +ground, but by General Sherman himself. I do not know how it is +with you, but with me General Sherman's opinion would have great +weight. He is a man capable of controlling hundreds of thousands of +men in the field—a man with the genius, with the talent, with +the courage, and with the intrepidity to win the greatest +victories, and to carry on the greatest possible military +operations. I would have nearly as much confidence in his opinion +as I would in the guess of this prosecution. In my judgment, I +would think as much of his opinion given freely as I would of the +opinion of a lawyer who was paid for giving it. General Sherman has +been spoken of slightingly in this case; but he will be remembered +a long time after this case is forgotten, after all engaged in it +are forgotten, and even after this indictment shall have passed +from the memory of man.</p> +<p>No. 38152. Overt acts: Fraudulent orders of August 3, 1880, +discontinuing the service and allowing a month's extra pay for the +service discontinued. That is all. May it please your Honor, in +this route the only point is, had the Postmaster General the right +to discontinue the service? And if he did discontinue it, was he +under any obligation to allow a month's extra pay? It is the only +question. I call your Honor's attention to the case of the United +States against Reeside, 8 Wallace, 38; Fullenwider against the +United States, 9 Court of Claims, 403; and Garfielde against the +United States, 3 Otto, 242. In those cases it is decided not only +that the Postmaster-General has the right to allow this month's +extra pay, but he must do it. That is in full settlement of all the +damages that the contractor may have sustained. The Court can see +the very foundation of that law. For illustration, I bid upon a +route of one thousand miles. I am supposed to get ready to carry +the mail. Five hundred miles are taken from that route. The law +steps in and says that for that damage I shall have one month's +extra pay on the portion of the route discontinued. It makes no +difference whether I have made any preparation or not. The law +gives me that and no more. If I should go into the Supreme Court +and say that my preparations had cost me fifty thousand dollars, +and the month's extra pay was only five thousand dollars, I have no +redress for the other forty-five thousand dollars. That is all that +is charged in this instance. And if the Second Assistant +Postmaster-General or any one else had done differently he would +have acted contrary to law. He is indicted for doing in this case +exactly what is in accordance with the law. Let us get to the next +route. That is all there is in this.</p> +<p>No. 38015. Overt acts: Sending a false oath. When? May 21. The +evidence shows that on May 14 it was sent, on May 15 it was filed. +A fatal variance, no matter whether it is true or false. That oath +is gone. That is the end of it.</p> +<p>What else? They did not show that the oath was false. First, it +is misdescribed in the indictment as to the date it is filed; +second, the evidence shows that it is honest and genuine, which is +also fatal. That is the end of this route, as far as the indictment +is concerned. Second, that Dorsey made and Rerdell filed false +petitions. There is no proof that any of the petitions were false, +no proof that any were forged, and no proof that John W. Dorsey or +M. C. Rerdell had anything to do with that route one way or the +other. All the petitions on record, page 1160, are admitted to be +genuine except one. One petition asking for a ten-hour schedule was +attacked and only one. But this petition was filed May 14, 1879, +and that is out so far as the indictment is concerned.</p> +<p>The Court. What is the date of the indictment?</p> +<p>Mr. Ingersoll. The 23d day of May. The indictment says that this +was filed July 10, 1879; the evidence says May 14, 1879. A fatal +variance. It is not the same one they were talking about. They did +not find the petition they described. It is their misfortune. Now, +here is only one petition attacked. Who attacked it? Mr. Shaw. See +page 1159. They were going to show that that was a forgery, and +they were going to show it by Shaw. That was the only one they +attacked. What does Shaw say?</p> +<p>"I signed a petition for increase of service and expedition upon +that route, but I did not read the petition. If I had, I should +have discovered a ten-hour schedule."</p> +<p>He would not have discovered it if it had not been there, would +he? That shows it was there.</p> +<p>"I would not have recommended a ten-hour schedule on a +seventy-mile route."</p> +<p>He was the man that was going to prove that ten hours was not +there. But it shows that he was not able to do it, because he first +swore that he never read it, and second, that he would not have +signed it if he had. Good by, Mr. Shaw. That is all there is as to +that matter. The Court will understand I am going now upon what is +in the indictment, and not what has been thrown in from the +outside.</p> +<p>The Court. I understand that.</p> +<p>Mr. Ingersoll. I am going according to the strict letter of this +indictment. I am holding these gentlemen to the law. That is what +the law is for. You cannot come into this court and throw seven or +eight cords of paper at a man and say, "You are guilty." They have +managed this case after that fashion, but I propose to bring them +back to the law.</p> +<p>Route 35051. First. Signing, sending and filing false petitions. +When? August 2, 1879. There is no evidence of any petitions being +filed on that day—none whatever. The only thing near it is a +letter of Frederick Billings, on record, page 1217. This letter was +dated July 31, 1879. Under the charge of signing, sending and +filing false petitions, the only evidence is that a man by the name +of Billings wrote a letter, and there is not the slightest +testimony to show that a solitary word in that letter was +false—not one. Nothing to connect it with Mr. Billings; no +evidence that he ever spoke to him on the subject; no evidence that +Billings knew who was carrying the mail; no evidence that he ever +knew or did a thing except to write that letter, and he was +interested, I believe, in the Northern Pacific railroad. Now, that +is everything there is there; that is all there is in that case. +Nobody has tried to show that the letter of Billings was not +true.</p> +<p>What else? A fraudulent order of August, 1879. Who made it? The +indictment says Brady made it. The evidence says it was signed by +French, and it was in accordance with Billings' letter. Is there +any fraud now in that route? Let us be honest. False petitions: Not +one filed. False oath: Not one attacked. Simply a letter that we +did not write, and that there is no evidence that we ever asked to +have written. That is the end of that. But they cannot even get the +letter in, gentlemen. They did not describe it right.</p> +<p>The next route is 40104. Overfacts: First. Fraudulently filing a +subcontract. That you cannot do. When did we file it? July. 23, +1879, the indictment says. What does the evidence say? May 8, 1879. +First, we could not commit the offence; secondly, you could not +prove it under this description.</p> +<p>Second. Filing a false oath. When did we file it? July 23. That +is what the indictment says. What does the evidence say? November +26, 1878. A fatal variance. See record, page 1305. That is the end +of that. The indictment is for something. You have got to follow +it, and it certainly is not as hard work to write an offence +against a man as it is to prove it. If they cannot write an +offence, you certainly ought not to find the man guilty. Besides +all that, that oath was not even impeached, it was not ever +attacked. There was not a word said upon the subject except in the +indictment. It was charged to be false, and not one word of +evidence was offered to this jury to show that it was false.</p> +<p>Third. An alleged fraudulent order of increase by Brady, July +23, 1879. Brady never signed any such order. It was signed by +French. That is the end of it, no matter whether it was good or +bad, honest or dishonest. That is the end of it, and yet there is +not a particle of evidence to show that it was dishonest, but you +must hold them to their own case as they have written it, and not +as they wish it was now.</p> +<p>Fourth. A fraudulent order of April 10, 1880, allowing one +month's extra pay on the service reduced. This order was not even +proved by the Government. As a matter of fact, it was not offered +by the Government; and if it had been offered, and if it had been +proved, it would have only established the fact that Mr. Brady +acted in accordance with law.</p> +<p>Now, we come to some more. 44160. First, filing false petitions. +When did we file them? July 16, 1880. The proof is that they were +filed long before that time The proof is that Peck, Dorsey and +Rerdell had nothing to do with this route after the 1st of April, +1879, and the petition claimed to be signed by Utah people and +claimed to be fraudulent in the petition marked 19 Q. It was filed +on the 7th day of May, 1879.</p> +<p>That is a fatal variance. This indictment charges it was filed +July 16, 1880. The petition cannot be considered.</p> +<p>There is another petition marked 20 Q, claimed to have been +written by Miner, upon which the name of Hall is said to have been +forged. It has no file mark whatever, and consequently cannot be +the petition referred to in the indictment. That was filed. That, +however, has been explained by General Henkle fully. This petition +was identified by McBean, and was signed by him, and he recognized +the signatures of many of the citizens of Canyon City. Mr. Merrick +admitted that the petition, 19 Q, was never acted upon. As a matter +of fact, orders had been made before the petition was received, +which shows conclusively that they were not acted upon. The +petition marked 20 Q, to which Hall's name was, as is claimed, +forged, was never filed, and was consequently never acted upon. +This charge stands as follows: Two petitions, one being filed May +17, 1879—a fatal variance—and the other not +filed—another fatal variance. These petitions are both +described as having been filed July 16, 1880. The variance is +absolutely fatal, and these petitions cannot be considered. +Besides, the order was made before the petition 19 Q was filed.</p> +<p>Second. The fraudulent order by Brady for increase of trips, +July 16, 1880. The only objection to this route is that the +expedition was made before service was put on. This was in the +power of the Postmaster-General. It has been done many times, and +is still being done by the Postoffice Department, and the fact that +it was done in this case does not even tend to show that any fraud +was committed or intended. That is all there is in that case. The +petitions were never acted upon. One was never filed, and the other +is not described, or rather is misdescribed.</p> +<p>Route 48150. Overt Acts: A fraudulent order by Brady reducing +service to three trips a week, and allowing a month's pay on +service dispensed with July 26, 1880. This point, gentlemen, I have +already argued.</p> +<p>Whenever the Post-Office Department dispenses with any service +it is bound to give one month's extra pay any time after the +contract has been made and any time after the bid has been +accepted. It is bound to give the month's extra pay on the service +dispensed with, and this question, as you heard me say a little +while ago, has been decided by the Supreme Court in Garfield's +case. This route was operated by Sanderson. He was the +subcontractor, and, according to the subcontract filed and +presented here in evidence, he received every cent of the pay. We +could have had no interest in perpetrating any fraud upon that +route. Why? Because another man, J. L. Sanderson, received every +dollar, and we not one cent.</p> +<p>Another fraudulent order of increase, August 24, from Powderhorn +to Barnum, seven miles. No fraud was shown, but the order in fact, +was made for the benefit of Sanderson and not for the benefit of +any of the defendants in this case. In other words, it was made for +the benefit of the people, it was made because they wished to reach +another post-office.</p> +<p>Another charge is that the subcontract made by Sanderson was +filed September 18, 1878. Recollect the charge is about filing this +subcontract. The fact is it was filed in 1878 to take effect from +July 1, 1878. See record, page 1406. On this very route the +subcontract took effect the 1st of July, 1878, with Sanderson, and +from that moment until now he has received every dollar. This +route, as a matter of fact, is out of the scheme. Sanderson carried +the mail from the 1st of July, 1878, until the end of that +contract, the last day of June, 1882. So much for that route. It is +gone. Nobody can get it back, either, in this scheme.</p> +<p>Route 40113. Overt Acts: Filing of a false oath. When? June 3, +1879. When was it filed? May 7, 1879. That oath is gone. Was it +false? They did not attack it. They never impeached it. Good.</p> +<p>Second. False petitions filed. When? June 3, 1879. All the +petitions were filed prior to May 10, 1879. They are gone. One was +filed May 23, but none was filed as alleged on June 3. They are +gone. A magnificently written instrument. A fatal variance as to +every petition. And yet not a solitary petition was attacked. Every +petition was genuine and honest.</p> +<p>Third. A fraudulent order by Brady for increase and expedition. +This order was asked for by the petitions. No fraud was +established. See record, page 1503 on this route; also page +2159.</p> +<p>Fourth. They also charge that Brady made a fraudulent order on +the 4th of January, 1881. But the Government never proved that +order, never offered any order of that date. That is the end of +that order.</p> +<p>Fifth. A fraudulent order of February 11, 1881. This was not +offered by the Government, and no evidence was offered as to the +existence of the order, neither the jacket, nor the order, nor the +petitions, so far as I can find. That is the end of that. Every +overt act so far, except some of the orders, wrong. The overt acts +charged were filing fraudulent petitions. When? May 23, 1879. These +are the petitions said to have been gotten up by Wilcox. Mr. Wilcox +was a Government witness and he swore that every petition was +honest, that every name was genuine, and that in order to get the +names he did not circulate a falsehood, he circulated only the +truth. To use his own language, "I did only straightforward, honest +work." That is all there is on that.</p> +<p>44140 is the number of this route, and this evidence is on +record, page 1568, and in regard to getting up these petitions you +will recollect the language used by the Court. His Honor said in +effect clearly, "Every man carrying the mail has the right to take +care of his business. He has the right to get up petitions. He has +the right to call the attention of the people to what he supposes +to be their needs in that regard. He has the right to do it; and +the fact that he does it is not the slightest evidence that he has +conspired with any human being." Deny me the right to attend to my +own affairs? If I have taken the route from the Government, and +contract to carry the mail, tell me that I cannot suggest to my +fellow-citizens that they ought to have a daily mail instead of a +weekly? Tell me that I have not the right to talk it on the +corners, in every postoffice for which I start, and that if I do I +am liable to be pursued and convicted of an infamous offence? Every +man has the right to attend to his own affairs, and he has the +right to get all the people he can to help him. He has no right to +go around lying about it, but he has the right to call their +attention to the facts the same as you would have the right to get +a road by your house; just exactly the same as you would have the +right to get a school-house built in your district, no matter if +you were to have the contract for making the brick. You have a +right to say what you please in favor of education, no matter if +you are an architect and expect to be employed to build the +schoolhouse, and any other doctrine is infinitely absurd.</p> +<p>There is another charge: That a false oath was filed on the 24th +of May. The affidavit was made by Mr. Peck, and I believe it has +been admitted that Mr. Peck never did anything wrong. Then there is +alleged to be a fraudulent order for increase, signed June 26, and +they never introduced the slightest evidence tending to show that +there was fraud in the order. It was made in accordance with the +petitions. It was made in accordance with what we believed to be +the policy of the Post-Office Department. And allow me to say to +your Honor that I think that the general policy of the Post-Office +Department, as disclosed in the documents that have been presented +in the reports made to Congress that have become a part of this +case, I think even from that evidence I have the right to draw an +inference as to what the policy of the department was.</p> +<p>The Court. I have no doubt in the world as to the views of the +Post-Office Department in regard to that subject. The Court refused +to receive evidence on that subject in defence, for the simple +reason that the Court was of opinion that no Second Assistant +Postmaster-General had the authority to establish any policy for +this Government or for any branch of this Government. The policy of +the Government is to be found in its laws, and the Court was +unwilling to allow a Second Assistant Postmaster-General to set up +his policy in his defence against a charge in this court. He had no +right to have a policy.</p> +<p>Mr. Ingersoll. We never set up the policy of the Second +Assistant. We never asked to be allowed to prove the policy of the +Second Assistant. We never imagined it, nor dreamed of it, nor +heard of it until this moment. What we wanted to show was the +policy, not of the Second Assistant, but of the Postmaster-General. +But I am not speaking now upon that branch.</p> +<p>The Court. The Postmaster-General by law is the head of the +department of course. But several assistants were given him by law, +and he had the authority to apportion out the business of the +department amongst those several assistants. The particular +business of the department pertaining to the increase of service +and expedition of routes belonged under this apportionment to the +Second Assistant Postmaster-General. His acts, therefore, are to be +looked to.</p> +<p>Mr. Ingersoll. I do not claim, if the Court please, that his +policy had anything to do with it. I simply claim that from the +orders that have been introduced, not of the Second Assistant, from +the books that have been introduced, showing the views of the +Postmaster-General, not of the Second Assistant. I also admit that +if the Postmaster-General had ordered by direct order the Second +Assistant Postmaster-General to expedite every one of these routes, +even then there could have been such a thing as a conspiracy to +expedite them too greatly, and to receive money from every man for +whom they were expedited. I understand that. But in the absence of +any proof that it is so, all I have ever insisted was that the +general policy of the head of the department might be followed by +any subordinate officer without laying himself open to the charge +that he had been purchased. That is all.</p> +<p>Now, gentlemen, all these things had been asked. They had been +earnestly solicited by hundreds of Congressmen, by Senators, by +Judges, by Governors, by Cabinet officers and by hundreds and +hundreds of citizens.</p> +<p>Now, let me recapitulate all the overt acts—and I have +gone over them all now excepting one, and I will come to that +presently. In the indictment there are twelve charges as to filing +false petitions. There are ten charges as to false oaths. There are +seven charges as to fraudulently filing subcontracts; and the +evidence is that the ten oaths are substantially true; that it is +impossible to fraudulently file a subcontract; and as to the +petitions, that every one is absolutely genuine and honest with the +exception of three. They prove that the words "schedule, thirteen +hours," were inserted; that is, they tried to prove that by Mr. +Blois, who is an expert on handwriting, as has been demonstrated to +you. One with thirteen hours inserted in it, and the very next +paragraph in that same petition begs for faster time. I have not +the slightest idea that that ever was inserted by anybody. I +believe it was in there when it was signed. And why? There would +have teen, there could have been, there can be, no earthly reason +for inserting those words. You cannot imagine a reason for it.</p> +<p>Now, that is thirteen hours. Then there is another one they say +had some names of persons living in Utah, and we say that that is +not described properly; not only that, but that it was never acted +upon, and in my judgment that whole thing is a mistake and not a +crime, because there were plenty of petitions without that. There +was no need of it. All the other petitions have either been proved, +or have been admitted to be absolutely genuine.</p> +<p>Now, I have gone over every overt act except payments, and when +it was said here in court, or when the objection was made to these +being proved as overt acts, the Court will remember that again and +again and again, the prosecution denied that they were offered as +overt acts.</p> +<p>The Court. I never understood them as being offered as overt +acts.</p> +<p>Mr. Ingersoll. At that time the Court made just the remark that +your Honor has made now. He said: "But what are the payments?" Now, +I will take up the payments, and we will see whether there are any +overt acts in the payments, gentlemen.</p> +<p>Now, let me call your attention to that magnificent rule that +has been laid down by the Court. When you describe an offence you +are held by the description. When it is said that I made a false +claim against the Government in a conspiracy case, for instance, +that I conspired to defraud the Government, that I presented a +false claim, it may be that the laxity or lenity of pleading might +go the extent of saying that the pleader need not state the amount +of that false claim, but if the pleader does state the amount of +that false claim he is bound by that statement. Now, that is my +doctrine.</p> +<p>The Court. What I understood in regard to the evidence of the +payments is this: The charge was a conspiracy to defraud and the +averment was that the fraud had been completed, and this evidence +of payments was to show that the fraud had been carried out.</p> +<p>Mr. Ingersoll. That is all. Now, let us see if this can be +tortured into an overt act. I now come to the presentation of false +claims charged to have been presented and collected by these +defendants. It is a short business. On the route from Kearney to +Kent the charge is that Peck and Vaile presented false claims on +the third quarter of 1879 for five hundred and fifty dollars and +seventy-two cents. The entire pay for that quarter, three trips and +expedition, was seven hundred and ninety-five dollars and +seventy-eight cents. And there is no charge that the increase of +trips was fraudulent. Only the expedition was attacked. The three +trips, according to the old schedule price, came to seven hundred +and thirty-five dollars and eighty-one cents, all of which was +honestly carried, honestly earned. Now, deducting from the pay +seven hundred and ninety-five dollars and seventy-eight cents, the +amount of the three trips on the old schedule honestly performed, +seven hundred and thirty-five dollars and eighteen cents, if the +expedition was fraudulent, we have a fraudulent claim of sixty +dollars and sixteen cents. And yet the Government charges that we +made a claim of five hundred and fifty dollars and seventy-two +cents. Not one cent is allowed for carrying the two additional +trips without expedition.</p> +<p>There is another trouble about this. It is charged that Peck and +Vaile presented this claim for their benefit. The record, page 386, +shows that Peck did not present this claim; that it was presented +by H. M. Vaile; that H. M. Vaile received the warrant for the full +amount; that he held a subcontract at that time for every dollar. +This is another fatal variance, and the evidence of Vaile is that +every dollar belonged to him; that not a dollar of that money was +ever paid to any other one of the defendants; that he paid all the +expenses; that he paid the debts, and that there never went a +solitary cent to any Government official. So much for that +payment.</p> +<p>The next charge is that on route 41119, from Toquerville to +Adairville, Peck presented a false claim for the third quarter of +1879 for two thousand four hundred and sixty dollars and fourteen +cents. The pay for that quarter was three thousand six hundred and +twenty-eight dollars and fourteen cents for seven trips and +expedition. The pay for the three trips on the old schedule was +eight hundred and seventy-six dollars, a difference of two thousand +seven hundred and fifty-two dollars and fourteen cents. And yet the +Government charges that the false claim presented was two thousand +four hundred and sixty dollars and fourteen cents. If they give the +figures they must give them correctly. If I am charged with +presenting a claim against the Government for two thousand four +hundred and sixty dollars, that is not substantiated by showing +that I presented a claim for two thousand seven hundred dollars. If +you give the figures you must stand by the figures, and you are +bound by them. You cannot charge one thing and prove something +else. This is a fatal variance.</p> +<p>In addition to this fact, we find the deductions for failures in +that very quarter amounted to five hundred and forty dollars and +forty-two cents, and this deducted from the other amount leaves two +thousand, two hundred and eleven dollars and seventy-two cents. So +that in both cases the variance is absolutely fatal. I am showing +you these things, gentlemen, so that you may see that there is in +this case no evidence to fit the charges in this indictment.</p> +<p>44140, Eugene City to Bridge Creek. It is charged that Peck and +Dorsey presented a false account for the third quarter of 1879 for +four thousand seven hundred and eighty-three dollars and +ninety-nine cents. The pay for three trips with expedition was four +thousand, six hundred and eighty-nine dollars and twenty-two cents; +the pay for one trip on the old schedule was six hundred and +seventeen dollars, a difference of four thousand and seventy-two +dollars and twenty-two cents. The Government says the difference +was four thousand seven hundred and eighty-three dollars and +ninety-nine cents, an absolutely fatal variance.</p> +<p>Now, as a matter of fact, there were deductions in that quarter +of one thousand nine hundred and thirty-two dollars and +eighty-three cents, and this is deducted from the entire pay, +leaving only as a claim three thousand seven hundred and sixty-six +dollars and thirty-nine cents. And yet the Government charges that +we presented a false claim for four thousand seven hundred and +eighty-three dollars and forty-nine cents. It will not do. It is a +fatal variance. But when we take into consideration that there is +no claim that the increase of trips was fraudulent, only the +expedition, and that by the old schedule one trip came to six +hundred and seventeen dollars, that three trips came to one +thousand eight hundred and fifty-one dollars, and that added to +deductions would make three thousand seven hundred and +seventy-three dollars and eighty-three cents, to be deducted from +four thousand six hundred and eighty-nine dollars and twenty-two +cents, it would leave as a fraudulent claim, even if their claim +was true, nine hundred and fifteen dollars and thirty-nine +cents.</p> +<p>Now, the next is 44155, The Dalles to Baker City. The false +claim was eight thousand eight hundred and ninety-six dollars, by +Peck. The pay per quarter was sixteen thousand six hundred and +sixty-six dollars and nine cents. The pay for three trips and +expedition was seven thousand seven hundred and seventy +dollars—a difference of eight thousand eight hundred and +ninety-six dollars and nine cents. But there were deductions, +ninety-nine dollars and thirty-four cents, leaving eight thousand +seven hundred and ninety-six dollars and seventy-five cents. But by +making this claim the Government concedes that the expedition was +legal, and another trouble is that the payment on this route was +made to Vaile, not to Peck or Miner. It was made to Vaile, who was +the subcontractor for the full amount, and this is another fatal +variance.</p> +<p>Now, route 46132, Julian to Colton. The charge is that Peck and +Vaile presented a fraudulent claim for the third quarter of 1879, +for one thousand six hundred and fifty seven dollars and +seventy-one cents. The pay for three trips and expedition is one +thousand nine hundred and fifty-four dollars and seventy-one cents. +For three trips on the old schedule it was eight hundred and +ninety-one dollars, a difference of one thousand and sixty-three +dollars and seventy-three cents. A fatal variance. Besides it was +not Peck and Vaile. Vaile was the subcontractor at full rates on +this route. He presented the claim. He received the entire pay. +Another variance. Route 44160, Canyon City to Camp McDermitt. The +charge is that Peck and Vaile presented a false account for the +fourth quarter of 1879, for eleven thousand eight hundred and +nineteen dollars and sixty-six cents. It is charged in the +indictment that this was paid in pursuance of the order set out in +the indictment, and we find on page sixty-four that the order was +dated July 16, 1880. That was the order. No such payment was made +in pursuance of that order for the reason that an order was made +nearly a year afterwards, and the order of July 16, 1880, as set +out in the indictment, was not retrospective, a fatal mistake in +their indictment. As a matter of fact, the pay for the fourth +quarter of 1879 was five thousand three hundred and seventy-five +dollars. There were deductions to the amount of three hundred and +fifty-two dollars and seventy-two cents and the balance was five +thousand and twenty-two dollars and twenty-eight cents, instead of +eleven thousand eight hundred and nineteen dollars and sixty-six +cents. And this was paid to Vaile, who was a subcontractor at full +rates, and the variance in the case is absurd and fatal.</p> +<p>Route 46247, Redding to Alturas. The charge is that Peck and +Dorsey filed a fraudulent account for the third quarter of 1879 for +seven thousand four hundred and eighty-five dollars and six cents. +This was in pursuance of the order set out in the indictment, and +the only order set out in the indictment is dated February 11, +1881. That is another fatal variance.</p> +<p>The next route is 35051, Bismarck to Miles City. The charge is +that Miner and Vaile presented a false account for the fourth +quarter of 1879, for fourteen thousand one hundred. The pay for the +quarter for six trips was seventeen thousand five hundred dollars. +For three trips under the old order the pay was eight thousand +seven hundred and fifty dollars, leaving eight thousand seven +hundred and fifty dollars as the outside sum that could have been +fraudulent, and yet the Government charges fourteen thousand one +hundred dollars, an absolutely fatal variance. Besides that, there +were deductions in that very quarter of four thousand five hundred +and three dollars. This amount deducted from eight thousand seven +hundred and fifty dollars leaves four thousand two hundred and +fifty-six dollars and eleven cents as the greatest amount that +could by any possibility have been fraudulent.</p> +<p>Three routes are lumped together next in the indictment, 38134, +38135, 38140, 38134, Pueblo to Rosita; 38135, Pueblo to Greenhorn; +and 38,140, Trinidad to Madison.</p> +<p>The charge here is on page eighty-one of the indictment that +Miner presented a fraudulent account for the fourth quarter of 1879 +on routes amounting to two thousand seven hundred and seventy-six +dollars and forty-seven cents.</p> +<p>The greatest possible difference that could be made on route +38135 is seven hundred and sixty-seven dollars and twenty cents. +The greatest difference that could be made on route 38134 is one +thousand nine hundred and forty dollars.</p> +<p>The greatest difference that could be made on route 38140 is six +hundred and eighty-nine dollars and fifty-one cents. These three +differences added together do not make what is charged in the +indictment, three thousand seven hundred and seventy-six dollars +and forty-seven cents, but as a matter of fact they amount to three +thousand three hundred and ninety-six dollars and seventy-one +cents. This cannot be the fraudulent claim described in the +indictment.</p> +<p>But I find that on the first route there was a reduction of +twelve dollars and sixty cents, on the second route of one hundred +and fifty-four dollars and thirty-eight cents, and on the third of +thirty-eight dollars and two cents, and these deductions added +together make two hundred and five dollars and ninety cents, and +deducted from the three thousand three hundred and ninety-six +dollars and seventy-one cents leaves three thousand one hundred and +ninety dollars and eighty-one cents. And yet the Government charges +that the fraudulent claim was two thousand seven hundred and +seventy-six dollars and forty-seven cents. It is impossible that +the amount of the claim said to be fraudulent by the Government can +be correct; but, as a matter of fact, according to the evidence, +there was no fraud upon any claim in that route.</p> +<p>The next is route 38150, Saguache to Lake City. The charge is +that Miner presented a false account for two thousand two hundred +and two dollars and seventy-seven cents, and that he did this in +pursuance of the order set out in the indictment, and the only +order set out is dated August 24, 1880. That is an absolutely fatal +variance. As a matter of fact, Sanderson was a subcontractor on +this route from July 1, 1878, at full rates, and he carried the +mail from July 1, 1878. The route was expedited on his oath and for +his benefit. No point was made during the trial that the oath was +not true. And the pay was calculated upon Sanderson's oath, and the +money paid to him. The only claim is that there was an error in the +order of four thousand five hundred and sixty-eight dollars per +year, and it is admitted that the mistake was afterwards corrected +and the money refunded. You remember it, gentlemen. Mr. Turner, in +making up the account showing how much the expedition would come +to—and you understand the way in which they make up that +expedition—made a mistake and added to the expedition and the +then schedule the amount of the then schedule, four thousand and +odd dollars. He made the mistake and it was honestly made. No man +would dishonestly do it because it was so easy of detection, and +that was his only fault, gentlemen. The only crime he ever +committed in this case was to make that mistake. That mistake was +afterwards discovered, and the money was paid back by Mr. +Sanderson; and, yet, that man has been indicted, has been taken +from his home charged with a crime. He has been pursued as though +he were a wild beast. He made one mistake. They could not prove the +slightest thing against him. There was no evidence touching him. +There was only one way for them, and that was to dismiss him with +an insult. You remember the case. Not one thing against that +man—not one single thing. He stands as clear of any charge in +this indictment as any one upon this jury. He is an honest man. It +is admitted now there was no conspiracy on this route either. It is +Sanderson's route, not ours. Not only that, but the Government says +that it was not one of the routes with which Vaile had anything to +do, or in which Vaile had any possible interest. The failure here +is fatal to the indictment, and I shall endeavor to show that it is +fatal to the entire case.</p> +<p>The next route is 35105, Vermillion to Sioux Falls. It is +charged that Vaile and Dorsey presented a false account for the +third quarter of 1879, for eight hundred and eighty-one dollars and +fourteen cents. The pay for six trips and expedition was one +thousand and eighty-five dollars and fifty-eight cents. The pay for +two trips on the old schedule was two hundred and four dollars and +forty-four cents, showing a balance for once, as stated in the +indictment—it being the only time—of eight hundred and +eighty-one dollars and fourteen cents.</p> +<p>Parties are entitled to pay for the extra trips, and the number +of men and horses has nothing to do with the value of an extra +trip. You understand that. If I agree to carry the mail once a week +for five thousand dollars a quarter, and you wanted me to carry it +twice a week, then I get ten thousand dollars a quarter, no matter +if I do it with the same horses and the same men. That is not the +Government's business. You all understand that, do you not? Every +time you increase a trip you increase the pay to the exact extent +of that trip, no matter whether it takes more horses or not. If I +agree to carry the mail once a month for five thousand dollars a +year, and you want me to carry it once a week I am entitled to +twenty thousand dollars, no matter if I do it with all the same men +and same horses. It is nobody's business. But, if the Government +wants the mail carried faster, then I am entitled to pay according +to the men and animals required at a more rapid rate. You all +understand that. But as a matter of fact, upon this route, Vaile +was the subcontractor at full rates, was so recognized by the +Government and received every dollar himself, and, consequently, +the charge that it was paid to John W. Dorsey is not true, and is a +fatal variance. The Government proved it was paid to Vaile.</p> +<p>Next we have two routes, 38145, Ojo Caliente to Parrot City, and +38156, Silverton to Parrot City. These routes are put together in +the indictment. It is charged that a false account was presented of +six thousand and four dollars and seventeen cents, and that this +was done in pursuance of an order set out in the indictment. The +order set out is on page forty-seven. It is in relation to route +38145. The order was made not in relation to the other route. No +order as to the other route was made. This was made February 26, +1881, consequently the claim presented for the third quarter of +1879 could not by any possibility have been in pursuance of that +order. That order was made in 1881. The payment for the third +quarter of 1879 could not by any possibility have been made in +pursuance of that order. The evidence shows that it was paid +before, and consequently there is a fatal variance.</p> +<p>Routes 40104, Mineral Park to Pioche, and 40113, Wilcox to +Clifton—two routes put together. The charge is a fraudulent +presentation for the third quarter of 1879, of seven thousand and +sixty-four dollars and seventy-two cents. The pay on the first +route was ten thousand five hundred and three dollars and sixty-two +cents, on the second route three thousand five hundred and +twenty-eight dollars. No proof has been offered that the expedition +was fraudulent. Not a witness was called on route 40113. Not a +solitary petition was objected to, the truth of no oath was called +in question, the honesty of no order was attacked, and how can you +say that the claim was fraudulent? No order attacked, no oath +questioned, no petition impeached. The only evidence upon these two +routes was something read in regard to productiveness and the size +of the mail, and that is all.</p> +<p>Route 38113, Rawlins to White River. The charge is that John W. +Dorsey and Rerdell presented a false account for the third quarter +of 1879 for two thousand nine hundred and seventy-five dollars. The +order set out in the indictment was made March 8, 1881, +consequently the variance is absolutely fatal, and there is no +allegation in the indictment that the expedition was +fraudulent.</p> +<p>Now I have gone through every route with the payments. As to the +general allegation of the amount of money fraudulently claimed and +received, the allegation in the indictment is that J. W. Dorsey +received, by virtue of these fraudulent orders, made in pursuance +of the conspiracy, brought to perfection by these overt acts, for +the year ending the 30th day of June, 1880, one hundred and +twenty-four thousand five hundred and ninety-one dollars. Good. The +evidence shows that there was paid on the seven Dorsey routes in +all sixty-two thousand eight hundred and thirty-one dollars and +forty-six cents. That is fatal as to that.</p> +<p>But we will go further. One of these routes was turned over to +Vaile by Dorsey, route 35015, and the amount paid to Vaile was two +thousand eight hundred and thirty-seven dollars and sixteen cents. +So that the amount paid on the Dorsey routes, instead of being one +hundred and twenty-four thousand five hundred and ninety-one +dollars, was in truth and in fact fifty-eight thousand nine hundred +and ninety-four dollars and thirty cents.</p> +<p>Now, the charge is that this was all received by John W. Dorsey, +whereas the evidence shows that John W. Dorsey received three +warrants, two for eighty-seven dollars each, both of which were +recouped, and one warrant for three hundred and ninety-two dollars, +and that is every cent he ever received, according to the evidence +in this case. There is what you might call a discrepancy. The +indictment says he got one hundred and twenty-four thousand five +hundred and ninety-one dollars. The evidence shows that he got +three hundred and ninety-two dollars and not another copper. I +shall insist that that is a variance. If it is not a variance, I +will take my oath it is a difference.</p> +<p>The second claim is that John R. Miner received upon the routes +awarded to him, and claimed to be his in the indictment, +ninety-three thousand and sixty-seven dollars for the fiscal year +ending June 30, 1880. The evidence is that as a matter of fact on +all these routes the money was paid to assignees and +subcontractors, and that John R. Miner as a fact, received not one +cent from the Government.</p> +<p>The third charge is that Peck received for the same fiscal year +one hundred and eight-seven thousand four hundred and thirty-eight +dollars. The evidence shows that he received nothing. There is +another difference. Thus it will be seen that every link in the +chain in this indictment is either a mistake or a falsehood. Every +other one is a mistake and then every other one is a falsehood, and +this indictment was made by adding mistakes to falsehoods, and what +the indictment weaves the evidence reveals.</p> +<p>Now, why were these dates put in this indictment, gentlemen? We +have now gone over every overt act charged in this indictment. The +result is that not one of the charges set forth has really been +sustained. Hereafter I will notice some things that have been +proved outside of the indictment. Nearly every petition and letter +is admitted to have been honest and genuine. Those that have been +attacked were misdescribed in the indictment and the evidence has +shown that they were substantially true. There is a fatal variance +between the allegation and the proof so far as these charges in the +indictment are concerned, and they are left absolutely without a +prop. The dates attached to the overt acts are false. There is only +one of the routes in which the petitions are properly described, +and that is route 44140, where the petitions are alleged to have +been and were filed on the 23d of May, and every one was proved to +have been genuine and honest. The dates in the indictment were +false. Now, why? Let me tell you, gentlemen. They had to deceive +the grand jury. It would not do to tell the grand jury these men +conspired on the 23d of May, and in pursuance to that conspiracy +filed some affidavits on the third day preceding. They had first to +deceive the grand jury and put in false dates for the filing of +petitions, for the filing of subcontracts and for the drawing of +money. What else did they want these false dates for? To deceive +the Circuit Court, or rather the Supreme Court—to deceive his +Honor, because if the date of these petitions, the date of these +oaths, had been set forth in the indictment it would have been bad. +The Court would have instantly said, you cannot prove a conspiracy +on the 23d of May by showing acts in April previous. So these false +dates were put in, in the first place, to fool the grand jury, and +in the next place to keep this Court in the dark. It was necessary +to have a good charge on paper, and why? Did they expect to win +this case on that indictment? No; but they could keep it in court +long enough to allow them to attack and malign the character of +these defendants; they could keep it in court long enough to vent +their venom and spleen upon good and honest men, and justify in +part the commencement of this prosecution.</p> +<p>This forenoon I tried to strip the green leaves off the tree of +this indictment. Now I propose to attack the principal limbs and +trunk. What is the scheme of this indictment? I insist that the law +is precisely the same as to the scheme of the conspiracy in its +description that it is as to the description of an overt act. Now, +what is the scheme of this indictment? That is to say, the scheme +of this conspiracy? We want to know what we are doing. It is the +great bulwark of human liberty that the charge against a man must +be in writing, and must be truthfully described.</p> +<p>First. For the defendants, with the exception of the officers +Brady and Turner, to write, and procure the writing of, fraudulent +letters, communications, and applications. Now, let us be honest. +Is there the slightest evidence that a fraudulent letter was ever +written? Is there the slightest evidence that a fraudulent +communication was ever sent to the department? Not the slightest +evidence.</p> +<p>Second. To attach to said petitions and applications forged +names. Is there any evidence of that except in one case, and the +evidence in that case is that the order was made before the +petition was received and that the petition was never acted upon. +More than that, is there any evidence as to who forged any names to +any petitions? Not the slightest. Which of these defendants are you +going to find guilty upon that petition when there is not the +slightest evidence as to who wrote it? What next? To have these +petitions signed by fictitious names or with the names of persons +not residing upon the routes. Is there any evidence of that kind? +Is there any evidence that the signatures of real persons were +attached, and the real persons did not live upon the routes? I +leave it to you, gentlemen.</p> +<p>Fourth. To make and procure false oaths, declarations, and +statements. Those I shall examine.</p> +<p>Fifth. For William H. Turner falsely to indorse on the back of +these jackets false brief statements of the contents of genuine +petitions. You know what has become of that charge, gentlemen.</p> +<p>This indictment against Turner has been changed into a +certificate of good moral character. That is the end of the +indictment, so far as he is concerned, and I am glad of it. He is a +man who fought to keep the flag of my country in the air, and who +lay upon the field of Gettysburg sixteen days with the lead of the +enemy in his body, and I am glad to have the evidence show that he +was not only a patriot, but an honest man with a spotless +reputation. I do not think that, in order to be a great man, you +have got to be as cold as an icicle. I do not think that if you +wish to be like God (if there is one) it is necessary to be +heartless. That is not my judgment. When I find that a man is +honest I am glad of it. When I find that a patriot has been +sustained my heart throbs in unison with his. What is the next? +That Brady, for the benefit, gain, and profit of all the +defendants—and I emphasize the word all because upon that I +am going to cite to the court a little law—made fraudulent +orders; that is, for the benefit of Turner, Brady, and everybody +else. Eighth. That he caused these fraudulent orders to be +certified to the Auditor of the Treasury for the Post-Office +Department. Ninth. That Brady refused to enter fines against these +contractors when they failed to perform their service; that he +fraudulently refused to impose these fines. What is the evidence? +The evidence is that the whole amount of fines imposed by Brady was +one hundred and twenty-six thousand eight hundred and sixty-five +dollars and eighty cents. That evidence is given in support of the +charge that he refused to impose them, yet the imposition amounts +to one hundred and twenty-six thousand dollars. How much of that +vast sum did he relieve the contractors from upon the evidence? +Twenty-three thousand dollars, leaving standing of fines that were +paid, one hundred and three thousand six hundred and seventy +dollars and twelve cents. That evidence is offered to show that he +conspired not to impose the fines. One hundred and twenty-six +thousand dollars imposed in fines, and only twenty-three thousand +dollars remitted. Yet the charge was, and an argument has been made +upon it before this jury, that the contractors agreed that he was +to have fifty per cent, of all fines that he took off. Think of a +man making that contract with aman having power to impose the +fines. "Now, all you will take off I will give you fifty per cent. +of." There is an old story that a friend of a man who was bitten by +a dog said to him, "If you will take some bread and sop it in the +blood and give it to the dog it will cure the bite." "Yes," he +says; "but, my God, suppose the other dogs should hear of it?" +Think of putting yourself in the power of a man who has the right +to fine you. And yet that is a part of the logic of this +prosecution. The next charge is of fraudulently cutting off service +and then fraudulently starting it and allowing a month's extra pay. +That happened, I believe, in two cases—thirty dollars in one +case and something more in the other.</p> +<p>The Court. Thirty-nine dollars.</p> +<p>Mr. Ingersoll. Then the case is nine dollars better than I +thought. Twelfth. By the defendants fraudulently filing, +subcontracts. That I have already shown is an impossible offence. +All these things were done for the purpose of deceiving the +Postmaster-General. Now, the Court has already intimated that we +have no right to say that the Postmaster-General would be a good +witness to show whether he was deceived or not, and that it may be +that his eyes were sealed so tightly that he has not got them open +yet. But whether they can prove it by him or by somebody else they +have got to prove it in order to make out this case.</p> +<p>That is the scheme of this indictment. It makes no difference +whether the Postmaster-General has found out that he was deceived +or not. The jury have got to find it out before they find a verdict +against the defendants. It is possible that the Postmaster-General +thinks he was not deceived or that he was; I do not know what his +opinion is and do not care. They have got to prove it by somebody. +I do not say they can prove it by him. I do not know. This is the +scheme, and what I insist is that this scheme must be substantiated +and must be proved precisely as it has been laid without the +variation of a hair. You must prove it as you have charged it, and +you must charge it as you prove it. It is simply a double +statement. I wish to submit some authorities to the Court upon this +question: Must the exact scheme be proved? First, I will refer the +court to the tenth edition of Starkie, page 627. * * *</p> +<p>"It is a most general rule that no allegation which is +descriptive of the identity of that which is legally essential to +the claim or charge can ever be rejected. * * * As an absolute and +natural identity of the claim or charge alleged with that proved +consists in the agreement between them in all particulars, so their +legal identity consists in their agreement in all the particulars +legally essential to support the charge or claim, and the identity +of those particulars depends wholly upon the proof of the +allegation and circumstances by which they are ascertained, limited +and described."</p> +<p>No matter whether the description was necessary or +unnecessary:</p> +<p>"To reject any allegation descriptive of that which is essential +to a charge or a claim would obviously tend to mislead the +adversary. * * * It seems, indeed, to be a universal rule that a +plaintiff or prosecutor shall in no case be allowed to transgress +those limits which in point of description, limitation, and extent +he has prescribed for himself; he selects his own terms in order to +express the nature and extent of his charge or claim, he cannot +therefore justly complain that he is limited by them. * * * As no +allegation therefore which is descriptive of any fact or matter +which is legally essential to the claim or charge can be rejected +altogether, inasmuch as the variance destroys the legal identity of +the claim or charge alleged with that which is proved, upon the +same principle no allegation can be proved partially in respect to +the extent or magnitude where the precise extent or magnitude is in +its nature descriptive of the charge or claim."</p> +<p>Nothing can be plainer than that. I refer also to Starkie on +Evidence, 7th American edition, vol. 1, page 442. There he +says:</p> +<p>"In the next place it is clear that no averment of any matter +essential to the claim or charge can ever be rejected, and this +position extends to all allegations which operate by way of +description or limitation of that which is material."</p> +<p>I also cite Russell on Crimes, 9th American edition, vol. 3, +page 305, and Roscoe's Criminal Evidence, 7th edition, page 86.</p> +<p>I now call the attention of the Court to the case of Rex vs. +Pollman and others, 2 Campbell, 239. I may say before reading this +decision that, in my judgment, so far as the scheme of this +indictment is concerned, it should end this case:</p> +<p>"This was an indictment against the defendants which charged +that they unlawfully and corruptly did meet, combine, conspire, +consult, consent and agree among themselves and together, with +divers other evil-disposed persons, to the jurors unknown, +unlawfully and corruptly to procure, obtain, receive, have and +take, namely, to the use of them, the said F. P., J. K. and S. H., +and of certain other persons to the jurors likewise unknown, large +sums of money, namely, the sum of two thousand pounds, as a +compensation and reward for an appointment to be made by the lord's +commissioners of the treasury of our lord the king of some person +to a certain office, touching and concerning His Majesty's customs, +to wit, the office of a coast waiter in the port of London, through +the corrupt means and procurement of them, the said F. P., J. K. +and S. H., and of certain other persons to the jurors unknown, the +said office then and there being an office of public trust, +touching the landing and shipping coastwise of divers goods liable +to certain duties of custom."</p> +<p>The indictment went on and stated various overt acts in +furtherance of the conspiracy.</p> +<p>"There were several other counts which all laid the conspiracy +in the same way."</p> +<p>Now I come to the part of the case which, in my judgment, +affects this:</p> +<p>"It appears that the defendants Pollman, Keylock and Harvey had +entered into a negotiation with one Hesse to procure him the office +mentioned in the indictment for the sum of two thousand pounds, +which they had agreed to share among themselves in certain +stipulated proportions; but although this money was lodged at the +banking house of Steyks, Snaith & Co, in which the defendant +Watson was a partner, and he knew it was to be paid to Pollman and +Keylock upon Hesse's appointment, there was no evidence to show +that he knew that Sarah Harvey was to have a part of it, or that +she was at all implicated in the transaction."</p> +<p>He was a co-conspirator, and he knew that the money was to be +deposited at this place.</p> +<p>He knew that, but he did not know that Sarah Harvey was to have +a part of it.</p> +<p>"Lord Ellenborough threw out a doubt whether as to Watson the +indictment was supported by the evidence."</p> +<p>The evidence being that Watson did not know that it was to be +divided in the precise way stated in the indictment. Manifestly, +they need not have stated in the indictment how it was to be +divided; but having stated it, the question is: Are they bound by +the statement? Let us see:</p> +<p>"The attorney-general contended that the words in italics coming +under a <i>videlicet</i> might be entirely rejected. The sense +would be complete without them. The indictment would then run that +the defendants conspired together to obtain a large sum of money as +a consideration and reward for appointment to be made by the lord's +commissioners of the treasury. This was the corpus delicti. The use +to which the money might be applied was wholly immaterial. The +offence of conspiring together would be complete however the money +might be disposed of."</p> +<p>True.</p> +<p>"There was no occasion to state this, and the averment might be +treated as surplusage. Suppose the manner in which the money was to +be disposed of had been unknown. Would it have been impossible to +convict those engaged in the conspiracy? But, without rejecting the +words, the variance was immaterial. The charge in the indictment +had been substantially made out as laid.</p> +<p>"Dallas and Walton, of counsel for Watson, denied that the words +could be rejected, though laid under a videlicet, as they were +material, and they were not repugnant to anything that went before. +The application of the money might be of the very essence of the +offence. Suppose it had been obtained for the use of the lords of +the treasury, who would make the appointment: would not this be a +much greater crime than if the money had been obtained for the +benefit of a public charity?"</p> +<p>I think that reasoning is bad. I think the crime is exactly the +same.</p> +<p>"But if the words were rejected then the variance was more +palpable. In that case, there being no mention of any persons to +whose use the money was obtained, the necessary presumption was +that it was obtained to the use of the defendants themselves."</p> +<p>That is good sense.</p> +<p>"The evidence shows, however, that Watson was to have no part of +it, and that he was utterly ignorant of the manner in which it was +to be distributed.</p> +<p>"Lord Ellenborough. There can be no doubt that the indictment +might have been so drawn as to include Watson in the conspiracy. +Even if the manner the money to be applied was unknown, this might +have been stated on the face of the indictment, and then no +evidence of its application would have been required. The question +is, whether the conspiracy as actually laid be proved by the +evidence?"</p> +<p>That is the question: Have they made out a case according to the +scheme of the indictment? Has the conspiracy as laid been proved by +the evidence?</p> +<p>"I think that as to Watson it is not. He is charged with +conspiring to procure this appointment through the medium of Mrs. +Harvey, of whose existence for aught that appears he was utterly +ignorant. When a conspiracy is charged it must be charged +truly."</p> +<p>He did not know that Mrs. Harvey was to have a portion of the +money, and yet she was a member of the conspiracy. The evidence +showed that she was to have a portion of it, and Lord Ellenborough +says that they did not prove the charge as laid, and that it cannot +include Watson.</p> +<p>"Garrow submitted that it was unnecessary to prove that each of +the defendants knew how the money was to be disposed of, and that +it was enough to show that the destination of the money was as +stated in the indictment. A fact of which all those engaged in the +conspiracy must be taken to be cognizant. Watson by engaging with +the other conspirators to gain the same end, had adopted the means +by which the end was to be accomplished."</p> +<p>That is what the attorney for the Government says. Lord +Ellenborough replies:</p> +<p>"You must prove that all the defendants were cognizant of the +object of the conspiracy and the mode stated in the indictment by +which it was to be carried into effect. A contrary doctrine would +be extremely dangerous. The defendant Watson must be +acquitted."</p> +<p>Now let us apply that case to this. In the first place, they +must not only prove this indictment according to the scheme, but +they must prove that every defendant understood that scheme, knew +the scheme, how it was to be accomplished and what was done with +the money.</p> +<p>The Court. In that case Watson was acquitted. What was done with +the others?</p> +<p>Mr. Ingersoll. They, of course, were found guilty, because they +were guilty, as the indictment charged. They knew the exact scheme +set forth in the indictment. They were guilty exactly as the +indictment said. They divided the money exactly as the indictment +charged they divided the money, and they were cognizant of every +fact set forth in the indictment. But Watson, although a +co-conspirator, did not know what was to be done with the money, +and consequently was to be discharged. Why? Because they did not +prove the conspiracy as to him as charged. They need not have set +forth in the indictment what was to be done with the money, but +they did set it forth, and then they had to prove it. They need not +have said that every man knew what was done with the money, but +they did say that every man knew, and they failed to prove it, and +when they failed to prove it as to Watson he was discharged.</p> +<p>Now, gentlemen of the jury, what I insist upon and what I shall +ask the Court to instruct you is that the Government, no matter how +guilty the defendant may be, no matter if he has robbed this +Government of hundreds of millions, is to be tried by this +indictment, is to be guilty of this charge as written in this +indictment and nowhere else; and he has got to understand it. They +say he understood it, and they have got to prove that he understood +it.</p> +<p>Now, upon that same subject they say that the money was to be +divided between all these parties—between Rerdell, Turner and +everybody. I think it was Mr. Bliss who said there was no evidence +that Rerdell ever had any of the money. Certainly they do not think +that Turner obtained any of the money. Is there any evidence of it? +Not the slightest. Is there evidence that there ever was any +division, any evidence that there was ever any money divided upon a +solitary route mentioned in this indictment? Not one particle. If +you say there is evidence, when was the division made?</p> +<p>The Court. The question is not what was done. The question is +with what view the conspiracy was entered into.</p> +<p>Mr. Ingersoll. Certainly.</p> +<p>The Court. 'The object of the conspiracy may have failed, and +this money might not have been divided as they intended, but still +the conspiracy would be here.</p> +<p>Mr. Ingersoll. Good, perfectly. But if they set forth in this +indictment that the money was divided, that statement is not worth +a last year's dead leaf unless they prove it. That is all I insist +upon. You cannot find anybody guilty of charges in an indictment +unless you prove them. Unless you prove them they amount to no more +than charges written in water, than characters engraved on fog or +written on clouds. You have got to prove them.</p> +<p>Now, upon this same point I say that if the scheme has not been +established by the evidence, the case fails, no matter what the +proof. The offence must not only be proved as charged, but it must +be charged as proved, doubling the statement for the sake of +doubling the idea of accuracy. That is in Archibald's Criminal +Pleadings, American edition, page 36. The same thing is held in +First Chitty's Criminal Law, 213. I also refer to the case of King +against Walker, 3d Campbell, 264; King vs. Robinson, 1st Hope's +Nisi Prius Reports, 595. I have the books here, but I will not take +up the time of this Court in reading them.</p> +<p>Now, if I am right, that is the language of that indictment. The +overt acts with the leaves are gone; the scheme with the branch and +trunk are gone. They prove no such scheme, they prove no such +division.</p> +<p>I will now proceed to examine the alleged evidence against my +clients, Stephen W. and John W. Dorsey, and I want to say right in +the commencement that suspicion is not evidence. You charge that a +couple of persons conspired. That they met about nine o'clock on +the shadowy side of the street.</p> +<p><i>A suspicious circumstance</i>. Why did they not get <i>under +the lamp?</i> They were seen together once more, and the moment a +man came up they walked off. Guilty. They ran. And out of these +idiotic suspicions that never would have entered the mind, except +for the reason that the persons were charged, hundreds of people +begin to say, "There is something in it. They met four or five +times. One of them wrote a letter to the other, and so help me God +it was not dated." Another suspicious circumstance. "There was a +heading on the paper. It was not the number of his office." So they +work it up, and ignorance begins to stare, and wonder to open its +mouth, and finally prejudice finds a verdict.</p> +<p>Suspicion, gentlemen, is not evidence. You want to go at this +with this idea. Whatever a man does, the presumption is it is an +honest act until the contrary is shown. These men wrote letters. +They had a right to do it. They met. They had a right to meet. They +entered into contracts. They had a right to do it, no matter +whether they were dated or not dated. One of the greatest judges of +England said if you let out of the greatest man's brains all the +suspicions, all the rumors, all the mistakes, and all the nonsense, +the amount of pure knowledge left would be extremely small. If you +take out of this case all the suspicions, all the guesses, all the +rumors, all the epithets, all the arrogant declarations, the amount +of real evidence would be surprisingly small.</p> +<p>Now, I want to try this case that way. I do not want to try it +by prejudice. Prejudice is born of ignorance and malice. One of the +greatest men of this country said prejudice is the spider of the +mind. It weaves its web over every window and over every crevice +where light can enter, and then disputes the existence of the light +that it has excluded. That is prejudice. Prejudice will give the +lie to all the other senses. It will swear the northern star out of +the sky of truth. You must avoid it. It is the womb of injustice, +and a man who cannot rise above prejudice is not a civilized man; +he is simply a barbarian. I do not want this case tried on +prejudice. Prejudice will shut its eyes against the light. I want +you to try it without that.</p> +<p>And right here, although it is a subject about which most courts +are a little tender, the question arises as to the jury being +judges of the law and fact. One of the attorneys for the +Government, Mr. Merrick, told us that at one time he insisted that +the jury was the judge of the law, and made this remarkable +declaration:</p> +<p>"But even at the time I spoke the words to the jury I did not +believe them to be indicative of safe and true principles of +law."</p> +<p>Was he candid then? Is he candid now? I do not know. But his +doctrine appears to be this: "When I am afraid of the court I +insist on the jury judging the law. When I am afraid of the jury I +turn the law over to the court. But in this case, having confidence +in both judge and jury, it is wholly immaterial to me how the +question is decided."</p> +<p>Now, if it please the Court, I believe the law to be simply +this: I believe the jury to be absolute judges of the facts, and +yet if on the facts they find a man guilty whom the court thinks is +not guilty, the court will grant a new trial. The court has the +power to set aside a verdict because the jury find contrary to the +evidence. The court cannot do it, however, when the jury finds a +verdict of not guilty. I do not believe that the jury have a right +to disregard the law from the court unless a juryman upon his oath +can say that he believes, he knows, or is satisfied that is not the +law; and he must be honest in that, and he must not be acting upon +caprice. He must be absolutely honest. He must be in that condition +of mind that to follow the law pointed out by the court would +trample upon his conscience, and that he has not the right to do. +That is all the distance I go.</p> +<p>The history of the world will show that some of the grandest +advances made in law have been made by juries who would not allow +their consciences to be trampled into the earth by tyrannical +judges. I am not saying that for this case.</p> +<p>I am simply saying that as a fact. There was a time in this +country when they used to try a man who helped another to gain his +liberty, and there was now and then a man on the jury who had sense +enough, and heart enough, and conscience enough to say, "I will die +before I carry out that kind of law." They did not carry it out +either, and finally the law became so contemptible, so execrable, +that everybody despised it. All I ask this jury to do is just to be +governed by the evidence and by the law as the Court will give it +to them, honestly and fairly.</p> +<p>Now, I am coming to the evidence against John W. Dorsey. I am +traveling through this case now we have started it. As you have +heard very little about it, gentlemen, and there is nothing in the +world like speaking on a fresh subject. I feel-an interest in John +W. Dorsey. He is my client. I believe him to be an absolutely +honest man. He is willing to take the effect of all his acts. He is +no sneak, no skulk. He will take it as it is. Let us see what he +has done.</p> +<p>The first witness is Mr. Boone. Mr. Boone swears that John W. +Dorsey was one of the original partners. Well, that is so. It is +claimed that the conspiracy was entered into before there was any +bidding. Well, Boone does not uphold that view. Now, if Boone and +Miner and John W. Dorsey and Peck had an arrangement with Brady +whereby they were to bid and then have expedition and increase, I +want to ask you why did Boone write to all the postmasters to find +out about the roads and the cost of provender, and the kind of +weather they had in the winter in order to ascertain what bid to +make? If he had had an arrangement with the Second Assistant +Postmaster-General to expedite the route he would have simply made +up his mind to bid lower than anybody else, and he would not have +cared a cent what kind of roads they had there, or what kind of +weather they had in the winter, or how much horse provender cost, +and yet he sent out thousands of circulars to find out these facts. +For what? To make bids. What for? According to the Government these +were routes on which they had already conspired for expedition and +increase without the slightest reference to the horses and men, and +of course, if that theory is true, Boone is one of the +conspirators. But I will come to that hereafter.</p> +<p>More routes, according to Boone's testimony, were awarded than +they anticipated. They got, I think, one hundred and twenty-six. +They had no money to stock the routes. They got more than they +expected. Well, that was not a crime. Boone left in August, 1878, +and Mr. Merrick takes the ground that Boone had done the work, +manipulated all the machinery, and yet could not be trusted with +the secret. Boone had gathered all the information, he had done the +entire business, and yet the secret up to that time had been +successfully kept from him. Do you believe that?</p> +<p>Now, Vaile came, and another partnership was formed, and the +second partnership remained in force, I think, till the 1st of +April, 1879, or the last day of March, and then the routes were +divided. Now, then, John W. Dorsey is charged with conspiracy as to +these routes, and these routes were afterwards assigned to S. W. +Dorsey to secure advances and indorsements that were made.</p> +<p>Now, of the routes mentioned in the indictment, John W. Dorsey +was interested in seven at the time of the division. From +Vermillion to Sioux Falls, from White River to Rawlins, from +Garland to Parrott City, from Ouray to Los Pinos, from Silverton to +Parrott City, from Mineral Park to Pioche, and from Tres Alamos to +Clifton. How much money did he get on all these routes? I have +already shown you. He received two warrants for eighty-seven +dollars and they recouped them both. He received another warrant +for three hundred and ninety-two dollars and succeeded in keeping +it. That is all the money he got in these seven routes. Now, the +testimony of Mr. Vaile shows, if it shows anything, that after +April, 1879, he took those routes and kept them and never paid a +dollar to any official in the world, and he also swears that no +matter how much he got, it made no difference as to the routes that +had been given to John W. Dorsey and Peck. It could not in any way +affect their amount, and that no person in the world except +themselves had any interest in them.</p> +<p>Now, it is charged that false affidavits were made by John W. +Dorsey, and that the making of these false affidavits was the +result of conspiracy. Let us see. It has been shown by the +evidence, and I have already shown it, and conclusively shown it, +that the affidavit was substantially correct, so far as the +proportion was concerned.</p> +<p>Now, let me explain what I mean by proportion. For instance, I +am getting five thousand dollars a year on a route, and it takes +five men and ten horses. That is an aggregate of fifteen. Now, +suppose I simply expedite it a certain number of miles an hour, and +say it will take fifteen men and thirty horses. That makes an +aggregate of forty-five, does it not? Then the Government gives me +three times as much for the expedited service as for the then +service. Now, suppose I am getting a thousand dollars, and it only +takes one man and one horse, and I make an affidavit that it takes +one hundred men and one hundred horses, and if it is expedited it +will take two hundred men and two hundred horses, how much more do +I get? I get just double, and the result of the affidavit is +exactly the same as though I said the one man and one horse that it +then took, and it would require two men and two horses. If you keep +the proportion you cannot by any possibility commit a fraud against +the Government. Now we understand that. Now let us see. When you +make an affidavit, what do you do? When you make an affidavit of +how many horses it will take, you take into consideration the +length of the term, three or four years. You take into +consideration the life of a horse. You take into consideration the +roads and the weather. You take into consideration every risk, and +find it is only a matter of judgment, only a matter of opinion, and +the fact that men differ as to their judgment upon those points +accounts for the fact that they make different affidavits. If +everybody made the same calculation as to food, as to weather, as +to roads, as to disease, everybody would make substantially the +same bid, but on the same route they differ thousands of dollars a +year, because they differ in judgment as to the number of horses it +will require and as to the number of men.</p> +<p>And then there is another thing. Some men will make a horse do +twice as much as others. Some men are hard and fierce and +merciless. Some men are like they ask you to be in this +case—icicles. Some men resemble the gods so far that they +will make a horse do five times the work they should, and other men +are merciful to the dumb beast. So they differ in judgment. One man +says he can go twenty-five miles every day, and another man says he +can only go fifteen. One man says stations ought to be built +twenty-five miles apart; another says they should be built ten +miles apart. They differ, and for that reason, gentlemen, the bids +differ, and for that reason the affidavits differ.</p> +<p>I shall not speak of all these affidavits, but I shall speak of +the ones that have been attacked. Mr. Merrick called Mr Dorsey a +perjurer because he made two affidavits on route 38145. Now, no +such charge is made in the indictment, but I will answer it. Now, +then, as to the two indictments—The Court. Two +affidavits.</p> +<p>Mr. Ingersoll. Two affidavits. Well, there ought to have been +two indictments to cover both cases. Now, this is on route 38145, +Garland to Parrott City. Now, there were two affidavits made on +38145, as is set forth in the evidence, but it is not in the +indictment. The first affidavit was sworn to March 11, 1879, in +Vermont, and filed April 16, 1879. Neither could come in under this +conspiracy anyway. The second was made in Washington, April 26, +1879, and filed the same day, which is a suspicious circumstance. +The letter dated April 23, 1879, according to the prosecution, +purports to transmit an affidavit made on the 26. There is no +evidence that the affidavit dated the 26 was inclosed in the letter +dated the 23. The affidavit set forth the number of men and animals +required to run the route on a schedule of fifty hours, three trips +a week. There is no evidence as to the character of the paper +transmitted, if any was transmitted, nor in fact, is there any +evidence that any paper was transmitted with that letter.</p> +<p>Now, on page 804 of the record, Mr. Bliss submitted two papers +to Mr. McSweeney, a witness, saying, "I show you two papers pinned +together." Who pinned them? I do not know. "One dated April 26, +1879, and the other dated April 24, 1879." The paper dated April 26 +is indorsed in the handwriting of William H. Turner. The +indorsement on the paper dated April 24 is in the handwriting of +Byron C. Coon. This fact shows that the papers that were read by +Mr. Bliss as one paper and marked 17 E, were treated by the +department as two separate papers received on separate dates, and +so marked and so filed, and they were marked at the time they were +identified as numbers 17 and 18. Now, the only question is whether +the last affidavit was made for the purpose of committing a fraud +upon the Government and whether the change in the figures in the +last affidavit were intended to or could in any way defraud the +Government of the United States.</p> +<p>Now, let us see what it is. Mr. Merrick charges that the second +oath was willful perjury. In order to show that this was an honest +transaction, and that Mr. Dorsey should be praised instead of +blamed, I will call your intention now to the exact state of facts. +Now, if I do not make out from this that it was a praiseworthy +action instead of perjury, a good, honest action, I will abandon +the case. In the first affidavit Dorsey swore that it would require +three men and seven animals as the schedule then was, and that for +the proposed schedule it would take eleven men and twenty-six +animals. Now, three men and seven animals make ten, and eleven men +and twenty-six animals make thirty-seven. So that by the first +affidavit he swore that it would take three and seven-tenths more +animals to carry the mail on the expedited schedule than on the +schedule as it then was, did he not? Three men and seven animals as +against eleven men and twenty-six animals it would take three and +seven-tenths more animals, consequently you would get for that +three and seven-tenths more pay. Now, let us understand that. That +is an increase in the ratio of ten to thirty-seven, and if his pay +had been calculated on that first affidavit it would have been +thirteen thousand four hundred and thirty-three dollars and four +cents. But it was not calculated on that. He made another +affidavit. Now, the second affidavit said that it would take twenty +men and animals instead of ten, as it then was, and for the +expedition fifty-four men and animals. Now, the ratio between +twenty and fifty-four was two and seven-tenths instead of three and +seven-tenths, so that under that second affidavit, which they say +was willful and corrupt perjury, he would only get eight thousand +four hundred and fifty-seven dollars, and the change of that +affidavit, if the amount had been calculated on the first instead +of the second, would have cost him for the three years yet +remaining of his term fourteen thousand nine hundred and +twenty-five dollars and sixty cents, and that change saved, exactly +as if they had made the calculation on the other affidavit, about +fifteen thousand dollars, and yet they tell me that that was +willful and corrupt perjury. There has nothing been shown in the +case more perfectly honorable. Nothing shown calculated to put John +W. Dorsey in a fairer, in a grander light, than this very affidavit +that is charged to have been willful perjury. Do you see? He made +the first affidavit, and in it he made a mistake against the +Government of fourteen thousand nine hundred and twenty-five +dollars, and, then, like an honest man, he corrected it, and for +that honest correction he is held up as a perjured scoundrel. It +will not do, my friends.</p> +<p>But, as a matter of fact, not one of these affidavits is set out +in the indictment, not one charged in the indictment. They are +wandering tramps that were picked up as they went along with this +case, and have no business here.</p> +<p>In route 38152 he made no affidavit. In route 38113 there is no +charge in the indictment that he made any affidavit. In the route +38156 the affidavit was not false. It was charged and was not +successfully impeached. In route 40104 the affidavit was never +disputed and it was never attacked. In route 40113 the affidavit +was not attacked, not a solitary witness was examined. In route +35105 no affidavit was made by Dorsey. In route 38134 there are two +more affidavits.</p> +<p>Now let us see. Here is some more fraud. Put it down, +38134—two affidavits—a great fraud. The first affidavit +said three men and twelve animals. That made fifteen; that for the +expedition it would take seven men and thirty-eight animals. That +made forty-five. In other words the proportion was fifteen to +forty-five, just three times as much. Three times fifteen make +forty-five. Then he made a second affidavit, filed with a purpose +to defraud the Government. Let us see. In the second affidavit he +said that it took two men and six animals. That makes eight. That +on the expedition it would take six men and eighteen animals. That +makes twenty-four. The proportion was eight to twenty-four. Three +times eight make twenty-four; and three times fifteen make +forty-five. So that the amount was raised exactly the same to a +cent, under the second affidavit that it was under the first, and +consequently could not have been made for the purpose of defrauding +anybody. Impossible. The proportion of course is the material thing +in every affidavit, and it is only by that proportion that you can +tell whether they are trying to defraud this Government or not. +Suppose that second affidavit had changed the proportion so that he +was not to get just the amount of money, then you might say it was +a fraud. But it did not change the proportion.</p> +<p>On route 38156 another affidavit is filed and not successfully +impeached. I went over that. I have got through with that. That is +all there is to it. That is all, that is +everything—everything—everything. There is no evidence +tending to show that John W. Dorsey ever spoke to Thomas J. Brady. +There is no evidence to show that he ever saw him. There is no +evidence to show that he was ever seen in his company; no evidence +to show that he ever saw Turner; that he ever heard of Turner; that +he ever spoke to Turner; that he ever received a letter from +Turner; that he ever wrote anything to him; no evidence as a matter +of fact that he ever exchanged a word with these men; no evidence +that he ever saw Harvey M. Vaile; that he ever spoke to him. +Certainly there is no evidence that he ever conspired with him. No +evidence that he ever made an agreement with Thomas J. Brady or +with Mr. Turner or with any officer—no agreement of any sort, +kind, character, or description at any place, upon any subject, or +for any purpose, not the slightest; no evidence that he conspired +with anybody; no evidence that he ever received from the United +States a solitary dollar, with the exception of three hundred and +ninety-two dollars—not the slightest.</p> +<p>There is no evidence that he ever wrote a false communication to +the department—nothing of it. There is no evidence that he +ever wrote a petition; no evidence that he ever forged one; no +evidence that he ever signed anybody's name to one; no evidence +that he did anything of the kind or that he ever changed one; no +evidence that he ever put a man's name to it that did not live on +the route; no evidence that he ever put in a fictitious name; no +evidence that he helped to deceive the Postmaster-General—not +the slightest. If there is I want somebody just to put their finger +upon the evidence. There is no evidence that he ever made false +statements at any time. There is no evidence that he ever paid, as +I say, a dollar to any official, and no evidence that he ever +promised to pay it. All the evidence is that he got three hundred +and ninety-two dollars. He made the affidavits in accordance with +what he believed to be the truth. The evidence shows that when he +made the affidavits on those routes he had no personal interest, +that he received not a dollar for making them. He made them because +he supposed the contractor or subcontractor had to make them. He +made them because he believed them to be true. He was guided by the +little experience he had himself and by the statements made to him +by others; and in all this evidence there is not a word, not a +line, not a letter tending to show he did a dishonest act, and the +jury will bear me out that in the affidavits attacked he was +substantially right, while in the first instance he was too high; +in others he was too low. But there is no evidence that he +deliberately swore to what he believed to be untrue. The proportion +sworn to by him has always been substantially correct. In other +words, gentlemen, the testimony shows that John W. Dorsey is an +honest man, and there is no jury, there never was, there never will +be, that will find a man like that guilty upon evidence like this. +It never happened; it never will happen.</p> +<p>Now, I come to my other client, Stephen W. Dorsey, and I feel an +interest in him. He is my friend. I like him. He is a good man. He +has good sense. He is not simply a politician, he is a statesman; +and I want you to understand that he never did an act in this case +that he did not thoroughly understand as well as any lawyer in this +prosecution ever will understand; or as well as any lawyer of the +defence ever will understand. He knew exactly his liabilities. He +knew exactly his responsibility. He knew exactly what he did and he +knew he did only what was right. In the opening of this case Mr. +McSweeney made a statement. He told you the exact connection of +Dorsey with this matter. He not only told you that, but he told you +that Dorsey had lost money on these routes, and that he had never +been repaid the money he had advanced, and in that connection he +said that he had turned the routes over to James W. Bosler, and the +department knew of James W. Bosler because they introduced +testimony here that the warrants were paid to James W. Bosler. Mr. +McSweeney stated that Bosler controlled the business, and now we +are asked by the prosecution, "Why did you not bring James W. +Bosler on the stand and show that you had lost money?" I return the +compliment and say to them, why did you not bring James W. Bosler +on the stand and show that it was not true that we had lost money, +as he kept the books? I ask them that. Why did they not bring James +W. Bosler?</p> +<p>Mr. Merrick. If your Honor please, there is no evidence whatever +as to whether S. W. Dorsey lost money on those routes, and the +statement of counsel made in the opening, I respectfully submit, +cannot be used as evidence by the counsel in the case.</p> +<p>The Court. Of course it is impossible for me to say after so +long a time spent in receiving evidence what evidence has been +given on a disputed question. I cannot say from recollection what +evidence has been given on this subject, but I understand the +remarks now made are not made upon evidence in the case, but in +reply to remarks made in the opening in the case.</p> +<p>Mr. Ingersoll. Partially so.</p> +<p>Mr. Merrick. The opening by their counsel.</p> +<p>The Court. By their counsel.</p> +<p>Mr. Merrick. By their counsel, Mr. McSweeney.</p> +<p>Mr. Ingersoll. Let me just state it, and the Court will +understand it perfectly. Mr. McSweeney, in his opening, said that +these routes had been turned over to James W. Bosler; that he +received the money and paid it out, and that S. W. Dorsey on these +very routes had not made money, but lost money. Very well. But that +statement was simply a statement. It was never proved afterwards. +The Government said to us, "Why did you not bring James W. Bosler +to prove that?"</p> +<p>The Court. Where did they say that?</p> +<p>Mr. Ingersoll. They said it in their speeches. Mr. Merrick said +it.</p> +<p>Mr. Merrick. Not to prove as to the money.</p> +<p>Mr. Ingersoll. Ay, "Why did you not bring James W. Bosler?"</p> +<p>Mr. Merrick. Yes, but not as to proof of money; but as to other +questions in reference to the distribution of routes and the +loaning of money by Dorsey, and by Bosler to Dorsey, and Dorsey's +transfer of the routes to Bosler as security for the loan as +appeared in Vaile's testimony.</p> +<p>The Court. I shall not interfere.</p> +<p>Mr. Merrick. I shall not attempt to arrest the course of counsel +unless there is ground for it, and I ask the Court that, there +being no evidence of this fact, that the counsel shall +not—Mr. Ingersoll. [Interposing.] I am going to show there is +some evidence.</p> +<p>The Court. I understand it is a remark in reply to an +observation of your own.</p> +<p>Mr. Ingersoll. That is principally it. Now, they introduced the +warrants that had been drawn by the contractors and subcontractors +from the Post-Office Department; they proved that these warrants +had been paid to James W. Bosler, and that one after the other, +hundreds had been assigned to James W. Bosler. Now, then, I say, +they say to us, "Why do you not bring in James W. Bosler and prove +your innocence?" I say why did you not bring in James W. Bosler and +prove our guilt? We opened the door. We told you the name of the +witness. We told you that he had taken the routes; that he kept the +books; that he disbursed the money, and that we had lost money. +Instead of robbing the Government the Government has robbed us; and +they say, "Why did you not bring Bosler?" and I say to them, why +did you not bring him? They know him, and they know he is a +reputable man.</p> +<p>Now, there is another point. I ask you all to remember what was +said in the opening, and I understand that a defence is bound by +its opening, bound by what it says to the jury. The question is, +Has any fact been substantiated in this case that contradicts a +statement made in the opening?</p> +<p>The Court. The defence has no right to avail itself of—Mr. +Ingersoll. [Interposing.] Of what it says.</p> +<p>The Court. Of what it says in its opening unless it is followed +by evidence.</p> +<p>Mr. Ingersoll. Certainly not, but it has a right to show that no +evidence has been introduced by the Government that touches that +opening statement. It has the right to do that, surely.</p> +<p>Now, then, Mr. Boone was the witness for the Government—a +smart man. He swore who were interested in the bidding. He told and +he positively swore that Dorsey was not interested in these routes. +He gave the names of the persons interested, and he swore +positively that he was not. Dorsey then, I say, had not the +slightest interest. He loaned money, he went security, he assisted +in getting sureties on bonds, and you recollect the trouble that +they have made about some bonds. Has there any evidence been +introduced to show that there was a bad bond? Has any evidence been +introduced to show that the name of an insolvent man was put upon +any bond as security? Has there been any evidence to show that any +action was ever commenced on any of these bonds; any evidence +tending to show that every bond was not absolutely good? As a +matter of fact, the Government waived all of that. In offering the +contract on route 35015, Mr. Merrick made this remark:</p> +<p>"It is offered for the purpose of showing the contract made. The +contract itself is not an overt act. That is all right. There is +nothing criminal about that."</p> +<p>Good!</p> +<p>Nothing criminal about any contract, gentlemen. You will all +admit they had to make the bids, and if they were the lowest +bidders it was the duty of the Government to accept the bids and +afterwards to make the contracts in accordance with them. There was +nothing wrong in that. That is Dorsey's first step. His first step +really was an act of kindness. What was the second step? He was +unable to advance any more money. Mr. Peck, Mr. Miner, Mr. Dorsey, +and Mr. Boone were unable to advance the money, so Mr. Boone went +out and Mr. Vaile came in, and the new partnership agreed to refund +this money that had been advanced; that is, the money advanced by +the other parties. What one gets another to advance is really +advanced by him as long as he is liable for it. Mr. Vaile, a man of +large experience and means, was taken in Boone's place. Is there +anything suspicious up to this time? That is the only test of this +whole question. Is it natural? If it is natural there is no chance +for suspicion. After Mr. Vaile came in, a written contract was made +on August 16, 1878. There is no conspiracy up to that time. Not the +slightest evidence of it; no arrangement with any officers up to +that time. Now, under the August contract, Mr. Vaile took the +entire business in charge, and he ran it, as I understand, until +the first day of April, 1879. No officer had any interest in it +then. There was no conspiracy then. Vaile received all the money +and paid it out. Here we stand on the first day of April, 1879. +Now, what is the history up to this time? That John W. Dorsey, +Peck, Miner, and Boone were bidders; that certain routes had been +awarded, they had not the money to stock the routes, and that S. W. +Dorsey advanced some money and went security; that afterwards Boone +went out and Vaile came in, and the contract was made by virtue of +which Vaile became the treasurer and knew everybody, and ran the +business to the first day of April, 1879. He swears positively that +he made no arrangement and that he paid no money. It is also in +evidence that in December, 1878, Stephen W. Dorsey and Vaile met +for the first time, and met in the German-American Bank for the +purpose of settling the claim upon which Dorsey was security, and +replacing the notes upon which Dorsey was, by notes of Vaile, Miner +& Co. Afterwards these notes were paid by Vaile and the +security of Dorsey released. Now, in April, 1879, a division is +made. The contract of August, 1878, was done away with and a +division 'of the routes was made, seventy per cent, being taken by +Vaile and Miner and thirty per cent, by John W. Dorsey and Peck. In +April, 1879, the parties divided instead of coming together. They +do not conspire. They separate. They do not unite. They go asunder. +From that moment they agree to have nothing in common. Each man +takes his own, and each man attends to his own and does not help +anybody else except when they insist that a contractor or +subcontractor shall make the affidavit. They made affidavits on the +routes on which they were contractors. That is all there is to it +up to that time. Then these routes were assigned to Dorsey for the +purpose of securing him.</p> +<p>Now, I go to the overt acts charged against Stephen W. Dorsey. +Do you know I am delighted to get right to that page of my notes. I +am delighted that I now have the opportunity to answer and to +answer forever all the infamous things that have been charged +against this man. Here we are, before this jury, a jury of his +fellow-citizens, a jury that has the courage to do right. I have +finally the chance of telling here before men who know whether I am +speaking the truth or not, what has been charged against Stephen W. +Dorsey and what has been proved against him. Let us examine the +overt acts charged. On route 38135 it is charged that Miner, +Rerdell and S. W. Dorsey transmitted a false affidavit. The +evidence is that the affidavit was made by Miner, not by Dorsey, +transmitted by Miner, not by Dorsey, and that it was not +transmitted as charged in the indictment, but transmitted on the +18th day of April, 1879. There is no evidence that Dorsey even +heard of that affidavit, that he ever made it, that he ever +transmitted it, that he ever saw it, that he ever knew of its +existence. That is the first charge. There is not one particle of +evidence to show that he ever knew there was such a paper. Upon +that written lie, upon that mistake these infamous charges +affecting the character of this man have been circulated over the +United States.</p> +<p>What is the next? That he with others filed false petitions. I +am telling you now all the charges; every one of them. What is the +evidence? Oh, it is splendid to get to the facts. The evidence is +that every petition is shown to have been genuine. There is no +evidence that he ever filed one or sent one, or asked to have one +sent on that route; and every petition is genuine and no charge +made except as to one. In one they said the words "quicker time" +were inserted; but the very next paragraph asked for quicker time, +and nobody pretended that had been inserted. Besides that, it was +charged in the indictment to have been filed on the 26th day of +June. As a matter of fact, it was filed on the 8th day of May. It +was never filed by Stephen W. Dorsey; it was never gotten up by +Stephen W. Dorsey. There is no evidence that he ever knew of it or +heard of it. Third, that he fraudulently filed a subcontract. Two +mistakes and an impossible offence. That ends that route. That is +everything on earth in it. I defy any man to make anything more out +of it than I have. I have told every word.</p> +<p>The next route is No. 41119. It is charged that Stephen W. +Dorsey with others transmitted a false oath. The evidence is that +the oath was made by Peck, and it was transmitted by Peck and not +by Stephen W. Dorsey. What else? That it is true. There are three +mistakes in that charge. They say Dorsey made it. Peck made it They +say Dorsey transmitted it. Peck transmitted it. They say it was +false. The evidence shows it true. Thai is all there is to that +route. It is the only charge on that route. No petitions were +claimed to be false.</p> +<p>Now we come to route 38145. Let us see if we can do any better +on that. The first charge is, that Stephen W. Dorsey fraudulently +filed a subcontract. The subcontract was made with Sanderson, +Sanderson got his own contract filed. This charge was copied from +the old indictment. It is a mistake and that is all there is to it. +These are the charges that have carried sorrow to many hearts. +These are the charges that have darkened homes. These are the +charges that have filled nights with grief and horror; every one of +them a lie.</p> +<p>The next route is 38156. The first charge is that he transmitted +a false oath. The oath was made by John W. Dorsey, and is true. The +second charge is of fraudulently filing a subcontract, an +impossible offence. That is everything on that route. Absolutely +untrue.</p> +<p>Now we come to the next, No. 46217. The charge is filing base +petitions. The evidence is that every petition was genuine. Every +one. Mr. Bliss said—"We make no point about increase of trips +on this route."</p> +<p>Every petition was for increase of trips. You will see that on +record, page 1008. That is the only charge on that route, +gentlemen. Utterly false!</p> +<p>Come now to route 38140. Charge: Filing false and forged +petitions. Evidence: All the petitions genuine. Second charge: +Transmitting a false oath and making it. Evidence: Oath made by +John W. Dorsey, and true. That is all there is to that route. If +they can rake up any more I want to see it. I have been through +this record.</p> +<p>Route 38113. Charge: Fraudulently filing a subcontract. That is +all. You cannot fraudulently file a subcontract.</p> +<p>Route 40113. Charge: Filing false and forged petitions. +Evidence: Every petition admitted by the Government to be genuine. +Good. Second: transmitting a false oath. Evidence: Oath made by +John W. Dorsey, and the Government introduced no witness to show +that it was false. See how these charges fall. See how they bite +the ground. That is all.</p> +<p>I have told you every one in this indictment; every one. You +will hardly believe it. Now let me give you the recapitulation. S. +W. Dorsey is charged on eight routes with having transmitted four +false oaths.</p> +<p>The evidence is he never made one nor transmitted one, and that +the four oaths were all true. On five routes he is charged with +having filed false petitions. The evidence is that all the +petitions were genuine. None of the petitions charged in the +indictment to have been transmitted by him were transmitted by him. +He is charged with filing fraudulent subcontracts, and the evidence +is that the subcontracts were genuine, and besides that, as I have +said a dozen times, it is utterly impossible to fraudulently file a +subcontract. Not a single, solitary charge in this indictment +against Stephen W. Dorsey has been substantiated. Not one. He has +been called a robber, he has been called a thief, but the evidence +shows he is an honest man. Not one single thing alleged in that +indictment has been substantiated against him, and I defy any human +being to point to the evidence that does it. Now think of it. All +this charge has been made against that man upon that evidence; no +other evidence; not another line so far as the indictment is +concerned. What is outside of the indictment? That he wrote two +letters, taking possession of routes that had been turned over to +him as security, which he had a right to do. What else? That he got +up some petitions, or had them gotten up, in the State of Oregon. +The man who got them up was brought here as a witness. I believe +his name was Wilcox. He swore that everything he did was honest, +and that every name to every petition was genuine. Now let us see. +Another point has been made upon S. W. Dorsey. I want to read it to +you. This is from the argument of Mr. Merrick:</p> +<p>"Peck, John W. Dorsey and Miner, or some other one of Stephen W. +Dorsey's friends. Who was making up this conspiracy? Who was +gathering around him arms and hands to reach into the public +Treasury for his benefit, while his own were apparently unoccupied +with pelf? S. W. Dorsey. 'My brother and brother-in-law will go in, +and Miner, or if not Miner, then one of my other friends.'"</p> +<p>This is quoted.</p> +<p>"One-of S. W. Dorsey's other facile friends. That was in 1877, +gentlemen, the morning of this day of fraud and criminality. In +that room where Boone and S. W. Dorsey sat arose the sun, and there +was marked his course. There was fashioned the duration and the +business of that criminal day."</p> +<p>Now, let us see what the evidence is. The object of that speech +is to convince you that Dorsey said to Boone. "I will either put in +Miner or one of my friends." Do you know that there is not money +enough in the Treasury of the United States, there is not gold and +silver enough in the veins of this earth to tempt me to misstate +evidence when a man is on trial for his liberty or his life. Let us +see what the evidence is:</p> +<p>"Q. Who else besides his brother-in-law and brother?—A. I +could not say positively whether Mr. Miner's name was mentioned. He +either mentioned his name or a friend of his from Sandusky, +Ohio."</p> +<p>Now, I submit to you, gentlemen, what does that mean? Mr. Boone, +in effect, says, "He told me either it was Miner or a friend of his +from Sandusky. That is, he either described Miner by his name or he +described him as a friend of his from Sandusky." Then there was +objection made, and after that comes another question:</p> +<p>"Q. Was anything said of Mr. Miner's coming to +Washington?—A. I could not say whether his name was mentioned +or a friend of his; a personal friend."</p> +<p>What does that mean? Boone cannot remember Whether he called him +Miner or called him a friend of his from Sandusky. What else?</p> +<p>"A. There was to be nobody that I understood outside of the +parties I spoke of.</p> +<p>"Q. You and John W. Dorsey and Peck?—A. And Mr. +Miner."</p> +<p>"Q. Or one of his friends?—A. Or Mr. Dorsey's friend. The +arrangement made was not made until they came here. It was only to +prepare the necessary blanks and papers pending their coming +because the time was getting short, and it was necessary to get the +information to bid upon. Nothing was said about any interest at all +until after they came here, and then there was a partnership +entered into."</p> +<p>Now, I ask you, gentlemen of the jury, what is the meaning of +that testimony. The meaning is simply this: Boone could not +remember whether he mentioned Miner's name or called him a friend +of his from Sandusky, yet the object has been to make you believe +that the testimony was that S. W. Dorsey said, "I will either have +Miner or I will get another friend of mine." Dorsey had no interest +in it, not the interest of one cent, not the interest of one +dollar, directly, indirectly, or any other way. He had no interest +in having a friend of his. All that Mr. Boone said is that Mr. +Dorsey either called this man Miner or described him as a friend +from Sandusky, Ohio. The evidence is that Mr. Miner did come, and +the evidence is that the arrangement was made. What else is there +outside in this case against Stephen W. Dorsey? I ask you to put +your hand upon it. I ask anybody to point it out. What other +suspicious circumstance is there? I want you to understand that all +the suspicious circumstances in the world are good for nothing. All +the evidence on earth tending to show a thing does not show it. +Anything that only tends that way never gets there; never.</p> +<p>You cannot infer a conspiracy. Unless you have the facts proved, +you cannot infer the fact and then infer the conspiracy. There has +not been—I want to say it again—there has not been a +solitary fraudulent act proven against Stephen W. Dorsey. They have +not done it and they cannot do it. All I ask of you, gentlemen, is +to find a verdict in accordance with this testimony.</p> +<p>May it please the Court, it appears from the evidence in this +case, I think the evidence of Mr. James, that Stephen W. Dorsey at +one time, about sixteen or seventeen months ago, made a statement +in writing of his connection with all these routes. That statement +he gave to the Attorney-General and the Postmaster-General. There +is no evidence of what was in that statement. The only evidence is +that such a statement was made, embracing his connection with these +routes.</p> +<p>The Court. You offered to prove that.</p> +<p>Mr. Ingersoll. Oh, no. The reason it was established was I +wanted to show whether that statement was made before or after Mr. +Rerdell made a statement. The fact simply appears that he made a +statement.</p> +<p>The Court. You offered to prove the fact.</p> +<p>Mr. Ingersoll. I do not remember offering to prove it. I proved +it.</p> +<p>The Court. If it was not proven—Mr. Ingersoll. +[Interposing.] I did prove it as a fact.</p> +<p>The Court. That he made a statement.</p> +<p>Mr. Ingersoll. Yes, sir. Right here it is [taking up the +record].</p> +<p>The Court. Oh, well, you cannot base any remarks upon that.</p> +<p>Mr. Ingersoll. Let me read what the evidence says:</p> +<p>"Q. Was this statement of Rerdell's made to you after you had +received the statements of S. W. Dorsey as to his connection with +all these entire routes or with this entire business?</p> +<p>"The Witness. To what statement do you refer?</p> +<p>"Mr. Ingersoll. To the statement that was made in writing and +given to you and the attorney-general by ex-Senator S. W. +Dorsey?</p> +<p>"A. It must have been after that.</p> +<p>"Q. You mean Rerdell's statement was after that?—A. Yes, +sir.</p> +<p>"Q. Did you ever see that statement made by Senator +Dorsey?—A. It was referred to the attorney-general.</p> +<p>"Q. Did you ever see it?—A. Certainly.</p> +<p>"Q. Do you know where it now is?—A. I do not."</p> +<p>I am not going to say a word about what was in that statement, +but the Court will see that that has a direct bearing upon their +action with regard to Rerdell's statement whether it was made +before or after, which I will endeavor to show, and the only point +that I wanted to make upon that statement now, was that the +Government has not endeavored to prove that anything in that +statement was inconsistent with the evidence in this case. I am not +going to say what the statement was; simply that he made a +statement, and it follows as naturally as night follows morning, +and morning follows night, that if that statement had been +incorrect it would have been brought forward. That is all.</p> +<p>The Court. For anything the Court knows it might have been a +confession. We do not know anything about it.</p> +<p>Mr. Ingersoll. If it had been a confession it would have been +here. That is the point I make. If there had been in that anything +inconsistent with the testimony it would have been here.</p> +<p>The Court. Probably it would.</p> +<p>Mr. Ingersoll. Yes, sir; that is my point.</p> +<p>The Court. When a man is charged with crime no man has a right +to say that because he did not deny it that is evidence of his +guilt.</p> +<p>Mr. Ingersoll. No, sir; and no man has a right to say that +because he did deny it is evidence of his innocence.</p> +<p>The Court. It is not evidence either way.</p> +<p>Mr. Ingersoll. It is not evidence either way, and if I am +charged with a crime and I make a written statement to the +Government of my entire connection with that thing, and they go on +and examine it for one year and finally finish the trial without +showing that that statement was incorrect, it is a moral +demonstration that my statement agreed with the testimony.</p> +<p>The Court. On the principle, I suppose, of an account rendered +and no objection made?</p> +<p>Mr. Ingersoll. Good. That is a good idea.</p> +<p>The Court. I do not see anything in that.</p> +<p>Mr. Ingersoll. I see a great deal in it, and it is a question +whether the jury can see anything in it.</p> +<p>The Court. It is a question whether the Court +too——</p> +<p>Mr. Ingersoll. [Interposing.] Very well.</p> +<p>The Court. [Continuing.] Whether the Court is going to allow an +argument to be based upon a mere vacuum—wind, nothing.</p> +<p>Mr. Ingersoll. That would seem to be stealing the foundation of +this case. [Laughter, and cries of "Silence" from the bailiffs.] We +will consider the argument made to the Court, and not to the +jury.</p> +<p>The next question, then, is what is the <i>corpus delicti</i>; +that is, in a case of conspiracy? I do not believe the combination +to be the corpus delicti—the mere association. It may be the +corpus, but it is not the delicti, and under the law there must not +only be a conspiracy, as I understand it, but also an overt act +done by one of the conspirators to accomplish the object of the +conspiracy. So that the conspiracy with the fraudulent purpose and +the overt act constitute the corpus delicti. Now, I read from Best +on Presumptions, page 279:</p> +<p>"The corpus delicti, the body of an offence, is the fact of its +actually having been committed."</p> +<p>The dead body in a murder case is not the corpus delicti. It is +the corpse and nothing more. It must be followed by evidence that +murder was committed.</p> +<p>"The corpus delicti is the body, substance or foundation of the +offence. It is the substantial and fundamental fact of its having +been committed."</p> +<p>1 Haggard, 105, opinion by Lord Stowell.</p> +<p>I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It +seems that the defendants in this case were commissioners of +charities of the county of Kings, and they were indicted for +conspiring together to buy supplies contrary to law and without +duly advertising. Their defence was that they were not aware that +such a law existed; that they were ignorant of the law. The court +below thought that made no difference. The court above said before +they could be guilty of this crime there must be the intention to +commit the crime, and this language is used:</p> +<p>"The agreement must have been entered into with an evil purpose, +as distinguished from a purpose simply to do the act prohibited in +ignorance of the prohibition. This is implied in the meaning of the +word conspiracy. Mere concert is not conspiracy."</p> +<p>So combination is not conspiracy; partnership is not conspiracy; +neither is it the corpus delicti of conspiracy. There must be the +evil intent; there must be the wicked conspiracy not only, but +there must be one at least overt act done in pursuance of it before +the corpus delicti can be established.</p> +<p>"The actual criminal intention belongs to the definition of the +offence and must be shown to justify a conviction for conspiracy. +The offence originally consisted in a combination to convict an +innocent person by perversion of the law. It has since been greatly +extended, but I am of opinion that proof that the defendants agreed +to do an act prohibited by statute, followed by overt acts in +furtherance of the agreed purpose, did not conclusively establish +that they were guilty of the crime of conspiracy."</p> +<p>It would be hard to find a stronger case, in my judgment, than +that. Although they agreed to violate a statute—they agreed +to buy supplies without complying with the statute by +advertising—they claimed they were in ignorance of it, and +the question was whether they were guilty of conspiracy, having no +intent to do an illegal act, and the court of appeals decided that +that verdict could not stand.</p> +<p>The Court. Because the court below had instructed the jury that +whether what they did was done in ignorance or with knowledge it +made no difference.</p> +<p>Mr. Ingersoll. Certainly; it made no difference. Everybody is +supposed to know the law.</p> +<p>Now, the next point is, and great weight has been put upon it, +gentlemen, that concurrence of action establishes conspiracy; that +if one does a part and another another part and finally the +culmination comes, that is absolute evidence, or in other words, an +inference. Admitting, now, that they were perfectly honest, if any +of these parties made a bid, that bid had to be accepted by the +Government. They had to act together. The department and the man +had to act together to have the bid accepted. The department and +the man had to act together to make the contract. The department +and the man had to act together to get the pay, and no matter how +perfectly honest the transaction was they had to act together from +the first step to the payment of the last dollar.</p> +<p>Now, in a business where they do have to act together, where one +necessarily does one thing, and the other necessarily does another, +the fact that that happens does not even tend to prove that there +is any fraud. Upon this concurrence of action I refer to the case +of Metcalfe against O'Connor and wife, in Little's Select Cases, +497. One of the men confessed that a large party went to the house +where there was a disturbance and where they tried to take by force +a boy from the custody of a man and woman. Now, the fact that these +men did go the house, the fact that they were there at the time +this happened, and the fact that one of the conspirators or one of +the trespassers had confessed that he went there and that the other +went with him for that purpose, the court decides that you cannot +infer the purpose of these men from the statement of the other; +neither can you infer it from the fact that they were there. You +must find out for what purpose they were there by ascertaining what +they did and when they were there, and that concurrence in actions +shows nothing.</p> +<p>The Court. Did you not say that the decision there was that the +conspiracy might be inferred from the combination to do the +act?</p> +<p>Mr. Ingersoll. I will just read it and then there will be no +guessing about it:</p> +<p>"This is a writ of error prosecuted by the defendants to a +judgment for the plaintiffs in an action of trespass for an assault +and battery alleged to have been committed upon the plaintiff Ann, +the wife of the other plaintiff.</p> +<p>"We are of the opinion that the circuit court erred in refusing +to instruct the jury, at the instance of the defendants, to find +for all of them, except the defendant Metcalfe. He is the only one +of the defendants proven to have touched the defendant Ann, and +against the other defendants there is no evidence conducing in the +slightest degree to prove them guilty of committing any assault or +battery upon her, or of any intention to do so.</p> +<p>"It is true that it was proved that the other defendants +confessed that they were at the house of Connor when the assault +and battery charged is alleged to have been committed, and it was +also proved that Metcalfe confessed that he and the other +defendants had gone there for the purpose of taking from Connor by +force an idiot boy whom he had in his custody. But the +circumstances of the other defendants being at Connor's house, +there is no evidence they were there for any unlawful purpose; nor +can it of itself be sufficient to render them responsible for any +act done by Metcalfe in which they did not participate; and the +confessions of Metcalfe are certainly not legitimate evidence +against the others to prove the unlawful purpose with which they +went to Connor's, and thereby to charge them with the consequences +of his act."</p> +<p>Now, to all appearances, they went there together; to all +appearances, they went there for the one purpose, and Metcalfe, the +man who really did the mischief, confessed that they all went there +for the one purpose, but the court held that that was not +sufficient.</p> +<p>"Where several agree or conspire to commit a trespass, or for +any other unlawful purpose, they will, no doubt, all be liable for +the act of any one of them done in execution of the unlawful +purpose; and when the agreement or conspiracy is first proved by +other evidence, the confession of one of them will be admissible +evidence against the others. But it is well settled that the +confessions of one person cannot be admitted against the others to +prove that they had conspired with him for an unlawful +purpose."</p> +<p>Now, the next evidence that I wish to allude to, gentlemen, is +the evidence of Mr. Walsh, and I will only say a few words, because +it has been examined and it has been ground to powder. Everything +in this world is true in proportion that it agrees with human +experience; and you can safely say that everything is false or the +probability is that it is false in proportion that it is not in +accordance with human experience. Other things being equal, we act +substantially alike.</p> +<p>Now, when anything really happens everything else that ever +happened will fit it. You take a spar crystal, I do not care how +far north you get it, and another spar crystal, no matter how far +south you get it, and put them together and they will exactly fit +each other—exactly. The slope is precisely the same. And it +is so with facts. Every fact in this world will fit every other +fact—just exactly. Not a hair's difference. But a lie will +not fit anything but another lie made for the purpose—never. +It never did. And finally, there has to come a place where this +lie, or the lie made for the sake of it, has to join some truth, +and there is a bad joint always. And that is the only way to +examine testimony. Is it natural? Does it accord with what we know? +Does it accord with our experience?</p> +<p>Now, take the testimony of Mr. Walsh, and I find some +improbabilities in it. Just let me read you a few:</p> +<p>1. Bankers and brokers do not, as a rule, loan money without +taking at least a note. That is my experience. And the poorer this +broker is, the less money he has, the more security he wants. He +not only wants an indorser but he would like to have a mortgage on +your life, liberty, and pursuit of happiness. That is the first +improbability.</p> +<p>2. Bankers and brokers do not, as a rule, take notes that bear +no interest, or in which the interest is not stated. People who +live on interest find it always to their interest to have the +interest mentioned—always. I never got a cent of a banker +that I did not pay interest, and generally in advance.</p> +<p>3. Bankers and brokers do not, as a rule, take notes payable on +demand, because such notes are not negotiable.</p> +<p>4. It is hardly probable that when a banker and broker holds the +note of another for twelve thousand dollars—the note being +unpaid—he would loan thirteen thousand five hundred dollars +more, taking another note on demand in which the rate of interest +was not stated.</p> +<p>5. It is still more improbable that the same banker and broker, +with a note for twelve thousand dollars and one for thirteen +thousand five hundred dollars, being unpaid, would loan five +thousand four hundred dollars more without taking any note or +asking any security.</p> +<p>6. When such banker and broker called upon his debtor for a +settlement, and exhibited the two notes, and thereupon his debtor +took the two notes and put them in his pocket, it is highly +improbable that the banker and broker would submit to such +treatment.</p> +<p>7. It is improbable that such banker and broker would afterwards +commence suit to recover the money, without mentioning to his +attorney, in fact, that the notes had been taken away from him.</p> +<p>8. It is also improbable that the banker and broker would +commence another suit for the same subject-matter and still keep +the fact that the notes had been taken from him by violence, a +secret from his attorney.</p> +<p>9. If Mr. Brady took the notes by force, it is improbable that +he would immediately put himself in the power of the man he had +robbed, by stating to him that he, Brady, was in the habit of +taking bribes.</p> +<p>10. It is impossible that Mr. Brady could, in fact, have done +this, which amounted to saying this: "I have taken twenty-five +thousand five hundred dollars from you; of course, you are my +enemy; of course, you will endeavor to be revenged, and I now point +out the way in which you can have your revenge. I am Second +Assistant Postmaster-General; I award contracts, increases, and +expedition, and upon these I receive twenty per cent, as a bribe. I +am a bribe-taker; I am a thief; make the most of it. I give you +these tacts in order that I may put a weapon in your hands with +which you can obtain your revenge."</p> +<p>There are also other improbabilities connected with this +testimony.</p> +<p>If Mr. Brady was receiving twenty per cent, of all increases and +expeditions, amounting to hundreds of thousands of dollars per +annum, it is not easy to see why he would be borrowing money from +Mr. Walsh.</p> +<p>Now, if that story is true, boil it down and it is this, because +if he got this twenty per cent, from everybody he had oceans of +money—boil it all down and it is this: A rich man borrows +without necessity and a poor banker loans without security. These +twin improbabilities would breed suspicion in credulity itself. No +man ever believed that story, no man ever will. There is something +wrong about it somewhere, unnatural, improbable, and it is for you +to say, gentlemen, whether it is true or not, not for me. What is +the effect of that testimony? So far as my clients are concerned it +is admitted, I believe, by the prosecution—it was so stated, +I believe, by his Honor from the bench—that it could not by +any possibility affect any defendant except Mr. Brady, and the +question now is, can it even affect him? I call the attention of +the Court to 40th N. Y., page 228. I give the page from which I +read:</p> +<p>"To make such admissions or declarations competent evidence, it +must stand as a fact in the cause, admitted or proved, that the +assignor or assignees were in a conspiracy to defraud the +creditors. If that fact exist, then the acts and declarations of +either, made in execution of the common purpose, and in aid of its +fulfillment, are competent against either of them. The principle of +its admissibility assumes that fact."</p> +<p>That the conspiracy has been established.</p> +<p>"In case of conspiracy, where the combination is proved, the +acts and declarations of the conspirators are not received as +evidence of that fact, but to show what was done, the means +employed, the particular design in respect to the parties to be +affected or wronged, and generally those details which, assuming +the combination and the illegal purpose, unfold its extent, scope, +and influence either upon the public or the individuals who suffer +from the wrong, or show the execution of the illegal design. But +when the issue is simply and only, was there a conspiracy to +defraud, these declarations do not become evidence to establish +it."</p> +<p>"So far then, as the admission of the evidence in this case, of +declarations, subsequent to the assignment, is sought to be +sustained as evidence of the common fraud, on the ground of +conspiracy, the argument wholly fails. A conspiracy cannot be +proved against three by evidence that one admitted it, nor against +assignees by proof that the assignor admitted it; it is a fact that +must be proved by evidence, the competency of which does not depend +upon an assumption that it exists."</p> +<p>So to the same point is the case of Cowles against Coe, 21st +Connecticut, 220. I will read that portion of the syllabus that +conveys the idea:</p> +<p>"To prove the alleged conspiracy between the defendant and G., +the plaintiff offered the deposition of R., stating declarations +made by G. to R., while G. was engaged in purchasing goods of him, +on credit, and relative to G.'s responsibility and means of +obtaining money through the defendant's aid; these declarations +were objected to, not on the ground that the conspiracy had not +been sufficiently proved, but because the defendant was not present +when they were made; it was held that they were admissible, within +the rule regarding declarations made by a conspirator in +furtherance of the common object."</p> +<p>Now, let us see what the court says about it:</p> +<p>"The remaining question is, whether the declarations of Gale to +Edmund Curtiss and William Ives were properly received. These +declarations were not offered as in any way tending to prove the +combination claimed. The motion shows that they were offered and +received after the plaintiff's evidence on that subject had been +introduced. Had they been admitted for that purpose, or if, under +the circumstances, they could have had any influence with the jury +on that point, we should feel bound to advise a new trial on this +account."</p> +<p>All that I have said in respect to Walsh applies to what is +known or what is called the confession of Rerdell. It was admitted +by the prosecution that not one word said by him could bind any +other defendant in the case. But, gentlemen, is there enough even +to bind him? Did he confess that he was guilty of the conspiracy +set forth in this indictment? And I want to make one other point. +In this case there must be not only a conspiracy, but an overt act, +and no man can confess himself into it without confessing that he +was a conspirator, and that he knew that an overt act was to be +done; because it takes that conspiracy and the overt act to 'make +the offence. What overt act did Rerdell confess that he was guilty +of—what overt act charged in this indictment? One. Filing a +subcontract; and by no earthly method, by no earthly reasoning can +you come to the conclusion that that could carry it into +conspiracy. He must have confessed that he was guilty according to +the scheme, according to the indictment set forth, and in no other +way. That indictment says that the money was to be divided, that it +was for the mutual benefit of certain persons. Unless that has been +substantiated this case falls. According to the case of the King +against Pomall the scheme of the indictment must be established, +otherwise the case goes. In that case they charged it was one way, +and they proved it was that way, and one of the defendants did not +understand it that way and he was acquitted. Now, suppose they had +not proved the scheme as they charged it, then all would have been +acquitted, and unless the jury believe beyond a reasonable doubt, +from the evidence that the scheme set forth in the indictment here +was the scheme, then they must find everybody not guilty. There is +no other way.</p> +<p>What is the next argument? The next argument is extravagance. +What is extravagance? If I pay more for a thing than it is worth +that is extravagance. If I buy a thing that I do not want, that is +extravagance, and if I do this knowing it to be wrong, if I do this +understanding that I am to have a part of the price, that is +bribery, that is corruption, that is rascality. Nobody disputes +that. How do you know that a thing is extravagant unless you know +the price of it? For instance, an army officer is charged with +extravagance in buying corn upon the plains at five dollars a +bushel. How do you prove it is extravagance? You must prove that he +could have obtained it for less or that there was a cheaper +substitute that he should have obtained. How are you going to prove +that too much was paid for carrying the mail upon these routes? +Only by showing that it could have been carried for less. What +witness was before this jury fixing the price? How are we to +establish the fact that it was extravagance? We must show that it +could have been obtained for less money. What witness came here and +swore that he would carry it for less? And would it be fair to have +the entire case decided upon one route when it is in evidence that +my clients had thirty per cent, of one hundred and twenty-six +routes? Would it be fair to decide the question whether they had +made or lost money on one route? Your experience tells you that +upon one route they might make a large sum of money and upon +several other routes lose largely. A man who has bid for one +hundred routes takes into view the average and says "upon some I +shall lose and upon others I shall make." How are you to find that +this was extravagance unless you know what it could have been done +for? They may say that they subcontracted some of the routes for +much less. Yes; but what did they do with the rest of them? I might +take a contract to build a dozen houses in this city, and on the +first house make ten thousand dollars clear, and on the balance I +might lose twenty-five thousand dollars. You have a right to take +these things and to average them. When a man takes a contract he +takes into consideration the chances that he must run in that new +and wild country. It takes work to carry this mail. You ought to be +there sometimes in the winter when the wind comes down with an +unbroken sweep of three or four thousand miles, and then tell me +what you think it is worth to carry the mail. All these things must +be taken into consideration. Another thing: You must remember that +every one of these routes was established by Congress. Congress +first said, "Here shall be a route; here the mail shall be +carried." It was the business then, I believe, of the First +Assistant Postmaster-General to name the offices, and the Second +Assistant to put on the service. Take that into consideration. +Every one of these routes was established by Congress. Take another +thing into consideration: That the increase of service and +expedition was asked for, petitioned for, begged for, and urged by +the members of both houses of Congress, and according to that book, +which I believe is in evidence, a majority of both houses of +Congress asked, recommended, and urged increase of service and +expedition upon some of the nineteen routes in this indictment.</p> +<p>The Court. What evidence do you refer to?</p> +<p>Mr. Ingersoll. I refer to the Star Route investigation in +Congress.</p> +<p>The Court. That record is not in evidence.</p> +<p>Mr. Ingersoll. I thought that was in evidence.</p> +<p>The Court. No, sir.</p> +<p>Mr. Ingersoll. It was used as if it was in evidence. I saw +people reading from it, and supposed it was in evidence.</p> +<p>The Court. It is not in evidence.</p> +<p>Mr. Ingersoll. Well, we will leave that out. Now, upon these +nineteen routes—this is in evidence—increase and +expedition of service were recommended by such Senators as Booth, +Farley, Slater, Grover, Chaffee, Chilcott, Saunders, and by the +present Secretary of the Interior, Henry M. Teller, and by such +members of Congress as Whiteaker, Page, Luttrell, Pacheco, Berry, +Belford, Bingham, chairman of the postoffice committee, by Stevens +of Arizona, a delegate, and by Maginnis of Montana, and Kidder of +Dakota, by Generals Sherman, Terry, Miles, Hatch and Wilcox In +addition to these, recommendations were made and read by judges of +courts, by district attorneys, by governors of Territories, by +governors of States, and by members of State Legislatures, by +colonels, by majors, by captains, and by hundreds and hundreds of +good, reputable, honest citizens. They were the ones to decide as a +matter of fact whether this increase was or was not necessary.</p> +<p>I believe in carrying the mails. I believe in the diffusion of +intelligence. I believe the men in Colorado or Wyoming, or any +other Territory, that are engaged in digging gold or silver from +the earth, or any other pursuits, have just as much right, in the +language of Henry M. Teller, to their mail as any gentleman has to +his in the city of New York. We are a nation that believes in +intelligence.</p> +<p>We believe in daily mail. That is about the only blessing we get +from the General Government, excepting the privilege of paying +taxes. Free mail, substantially free, is a blessing.</p> +<p>Now, there is another argument which has been used: +Productiveness; but that has been so perfectly answered that I +allude to it only for one purpose. How would the attorneys for the +Government in this case like to have their fees settled upon that +basis? Productiveness. Is it possible that this Government cannot +afford to carry the mail? Is it possible that the pioneer can get +beyond the Government? Is is possible that we are not willing to +carry letters and papers to the men that make new Territories and +new States and put new stars upon our flag? I have heard all I wish +on the subject of productiveness.</p> +<p>Now, gentlemen, that is all the evidence there is in this case, +that I have heard. What kind of evidence must we have in a +conspiracy case? You have been told during this trial that it is +very hard to get evidence in a conspiracy case, and therefore you +must be economical enough to put up with a little. They tell you +that this is a very peculiar offence, and people are very secret +about it. Well, they are secret about most offences. Very few +people steal in public. Very few commit offences who expect to be +discovered. I know of no difference between this offence and any +other. You have got to prove it. No matter how hard it is to prove +you must prove it. It is harder to convict a man without testimony, +or should be, than to produce testimony to prove it if he is +guilty. All these crimes, of course, are committed in secret. That +is always the way. But you must prove them. There is no pretence +here that there is any direct evidence, any evidence of a meeting, +any evidence of agreement, any evidence of an understanding. It is +all circumstantial. I lay down these two propositions:</p> +<p>"The hypothesis of guilt must flow naturally from the facts +proved, and be consistent, not with some of the facts, not with a +majority of the facts, but with every fact."</p> +<p>Let me read that again:</p> +<p>"<i>The hypothesis of guilt must flow naturally from the facts +proved, and must be consistent with them; not some of them, not the +majority of them, but all of them</i>."</p> +<p>The second proposition is:</p> +<p>"The evidence must be such as to exclude every single reasonable +hypothesis except that of the guilt of the defendant. In other +words, all the facts proved must be consistent with and point to +the guilt of the defendants not only, but every fact must be +inconsistent with their innocence."</p> +<p>That is the law, and has been since man spoke Anglo-Saxon. Let +me read you that last proposition again. I like to read it:</p> +<p>"The evidence must be such as to exclude every reasonable +hypothesis except that of the guilt of the defendants. In other +words, all the facts proved must be consistent with and point to +the guilt of the defendants not only, but they must be +inconsistent, and every fact must be inconsistent with their +innocence."</p> +<p>Now, just apply that law to the case of John W. Dorsey. Apply +that law to the case of Stephen W. Dorsey. Let me read further. I +read now from 1 Bishop's Criminal Procedure, paragraph 1077.</p> +<p>"It matters not how clearly the circumstances point to guilt, +still, if they are reasonably explainable on a theory which +excludes guilt, they cannot satisfy the jury beyond reasonable +doubt that the defendants are guilty, and hence they will be +insufficient."</p> +<p>Just apply that to the case of Stephen W. Dorsey and John W. +Dorsey. I would be willing that this jury should render a verdict +with that changed. Change it. You are to find guilty if you have +the slightest doubt of innocence. Even under that rule you could +not find a verdict of guilty against John W. or Stephen W. Dorsey. +If the rule were that you are to find guilty if you have a doubt as +to innocence you could not do it; how much less when the rule is +that you must have no doubt as to their guilt. The proposition is +preposterous and I will not insult your intelligence by arguing it +any further.</p> +<p>Now, then, there is another thing I want to keep before you. +When a man has a little suspicion in his mind he tortures +everything; he tortures the most innocent actions into the evidence +of crime. Suspicion is a kind of intellectual dye that colors every +thought that comes in contact with it. I remember I once had a +conversation with Surgeon-General Hammond, in which he went on to +state that he thought many people were confined in asylums, charged +with insanity, who were perfectly sane. I asked him how he +accounted for it. Said he, "Physicians are sent for to examine the +man, and they are told before they get to him that he is crazy; +therefore, the moment they look upon him they are hunting for +insane acts and not sane acts; they are looking not to see how +naturally he acts, but how unnaturally he acts." They are poisoned +with the suspicion that he is insane, and if he coughs twice, or if +he gets up and walks about uneasily—his mind is a little +unsettled; something wrong! If he suddenly gets angry—sure +thing! When a man believes himself to be or knows himself to be +sane, and is charged with insanity, the very warmth, the very heat +of his denial will convince thousands of people that he is insane. +He suddenly finds himself insecure, and the very insecurity that he +feels makes him act strangely. He finds in a moment that +explanation only complicates. He finds that his denial is +worthless; that his friends are suspicious, and that under pretence +of his own good he is to be seized and incarcerated. Many a man as +sane as you or I has under such circumstances gone to madness. It +is a hard thing to explain. The more you talk about it the more +outsiders having a suspicion are convinced that you are insane. It +is much the same way when a man is charged with crime. It is +heralded through all the papers, "this man is a robber and a +thief." Why do they put it in the papers? Put anything good in a +paper about Mr. Smith, and Mr. Smith is the only man who will buy +it. Put in something bad about Mr. Smith and they will have to run +the press nights to supply his neighbors with copies. The bad +sells. The good does not. Then you must remember another thing: +That these papers are large; some of them several hundred columns, +for all I know—sixty or a hundred. Just imagine the pains it +would take and the money it would cost to get facts enough to fill +a paper like that. Economy will not permit of it. They publish what +they imagine they can sell. As a rule, people would rather +heaf-something bad than something good. It is a splendid +certificate to our race that rascality is still considered news. If +they only put in honest actions as news it would be a certificate +that honesty was rare; but as long as they publish the bad as news +it is a certificate that the majority of mankind is still good.</p> +<p>Now, to be charged with a crime and to be suddenly deserted by +your friends, and to know that you are absolutely innocent, is +almost enough to drive the sanest man mad. I want you to think what +these defendants have suffered in these long months. If the men who +started this prosecution, if the men who originally poisoned the +press of the country, feel that they have been rewarded simply +because innocent men have suffered agony, let them so feel. I do +not envy them their feelings.</p> +<p>There is another thing, gentlemen: The prosecution have +endeavored to terrorize this jury. The effort has been deliberately +made to terrorize you and every one of you. It was plainly +intimated by Mr. Ker that this jury had been touched, and that if +you failed to convict, you would be suspected of having been +bribed. That was an effort to terrorize you, and the foundation of +that argument was a belief in your moral cowardice. No man would +have made it to you unless he believed at heart you were cowards. +What does that argument mean? I cannot say whether you will be +suspected or not; but, in my opinion, a juror in the discharge of +his duty has no right to think of any consequence personal to +himself. That is the beauty of doing right. You need not think of +anything else. The future will take care of itself. I do not agree +with the suggestion that it is better that you should be applauded +for a crime than blamed for a virtue. Suppose you should gain the +applause of the whole United States by giving a false verdict; how +would the echo of that applause strike your heart? I do not believe +that it is wiser to preserve the appearance of being honest than to +be honest with the appearance against you. I would rather be +absolutely honest, and have everybody in the world think I was +dishonest, than to be dishonest and have the whole world believe in +my honesty. You see you have got to stay with yourself all the +time. You have to be your own company, and to be compelled to know +that your company is dishonest, that your company is infamous, is +not pleasant. I would rather know I was honest and have the whole +world put upon the forehead of my reputation the brand of +rascality.</p> +<p>You were also told that the people generally have anticipated +your verdict.</p> +<p>That is simply an effort to terrorize you, so that you will say, +"If the people think that way, of course we must think that way. No +matter about the evidence. No matter if we have sworn to do +justice. We will all try and be popular." You were told in effect +that the people were expecting a conviction, and the only inference +is that you ought not to disappoint the public, and that it is your +duty to piece and patch the testimony and violate your oath, rather +than to disappoint the general expectation. Mr. Merrick told you +you were trying these defendants, but that the people of the whole +country were trying you. What was the object of that statement? +Simply to terrorize this jury. What was the basis of that +statement? Why, that not one of you have got the pluck to do right. +It was not a compliment, gentlemen. It was intended for one, no +doubt, but when you see where it was born, it becomes an insult. I +do not believe you are going to care what the people say, or +whether the people expect a verdict of guilty, or not. You have +been told that they do. I might with equal propriety tell you that +they do not. I might with equal propriety say there is not a man in +this court-house who expects a verdict of guilty. With equal +propriety I might say, and will say, that there is not a man on +this jury who expects there will be a verdict of guilty. But what +has that to do with us?</p> +<p>Try this case according to the evidence; and if you know that +every man, woman, and child in the United States want an acquittal, +and you are satisfied of the guilt of the defendants, it is your +duty to find them guilty.</p> +<p>If I were on the jury I would, in the language of the greatest +man that ever trod this earth—</p> +<pre> + Strip myself to death, as to a bed + That longing have been sick for, before I would give a false verdict. +</pre> +<p>Again, Mr. Merrick said, after having stated in effect that a +majority of the people were convinced of the guilt of the +defendants, that the majority of the men of the United States do +not often think wrong. What was the object? To terrorize you. That +is all. This verdict is to be carried by universal suffrage; you +are to let the men who are not on oath decide for the men who are; +to let the men who have not heard the testimony give the verdict of +the men who have heard the testimony. What else? Again the same +gentleman said:</p> +<p>"There is to be a verdict, a verdict of the people for or +against us." What is the object? To frighten you. Let the people +have their verdict; you must have yours. If your verdict is founded +on the evidence it will be upheld by every honest man in the world +who knows the evidence. You need certainly to place very little +value upon the opinion of those who do not know the evidence. Mr. +Merrick also suggested—I will hardly put it that way—he +was brave enough to hope that you have not been bribed. Brave +enough to hope that! All this, gentlemen, is done simply for the +purpose of terrorizing you. I tell you to find a verdict according +to the evidence, no matter whom it hits, no matter whom it +destroys, no matter whom it kills. Save your own consciences alive. +Your verdict must rest on the evidence that has been introduced, +and all else must be thrown aside, disregarded, like forgotten +dreams. All that you have read, all the press has printed, must +find no lodgment in your brains. You must regard them no more than +you would the noises of animals made in sleep. You must stand by +the testimony. You must stand by the law that the Court gives you. +That is all we ask. These articles in the newspapers were not +printed in the hope that justice might be done. They were printed +in the hope that you may be influenced to disregard the evidence, +in the hope that finally slander might be justified by your +verdict. Gentlemen, you ought to remember that in this case you are +absolutely supreme. You have nothing to do with the supposed +desires of any men, or the supposed desires of any department, or +the supposed desires of any Government, or the supposed desires of +any President, or the supposed desires of the public. You have +nothing to do with those things. You have to do only with the +evidence. Here all power is powerless except your own. Position is +naught. If the defendants are guilty, and the evidence convinces +you that they are, your verdict must be in accordance with the +evidence. You have no right to take into consideration the +consequences. When you are asked to find a verdict contrary to the +evidence, when you are asked to piece out the testimony with your +suspicions, then you are bound to take into consideration all the +consequences. When appeals are made to your prejudice and to your +fears, then the consequences should rise like mountains before you. +Then you should think of the lives you are asked to wreck, of the +homes your verdict would darken, of the hearts it would desolate, +of the cheeks it would wet with tears, and of the reputations it +would blast and blacken, of the wives it would worse than widow, +and of the children it would more than orphan. When you are asked +to find a false verdict think of these consesequences. When you are +asked to please the public think of these consequences. When you +are asked to please the press think of these consequences. When you +are asked to act from fear, hatred, prejudice, malice, or cowardice +think then of these consequences. But whenever you do right, +consequences are nothing to you, because you are not responsible +for them. Whoever does right clothes himself in a suit of armor +that the arrows of consequences can never penetrate. When you do +wrong you are responsible for all the consequences, to the last +sigh and the last tear. If you do right nature is responsible. If +you do wrong you are responsible.</p> +<p>You were told, too, by Mr. Merrick that you should have no +sympathy; that you should be like icicles; that you should be +godlike. A cool conception of deity! In that connection this +heartless language, as it appears to me, was used:</p> +<p>"Man when he undertakes to judge his brother-man undertakes to +perform the highest duty given to humanity."</p> +<p>Good!</p> +<p>He should perform that duty without fear, without prejudice, +without hatred, and without malice. He should perform that duty +honestly, grandly, nobly.</p> +<p>I read on:</p> +<p>"Inclosed within the jury-box or on the bench he is separated +from the great mass of mankind—"</p> +<p>Then you should not pay any attention to the opinion of the +public. If you are separated you should not be dominated by the +press. If you are separated you should not be disturbed by the +desires of anybody. But he continues:</p> +<pre> + "and sentiments of brotherhood die away." +</pre> +<p>About that time you would be nice men:</p> +<p>"Standing above humanity and nearest God he looks down upon his +fellow, and judges them without any reference to the sorrow his +judgment may bring."</p> +<p>That is not my doctrine. The higher you get in the scale of +being, the grander, the nobler, and the tenderer you will become. +Kindness is always an evidence of greatness. Malice is the property +of small souls. Whoever allows the feeling of brotherhood to die in +his heart becomes a wild beast. You know it and so do I:</p> +<pre> + "Not the king's crown, nor the deputed sword, + The marshal's truncheon, nor the judge's robe, + Become them with one-half so good a grace as mercy does." +</pre> +<p>And yet the only mercy we ask in this case, gentlemen, is the +mercy of an honest verdict. That is all.</p> +<p>I appeal to you for my clients, because the evidence shows that +they are honest men. I appeal to you for my client, Stephen W. +Dorsey, because the evidence shows that he is a man, a man with an +intellectual horizon and a mental sky, a man of genius, generous, +and honest. And yet this prosecution, this Government, these +attorneys representing the majesty of the Republic, representing +the only real Republic that ever existed, have asked you, gentlemen +of the jury, not only to violate the law of the land, they have +asked you to violate the law of nature. They have maligned mercy. +They have laughed at mercy. They have trampled upon the holiest +human ties, and they have even made light of the fact that a wife +in this trial has sat by her husband's side. Think of it.</p> +<p>There is a painting in the Louvre, a painting of desolation, of +despair and love. It represents the night of the crucifixion. The +world is represented in shadow. The stars are dead, and yet in the +darkness is seen a kneeling form. It is Mary Magdalene with loving +lips and hands pressed against the bleeding feet of Christ. The +skies were never dark enough nor starless enough; the storm was +never fierce enough nor wild enough, the quick bolts of heaven were +never lurid enough, and arrows of slander never flew thick enough +to drive a noble woman from her husband's side. And so it is in all +of human speech, the <i>holiest word is wife</i>.</p> +<p>And now, gentlemen, I have examined this testimony, I have +examined every charge in the indictment against my clients not +only, but every charge made outside of the indictment. I have shown +you that the indictment is one thing and the evidence another. I +have shown you that not one single charge has been substantiated +against John W. Dorsey. I have demonstrated to you that not one +solitary charge has been established against Stephen W. +Dorsey—not one. I believe that I have shown to you that there +is no foundation for a verdict of guilty against any defendant in +this case.</p> +<p>I have spoken now, gentlemen, the last words that will be spoken +in public for my clients, the last words that will be spoken in +public for any of these defendants, the last words that will be +heard in their favor until I hear from the lips of this foreman two +eloquent words—<i>Not Guilty</i>. And now thanking the Court +for many acts of personal kindness, and you, gentlemen of the jury, +for your almost infinite patience, I leave my clients with all they +have and with all they love and with all who love them in your +hands.</p> +<a name="link0004" id="link0004"><!-- H2 anchor --></a> +<div style="height: 4em;"><br /> +<br /> +<br /> +<br /></div> +<h2>OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE +TRIAL.</h2> +<p>Washington, D. C., Dec. 21, 1882.</p> +<p>MAY it please the Court and gentlemen of the jury: We consider +that the right to be tried by jury is the right preservative of all +other rights. The right to be tried by our peers, by men taken from +the body of the county, by men whose minds have not been saturated +with prejudice, by men who have no hatred, no malice to gratify, no +revenge to wreak, no debts to pay, we consider an inestimable +right, regarding the jury as the bulwark of civil liberty. Take +that right from the defendants in any case and they are left at the +mercy of power, at the mercy of prejudice. The experience of +thousands of years, the experience of the English-speaking people, +of the Anglo-Saxon people, the only people now upon the globe with +a genius for law, is that the jury is a breastwork behind which an +honest man is safe from the attack of an entire nation. We esteem +it, I say, a privilege, a great and invaluable right, that we have +you twelve men to stand between us and the prejudice of the hour. +We believe that you will hear this case without passion, without +hatred, and that you will decide it absolutely in accordance with +the law and with the evidence. This is the tribunal absolutely +supreme. In a case of this character, gentlemen, you are the judges +of what is the law; you are the judges of what are the facts; you +are the absolute judges of the worth of testimony; and you have not +only the right, but it is your duty to utterly disregard the +testimony of any man that you do not believe to be true. You, I +say, are the exclusive judges, and for that reason we ask, we beg +you, to hear all this testimony, to pay heed to every word, and +then decide, not as somebody else desires, but as your judgment +dictates, and as your conscience demands. Here before this jury all +letters of Attorneys-General, all desires of Presidents, all +popular clamor, all prejudice, no matter from what source, is +turned simply to dust and ashes, and you are to regard them all +simply as though they never had been.</p> +<p>There is one other thing. Some people are naturally suspicious. +It is an infinitely mean trait in human nature. Suspicion is only +another form of cowardice. The man who suspects constantly suspects +because he is afraid. Whenever you find a man with a free, frank, +generous, brave nature, you will find that man without suspicion. +Suspicion is the soil in which prejudice grows, and prejudice is +the upas tree in whose shade reason fails and justice dies. And +allow me to say that no amount of suspicion amounts to evidence. No +case is to be tried upon suspicion. No case is to be tried upon +suspicious facts. No case is to be tried on scraps, and patches, +and shreds, and ravelings. There must be evidence; there must be +absolute, solid testimony. A case is tried according to the rocks +of fact and not according to the clouds and fogs of suspicion. No +juror has a right to make a decision until he feels his feet firmly +fixed upon the bed-rock of truth.</p> +<p>So I say, gentlemen, that we are glad of the opportunity to make +a statement of this case to you, and to tell you exactly the manner +in which my clients became interested in what is known as the +star-route service. You have to be guided in this case by the +indictment. That is the star and compass of this trial. You cannot +go outside of it. The evidence must be confined to the charges +contained in that instrument. If you find us guilty of a +conspiracy, it must be such a conspiracy as is set forth in that +indictment. That indictment is the charter of your authority, and +you have no right to find us guilty of anything in the world except +that which is therein charged.</p> +<p>Now, let me give you an exceedingly brief statement of what we +are here for. It is charged in that indictment that all these +defendants, including one who has been discharged by a jury, who +has been found not guilty, Mr. Turner, including another who is +dead, Mr. Peck, conspired together for the purpose of defrauding +the United States, and we are met at the threshold with the +statement that conspiracy is very hard to prove. It is like any +other offence, gentlemen. They say conspirators generally meet in +secret. My reply to that is that people generally steal in secret, +and the fact that they stole in secret was never deemed an excuse +for not proving the offence before they were found guilty. You can +see that this is precisely like any other offence in the world. Men +when they commit crimes endeavor to get away from the public eye. +They are in love with darkness. They do not carry torches in front +of them. And it is so in every crime. But whether conspiracy is +difficult to prove or not, it must be established before you can +find the defendants guilty. That is a difficulty that the +Government must overcome by testimony. The jury must not endeavor +to overcome it by a verdict. And I say here to-day that the same +rule of evidence applies to this case as to any other, and you must +be satisfied by the testimony the Government will offer that these +men conspired together; that they entered into an arrangement +wherein the part of each was marked out, and that that arrangement +was contrary to law; and that the object of that arrangement was to +defraud the Government of the United States.</p> +<p>This indictment is kind enough to tell us the means that were +employed to carry out that conspiracy. How did they find these +means, gentlemen? They must have had some evidence on which they +relied. If they had evidence enough to convince them, they must +introduce that evidence here, and if that evidence establishes +beyond a reasonable doubt that these men conspired, then you will +find them guilty; otherwise not. The difficulty of establishing it +is something with which you have nothing to do. How did they +conspire? What were the means they had agreed to use? Let us see. +Thomas J. Brady was the Second Assistant Postmaster-General. The +Postmaster-General was not included in the scheme, consequently +they must deceive him. The Sixth Auditor was not included in this +conspiracy, and as by virtue of his office it was his duty to go +over all of these accounts and pass upon the legality of each item, +it was necessary to deceive him. According to the indictment Mr. +Turner was a clerk in the department, and his part of the rascality +was, on the jackets inclosing petitions, to make false statements +in regard to the contents of the petitions inclosed. The object of +that being that when the Second Assistant Postmaster-General, Mr. +Brady, exhibited these jackets to the Postmaster-General, it being +considered that he would not have time to read the petition, he +would be misled by the false statements on the cover touching the +contents.</p> +<p>The next step was for the contractors to get up false petitions; +that is, petitions to be signed by persons who did not live along +the route upon which the mail was to be carried. These petitions +also to be forged; that is to say, the names of persons put there +by another, or the names of fictitious persons written, when in +fact no such persons existed.</p> +<p>The next thing to do was to write false and fraudulent letters; +to induce others to write such letters; the next thing, to make +false affidavits; and the next thing, to make false +orders—those to be made by Mr. Brady—and these false +orders were to have, as a false foundation, false petitions, false +letters, false communications, false affidavits, and fraudulently +written representations.</p> +<p>That is the indictment. That is the scheme said to have been +entered into by my clients with all of these defendants, and the +object being to defraud the Government of the United States. Now, +in order to establish that scheme, it would be necessary for the +Government to prove it. Not to assert it. Neither have you the +right to infer it. No man can be inferred out of his liberty. No +man can be inferred into the penitentiary. That is not the way to +deprive a man of his reputation and of liberty—by inference. +They must prove it. They must prove that the petitions were false. +They must prove that the letters were fraudulent. They must prove +that the orders rested upon those false and fraudulent petitions, +letters, and affidavits; and they must prove that Mr. Brady knew +them to be false.</p> +<p>It is also stated in this indictment that service was to be paid +for when it was not performed; that service was discontinued and a +month's extra pay allowed; that fines were imposed and afterwards +set aside because the contractors agreed to pay fifty per cent, of +such fines to General Brady. I will speak of them when I come to +them.</p> +<p>Now, there is a clear statement. What part, then, did my clients +play in this scheme? I will tell you. It is charged in the +indictment that John M. Peck was in this scheme, and, although he +is dead, whatever he did, I imagine, can be established by the +Government. A man can be found guilty, I understand, of having +entered into a conspiracy with another, although the other be dead, +and the living man can be convicted.</p> +<p>Now, it is stated in the outset that my clients never had been +engaged in carrying the mail and that is regarded as an exceedingly +suspicious circumstance. A man has got to commence some time, if he +ever goes into the business, and if this doctrine be true, the +first bid that a man ever makes is evidence that he has entered +into a conspiracy. Suppose, on the other hand, my clients have long +been engaged in this business. What would the Government counsel +then have said? They would have said, gentlemen, that they had been +engaged for years in the business. They knew all the tricks that +were played, and consequently they were the very persons to form a +conspiracy. And that is the wonderful thing about suspicion. It +changes every fact. It colors every word it reads and every paper +at which it looks; and no matter what are the facts, the moment +they are regarded with a suspicious mind they prove what the man +suspects.</p> +<p>So, then, the first charge is that we had never been in the +business, and consequently our going into the business must have +been the result of a conspiracy. Gentlemen, if the doctrine be laid +down that it is dangerous for a man to make a bid the result of +that doctrine will be to double the expenses of the Government in +carrying the mails. All that will be necessary, then, is for the +old bidders to combine. They will know that there is no danger of +any new men interfering with them, because the new men will be +immediately indicted for conspiracy and the old men will have the +field to themselves. You can see that this is infinitely absurd. +There is only one step beyond such absurdity, and that is +annihilation. No man can possess his faculties and get beyond that +absurdity, if it is evidence of conspiracy, because it is the first +thing.</p> +<p>As a matter of fact, however, John M. Peck had been engaged in +the mail business. He was engaged in the business before 1874. He +had been interested with others before that time. He was interested +in several important routes from 1874 to 1878. It was in the fall +of 1877 that he made arrangements to bid at the next letting. He +was a business man. He was not an adventurer. He was secretary at +that time of the Arkansas Central Railroad. He had been, I believe, +for two sessions a member of the Ar-kansas Legislature. He was in +good standing, solvent, and regarded as an honest man. In 1874 he +was interested in the bids and, as I said, was engaged in carrying +the mails at the time these contracts were entered into. He became +acquainted with John W. Dorsey, I believe, in 1874. When he made up +his mind to put in more bids for the letting of 1878 he went after +John W. Dorsey, and they met together in the city of New York, I +believe, in the month of September, and agreed that they would put +in some bids for the letting of 1878. Peck was acquainted with John +R. Miner and had been acquainted with him for a considerable time. +Mr. Miner wanted to go into some other business than that in which +he was then engaged, and those three men made up their minds to +bid. Was there anything criminal in that? Nothing. Any men anywhere +have the right to combine; the right to form a partnership; the +right to come together for the purpose of making proposals for +carrying the United States mails. Of course you will all admit +that. Now, that is what they did. There was nothing criminal, +nothing secret, nothing underhanded. Everything was above board, +open, and in the daylight. There is no conspiracy yet, and we will +show that.</p> +<p>John M. Peck had been troubled with a lung disease. He had +gotten much better in September, and thought that he was almost +well. Later in the fall he took a severe cold and got much worse, +and from that difficulty, I believe, he never wholly recovered. He +went, however, to Colorado and New Mexico, and finally died.</p> +<p>Now, let us see about John W. Dorsey. I believe that great pains +have been taken to say that he was a tinsmith, which is a +suspicious circumstance. Why? Is there any law against a tinsmith +bidding to carry the mails? Is there any such provision in the +statute? And yet that has been lugged forward as one of the +evidences of a conspiracy in this case, and it has been lugged +forward in a way to cast some disgrace upon this man—simply +because he was a tinsmith. Well, do you know I have as much respect +for a good tinsmith as for a good anything. What is the difference? +Sometimes I have thought I had more respect for a good tinsmith +than a poor professional man—sometimes. In this country of +all others labor is held to be absolutely honorable, and I think a +thousand times more of a man who works in the street and takes care +of his wife and children than I do of somebody else who dresses +well and lives on the labor of others, and then is impudent enough +to endeavor to disgrace the source of his own bread. I think the +man who eats the bread of idleness is under a certain obligation to +speak well of labor. And yet we have the spectacle in this very +court of the Attorney General of the United States endeavoring to +cast a little stain upon this man. As a matter of fact, and I am +almost sorry to say it, John W. Dorsey is not a tinsmith. I am +almost sorry to make the admission. He happened to be a merchant, +which is no more honorable but somewhat easier. He dealt in stoves +and tinware. That, gentlemen, is his crime, and upon that rests the +terrible suspicion that he is a conspirator. And I want to say +more, that his reputation for honesty, his reputation for fair +dealing, is as good as that of any other man in the State in which +he resides. He made up his mind to cast his fortunes with John M. +Peck and with John R. Miner and make some bids for carrying the +mails of the United States. That is all there is about it.</p> +<p>There is, however, another suspicious circumstance, and that is +that John W. Dorsey was the brother of Stephen W. Dorsey, and +Stephen W. Dorsey at that time was a Senator of the United States. +That is another suspicious circumstance. Whenever you find a man +with a Senator for a brother, put him down as a conspirator. +Another suspicious circumstance, John M. Peck was the brother-in +law of S. W. Dorsey, absolutely married a sister of Mrs. Dorsey, +and that was the beginning of this hellish conspiracy. It was +suspicious. He intended to rob the Government when he was courting +that girl.</p> +<p>Now, we come to another man, Mr. John R. Miner, and the +suspicious thing about Miner is that he lives in Sandusky. But that +of itself would be nothing. Dorsey lived there once, too. Now, do +you not see how they moved to that town with the diabolical purpose +of swindling this great Government? Miner was not in very good +health—do you not see—pretended to be sick so that he +could leave Sandusky; and in some way Miner and Dorsey were +excellent friends—another suspicious circumstance; and for +several years whenever John R. Miner visited Washington he laid the +foundations of this conspiracy by always stopping at the house of +Senator Dorsey—another suspicious thing. And do you not +recollect the delight, the abandon with which Mr. Bliss emphasized +the word house, when he said that they met at Dorsey's house? I had +a great notion to get up and plead guilty on that emphasis.. Miner +came here. He and Peck were acquainted; and wherever you find four +men acquainted, gentlemen, look out, there is trouble. When Miner +came here he went directly to the house of Senator Dorsey. I admit +it with all the damning consequences that flow from that admission. +He did not even go to a hotel. He went directly to Dorsey's house. +I want that in all your minds, because the prosecution regards that +as one of the foundation facts in this conspiracy, and while +admitting it, do you not see how much I save them in the way of +evidence.</p> +<p>And there is another damning fact connected with this case. +Dorsey in the top of his house had set apart one room for an +office. It was up two or three pair of stairs. I think he +established his office there to shield himself a little from the +people who usually call on a Senator in the city of Washington. But +he found that he put himself to more trouble than he did them, so +he moved his office to the lower part of the building, and when +John Miner got to that house he occupied a room right next to that +office upstairs, and sometimes he went in there and wrote. Now, you +see, gentlemen, how that conspiracy was planted; how the branches +sprang out of the windows of that room and covered all the +territory of the United States. I might as well admit that +frightful fact. I do not know that they know that, but I might as +well admit it, because we want the worst to come first. Before +Miner came here he wrote a letter. There is another place to put a +pin of suspicion. He wrote a letter to S. W. Dorsey; that is, it +was Miner or Peck, I have forgotten which, and may be that very +forgetfulness of mine is another evidence of conspiracy. A letter +was written either by Miner or Peck to Stephen W. Dorsey, saying +that they were going to bid; that Peck was not well enough to be +here at that particular time, and would he be kind enough to hand +that letter to some man in whom he had confidence and let that man +get such information as he could with regard to the routes upon +which they expected to bid—all these Western star routes.</p> +<p>Now, what did S. W. Dorsey do? There was a man in town by the +name of Boone. He sent for Mr. Boone, and I believe that Mr. Boone +went to Mr. Dorsey's house, and that Dorsey handed him that letter +in his house. And what was the object of the letter? For Boone to +get information regarding these routes. Well, now, what did Boone +do? Boone made up a circular which he sent to all the postmasters, +or most of them, through Oregon, Washington Territory, Colorado, +New Mexico, Nevada, California, Kansas, Nebraska; that is to say, +the Western States and Territories; and in this circular a certain +number of questions were propounded to each postmaster. First, the +distance from that post-office to the next, and from the next to +the next, and so through the route. Second, the condition of the +roads, whether hilly or level. Third, about the snows in winter and +the floods in spring. Fourth, the cost of hay and corn and oats. +Fifth, the wages that would have to be paid to the man or men; and +it may be some other questions in addition. Now, these circulars +were sent by Boone to all the postmasters in consequence of a +letter that he received in Dorsey's house. What for? So that by the +time that Miner and Peck and John W. Dorsey came they could sit +down and bid intelligently upon these routes; so that they would +have some information that would guide them; in other words, that +they would not be compelled to bid at random.</p> +<p>Now, we will show, gentlemen, that that was done, and if at that +time there had been a conspiracy, certainly such information was of +no particular value. Now, that is what Mr. Boone did, and I believe +that is about all he did at that time. There is no conspiracy yet, +no fraud yet. It is utterly impossible to defraud the Government by +getting information from postmasters as to the condition of the +roads, and as to the distance from one post-office to another. +There is no fraud yet, no conspiracy up to this point. In a little +while Mr. Miner and Mr. John W. Dorsey appeared. Ah, but they say +Stephen W. Dorsey was at that time a Senator of the United States +Yes, he was, and I believe he remained Senator until the 4th of +March, 1879. When his brother came we will show to you that Stephen +W. Dorsey said to his brother, "I would rather you would not bid; I +would much rather that you would keep out of this business, because +I am a Senator and somebody may find fault. Somebody may suspect, +and consequently I would much rather you would get out of the +business." John W. Dorsey did not agree with him. He said he did +not see how that could interfere with him, and that he believed he +could do well in that business, and the consequence was he went on. +There is nothing suspicious so far as I can see in that. That is +what we will show.</p> +<p>This man being a member of the United States Senate did what he +did out of pure friendship; did what he did for his brother, what +he did for Mr. Peck, and what he did for Mr.</p> +<p>Miner from pure friendship. I know it is very difficult for some +people to imagine that any man does anything for friendship. They +put behind every decent action the crawling snake of a mean and +selfish motive. My opinion of human nature is somewhat different. I +have known thousands and thousands of men capable of disinterested +actions, thousands of men that would help a brother, a +brother-in-law, or a friend, and help them to the extent of their +fortune. I have known such men and I never supposed such acts could +be tortured into evidence of meanness.</p> +<p>The first charge against Stephen W. Dorsey is that he sent some +bonds and proposals for bids to a postmaster by the name of +Clendenning, in the State of Arkansas. The trouble with these +bonds, as I understand it, was that the amount of the bid was not +put in the blank in the printed proposal. It is claimed by the +prosecution that according to the law the postmaster has no right +to certify to the solvency of the security until that blank is +filled. I want to explain this so that you will understand it. I +think I have one of the bonds and proposals here. I would like to +have the Court see exactly the scope of it. [Exhibiting blank form +of proposal and bond.] The proposal is that the +undersigned,———— whose post-office address +is————, of the county +of————, and State +of————, proposes to carry the mails of the +United States from July 1, such a date, to June 30 of such a date, +being four years, between such and such a place, under the +advertisement of the Postmaster-General, for the sum +of————dollars per annum. Now, if I +understand the matter of the Clendenning bonds, they were filled up +with the exception of the blank in which the amount of the bid was +to be written. That is the charge, as I understand it. Whenever a +man makes a proposal to carry the mail for four years on a certain +route, that proposal must be accompanied with a bond in a certain +amount, and certain men must sign that bond as sureties, and then a +certain postmaster must certify to the solvency of the sureties, +the sureties having made oath as to the value of their property. +Now, understand that perfectly. It is not the bond that a man gives +after his bid has been accepted. It is a bond that he gives to show +that his bid is in good faith. That bond is conditioned that if the +contract is awarded to him he will give another and sufficient bond +not only, but I believe it is also conditioned that he will carry +the mail. The charge is—and let us get at it just +exactly—that some bonds were sent to a man by the name of +Clendenning, who was a postmaster, and this blank was not filled. +Let me tell you why. It was the custom—and I want your Honor +to understand that perfectly, because so much was made of it before +in talk—to leave that blank unfilled. It is the blank for the +amount of the bid. In the advertisement of the Government the +penalty of the bond is stated, so that the amount of the bid has +nothing to do with the penalty in the bond. Understand me now. If +the bond was for ten thousand dollars, it was because that amount +had been put in the advertisement by the Government. It did not +depend upon the amount of the bid. It had nothing to do with it. +The amount of the bid threw no light upon the amount of the bond. +The penalty of the bond was fixed by the Government before the bid +was made and inserted in the advertisement published by the +Government. Why then did they not wish to fill up this blank? This +blank, gentlemen, told the amount of the bid. Where there are many +bidders, and an important route, if you let the postmaster who has +to certify to the sureties know the amount of the bid he might sell +you. He could go and tell somebody else "I have certified to all +the sureties on this route, and the lowest bid up to this time is +fifteen thousand dollars," and the person whom he told might go and +bid fourteen thousand nine, hundred and ninety-nine dollars and +take the route. Ah, but they say the postmaster is not allowed to +tell the amount of the bid. No. What was the penalty if he did? He +would lose his office. Now, here is a postmaster holding an office +worth, perhaps, a hundred dollars a century, or, perhaps, fifty +dollars a year, and by selling information as to one bid he might +make ten thousand dollars. I do not know what he could have made. +Certainly the bidders did not feel like trusting the secret of +their bids to the postmaster who certified to the sureties. As a +consequence the bond was filled up with the penalty according to +the advertisement, but the blank in which the amount of the bid was +to be written was not filled, because they wanted the postmaster's +mind left a blank upon that subject. In other words, that blank was +left unfilled, not to defraud the Government, but to prevent other +people from defrauding the bidder. That is all there is about it. +That is everything about the Cleudenning bonds. But it may be well +enough to state, gentlemen, that those Clendenning bonds were never +used on a solitary route in this indictment, and I believe never +anywhere; that no contract was ever awarded upon any one of those +proposals. The only rascality in the transaction, gentlemen, was +the failure to fill a blank; and the reason they failed to fill +that blank was because they did not want the postmaster to know the +amount of the bid. Let us come right down to practical matters and +things. For instance, suppose one of this jury is in the +stone-cutting business, and the Government should issue an +advertisement calling for proposals to furnish dressed granite, and +specify that every man who bid must file a bond in a penalty of +five thousand dollars to carry out his contract, and that that bond +must be approved by the postmaster here. Suppose it was a contract +of great proportions. Would the man who bid be willing that the +amount of the bid should be inserted in the blank to be passed upon +by the postmaster? No. Why? He would not want the postmaster to +know it. Who else would he not want to know it? He would not want +his sureties to know it. A man might be standing by while the bond +was being approved and read the amount of the bid. The bidder would +be afraid somebody would get at those figures and go and underbid +him. Every man of common, ordinary sense knows that. If you made a +bid you would not let your sureties know the amount and you would +not give the amount to the keeping of a postmaster, neither would +you leave it to chance or accident. You would say, "I will leave +the amount a blank. I will keep it in my mind, and when the paper +comes into my hands for the last time I will write, it in there and +fold it and seal it and give it to the Government." That is what +every sensible and prudent man would do, and what has been done for +years. And yet that act is brought forward as something to stain +the reputation of an honest man; something to strike down as with a +sword the character of an ex-Senator. They even say he wrote upon +paper that had the mark of the United States Senate Chamber upon +it. That is only another evidence that there was nothing wrong in +it. It was stated, too, in the opening of this case, that an +affidavit was made upon paper that bore the mark of the National +Hotel of this city. Think of such a damning circumstance as that! +Well, gentlemen, so much for the Clendenning bonds. We will prove +that the blank was left unfilled on purpose, not to defraud the +Government, but to prevent other people from defrauding us. Let me +say in that connection that there was an investigation in 1878 upon +this very question. The Clendenning bonds were brought up. +Testimony was heard, and we will be able to show you the facts that +I have stated. Then, if I am right, gentlemen, there is nothing in +it; and when the opening statement was made the Government knew, +just as well as I know, that there was nothing in it; at least they +ought to have known it. Probably it is not proper for me to say +they knew it, because men get so prejudiced, so warped, so twisted +that it is hard to tell what they know or what they do not know. +But that has nothing to do with this case and, in my judgment, will +never be admitted by the Court. If it is admitted by the Court we +will establish exactly what I have told you. So much for the +Clendenning bonds. Do not forget that the penalty of the bond was +put in by the Government.</p> +<p>Do not forget that the amount of the bid was left blank simply +to protect ourselves. Do not forget another thing: That leaving +that blank unfilled could not by any possible peradventure injure +the Government. The bond was just as good with that proposal +unfilled at the time the sureties signed it as though it had been +filled. It had to be filled before it was finally given to the +Government or else there would be no bid. If there was no bid, then +no obligation rested upon the sureties. Certainly they could not be +harmed, and if there was no bid certainly the Government could not +be harmed; unless the bid should have happened to be lower than any +received; and yet out of that nothing, out of that one bramble, a +forest of rascality has been manufactured. Gentlemen, that is the +result of suspicion when it is hoed by malice and watered by +hatred.</p> +<p>The next suspicious circumstance, gentlemen, is that we bid. +That is a suspicious circumstance. Miner bid, Peck bid, and John W. +Dorsey bid. And the suspicious circumstance is that they did not +bid against each other. Why should they? I was at an auction the +other day and unconsciously bid against myself, but I did not think +it any evidence of rascality on my part; I thought it tended to +show that I was not attending strictly to business, and yet it is +brought forward as a suspicious circumstance that these gentlemen +did not bid against themselves. Another suspicious circumstance is +that they bid in their individual names. That is the way all the +bidding is done, I believe. I believe every bond has to be signed +by the individuals and not by any partnership. That I believe to be +one of the regulations of the department. Well, there is no +rascality yet, as far as I can see. Now, when the contract is +accepted—I will come to the bidding question again—the +contractor has to give a bond. One of those bonds will be put in +evidence in this case. You will see what the contractor is bound to +do. Then it can be subcontracted. You will find that the contract +given by the subcontractor to the department is not a hundredth +part as severe as the bond the contractor gives to the Government. +In the contract that we give to the Government certain things are +provided. You will find that a copy of it will be intro duced. The +contractor is left to the mercy of discretion-I believe that is the +word—of the Postmaster-General You will find that if he fails +to carry the mail one trip, no matter by what he may be prevented, +by flood or storm or fire, he is not to be paid for it. Although he +is there ready with his men and horses, if he is prevented by the +elements he has no pay. If the Postmaster-General thinks he ought +to have carried it when he did not, he can take from his pay three +times the value of the trip. He can take from him one quarter's +pay. He reserves in his own breast the power to declare that +contract null and void, because in his judgment the contractor has +not done his duty. Everything is left to him. The man who signs +that contract gives a mortgage on his life, liberty, and pursuit of +happiness. He has no redress. I simply call your attention to this +to show you the obligation that a contractor takes upon himself. We +will show you that he is under obligation to discharge any carrier +that the Government does not like; that he has no right to carry +any package or any letter that can go by mail; that he is to +forfeit a trip when it is not run, or not to exceed three times the +pay of a trip; that he is to forfeit one-quarter of a trip if the +running time is so far behind that he fails to make connection with +the next mail; that if he violates any of these provisions he +forfeits a penalty equal to a quarter's pay, or if he violates any +other provision touching the carriage of the mail and the time and +manner thereof, without a satisfactory explanation in due time to +the Postmaster-General, he can visit a penalty in his discretion, +and the forfeitures may be increased in the penalty to a higher +amount, in the discretion of the Postmaster-General, according to +the nature or frequency of the failure and the importance of the +mail. Provided that, except as specified, and except as provided by +law, no penalty shall exceed three times the pay of a trip in each +case.</p> +<p>It is also agreed by the said contractor and his sureties that +the Postmaster-General may annul the contract for repeated +failures; for violating the postal laws; for disobeying the +instructions of the Post-Office Department; for refusing to +discharge a carrier when required by the department; for +transmitting commercial intelligence or matter which should go by +mail; for transporting persons so engaged as aforesaid; whenever +the contractor shall become a postmaster, &c.</p> +<p>It is further stipulated and agreed that such annulment shall +not impair the right to claim damages from said contractor and his +sureties under this contract; but such damages may, for the purpose +of set-off or counter-claim in the settlement of any claim of said +contractor or his sureties against the United States, whether +arising under this contract or otherwise, be assessed and +liquidated by the Auditor of the Treasury for the Post-Office +Department.</p> +<p>And it is further stipulated and agreed by the said contractor +and his sureties that the contract may, in the discretion of the +Postmaster-General, be continued in force beyond its express terms +for a period not exceeding six months. You will see, gentlemen, how +perfectly, how absolutely, the contractor is in the power of the +department. The Government enforces its contracts. No matter how +many years may elapse they are still after the sureties and are +still after the principal. Nothing relieves a man but, death. Only +a little while ago a case was decided in the Supreme Court of which +I will speak to you. An importer of sugar gave the importers' bond +to pay the duty upon that sugar. By the custom of trade, sugar is +sold in bond.</p> +<p>The importer sold to a third person and the third person went to +get the sugar. By law he could only take it after paying the tax; +and yet one of the officers of the Government, contrary to law, +allowed him to take the sugar without paying the tax. The Supreme +Court has just held that the original importer and his sureties are +liable to pay that tax—the man who took the sugar out having +become bankrupt—although the sugar was given to the second +party simply by a violation of law, and that law was violated by +one of the officers of the custom-house without the knowledge or +consent of the original importer. I tell you, gentlemen, whenever a +man gives a bond to this Government the Government stays with him. +The Government does not die; the Government does not get tired; the +Government does not get weary. The Government can afford to wait, +and the poor man with the bond hanging over him cannot go into +business, cannot get credit, but just lingers out a life of +expectation, of hope, and of disappointment. I trust none of you +will ever sign a bond to the Government. There is another thing, +gentlemen. If you bid on a hundred routes and they are given to you +and you put the service on ninety-nine of the routes and carry it +in accordance with the contract, and yet fail on the hundredth +route, the Postmaster-General has a right to declare you a failing +contractor. A failing contractor on the hundredth route? Yes. On +any more? Yes; on every one. And whoever is declared a failing +contractor on one route is by virtue of that declaration a failing +contractor on all. They are all taken from him. So that when a man +bids for more than one route, for instance, a hundred or a +thousand, and gets them and carries them all absolutely according +to his contract but one, he can be declared a failing contractor on +all. What does that mean? It means not simply ruin to him, but ruin +to every one of his sureties, unless they are in a condition to go +on and carry the mail. I want you to understand something of the +obligation of a contractor with the Government of the United +States.</p> +<p>Now, I come to the bidding. These bids were made with a full +understanding of the obligation of a bidder. Messrs. Miner, Peck, +and John W. Dorsey bid, I believe, on about twelve hundred routes. +You see you are in great luck in bidding if you get one route in +fifty that you bid upon. In the first place, there are about ten +thousand star routes. I do not know that it is too much to say that +the number of bids runs up into the hundreds of thousands; +somewhere in that neighborhood. Hundreds of men often bid on one +route. Consequently, nobody who bids expects to get more than a few +of the routes for which they bid. Now, is there the slightest +evidence in the statement of the Government as to the frauds in +this bidding? Let me tell you how some frauds have been committed. +Suppose, for instance, this was a fraudulent business, and Miner, +Peck, and Dorsey were bidding. Let me explain it to you. I want you +to know it. All there is in this case is simply to have you +understand it. That is all there is. And if you do not agree with +me when we get through the case I shall simply think that you have +not comprehended it. Say that four men bid on the same route, one +man four thousand dol-ars, another man three thousand dollars, +another man two thousand dollars, and another man one thousand +dollars.</p> +<p>Now, the man who bids one thousand dollars is of no account, has +not a dollar in the world, and so when the bid is given to him he +does not want it. He is what they call a straw man. The law +provides then that the next man may have it. The law does not +provide that he must take it. He may have it if he wants to, but +you cannot force him to take it, because he is not the lowest +bidder. He is the two thousand dollar man. He is another straw +gentleman. He does not want it. Then the Government offers it to +the next man at three thousand dollars. He is another chap made of +hay. He says he doesn't want it. Understand the Government cannot +force these straw and hay men to take it. Then they go to the +fourth fellow, who bid four thousand dollars. It is a good thing at +four thousand, and he says, "Yes; I will take it." That is what +they call fraudulent bidding. If you had found Dorsey and Miner and +Peck bidding on the same route and one of them failing and another +one taking it, you would not only have suspected fraud, but you +would have known it. Now, if it is a badge of fraud for them to bid +upon the same route and apparently against each other, I will ask +you if it is not a badge of fair dealing that they were not found +bidding against each other. They bid on about twelve hundred +routes, and much to their astonishment they got one hundred and +thirty-four contracts.</p> +<p>You have heard here a great deal of talk about the number of men +and horses. We will show you all about it. Men differ upon this +subject. If men did not differ upon it at all these bids would be +alike. Instead of being a dozen bids, all different, and differing +sometimes as much as ten, twenty, thirty, forty, or a hundred +dollars or more, they would bid the same. If they all agreed on the +number of horses and men it would take, and about what it would +cost, they would bid about alike, wouldn't they? But when they are +bidding they honestly differ. One man says it would take twenty +horses, and another says "no, it will take forty." Do you not know +that the number of horses depends a great deal upon the kind of man +who makes the estimate. Here is a man who is hard and brutal, and +he says a horse can do so much work. He says it is cheaper to buy +him and wear him out than it is to feed him decently. You have +known men who were perfectly willing to make fortunes out of a +horse's agony, and out of animal pain. There are hundreds of them +in the world. Now, take it on horse railroads, and with freighters, +and teamsters. Whenever you find a mean, infamous man, if he cannot +whip his wife, he will take his spite out on his horse. If a man is +a good, broad, generous, free fellow he will say, "I don't want to +work that horse to death; I think it will take four horses. I am +going to keep my horses fat, and I am going to treat them as a +gentleman should." Another man, a wretch, will come up and swear it +would not take more than fifteen horses. When his horses are +through the service you will simply see a pile of bones wrapped in +a lamentable hide. You understand that.</p> +<p>Well, these men made twelve hundred bids and got one hundred and +thirty-four contracts. Ah, but they say, here is another badge of +fraud, another badge. Ah, they bid on small routes, on cheap +routes, on routes where the mail was carried infrequently and on +slow time. If it is a badge of fraud to bid on such routes the +Government can never let out any more. Most of these routes were +cheap routes. Now, I owe it to you to give you the reason for this. +We will prove in the first place that these men were not rich men. +If they had been very rich they probably would not have gone into +the business at all. They would have gone into that perfectly +respectable business of buying Government bonds. They would have +bought Government bonds and made other fellows pay the interest, +and twice a year they would have formed a partnership with a pair +of shears, and thus in the sweat of their faces they would clip +their coupons. They bid on poor routes. Why? They were poor, +comparatively speaking.</p> +<p>They had not the money to stock the expensive routes where four +horse coaches were run. They preferred to take the cheaper lines. +Why? Because they could stock them. They would have been able to +have stocked the routes if they had only obtained the number they +expected. But as I told you, they got many more routes than they +expected. Was that for the benefit of the Government? How did these +men come to bid so cheaply on some of these routes? I will tell +you. Because they had the information, because they had received +the facts from all the postmasters on the routes, and consequently +they made a good close calculation, and the result was that their +bids were below others, and the fact that their bids were accepted +saved the Government hundreds of thousands of dollars. When they +found themselves with all these contracts, the first hard work they +did was to give away all they could. That was the first hard work. +They had contracts, not for sale, but just to give, and they +succeeded in giving away several of them. I believe they sold two +of these children of conspiracy for the enormous sum of one hundred +dollars each. That was the highest sale they made at that time. +Afterwards another route was sold which I will explain when I come +to it. Now there is no rascality yet. No fraud yet. No conspiracy +yet. Well, they then went to work to get their bonds. But first let +me say that there was another reason for bidding on cheap routes. +Whenever the bid is above five thousand dollars, then the man who +bids must, at the time he bids, put up a check for five per cent, +of the amount.</p> +<p>A check certified by a national bank. For instance, if it all +comes to a hundred thousand dollars he has got to put in a +certified check for five thousand dollars. Even in the little bids +we made we had to deposit with the Government some twenty-six or +twenty-eight thousand dollars, and I do not know but more, in cash, +or what is the same as cash, for the bank certifies that the money +is there. That is another reason they bid on smaller routes. What +is the next? The Government asks such frightful bonds, such +terrible amounts, that a man must be almost a millionaire, or else +there must be a confidence in him that is universal, before he can +give these bonds.</p> +<p>There was one route at this very bidding where they had to give +bonds for six hundred and forty thousand dollars, and the sureties +upon these bonds under oath had to testify that they had real +estate to the value of six hundred and forty thousand dollars, +exclusive of all debts, dues, and demands. So there was another +reason for bidding upon small routes. Where the amount was under +five thousand dollars no certified check had to be deposited, and +the smaller the route of course the smaller the bond.</p> +<p>Now, I have endeavored to show you the reasons that we bid upon +these routes instead of upon the larger ones. The reasons as stated +by the Government are that we took these routes where the service +was once a week, so that we could have the service increased; that +we took those routes where the time was long so that we could have +it shortened, that is to say, expedited. But I tell you that when a +perfectly good reason lies at the very threshold of the question +you have no right to go further. The reasons I have given to you it +seems to me are perfect and you need no more.</p> +<p>Now, then, we got, I say, about one hundred and thirty-four +routes. Of these, one hundred and fifteen are without complaint. +There is not a word about the other one hundred and fifteen. +Recollect it. We got one hundred and thirty-four routes. In this +indictment are nineteen; one hundred and fifteen appear to be +perfectly satisfactory to this great Government. There is not a +word as to those routes, not one word, I say, as to one hundred and +fifteen routes, and they want you to believe that these defendants +deliberately selected nineteen routes out of one hundred and +thirty-four about which to make a conspiracy, and that they left +one hundred and fifteen to go honestly along, but picked out +nineteen for the purpose of defrauding the Government.</p> +<p>Now, then, when these gentlemen found themselves with these +routes, the next thing was to put the stock and the carriers upon +them. As I told you, a good many more had been awarded to them than +they anticipated. They had not the money. So, in putting the stock +upon several of the routes, they found it necessary to borrow some +money, and here comes another suspicious circumstance. Mr. Miner +borrowed some money of Stephen W. Dorsey, and everybody is +astonished that any man would be mean enough to loan money to +another; that any man could so far forget the dignity of the office +that he held as to help a friend. Their idea of a Senator is of +such a lofty and dignified character that he ceases to take +interest in anything except national affairs; that after he has +been sworn in he forgets all the relationships and friendships of +the world, and the idea of asking him to loan money seems, to the +prosecution, to be the height of unconstitutionality. But as a +matter of fact he did loan some money, and we will show you how +that loan was treated, showing you that at that time he had not the +slightest interest in it. He loaned some money, and kept loaning +money until, I believe, he had given them about sixteen thousand +dollars to get these routes on. Then he, being on his way to New +Mexico, met in the city of Saint Louis John R. Miner, who at that +time was coming back, I think, from Montana or Dakota, where he had +been putting stock on a route. Miner saw Dorsey in Saint Louis, and +said to him, "We have got to have a little more money, and I want +you to indorse my note or to loan me your note and I can get it +discounted in the German-American Bank in Washington." Finally, +Dorsey said to him, "You have already obtained from me about +sixteen thousand dollars: I will give you the note you ask, or +indorse your note upon one condition, and that is that you shall +give me orders"—what are called Post-Office drafts—"not +only for the amount of this note, but for the amount of the sixteen +thousand dollars." We shall insist, gentlemen, that that evidence +shows exactly our position, and that you are entitled not only to +draw from it, but that you must draw from it the inference, the +fact, that we had no interest in those routes. Finally that was +agreed to.</p> +<p>Now, understand it, at that time a contractor with the +Government who had agreed to carry the mail for a certain time +could give what are called post-office drafts or orders—you +know, orders on his quarterly pay—and they would be taken to +the proper officer in the Post-Office Department and they would be +accepted, not for the full amount, understand, but for any amount +that might be due that contractor. For instance, he might fail to +carry the mail, he might be fined, and consequently the amount of +that draft might not be there, so that the only thing the +Post-Office Department agreed to do was to pay upon that order or +draft anything that was due to the contractor. That was done at +that time, and why? Because there was no way other than that to +secure these advances. So he gave these drafts. He came on to +Washington. The note was put into the German-American Bank. The +orders on the Post-Office Department were filed with it, and the +money advanced by the bank and charged to Stephen W. Dorsey. That +made, then, at that time about twenty-five thousand dollars that +Dorsey had advanced. That being done he went on about his +business.</p> +<p>Now, I will show you what happened after that. I think the note +in the German-American Bank was nine thousand dollars or ten +thousand dollars, I have forgotten which. Dorsey then went on to +New Mexico from Saint Louis, and remained there, I believe, until +December, 1878. Now, I want you to understand this, because here +turns a very important question, and a very important point. Now, +you recollect the information about these bids was collected in the +autumn and winter of 1877. The last bid was to be put in, I think, +February 28, 1878. Now, this was in the August of that year, 1878. +Still being pressed for money, Miner, Peck, and J. W. Dorsey were +in danger of being declared failing contractors. Now, recollect it. +We will show that at that time Brady, who, according to the +Government, was a co-conspirator, threatened to declare Dorsey, +Peck, and Miner failing contractors, and if he had declared them +failing contractors even on one route that was the end of all. At +that time Miner and John W. Dorsey sought out Mr. Harvey M. Vaile, +and let me say that is the first appearance of Mr. Vaile in these +contracts. He knew nothing about the bidding, was not in Dorsey's +house, knew nothing about the letting. That is his first appearance +in these contracts, August, 1878. Now let us see what he did. He +was a man of means. He had some money; had been, I believe, for a +long time engaged in carrying the mails; understood the business. +They will tell you that is a suspicious circumstance as to him, and +that the fact that that was John Dorsey's first experience is a +suspicious circumstance as to him. Really to avoid suspicion you +would have to have a man that had been in it a long time but never +had anything to do with it. They got him, and offered what? To give +him a third interest in this entire business. I think that was it. +They were to give him a third interest in this entire business, a +business that had been born of conspiracy, a business that had as a +silent partner the man who fixed the amount of money to be paid. +Think of that. According to the statement of the Government, here +was a conspiracy full-fledged, perfect in its every part, flanked +by the Second Assistant Postmaster-General, buttressed by all the +clerks they desired, and yet that conspiracy got so hard up that in +August, 1878, nine or ten months after its creation, it was willing +to give a third to anybody who would advance a little money to +carry the thing on.</p> +<p>So Mr. Vaile came in. Now, then, they had to secure Vaile +against any loss, and it seems that on July 1, I believe, of that +year, the law allowed the subcontract to be filed. It was a little +while before that that a law had been passed for the protection of +subcontractors. That was all explained to you yesterday. You know +it is something like a mechanic's lien; that if the subcontractor +would only file his subcontract in the Post-Office Department and +let that department know the terms of it they would not pay the +original contractor until this subcontractor was paid. Now, that +law had gone into effect a little while before August, 1878, and +the effect of that law, if anybody filed a subcontract on these +routes, was to cut out all those post-office orders that Miner had +given to secure Dorsey. You understand me now, do you not? It was +when he met him in Saint Louis that it was agreed that these +post-office orders were to be given and filed with the +German-American Bank in this city. Now, then, the law passed for +the protection of subcontractors, and subsequently the filing of +subcontracts on those very routes, would render those post-office +orders absolutely worthless. Very well. When they made the contract +with Mr. Vaile they agreed to file the subcontracts with the +department to protect Vaile and that rendered S. W. Dorsey's +security absolutely nothing. That cut out all other claims, drafts, +and everything else, and at that time Mr. Miner was fully +authorized by power of attorney from J. W. Dorsey and from John M. +Peck, who was at that time in New Mexico, to make this transfer to +Vaile.</p> +<p>Now, see where we are on August 16, 1878. On Dorsey's return in +December, 1878—he had not been here from that time, and do +you not see he had nothing to do with it—he found that these +subcontracts had been filed. He found that the note in the +German-American Bank had been protested, and he found that his +collateral security was not worth a dollar, that it was all gone. +Thereupon he demanded a settlement. The matter drifted along for a +little while, and a settlement was made with the bank; and Mr. +Vaile, holding the subcontract, undertook to pay that Dorsey note, +and he did pay it. He took it up, and gave, I believe, his own +instead, and that was finally paid. But the money due Dorsey, the +sixteen thousand dollars that at that time amounted to something +more by virtue of interest, was not provided for. The money that +had been expended by John W. Dorsey was not provided for. The money +expended by Peck was not provided for. Now, I want you to see +exactly how that matter stood at that time. We have got it up to +that time and here it stands, and the chief conspirator out sixteen +thousand dollars and without any interest in one of the routes. +There is where he was at that time, and that is what we will show. +The brother of the chief conspirator ten thousand dollars out, and +not the interest of one cent in any route. The brother-in-law of +the conspirator about ten thousand dollars out, and not a cent in. +That was the condition of this conspiracy at this time, and when +Vaile took these routes Brady telegraphed him and asked him, "What +routes of Miner, Dorsey, and Peck, are you going to put the stock +on? This thing can be continued no longer. The stock must go on." +We will show it. Now, having got to that point, we will take +another step. There is nothing like understanding things as we go +along.</p> +<p>Now, from the time Mr. Vaile took the route, to the settlement +in 1879, to which I will call your attention in a little while, Mr. +Vaile had the absolute control. Neither Peck nor S. W. Dorsey had +the slightest thing to do with one of those routes until the final +settlement, and I say to these gentlemen of the prosecution now, +that in that time they can find no line, no word from Stephen W. +Dorsey upon the subject. They cannot find that he wrote a word to +any official, that he sent a petition to anybody, that he wrote a +letter to any human being upon the subject, or that he took any +more interest in it than in the ashes of Sodom and Gomorrah. It +went right along.</p> +<p>Now, then, up to this time, Stephen W. Dorsey had made nothing. +He was only out about sixteen thousand dollars or eighteen thousand +dollars. John W. Dorsey was in the same healthy financial +condition. John M. Peck had reaped the same rich harvest of ten +thousand dollars lost, and all the things had been turned over to +Mr. Vaile; John W. Dorsey put out—left out—with nothing +to show. That is the first chapter in this conspiracy. +[Resuming.]</p> +<p>I believe when I stopped, the principal conspirators were +substantially "broke." The head and front was out sixteen or +eighteen thousand dollars, and the other two ten thousand dollars +each. Now, a contract was made, and I propose to prove that +contract in the course of this trial. When that contract comes to +be shown, it will be about this: That, on the 16th day of August, +1878, H. M. Vaile, John R. Miner, John M. Peck, and John W. Dorsey +made an agreement That agreement made a partnership, and we will +show that a partnership was formed by and between Miner, Vaile, +Peck, and Dorsey on the 16th day of August, 1878. We will show by +the articles of that partnership that H. M. Vaile was made +treasurer, and that all the other partners agreed, by suitable +powers of attorney, to put the collection of all the money from the +Government absolutely in his hands. When he got the money he +agreed, first, to pay all the subcontractors; second, the expenses +necessary and incident to the proper conduct of the business; +third, to divide the profits remain-, ing among the parties as +provided in that contract. The profits were to be divided as +follows: From routes in Indian Territory, Kansas, Nebraska, and +Dakota, to H. M. Vaile, one-third; to John R. Miner, one-sixth; to +John M. Peck, one-sixth; and to John W. Dorsey, one-third. From +routes in Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, +Idaho, Washington Territory, Oregon, Nevada, and California, to H. +M. Vaile, one-third; to John R. Miner, one-third, and to John M. +Peck, one-third. Before any division of profits was to be made, the +sums which before that time had been advanced were to be paid to +the parties so advancing such sums; and if the profits were not +sufficient to repay the entire sums so advanced, they were to be +paid from time to time during the existence of the life of these +contracts. Now, you will find that such contract was made on the +16th day of August, 1878, and that Mr. H. M. Vaile then took +absolute and complete control of every one of these routes, and the +only thing they asked of him was to repay the money that had been +advanced, which, as you know, and as I have told you, was the +sixteen or eighteen thousand dollars by S. W. Dorsey, the ten +thousand dollars by Peck, and about the same amount by John W. +Dorsey. Now that is understood. At that time certain papers were +executed by all the parties. I told you that a law had been passed +by virtue of which a man could make a subcontract and have that +subcontract put on file, and thereupon he could be protected by the +Government. Now, when H. M. Vaile took these routes, and they were +to be managed by him, subcontracts were made by the other parties +to Mr. Vaile, and Mr. Vaile put those subcontracts on record. Now +you can see that they gave him the absolute and entire control of +every route. That was the condition. I have explained to you the +the liability of a contractor. He cannot put it off on a +subcontractor. He is the man primarily responsible to the +Government during the life of that contract, and for six months +thereafter. Whenever a contract is awarded to any person, he is +regarded as the original contractor, and his name is kept upon the +books of the department during the life of that contract. No matter +how many subcontracts may be made, he is looked to primarily if +there is a failure of a a trip, or if there is a failure of the +service, and he is responsible for its complete performance. If +there comes some great storm and the road is obstructed by snow, or +if the bridges are all carried away by flood, and the subcontractor +throws down the contract, the original contractor must be ready to +take it up; and if he fail to do so, he can be fined three times +what he has received for each trip. There is one case in one of +these nineteen routes, gentlemen, where the fines exceeded the +entire pay simply because they did not carry the mail according to +the contract. Now, then, these parties finally made a settlement +and they divided these routes. They divided them. They ceased to +have any interest in common. Recollect, that was in April, 1879. I +want you to know it because this entire case depends on your +knowing it. This entire case, gentlemen of the jury, depends on +your understanding it. In April, 1879, Mr. Vaile having had +possession of these routes for several months, a division was made +of them, and all interest in common was at that moment severed. At +this time, I say, these routes were divided, and all partnership +and all partnership interest was absolutely destroyed. I want to +tell you why. When Dorsey returned from New Mexico and found that +his orders on the Post-Office Department had been superseded by +subcontracts and that his collateral security was worthless he was +indignant, and at that time he and Mr. Vaile had a quarrel. He did +not think he had been properly treated, and for that reason the +moment he got the note at the German-American Bank provided for, +the moment he induced Mr. Vaile to assume the payment of that note, +he gave evidence that he wanted a settlement. Not that he wanted +the routes divided at that time, because he did not dream of such a +thing. He wanted the settlement. He wanted his money. The +arrangement that had been made with Mr. Vaile was unknown to Mr. +Dorsey, who at that time was in New Mexico; and, as I told you +before, when he returned and found that the note that had been +given to the German-American National Bank was protested, and +found, as I told you twice, his collateral security was worthless, +he wanted a settlement. He wanted his money refunded to him. They +said to him, "We haven't the money. We have just got the stock +really upon these routes. We have just got under way, and we cannot +pay out the money." "Very well," said he, "what will you give me?" +I want you all to see that this was a simple, natural, ordinary +proceeding. Said he, "I want my money." Said Vaile to him, "We +haven't the money, but I will tell you what we will do. We will +divide the routes with you." Now, recollect at that time that they +had a hundred and thirty-four routes, and had given some of them +away. At that time they agreed upon a division, and they agreed how +that division should be made. We will prove the agreement to you. +The agreement was that Mr. Vaile should choose first, taking the +route he wanted—he and Miner being together at that +time—that Mr. Dorsey should choose the next, and Mr. Miner +should choose the third route; and then that Mr. Vaile should +choose the fourth, Stephen W. Dorsey the fifth route, Mr. Miner the +sixth route, Mr. Vaile the seventh route, and so on. They finally +concluded it would be fair for Mr. Vaile to take the best route, +Dorsey the next best, and Miner the next best, and then again Vaile +the best, Dorsey the next best, and Miner the next best, and that +that would be an average that would do justice to each. In that +way, gentlemen, they divided these routes. There was no conspiracy; +nothing secret. This division was made on the 6th day of April, +1879, not only after Dorsey had gone out of the Senate, but after +he had advanced this money, after they had failed to repay him, +after he had failed to collect it, and when he finally had said, "I +must have some settlement that recognizes my claim." Gentlemen, I +want you to know that. In this case that fact will be one of the +great central facts. On the 6th day of April, 1879, these routes +were absolutely divided, and after that they had nothing in common. +But you recollect that these routes were divided by chance. Mr. +Vaile chose the first route. He might choose a route that had been +bid off by Peck, or he might choose a route that had been bid off +by John W. Dorsey. Stephen W. Dorsey took the next route, and that +might have been a route that had originally been awarded to his +brother, or to Peck, or to Miner. You can see how that is. The +division was here complete. Mr. Miner did not have the routes he +had bid off and that had been given to him by the Government. Mr. +Vaile came in, and as Mr. Vaile was not an original bidder he took +routes that had been awarded to Miner and to Peck and to John W. +Dorsey. By the division Stephen W. Dorsey came into possession of +routes that he never had bid off, because he never bid for one. +Consequently as he went along with those routes, he needed and he +had oftentimes the affidavit or the certificate of the original +contractor. That was a necessity. Otherwise the division could not +have been carried out. Anything that arises from the necessity of +the case does not tend to show any conspiracy or any illegal +partnership. I hope you understand perfectly that on the 6th day of +April, 1879, these routes were divided and Stephen W. Dorsey took +his share because they at that time owed him between sixteen and +eighteen thousand dollars.</p> +<p>What more did he do, gentlemen? He agreed at that time that he +would refund to John W. Dorsey all the money he had expended. That +amount was about ten thousand dollars. It was nine thousand and +something. He also agreed that he would refund to John M. Peck, who +is now dead, the money he had expended, which was between nine and +ten thousand dollars. He also agreed that he would take the routes +for the money he had expended, and that was between sixteen and +eighteen thousand dollars. So, when those routes were turned over +to him they were taken in full of over sixteen thousand dollars +advanced by him, ten thousand dollars that he was to give to his +brother, and ten thousand dollars that he was to give to John M. +Peck—in the neighborhood of thirty-eight thousand dollars in +all. Speaking of the sum without interest it amounted to thirty-six +thousand dollars. Those routes were turned over to him. Gentlemen, +it was not done in secret. When that division was made, the law +having provided no way for A to assign a contract to B, that +assignment had to be accomplished by a subcontract, and +consequently subcontracts had to be given to Vaile, subcontracts to +John R. Miner, and subcontracts to S. W. Dorsey, and yet the +original contractor was still held by the Government. When the +subcontract was made, it was for the entire amount of the pay; not +one dollar remained for the original contractor. Now, I want to +state to you what we are going to prove about that. After the +division was made, to show you the interest taken by the +arch-conspirator, we will prove these facts: That when the routes +awarded to him by chance, on the 6th day of April, 1879, had been +awarded, he left the city of Washington in a few days, and went to +New Mexico; that he returned here on the 15th or 16th of May; that +he left again on the 19th of May, and went to Arkansas; that from +Arkansas he went to New Mexico, and returned to Washington on the +21st day of June, and that on the 27th of June he left for New +Mexico. The next time he visited Washington was in July of the +following year, 1880. He remained here one day, left and returned +again to witness the inauguration of General Garfield. From June +27, 1879, up to the present hour I challenge these gentlemen to +show that Stephen W. Dorsey ever wrote one line, one word, one +letter, to any officer of the Post-Office Department. I challenge +them to show that he ever took the slightest interest in any star +route, or said one word to any human being about that business, +except in explanation when attacked by the Government or in the +newspapers. Now, gentlemen, after the division of these routes what +did Stephen W. Dorsey do? This is a story, complicated, it may +seem, perfectly plain when you understand the surroundings. It is a +story necessary for you to know. After he got these routes what did +he do? Did he want them? Did he want to engage in carrying the mail +of the United States? Was that his business? At that time he had a +ranch in New Mexico where he was raising cattle. That was his +business, and is up to to-day. Did he want to stay here? Did he +want to attend to these contracts? That is for you to determine. +Did he want to enter into some partnership by which the Government +was to be fleeced? That is for you to say. I tell you he had +another business. I tell you he had a ranch in New Mexico, and we +will prove it to you, and that ranch was of more importance to him +than all the star routes in the United States. We will show you +that at that time he could not have afforded to waste his time on +these routes; that the business he was then engaged in was too +profitable to waste any time in the mail business. Profitable as +these gentlemen appear to think it was, what did he do? Just as +soon as he could make the arrangement he went to a gentleman living +in Pennsylvania by the name of James W. Bosler. Who is Bosler? He +is a man well acquainted with the business of contracting with the +Government. He has been in that business for years and years. He is +a man of ample fortune, excellent reputation, considered by his +friends and neighbors to be a gentleman and an honest man. He went +to him. That we will show you. He said to Mr. Bosler, "I have +advanced money by the indorsement of a note. I am in a business +that I do not understand. We have had to divide the routes in order +for me to have security for my debt. I want to turn these routes +over to you. I am not acquainted with the business of carrying the +mail. I know absolutely nothing about it. I want you to take it." +How did he turn it over? We will show. He said to Mr. Bosler, "You +take all the routes that have been given to me; every one. You run +them and you pay me back my money, and then we will divide the +profit." Mr. Bosler said he was not very well acquainted with +post-office business, but he understood how to transact any +ordinary business, and he would take them. That is all there is to +it. He took the routes; every one. I believe that he took absolute +control within a few months of the 6th day of April. I do not know +but the warrants for the first quarter were paid or came in some +way to S. W. Dorsey. But for the second quarter Mr. Bosler took +them, and from that day to this Mr. Bosler has controlled those +routes. He has carried every mail or has contracted with the man +who did carry it. Every solitary thing that has been done from that +day to this has been done by him. Every dollar has been collected +by Mr. Bosler, and every dollar has been disbursed by Mr. Bosler. +And before we get through I am going to tell you how all the routes +that were given to Mr. S. W. Dorsey came out. Let me tell you how +they came out. Mr. Bosler has carried the mail, paid the expenses, +kept the accounts, and, gentlemen, I am going to tell you how much +he made out of this vast conspiracy that has convulsed that part of +the moral world that has been hired and paid to be convulsed. I am +going to tell you exactly how we came out on all this business. I +will give you the product of all this rascality, of all this +conspiracy, of all the written and spoken lies; I will tell you our +joint profit on this entire business; a business that promised to +change the administration of this Government; a business about +which reputations have been lost, and no reputations will be won; +counting it all, every dollar, and taking into consideration the +midnight meetings, the whisperings in alleys, the strange grips and +signs that we have had to invent and practice, you will wonder at +the amount. I will give it to you all. Mr. Bosler has kept the +books, has expended every dollar, collected every warrant, and I +say to you to-day that the entire profit has been less than ten +thousand dollars, not enough to pay ten witnesses of the +Government. Our profits have not been one-fiftieth of the expense +of the Government in this prosecution—not one-fiftieth, and I +say this, gentlemen, knowing what I am saying. It is charged by the +Government that these gentlemen were conspirators; that they +dragged the robes of office in the mire of rascality; that they +swore lies; that they made false petitions; that they forged the +names of citizens; that they did all this for the paltry profit of +ten thousand dollars. That is what we will show you. And the moment +this reform administration swept into power they cut down the +service on these routes. They not only did that, but they refused +to pay the month's extra pay, and they committed all this villainy +in the name of reform. And do you know some of the meanest things +in this world have been done in the name of reform? They used to +say that patriotism was the last refuge of a scoundrel. I think +reform is. And whenever I hear a small politician talking about +reform, borrowing soap to wash his official hands, with his mouth +full and his memory glutted with the rascality of somebody else I +begin to suspect him; I begin to think that that gentleman is +preparing to steal something. So much, then, for the conspiracy up +to this point, up to the division of these routes in 1879. Now +recollect it.</p> +<p>Now, the next charge that is made against us, and it is a +terrific one, is that these defendants, my clients, have filled the +Post-Office Department with petitions—false petitions; forged +petitions. I want to tell you here to-day that these gentlemen will +never present any petitions upon any route upon which my clients +are interested that they will claim was forged—not one. Have +we not the right, gentlemen, to petition? Has not the humblest man +in the United States a right to send a petition to Congress? Has +not the smallest man—I will go further—has not the +meanest man the right to petition Congress? Why, it is considered +one of our Constitutional rights not only, but a right back of the +Constitution, to make known your grievances to the governing power. +Every man always had a right to petition the king. There is no +government so absolutely devoid of the spirit of liberty that the +meanest subject in it has not the right to express his opinion to +the king—to the czar. Upon what meat do these officers feed +that they are grown so great that an ordinary citizen may not +address a petition to one of them? Now, I ask you, if you were +living in Colorado and could get a mail once a week, have you not +the right to petition your member of Congress to have it three +times a week? Do you not know that every member of Congress from +every State, every delegate from every Territory, is judged by his +constitutents by the standard of what he does. By what he does for +whom? By what he does for them. They send a man to Congress to help +them, and they expect that man to get them a mail just as often as +any other member of Congress gets his people a mail, do they not? +And if he cannot do that they will leave that young gentleman at +home. They will find another man. It is the boast of a member of +Congress when he returns to his constitutents, "I have done +something for you. You only had a mail here once a week. I have got +it four times a week, gentlemen." "Here is a river that was +navigable. I have got a custom house." "Here is a great district in +which the United States holds a court and I have an appropriation +for a court-house." Up will go the caps; they will say, "He is the +man we want to represent us next session." But if he sneaks back +and says, "Gentlemen, you do not need a court-house, you have mails +often enough," the reply of the people is, "And you have been to +Congress often enough." That is nature, and no matter how highly we +are civilized when you scratch through the varnish you find a +natural man.</p> +<p>Now, then, every member of Congress felt it was his duty, his +privilege, and his leverage, to have the mails established, and +when the people got up petitions he would indorse them. He would +look at the petitions. There was the principal man, you know, in +his town. He would look down a little farther. There was a fellow +that had an idea of running against him. He would look down a +little farther, and there was the man who presented his name at the +last convention; there is the fellow who subscribed three hundred +dollars towards the expenses of the campaign. That is enough. He +turns it right over—"I most earnestly recommend that this +petition be granted. So and so, M. C." Then he would put it in his +coat-pocket, and he would march down to General Brady with a smile +on his face as broad as the horizon of his countenance. He would +just explain to the gentleman that there are miner's camps +springing up all over that country, towns growing in a night like +mushrooms, Providence just throwing prosperity away in that valley; +that they have to have a daily mail then and there, and he would +show this petition. In three weeks more there would come fifty +others, and it would be granted. Why, even the counsel for the +prosecution would have done the same, strange as it may appear. +They would have done just the same—maybe worse, maybe better. +The Post-Office officials might have granted more to them.</p> +<p>Now, I have always had the idea that it was one of my rights to +sign a petition; that no man in this country could grow so great +that I had not the right just to hand the gentleman a paper with my +opinion on it. Do you know I do not think anybody can get so big +that an American citizen cannot send a letter to him if he pays the +postage, and in that letter he can give him his opinion. There is +no fraud about that; not the slightest. These men all out through +the mountains, men that went out there, you know, to hunt for +silver and for gold, live in little camps of not more than twenty +or thirty, maybe, but they wanted to hear from home just as bad as +though there had been five hundred in that very place. And a fellow +that had dug in the ground about eleven feet and had found some +rock with a little stain on it and had had the stain assayed, +wanted to hear from home right off. He stayed there and dreamed +about fortune, palaces, pictures, carriages, statues, and the whole +future was simply an avenue of joy upon which he and his wife and +the children would ride up and down. He wanted to write a letter +right off. He wanted to tell the folks how he felt. Do you think +that man would not sign a petition for another mail? Do you think +that fellow would vote to send a stupid man to Congress who could +not get another mail? He felt rich; he was sleeping right over a +hole that had millions in it, and he had not much respect for a +Government that could not afford to send a millionaire a +letter.</p> +<p>Now, Mr. Bliss tells you that we forged petitions, and in only a +few moments, as the Court will remember, he had the kindness to say +that anybody in the world would sign a petition for anything, and +the question arises if people are so glad to sign petitions why +should we forge their names. Do you not see that doctrine kind of +swallows itself. You certainly would not forge the name of a man to +a note who was hunting you up to sign it. And yet the doctrine of +the Government is that while the whole West rose en masse, each man +with a pen in his hand and inquiring for a petition, these +defendants deliberately went to work and forged it. It won't do, +gentlemen. Oh, my Lord, what a thing a little common sense is when +you come to think about it, when you come to place it before your +mind.</p> +<p>Now, the next great trouble in this case, gentlemen, is that we +bid on routes that were not productive. When you remember that +Congress made all these routes—now Congress did it; we did +not do it—you will protect us. We did not make a solitary +route upon which we bid, strange as it may appear. Congress, with +the map of the Territories and the States of the Union before it, +marked out all the routes. Congress determined where these routes +should run. And yet this case has been tried as though in reality +we were the parties who determined it.</p> +<p>Now, let me say something right here. It is for Congress to +determine first of all on what routes the mail shall be carried. I +want you to understand that, to get it into your heads, way in, +that Congress determined that question, and that there has to be a +law passed that the mail shall be carried from Toquerville to +Adairville, from Rawlins to White River. That law has to be passed +first, and Congress has to say that that route shall be +established. Now, get that in your minds. I give you my word we +never established a mail on the earth. That was done by Congress, +and the moment Congress establishes a route it becomes the duty of +the Second Assistant Postmaster-General to put the service upon +that route, and the duty of the First Assistant Postmaster-General +to name the offices on that route. Is not that true? That is the +doctrine. Now, that had all been done before we entered into a +conspiracy. These routes had not only been established, but the +Government had advertised for service on these routes, and we bid. +That was our crime.</p> +<p>These gentlemen said, I believe, at one time, that they were +about to lift a little of the curtain, to expose the action of +Congress. You see this suit has threatened the whole Government. If +the Constitution weathers this storm it will be in luck. They were +going to raise the curtain. They were going to be like children +hanging around a circus tent. One lifts it up and hallooes to +another, "Come quick, I see a horse's foot." They said that they +were going to show the rascality of Congress. They have never done +it. I suppose the reason may be that their pay depends upon an act +of Congress, but they let that alone. Now, they say that Congress +committed a great mistake. Why, they say they were routes that were +not productive, and we knew it, and that when the people asked for +expedition and increase on a route that was not productive we were +guilty of fraud.</p> +<p>Now, gentlemen, let us see: There are not a great many +productive post-offices in the United States. They say that a +post-office that is not productive should be wiped out. Let me say +to you, you cut off the post-offices that are not productive and +you will have thousands the next day that are not productive. It is +the unproductive offices that make others productive. You cut off +those that are not productive and you will have double the number +that are not productive. You cut off all those that are +unproductive and you will have nothing left but the mail line. You +might say that there is not a spring that flows into the +Mississippi that is navigable. Let us cut off the springs. Then +what becomes of the Mississippi? That is not navigable either. It +is on account of the streams not navigable, emptying into one, that +the one into which they empty, becomes navigable. And yet, these +gentlemen say in the interest of navigation, "Let us stop the +springs because you cannot run a boat up them." That is their +doctrine. There is no sense in that. You have got to treat this +country as one country. You have got to treat the post-offices +business as a unit for an entire country. You have got to say that +wherever the flag floats the mail shall be carried, wherever +American citizens live they shall be visited with the intelligence +of the nineteenth century. That is what you have got to say. You +have got to get up on a good high plane, and you have got to run a +great Government like this that dominates the fortune of a +continent, and you have got to run it like great men. There has got +to be some genius in this thing and not little bits of +suspicion.</p> +<p>Productiveness! Let us see. We are informed by Mr. Bliss, who is +paid for saying it, otherwise he would not, that the West is +perfectly willing to have mail facilities at the expense of the +East. I do not think the gentleman comprehends the West. There is +nothing so laughable, and sometimes there is nothing so +contemptible, as the egotism of a little fellow who lives in a big +town. Some people really think that New York supports this country, +and probably it never entered the mind of Mr. Bliss that this +country supported New York. But it does. All the clerks in that +city do not make anything, they do not manufacture anything, they +do not add to the wealth of this world. I tell you, the men who add +to the wealth of this world are the men who dig in the ground. The +men who walk between the rows of corn, the men who delve in the +mines, the men who wrestle with the winds and waves of the wide +sea, the men on whose faces you find the glare of forges and +furnaces, the men who get something out of the ground, and the men +who take something rude and raw in nature and fashion it into form +for the use and convenience of men, are the men who add to the +wealth of this world. All the merchants in this world would not +support this country. My Lord! you could not get lawyers enough on +a continent to run one town. And yet, Mr. Bliss talks as though he +thought that all the mutton and beef of the United States were +raised in Central Park, as though we got all our wool from shearing +lambs in Wall Street. It won't do, gentlemen. There is a great deal +produced in the Western country. I was out there a few years ago, +and found a little town like Minneapolis with fifteen thousand +people, and everybody dead-broke. I went there the other day and +found eighty thousand people, and visited one man who grinds five +thousand bushels of flour each day. I found there the Falls of +Saint Anthony doing work for a continent without having any back to +ache, grinding thirty thousand bushels of flour daily. Just think +of the immense power it is. Millions of feet of lumber in this very +country, and Dakota, over which some of these routes run, yielding +a hundred million bushels of wheat. Only a few years ago I was +there and passed over an absolute desert, a wilderness, and on this +second visit found towns of five and six and seven thousand +inhabitants. There is not a man on this jury, there is not a man in +this house with imagination enough to prophesy the growth of the +great West, and before I get through I will show you that we have +helped to do something for that great country.</p> +<p>Productiveness! Let me tell you where that idea of +productiveness was hatched, where it was born, the egg out of which +it came. It was by the act of March 2, 1799, just after the +Revolution, and just after our forefathers had refused to pay their +debts, just after they had repudiated the debt of the +Confederation, just after they had allowed money to turn to ashes +in the pockets of the hero of Yorktown, or had allowed it to become +worthless in the hand of the widow and the orphan. In 1799, the +time when economy trod upon the heels almost of larceny, our +Congress provided that the Postmaster-General should report to +Congress after the second year of its establishment every post-road +which should not have produced one-third the expense of carrying +the mail. Recollect it, and I want you to recollect in this +connection that we never established a post-route in the world. We +will show that, anyway, if we show nothing else. By the act of 1825 +a route was discontinued within three years that did not produce a +fourth of the expenses. Now, when those laws were in force the +postage was collected at the place of delivery.</p> +<p>But in old times, gentlemen, in Illinois, in 1843, it was +considered a misfortune to receive a letter. The neighbors +sympathized with a man who got a letter. He had to pay twenty-five +cents for it. It took five bushels of corn at that time, five +bushels of oats, four bushels of potatoes, ten dozen eggs to get +one letter. I have myself seen a farmer in a perturbed state of +mind, going from neighbor to neighbor telling of his distress +because there was a letter in the post-office for him. In 1851 the +postage was reduced to three cents when it was prepaid, and the law +provided that the diminution of income should not discontinue any +route, neither should it affect the establishment of new routes, +and for the first time in the history of our Government the idea of +productiveness was abandoned. It was not a question of whether we +would make money by it or not; the question was, did the people +deserve a mail and was it to the interest of the Government to +carry that mail? I am a believer in the diffusion of intelligence. +I believe in frequent mails. I believe in keeping every part of +this vast Republic together by a knowledge of the same ideas, by a +knowledge of the same facts, by becoming acquainted with the same +thoughts. If there is anything that is to perpetuate this Republic +it is the distribution of intelligence from one end to the other. +Just as soon as you stop that we grow provincial; we get little, +mean, narrow prejudices; we begin to hate people because we do not +know them; we begin to ascribe all our faults to other folks. I +believe in the diffusion of intelligence everywhere. I want to give +to every man and to every woman the opportunity to know what is +happening in the world of thought.</p> +<p>I want to carry the mail to the hut as well as to the palace. I +want to carry the mail to the cabin of the white man or the colored +man, no matter whether in Georgia, Alabama, or in the Territories. +I want to carry him the mail and hand it to him as I hand it to a +Vanderbilt or to a Jay Gould. That is my doctrine. The law of 1851 +did away with your productiveness nonsense, and when the mails were +first put upon railways in the year 1838, the law made a limit, not +on account of productiveness, but a limit of cost, and said the +mail should not cost to exceed three hundred dollars a mile. Let me +correct myself. In 1838 a law was passed that the mails might be +carried by railroad provided they did not cost in excess of +twenty-five per cent, over the cost of mail coaches. In 1839 that +law was repealed, and the law then provided that the pay on +railways should be limited to three hundred dollars a mile. So you +see how much productiveness has to do with this business. In 1861 +Congress provided for an overland mail. Did they look out for +productiveness? The overland mail in 1861 was a little golden +thread by which the Pacific and the Atlantic could be united +through the great war. Just a mail, carrying now and then a letter +in 1861, and they were allowed, I think, twenty or thirty days to +cross. Was productiveness thought of? Congress provided that they +might pay for that service eight hundred thousand dollars a year. +The mail did not exceed a thousand pounds. Including everything. +Some letters that were carried from this side to the other cost the +Government three hundred dollars apiece. What was the object? It +was simply that the hearts of the Atlantic and the Pacific might +feel each other's throb through the great war. That is all. Suppose +some poor misguided attorney had stood up at that time and +commenced talking about productiveness. In the presence of these +great national objects the cost fades, sinks. It is absolutely +lost. Wherever our flag flies I want to see the mail under it. +After awhile we established what is known as the free-delivery +system. That was first established on the idea of productiveness. +Whenever you start a new idea, as a rule, you have to appeal to all +the meanness that is in conservatism. Before you can induce +conservatives to do a decent action you have to prove to them that +it will pay at least ten per cent. So they started that way. They +said, "We will only have this free delivery system where it pays." +We went on and found the system desirable, and that many people +wanted it, and that the revenues of the Post-Office Department were +so great that we could afford it, and we commenced having it where +it did not pay. Right here in the city of Washington, right here in +the capital of the great Republic, we have the free delivery +system. Is it productive? Last year we lost twenty-one thousand +dollars distributing letters to the attorneys for the prosecution +and others. And yet now this District has the impudence to talk +about productiveness. If anybody wants to find that fact it can be +found on pages 42 and 45 of the Postmaster-General's report. +Productiveness! We have now a railway service in the United States. +I want to know if that is calculated upon the basis of +productiveness. A car starts from the city of New York, and runs +twelve hours ahead of the ordinary time to the city of Chicago for +the simple purpose of carrying the mail, stopping only where the +engine needs water, only when the monster whose bones are steel and +whose breath is flame, is tired. Do you suppose that pays? You +could scarcely put letters enough into the cars at three cents +apiece to pay for the trip. At last we regard this whole country as +a unit for this business. We say the American people are to be +supplied. We do not care whether they live in New York or in +Durango; we do not care whether they are among the steeples of the +East or the crags of the West; we do not care whether they live in +the villages of New England or whether they are staked out on the +plains of New Mexico. For the purpose of the distribution of +intelligence this great country is one. Do you see what a big idea +that is? When it gets into the heads of some people you have no +idea how uncomfortable they feel. I have as much interest in this +country as anybody, just exactly, and I am willing to subscribe my +share to have this mail carried so that the man on the very western +extreme, on the hem of the national garment, may have just as much +as the man who lives here in the shadow of the Capitol. You see +whenever a man gets to the height where he does not want anything +that he is not willing to give somebody else, then he first begins +to appreciate what a gentleman is and what an American should be. +Productiveness! I say that all the State and Territorial lines have +been brushed aside. We do not carry the mail in a State because it +pays. We carry it because there are people there; because there are +American citizens there; not because it pays. The post-office is +not a miser; it is a national benefactor. There are only seventeen +States in this Union where the income of the Post-Office Department +is equal to the outlay; only seventeen States in this Union. There +are twenty-one States in which the mail is carried at a loss. There +are ten Territories in which we receive substantially nothing in +return for carrying the mail, and there is one District, the +District of Columbia. I do not know how many miles square this +magnificent territory is; I guess about six. Thirty-six square +miles. How much is the loss in this District per annum? About one +thousand five hundred dollars a square mile. The annual loss right +here in this District is fifty-eight thousand dollars, and yet the +citizens of this town are rascally enough to receive the mail, +according to the prosecution. Why is it not stopped? Why is not the +Postmaster-General indicted for a conspiracy with some one? This +little territory, six miles square has a loss of fifty-eight +thousand dollars.</p> +<p>If there was a corresponding loss in Kansas, Nebraska, +California, Dakota, and Idaho, it would take more than the national +debt to run the mail every year. And yet here in thirty-six square +miles comes the wail of non-productiveness. It is almost a joke. We +are carrying the mail in Kansas at a loss of two hundred and fifty +thousand dollars a year, and yet Kansas has a hundred million +bushels of wheat for sale. Good! I am willing to send letters to +such people. It is a vast and thriving country. It contains men who +have laid the foundation of future empires. I want people big +enough and broad enough and wide enough to understand that the +valley of the Mississippi will support five hundred millions of +people. Let us get some ideas, gentlemen. Let us get some sense. +There is nothing like it. We pay five hundred thousand dollars a +year for the privilege of carrying the mail in Nebraska. Do you +know I am willing to pay my share. Any man who will go out to +Nebraska and just let the wind blow on him deserves to have plenty +of mail. You do not know here what wind is. You have never felt +anything but a zephyr. You have never felt anything but an +atmospheric caress. Go and try Nebraska. The wind there will blow a +hole out of the ground. Go out there and try one blizzard, a fellow +that robs the north pole and comes down on you, and you will be +willing to carry the mail to any man that will stay there and plow +a hundred and sixty acres of land. When I see a post-office clerk +sitting in a good warm room and making a fuss about a chap in +Nebraska for not carrying the mail against a blizzard, I have my +sentiments. I know what I think of the man. In the Territory of +Utah we pay two hundred and thirty thousand dollars a year for the +privilege of carrying the mails, and the males in that country are +mostly polygamists. I want you to get an idea of this country. In +the State of California, that State of gold, that State of wheat, +the State that has added more to the metallic wealth of this nation +than all others combined, an empire of magnificence, we pay five +hundred thousand dollars a year for the privilege of distributing +the mail. I am glad of it. I want the pioneer fostered. I want the +pioneer to feel the throb of national generosity. I want him to +feel that this is his country. You see the post-office is about the +only blessing he has. Every other visitor that comes from the +General Government wants taxes. The Post-Office Department is the +only evidence we possess of national beneficence. It is the only +thing that comes from the General Government that has not a +warrant, that does not intend to arrest us. In Texas, which is an +empire of two hundred and seventy-three thousand square miles, a +territory greater than the French empire, which at one time +conquered Europe, we pay four hundred and fifty-nine thousand +dollars for the privilege of distributing the mail. I am glad of +it. It will not be long before that State will have millions of +people and give us back millions of dollars each year, and with +that surplus we will carry the mail to other Territories. A man who +has not pretty big ideas has no business in this country; not a +bit. We pay one hundred and eighty-nine thousand dollars for the +sake of carrying letters and papers around Arkansas; one hundred +and eighty-three thousand dollars for the privilege of wandering up +and down Alabama; one hundred and seven thousand dollars in +Missouri; two hundred and forty thousand dollars in Ohio; two +hundred and eight thousand dollars in Georgia; three hundred and +twelve thousand dollars in old Virginia. When I first went to +Illinois the Government had to pay for the privilege of carrying +the mail in that State. Now Illinois turns around and hands six +hundred and sixty thousand dollars of profit to the United States +each year. She says, "You carry the mail to the other fellows that +cannot afford it just the same as you carried it for us. You rocked +our cradle, and we will pay for rocking somebody else's cradle." +That is sense. In other words, in seventeen States we have a profit +of seven million dollars. In twenty-one States, ten Territories, +and the District of Columbia we have a loss of five million +dollars. When we regard the country as a unit, then we make money +out of the whole business. That is good. We have in the United +States about a hundred and ten thousand miles of railroad now, and +we pay about two hundred dollars a mile for carrying the mail on +those railroads. We have two hundred and twenty-seven thousand +miles of star routes, and we pay on them between twenty and thirty +dollars a mile. I want you to think about it. In looking over the +Post-master-General's report I accidentally came across this fact. +You know, gentlemen, the present period is a paroxysmal period of +reform. We are having what is known as a virtuous spasm. We have +that every little while. It is a kind of fiscal mumps or +whooping-cough. I find by this report that a mail averaging twenty +pounds carried in a baggage-car from Connellsville to Uniontown, +Pennsylvania, is paid for at the rate of forty-two dollars and +seventy-two cents a mile. Under General Brady the star routes cost +between twenty and thirty dollars a mile.</p> +<p>Now, gentlemen, I have told you our connection with the +star-route business. I have told it all to you freely, frankly, and +fully. Some charges have been made against us, and I want to speak +to you about them. You understand that it often takes quite awhile +to explain a charge that is made in only a few words. One man can +say another did so and so. It is only a lie, and yet it may take +pages for the accused man to make his explanation. The worst lie in +the world is a lie which is partly true. You understand that. When +you explain a lie that has a little circumstance going along with +it, certifying to it, and attesting to its truth, it takes you a +great deal longer to explain it than it did to tell it. The first +great charge is that for us—and I limit myself to my +clients—orders were antedated. That is one great charge. Let +me tell you just how that was. Mr. Bliss calls attention to the +fact that Mr. Brady made orders relating back, and in one case he +alleged that the order was made, for the benefit of my clients, to +take effect six weeks prior to its being issued. I want to explain +that. A railroad was being constructed along the line of one of +these routes. It may be well enough for me to say that it was the +Denver and Rio Grande Railroad. The points from which the mail was +carried had to be changed as the road progressed. As it grew Mr. +Brady increased the service on the route to seven times a week. He +increased it from the end of the railroad, and he made it seven +times a week because the mail on the railroad was seven times a +week. We were to carry the mail from the end of the railroad, +wherever that end might be. He increased the service on this route +from the end of the railroad to the other terminal point; that is, +he made it a daily mail so as to connect with the daily trains on +the railroad. At the time the seven trips were to be put on, +distance tables were sent out to postmasters at the terminal points +to get the distances. Let me tell you what a distance table is. The +names of the post-offices are on a circular, and the Post-Office +Department sends that circular to the postmasters along the route +and they are asked to return it with the distance from each station +to every other marked upon it. Now, until that table is returned it +is impossible for the Second Assistant Postmaster-General to tell +how far they carry the mail. This railroad was progressing every +month, and as the railroad advanced the distance from the end of +the railroad to the other terminal point decreased. Now, the +Postmaster-General or the Second Assistant cannot fix that pay +until he has a return of the distance table. But before he has that +return he can order the contractor to carry the mail, and after the +distance table is returned then he can make up the formal order and +have that order entered upon the records of the department. That is +all he ever did. I want you to understand that perfectly. It might +be four weeks after the contractor was ordered to carry the mail +from the termination of the railroad, or it might be five or six +weeks before the distance tables were returned and the distance +calculated. But do you not see it made no difference? There was +first an order either by telegraph or a short order, and after the +distance tables were returned then the distance was calculated, the +amount of money calculated, and the regular order written up and +made of record, and a warrant drawn for payment. That is all there +is to it. And yet this is what Mr. Bliss calls defrauding the +Government. We are charged on that kind of evidence with having +defrauded the United States. We will show you that no order of that +kind was made except when the distance was unknown; and that when +the distance was ascertained, the formal order was made, another +order having been made before that time. Let me say right here that +orders of a similar nature have been made in the Post-Office +Department since its establishment. Since the construction of +railways there has not a month passed in that +department—certainly not a year—when such orders have +not been made. And yet for the first time in the history of the +Government it is brought forward against us as an evidence of +fraud. We will show that the order was made exactly as I have +stated.</p> +<p>The next badge of fraud that is charged is that after a route +had been awarded to us it was increased or expedited, or both, +before the stock was put on. Well, I will tell you just how that +is, because you want to know. This case, apparently complicated, is +infinitely simple when it is understood. There are in the United +States, I believe, some ten thousand of these star routes. They are +all or nearly all in some way connected. One depends upon another. +It is a web woven over the entire West, and how you run a mail here +depends upon how one is run there, and the effort is to have all +these mails connect in a certain harmony so that time will not be +lost, and so that each letter will get to its destination in the +shortest possible time, and it requires not only a great deal of +experience, but it requires a great deal of ingenuity. It requires +a great deal of study and strict attention for a man so to arrange +the routes and the time in the United States that the letters can +be gotten to their destination in the shortest possible time. And +yet that is the object. You can see that. Now, you may be looking +at the route from A to B, and say that there is no sense in having +it in that time; but if you will look at the time of other routes, +if you see with what routes that connects you will say that it is +sensible. Now, you go on to another route, and, gentlemen, you see +that every solitary route is touched, is compromised, is affected +by every other route. That is what I want you to understand.</p> +<p>Now, then, Mr. Bliss says that it was a badge of fraud to +increase the time and the service on a route before the stock was +put on. Now let me show you. Here you have your scheme. Here is the +route, we will say, from A to E. You let that for a weekly route, +once a week. How fast? A hundred hours. When you get the other +routes and look at this business you see that that crosses several +places where the mail is lost. That is where a day is lost, and you +see, if instead of that being a hundred hours it were seventy-five +hours the mail at many stations would save one day or two days. +Now, then, the law vests in you the power before a solitary horse +or carriage goes upon that route to say to the man to whom the +contract was awarded, "You must carry that in seventy-five hours +instead of one hundred hours, and you must carry it four times a +week instead of once a week." If you take that power from the +Postmaster-General and from the Second Assistant those offices +become useless. It is impossible for any human intellect to take +into consideration all the facts growing out of this service.</p> +<p>There is another thing, gentlemen, which you must remember, and +that is that these advertisements for this service are not made the +day the service is wanted. These advertisements are put out six +months before there is to be any such service.</p> +<p>It is sometimes a year before that service is wanted, and if you +know anything about the West you know that in one year the whole +thing may change. That where there was not a city there may be a +city, and where there was a city nothing but desolation. Now, then, +the law very wisely has vested the power in the Second Assistant +and the Postmaster-General to rectify all the mistakes made either +by themselves or by time, and to call for faster time or for +slower, that is, for less frequent trips. Now, then, you see that +that is no badge of fraud, do you not? If, before you put a man or +a horse on that route, the Government finds it wants twice as many +trips there is no fraud in saying so, and if they find they want to +go in fifty hours instead of a hundred hours there would be fraud +in not saying so. That has been the practice since this was a +Government.</p> +<p>Now, what is the next? The next great charge against us, +gentlemen, is that when they agreed to carry a greater number of +trips, or any swifter time for money, Mr. Brady did not make us +give an additional bond, and Mr. Bliss talked about that I should +think about a day. Nearly all the time I heard him he was on that +subject. "Why did they not when they were to carry additional trips +give a new bond?" Well, I will tell you why: Because there is no +law for it. There never was a law for it—never. And Mr. Brady +had no right to demand a bond unless the statute provided for it. +When I give a bond to carry the mail once a week, and the +Government finds that it wants it carried three times a week, the +Government cannot make me give an additional bond. Why? Because the +statute does not provide for it, and Mr. Brady had not the power to +enact new laws. That is all. Why, there never was such a bond +given, and any bond that is given under duress, by compulsion, not +having the foundation of a statute, is absolutely null and void. +Everybody knows it that knows anything. And yet the gentleman comes +before you and says it is a sign of fraud that we did not give an +additional bond. There never was such a bond given in the history +of this Government—never; and in all probability never will +be unless these gentlemen get into Congress. You know the law +prescribes every bond that the contractor must give, and it is bad +enough without ever being increased during the contract term.</p> +<p>So much now for that frightful badge of fraud. I want to make +this statement so you will understand it. They have the unfairness, +they have the lack of candor to tell you that it is one of the +evidences that we are scoundrels, that we failed to give an +additional bond, and when they made that statement they knew that +by law we could not give an additional bond, and they knew that if +we had given an additional bond it would not have been worth the +paper upon which it was written. And yet they lack candor to that +degree that they come into this court and tell you that that is one +of the evidences that we have conspired against the United States. +It won't do.</p> +<p>What is the next badge of fraud? And I want to tell you this is +a case of badges, and patches, and ravelings, and remnants, and +rags. It is a kind of a mental garret, full of odd boots, and +strange cats, thrown at us, and altogether it is called a case of +conspiracy. Another badge of fraud is that whenever we carried the +mail one trip a week, and it was increased to two trips a week, +Brady was such a villain that he gave us double pay; and Mr. Bliss +informed the jury that they knew just as well as he did that it did +not cost twice as much to give two trips a week as it did to give +one. Well, who said it did? And yet they say that is an evidence of +fraud. Well, let us see. There is nothing like finding the +evidence.</p> +<p>Now, when we come to this case we will introduce a bond that we +gave at that time, and when the jury read that bond they will find +this, or substantially this:</p> +<p>It is hereby agreed by the said contractor and his sureties that +the Postmaster-General may discontinue or extend this contract, +change the schedule, alter, increase, or extend the service, he +allowing not to exceed a pro rata increase of compensation for any +additional service thereby required, or for increased speed if the +employment of additional stock or carriers is rendered necessary, +and in case of decrease, curtailment, or discontinuance, as a full +indemnity to said contractor, one month's extra pay on the account +of service dispensed with, and not to exceed a pro rata +compensation for the service retained: Provided, however, That in +case of increased expedition the contractor may, upon timely +notice, relinquish his contract.</p> +<p>Now, it is in that provided that if they call on him for double +service he is entitled to double pay. That is the law, and it has +been the practice, gentlemen, since we have had a Post-Office +Department. And why? Let me show you. Here is a man who carries a +mail from A to Y. There are supposed to be some commercial +transactions between those two places. It is supposed that now and +then a human being goes from one of those places to the other, and +the man who carries the mail, as a rule carries passengers and does +the local business. Now, do you suppose that he would agree with +the Government that he would carry the mail once a week for a +thousand dollars a year, and that they might hire another man to +carry it once a week for a thousand dollars a year, and maybe that +other man take all his passengers and all his business. The +understanding is that when I bid a thousand dollars a year for once +a week, if you put it to three times a week I am to have three +thousand dollars; four times a week, four thousand dollars; seven +times a week, seven thousand dollars, and that has been the +unbroken practice of this Government from the establishment of the +Post-Office Department until to-day. You can see the absolute +propriety of it, and you can see that any man would be almost crazy +to take a contract on any other terms, and that contract is this: +"I will carry for you so much a trip, and if you want more trips +you can have them at the same price as that fixed." That is fair. +That is what we did.</p> +<p>So much for that badge of fraud. What is the next one? It is +that the pay was increased twice as much by the increase, and, as I +said, that is the law.</p> +<p>Now let us see what is the next great badge of fraud. That we +received the pay when the mail was not carried. I deny it, and we +will show in this case, gentlemen, that we never received pay +except when the mail was carried. And how do I know? Because +General Brady established a system of way-bills, so that a way-bill +would accompany every pouch in which letters were, and they would +put on that way-bill the time that it got to the post-office, and +when that way-bill got to the terminal point it was sent here to +Washington and filed away, and at the end of every quarter a report +was made, and if a mail was behind at any post-office you would +find it on that way-bill, and if they had not made the trip then +they were fined. That way-bill system was inaugurated by General +Brady, and under that way-bill system we carried the mail, and we +could not get pay unless we had carried the mail. I call them +way-bills. They are mail-bills that go with the pouch and give a +history of each mail that is carried. That is all.</p> +<p>Now another great badge of fraud. The first was that he was to +impose no fines when the mail was not carried. The next was that he +was to impose fines and then take the fines off for +half—fifty per cent. Now, would not that be an intelligent +contract? I carry the mails. You are the Second Assistant +Postmaster-General. I agree with you that if you fine me and then +will take the fine off I will give you half of it. About how long +would it take you to break me up? And yet that is honestly and +solemnly put forward here as a fact in the case. They tell a story +of a man who was bitten by a dog. Another man said to him, "I'll +tell you what to do. You just sop some bread in that blood and give +it to the dog; it will cure you." "Oh, my God!" says he, "if the +other dogs hear of it they will eat me up." And here it is, without +a smile, urged before this jury that we made a bargain that a +fellow might fine us for the halves. Well, there may be twelve men +in this world who believe that. They are unfortunate.</p> +<p>The next charge is that a subcontract was made for less than the +original contract. Well, that is where most of the money in this +world is made. Thousands and millions of men have made fortunes by +buying corn at sixty cents a bushel to be delivered next February, +and selling the same corn for seventy cents. There is where +fortunes live. The difference between a contract and a subcontract +is the territory of profit in which every American loves to settle. +You make a contract with the Government to furnish, say, a thousand +horses of a certain kind for one hundred and fifty dollars apiece. +You go and make a subcontract with some one to furnish you those +same horses for one hundred and twenty-five dollars apiece. Is that +a fraud? You have taken upon yourself the responsibility and if +your subcontractor fails you must make it good. There is no harm in +that.</p> +<p>Suppose I agree with you to-morrow that if you will furnish me +one thousand bushels of wheat on the first day of January, I will +give you one thousand five hundred dollars, and I find out that you +made a bargain with another fellow to do it for a thousand dollars. +If I am an honest man I suppose I will jump the contract, won't I? +Not much. If I am an honest man I will say, "Well, you made five +hundred dollars; I am glad of it; good for you." But the idea of +the prosecution is that the moment Brady saw a subcontract for less +than the original contract he should have had a moral spasm, and +said, "I won't carry out the contract; I will swindle you, I will +rob you, and I will do it in the name of virtue." And that is the +meanest way a man ever did rob—in the name of virtue, reform. +So much for that. But if you ever make a contract with this +Government and can make a subcontract at the same price you do it +as quick as you can.</p> +<p>The next is, that whenever he discontinued a route or any part +of a route, rather, he gave us a month's extra pay; you heard that, +did you not? He was on that subject about a half a day. How did he +come to do that? I will tell you. There is nothing like +looking:</p> +<p>And in case of decrease, curtailment, or discontinuance of +service, as a full indemnity to said contractor one month's extra +pay on the amount of service dispensed with.</p> +<p>That is first the law, secondly the contract, and thirdly it was +made in the interest of the United States. And why? Suppose the +United States made a contract with a man to carry a mail from New +York to Liverpool, and in consequence of that contract the man +bought steamships to perform the service, and then the United +States made up its mind not to carry the mail. That man might get +damages to the amount of hundreds and thousands of dollars. +Therefore the United States endeavored to protect itself and say +the limit of damage shall be one month's pay, and that has been the +law for years, and that law has been passed upon by the Supreme +Court of the United States. It was passed upon in the case of +Garfielde against the United States, where he claimed greater +damages because he had all the steamships to carry the mail from +San Francisco to Portland, and the Supreme Court said it made no +difference what his expense had been. He was bound by the letter of +the law and the contract, and could have only one month's extra pay +as his entire damage.</p> +<p>Now, these gentlemen bring forward a law to protect the United +States Government, and they bring that forward as an evidence of +conspiracy, as evidence of a fraud. Nothing could be more unfair, +nothing on earth could show a greater want of character. Now, let +us see what else.</p> +<p>The next great charge is false affidavits. They tell you that we +made lots of them; that we just had them for sale. False +affidavits! And that Mr. John W. Dorsey made two false affidavits +in two cases. The evidence will show that he did not. The evidence +will show that he made only one in each case, when we come to it. +But I want to call your attention to this fact, that in one case +one affidavit was made where it said the number of men and horses +then necessary was eight, that on the expedited schedule it would +be twenty-four. Three times eight are twenty-four. The second +affidavit said the number of men and horses then was fifteen, and +the number on expedition and increase would be forty-five. Three +times fifteen are forty-five. So that the amount taken from the +Government would be exactly the same on both affidavits. You +understand that. For instance, if it took five horses and men to do +the then business, and would require fifteen to do the expedited +and increased business, then you would be entitled to three times +the amount of pay. So in this case one affidavit said it took eight +and would take twenty-four, the other affidavit said it took +fifteen and would take forty-five. Three times eight are +twenty-four. Three times fifteen are forty-five. So that the amount +of money taken from the Government would be exactly the same under +each affidavit. Now, that is all there is of that.</p> +<p>In the next case, where he made two affidavits, I find that by +the second affidavit it took, I think, thirteen thousand dollars +less from the Government, and yet they call the second affidavit a +piece of perjury. And here is one thing that I want to impress upon +all your minds. Where you not only carry the mail but carry +passengers, it is an exceedingly difficult problem to say just how +many horses and men it requires to carry the mail, and then how +many men and horses it requires to carry the passengers. It is hard +to make the divide you understand—very hard. You can tell, +for instance, the cost of mounting a railroad for a hundred miles, +but it is very difficult to tell the cost of the bridges or what +the spikes cost or what the deep cuts cost. You can take the whole +together and say it cost so much a year. So in this case we can say +it requires so many men and horses doing the business that we are +doing, but it is almost impossible for the brain to separate +exactly the passengers, the package business, from simply carrying +the mail. As I said before, men will differ in opinion. Some men +will say it will take ten horses, others twenty, others +twenty-five, and then the next question arises, and I want to call +particular attention to that question, and that is, whether the law +means only the horses absolutely carrying the mail; whether the law +means by carriers only the men who ride the horses or drive the +wagons. Now, I will tell you what I mean. I undertake to carry the +mail, we will say from Omaha to San Francisco. How many men will it +take? Now, I will count all the men who are driving the stages, all +the men who are gathering forage, all the men who are attending to +that business in any way, and if on the way I have blacksmiths' +shops where my horses are shod I will count those men. If I have +men engaged in drawing wood a hundred miles, I will count those +men. In other words, I will count all the men I pay, no matter +whether they are keeping books in New York or carrying the mail +across the desert. I will count all the men I pay; so will you. +What horses will you count? All the horses engaged in the business; +those that are drawing corn for the others, as well as the rest, +will you not? There is an old fable that a trumpeter was captured +in the war and he said to his captor, "I am not a soldier, I never +shot anybody." "Ah," they said, "but you incited others to shoot, +and you are as much a soldier as anybody; we want you."</p> +<p>Now, I say that we are entitled to count every man who carries +the mail, and every man necessary to perform that service. So do +you. Now, there we divide. The Government says we shall count +simply the men carrying the mail, nobody else, and we shall count +simply the horses in actual service. That is nonsense. For +instance, you have got to have thirty horses. They are going all +the time. Do you depend on just that thirty? No, sir. If one gets +lame you cannot carry the mail. You have got to have twenty or +thirty horses in your corral, in the stables, so that if one of the +others gives out you will have enough. That is one great question +in this case, gentlemen. What I say to you now is that on every one +of these routes in which my clients are interested, or, I may say, +in which anybody is interested, the evidence will be that the +affidavits were substantially correct. In many cases there was a +far greater difference between the men and horses then used and the +men and horses that were afterwards necessary.</p> +<p>You must take another thing into consideration. In a country +where there are Indian depredations one man will not stay at a +station by himself. He wants somebody with him; he wants two or +three with him, and the more frightened he is the more men he will +want. On that route from Bismarck to Tongue River, as to which it +was sworn it would take a hundred and fifty men, the statement was +made at a time when the men would not stay separately; that they +wanted five or six together at one station; that they wanted men +out on guard and watch. You will find before we get through, +gentlemen, that the affidavits do not overstate the number. You +will find in addition that these petitions were signed by the best +men; that that service was asked for by the best men, not simply in +the Territories, but by some of the best men in the United States; +by members of Congress, by Senators, by generals, by great and +splendid men, men of national reputation. So when we come to that +we will show to you that the affidavits made were substantially +true. There is another charge that has been made, and that is that +the affidavits in Mr. Peck's name were not made by him; that he +never signed these affidavits.</p> +<p>Yet, gentlemen, we will prove to you as the Government once +proved by Mr. Taylor, a notary public in New Mexico, that Mr. Peck +appeared personally before him; that he was personally acquainted +with Mr. Peck, and that he signed and swore to those affidavits in +his presence. That we will substantiate in this trial as the +Government substantiated it in the other. These gentlemen, are +among the charges that have been made against us. I say to you +to-day they will not be able to show that we ever put upon the +files of the Post-Office Department a solitary letter, a solitary +petition, a solitary communication that was not genuine and true. +Not one. They cannot do it. They never will do it. You will be +astonished when you hear these petitions to find the Government +admitting that they are true. If they do not read them we will read +them. That is all.</p> +<p>Now, I have stated to you a few of the charges made against my +clients up to this point. I want to keep it in your mind. I want +each man on this jury to understand exactly what I say. Let us go +over this ground a little. I want to be sure you remember it. In +the first place, S. W. Dorsey was not interested in these routes. +All the bids were made by John W. Dorsey, John M. Peck, John R. +Miner, and a man by the name of Boone. All the information was +gathered by Mr. Boone by sending circulars to every postmaster on +the routes. Upon that information John W. Dorsey, John M. Peck, and +John R. Miner made their calculations and made their bids, +numbering in all about twelve hundred. Of that number they had +awarded to them a hundred and thirty-four contracts. Recollect +that. After those contracts were awarded to them they were without +the money to put the stock on all the routes, because more +contracts were awarded than they expected. Thereupon John R. Miner +borrowed some money from Stephen W. Dorsey and kept up that +borrowing until the amount reached some sixteen or eighteen +thousand dollars. Don't forget it. After it got to that point Mr. +Dorsey started for New Mexico. At Saint Louis he met John R. Miner, +then coming from Montana, and John R. Miner said to him, "We have +got to have some more money of you;" and Dorsey replied, "I have no +more money to give you." Miner then said, "You give your note or +indorse mine for nine or ten thousand dollars." Dorsey replied, "If +you will give me post-office orders and drafts, not only to secure +the note I am about to indorse or make for you, but also to the +amount of the money I have advanced for you, I will give the note." +That was agreed upon. Thereupon he gave the note. It was discounted +in the German-American National Bank, and Mr. Miner deposited with +the note the orders on the Post-Office Department, not only to +secure the note, but the sixteen thousand dollars that Dorsey had +before that time advanced. Dorsey went on to New Mexico, and in May +or July of that year another law was passed, allowing a +subcontractor to put his subcontract on file. After he had advanced +that money and indorsed or signed the note, they made the contract +with Mr. Vaile, turning these routes over to him and giving him +subcontracts on all these routes. When Stephen W. Dorsey came back +from New Mexico in December of that year he found that the note at +the German-American National Bank had been protested, and that his +collateral security was at that time worthless, because the +subcontracts had been filed and these subcontracts cut out the +post-office orders or drafts. Thereupon he wanted a settlement. +Matters drifted along until April, 1879, and a settlement was made. +I have told you that from the time the routes were given to Mr. +Vaile until that time nobody had the slightest thing to do with +them except Mr. Vaile; that in April, 1879, the division was made; +that Mr. Vaile paid the note at the German-American National Bank; +that the division was made, as I told you, by Mr. Vaile drawing one +route, Mr. Dorsey one, and Mr. Miner one, and keeping that up until +they were all drawn. I forgot to tell you before that Mr. S. W. +Dorsey had sixteen thousand dollars, to which, if you add the +interest, it would be about eighteen thousand dollars; that John W. +Dorsey had ten thousand dollars and John M. Peck had ten thousand +dollars, and when that division was made Stephen W. Dorsey agreed +to pay John W. Dorsey ten thousand dollars, and to pay John M. Peck +ten thousand dollars for his interest. Gentlemen, he did pay John +W. Dorsey ten thousand dollars, and he did pay the same amount to +Peck, and from that day to this John W. Dorsey has never had the +interest of one solitary cent in any one of these routes. He was +simply paid back the money that he expended. Not another cent. John +M. Peck never made by this business one solitary dollar. He simply +received back the money he had expended. After he had paid back +that money to both of these men, Stephen W. Dorsey took these +routes with a debt to him of between sixteen and eighteen thousand +dollars. Now, as to Mr. Rerdell. They say he was the private +secretary of Stephen W. Dorsey. He never was; not for a moment, not +for a single moment He attended to some of this business. I have no +doubt that the Government imagine they can debauch somebody in +order to get information. I give them notice now—GO on. There +is no living man whose testimony we fear. There is no living lawyer +who has the genius to make perjury do us harm. I want you to +understand it. And I want them to understand that I know precisely +what they are endeavoring to do. There is only one way for them to +surprise me, and that is for them to do a kind thing.</p> +<p>Now, gentlemen, at that time—I want you to remember it; I +do not want you to forget it—when these routes came to Mr. +Dorsey, he, not understanding the business, turned it over to Mr. +James W. Bosler. Mr. Bosler, as I told you before, is a man of +wealth. But, say these gentlemen, "While these routes were in your +possession, and while Stephen W. Dorsey had an interest in them he +asked men to sign petitions in favor of an increase of trips and +decrease of time." What if he did? Suppose you have a house out +here somewhere; you can petition to have a street opened, even if +you have the contract for paving the street. You have a right to +petition to have a schoolhouse located in your neighborhood even if +you have children. There is no harm about that. You certainly can +petition to have cows prevented from running at large even if there +is no fence around your yard. I think you could do so without being +indicted for conspiracy. I think a man might start a subscription +for a church, even if he owned a brick-yard and expected to sell +bricks to build it. Now, suppose I had a contract to carry the mail +through the State of California from one end to the other once a +week, is there any harm in my asking the people of that country to +petition to have it carried twice a week? Do you not remember what +I told you? All the members of Congress out there, when they go +home want to say to the people when they meet at the convention +with all the delegates on hand. "Why, gentlemen, you did not used +to get the New York Herald or New York Times, or The Sun, until it +was two weeks old, and now it is only a week old. Where you only +had one mail I have given you three. I have got fifty thousand +dollars to improve your harbor, and one hundred thousand dollars +for a new custom-house. Look at me, gentlemen, I am a candidate for +re-election." That is natural. This Court will instruct you that +any man who is carrying a mail anywhere in the United States has +the right to use his influence in getting up petitions for the +increase of that service or the expedition of that time. They say +Dorsey did this. What of it? They say Dorsey tried to manufacture +public opinion. That is what these gentlemen of the prosecution +have been doing for eighteen months, and now they object to the +manufacture of public opinion. Public opinion is their stock in +trade.</p> +<p>Leaving that charge, every man who has a contract for carrying +the mail has the right to call the attention of every editor in +that country to the fact that they need more mail service. He has +the right to send his agents there and if the people want to +petition for more service, and if Congress is willing to give them +more service, no human being has a right to complain in this manner +and in a criminal court. If any offence has been committed it is of +a political nature. If a member of Congress gets too much service +his people can keep him at home. If he does too much for his +locality they need not elect him the next time. It is a political +offence for which there is a political punishment and a political +remedy. So much for the right of petition. I am perfectly willing +to tell all he did in regard to the increase of service and the +expedition.</p> +<p>While I am on that point I want you to distinctly understand +what increase is and what expedition is. Increase of service means +more of the same kind. Suppose I am to carry the mail from one +place to another. We will call it from Si-Wash to Oo-Ray. If I am +to carry that mail once a week for five hundred dollars and they +want it twice a week, I have one thousand dollars, but do not carry +it any faster. That is an increase. Suppose I am carrying it in say +two hundred hours and they want it carried in half that time. That +is what they call expedition. Now, the question is as to the +difference in cost of carrying the mail at six miles an hour, or at +two and a half, or two, or one and a half. If I carry it slowly, I +can go at a reasonable rate in the day and can lie by at night. I +want you to understand distinctly the difference between increase +of service, which is more of the same kind, and expedition, which +means the same kind at a faster rate. Now, I can carry the mail +twenty miles and back in a day and do that a great deal easier than +if I were to make the distance in four or five hours. The +difference is just about the same with a locomotive as with a +horse. If a train runs twenty miles an hour and you want to +increase its speed to thirty, it will cost altogether more than +twice as much as it does to run it at twenty. If you want to +increase it still further to forty or sixty, it will cost at sixty +more than three times as much as at twenty. The cost increases in +an increased proportion. I want you to understand that. Now, we are +charged with having done some frightful things on several of these +routes, and for three days and a half your ears were filled with +charges of the rascality we have perpetrated. We had some ten or +eleven routes, and we are charged with having defrauded the +Government on those particular routes. Let us see what my clients +did. Do not understand me as saying that because my clients have +done nothing the other defendants have. I do not take that +position. I take the position that according to the evidence in +this case there is nothing against any of these defendants. Leave +out passion, prejudice, falsehood, and hatred and there is +absolutely nothing left. If you will take from Mr. Bliss's speech +all the mistakes he made in law and fact, there will be nothing +left to answer; not a word. But I think it due to my client, +gentlemen, my client who is not able to be in this court, my client +who sits at home wrapped in darkness, that I should answer every +allegation touching every route in which he was interested. I think +it due to him. [Resuming]</p> +<p>I will call your attention to a few of the routes, possibly to +all, in which my clients were interested. It will take but a short +time. I want you to know whether or not these routes were +important, whether it was proper to carry the mails as they were +carried, whether it was proper that they should be carried from +once to seven times a week, and whether it was proper that the +speed should be expedited. Now, you may think after hearing the +evidence that there were some routes that never should have been +established; but that does not establish a conspiracy. That simply +establishes the fact that Congress created routes where they were +not absolutely necessary. You may come to the conclusion that +General Brady ordered more trips on some of these routes than he +should have ordered. That does not establish a conspiracy. The most +that it could establish would be extravagance, and extravagance is +not a crime. If it were, the penitentiaries of the day would not be +large enough—or rather would be large enough, and too large, +to hold the honest men. You may say after you have heard the +evidence that the time was faster than it need be; but you must +take into consideration all the connecting routes, and even if you +should so feel, it is for you to say whether that establishes any +conspiracy. All these things must be taken into consideration.</p> +<p>We will take first the route from Garland to Parrott City. +***</p> +<p>Now, I have gone over just a few of these charges. I have shown +you that they are false; that they are without the slightest shadow +of foundation in fact. Now, gentlemen, after you hear all this +evidence, it is for you to determine. It is for you to say whether +these men entered into a conspiracy to defraud this Government. It +is for you to say whether our testimony is to be believed, or +whether you are to decide this case upon the suspicions of the +Government. It is for you to say whether you will believe the +contracts and the witnesses, or whether you will take the prejudice +of the public press; whether you will take the opinion of the +Attorney-General; whether you will take the letter of some +counselor at law, or whether you will be governed by the testimony +in this case. It is for you to say, gentlemen, whether a man shall +be found guilty on inference; whether a man shall be deprived of +his liberty by prejudice. It is for you to say whether reputation +shall be destroyed by malice and by ignorance. It is for you to say +whether a man who fought to sustain this Government shall not have +the protection of the laws. It is for you [indicating a juror] and +it is for you [indicating another juror] and you [indicating +another juror] and you [indicating another juror] to say whether a +man who fought to take the chains off your body shall have chains +put upon his by your prejudice and by your ignorance. It is for you +to say whether you will be guided by law, by evidence, by justice, +and by reason, or whether you will be controlled by fear, by +prejudice, and by official power. That, gentlemen, is all I wish to +say in this opening.</p> +<a name="link0005" id="link0005"><!-- H2 anchor --></a> +<div style="height: 4em;"><br /> +<br /> +<br /> +<br /></div> +<h2>CLOSING ADDRESS IN SECOND STAR ROUTE TRIAL</h2> +<h3>Closing Address to the Jury in the Second Star Route +Trial.</h3> +<p>MAY it please the Court and gentlemen of the jury: Perhaps some +of you, may be all of you, will remember that I made one of the +opening speeches of this case, and that in that opening speech I +endeavored to give you the scheme or plan of the indictment. I told +you, I believe, at that time, that all these defendants were +indicted for having conspired together to defraud the United +States. In that indictment they were kind enough to tell us how we +agreed to accomplish that object; that we went into partnership +with the Second Assistant Postmaster-General, he being one of these +defendants, and that we then and there agreed to get up false +petitions, to have them signed by persons who were not interested +in the mail service, to sign fictitious names to these petitions, +those names representing no actual, real, living persons; that we +also agreed to have false and fraudulent letters written to the +department urging this service; that in addition to all that we +were to make and file false and fraudulent affidavits, in which we +were to swear falsely as to the number of men and horses to be +employed, and the number of men and horses then necessary; that in +addition to that we were to file fraudulent subcontracts; that the +Second Assistant Postmaster-General was to make false and corrupt +orders, and that all these things were to be done to deceive, +mislead, and blindfold the Postmaster-General. They also set out +that these orders so corruptly made were to be corruptly certified +to the Auditor of the Treasury for the Post-Office Department in +order that we might draw our pay. That is what is known as the +general scheme or plan of this indictment. You have heard the +testimony, and remember some of it. Of course you do not remember +it all. Probably no man ever lived who could do such a thing. You +have heard the testimony discussed, I believe, for about twenty +days, so that I take it for granted you know something about it, or +at least have an idea that you do. The story that we told you in +the first place, and that we now tell you, is about this:</p> +<p>In 1877 Mr. Peck, Mr. Miner, and John W. Dorsey made up their +minds to make bids and to go into the mail business. I want you to +remember that there is not one word in this indictment about any +false bid ever having been made. Remember that. There is nothing in +this indictment about a false bond having been given; not a thing. +There is nothing in this indictment charging that any of the +original contracts were false. I want you to remember that. There +is no evidence that any person signing any one of those contracts +as security was not perfectly solvent. There is no evidence, not +one syllable, that any proposal was fraudulent, or that any bid was +fraudulent. How is it possible for a bid to be fraudulent? I will +tell you. If you make a bid, and make a contract or enter into an +agreement at the same time with some of the Post-Office officials +so that your bid will be accepted when it is not the lowest, there +is a fraud, and there is a fraudulent bid. There is one other way, +and that is to put in a bid to carry the mail at so many thousand +dollars, and then have below that straw bidders, men not +responsible, and when the time comes to accept the bid of those +gentlemen they refuse to carry it out, and then the law is that it +shall be given to the next highest, and he refuses, and the next, +and he refuses, and the next highest, and he refuses, and so on +until it comes to the highest bidder. There are such combinations +and have been, I have no doubt, for many years in the Post-Office +Department. That is called straw bidding, and it is fraudulent +bidding. There is no such charge as that in this case. Every bid +that was made was made in good faith, and every bid that was +accepted was followed by a good and sufficient contract entered +into by the party making the bid, and so that is the end of +that.</p> +<p>Now, in 1877, I say these men entered into an agreement among +themselves that they would bid on certain routes, and Mr. Peck, or +Mr. Miner, or John W. Dorsey—they may have it as they +choose—somebody, wrote a letter to Stephen W. Dorsey and in +that letter told what they were going to do and requested him to +get some man to obtain information in regard to these routes. You +know that testimony. Stephen W. Dorsey was then in the United +States Senate. He sent for Mr. Boone and he showed him that letter. +In consequence of that Mr. Boone sent out his circulars to the +postmasters all over the country, or all over the portion as to +which they were to bid, and asked them about the roads, about the +price of oats and corn, about the price of labor, and about the +winters; in other words, all the questions necessary for an +intelligent man, after having received intelligent answers, to make +up his mind as to the amount for which he could carry that mail. +Mr. Boone, you remember, says that he was to have at that time a +certain share. There is a conflict of testimony there. Mr. Dorsey +says that he told Boone that when John W. Dorsey came here they +could arrange that, and he had no doubt that they would be willing +to give him a share; but that he did not give it to him. The +circulars were sent out and the information in some instances, and +I do not know but all, came back. Then they agreed upon the amounts +they were to bid. I believe Mr. Miner came here in December, and +John W. Dorsey, I think, in January, and in February the bids were +made. All the amounts were put in the bidding-book issued by the +Government, by Mr. Miner and Mr. Boone; all with two exceptions, +and those amounts had been placed there by them, but under the +advice of Stephen W. Dorsey those amounts were lowered. I remember +one was upon the Tongue River route, the other route I have +forgotten. Mr. Miner, Mr. Peck, and John W. Dorsey were together. +Afterwards a partnership was formed between John W. Dorsey and A. +E. Boone. Stephen W. Dorsey advanced some money. There is nothing +criminal about that. It is often foolish to advance money, but it +is not a crime. It is often foolish to indorse for another, and +many a man has been convinced of that, but it is not a crime. He +advanced until, I believe, he was responsible for some fourteen or +fifteen thousand dollars, and thereupon he declined to advance any +more. He saw Mr. Miner in Saint Louis, and said to Mr. Miner, "This +is the last I am going to advance." I think he gave him some notes +that he hypothecated or discounted at the German-American National +Bank. He wanted security, and thereupon they gave him Post-Office +drafts for the purpose of securing his debt. He would advance no +more money and went away to New Mexico. Mr. Miner had a power of +attorney from John W. Dorsey who was absent, and a power of +attorney from John M. Peck who was absent. I believe on the 7th of +August, or about that time, Mr. Boone went out. Why? They had not +the money at the time to put on the service. Why? A great many more +bids had been accepted than they had anticipated, and instead of +getting twenty or thirty routes they got, I believe, one hundred +and thirty-four routes. The consequence was they did not have the +money to stock the routes. There was another difficulty.</p> +<p>There was an investigation by Congress, and that delayed them a +month or two, and the consequence was that when the 1st of July +came, the day upon which the service should have been put on, it +was not only not put on, but they had not the means to do it. Then +what happened? Then it was that Mr. Miner took in Mr. Vaile, and an +agreement was made which bears date the 16th day of August, 1878. +It was not finally signed by all the parties, I believe, until some +time in September or October. Under that contract, which you have +all heard read, Mr. Vaile was given an interest in this business. +More than that; subcontracts were given to Mr. Vaile, and under the +subcontract law which was passed on the 17th day of May, 1878, I +believe, Vaile could file his subcontract in the Post-Office +Department, and that rendered all Post-Office drafts or orders that +had been given absolutely worthless. That was done. The +subcontracts were given to Vaile under the powers of attorney that +Miner held from Peck and John W. Dorsey, and of course he could act +for himself. That was the situation. Stephen W. Dorsey was not +here. When he returned he found that everything had been disposed +of except his liability, and that he would have to pay the notes. +His security was gone, and the subcontracts were filed. At that +time he and Mr. Vaile had a quarrel. That is our story. In the +meantime John W. Dorsey was on the Tongue River route. I believe he +visited Washington in November and left word that he would like to +sell out all his interests in these routes, and I believe fixed the +price. Some time in November or December Mr. Vaile made up his mind +to take the routes, and afterwards changed his mind. Stephen W. +Dorsey was then in the Senate. On the 4th of March, 1879, his term +expired. I believe on that very day, or about that day, he wrote a +letter to Brady calling his attention to these subcontracts that +had been filed for the protection of Vaile and denouncing them. +That was the first thing he did. Then a few days afterwards the +parties met. In a little while afterwards they made a division of +this entire business. You know how the division was made. Stephen +W. Dorsey fell heir to about thirty of these routes, I think. In +addition he had to pay ten thousand dollars to his brother and ten +thousand dollars to Peck. Mr. Vaile, I think, took forty per cent, +and Mr. Miner thirty per cent. Mr. Vaile and Mr. Miner went into +partnership and Stephen W. Dorsey took his routes, and that ended +it. Mr. Peck was out and John W. Dorsey was out. That is our story. +When they divided those routes, in order to vest the property of +those routes in the persons to whom they fell, it was necessary to +execute subcontracts and give PostOffice drafts and things of that +character. All those necessary papers they then and there agreed to +make. Up to this point there is not one act established by the +evidence not entirely consistent with perfect innocence; not an +act. That is our story. After these routes fell to us we did what +we had the right to do and what we could to make the routes of +value. As business men we had the right to do it, and we did only +what we had the right to do.</p> +<p>The next question that arises, and which of course is at the +very threshold of this case, is, did these parties conspire? That +is the great question. In my judgment you should settle that the +first thing when you go to the jury-room. After having heard the +case as it will be presented by the Government, and after having +heard the charge of the Court, the first thing for you to decide +is, was there a conspiracy? How is a conspiracy proved? Precisely +as everything else is proved. You prove that men conspire precisely +as you prove them guilty of larceny or murder or any other crime or +misdemeanor. It has been suggested to you that as conspiracy is +very hard to prove you should not require much evidence; that you +should take into consideration the hardships of the Government in +proving a crime which in its nature is secret. Nearly all crimes +are secret. Very few men steal publicly, with a band of music and +with a torch in each hand. They generally need their hands for +other purposes, if they are in that business. All crime loves +darkness. We all know that. One of the troubles about proving that +a man has committed a crime is that he tries to keep it as secret +as possible. He does not carry a placard on his breast or on his +back stating what he is about to do. The consequence is that it is +nearly always difficult to prove men guilty as stated in the +indictment. But that does not relieve the prosecution. That burden +is taken by the Government, and they must prove men guilty of +conspiracy precisely as they prove anything else. Is circumstantial +evidence sufficient? Certainly, certainly. Circumstantial evidence +will prove anything, provided the circumstances are right, and +provided further that all the circumstances are right. A chain of +circumstances is no stronger than the weakest circumstance, as a +chain of iron is no stronger than the weakest link. Where you +establish or attempt to establish a fact by circumstances, each +circumstance must be proved not only beyond a reasonable doubt, but +each circumstance must be wholly inconsistent with the innocence of +the defendants. Now, let me call your attention to what I claim to +be the law upon the subject, and I will call the attention of the +Court to it at the same time. I will take this as a kind of +test:</p> +<p>The hypothesis of guilt must flow naturally from the facts +proved and must be consistent with them; not with some of them, not +with the majority of them, but with all of them.</p> +<p>In other words if they establish one hundred circumstances and +ninety-nine point to guilt and one circumstance thoroughly +established is inconsistent with guilt or perfectly consistent with +innocence, that is the end of the case.</p> +<p>It is as if you were building an arch. Every stone that you put +into the arch must fit with every other and must make that segment +of the circle. If one stone does not fit, the arch is not complete. +So with circumstantial evidence. Every circumstance must fit every +other. Every solitary circumstance must be of the exact shape to +fit its neighbor, and when they are all together the arch must be +absolutely complete. Otherwise you must find the defendants not +guilty. The next sentence is:</p> +<p>The evidence must be such as to exclude every reasonable +hypothesis except that of guilt. In other words, all the facts +proved must be consistent with and point to the guilt of the +defendants not only, but they must be inconsistent, and every fact +proved must be inconsistent, with their innocence.</p> +<p>Now, what does that mean? It means that every fact that is +absolutely established in this case, must point to the guilt of the +defendants. It means that if there is one established fact that is +inconsistent with their guilt, that fact becomes instantly an +impenetrable shield that no honest verdict can pierce. That is what +it means. That being so—and the Court in my judgment will +instruct you that that is the law—let us talk a little about +what has been established.</p> +<p>In the first place, nearly all that has been established, or I +will not say established, but nearly all that has been said, for +the purpose of showing that our motives were corrupt, and that we +actually conspired, rests upon evidence of what we call +conversations. Some witness had a conversation with somebody, three +years ago, four years ago, or five years ago. The unsafest and the +most unsatisfactory evidence in this world is evidence of +conversation. Words leave no trace. They leave no scar in the air, +no footsteps. Memory writes upon the secret tablet of the brain +words that no human eye can see. No man can look into the brain of +another and tell whether he is giving a true transcript of what is +there. It is absolutely impossible for you to tell whether it is +memory or imagination. No one can do it. Another thing: Probably +there is not a man in the world whose memory makes an absolutely +perfect record. The moment it is written it begins to fade, and as +the days pass it grows dim, and as the years go by, no matter how +deeply it may have been engraven, it is covered by the moss of +forgetfulness. And yet you are asked to take from men their +liberty, to take from citizens their reputation, to tear down +roof-trees, on testimony about conversation that happened years and +years ago, as to which the party testifying had not the slightest +interest. As a rule, memory is the child of attention—memory +is the child of interest. Take the avaricious man. He sets down a +debt in his brain, and he graves it as deep as graving upon stone. +A man must have interest. His attention must be aroused. Tell me +that a man can remember a conversation of four or five years ago in +which he had no interest. We have been in this trial I don't know +how many years. I have seen you, gentlemen, gradually growing gray. +You have, during this trial, heard argument after argument as to +what some witness said, as to some line embodied in this library. +[Indicating record.] You have heard the counsel for the prosecution +say one thing, the counsel for the defence another, and often his +Honor, holding the impartial scales of memory, differs from us +both, and then we have turned to the record and found that all were +mistaken. That has happened again and again, and yet when that +witness was testifying every attorney for the defence was watching +him, and every attorney for the prosecution was looking at him. How +hard it would be for you, Mr. Juror, or for any one of you to tell +what a witness has said in this case. Yet men are brought here who +had a casual conversation with one of the defendants five years ago +about a matter in which no one of the witnesses was interested to +the extent of one cent, and pretend to give that conversation +entire. For ray part, were I upon the jury, I would pay no more +attention to such evidence than I would to the idle wind. Such men +are not giving a true transcript of their brains. It is the result +of imagination. They wish to say something. They recollect they had +a conversation upon a certain subject, and then they fill it out to +suit the prosecution.</p> +<p>Now, I am told another thing; that after getting through with +conversations they then gave us notice that we must produce our +books, our papers, our letters, our stubs, and our checks; that we +must produce everything in which we have any interest, and hand +them all over to this prosecution. They say they only want what +pertains to the mail business, but who is to judge of that? They +want to look at them to see if they do pertain to the mail +business. They won't take our word. We must produce them all. It +may be that with such a net they might bring in something that +would be calculated to get somebody in trouble about something, no +matter whether this business or not. They might find out something +that would annoy somebody. They gave us a notice wide enough and +broad enough to cover everything we had or were likely to have. +What did they want with those things? May be one of their witnesses +wanted to see them. May be he wanted to stake out his testimony. +May be he did not entirely rely upon his memory and wanted to find +whether he should swear as to check-books or a check-book, and +whether he should swear as to one stub or as to many. May be he +wanted to look them all over so that he could fortify the story he +was going to tell. We did not give them the books. We would not do +it. We took the consequences. But what did we offer? That is the +only way to find out our motive. I believe that on page 3776 there +is something upon that subject. I will read what I said:</p> +<p>Now, gentlemen, with regard to the books. As there has been a +good deal said on that subject I make this proposition: Mr. Dorsey +has books extending over a period of twenty years, or somewhere in +that neighborhood. He has had accounts with a great many people on +a great many subjects. He does not wish to bring those books into +court, or to have those accounts gone over by this prosecution, not +for reasons in this case, but for reasons entirely outside of the +case. If the gentlemen on the other side will agree, or if the +Court will appoint any two men or any three men, we will present to +those men all our books, every one that we ever had in the world, +and allow them to go over every solitary item and report to this +court every item pertaining to John W. Dorsey & Co., Miner, +Peck & Co., or Vaile, Miner & Co., with regard to every +dollar connected, directly or indirectly, with this entire business +from November or December, 1877, to the present moment, and report +to this Court exactly every item just as it is. I make that +proposition.</p> +<p>That proposition was refused. What else did I do? I offered to +bring into court every check, including the time they said we drew +money to pay Brady. I offered to bring in every check on every bank +in which we had one dollar deposited; every one. That was not +admitted. And why? Because the Court distinctly said that it rests +upon the oath of the defendant at last; he may have had money in +banks that we know nothing about. To which I replied at the time +that if we stated here in open court the name of every bank in +which we did business, and there is any other bank knowing that we +did do business with it, we will hear from it. So that we offered, +gentlemen, in this case, every check on every bank but one. I did +not know at that time that we had ever had an account with the +German-American Savings Bank; I did not find that out until +afterwards. But you will remember that Mr. Merrick held in his hand +the account of Dorsey with that bank; and Mr. Keyser, who, I +believe, had charge of that bank, was here, and if there had been +anything upon those books, certainly the Government would have +shown it.</p> +<p>More than that; that bank went into the hands of a receiver, I +think, eight months before any of these checks are said to have +been given for money which was afterwards given to Brady. Now, they +insist, that because we failed to bring the books into court, +therefore the law presumes that the absolute evidence of our guilt +is in those books. I believe they claim that as the law. If my +memory serves me rightly, Colonel Bliss so claimed in his speech. +In other words, that when they give us notice to produce a book, +and we do not produce it, there is a presumption against us. That +is not the law, gentlemen. When they give us notice to produce a +book or letter and we do not produce it, what can they do? They can +prove the contents of the book or letter. In other words, if we +fail to produce what is called the best evidence, then the +Government can introduce secondary evidence. They can prove the +contents by the memory of some witness, by some copy, no matter +how; and that is the only possible consequence flowing from a +refusal to produce the book or letter.</p> +<p>And yet, in this case, gentlemen, Mr. Bliss wishes you to give a +verdict based upon two things: first, upon what we failed to prove; +secondly, on what the Court would not let them prove. He tells you +that they offered to prove so and so, but the Court would not let +them; he wants you to take that into consideration; and secondly, +that there were certain things that we did not prove; and that +those two make up a case. That is their idea. Now, let us see if I +am right about the law.</p> +<p>The first case to which I will call the attention of the Court +is a very small one, but the principle is clear. It is the case of +Lawson and another, assignees of Shiffner, vs. Sherwood, and it is +found in 2 English Common-Law Reports; 1 Starkie, 314.</p> +<p>The Court. Colonel Ingersoll, you cannot argue that question to +the jury; you cannot cite an authority and discuss it to the +jury.</p> +<p>Mr. Ingersoll. Then I will discuss it with the Court; it is +immaterial to me which way I turn when I am talking. I insist that +the jury must at last decide the law in this case. I will read +another case to the Court, found in 9 Maryland, Spring Garden +Mutual Insurance Company, vs. Evans.</p> +<p>The Court decides in this case that the only consequence of +their refusal to produce the papers, they not denying that they had +them, was to allow the opposite party to prove their contents. That +is all; that it could not be patched out with a presumption.</p> +<p>The Court. But if afterwards they should attempt to contradict +the secondary evidence the Court would not have allowed them to do +it.</p> +<p>Mr. Ingersoll. It does not say so.</p> +<p>The Court. That is the law.</p> +<p>Mr. Ingersoll. Suppose, after the other side had proved the +contents, there was an offer of the actual original papers. I can +find plenty of authority that they must be received.</p> +<p>The Court. I have never seen such authority, but I have seen a +great many to the contrary.</p> +<p>Mr. Ingersoll. I have never seen an authority to the contrary +that was very well reasoned. But, then, I will not argue about +that, for that is not a point in this case.</p> +<p>The Court. If you have the papers, and have received notice to +produce them, you are bound to produce them. If you do not produce +them secondary evidence is admissible to prove their contents. But +after the secondary evidence has been received, the Court will not +allow you then, after having first failed to produce the papers +upon notice, to resort to the primary evidence which you ought to +have produced upon the notice, for the purpose of contradicting the +secondary evidence that was given.</p> +<p>Mr. Ingersoll. Now, let me give the Court a case in point: In +this very case that we are now trying, Mr. Rerdell in his statement +to MacVeagh said there was a check for seven thousand dollars; that +the money was drawn upon that check; that he and Dorsey went +together to the Post-Office Department and that Dorsey went into +Brady's room; that that money was drawn by Dorsey. That was his +statement to MacVeagh and James.</p> +<p>The Court. It was not his statement here.</p> +<p>Mr. Ingersoll. Yes, that was his statement here, as I will show +hereafter. But let me state my point. He was coming upon the stand. +The check, instead of being for seven thousand dollars, was for +seven thousand five hundred dollars; instead of being drawn to the +order of Dorsey or to bearer, it was drawn to the order of Rerdell +himself; instead of being drawn at the bank by Dorsey, it was drawn +by Rerdell in person and had his indorsement upon the back of it. +We were asked to produce that. I preferred not to do it until I +heard the testimony of Mr. Rerdell. Why? Because I wanted to put +that little piece of dynamite under his testimony and see where the +fragments went, and I did. That is my answer to that.</p> +<p>Now, I find another case in the first volume of Curtis's Circuit +Court Reports, where it is said, on page 402, that—By the +common law a notice to produce a paper—The Court. +[Interposing.] Before we part from what you were saying, I wish to +say that I do not think that the other side gave you notice to +produce the checks; that is my memory.</p> +<p>Mr. Ingersoll. Yes. Let me state my memory to the Court: I do +not remember exactly every one of these four thousand pages of +testimony; there are three or four that I may be a little dim +about; but I do remember that a notice was given to us to produce +everything in the universe, nearly, and that the Court held that +the scope was a little too broad. I have forgotten the page, but I +will tell you where it comes in: It was where Mr. Rerdell swore +about the stub-book. I find the notice, may it please your Honor, +on page 2255, and it was dated the 13th of February. This is the +notice, and it gave the same notice to all the defendants:</p> +<p>You are hereby notified to produce forthwith in court, in the +above entitled cause, all letters and communications, including all +telegrams, of every kind and description, purporting to come from +any one of said defendants and addressed to you or delivered to +you, and all memoranda in which reference is made to any contract +or contracts of any one of said defendants with the United States +or with the Postmaster-General for carrying the mail under the +letting of 1878 on any route in the United States, or in any way +referring to any contract or contracts for so carrying the mail, in +which J. W. Bosler or any one of said defendants had any interest, +or in any way referring to any act, contract, or proceeding +thereunder, or to any payment, draft, warrant, check, or bill, or +note, or to any possible loss or profit in connection with such +contract or contracts, or to the management or execution thereof, +or referring to any possible gain or profit to be derived by any of +said defendants from contracts for carrying the mail of the United +States, or to any payments under such contract, or to the +distribution of the proceeds made or to be made of said payment, or +to the management of any enterprise or enterprises in connection +with the transportation of the mail, or to gains, profits, or +losses accruing or likely to accrue from such enterprises, or to +the financial means for carrying on the same; and also to produce +any and all books containing any entry or entries in regard to any +of the subjects, matters, checks, drafts, or payments relating or +having reference to the subjects, &c., hereinbefore referred +to; and also any letter-book or letter-books containing +letter-press copies of letters referring to the said subject or +subjects.</p> +<p>I believe just about that time, or a little after, another +notice was given.</p> +<p>Mr. Merrick. If the counsel will allow me, my impression is that +that notice was deemed by the Court to be too broad.</p> +<p>The Court. It was.</p> +<p>Mr. Ingersoll. Then another notice was given that specified all +these things.</p> +<p>Curtis says in this case that—By the common law, a notice +to produce a paper, merely enables the party to give parol evidence +of its contents, if it be not produced. Its non-production has no +other legal consequence.</p> +<p>I find too, that in the Maryland case they make a reference to +Cooper vs. Gibson, 3 Camp., 303. I also have another case, to which +I will call the attention of the Court, United States vs. Chaffee, +18 Wallace, 516. I have not the book here, but I can state what it +is. My recollection of the case is this: That an action was brought +against some distillers; that by law distillers have to keep +certain books in which certain entries by law have to be made. +Notice was served upon the defendants to produce those books. They +refused so to do; and the question was whether any presumption +arose against the defendants on account of that refusal.</p> +<p>The Court. I agree with you entirely that far in your law, that +the mere fact of the failure to produce books or papers has no +effect at all against the party declining to produce them. But it +is a different question altogether, after secondary evidence has +been given, in consequence of such refusal, to supply the place of +the primary evidence. If the books and papers have an existence, +and the party who has received the notice has refused to produce +them, and the other party has given secondary evidence of the +contents of such books and papers, that secondary evidence will +have to stand, under those circumstances, as the proof in the +case.</p> +<p>Mr. Ingersoll. That is not the point. Of course that will stand +for what it is worth. I was arguing this point: Can the jury hatch +and putty and plaster the secondary evidence with a presumption +born of the failure to produce the books and papers?</p> +<p>The Court. What I mean is just this: If you should fail to +produce the primary evidence, and then the secondary evidence of +the contents is not contradicted——</p> +<p>Mr. Ingersoll. [Interposing.] It may not be contradicted, +because it happens to be inherently improbable.</p> +<p>Mr. Merrick. The Government claims the law to be as your Honor +has intimated, and we have formulated it in one of our prayers. But +that abstract proposition is hardly applicable in the present case, +for the Government claims the application of another and plainer +proposition: That wherever a defendant himself takes the stand and +has in his possession a certain paper which, when called upon on +cross-examination to produce, he refuses, then a presumption +unquestionably arises of such potency that it is difficult to +resist.</p> +<p>Mr. Ingersoll. There is no difference, so far as the law is +concerned, whether the defendant, as a defendant, fails to produce +the books and papers, or whether, in his capacity as a witness, he +fails to produce the books and papers. The law, it seems to me, is +exactly the same.</p> +<p>Now, in this case of the United States vs. Chaffee et al. (18 +Wall., 544), Justice Field denounces that you should presume +against the party because he fails to produce books and papers +known to be in his possession. And why? I suppose a party can not +be presumed out of his liberty; he cannot be presumed into the +penitentiary; and you cannot make a prison out of a presumption any +more than you can make a gibbet out of a suspicion.</p> +<p>And again, the court instructed the jury that the law presumed +that the defendants kept the accounts usual and necessary for the +correct understanding of their large business and an accurate +accounting between the partners, and that the books were in +existence and accessible to the defendants unless the contrary were +shown.</p> +<p>That same thing has been claimed here.</p> +<p>The Court. No.</p> +<p>Mr. Ingersoll. We have heard it very often that this was a large +business.</p> +<p>The Court. You have not heard anything of that kind from the +Court.</p> +<p>Mr. Ingersoll. I am not saying that. I said "claimed"; if I had +referred to your Honor I should have said "decided." Here is +another instruction of the court:</p> +<p>If you believe the books were kept which contained the facts +necessary to show the real amount of whiskey in the hands of the +defendants in October, 1865, and the amount which they had sold +during the next ten months, or that the defendants, or either of +them, could by their own oath resolve all doubts on this point; if +you believe this, then the circumstances of this case seem to come +fully within this most necessary and beneficent rule.,</p> +<p>He applied the word "beneficent" to a rule that put a man in the +penitentiary on a presumption.</p> +<p>The Court. He was conservative.</p> +<p>Mr. Ingersoll. He ought to read some work on the use and abuse +of words. Now, Judge Field says further:</p> +<p>The purport of all this was to tell the jury that although the +defendants must be proved guilty beyond a reasonable doubt, yet if +the Government had made out a <i>prima facie</i> case against them, +not one free from all doubt, but one which disclosed circumstances +requiring explanation, and the defendants did not explain, the +perplexing question of their guilt need not disturb the minds of +the jurors.</p> +<p>That is this case exactly: that is the exact claim of Colonel +Bliss in this case. Gentlemen, you have only to take into +consideration, he says, what we offered to prove and what the Court +would not allow us, and what the defendants failed to prove. "Why +didn't they call Bosler?"</p> +<p>Now, gentlemen, we claim the law to be this: That while notice +is given us to produce books and papers and we fail to do it, the +only legal consequence is that the Government may then prove the +contents of such books and papers, and that their proof of the +contents must be passed upon by you.</p> +<p>The next thing to which I call your attention is the crime laid +at our door, that we exercised the right of petition. It is +regarded as a very suspicious circumstance that petitions were +circulated, signed, and sent to the office of the Second Assistant +Postmaster-General. Why did these people petition? Let me tell you. +If you will look in every contract in this case you will find +certain provisions relative to carrying the mail. Among others you +will find this: That no contractor has any right to carry any +newspaper or any letter faster than the schedule time; that he has +no right to carry any commercial news, or to carry any man who has +any commercial news about his person, faster than the schedule +time. No mail can be carried by anybody except the United States, +and if a community wants more mail it has no right to establish an +express that will carry the mail faster, because the United States +has the monopoly. Now, if you want more mail, what are you to do? +You cannot start one yourself; the Government will not allow it. +What have you to do? You have to petition the Government to carry +the mail faster or to carry it more frequently; and the reason you +have to ask the Government to do this is because the Government +will not permit you to do it; consequently you have only one +resort. What is that? Petition. And in this very case I believe his +Honor used this language:</p> +<p>Every man carrying the mail has the right to take care of his +business. He has the right to get up petitions. He has the right to +call the attention of the people to what he supposes to be their +needs in that regard. He has the right to do it, and the fact that +he does it is not the slightest evidence that he has conspired with +any human being.</p> +<p>Now, if the man carrying the mail has the right to call the +attention of the people to their needs, have not the people the +right to do all that themselves? If the man carrying the mail has +the right to get up a petition, surely the people have the right; +and if the people have the right, surely the man has that right. +That is the only way we can find out in this country what the +people want—that is, to hear from them. They have the right +to tell what they want.</p> +<p>But these gentlemen say, "Anybody will sign a petition." Well, +if that is true, there is no great necessity for forging one. Very +few people will steal what they can get for the asking. If a bank +or a man offers you all the money you want, you would hardly go and +forge a check to get it. I will come to that in a few moments.</p> +<p>Now, gentlemen, according to this evidence, you have got to +determine, as I said in the outset, Was there a conspiracy? The +second question you have to determine is, When? In every crime in +the world you have got to prove the four W's—Who, When, What, +Where? Who conspired? When? What about? Where? Now I want to ask +you a few questions, and I want you to keep this evidence in mind. +Was there a conspiracy when Dorsey received the letter from Peck or +Miner? Had the egg of this crime then been laid? Had it been +hatched at that time? Is there any evidence of it? The object then +was to make some bids. It is not necessary to conspire to make +bids. You cannot conspire to make fraudulent bids unless you enter +into an agreement that the lowest bid is not to be accepted, or +agree upon some machinery by which the lowest bid is not received, +or put in a bid with fraudulent and worthless security. Will the +Government say that there was a conspiracy at the time Peck or +Miner wrote to S. W. Dorsey? What evidence have you that there was? +None. What evidence have you that there was not? The evidence of +Miner and the evidence of S. W. Dorsey. What else? Boone had not +been seen at that time. John W. Dorsey was not here. Peck was not +here. Peck or Miner had written the letter. Was there any +conspiracy then? Is there any evidence of it? Is there enough to +make a respectable suspicion even in the mind of jealousy? Does it +amount even to a "Trifle light as air."</p> +<p>Was it when Dorsey sent for Boone? Boone says no. He ought to +know. S. W. Dorsey says no. John W. Dorsey was not here. Miner had +not arrived. The only suspicious thing up to that point is that +Dorsey lived "in his house;" that he received this letter "in his +house," and that Boone visited him "in his house." That is all. +Now, if there is a particle of evidence, I want the attorney for +the Government who closes this case to point it out, and to be +fair. Was it when Miner got here in December, 1877? Miner says no. +Boone says no. Stephen W. Dorsey says no. John W. Dorsey was not +yet here. All the direct evidence says no. All the indirect +evidence says nothing. Now, let us keep our old text in view. I +want to ask you if there is a thing in all the evidence not +consistent with innocence? Was it not consistent with innocence +that Peck and Miner and John W. Dorsey should agree to bid? Was it +not consistent with innocence that John W. Dorsey met Peck at +Oberlin, and that he met Miner in Sandusky? Was not that consistent +with innocence? Was it not consistent with innocence for Peck to +write S. W. Dorsey a letter? Was it not consistent with innocence +for Dorsey to open it and read it and then send for Boone and give +it to him? Boone in the meantime proceeded to get information so +that they could bid intelligently. Was that consistent with +innocence? Perfectly. More than that, it was inconsistent with +guilt. What next? May be this conspiracy was gotten up about the +16th of January, when John W. Dorsey came here. Dorsey says no; +Boone says no; Miner says no; and S. W. Dorsey says no. That is the +direct evidence. Where is the indirect evidence? There is none. Ah, +but they say, don't you remember those Clendenning bonds? Yes. Is +there anything in the indictment about them? No. Was any contract +granted upon those bonds or proposals? No. Was the Government ever +defrauded out of a cent by them? No. Is there any charge in this +case relative to them? No. Everybody says no. John W. Dorsey +entered into a partnership with A. E. Boone after he came here. Is +that consistent with innocence? Yes. No doubt many of the jury have +been in partnership with people. There is nothing wrong about that. +He also entered into partnership with Miner and Peck. There were +two firms, John W. Dorsey & Co., which meant A. E. Boone and +John W. Dorsey, and Miner, Peck & Co., which meant Miner, Peck +and John W. Dorsey. Is there anything criminal in that? No. They +had a right to bid. They had a right to form an association, a +partnership. There was nothing more suspicious in that than there +would have been in evidence of their eating and sleeping. Now, +then, was this conspiracy entered into on August 7, 1878, when +Boone went out? Boone says no, and with charming frankness he says +if there had been a conspiracy he would have staid. He said, "If I +had even suspected one, I never would have gone out. If I had +dreamed that they had a good thing, I should have staid in." He +swears that at that time there was not any. Miner swears to it and +S. W. Dorsey swears to it. Everybody swears to it except the +counsel for the prosecution. Rerdell swears to it. That is the only +suspicious thing about it. Now, at that time, August 7, when Boone +went out, S. W. Dorsey was not here and John W. Dorsey was not +here. Who was? Miner. What was the trouble? Brady told him, "I want +you to put on that service. If you don't I will declare you a +failing contractor." A little while before that Miner had met +Dorsey in Saint Louis, and Dorsey had said, "This is the last money +I will furnish. No matter whether I conspired or not, I am through. +This magnificent conspiracy, silver-plated and gold-lined, I give +up. There are millions in it, but I want no more. I am through." So +Mr. Miner, using his power of attorney from John W. Dorsey and +Peck, took in Mr. Vaile.</p> +<p>I believe that Mr. Rerdell swears that the reason they took in +Vaile was that they wanted a man close to Brady. According to the +Government they had already conspired with Brady. They could not +get much closer than that, could they? Miner was a co-conspirator, +and yet they wanted somebody to introduce him to Brady. John W. +Dorsey and S. W. Dorsey were in the same position. They were +conspirators. The bargain was all made, signed, sealed, and +delivered, and yet they went around hunting somebody that was close +to Brady. Brady said, "I will declare you all failing contractors. +I can't help it, though I have conspired with you. I give up all my +millions. This service has got to be put on. The only way to stop +it is for you to seek for a man that is close to me. You are not +close enough." Now, absurdity may go further than that, but I doubt +it. You must recollect that that contract was signed as of the 16th +of August. You remember its terms. At that time not a cent had been +paid to S. W. Dorsey. His Post-Office drafts had been cut out by +the subcontracts. Afterwards he had a quarrel with Vaile. We will +call it December, 1878.</p> +<p>Was the conspiracy flagrant then? Let us have some good judgment +about this, gentlemen. You are to decide this question the same as +you decide others, except that you are to take into consideration +the gravity of the consequences flowing from the verdict. You must +decide it with your faculties all about you, with your intellectual +eyes wide open, without a bit of prejudice in your minds, and +without a bit of fear. You must decide it like men. You must judge +men as you know them. Was there a conspiracy between these +defendants in December, 1878, when S. W. Dorsey came back here and +found out the security for his money was gone, and when he had the +quarrel with Mr Vaile? Is there the slightest scintilla of +testimony to show that Mr. Vaile came into this business through +any improper motive? I challenge the prosecution to point to one +line of testimony that any reasonable man can believe even tending +to show that Mr. Vaile was actuated by an improper motive. I defy +them to show a line tending to prove that John R. Miner was +actuated by an improper motive when he asked Vaile to assist him in +this business. I defy them to show that Brady was actuated by an +improper motive when he told them, "You must put on that service or +I will declare you all failing contractors." Was there a conspiracy +then? I ask you, Mr. Foreman, and I ask each of you, Was there a +conspiracy at that time? Have the prosecution introduced one +particle of testimony to show that there was? In March was there a +conspiracy? Will you call dividing, a conspiracy? Will you call +going apart, coming together? If you will, then there must have +been a conspiracy in March. A conspiracy to do what? A conspiracy +to separate; a conspiracy to have nothing in common from that day +forward. Mr. Vaile entered into a conspiracy then that he would +have no more business relations with S. W. Dorsey. He swears that +at that time nothing on earth would have tempted him to go on. That +is what they call being in a conspiring frame of mind. Not another +step would he go. In March they separated, and each one went his +way. It was finally fixed up, and finally settled in May. John W. +Dorsey was out with his ten thousand dollars, and Peck was out with +his ten thousand dollars. S. W. Dorsey, for the first time became +the owner of thirty routes, or something more, and Miner and Vaile +of the balance, I think about ninety-six. According to that +contract of August 16, John W. Dorsey only had a third interest in +the routes he had with Boone, and not another cent. There was a +division. If there was a conspiracy of such a magnitude, why should +Boone go out of it? Why should John W. Dorsey sell out for ten +thousand dollars? Why should John W. Dorsey offer Boone one-third +of it? Why was Mr. A. W. Moore offered one-quarter of it?—a +gentleman who could be employed for one hundred and fifty dollars a +month? I ask you these questions, gentlemen. I ask you to answer +them all in your own minds. Recollect, on the 16th of August there +was a conspiracy involving hundreds of thousands of dollars. In +that conspiracy was the Second Assistant Postmaster-General. They +had the Post-Office Department by the throat. They had the +Postmaster-General blindfolded. Yet Miner went to Vaile and said, +"Now, just furnish a little money to put on these routes and you +may have forty percent, of this conspiracy." He was giving him +hundreds of thousands of dollars. Is that the way people talk that +conspire together? Would not Miner have gone to Brady and said, +"Look here, what is the use of acting like a fool? What do you want +me to give forty per cent, of this thing to Vaile for? I had better +give twenty per cent, more to you. That would allow me to keep +twenty per cent, more too, and then there will be one less to keep +the secret." He never thought of that.</p> +<p>I want you to think of these things, gentlemen, all of you, and +see how they will strike your mind. What did they want of Boone? S. +W. Dorsey they say was the prime mover. He hatched this conspiracy. +Miner, his own brother, Peck, and everybody else were simply his +instruments, his tools. What did he want Boone for? He had a +magnificent conspiracy from which millions were to come. He told +Boone, "I will give you a third of it." What for? He told Moore, "I +will give you one-quarter." Seven-twelfths gone already. T. J. B. +thirty-three and one-third per cent. That is about all. Then +sixty-five per cent, more to the subcontractors. I want you to +think about these things, gentlemen. If they had such a conspiracy +what did they want of Mr. Moore?</p> +<p>Mr. Ingersoll. [Resuming.] Gentlemen, was it natural for S. W. +Dorsey to get the money back that he had advanced, or some security +for it? Was that natural? When a man seeks to have a debt secured +is that a suspicious circumstance? That is all he did. He was out +several thousand dollars. He wanted to secure that debt and he took +another debt of twenty thousand dollars upon him as a burden. If +this had been a conspiracy he could have furnished this money that +he had to pay to others to put the service on the route. I leave it +to each one of you if that action to secure that debt was not +perfectly natural. I will ask you another question. If he was the +originator of the conspiracy would he have taken thirty per cent, +burdened with a debt of twenty thousand dollars? The way to find +out whether there is sense in anything or not is to ask yourself +questions. Put yourself in that place; you, the master of the +situation; you, the author of the entire scheme. Would you take +one-third of what you yourself had produced, and that third +burdened with twenty thousand dollars worth of debt, and then make +your debt out of the proceeds? I want every one of you to ask +yourself the question, because you have got to decide this case +with your brains and with your intelligence; not somebody else, but +you, yourself. We want your verdict; we want your individual +opinion; not somebody else's. There is the safety of the jury +trial. We are to have the opinions of twelve men, and those +opinions agreeing. Where twelve honest men agree, if they are also +independent men, the rule is that the verdict is right. The opinion +of an honest man is always valuable, if he is only honest, and if +it is his opinion, it is valuable. It is valuable if he does not go +to some mental second-hand store and buy cheap opinions from +somebody else, or take cheap opinions. In this case I ask the +individual opinion of each one of you. I want each one of you to +pass upon this evidence; I want each one of you to say whether if +Dorsey had been the author and finisher of this conspiracy he would +have taken thirty per cent., burdened with twenty thousand dollars +of debt to others and fifteen thousand dollars of debt to himself? +If you can answer that question in the affirmative you can do +anything. After that nothing can be impossible to you, except a +reasonable verdict. You cannot answer it that way. Why should he +have cared so much about fifteen or sixteen thousand dollars with a +conspiracy worth hundreds of thousands of dollars? Why run the risk +of making the whole conspiracy public? Why run the risk of his +detection and its destruction? You cannot answer it. Perhaps the +prosecution can answer it. I hope they will try.</p> +<p>Mr. Ker, on page 4493, makes a very important admission.</p> +<p>After they (meaning the defendants) had these contracts, there +was a combination, an agreement between all these people, that they +were to do certain things in order to get at the public Treasury +and get more money.</p> +<p>What does that mean? That means that this conspiracy was entered +into after the defendants obtained the contracts, so that Mr. Ker +fixes the birth of this conspiracy after these contracts had been +awarded to the defendants. That being so, all the bids, proposals, +Clendenning letter, Haycock letter, proposals in blank, and +bidders' names left out fade away.</p> +<p>The Chico letter I will come to after awhile. I will not be as +afraid of it as were the counsel for the prosecution. I will not, +like the Levite, pass on by the other side of the Chico letter. I +will not treat it as if it were a leper, as if it had a contagious +disease. When I get to it I will speak about it. All these things, +then, under that admission, go for naught, and have nothing to do +with the case, and consequently nobody need argue with regard to +them any more, although incidentally I may allude to them again. +There is no doubt, recollect, after this admission. There is no +clause in the indictment saying that we endeavored to defraud this +Government by bids, by proposals, by bonds, or by contracts. Not a +word. That is all out; in my judgment it never should have been in +the case at all. What is the next thing we did? It is alleged that +the moment Dorsey got these contracts he laid the foundation to +defraud the Government by a new form of subcontract. Let me answer +that fully, and let that put an end to it from this time on. Until +May 17, 1878, the Post-Office Department did not recognize +subcontractors. After these contracts came into the possession of +these defendants Congress passed a law recognizing subcontractors. +Consequently the contracts of the subcontractors that were to be +recognized by the Government had to be somewhere near the same form +as the contracts with the original contractors. The moment the +contract of the subcontractor was to be recognized by the +Government then it was necessary and proper to put a clause in that +subcontract for expedition and a clause in that subcontract for +increase of service. Why? So that the Government should know, if +the route was expedited, what percentage the subcontractor was +entitled to. Instead of that clause in the subcontract being +evidence that Mr. Dorsey was endeavoring to swindle the Government, +the evidence is exactly the other way. It was put there for the +purpose of protecting the subcontractor, so that if expedition was +put upon the route the Government would know what per cent, of the +expedition to pay the subcontractor. If that clause had not been in +that subcontract the Government could not have told how much money +to pay the subcontractor, and as a consequence the subcontract +would have been worthless as security for the subcontractor. And +yet a clause put in for the protection of the subcontractor is +referred to in your presence as evidence that the man who suggested +it was a thief and a robber. What more? They say to these +witnesses, "Did you ever see such a clause as that in a subcontract +before?" No. Why? The Government never recognized a subcontractor +before that time, and consequently there was no necessity for such +a clause. Think how they have endeavored to torture every +circumstance, no matter how honest, no matter how innocent, no +matter how sensible; how they have endeavored to twist it and turn +it against these defendants. Gentlemen, whenever you start out on +the ground that a man is guilty, everything looks like it. If you +hate a neighbor and anything happens to your lot you say he did it. +If your horse is poisoned he is the man who did it. If your fence +is torn down he is the fellow. You will go to work and get all the +little circumstances that have nothing to do with the matter +braided and woven into one string. Everything will be accounted for +as coming from that enemy, and as something he has done.</p> +<p>They say another thing: That we defrauded the Government by +filing subcontracts. You cannot do it. When this case is being +closed I want somebody to explain to the jury how it is possible +for a man to defraud this Government by filing a subcontract. I do +not claim to have much ingenuity. I claim that I have not enough to +decide that question or to answer it. I can lay down the +proposition that it is an absolute, infinite, eternal impossibility +to fraudulently file a subcontract as against the Government. It +cannot he done. Oh, but they say, the subcontractor did not take +the oath. There is no law that he should take an oath and there +never was. There may be at some time, but there is not now. The law +that everybody engaged in carrying the mail and every salaried +officer of the department shall take an oath was passed before the +law of the 17th of May, 1879, allowing a subcontractor to file his +subcontract. Before that time the Government had nothing to do with +the subcontractor. If he actually carried the mail; if he actually +took possession of the mail, he had to take the oath of the +carrier. But I defy these gentlemen to find in the law any oath for +a subcontractor. There never was such an oath. If there is one, +find it. The law that every salaried officer and every carrier of +the mail shall take the oath was passed years and years and years +before the law was passed allowing subcontracts to be filed. What +of it? Suppose a man who is a subcontractor carries the mail and +does not take any oath. That is as good as to take the oath and not +carry the mail. What possible evidence is it of fraud? Suppose it +should turn out that the carrier did not take the oath, but carried +the mail honestly. What of it? Is it any evidence of fraud? If a +man tells the truth without being sworn, is that evidence that he +is a dishonest man? If a man carries the mail properly and in +accordance with law without being sworn to do so, it seems to me +that is evidence that he is an honest fellow, and you don't need to +swear him. So when a subcontractor takes a subcontract and carries +the mail according to law it does not make any difference whether +he swears to do so or not. Is there any evidence in this case that +the subcontractors stole any letters on account of not having taken +the oath? When they answer, let them point to the law that the +subcontractor is to take an oath. There is no such law and never +was.</p> +<p>Now, according to this admission of Mr. Ker, the conspiracy +commenced after they got the contract. Very well. I need not talk +about anything back of that. I do not know whether the admission is +binding upon the Government or not. I believe the Court holds that +the Government is not bound by the admission of any agent, and that +the Government only authorizes an agent to admit facts. May be he +is mistaken. The Government only authorizes an agent to admit the +law. At any rate Mr. Ker did the very best he knew how, and he says +this conspiracy commenced when they got the contracts, and so we +need not go back of that unless the Government is now willing to +say that Mr. Ker has made a mistake. I lay down the proposition, +gentlemen, that you need not go back of the division of these +routes. Then you must go forward. What was done after that? +Recollect the exact position of Senator Dorsey and the exact +position of these other people.</p> +<p>The next claim is, although there was no conspiracy until after +they got the contracts, that Senator Dorsey was interested in these +contracts while he was a Senator of the United States. If they +could establish that fact it would not tend to establish a +conspiracy. There is nothing in this indictment about it. I admit +that if he were a Senator, and at the same time interested in mail +contracts, he might be tried and his robes of office stripped from +him, and that he could be rendered infamous. But that is not what +he is being tried for. They say he was in the Senate, and he was +anxious to keep it secret. Mr. Ker says he was so anxious to keep +it secret that he sent all these communications out West in Senate +envelopes, so they would think a Senator had something to do with +it. Then it turned out that all the envelopes were in blank; just +plain white envelopes, with nothing on them, and away went that +theory. If he were in the Senate and engaged in these routes also, +and wished to keep it a profound secret, because if known it would +blast his reputation forever, do you think he would have had all +these circulars sent out in Senate envelopes and on Senate paper? +If he did allow that to be done, it is absolutely conclusive +evidence that he was not interested. Suppose I was trying to keep +it an absolute, profound, eternal, everlasting secret that I had +anything to do with a certain matter, would I write letters about +it? Would I use paper that had my name, the number of my office, +and the character of my business printed upon it? Would I? To ask +that question is to answer it. Another thing: They claim that he +was in the Senate and infinitely anxious to keep it a secret, and +yet he found Mr. Moore, a perfect stranger, and said to him in +effect: "Yes, Mr. Moore; I don't know you, but I want you to know +me. I ama rascal. I am a member of the Senate, but I am engaged in +mail routes. I hope you will not tell anybody, because it would +destroy me. I have great confidence in you, because I don't know +you." That is the only way he could have had confidence in Moore. +He would have to have it the first time he saw him or it never +would have come. To this perfect stranger he said, "Here, I am in +the Senate, but I am interested in these routes. I am in a +conspiracy. I want you to go out and attend to this business. I +want you to do all these things, and the reason I tell you is +because I am a Senator and I want it kept a profound secret. That +is the reason I tell you." That is what these gentlemen call +probable. That is their idea of reasonableness and of what is +natural. That may be true in a world where water always runs up +hill. It can never be true in this world. It is not in accordance +with your experience. Not a man here has any experience in +accordance with that testimony or that doctrine; not one. You never +will have unless you become insane. If this trial lasts much longer +you may have that experience. It is a wonder to me it has not +happened already.</p> +<p>There is another queer circumstance connected with this case. +While Dorsey told it all to Moore he kept it a profound secret from +Boone. Boone, you know, was in at the first. Boone got up all this +information. Boone was interested in these bids, and yet he never +told Boone. He had known Boone, you see, for several weeks. He told +Moore the first day, the first minute. He wished to relieve his +stuffed bosom of that secret. Moore was the first empty thing he +found, and he poured it into him. It is astonishing to me that he +succeeded in keeping that secret from Boone, but he did. He even +kept it from Rerdell.</p> +<p>Rerdell never heard of it—a gentleman who picks up every +scrap, who listens at the key-hole of an opportunity for the +fragment of a sound. He never heard it. John W. Dorsey did not even +know anything about it. Nobody but Moore. Now, I ask you, +gentlemen, is there any sense in that story? I ask you. I ask you, +also, if the testimony of Stephen W. Dorsey with regard to that +transaction is not absolutely consistent with itself? Did he not in +every one of those transactions act like a reasonable, sensible, +good man? Oh, but they say it is not natural for a man to help his +brother; certainly it is not natural for a man to help his +brother-in-law, and nobody but a hardened scoundrel would help a +friend, and Dorsey is not that kind of a man. Occasionally in a +case an accident will happen, and from an unexpected quarter a +side-light will be thrown upon the character of a man, sometimes +for good, and sometimes for evil. Sometimes a little circumstance +will come out that will cover a man with infamy, something that +nobody expected to prove, and that leaps out of the dark. Then, +again, sometimes by a similar accident a man will be covered with +glory. In this case there was a little fact that came to the +surface about Stephen W. Dorsey that made me proud that I was +defending him. Oh, he is not the man to help his brother; he is not +the man to help his brother-in-law; he is not the man to help a +friend; and yet, when Torrey was upon the stand, he was asked if he +was working for Dorsey, and he said no, and was asked if Dorsey +paid him at a certain time, or if he owed him, and he said no. He +was asked why, and he replied, "Because only a little while before, +when I was not working for him, and my boy was dead, he gave me a +thousand dollars to put him beneath the sod." That is the kind of a +man Stephen W. Dorsey is. I like such people. A man capable of +doing that is capable of helping his brother, of helping his +brother-in-law, and of helping his friend. A man capable of doing +that is capable of any great and splendid action. Is there any +other man connected with this trial that ever did a more generous, +nay, a more loving and lovely thing? How such a man can excite the +hatred of the prosecution is more than I can understand.</p> +<p>Now, we have got to the division, and the question arises, was +there a division? Let us see. On page 5009 Mr. Bliss admits that +Vaile, immediately upon Dorsey's coming out of the Senate, came +here for the purpose of settling up this business; that he made up +his mind to have no more to do with Dorsey. Then Mr. Bliss makes +this important admission, and I do not want any attorney for the +Government to deny it.</p> +<p>He admits that in May there was a final division, and that that +division was to take effect as from the 1st day of April, and that +after that each party took the routes allotted to him, and they +became the uncontrolled property of that person, no other person +having the right to interfere. There is your admission, just as +broad as it can be made. Mr. Bliss, after having made that +admission, which virtually gives up the Government's case, then +threw a sheet-anchor to the windward and said, "But when they +divided they made a bargain with each other that they would make +the necessary papers." What for? To carry out the division. That is +all. Now, the only corner-stone for this conspiracy, the only +pebble left in the entire foundation is the agreement to make the +necessary papers after the division. That is all that is left. The +rest has been dissolved or dug up and carted away by this +admission. Let us see what that agreement was. Mr. Bliss turned to +the evidence of John W. Dorsey, on page 4105:</p> +<p>Q. At the time you sold out, was there any understanding about +your making papers?—A. That was a part of the agreement. I +was to sign all the necessary papers to carry on the business.</p> +<p>When he sold out he agreed to sign all the necessary papers. It +is like this: Mr. Bliss says on such a day, for instance, they +divided. Suppose, instead of being routes it was all land. They +divided the land and then they agreed to make the deeds. That was +the conspiracy; not in the land; not in the agreement about the +land; not in the bargain, but in the execution of the papers in +consequence of the bargain. That was the conspiracy. They agreed to +make all the necessary papers. That was the agreement. Then the +Court asked John W. Dorsey a question.</p> +<p>Q. You agreed to sign what?—A. All the necessary papers to +carry on the business.</p> +<p>That is what he agreed to do. What else? What were those papers? +First, they were to sign all the subcontracts that were necessary, +all the Post-Office drafts necessary, and they were to sign letters +like this:</p> +<p>The Post-Office Department, in regard to this route, will +hereafter send all communications to the undersigned.</p> +<p>In other words, the object was to let the person who fell heir +to a given route in the division control that route. That was all. +The man who was the contractor agreed that he would sign all the +necessary papers. For what purpose? To allow each man who got a +route to be the owner of it and control it and draw the money. That +is all. And yet it is considered rascality.</p> +<p>Let me call your attention to another piece of evidence on this +subject. On page 5016, Mr. Bliss is talking about all these papers +and these letters that were written and apparently signed by Peck, +but really signed by Miner, saying, "I want you to send all +communications in reference to such a route to post-office box No. +so and so, John M. Peck," sometimes with an M. under it and +sometimes without. He did that in consideration of the agreement at +the time he got the routes that had been originally allotted to +Peck. Mr. Bliss brought here a vast number of these papers, and +then he continued, on page 5017:</p> +<p>All those, gentlemen, are orders, dated after the division, many +of them coming away down into 1881, and all of them relating to +routes with which Peck had no connection, because he severed his +connection with all the routes prior to the 1st of April, or as of +the 1st of April, 1879. John W. Dorsey tells you that he signed +papers right along—Of course he did. He agreed to—and I +have here a series of them. Many of them are orders not in blank. +There are among the papers, orders signed in blank, but these are +dated, and they are witnessed not always by the same person as +indicating that they got together and signed a lot of orders at the +time of the division. There is every indication that the dates are +correct. The witnesses are different at different times.</p> +<p>The Court. These same orders would have been made if the +division had been perfectly honest.</p> +<p>That is what I say. That is what we all say, gentlemen.</p> +<p>If the transaction then had been perfectly honest the papers +would have been precisely as they are. From the papers being +precisely as they are, do they tend to show that the transaction +was dishonest, when it is admitted by everybody and decided by the +Court, that if the transaction had been perfectly honest the papers +would have been just as they are? Recollect my text. Every fact +when you are proving a circumstantial case has to point to the +guilt of the defendants, and their guilt has to be found from all +the facts in the case beyond a reasonable doubt. If there is one +fact inconsistent with their guilt, the case is gone.</p> +<p>There is another little admission to which I call your +attention. Nothing delights me so much as to have the prosecution +in a moment of forgetfulness, or we will say on purpose, admit a +fact. Mr. Bliss said, on page 5018:</p> +<p>You will bear in mind that the division took place some eight +months previous to that.</p> +<p>That was January 1, 1880,</p> +<p>However that may be, these papers are all papers which on their +faces might be innocent and fair and proper. They are papers which, +under ordinary circumstances, might be executed to enable others +than the contractor to draw the pay and to be tiled with the +department, though it appears, I think, by the evidence in this +case that no draft could be filed except shortly prior to the +quarter as to which it applied. As to these papers all that we have +to say is this: they are papers on their face apparently innocent, +papers calculated to go through in the ordinary practice as though +there was nothing wrong about them. At the same time the evidence +shows that they were papers executed by these several parties at +the time of or in pursuance of the agreement of the division.</p> +<p>I do not want anything better. That settles the papers. They +were made at the time they agreed to make them. It was the only way +in which they could give the party who got the route absolute +control of the route.</p> +<p>Now, gentlemen, apart from these papers, I believe they have +three witnesses, at least they are called witnesses, in this case. +The first witness that I will call your attention to, and who +figures about as early as anybody, is A. W. Moore. I want to ask +you a few questions about his testimony. I want you to understand +exactly what he swears to and the circumstances. Let us see.</p> +<p>He swears first that he had a conversation with Miner, in which +he told Miner that he would work for him for one hundred and fifty +dollars a month and expenses, with permission to put on some of his +own service, I think, in Oregon and California, and that Mr. Miner +accepted his terms, and employed him as the agent of Miner, Peck +& Co. Recollect that, Miner, Peck & Co. Second, that Miner +told him to report at Dorsey's house to get instructions. Miner at +that time was staying at Dorsey's house. I do not know whether it +was to get instructions from Dorsey or from the house, or from +Miner. I take it, from Miner. No matter. Mr. Moore then swears that +he reported to Dorsey and Dorsey asked him his opinion about the +service. Moore had never been there and did not know one of the +routes, but Dorsey was anxious for his opinion. How did he know any +more about the service than Dorsey? There is no evidence that Moore +knew the price. There is no evidence that he knew the amount the +Government was to pay on a single route. He was a stranger. Then he +had another conversation with Dorsey in which Dorsey told him that +they had bid on the long routes with slow time, because that was +the way to make money. Not satisfied with that, Mr. Dorsey showed +him the subcontracts with the blanks and with the changes, and then +he explained to him the descending scale, and he explained to him +the percentage of expedition. He said Dorsey told him forty per +cent, of the expedition. Boone swears it was sixty-five per cent. +There is a little difference; not much. Moore swears that he +himself was to have twenty-five per cent, of the stealings. Let us +see how that is. Boone swears that the subcontractor was to have +sixty-five per cent. Rerdell swears that Brady was to have +thirty-three and one-third per cent. That leaves one and two-third +per cent, for the contractor. Do you see? The subcontractor got +sixty-five dollars out of one hundred dollars, and then Brady got +thirty-three dollars and thirty-three and one-third cents. That +makes ninety-eight dollars and thirty-three and one-third cents, +leaving the contractor one dollar and sixty-six and two-third +cents. That was all he got. Did you ever know of anybody on earth +doing business at a smaller per cent, and paying for the trouble? +Now, Mr. Moore comes in with his statement. He says the +subcontractor got forty per cent, and then he himself got +twenty-five per cent. That makes sixty-five. Then, according to +Rerdell, Brady was to have thirty-three and one-third per cent. +That makes ninety-eight and one-third. There is the most wonderful +coincidence in this whole trial. Rerdell and Boone and Moore agree +exactly that the contractor gave up ninety-eight and one-third per +cent, to others and took one and two-thirds himself. Did you ever +know as much humanity in a conspiracy as that? Did you ever know +such a streak of benevolence to strike anybody? It reminds me of a +case of disinterested benevolence that happened in Southern +Illinois. A young man there went to a lawyer and said to him, "I +want to get a divorce, I was married at a time when I was drunk, +and when I sobered up I didn't like the marriage. I want a +divorce." The lawyer asked, "What do you want of a divorce?" +"Well," he said, "do you know the widow Thompson?" "Yes." "She has +been a widow there for about forty years. Do you know her boy? He +is the biggest thief in this county. He went over the Ohio River +the other day and stole a set of harness and a mule." "What has +that to do with this divorce case?" "Well," he said, "I want to get +a divorce and I want to marry that widow." "What for?" "I want to +get control of that boy and see if I can't break him from stealing. +I have got some humanity in me." Here are S. W. Dorsey, his +brother, his brother-in-law, Miner and Vaile starting a charity +conspiracy, and out of every hundred dollars that they steal they +offer ninety-eight dollars and thirty-three cents upon the altar of +disinterested friendship. You are asked to believe that. You will +not do it.</p> +<p>Mr. Moore also swears that he received some money by a check, +but he does not know whether the check was payable to him or +payable to Miner, and he got a power of attorney signed by Miner +from John W. Dorsey and John M. Peck, and then he started, S. W. +Dorsey assuring him in the meantime that he could tell the people +out there that the service would be increased and expedited in a +few days. Mr. Moore is a peculiar man. He says that that suited him +exactly. He was willing to steal what little he could; he was +willing to steal for one hundred and fifty dollars a month if he +couldn't get any more, or he was willing to steal for a part of the +stealing. If he could not get that he would take an ordinary +salary. I should think he was a good man from what he says. You +heard him. They were wonderfully anxious to prove by Moore that +Dorsey was the head and front of this whole business. That was the +object, and so he swore as to the instructions. He said he was +instructed to get up petitions so that they could be torn off and +the names pasted on other petitions. He swore he carried out those +instructions. He swore that Major agreed to do it, and I think a +man by the name of McBeau was going to do it. Yet, gentlemen, there +never was such a petition gotten up. Major swore here that he never +heard of it; that he never dreamed of it, and never agreed to it; +that it was a lie; that it was never suggested to him. Moore went +out West and came back as far as Denver, and at Denver met John R. +Miner, and then came here and saw Dorsey. What did he do with +Dorsey? He swears that he went to Stephen W. Dorsey and settled +with him, and that Dorsey settled in a very generous and +magnanimous way, and did not want to look at his account, and did +not want to look at the book; had no anxiety or curiosity about the +items. He just said, "How much is it?" It happened to be even +dollars—two hundred and fifty dollars. When a man goes out +West and has hotel bills and all that sort of thing, when he comes +to render his expense account it is always even dollars. Moore said +two hundred and fifty dollars. Dorsey gave it to him; never looked +at the book at all. Moore swears that he made that settlement with +Stephen W. Dorsey on the 11th day of July, 1878. Dorsey was then in +the Senate.</p> +<p>Look at page 1417. You see that Moore had been smart; that is +what people call smart. You know it is never smart to tell a lie. +Very few men have the brains to tell a good lie. It is an awfully +awkward thing to deal with after you? have told it. You see it will +not fit anything else except another lie that you make, and you +have to start a factory in a short time to make lies enough to +support that poor little bantling that you left on the door-step of +your honesty. A man that is going to tell a lie should be ingenious +and he should have an excellent memory. That man swore that he +settled with Dorsey to the 11th day of July, 1878; swore it for the +purpose of convincing you that Dorsey employed him; that Dorsey +gave him instructions; that Dorsey was the head and front of the +conspiracy. I then handed him a little paper, and asked him, "Do +you know anything about that? Did you ever sign that?" And here it +is:</p> +<p>Not July 11. That is the day he got the money of Dorsey.</p> +<p>July 24, 1878.</p> +<p>Received of Miner, Peck & Co., one hundred and sixty-six +dollars, balance of salary and expenses in full to July 11, +1878.</p> +<center>A. W. MOORE.</center> +<p>To when? To July 24? No, sir; he settled with Dorsey to July 11, +1878. The gentlemen had forgotten that he gave that. If he had only +had a little more brains he would have avoided the two hundred and +fifty dollars, that even amount, and he would have said, "Dorsey +did look over my books, and we had a little dispute about some +items, and we just jumped at two hundred and fifty dollars." But he +swears that was the actual settlement, and then we bring in his +receipt in writing, dated the 24th of July, 1878, saying that he +received one hundred and sixty-six dollars that day, and that it +was in full of his salary and expenses, not up to that date, but up +to the nth of July, 1878. If his testimony is true, he stole that +one hundred and sixty-six dollars. If his testimony is true, he +settled with Dorsey in full for two hundred and fifty dollars, and +then he was mean enough to go and get one hundred and sixty-six +dollars more for the same time. No, gentlemen, he was all right +enough about it then; he told the falsehood here.</p> +<p>Now, what does Dorsey swear? Dorsey swears that he received an +order from Miner to give this man two hundred and fifty dollars. +Miner swears that if Dorsey paid him anything it was on his, +Miner's, request. That is a v perfectly natural proceeding for Mr. +Miner to request Dorsey to pay this man two hundred and fifty +dollars. The man came to Dorsey's house. Dorsey gave him two +hundred and fifty dollars upon Miner's order. He was trusting John +R. Miner for the money, and it was none of his business whether +Miner owed it or not, and consequently he did not look at his book. +Now, every fact is consistent with the truth of Mr. Dorsey's +testimony; the fact is consistent with the truth of Miner's +testimony; and the receipt of this man given to Miner on the 24th +of July, 1878, demonstrates that he did not tell the truth, under +oath, in this court before you.</p> +<p>That is the end of Mr. Moore; that is the end of him. You never +need bother about him again as long as you live.</p> +<p>Why, they say, "Why didn't you impeach him?" He impeached +himself. "Why didn't you call so-and-so?" Because we had that +receipt; that is why. No need of killing a man that is dead. You +need not give poison to a corpse. When a thing is buried, let it +go. When a man commits suicide, you need not murder him. When he +destroys his own testimony, let it alone; it will not hurt you.</p> +<p>I am not afraid of the testimony of Mr. Moore. If these +gentlemen can galvanize it into the appearance of life, I should be +very happy to see them do it. Everything that he swore upon this +stand that in any way touched the defendants is shown not to be +true.</p> +<p>Why should Dorsey have told him in 1878 to get up fraudulent +petitions? Even Rerdell does not swear that in 1879 Dorsey +instructed him to get up fraudulent petitions, and certainly he +would go to the limit of the truth. After he made his story out of +a piece of true cloth there would be very few scraps left. He would +certainly go clear to the line. And yet, even he does not swear +that when he went West to make contracts, to get up petitions, he +was instructed by Mr. Dorsey to get up a fraudulent +petition—not once. And yet Moore swears that in 1878, when +Dorsey was in the Senate, he told him to get up these fraudulent +petitions. It will not do.</p> +<p>Mr. Major swears that what he says about it is not true; Mr. +McBean swears that what he says about it is not true; and then we +have Moore's own receipt showing that it is not true.</p> +<p>On page 4757 Mr. Bliss says—Moore stands before you, +therefore, so far as all this testimony is concerned, wholly and +absolutely uncontradicted.</p> +<p>His testimony was that he was employed by Dorsey; his testimony +was that he was settled with by Dorsey, and the testimony of the +receipt that he signed is that he settled with Miner and not with +Dorsey; the testimony of Miner is that he was settled with by +Miner, and not with by Dorsey; the testimony of Dorsey is that he +never had any conversation with him in the world except at the time +he paid him the two hundred and fifty dollars. They say Rerdell was +present at the conversation. Why did they not prove it by Rerdell +after Dorsey had sworn to the contrary? And yet Mr. Bliss tells you +that he is not contradicted—"utterly uncontradicted."</p> +<p>Mr. Ker, it seems, has an opinion of this same witness, I +believe. He says, on page 4511:</p> +<p>He says he started out and went to work, as these records show, +and made the subcontracts according to his instructions, and got up +the petitions according to his instructions.</p> +<p>He swears he did not get up a petition at all, not one; he +swears that he had not time. And yet these gentlemen say that he +got up petitions according to his instructions, and he swears he +did not. He swears he told Major to, and that Major signified his +willingness to do it. Major swears that that is a falsehood. He +swears the same with reference to McBean, and McBean swears that it +is a falsehood. Now Mr. Ker goes on:</p> +<p>He fixed them up and changed the language a little in some, and +in some he did not take the trouble to change, but he fixed them +all so that there was a space between the writing and the names, so +that they could be cut off and pasted on other papers.</p> +<p>He expressly denies that he ever fixed a petition in the +world.</p> +<p>Mr. Ker. What page?</p> +<p>Mr. Ingersoll. You ask the page! Talk to the jury seven days! I +say that this man never fixed up a petition, and he never says that +he fixed up a petition. Where is the page on which he says it? He +was willing to do it, but he had not the time. I will show you that +language. There is what they say about this man. Then he says he +got a note from Miner, and went to Denver and met Miner. That is +right. Then Miner offered him a quarter interest in the routes in +this vast conspiracy.</p> +<p>Let us find what Moore thinks of himself. We find that on page +1398. He is a good man, worthy of this case, according to the +eternal fitness of things. I come to this quicker than I thought I +would. It is page 1396:</p> +<p>Q. Did you get up any?—A. No, sir; I didn't have the +time.</p> +<p>There it is. Now, of course, Mr. Ker forgot. I call your +attention to this to show how little weight such evidence is +entitled to in reference to a conversation five years ago, when Mr. +Ker could not remember this with the book before him.</p> +<p>Mr. Ker. I asked you for the page on which Mr. McBean's +testimony appears.</p> +<p>Mr. Ingersoll. Mr. Moore is the witness. Mr. Moore swears that +he never got up such a petition. Mr. Ker says he did. He and Mr. +Ker will have to settle their own difficulty.</p> +<p>On last Friday, in reply, I think, to a question of Mr. Ker, I +stated that I thought McBean swore that Mr. Moore did not make any +arrangement with him to get up false petitions. In that I was +mistaken. Mr. Moore swore that he made an arrangement with McBean +to get up petitions. He did not quite swear that McBean agreed to +get up false and fraudulent petitions. He just came to the edge of +it and did not quite swear to it. Afterwards McBean was recalled by +the Government and the Government did not ask McBean whether he had +ever agreed to get up any petitions or whether he had ever made any +such arrangement with Moore. They did not ask him and we did not +ask him. I do not know why they did not ask him. They probably +know.</p> +<p>I also stated that Moore swore that he got his instructions +about these petitions from Dorsey. The evidence is that he got his +instructions not from Dorsey but from Miner; that Miner so +instructed him, and that thereupon he made the bargain to get up +such petitions with a man by the name of Major on the Redding and +Alturas route. I make this correction because I do not want you or +any one else to think that I wish any misstatement made in our +favor. We do not need it and consequently there is no need of +making it. You will remember that after Moore swore that he made a +bargain with Major to get up false petitions, Major swore that it +was untrue. You will also remember that Judge Carpenter called for +the petitions that were gotten up upon the routes that Moore had +something to do with, and I think he showed you on one route eleven +or twelve petitions. Mr. Major swears that every petition was +honest, that the statements in each petition were true, and that +the signatures were genuine. All those petitions were shown to you. +So that the result of the Moore testimony is this: Moore swears +that Miner told him to get up such petitions. He then swears that +he made that bargain with Major. Major says it is not true. Moore +almost swears that he made the same bargain with McBean. McBean +says nothing on the subject. Then we bring here the petitions upon +those very routes, and especially upon the Redding and Alturas +route, and we find no such petitions as are described by Moore. +That is enough in regard to Mr. Moore upon that one point.</p> +<p>There is one little piece of testimony to which I failed to call +your attention on Friday, and to which I will call your attention +now. Moore was the friend of Boone. Boone recommended him to Miner. +It was through Boone that Moore was employed. Now, I ask you if it +is not wonderful that Moore never told Boone that there was a +conspiracy on foot? Is it not wonderful that Moore did not tell +Boone, his friend, the man to whom he was indebted for the +employment, "There is a conspiracy in this case. Senator Dorsey as +good as told me so. I know all about it."</p> +<p>The fact is he never said one word, and the reason we know it, +is that Boone swears that when he went out on the 7th or 8th of +August he never even suspected it. I cannot, it seems to me, make +this point too plain. Boone had been known by Dorsey for a long +time. They were very good friends. Dorsey had enough confidence in +him to select him as the man to get the necessary information after +he had been requested so to do in the letter. Boone was the man who +attended to this business more than anybody else. Boone was +interested with John W. Dorsey. Boone had every reason to find out +exactly what was happening. He was at Dorsey's house, where Miner +was. He talked with Miner day after day. He helped get up the bids. +He did a great deal of mechanical work. He had the subcontracts +printed. Yet during all that time Dorsey never let fall a chance +expression that gave Boone even the dimmest dawn of a hint that +there was a conspiracy. Nobody told Boone. Moore, his friend, never +spoke of it.</p> +<p>Now, there is one other point with regard to Mr. Moore. Mr. +Moore swears, on page 1371, that Miner offered him a fourth +interest in these routes. That was the conversation in which he +said Mr. Miner told him they were good affidavit men. According to +Moore's testimony he then knew there was a conspiracy, and he +understood that he was part and parcel of it. Let me ask you right +here, is it probable that Moore would have been offered a quarter +interest at that time if a conspiracy existed, and if they had +their plans laid to make hundreds of thousands of dollars, and if +the profits had depended upon the affidavits alone? I ask you, as +sensible, reasonable men, if he would have been offered a quarter +interest under those circumstances? Now conies in what I believe to +be the falsehood. Mr. Moore says that the interest was offered to +him by Miner, but Miner said it would have to be ratified by +Stephen W. Dorsey. That is brought in for the purpose of having +some evidence against Dorsey. You must recollect, gentlemen, that +this evidence was all purchased. This evidence was all bargained +for in the open shamble. You must recollect that there are upon the +records of this court some seven or ten indictments against A. E. +Boone. You must remember that Moore was Boone's friend. You must +remember that Moore was a part of the consideration that Boone was +giving to the Government for immunity.</p> +<p>Mr. Merrick. Is there any proof of that?</p> +<p>Mr. Ingersoll. I think there is. Mr. Moore swears as to the +number of indictments against Boone. He was his friend. The jury +have a right to infer what motive prompts a witness. Moore wished +to swear enough, so that Mr. Boone would not be troubled. In my +judgment, Mr. Boone, being under indictment, gave evidence in this +case in order that the Government would take its clutch from his +throat. He swore under pressure. That is the system, gentlemen, +that is dangerous in any country. Whenever a Government advertises +for witnesses; whenever a Government says to a guilty man, or to a +man who is indicted, "All we ask of you is to help us convict +somebody else;" whenever they advertise for a villain, they get +him. That is the result of what they call the informer +system—an infamous system. A court of justice, where justice +is done between man and man, is the holiest place on earth. The +informer system turns it into a den, into a cavern, into a dungeon, +where crawl the slimy monsters of perjury and treachery. That is +the informer system. It makes a court a den of wild beasts. What +else does it do? Under its brood and hatch come spies; spies to +watch witnesses, spies to watch counsel, spies to follow jurymen, +so that a juror cannot leave his house without the shadow of the +spy falling upon his door-step. That is not the proper attitude of +a Government. The business of a Government is to protect its +citizens, not to spread nets. The business of a Government is to +throw its shield of power in front of the rights of every citizen. +I hold in utter, infinite, and absolute contempt any Government +that calls for informers and spies. Every trial should be in the +free air. All the work should be done openly. These sinister +motions in the dark, the crawling of these abnormal and slimy +things, I abhor.</p> +<p>Now, to come back to Moore. Upon my word I think he was trying +to help his friend. After Mr. Miner had offered him a quarter +interest, then he came back to Washington. He arrived here, +according to his evidence, about the 11th day of July, I think. He +went immediately to see Stephen W. Dorsey. Recollect that. That was +the time Dorsey settled with him without looking at his books. +After he settled with him and gave him two hundred and fifty +dollars he asked him to telegraph to see if the service had been +put on The Dalles and Baker City route. He waited here until he +received an answer, and after that he talked with Dorsey not only +about that matter, but in that conversation Dorsey said, according +to Moore, that it took a good deal of money to keep up their +influence in the department. When I asked him when that +conversation was, he said two or three days after the first +conversation. According to the evidence in this case Stephen W. +Dorsey left this city on the 12th of July. This man Moore arrived +on the nth, and he says two or three days after his arrival Dorsey +said it took money to keep up their influence here. When he swears +that Dorsey told him that, Dorsey was in the city of Oberlin, Ohio. +Recollect these things. Whoever tells stories of this character +should have a most excellent memory.</p> +<p>Now, there is another thing. When did Miner get back? He got +back by the 24th of July, because on the 24th of July he settled +with Moore, and I believe then Moore went West again. Now, remember +there was a contract made, as Moore swears. He has not got it. +Nobody sees it. He says there was a contract made by which he had a +fourth interest in something. He got back here I believe some time +in November, and on the 20th of November he and Miner settled. I +will now look on page 1430 for that settlement. I want you to see +how everything was situated at that time.</p> +<p>I find on page 1430 that Mr. Miner settled for everybody with +Mr. A. W. Moore. Remember the situation. Moore knew there was a +conspiracy. All the service was on. You see, this was November 20, +1880. Vaile was in. They had a man who was close to Brady. +Everything was running in magnificent style. Mr. Moore understood +that there was a conspiracy. What more did he understand? That he +had the claw of his avarice in the flesh of a United States Senator +and in the flesh of a Second Assistant Postmaster-General. Hundreds +of thousands of dollars were to be made. He came back here and +settled up and sold out his interest for how much? Six hundred and +eighty-two dollars. Do you believe that? Credulity would not +believe it. Nobody believes it, that is if the rest of the story is +true. Why did he settle with him for so little? He said Mr. Miner +told him he hadn't a dollar. He did not reply to him, "When this +conspiracy is completed you will have plenty. I can wait." No. +Miner said he hadn't anything and so Moore settled for six hundred +and eighty-two dollars. Then I asked him, "You had a contract with +Dorsey, did you?" "Yes; verbally." "Did you ever say anything to +Dorsey about it?" "No." "Did you ever claim anything from Dorsey?" +"No." "Did you ever write to him?" "No." "Did you ever say anything +to anybody that you had any claim against Dorsey?" "No." You saw +Mr. Moore, gentlemen, here upon the stand. Do you think he is the +kind of man who would let such a chance slip? It is for you to +judge. In my judgment that is the eternal end of Moore's testimony. +We can call him buried. We can put the sod over his grave. We can +raise a stone to the memory of A. W. Moore. Let him rest in peace, +or to use the initials only, let him R. I. P. That is the end of +him. If the Government wishes to dig up the corpse hereafter let +them dig.</p> +<p>Mr. Ker. I would like—</p> +<p>Mr. Ingersoll. [Interposing.] I don't want to hear from you.</p> +<p>The Court. You do not know what he is going to say.</p> +<p>Mr. Ingersoll. He may be intending to make a motion that the +jury be instructed to find a verdict of not guilty.</p> +<p>Mr. Ker. As Mr. Merrick will have to answer, he simply wants to +know the page.</p> +<p>Mr. Ingersoll. If Mr. Merrick wants to know the page he shall +have the page, or anybody that wishes to answer. If counsel had +simply asked me for the page, without getting up in such a solemn +manner, I would have told him.</p> +<p>On page 1406, Mr. Moore says that he went to Dorsey and got the +money, and that then Dorsey requested him to telegraph to The +Dalles, and that he did not see Dorsey after he got the answer to +his dispatch, I think, for two or three days. He reached +Washington, he says, about the 11th. On page 1372, he speaks of +telegraphing to The Dalles by instructions from Dorsey.</p> +<p>Now, gentlemen, I am going to call your attention for a little +while to another witness, Mr. Rerdell. And in the commencement, I +need not refresh your minds with regard to the part he has played. +I need not, in the first instance, tell you about his affidavit of +June, 1881, nor his affidavit of July 13, 1882, nor his pencil +memorandum, nor his Chico letter, nor his offer to pack the jury on +behalf of the Government, nor the signals he had agreed upon, nor +the reports he made from day to day, nor the affidavit of September +that he made for the Government, nor of November nor of February. +All these things you remember and remember perfectly. I will speak +of them as I reach them, but I want you to keep in your minds who +he is.</p> +<p>I need not call any names. Epithets would glance from his +reputation like bird-shot from the turret of a monitor. The worst +thing I can say about him is to call him Mr. Rerdell. All epithets +become meaningless in comparison. The worst thing I can say after +that would have the taint of flattery in it. You will remember when +Enobarbus was speaking to Agrippa about Cæsar, he says, +"Would you praise Cæsar, say Cæsar. Go no further." And +I can say, "If you wish to abuse this witness, say Mr. Rerdell. Go +no further." That is as far as I shall go.</p> +<p>You will remember that Mr. Rerdell was in the employ of Stephen +W. Dorsey, and had been for several years. He does not pretend that +he was ever badly used; he does not say before you that Mr. Dorsey +ever did to him an unkind act, ever said an unkind word. In all the +record of the years that he was with him he finds no page blotted +with an unjust act, not one. He has no complaint to make. Under +those circumstances he voluntarily goes to see a man by the name of +Clayton, I think an ex-Senator from Arkansas, known to him at that +time to be an enemy of Stephen W. Dorsey, an enemy of his employer, +an enemy of his friend—his friend, whose bread this witness +had eaten for years, whose roof had protected him, who had trusted +and treated him like a human being. Yet he goes to this man +Clayton, and he says, in substance, "I want to sell out my friend +to the Government." He was not actuated exactly by patriotism, +although he says he was. The promptings of virtue may have started +him, but after he got started he said to himself, "I do not see +that it hurts virtue to be rewarded." So he said, "I want some pay +for this; I want a steamboat route reinstated; I want the Jennings +claim allowed. Of course I am disinterested in what I am doing, but +I might as well have something, if it is going." "What else do you +want?" The disinterested patriot suggested that he would like to +have a clerkship for his father-in-law. "Anything else?" If you +will read his letter of July 5, 1882, which I will read to you +before I get through, you will see that he says, "If I had remained +with the Government I have every reason to believe I would have had +a good position by this time." So he must have demanded a clerkship +for himself—good, honest man. At that time he did not know, +but swore it afterwards and swore it here upon the stand, that +Dorsey had never done anything wrong; and yet he was willing to +sell him to the Government, believing that he had never done +anything wrong. So he went and saw the Postmaster-General. The +Postmaster-General did not appear to take any great interest in the +matter. He turned him over to the Attorney-General. He showed the +Postmaster-General what he had, and read him, I believe, or showed +him some memoranda. Then he went and saw the Attorney-General. The +Postmaster-General did not seem to give him encouragement. Then +when he went to see MacVeagh he took with him a letter-book—I +do not know but more than one—but we will say a letter-book. +Now, what was in that letter-book? And, gentlemen, the only way to +find whether a man tells the truth is to take all the circumstances +into consideration. What did he want to do? What was his object? +And what were the means at his command? For instance, it is said +that a man left his house with the intention of murdering another, +and that he had on his table a loaded revolver, and also had on his +table a small walking-stick, and he took with him the +walking-stick. You would say he did not intend to commit the +murder; that if he had so intended he would have taken the deadly +weapon. In other words, you must believe that men, acting for the +accomplishment of a certain object, use the natural means within +their power.</p> +<p>Now, what did he have in that letter-book? He swears now that in +that letter-book there was a copy of a letter from Stephen W. +Dorsey to James W. Bosler; that the original letter was written by +Stephen W. Dorsey. That press-copy, of course, would show that the +original letter was in the handwriting of S. W. Dorsey. What does +he swear was in that letter? He swears that Dorsey made a +proposition to Bosler to go into the business; told him the +profits, and told him that he had to give thirty-three and +one-third per cent, to T. J. B.; that he had already paid him, I +think, twenty thousand dollars, and had more to pay him. According +to the testimony of Mr. Rerdell, that was in the letter-book that +he took to Mr. MacVeagh. Now, recollect that. Why did he not show +it? He had forgotten it. He showed him what he had. Recollect now, +that he had a tabular statement. I think the letter showed so much +money to T. J. B., and the tabular statement thirty-three and +one-third per cent, to T. J. B. He had that tabular statement, and +that was in Dorsey's handwriting. He says he had it. Well, after +that, the Attorney-General must have told him, "That is not enough; +I want some more." "Well," he says, "I can let you have some more." +"What more can you let us have?" Well, then he told him about the +red books; I do not know that he said they were red, but he told +him about the books and that those books were in New York, and he +would go over there and get them; that he was going to steal them; +he says he went over to get them, and afterwards admitted, I +believe that lie was stealing them.</p> +<p>Now, we must remember the position Rerdell was in. He had been +to Clayton, to the Postmaster-General in company with Mr. Woodward, +and to the Attorney-General in company with Mr. Woodward, and yet +there was not enough. Well, it was all he had. What more could he +do? He suddenly found himself caught in his own trap. He had +furnished enough to trouble him, but not enough to convict Dorsey, +and not enough to be promised immunity. Now, what had he to do? He +did exactly as he did with Mr. Woodward in September, when he made +that affidavit, and when Woodward said it was not enough; he said, +"Very well, I will make another," the same as he did when he made +the affidavit of seventy pages in November and found it was a +little weak. He made another, and he would have made them right +along. He had a factory running night and day. Now, he tells you +that while he was talking with MacVeagh, just towards the last of +the conversation, the idea flashed into his brain that he might +save Dorsey too. Don't you remember that testimony? And as quick as +he thought of that, he agreed to go to New York and steal the +books. The very last thing that MacVeagh said to him, according to +MacVeagh's testimony, and I believe according to his own, was to be +sure and get the books; that they were all important. So he went, +as he claims. Now, did it occur to him that he would save Dorsey in +that way? Did he think of saving Dorsey by going and getting these +books? That was the last thing, and he was going to get the books +to be used as evidence against Dorsey.</p> +<p>In a few days he says he started for New York, and the question +arises, why did Rerdell go to New York at all? Why did he want to +see that the books were in New York? Why did he pretend that he had +any more evidence unless he had it? You see you have got to get at +the philosophy of this man; you have got to find what actuated him; +and although in many respects he is abnormal, unnatural, monstrous, +and morally deformed, still it may be that we can find the +philosophy upon which he acted. Why did he say he was going to New +York? Because the Attorney-General told him—he must have told +him—that the evidence he then had was not sufficient. Rerdell +could not break down right there and say, "That is all I have got." +That would give up the fight; that would tell him that he had +endeavored to sell out his friend and nobody would buy the +evidence; that would tell him that he had tried this and had +failed; that he had simply succeeded in showing his own treachery +without involving his friend. He could not stop there. You must +recollect the evidence he had, and the evidence he wanted.</p> +<p>Let us see what he had. Mr. Bliss says, "Why did he say the +books were in New York? Why did he not say they were in +Washington?" That would not have given him time, gentlemen. He +would have been told, "Go and get them." Then he could not have +produced them. Consequently he put them in the possession of +somebody else, so that if he failed to get them, then he could say +that the other man destroyed them or had hid them; he could have +said, "I have done my best; they did exist, but they have been +destroyed, or they have been hidden, or they have been put out of +the way." He wanted time, and knowing that no such books existed, +he could not say, "I have them in Washington," because then he +could give no excuse for their non-production. He must state it in +such a way that he could reasonably fail; that is to say, that he +could give a reason for his failure. He could not say, "I have them +in my house," because he would have been told to go and get them. +So he put them in the possession of another man, so that, failing +to get them, as fail he must, he could give a reasonable excuse for +the failure.</p> +<p>Why did he go to New York? I will tell you what my philosophy +is: He found that the Government did not wish to purchase the +evidence that he had. He found that, in the judgment of the expert +of the Department of Justice, it was not sufficient. The next thing +was to retrace his steps. He did not want to jump off of one boat +into the sea and find no other boat to rescue him. He said: "I have +been too hasty; I will go to New York." Why? To find out whether +Dorsey had heard of this or not. That is what he went there for. +The inferior man always imagines that the superior knows what he is +doing, and knows what he has done. He found that he was about to +fail with the Government, and then the important question to him +was: Has Dorsey found this out? Can I go back to Dorsey? Or must I +go on and be cast away by him and be refused by the Government?</p> +<p>Now let me call another thing to your minds. I will come to it +again, but it forces itself upon me at this place, and it seems to +me it ought to be absolutely conclusive.</p> +<p>He swears that on the day after he went to MacVeagh with that +letter-book, in looking it over he found the press-copy of the +original letter that Dorsey wrote to Bosler on the 13th of July, +1879. says that the next day he found that copy in that copy-book. +Why did he not steal the book? Conscientious scruples, gentlemen! +You see he was going to New York to steal another. Why not steal +one that he already had possession of? And how much better that +book would have been than the other that he was going to get. This +was a copy of a letter in Dorsey's handwriting, in which he +admitted that he had paid twenty thousand dollars to T. J. B., and +was going to pay him some more, while that book in New York was not +in Dorsey's handwriting—admitting, for the sake of the +argument, that there was a book—but was in the handwriting of +Donnelly or Rerdell. See? And right there he had the evidence, +absolutely conclusive, in the handwriting of S. W. Dorsey himself, +and he did not even keep it, he did not even steal it, but he gave +it back and went to New York to steal a book that Dorsey did not +write. He threw away primary evidence to get secondary evidence. He +threw away that which would have convicted Dorsey beyond a doubt, +which would have made him a welcome recruit to the Government. He +threw that away and went to New York to get another, a line of +which Dorsey never wrote; and then he would have to establish, +after he got that book, that "William Smith" stood for Thomas J. +Brady; he would have to prove after they got that book that "John +Smith" or "Samuel Jones" stood for Turner. Now, gentlemen, do you +believe that that man, with his ideas of honor, with the kind of a +conscience he has in his bosom, with the copy of a letter in +Dorsey's handwriting in his possession admitting that Dorsey gave +twenty thousand dollars to T. J. B., would give that up and then go +to the city of New York to steal a book not in Dorsey's +handwriting, and that did not prove that Dorsey had ever paid a +cent to Thomas J. Brady, in which there was one charge to "William +Smith," and that would have to be eked out by the testimony of +Rerdell himself, when he had right there in his own grasp and +clutch the press-copy of the original letter written by Dorsey +himself? Do you believe it? There is not a man on that jury +believes it; there is not a lawyer prosecuting this case who +believes it.</p> +<p>What else did he have? He had a letter that he himself, as he +claims, wrote to Bosler on the 22d of May, 1880, after he, Rerdell, +had been summoned to appear before a committee of Congress. He had, +he says, those three sheets.</p> +<p>What else did he have the morning after he was talking with +MacVeagh? He had the tabular statement in the handwriting of +Stephen W. Dorsey, and over the Brady column, "T. J. B., +thirty-three and one-third per cent."</p> +<p>What more did that man have? He had the balance-sheets made out, +as he swears, by Donnelly, of those books. Were the balance-sheets +just as good as the books?</p> +<p>Now, just think what he had, according to his own testimony: A +copy of the original letter, written by Dorsey to Bosler, in which +he admitted his guilt; a copy of the tabular statement, written by +Dorsey, in which he put down thirty-three and one-third per cent, +to T. J. B. What more? Copy of the letter that he had written to +Bosler on the 22d of May, 1880. He had all that, and he must have +had this memorandum, though I will show you that he had not, and I +think I will show you when he made it. And yet he was going to New +York to get some more evidence. He was going to steal another book +in New York that would simply create a suspicion, while he gave up +a book that was absolute certainty. That is the theory. But they +say, "Oh, he did not do that quite." What did he do? He went and +had that copied. He swears that he had copied that letter of May +13, 1879, that Dorsey wrote to Bosler, in which he admitted that he +gave twenty thousand dollars to Brady. Now, a copy would not show +in whose handwriting the press-copy was, would it? That is a very +important point. Who copied it? I think he said Miss Nettie L. +White copied it. We never hear of Miss Nettie L. White again, +though. These gentlemen admit that you are not to believe Mr. +Rerdell on any point that is not corroborated, and when he swears +that Miss Nettie L. White copied the letter you are not bound to +believe there was such a letter unless they bring Miss White or +account for her absence. They did not bring her. That is an +extremely important point in their case, infinitely more important +than whether the red books ever existed. Did Dorsey write a letter +to Bosler in which he admitted his guilt? This man says that he had +complete and perfect evidence of it in his own hand; that he gave +that up; that he had that copied by Miss White. And they did not +bring Miss White. Certainly he had no scruples about tearing it +out. He says he tore out his letter to Bosler of the 22d of May, +1880. He had no scruples about that. He did not refuse to keep the +book because it touched his honor, because in a day or two he was +going to steal another not half as good as that one, not one-tenth +part as good. Just think. He gave up evidence that was absolute and +complete, and went to steal evidence that was secondary and of the +poorest character. You do not believe it. He would have kept that +book if he had kept any. If he was going to steal any evidence, and +had the best, he would have kept it. The trouble was that there was +no such letter in that book. There was his letter of May 22, 1880; +no doubt about that; and that man tore it out, and then he made up +one in his own mind, and had it of that date; that is all.</p> +<p>So he went to New York, and he swears that he went right up to +the Albemarle Hotel; that it was early in the morning; that Dorsey +was not then up; and that he had a conversation with Dorsey, in +which Dorsey charged him with having had something to do with the +Government, with having gone over to the Government. Dorsey had +heard that there was something going on about that time, and I +suppose he asked Mr. Rerdell about it. Rerdell denied it; said +there was no truth in it; that nothing of the kind, character, or +sort had ever happened.</p> +<p>Now let us just see whether I can demonstrate to you that +Rerdell, in the conversation he had with Dorsey at the Albemarle +Hotel, denied that he had gone over to the Government, or that he +had done anything that was not perfectly honest, straightforward, +and upright. I refer to it now, although I may come to it +again.</p> +<p>And, gentlemen, I am sorry for you; I pity every one of you, +that you have to hear all that has to be said in this case. But you +must put yourselves, for the moment, in our places. You must +remember that these defendants have borne this agony, have been +roofed and surrounded with disorder for two years. You must +remember that the agents of the Government have pursued them, they +have watched over them and spied them night and day. You must +remember that they have been slandered for years in the public +press, although the tone of the public press is now changing, and +changing in such a marked degree that one of the attorneys here for +the prosecution claimed that we had bought up the correspondents. +When you take into consideration what my clients have suffered, the +position they are now in, fighting this great and powerful +Government, I know you will excuse us for inflicting upon you every +thought and every argument that we think may be for our +defence.</p> +<p>I am doing for my clients what I would do for you, or any of +you, if you were defendants, and I am doing for them what I would +want them to do for me were I a defendant and they my counsel.</p> +<p>Now I am going to demonstrate this. When Mr. Rerdell got to +Jersey City he telegraphed back, according to the evidence of Mr. +Dorsey:</p> +<p>Up to this moment I have been faithful to every trust.</p> +<p>I believe Rerdell swears that he did not send that. He had a +memorandum-book which he took out of his pocket. I think a leaf was +torn from it, and he ran his pencil through this line on the page +on which he had taken a copy of this dispatch, "Up to this moment I +have been faithful to every trust," and says he did not send it. +Why did he put his pencil through that? Because that line would not +agree with the testimony he had given upon the stand. "Up to this +moment I have been faithful to every trust" was in that dispatch. I +want to ask you if you believe that Rerdell could have sent that +dispatch to a man to whom he had admitted that very morning that he +had gone over to the Government? Do you believe it? How perfectly +natural it would have been for him to send a dispatch from Jersey +City that harmonized and accorded with his denial of that +morning.</p> +<p>Just look at that [handing the paper to the foreman of the +jury.] Just read it. I want the jury to look at it. He rubbed it +out of his memorandum-book. When? At the time? No, sir; when he +found that he wanted something to harmonize with his evidence here. +Even he had not the brazen effrontery to swear that he had told +Dorsey that very morning that he (Rerdell) had gone over to the +Government, and then that very afternoon to telegraph him—Up +to this moment I have been faithful to every trust.</p> +<p>Why, in comparison with that cheek brass is a liquid. What is +the next sentence?</p> +<p>The affidavit story is a lie.</p> +<p>Why did he leave that in? Because technically that was true. He +had not then made an affidavit, and there is nothing so pleases a +man who has made up his mind to tell a lie as to have mixed with +the mortar of that lie one hair of truth. It is delightful to smell +the perfume of a fact in the hell-broth of his perjury. Just look +at that. These two things show that he had not admitted to Dorsey +that he had told the Government anything against Dorsey. He wanted +Dorsey to understand that he, Rerdell, had not communicated with +the Government. Now, if you admit his evidence to be true, at the +time he sent that dispatch he had the stolen book under his arm, +and you, gentlemen of the jury, are asked to believe a man who +would do that thing. I would not. I would not convict the meanest, +lowest wretch that ever crawled between heaven and earth upon such +testimony. Never. Neither can you do it. A verdict must rest upon a +fact. The fact must rest upon the testimony of a witness. That +witness must be, or seem to be, an honest man. And unless a verdict +is based upon the bed-rock of honesty, it is infinitely rotten, and +the jury that will give a verdict not based upon honesty is +corrupt.</p> +<p>Mr Crane (foreman of the jury.) I notice that this dispatch +seems to have been written with different pencils at different +times.</p> +<p>Mr Ingersoll—Up to this moment I have been faithful to +every trust—Is written very dimly.</p> +<p>The affidavit story is a lie, but confidence between us is +gone—Is in still a different hand.</p> +<p>I resign my position and will turn everything over to any one +you designate—Is still another hand. Three hands, three +pencils, in the one memorandum. These papers have been +manufactured, and when the Government said, "This is not enough," +another paragraph has been added.</p> +<p>How hard it is to perpetrate a piece of rascality and do it +well. There are an infinite number of things in this universe, and +everything that is in it is related to everything else; and when +you get a falsehood in it that does not belong to the family, it +has not the family likeness; and when anybody sees it who is +acquainted with the family, he says, "That is an adopted young +one."</p> +<p>Mr. Rerdell now says, I believe, that he did not send that line, +"Up to this moment," &c. Dorsey swears that he did. Rerdell +then produces this book and this paper which I have shown to +you.</p> +<p>Now, let us follow Mr. Rerdell from the Albemarle Hotel.</p> +<p>I will show that he crosses himself on almost every fact that he +endeavors to swear to. He swears that he went to Dorsey's; that +from Dorsey's he went immediately to Tor-rey's office; that he then +went and got lunch and then went to Jersey City. He also swears +that he got his breakfast before he went to Dorsey's. In the next +examination he swears that he got his breakfast after he went to +Dorsey's, and after he got the book he went to Jersey City, first +walking up and down Broadway for about an hour. He had forgotten +about the lunch. There is nothing in it but a mass of +contradiction. He swears that he went down to Torrey's office. Why +did he not make it earlier, as soon as he got off the boat? Because +he did not have any key to the office. It would not do to swear +that he broke into the office and that nobody ever heard of it, and +so he had to put the time after the office would naturally be open. +Well, now we have got him as far as the office. He swears that he +went in there and saw Mr. Torrey. After chatting a little with +Torrey, and telling him the object of his visit, Torrey took him +into the next room and took these books from a shelf or desk, or +something of that kind, and handed them both to him, and he looked +them over at his leisure, while Mr. Torrey went back to his +business. He finally took the journal and left the ledger. Why did +he leave the ledger? I will tell you after a while. Every lie, as +well as every truth, has its philosophy. He took the journal and +came along out with it under his arm, not wrapped up, not +concealed. Then he had another chat with Torrey about the weather +or something, and then he went on. Why did he swear that he had a +conversation with Torrey in that office? I will tell you. When he +was giving that testimony, Torrey was in mid-ocean, between New +York and Liverpool. I guess Mr. Rerdell had heard that the man was +away. He thought he would be absolutely and perfectly safe, and so +he said he had a conversation with Torrey. The moment he repeated +that conversation with Torrey, I said, "Where is Torrey?" We +telegraphed to New York and we found that Torrey had left for the +old country. We sent a cablegram to Queenstown and we intercepted +him. I think he staid a day in the old country, and took the next +ship and came back, arriving here in time to swear that Rerdell +never visited that office, that he never had that conversation with +him, and that he never got that book from that office; more than +that, that that book never was in that office. Who are you going to +believe, Torrey or Rerdell?</p> +<p>Another man was there on that very day, Mr. Mullins. He never +had any recollection of seeing Rerdell until he saw him here. All +the books were kept in the safe except the books that Torrey had in +his desk. No such books were in the safe and no such books were in +Torrey's desk. Gentlemen, no such books existed, and I will +demonstrate it to you before I get through. No doubt the man had +some little expense-books of his own. He has widened them, he has +lengthened them, he has thickened them, he has colored them. He has +refreshed other people. When the Government tells a man, "You have +got an office, haven't you?" "Yes." "Well, we want you to remember +this." Then he is refreshed on the subject. The words the +Government speaks are rain and dew and sunlight upon the dry grass +of his memory and it springs up green. He says he has been +refreshed. Before I get through I will show you that these things +were proved only by gentlemen who had been refreshed.</p> +<p>Now, why did Rerdell say he took the journal and left the +ledger? I will tell you. There is more in the shirt theory than you +would think. He had a shirt in a paper, folded up just once over +the bosom. Unexpectedly lie met Mr. James on the train. He was very +much surprised to meet him, because James swears he was very much +surprised to meet Rerdell. James knew that he had gone over to New +York to get those books, and he asked him, "Did you get the books?" +Rerdell had that beggarly little package. He could not call that +"books," because it was not large enough, and so he had to say he +had a book. That was the reason he said journal and not ledger. He +had too small a package for "books," and consequently he told James +he had the "book," and he is sticking to it; only one book. Another +reason: He said to James, and it was very smart of him, "I don't +want to show you what I have got in this package, because there is +a fellow looking," and so the shirt, in unconscious innocence, +reposed unseen. Who was the fellow who was looking? Chase Andrews. +You recollect him. He came into the depot at Jersey City at the +time Rerdell was writing this virtuous dispatch, this certificate +of his honor and of his faithfulness. He shook hands with Rerdell. +Rerdell said he had a carpet-sack, but it was not big enough to get +one of these books in. He wanted the jury to think it was a pretty +big book. He hated to lose a chance of adding to the size of the +book, and so he swore that it was too big to put in the +carpet-sack. If he had only had sense enough to put it in the +carpet-sack, and let it alone, we never could have proven anything +about it by Chase Andrews. Andrews would not have sworn that he +looked through the carpet-sack. But Rerdell in his anxiety to have +that book a big book said he could not get it into the carpet-sack, +and consequently must have held it in his hand. Chase Andrews saw +him in the depot at Jersey City, and rode in the next seat in the +Pullman car from Jersey City to Washington, and Rerdell had no +book. Who will you believe, Chase Andrews or Mr. Rerdell?</p> +<p>Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen +of the jury.</p> +<p>It is also claimed by the prosecution that on the evening of the +day on which Rerdell was in New York and sent the telegram from +Jersey City. Dorsey wrote a letter to Rerdell in which he begged +him for the sake of his family, for the sake of his children, and +everything to go no further. I believe it is claimed that after Mr. +Rerdell got back here to Washington he showed that letter to his +brother. It struck me as extremely wonderful that he did not show +his brother the book; that was such an important thing, it being +the thing that he went after, being something that was to decide +his fate with the Government. There was nothing about that. Let me +say right here: Suppose his story is true that he told Dorsey that +he had been to the Government. Would Dorsey write to that man a +letter begging him for God's sake not to go further? Would he not +rather have sent some man to see him? He knew at that time that he +was utterly dishonest, having received that very afternoon, +according to Rerdell's testimony, a telegram from Rerdell, in which +Rerdell admitted that he had told a falsehood. Would he then have +put himself upon paper? Would he have put himself in the power of +that same man? I ask you, because you know there is about as much +human nature in one person as in another, on the average, and the +only way you can tell what another man will do is by thinking "What +would I do under the circumstances?"</p> +<p>I am going to demonstrate to you now with just one point that +there were no such books. When Rerdell came to make the affidavit +of June 20, 1881, Dorsey knew that Rerdell had talked with +MacVeagh, James, and Clayton. He also knew that Rerdell, according +to his statement, had promised to go to New York and get the red +book. Rerdell swears in the affidavit of June, 1881, that he +promised MacVeagh to go to New York and get those books. Dorsey +knew at that time whether such books existed or not. If he knew +they did exist then he knew that Rerdell went after them. Why did +not Dorsey ask Rerdell at the time he made that affidavit, "Did you +get a book in New York?" Admitting, for the sake of the argument, +that Rerdell's story is true that the books were there and that +Dorsey knew it, would not Dorsey have asked him, when he was making +the affidavit of June 20, 1881, "Did you get a book in New York? +What did you do with it, if you did?" Rerdell swears that Dorsey +did not mention that subject; that it was not talked of between +them. Why? Because both knew that no such books existed. That is +the reason he did not ask him if he got it. He knew that he did not +get it. Why? Because the book was not there to be obtained. Can you +explain that on any other hypothesis? Dorsey knew at this time, +according to the testimony of Rerdell, that Rerdell was dishonest; +knew that Rerdell had tried to sell him out to the Government; knew +that Rerdell had promised MacVeagh he would go to New York and get +those books; knew that Rerdell had been to New York; knew that +Rerdell had gotten back, and yet did not ask him, "Did you get a +book?" Would he not naturally have said, "I want that book that you +got in New York. I want it now." It also appears in evidence that +on the very day that Rerdell was in New York and says he was in +Torrey's office, Torrey in the afternoon went to the Albemarle +Hotel to do some writing for Mr. Dorsey. Is it conceivable that +Torrey would not in that conversation have told Dorsey, "Your +clerk, Rerdell, came to the office to-day and I gave him the mail +book or one of those books"? Not a word. That affidavit was made in +June, 1881, and was the affidavit in which Rerdell disclosed what +he had done with the Government, and that he had agreed to get that +very book, and yet Dorsey did not take interest enough in the +matter to ask him if he got a book.</p> +<p>Mr. Merrick. Is there any evidence of the conversation between +Torrey and Dorsey?</p> +<p>Mr. Ingersoll. No. The evidence is that Torrey went there that +evening. You claim that that was the topic of conversation, and +that Dorsey sent dispatches to Rerdell that night and wrote a +letter to Rerdell. So, I say, under the circumstances, and with the +excitement then prevailing, it is inconceivable that Torrey should +not have said, "Your man Rerdell has been at my office to-day, and +got one of the books."</p> +<p>I say it is inconceivable that he did not tell him, and +therefore Dorsey must have known it had it been a fact, and had it +been a fact when Rerdell made the affidavit of 1881, Dorsey would +have said, "I want that book. I want the book you stole from my +office." He did not even mention it. It was not the subject of +conversation. Yet, in that same affidavit, he said that he agreed +to go and get it, and in that same affidavit he said that no such +book ever existed. He swore to that affidavit from friendship. You +see, gentlemen, about how much friendship that man is capable of. +He swore for friendship that no such book existed; he now swears +that it did. What is that for? You want to consider these things. +Nobody asked about that book. The matter drifted along. The summer +wore away. Autumn touched the woods with gold. Nobody ever +mentioned the book. Winter came. That book was in a little +carpet-sack hanging in a woodshed. A magnificent place to secrete +property. The snows descended; the winds howled around that +woodshed. The carpet-sack hung there with the book in it. Nobody +touched it. I think the next year, may be that summer, he wrote or +telegraphed to Mrs. Cushman to get the book. It suddenly occurred +to him that a woodshed was not a safe place for it. She got a book. +She looked into it enough to find out it was about the mail +business. She put it away; finally that book was brought from its +hiding-place on the 13th of July, 1882, when Rerdell says he handed +it over to Dorsey, and there is not one syllable of evidence going +to show that it was ever spoken of from the time he visited New +York until he brought it to Dorsey, as he claimed, at Willard's +Hotel. What made him give it to him? Dorsey was mad. Dorsey +threatened that he would have Rerdell arrested for perjury, because +Rerdell had sworn that he, Dorsey, was innocent. That is enough to +excite the wrath of an ordinary man. Dorsey was then on trial. The +first trial was then going on. We were right in the midst of it. +The year before that Rerdell had solemnly taken his oath that +Dorsey was an innocent man, and here Dorsey was in a court +insisting that he was innocent. Yet he threatened to have Rerdell +then and there punished for perjury because he had sworn that he +was innocent. That frightened Rerdell. I think it was calculated to +frighten any man.</p> +<p>Why did Dorsey allow Rerdell to keep that book? There is only +one possible explanation: The book never existed. That is all. +Torrey would have told about it if it had been taken from his +office, because I believe the evidence shows that that affidavit +was shortly afterwards published. Nobody seemed to have taken any +interest in that book. All interest faded away. Now, Mr. Rerdell +made that affidavit on the 20th of June, 1881. I believe, on page +2468, Rerdell swears that when he made the affidavit of June 20, +1881, he had the copies of the original journal and ledger at +Dorsey's office. Afterwards he swears he had not. He swears that he +then gave them to Dorsey. Afterwards he says they were sent to New +York the year before. I will come to that after awhile. Now, let us +see what the position of affairs was on June 20, 1881. At this time +Rerdell had furnished the Government all the information he had, +except the book. Then they had said to him substantially, "The +evidence is insufficient. We want more." Rerdell agreed to furnish +them the books, and went to New York to get the books.</p> +<p>Now, he had Dorsey absolutely in his power, according to his +account. What did he do? He had, according to his testimony, the +copy of the letter Dorsey had written to Bosler on the 13th of May, +1879, the copy having been made by Miss Nettie L. White. He had the +tabular statement in Dorsey's own handwriting, showing thirty-three +and one-third per cent, to T. J. B. He had the letter that he +himself wrote to Bosler on the 22d of May, 1880. He had the red +book. According to his statement, on that day he had Dorsey in his +power. All he had to do was to take the next step and secure +absolute safety for himself and crush his employer. What did he do? +He then said, "I went to the Government and played the detective." +He retreated. He voluntarily put himself in a position a thousand +times as perilous as he had been in before. He put himself in a +place where he had to swear that what he told the Government was a +lie, and that he was simply endeavoring to find out the +Government's case and was acting as a detective. You must recollect +that Rerdell is a man who does nothing for money. He will make an +affidavit for unadulterated friendship. He will make it also from +fright. He will make it also, he says, in the interest of truth. At +that time he made an affidavit, as he says, for friendship, and it +is for the jury to determine how much a man like +Rerdell—because you know what he is just as well as I +do—would do for friendship. You have seen him here day after +day. You saw him sitting right at the door when Mr. Ker and Mr. +Bliss were demonstrating to you that he was a guilty wretch, and +you saw his face beaming with pleasure. He was absolutely +delighted. Yet when Mr. Wilson stood here and endeavored to show +that the man was not as bad as he said he was, endeavored to show +that his plea of guilty was absolutely false, he slunk away, +covered with the shame of innocence. He did not want to hear that. +He wanted it understood that he was guilty, and that it was the +proudest moment of his life. Now, it is for you to determine how +much such a man would do for friendship. It is for you to determine +how you can take advantage of his finer nature. He had Dorsey in +his power, according to his story, but instead of carrying out his +original design he turned against the Government. Why did he do +that? Because of patriotism? No. Why? He did it for his own +benefit, gentlemen. He never acted from any other motive. Why did +he not stay with the Government? Because they would not give him +his price for his evidence. Why would they not give him his price +for his evidence? Because his evidence was not worth it. If he had +had the copy of the letter from Dorsey to Bosler they would have +given him his price. They would have followed him all over the +United States to have given him his price. There was the absolute +evidence against Dorsey. There was the evidence against the man +whom Mr. MacVeagh wished to drag down. Why did they not buy it? +Because the man did not have it. Why did he desert the Government? +Because the Government would not give him his price. Again I ask +why would not the Government give him his price? Because he had not +the goods; he had not the evidence. Then what did he do? He sneaked +back and asked protection of the man he had endeavored to betray. +That is what he did. He again asked Dorsey to stand by him. Dorsey +did not need this man. This man needed him, and he instantly +deserted the Government and went back to Dorsey. For the sake of +saving Dorsey? No. For the purpose of saving himself.</p> +<p>He had not the evidence. Yet, according to this testimony of +his, he did what I told you. What else did he have? He had the +route-book. What was the route-book, gentlemen? From the evidence +it appears that this man kept a route-book, and that in it he had +the name of each route, the number of the route, where it started +from, and where it went to, the name of the contractor, the amount +per year, the name of the subcontractor, the amount per year, and +then a column showing whether it had been increased, and, if so, +how much, and whether it had been expedited, and, if so, how much. +He had that book. He says he was subpoenaed to appear before the +Congressional committee. What book would that committee want? They +would want the book that showed the original contracts, the +subcontracts, the description of the routes, how much the +Government paid to the contractor, and how much the contractor paid +to the subcontractor. That was the book they wanted, and that was +the book to hide if any hiding was to be done. That was the book to +have copied. That was the book in which figures should have been +changed, if in any. And yet he never said one word about that +route-book. He had it in his possession. Why should he not expect +the committee of Congress to call for that book? He did not tell +you. He did not have that book copied, and yet that was the book +that had in it every particle of information that the Congressional +committee wanted. Not a word on that subject.</p> +<p>It appears, too, in the evidence, that Mr. Rerdell had in his +possession certain notes that passed between him and Mr. Steele +about the red books. Why were not those notes produced in evidence? +Mr. Steele was here on the subpoena of the Government. Why were not +those notes produced in evidence? Not a word about that. Is it +possible that those notes were about the route-book? Why were they +not produced? Rerdell went before that Congressional committee. He +did not take any route-book. What did he take? He said that he had +these books made up to take. Did they contain the accounts of the +subcontractors? No. Donnelly swears there were not more than twelve +accounts in the book. What was the use of taking that book, or +those books, before the committee? Another thing: He says that he +went immediately and got those books copied. Would he try to palm +off the copies as originals? Would not the committee ask him the +very first thing, "In whose handwriting are these books?" He could +not say, "They are in mine," because then he would be caught. He +would have to say, "They are in Mr. Donnelly's handwriting." The +next question would be, "Where is Mr. Donnelly?" And the answer +would be, "Here in town." The committee would send for him and +would ask, "Mr. Donnelly, did you write in those books?" "Yes." +"Did you make the entries at the time they purport to have been +made?" "No, sir; I copied them from another set of books that Mr. +Rerdell gave to me." He would either say that or swear to a lie. +Then they would say, "Mr. Rerdell, we want the original books," and +then he would be caught. You cannot imagine a more shallow device. +More than that, the books would not have any information that the +committee wanted, nothing about these contracts, and nothing about +the amount paid the subcontractors. If the committee wanted +anything they wanted to show that the Government was paying a large +price and the contractors were paying to the subcontractors a small +price. Rerdell says that when he was subpoenaed to bring his books +he never thought of the route-book. He thought of the red books, +and yet the route-book was the only book that had any information +that the committee wanted. How was he to palm that off? Is it +possible to think of a reason having in it less probability, less +weight, less human nature than the reason he gives for having those +books copied? There is another question. If Rerdell expected to +palm off the copies as the originals, why did he keep the +originals? For instance. I have a book here that I don't want +Congress to see, and so I have it copied.</p> +<p>I am going to swear that that copy is the original; otherwise +the device is good for nothing. Why keep the original and run the +perpetual danger of discovery? Why not burn the original? Why keep +the evidence of my own guilt, liable to be found at any moment by +accident, by a servant, by a stranger? That is not human nature, +gentlemen. Then there is another question: If he were going to have +a book copied and then swear that the copy was the original, he +would have copied it himself. If a man intends to swear to a lie +the first thing he does is not to take somebody into the secret. +Why should he have put himself in the power of Donnelly? He was the +man to be the witness before the committee, and if his device +worked he intended to swear before the committee that the copies +were the originals; and yet, by going to Donnelly to have the work +done, he manufactured a witness that would always stand ready to +prove that he, Rerdell, had sworn to a falsehood. What men work in +that way? When a man makes up his mind to swear to a lie does he +take pains to go to one of his neighbors and say, "I am going to +swear to a lie to-morrow and I want to give you the evidence of it. +I am going to swear that a copy is an original. I want you to make +the copy so that I can swear to it." Would not the neighbor then +say, "I will be a witness against you in that case. You had better +copy it yourself." Just see what he did. He took pains to have a +witness so that if he swore falsely he could be contradicted and +convicted. Why did he not copy the books himself? After he got the +originals copied why did he not burn up the originals so that +nobody could ever find them in his possession?</p> +<p>Let us take another step. Finally, he got before the committee. +When he got before the committee what did he swear? He swore that +he kept some expense-books showing how he stood with the +contractors. I think that was the truth. I think that is what he +did keep. He did not tell the committee about the route-book. Not a +word. That was the only book that he concealed in his testimony. He +said he kept some expense-books and those were all that he kept. He +did not tell about the route-book. That is the only book that he +failed to mention. Consequently, it seems to me, that was the only +book he did not want to show. Why? Because he thought at that time +they were going to make a great outcry about what was paid to the +subcontractor and to the contractor and he had no advices from +anybody, except from whom? Except from Mr. Bosler. What did Bosler +tell him? Bosler told him, "I see no reason why you should not +exhibit your books and papers." Now, according to Rerdell's +testimony, on the 13th of May the year before, Dorsey had written a +letter to Bosler informing him that he had given twenty thousand +dollars to T. J. B. Bosler knew, if the testimony of Rerdell is +true, that that letter had been written, and Bosler had that +information. He knew if the letter had been copied, too, because +every letter that one receives gives evidence whether it has been +copied or not. And yet, knowing of that letter, he wrote to Rerdell +or telegraphed him that he saw no reason why he should not show all +his books and papers. Nobody believes that. Nobody ever will +believe it! The earth may revolve in its orbit for millions of +years, and generations may come and go, countless as the leaves of +all the forests, and there never will be found a man of average +intelligence to believe that story. Just think of it. Bosler, +according to the testimony of Rerdell, had gone into partnership +with Dorsey knowing there was a conspiracy, knowing Dorsey was +paying to Brady thirty-three and one-third per cent, of the +profits, and thereupon the clerk who attended to the business +writes or telegraphs to him, and says he has been subpoenaed to +appear before the Congressional committee with the books and +papers, and Mr. Bosler knowing of the existence of the conspiracy, +and knowing that Brady is getting thirty-three and one-third per +cent, writes or telegraphs back that he sees no reason why all the +books and papers should not be presented to the committee. +Gentlemen, that is impossible; it never happened and it never +will.</p> +<p>Ah, but they say these books did exist. Why? Because Mr. +Donnelly copied them. Let us see whether he did or not. There is +nothing like examining these questions. Mr. Rerdell says that in +his interview with Brady, Brady suggested to him that he had better +have them copied. This, I believe, was on the 21st of May, 1880. +Now he swears that in accordance with that view or suggestion that +he received from Brady he had the books copied by Donnelly. When +did he have it done? He had it done after the 21st day of May, +1880. On page 2638 Donnelly swears that he copied these books in +the latter part of April or the forepart of May. On page 2636, +where he was asked if he had anything to do with copying a book of +accounts for Rerdell, he says that he had; and on being asked what +kind of books they were, says they were a small set of books. +Donnelly swears that they related to the mail business, and seemed +to be the books of a firm. At that time nobody was interested in +the matter except S. W. Dorsey. How did they appear to be the books +of a firm? Donnelly swears, on page 2640, "there were not more than +a dozen accounts in the book." Let us see if these were the mail +books. He says there was an account against S. W. Dorsey; that is +one. An account against John W. Dorsey; that is two. Against +Donnelly himself; that is three. M. C. Rerdell; that is four. +Interest account; five. A mail account; six. An expense account; +seven. A profit and loss account, eight; and an account with +William Smith, nine. That is all he gives. But he says they were +not to exceed a dozen. On page 2644 Gibbs says there was an account +against Colonel Steele and Mrs. Steele. I take it they would be in +one account. That makes ten. Then there was an account against +Jennings, making eleven; and an account against Perkins, making +twelve. Let us see if we can go a little further. Mr. Rerdell +swears to a cash account; that is thirteen. Also an account against +J. H. Mitchell; that is fourteen; and one against Belford, making +fifteen. You can deduct your Jones and your Smith and have one more +account in the book then than Donnelly swears was in it. He swears +they were not to exceed a dozen. That was the book with all this +mail business. We will follow it up a little. Rerdell says he +opened the books according to the memorandum, and swears +consequently that there was a cash account and an account with J. +H. Mitchell. J. B. Belford, I believe, he afterwards mentioned. +Now, according to Gibb's testimony there was an account with +Perkins. Understand I say that the only book he had, if he had any, +was a private book in which he kept his own expense accounts and +his own matters, and it was not a book with which Stephen W. Dorsey +had any connection. I say that the William Smith and Samuel Jones +account he has added for the purpose of having something to sell to +the Government. That is my claim. I say they were his private +books. There was an account with Perkins. You have heard all the +testimony, gentlemen. You know all the contracts in this case. You +know all the subcontracts. There is not a single solitary account +in this book with any subcontractor mentioned in any of these +subcontracts except Perkins and possibly Jennings. Who was Perkins? +Perkins was a subcontractor on the route from Rawlins to White +River. That is the route that Rerdell had an interest in +himself.</p> +<p>Rerdell made the subcontract with Perkins himself, and +consequently he had an account with Perkins in his own private +book, and had not any account with the rest of the subcontractors. +We also find, according to Gibbs, that there was an account against +Jennings. Who was Jennings?</p> +<p>That brings us to the Jennings's claim. That is the claim that +he told Mr. Woodward about, when he wanted to sell out in the first +place, and that is the claim that he told Mac-Veagh and the +Postmaster-General about. Strangely enough and wonderfully enough +we find that claim in this very book. That shows whether this was a +private book or whether it was a book kept for the accounts of +Dorsey.</p> +<p>Now, by looking at the Post-Office reports I find that nine +hundred and ninety-four dollars was paid to Rerdell for Jennings on +the 14th day of April, 1880, and the question I ask is did he keep +two sets of books at that time? He produced in court a book of his +own, kept at that time with the Jennings account in it. The book +that was copied had the Perkins account, and why? Because it was a +special account in which Rerdell was interested. They have failed +to prove that there was in that other book any account in which +Dorsey was necessarily interested, except the account kept with +Rerdell showing Rerdell's transactions with Dorsey.</p> +<p>We now come to the testimony of Mr. Gibbs. Mr. Gibbs says his +wife copied a journal between Christmas, 1879, and the 1st of +March, 1880. Rerdell says that she copied the journal and ledger +both. The witness, Gibbs, gives the color of the book. He says it +was not red; it was either brown or black. Mr. Gibbs remembers +nothing about the Smith account, whether it was large or whether it +was small. He finally swears that he does not really recollect +anything about it, except that Rerdell brought the book there and +said he wanted to get a copy made to send to Dorsey in New York, +and that he returned the book and the copy to Rerdell. He swears +that he remembers as names in this book Smith, Jones, and S. W. +Dorsey, and M. C. Rerdell. Those were all he could think of. He +does not remember the name of John H. Mitchell. On page 2646, he +says he believes that Rerdell came to him and asked him during the +trial if he recollected the name of William Smith, and he swears +that when Rerdell asked him if he recollected the name of William +Smith, he distinctly told him that he did not. Then he asked him if +he recollected the name of Jones, and he swears that he told +Rerdell when he asked him that question that he did not. I read +from page 2646:</p> +<p>I tried not to remember anything of this.</p> +<p>How can a man try not to remember? What mental muscle is it that +he contracts when he tries not to remember? That is a metaphysical +question that interested me greatly when the man was testifying, +for he said he tried not to remember. Why did he try not to +remember?</p> +<p>I didn't want to be called into court if I could possibly help +it, and for quite a long time did not mention the fact that I knew +anything of the books. But when I was called into court, I thought +of all the circumstances connected with the time that I copied the +books; and a few days ago, or a week or so ago, in going home one +night, and thinking this thing over in my mind, and thinking of +everything I could think of, my mind reverted to a conversation I +had had at the time, laughing and looking over the books.</p> +<p>It was not only one book, then.</p> +<p>And I wrote a great many letters, and read a great many +names—They must have been in the letter-books—and was +laughing about the peculiarity of the names, and even made the +remark, "There is even Smith and Jones in it."</p> +<p>What a wonderful circumstance! In copying the books and making +an index of the three letter-books he found Smith and Jones. The +difficulty would have been not to find Smith or Jones.</p> +<p>That is the evidence of that man. When Rerdell first went to +him, he told Rerdell distinctly, "I remember no name of Smith; I +remember no name of Jones." And then he waited until Rerdell went +on the stand and swore that he copied those books, and that the +names of Smith and Jones were in them, and then his memory was +refreshed, and he came here and swore that the names of Smith and +Jones were there. All of a sudden it came to him, like a flash, and +he subsequently had the conversation with his wife. Gentlemen, you +may believe it; I do not; not a word of it. He is mistaken. He has +mistaken imagination for memory; he has mistaken what Mr. Rerdell +told him now for something he thinks happened long ago. He took the +letter-books, too. May be there is where he found some of his +strange names.</p> +<p>Rerdell says, in swearing to the letter which he says was +written by Dorsey to Bosler on the 13th of May, 1879, that he (S. +W. Dorsey) took that book, all his own books that were not used for +the mail business, and boxed them up. When? In 1879. Mr. Kellogg +swears that after they were boxed up they were sent to New York. +When? In 1879. And yet Rerdell swears that between Christmas and +New Year's, 1879, those books were at the house of Mr. Gibbs to be +indexed. It will not do. And Rerdell swears that he had the +letter-book containing the letter of May 13, here in 1881, when he +went to MacVeagh, and yet, according to his own testimony, that +book was sent to New York in 1879. And he swears that the three +letter-books—and I will call your attention to them after a +while—that he had here, commenced on the 15th of May, and +ended, I think, in April or May, 1882. He swears that the letter +written by Dorsey to Bosler was written on the 13th of May, 1879, +and then he swears that the first letter in the three letter-books +was dated the 15th of May, two days afterward. So he had not the +book here. I knew he did not have it, because if he had had such a +book with such a letter, he never would have gone to New York to +steal a book; he would have stolen that one.</p> +<p>Torrey took charge of the books January 27, 1880, and he kept +them until the 1st of May, 1880, in the Boreel Building, and then +at that time moved to 145 Broadway, and kept them there until the +last of April, 1882.</p> +<p>Now, gentlemen, I will come to those red books again in a +moment. Here is a little piece of evidence about the books. You +know it was the hardest thing in the world to find out how many +books this man had, how many times they were copied, who copied +them, and what he did with the copies; and he got us all mixed +up—counsel for the prosecution, the Court, counsel for the +defence—none of us could understand it. "How many books did +you have? What did you do with them?" "Well, I took them to New +York. No, I did not; I had some of them here." Finally I +manufactured out of my imagination a carpet-sack for him. I said, +"Didn't you take these books over to New York in a carpet-sack?" He +said "Yes," he did. He jumped at that carpet-sack like a trout at a +fly. Let me call your attention to some other evidence, on page +2637, near the bottom. Donnelly is testifying:</p> +<p>Q. Was it an exact copy of the book?—A. It was not.</p> +<p>Q. In what did it differ from the book you were +keeping?—There were some items left out.</p> +<p>Q. What accounts did you leave out?—A. I left the William +Smith account out.</p> +<p>Q. What did you do with that amount in order to balance the +books?</p> +<p>Now, I want you to pay particular attention to this answer.</p> +<p>A. My recollection is that I carried it to profit and loss.</p> +<p>Q. On the books or on the balance sheet?—A. On both.</p> +<p>Now, remember, these were the books made out to fool the +committee. I suppose there are some book-keepers on this jury. I +suppose Mr. Greene knows something about book-keeping, and Mr. +Evans, and Mr. Crane, and Mr. Gill. I do not know but you all do. +And you know that when you carry an amount to profit and loss you +do not throw the name away; you keep the name. If you have charged +against Robert G. Ingersoll five thousand dollars, which you never +expect to get, and you want to charge it to profit and loss, you +make the charge and you put my name against that. You put profit +and loss against Robert G. Ingersoll's debt. Everybody that ever +kept a book knows that. If you carry an amount to profit and loss +you rewrite the name of the person who owes the debt. So that when +he says, "My recollection is that I carried it to profit and loss," +there would be a name twice in the book instead of once. If it was +simply in the book once it would be, "William Smith, debtor, +eighteen thousand dollars." But if you carry that to profit and +loss you must credit profit and loss by this William Smith amount, +and consequently get the name in the book twice instead of once. +And that is what they call covering it up. They were so afraid that +somebody would see an account against William Smith in one part of +the book that they opened another account in the profit and loss +business and put it in again. That would be twice. Now, let us go +on a little:</p> +<p>Q. Were there any other accounts transferred in the same +way?—A. I rather think there were, but I am not certain.</p> +<p>Q. Did you make the books balance on your copy?—A. Yes, +sir.</p> +<p>Q. How long were you working on that copy?—A. I was +working on it two evenings and all of one night.</p> +<p>Now, recollect, in the copy that he made, he carried the account +of William Smith—and may be Jones, he does not +remember—to profit and loss.</p> +<p>Now, let us take the next step. Let us go to page 2269. This is +as good as a play. Donnelly swears that when he made the first copy +he carried the William Smith account and some other to profit and +loss. Rerdell swears that acting upon the hint of General Brady he +got a man to do—what? To make another copy and leave out the +items that had heretofore been charged to profit and loss. Donnelly +swears that he balanced the books, and he is the only man that ever +did balance the books, according to the testimony. After Rerdell +had been subpoenaed to appear before the Congressional committee, +he got another man, whom he swears he put to work on the books, +designating the entries to be left out by drawing a pencil mark +through them; that he told him to make up a new set of books, +leaving out those entries, but to leave the books so that they +would balance, taking the entries that were stricken out, and also +the same amount that had been carried to profit and loss, and leave +them entirely out. Rerdell swears that prior to that time these +accounts had been carried to profit and loss, and that he struck +out the credits to Dorsey.</p> +<p>Then the evidence as it stands is this: Rerdell swears that Mrs. +Gibbs copied the journal and ledger. Gibbs does not swear it, but +Rerdell does. That made four books. Then he got Donnelly to make +another set of books with the William Smith and Dorsey accounts +carried to profit and loss.</p> +<p>That is six books. After he had been subpoenaed by the committee +he got another man to make a new set of books and leave out the +William Smith and Dorsey accounts and the profit and loss account, +and that makes eight books. And there we are, so far as that is +concerned.</p> +<p>Now, gentlemen, I have come to one other view of this case. I +hope that you will not forget—because I do not want to speak +of it all the time—that this man Rerdell swears that he had +the original letter-press copy of that letter which he says Dorsey +wrote to Bosler. Do not forget that. He says he had that before he +went to New York to steal the red books; do not forget that. And +that he gave that testimony away; do not forget that. That he says +he had it copied by Miss White, and they do not introduce Miss +White to show that she copied it; do not forget that. Do not +forget, too, that he had when he was there the tabular statement in +the handwriting of S. W. Dorsey.</p> +<p>Mr. Ingersoll. [Resuming.] Gentlemen, on page 2286 Mr. Rerdell +gives the contents of a letter which he says Dorsey wrote to him +the night he, Rerdell, left New York, and when he says he had the +book with him. He swears, you remember, that afterwards Dorsey tore +the letter up. Let me read you the letter as he says it was +written:</p> +<p>The letter started out by stating that he did not believe the +report that had been brought to him in reference to myself, and +that he also believed the affidavit story to be a lie. He plead in +the letter for the sake of his wife and children and himself, and +his social and business relations, and the friendship that had long +existed between us not to do anything for his injury; for God's +sake to reconsider everything that I had done and take no steps +further until he could see me. It was in that strain, simply +begging me not to do anything further until he could see me.</p> +<p>Now, let us analyze that letter, keeping in our minds what +Rerdell has sworn. Rerdell has sworn that when he went to the +Albermarle Hotel he told Dorsey what he had done; that he had had +the conversations with MacVeagh and James. Let me call your +attention to the dispatch from Jersey City. First, Dorsey wrote to +Rerdell that he did not believe the report that had been brought to +him; <i>that had been brought to him</i>. He could not have used +that word "brought" if Rerdell had been the bringer. If Rerdell had +made the report to him in person he could not have written to +Rerdell, "I do not believe the report that has been brought to me." +The use of the word "brought" shows that somebody else told him; +not the person to whom he wrote. "The report." What report? There +is only one answer. The report that Rerdell had been in +consultation with the Government. He writes to Rerdell, "I don't +believe that report that has been brought to me," and yet when he +wrote it, if Rerdell's testimony is true, he knew that Rerdell had +given him that very report and he knew that Rerdell would know that +he, Rerdell, had told Dorsey that very thing. Second, that he, +Dorsey'', believed the affidavit story to be a lie. There is again +in this horizon of falsehood one little cloud of truth. Rerdell had +not made an affidavit. He had told James, MacVeagh, Woodward, and +Clayton what you know, but he had not made any affidavit, and when +he was charged, if he was, with having made an affidavit, it +delighted him to have one little speck of truth, just one thing +that he could honestly deny. That was the one thing. He had not yet +made an affidavit. Third, Dorsey plead with him in the letter for +the sake of his wife, his children, himself, his social and +business relations, and the friendship that had long existed +between them, not to do what? Not to do anything further. According +to Rerdell, he told him in the letter he did not believe he had +done anything. Rerdell swears that he wrote to him in the letter +that he did not believe the report; that is, that he had yet done +anything, and then wound up the letter by begging him, for God's +sake, not to do anything <i>further</i>. How came he to use the +word "further"? "Don't take any further steps. I know that you have +not taken any step at all, but do not, I pray you, take any further +steps." That letter will not hang together. Dorsey swears he never +wrote it. Finally, the letter comes down to this: "I don't believe +the report. I do not believe you have done anything. But, for God's +sake, do not do anything more." It is like the old Scotch verdict +when a man was tried for larceny. The jury found him not guilty, +but stated at the end of the verdict, "We hope the defendant will +never do so again." The first part of this letter shows that Dorsey +did not believe that he had done anything. The last part of it +shows that he did believe he had done something and that he must +not go further. No one can tell why he introduced the word +"further" into this letter upon any other hypothesis. Now, I read +to you, from page 2287, what Rerdell says happened at the +Albermarle Hotel:</p> +<p>He charged me with holding interviews with Mr. James, the +Postmaster-General, and the Attorney-General, and asked me what I +meant by it. I told him my action was in his behalf; that I had +been keeping up with the newspapers, and knowing the facts in +regard to this mail business, what I had done was done in his +behalf.</p> +<p>That is, he did not deny that he had these conversations, did +not deny the report, did not deny that he had met the +Attorney-General and the Postmaster-General, but said:</p> +<p>My action was in your behalf.</p> +<p>And then, according to Rerdell, after that Dorsey wrote him a +letter, in which he said, "I do not believe the report," although +Rerdell had made the report to him himself. May be that is the +reason he did not believe it.</p> +<p>Now, let me read to you the conversation on his return from New +York and see how it agrees with the letter. It is on page 2288:</p> +<p>Mr. Dorsey immediately brought up the conversation that we had +had over in New York, and what I had done by going to Mr. +Mac-Veagh, and asked me if I intended to ruin him. I said no, I did +not; it was not my intention to ruin him; it was my intention to +help him out of what I thought to be a bad difficulty.</p> +<p>Q. What did he say?—A. He then asked me if I had done +anything further since I had left him.</p> +<p>Yet in the letter that he wrote him from the Albermarle Hotel he +said that he did not believe the report and did not believe that he +had done anything against him. The first thing he asked him when he +got here was, "Have you done anything further against me?"</p> +<p>I said no, I had not; I had not been near Mr. MacVeagh. He then +says, "Well, how shall we get out of this?" I says. "Mr. Dorsey, I +will do anything that I can except to commit perjury."</p> +<p>A very natural remark for Mr. Rerdell to make. He would do +anything but that. That testimony shows that Dorsey never wrote the +letter which Rerdell says he did write from New York. That +testimony shows that they did not have the conversation in New York +that Rerdell says they had. That testimony shows that they did have +exactly the conversation which Mr. Dorsey swears they had.</p> +<p>Now, I come, gentlemen, to the affidavit of June 20,1881. I +would like the letter of July 5, 1882, which is on page 3733.</p> +<p>You understand this affidavit was made in consequence of the +conversation, as he says, that he had with Dorsey after Dorsey came +back from New York, in which he said he would do anything except +commit perjury, and when Dorsey told him, "Damn it, what does that +amount to when a friend is involved? I would not hesitate a +moment." Consequently he swears that he made up his mind for the +sake of friendship to swear to a lie for Mr. Dorsey. That is what +he says now. On the 5th of July, 1882, while we were in the midst +of the other trial, and when Mr. Rerdell, as he says, contemplated +going over to the Government, and when he would not put evidence in +our hands against himself, he wrote this letter:</p> +<p>July 5, 1882.</p> +<p>Senator: What I am going to say here may surprise you, while, +judging from certain circumstances that to me are easily to be +seen, you may not be taken by surprise.</p> +<p>To commence with this, it will be necessary to go back about a +year to the time when, looking forward to the inevitable result of +the star-route matters—I started to put myself in accord with +the Government. At that time I had no thought of being included in +any prosecution or indictment, supposing that as an agent I could +not be held criminally responsible. Had I for one moment thought it +possible nothing could have changed my mind, even anxious as I was +to benefit you. The consequence was, I listened to Bosler and did +what I will ever regret. First, because of the unenviable notoriety +given me in consequence of doing what he persuaded me to do.</p> +<p>Who persuaded him? Mr. Bosler. He writes that on the 5th of +July, 1882, when, as he said, he had made up his mind to go over to +the Government, and when he would not willingly put a club in our +hands with which to dash out his brains.</p> +<p>Second, because, let this case go as it may, I am still left +under a cloud—That is a pitiable statement. That man under a +cloud!—both with your friends and acquaintances, and the +public generally.</p> +<p>Here comes, gentlemen, the blossom and flower of this +paragraph:</p> +<p>And that, too, almost penniless.</p> +<p>Then the letter goes on:</p> +<p>These are stern facts, and cannot be ignored, while had I +continued acting with the Government my reputation would have been +clear, and no doubt been appointed to a good position.</p> +<p>The Government must have promised the gentleman an office when +he went, in June, 1881, to Woodward and to Clayton and to the +Attorney-General and to the Postmaster-General. According to this +letter, among other things he was to have an office, the steamboat +route was to be reinstated, the Jennings' claim was to be allowed, +his father-in law was to get a clerkship, and according to this +letter he also was to have a position. That is civil service +reform! What does he say?</p> +<p>At least I have every reason to believe such would have been the +result.</p> +<p>He would have had an office, he has every reason to believe. +Why? They must have promised it to him.</p> +<p>This now brings us to the present time. I have an opportunity to +redeem myself, and think it best to do so, as by so doing I can be +entirely relieved of the indictment.</p> +<p>The Government then must have promised him in 1882 that the +indictment should be dismissed as against him. Is it possible that +he would tell a lie, gentlemen? Is it possible the prosecution will +say that he lied on the 13th of July, 1882, but in 1883, having met +with a change of heart, he told the truth? No.</p> +<p>In taking this step let me say this: It is the result of much +thought and also of preparation.</p> +<p>I think so. The preparation of several papers.</p> +<p>I have realized the fact that all you and Bosler desired was to +use me, and when no longer needed I could go to the devil.</p> +<p>Well, I think that is where he has gone.</p> +<p>Therefore I have concluded to be used no longer, and propose to +look out for myself.</p> +<p>To-day I am putting things in order, so as to commence right +tomorrow. I regret this on your family's account, but I too have a +family, and owe it to them to put myself right.</p> +<p>You see, gentlemen, he wanted to leave an unspotted reputation +to his children.</p> +<p>I deem it as being due to you that I should give you notice of +my intention. Very truly,</p> +<center>M. C. RERDELL.</center> +<p>Now, gentlemen, he comes on the stand and swears that he made +this affidavit, not being overpersuaded by Bosler, but because +Dorsey with tears and groans besought him to make it. Yet on the +5th of July, 1882, he says he made it because he was overpersuaded +by Bosler, and he says, too, "Had I remained with the Government my +reputation would have been clear, and I have every reason to +believe I would have had a good position." He says, "I have another +opportunity to be entirely relieved from the indictment." These +gentlemen say he never was promised immunity. That simply shows you +cannot believe Mr. Rerdell when he is not under oath, and what he +has sworn to here shows you cannot believe him when he is under +oath.</p> +<p>Now I come to the affidavit. I will not spend a great deal of +time upon it. Mr. Rerdell, with extreme ease, without the slightest +hesitation, went through that entire affidavit, picking out with +all the facility imaginable, every paragraph written by Dorsey and +every paragraph written by himself. I was astonished at his +exhibition of memory. I finally asked to look at the copy of the +paper he had, and when I got that in my hand I found that every +word that he swore was written by Dorsey had been underscored with +a blue pencil. That accounted for the facility with which he +testified. I found afterwards that that paper had been given him by +Mr. Woodward and that he had gone through and marked such portions +as Mr. Dorsey wrote, according to his testimony, or had marked +those that he wrote, leaving the others unmarked, so that at a +glance he could tell which way to swear. Before I get through with +the papers in this case there is another thing to which I want to +call your attention. All the papers as to which witnesses were +called on the subject of handwriting are marked. I will show you +that every one has a little secret mark upon it, so that the man +who swore might know which way to swear simply by looking at the +signature and at no other part. There has been a great deal of +preparation in this case.</p> +<p>Now, Rerdell swears as to the parts of the affidavit that Dorsey +wrote and the parts that he wrote. His object in swearing was to +entirely relieve Messrs. James and MacVeagh from having made any +bargain with him to steal Mr. Dorsey's books, and to entirely +relieve them from any suspicion, as well as to relieve every other +official of the Government from any suspicion of having promised +him any pay in any shape or manner for the making of this +affidavit. He swears in the first place, that Dorsey wrote +this:</p> +<p>My story captured them completely, and I took occasion to refer +to the steamboat route and the Jennings' claim. Mr. James remarked +that he knew all about the Jennings' matter, that Jennings had been +badly treated, and he ought to get the money, and should; that he +would investigate the steamboat route and see if anything could be +done; that that was the worst part, and his special agents had +reported it; nevertheless he would see if something could not be +done.</p> +<p>On page 2506, in his cross-examination, Mr. Rerdell swears that +the words—Mr. James remarked—were not written by +Dorsey, but were written by himself. On the same page he swears +that the words—That Jennings had been badly +treated—were not written by Mr. Dorsey, but were written by +himself.</p> +<p>On his examination-in-chief he swore that these words were +written by Dorsey.</p> +<p>On his examination-in-chief he swore that Dorsey wrote this:</p> +<p>And to further deceive them and learn their plans, carried the +letter-book containing—And then he wrote—the +much-talked of Oregon correspondence.</p> +<p>Afterward, when cross-examined, he swears, I think upon the same +page, 2506, that he himself wrote the words:</p> +<p>Carried the letter-book containing.</p> +<p>That Dorsey did not write them. He also swears in his +examination-in-chief that Dorsey wrote these words:</p> +<p>Making only one mistake, or rather slip, by which Mr. MacVeagh +could, as a good lawyer, have detected me, and that was by stating +that I had kept a set of books.</p> +<p>On his examination-in-chief he swears that Mr. Dorsey wrote +those words. On cross-examination he admits that Dorsey did not +write them and that he wrote them.</p> +<p>On his examination-in-chief he swears that he wrote this +himself:</p> +<p>He said, "Well, Mr. Rerdell, I am in a position where I cannot +make promises, but if you will place yourself in full accord with +the Government, you shall not lose by it, and I would advise you +not to receive any salary from Dorsey this month. It will be all +right."</p> +<p>On cross-examination he takes it back, and swears, on page 2503, +that Dorsey wrote the words:</p> +<p>It will be all right.</p> +<p>He was afraid those words might be given too wide a significance +and might in some way touch the Attorney-General, and consequently +he swore that he swore wrong when he swore that he wrote them, and +that as a matter of fact Dorsey wrote them. Then, on his +examination-in-chief with the marked paper before him, and having +plenty of time to manufacture his testimony, he swore that he wrote +the words:</p> +<p>He asked me—In his own handwriting, and that Dorsey wrote +these words—when I was going to New York to get those books. +I replied, "On Sunday night." He said, "Don't put it off too long, +as they are all-important."</p> +<p>On his examination-in-chief he swore that Dorsey wrote those +words, and on cross-examination he admitted that he wrote every one +of those words himself. When he was cross-examined he had not the +paper before him. His memory was not refreshed by the blue pencil +mark. So on his examination-in-chief he swore that he wrote these +words:</p> +<p>As I was about leaving he—Meaning the +Attorney-General—said, "Mr. Rerdell, you have put yourself in +full accord with us, and I have this to say, you shall be well +taken care of and your matters shall be attended to."</p> +<p>On cross-examination, on page 2500, he swears that Dorsey wrote +the words:</p> +<p>Your matters shall be attended to.</p> +<p>But he still admitted that he, Rerdell, wrote the words and put +them in the mouth of the Attorney-General:</p> +<p>You shall be well taken care of.</p> +<p>He says in his letter of July 5, 1882:</p> +<p>If I had remained with the Government I have every reason to +believe I would have a good position.</p> +<p>What next? Mr. Rerdell, in his examination-in-chief, swears that +he himself wrote these words:</p> +<p>The next evening I called on Mr. Woodward to see if he had +anything more to say, and he told me a place had been found for my +father-in-law, and to give the application to Senator Clayton; to +make the application for the Interior Department, as it was best +not to put him into the Post-Office Department for fear of +criticism; that the appointment should be made at once. It was all +arranged. The next day I saw Clayton, who said the same thing.</p> +<p>On cross-examination, at page 2505, he swears that Dorsey wrote +a part of this; that Dorsey wrote the following words:</p> +<p>As it was best not to put him into the Post-Office Department +for fear of criticism.</p> +<p>When he testified on direct examination he had this marked paper +before him; in the absence of the paper, on the cross-examination, +he takes his solemn oath that he did not write it, but that Senator +Dorsey did. What confidence can you put in that kind of testimony? +I would like to have you, gentlemen, some time, or I would like to +have anybody who has the slightest interest in the thing, read this +affidavit and see whether it is the work of two or the work of one. +You let two men write, one writing one paragraph and the other +another paragraph, and then you read it; there is no man in the +world accustomed to read books that cannot instantly detect the +difference in style, the different mode of expression, the +different use of language. Nobody can see any difference in the +writing; nobody can see the slightest difference in the mode of +expression; the sharpest verbal mechanic that ever lived cannot see +a joint between these paragraphs. They emanated from the same +brain; they were written by the same hand; and if any man, who has +ever read one book clear through, will read that, he will see that +one person wrote it all. But Mr. Bliss tells you that here is a +passage that shows the handiwork of S. W. Dorsey, because Dorsey +was a politician:</p> +<p>He also said that you, Mr. President, had told Mr. Dorsey you +could not interfere in this investigation and prosecution; that if +you did, the public would say that the President and a Secretary, +who shall be nameless, but whose name I could guess, had taken the +money of the star-route ring while they were in Congress, or the +Postmaster-General and Attorney-General had taken it since, and +therefore he (Dorsey) must look to the courts for vindication.</p> +<p>That is the passage upon which Mr. Bliss relies, among others, +to show that this was formed in the brain of S. W. Dorsey; and yet +Rerdell swears that that passage he wrote himself. It will not do, +gentlemen.</p> +<p>Now, in order that you may know just about how much force to +give to that, let me read you a little from page 2379; and I read +this for the purpose of letting you know the ideas that this man +Rerdell entertains of right and wrong.</p> +<p>I want you to get at the moral nature of this man; I want you to +thoroughly understand him. When you examine these affidavits, when +you think of his testimony, I want you to know exactly the kind of +nature he has, and I want you to remember that he came here upon +this stand and swore in this case that he did not consider that it +was wrong to interline petitions; that he did not think it was +wrong to fill up affidavits; and that is the reason he made the +affidavit of July 13, 1882. Although he then knew that these things +had been done, still he did not regard them as wrong. You see it is +worth something to get at a man, to get at his philosophy of right +and wrong; it is worth something to know how he thinks; why he +acts; and when you have found that out about a man, then you know +whether to believe him or not.</p> +<p>I believe the jury did look at this paper and saw all the parts +that had been marked by blue pencil, and those parts, I believe, he +said Dorsey wrote. That is the paper he had before him at the time +he testified in chief. But when he came to be cross-examined, not +having the paper then before his eyes, he swore in very many +important things exactly the other way. We were all astonished at +the facility with which he remembered, he pretending to know what +parts he wrote and what parts Mr. Dorsey wrote. I want you to +understand this man, and before I get through with him, you will. I +want you to know him.</p> +<p>Now we come to an exceedingly important thing in this case, in +the eyes of the prosecution. It is the principal pillar supporting +the testimony of Mr. Rerdell. Without that pillar absolutely +nothing is left, everything falls into perjured ruin.</p> +<p>The first question that arises with regard to the pencil +memorandum (31 X) is who wrote it, and in order to ascertain who +wrote it we must take into consideration all the facts and +circumstances that have been established in this case. It is +already in evidence, as you remember it, that Rerdell kept a +route-book. You will also remember that Mr. Dorsey had books of his +own; that he had a bookkeeper of his own, Mr. Kellogg; that Mr. +Kellogg swears that he kept those books and that nobody else ever +made a scratch of the pen in them; that he kept them up till the +fall of 1879; they were then sent to New York; that Mr. Torrey took +possession of those books on the 27th of January, 1880, and kept +them continuously to the last of April, 1882, and that nobody else +ever put a mark in them. That is the evidence. The evidence also is +that there was in those books a complete mail account. The evidence +is also that in those books kept by Mr. Kellogg were the charges +and credits growing out of the purchase of John W. Dorsey's +interest and Peck's interest in the mail routes.</p> +<p>Mr. Merrick. Pardon me; point me to that evidence.</p> +<p>Mr. Ingersoll. I will refer to it hereafter. I do not wonder, +gentlemen, that they dislike this pencil memorandum.</p> +<p>Mr. Merrick. No, sir; I only want to keep you within correct +limits.</p> +<p>Mr. Ingersoll. I understand that. I do not blame anybody for +disliking that pencil memorandum.</p> +<p>Mr. Merrick. You can convict Rerdell as much as you like.</p> +<p>Mr. Ingersoll. When you come to show that he is guilty his +countenance will light up with the transfiguration of joy. There +will be no more delighted auditor than Mr. Rerdell when his crimes +are painted blackest. It shows you the moral nature of the man.</p> +<p>Now, as I say, the evidence is that there was a route-book kept; +that that route book contained all the information that Mr. Dorsey +or any one else would want about the routes themselves; +consequently, that there was no propriety in keeping any other set +of books. Mr. Rerdell could keep books for himself, but not for S. +W. Dorsey. Dorsey had a set of books, and had another book-keeper. +Why should he have another set opened by Rerdell? Rerdell kept a +route-book that gave him all the information that he could possibly +desire.</p> +<p>Mr. Wilson. Rerdell did not handle the money.</p> +<p>Mr. Ingersoll. Of course not; there was no money at that time to +handle; they had not got as far as the handle.</p> +<p>Now, there is another little point: Why should Dorsey +voluntarily put himself in the power of Rerdell by saying, "I have +paid money to Brady"? What was the necessity of it? What was the +sense of it? Rerdell was his clerk. Why should he take pains to put +himself, the employer, absolutely in the power of his clerk? Why +should he take pains to make himself the slave of the man he was +hiring by the month? Why did he wish not only to make Mr. Rerdell +acquainted with his crime, but to put in the hands of Rerdell +evidence written by himself? See, gentlemen, you have got to look +at everything from a natural standpoint. Of what use was it to Mr. +Dorsey to keep that account? Dorsey at that time had no partner. +Dorsey at that time did not have to respond to anybody. Of what use +was it to him to put down in a book, "I paid Brady eighteen +thousand dollars"? Was he afraid Brady would forget it? Was he +afraid he would forget it? Did he want his clerk to help him keep +the secret, knowing that if the secret got wings it would render +him infamous? Let us have some sense. The Government introduced it. +They also introduced a witness to prove that it was in Dorsey's +writing. Rerdell swore that it was. Their next witness, Boone, +thought part of it might be and part might not be; it did not look +right to him; he rather intimated that Mr. Rerdell wrote part of +it. And right there the Government dropped. No expert was brought. +There were plenty of experts right over here at the Bureau of +Engraving and Printing, plenty of experts in Philadelphia and New +York, plenty of judges of handwriting. Right up here in Congress +were twenty or thirty Senators who sat for six years in the Senate +with Stephen W. Dorsey, served on the same committees with him and +had seen him write every day; clerks of those committees who had +copied page after page of his writing. Not one of them was called. +The Government, with its almost infinite power, with everything at +its command, brought no expert. That was the most important piece +of paper in their case. And yet they allowed their own witness to +discredit it; their own witness swore, in fact, that Rerdell had +manufactured the incriminating part of it. And yet they sent for no +expert to swear to this writing. Don't you believe that they talked +with somebody? Has not each one of you in his mind a reason why +they did not bring the ones that they talked with? They left it +right there without another word. Now, why? Simply because they +could get no man to swear, except Rerdell, that this is in the +handwriting of S. W. Dorsey. That is the reason.</p> +<p>You know that Rerdell "kept this as a voucher." What for? Was +any money paid out on it? No. Was it a receipt for any money? No. +But he "kept it as a voucher." You see he was in a difficulty. How +did he come to keep it all this time? It would hardly do for him to +say that he did not try to keep it, that it had just been in the +waste-basket of forgetfulness, and had suddenly come to life by a +conspiracy of chance and awkwardness. It would not do for him to +say that he made it. So that he had to say that he kept it, and +then he had to give a reason for keeping it. What was the reason? +He said he "kept it for a voucher." I suppose you [addressing Mr. +Greene., a juror] have kept books. Is that what you would call a +voucher? Yet that is the reason the poor man had to give. I pitied +the man when he got to the point. I am of such a nature that I +cannot entirely, absolutely, and perfectly hate anybody, and when I +see the worst man in trouble I do not enjoy it much; at least I am +soon satisfied, and would like to see him out of it. Here he was +swearing that he had this for a voucher.</p> +<p>Now, there are some little things about this to which I will +call your attention. Here is the name of J. H. Mitchell. An account +was opened with Mitchell, but he does not tell him to charge +Mitchell with anything; there is nothing opposite Mitchell's name. +How would he open an account with Mitchell without anything to be +charged against him or to be credited? He put in the index of the +book, "J. H. Mitchell, page 21." You turn over to page 21, and you +find Mitchell debtor to nothing, creditor the same—silence. +Not a cent opposite the name on either side. Mitchell was not an +employee. Mitchell was not a fellow that they were to have an +account with by the day. Then John Smith is rubbed out and Samuel +Jones written under it. Rerdell says he wrote Samuel Jones. I say +he did not. I want you to look at it after awhile and see whether +he wrote it or not.</p> +<p>Now, gentlemen, it so happened that when this pencil memorandum +was introduced it struck me that the M. C. R. looked a great deal +like Rerdell's handwriting, and you will remember that I suggested +it instantly, and said to the jury, "Look at the M. C. R." Now, +gentlemen of the jury, I want you to look at that M. C. R.; I want +you to see how the first line of the M. is brought around to the +middle of the letter, and then I want you to see exactly how the C. +and the R. are made. Take it, Mr. Foreman, and look at it +carefully. And, in connection with that pencil memorandum (31 X), I +will ask the jury also to look at this settlement with John W. +Dorsey, made in 1879 (87 X), and compare the initials M. C. R. +where they occur on both papers. M. C. R. occurs twice, I believe, +on this (87 X.) Now look at the formation of the M. C. R. on both +papers, Mr. Lowery, and do a good job of looking, too.</p> +<p>Now, gentlemen, this is one of the most valuable pieces of paper +I have ever had in this case, and it is as good luck as ever +happened. I want you to look at the J. W. D. on that paper, and +then compare it with the J. W. D. on this paper; you cannot spend +your time better.</p> +<p>I did not suppose I would ever find one paper that would have +everything on it. But, as if there had been a conspiracy as to this +paper, there is an S. W. D. on this paper which is substantially +the same as the S. W. D. on the other. The M. C. R., the S. W. D., +and the J. W. D. on both these papers are all substantially the +same, and I think when the jury have looked at it they will say +they were written by the same hand.</p> +<p>Now, gentlemen, there was the testimony of Mr. Boone that he +thinks the upper portion of this pencil memorandum (31 X) was +written by S. W. Dorsey; that it looks like his handwriting down to +and including "profit and loss," I believe; I may be mistaken; it +may be down to "cash;" and then after "profit and loss" come the +names of J. H. Mitchell and J. W. D., exactly the same J. W. D. +that appears on 87 X.</p> +<p>Now, what paper is that 87 X? That is an account of John W. +Dorsey against S. W. Dorsey in 1879. He had been out West to take +care of some of the routes, and when he came back he settled, and +Mr. Rerdell wrote up the account. That is 87 X, and I proved that +it was made in 1879. I believe the prosecution thought at first +that it was 1878.</p> +<p>That paper shows that it was manufactured by the one who wrote +this paper, and by nobody else.</p> +<p>Now, as I said before, there is no account against J. H. +Mitchell. Opposite William Smith there are the figures eighteen +thousand. And Rerdell says that he wrote Samuel Jones himself at +the suggestion of Mr. Dorsey. Again I ask you, gentlemen, why would +Mr. Dorsey give such a paper to Rerdell? Why would he give him this +false name? Why would he put himself in his power? It is very +natural that he should give the amounts ten thousand five hundred +dollars, ten thousand dollars for John W. Dorsey and ten thousand +dollars for Peck, because the evidence shows that those +transactions actually occurred. The evidence shows, not only in one +place but in many, that the ten thousand dollars was paid to John +W. Dorsey, the ten thousand dollars was paid to Peck, and that the +ten thousand five hundred dollars was advanced at that time by S. +W. Dorsey. Consequently that is natural; it is proper. But my +opinion is that he never wrote one word, one line of the pencil +memorandum. It was all made, every mark upon it, by Mr. Rerdell. He +is the man that made it. Did he have it when he went to MacVeagh? +No. Did he have it when he went to the Postmaster-General? No. Did +he have it when he went to Woodward? No. Did he have it when he +made his affidavit in July, 1882? No; or he would not have made it. +Did he have it when he went to Mr. Woodward in September? No; or +else Mr. Woodward would have taken the stand and sworn to it. Did +he have it when he made his affidavit in November? I say no. Who +made it? Rerdell manufactured it for this purpose: That he might +have something to dispose of to this Government; that he might have +something to swap for immunity. He "kept it as a voucher."</p> +<p>Why did not these gentlemen bring Senator Mitchell to show that +he had some account with Senator Dorsey in May, 1879? Why did not +the Government bring Mr. Mitchell? They knew that their witness had +to be corroborated. They knew that the law distinctly says that +such a witness cannot be believed unless he is corroborated. They +also know that the law is that unless such a witness is wholly +corroborated he cannot be believed; that you are not allowed to +pick the raisins of truth out of the pudding of his perjury. You +must believe him all or not at all. He must be received entire by +the jury, or with the foot of indignation he must be kicked from +the threshold of belief. They know it. Why did they not bring +Senator Mitchell to show that he had some account with S. W. Dorsey +in 1879? But we heard not a word from them.</p> +<p>What more? Rerdell says that was either in April, before he went +West, or in May, after his return; and at that time, according to +his testimony—that is, according to this +memorandum—eighteen thousand dollars had been paid to Mr. +Brady for expedition. And then following, in the month of June, +before the quarter ended, eighteen thousand dollars more. That +makes thirty-six thousand dollars paid to Brady. What else? Ten +thousand dollars to John W. Dorsey; forty-six thousand dollars that +makes. Ten thousand dollars paid to Peck; fifty-six thousand +dollars that makes. He had also advanced himself ten thousand five +hundred dollars; that makes sixty-six thousand five hundred dollars +advanced, and not a dollar yet received from the Government. And +that by a man who gave away seventy per cent, of a magnificent +conspiracy because he had not the money to go on. All you have to +do is to think about this. Just think of the situation of the +parties at the time. I tell you I am going to stick to this subject +until you understand it.</p> +<p>Mr. Gibbs swears that the name of Mitchell was not in the books +when he saw them, and yet those books were opened from this +memorandum. Gibbs is the man who has such a control over his mind +that he can "try not to remember." When I was a boy I used to hear +a story of a man going around saying that nobody could control his +mind for a minute; that nobody could think of one thing for a +minute without thinking of something else. But there was one fellow +who said, "I can; I can think of a thing a minute and not think of +anything else." He was told, "If you do it, I will give you my +horse, and he is the best riding-horse in the country; if you can +say the first verse of 'Mary had a little lamb,' and not think of +anything else, I will give you my horse, and he is the best +riding-horse in the country." The fellow says, "How will you tell?" +"Oh, I will take your word for it." So the fellow shut up his eyes +and said:</p> +<pre> + Mary had a little lamb, + Its fleece was white as snow, + And everywhere that— +</pre> +<p>"I suppose you will throw in the saddle and bridle?"</p> +<p>Mr. Gibbs is the man who had such control of his mind, and he +tells you that the name of J. H. Mitchell was not in the book.</p> +<p>Mr. Donnelly says he does not remember any such name as J. H. +Mitchell, and yet he holds an office. He has the poorest memory for +any one under the present Administration, I ever saw. He does not +remember the name of J. H. Mitchell. Who does remember it? Mr. +Rerdell. But Mr. Rerdell does not say what he had charged to J. H. +Mitchell; he does not say what was in the book as against J. H. +Mitchell; he fights clear of that charge. And why? He was afraid +that John H. Mitchell might testify. According, I think, to Mr. +Rerdell, there was a charge against Belford on those books. I do +not know why Belford's name did not appear on the memorandum, but I +will come to Belford afterwards.</p> +<p>Mr. Bliss. Mr. Ingersoll, Mr. Donnelly does not mention in any +way and is not asked on the subject of Mr. Mitchell.</p> +<p>Mr. Ingersoll. I think he is. I will find it after awhile if I +can, and if I cannot I will admit that you are right. I do not know +where it is. I do not wish to be interrupted.</p> +<p>Mr. Bliss. I claim the right.</p> +<p>Mr. Ingersoll. Well, go on; the poor man only had seven days in +which to make his speech.</p> +<p>Mr. Bliss. I have before me Mr. Donnelly's evidence, and he does +not mention the name of Mitchell in any manner, and is not asked +about it, so far as I can see. I think when the statement is +persisted in there should be some reference given to the page.</p> +<p>Mr. Ingersoll. It is on page 2637.</p> +<p>Mr. Davidge. And at page 2639, about two inches from the +top.</p> +<p>Mr. Ingersoll.—It is sufficient for my purpose, which is +this: That he gave the names of all the accounts he could remember, +and in that list of names he did not give the name of J. H. +Mitchell. So I think I can fairly say to you that that man did not +remember any account against J. H. Mitchell. Mr. Gibbs was asked +directly whether there was any account against J. H. Mitchell, and +he did not remember any such. Now, the only person that swears to +it at all is Mr. Rerdell. Then you come across this contradiction: +Why should the name of J. H. Mitchell be there with nothing +opposite to it? I do not know. The prosecution, of course, will be +able to find writing of S. W. Dorsey that will resemble some of the +writing on this pencil memorandum. There is no doubt about that. If +it was written by Rerdell in imitation of Dorsey's writing, it is +not surprising that writing really written by Dorsey can be found +that looks like it. Why? Because it was written in imitation of his +writing, and therefore you can find writing of Dorsey's that looks +like it; otherwise it would not be an imitation. The next question +arises, Can you find writing of Rerdell's that looks like it? Yes; +87 X. The M. C. R., the S. W. D., and the J. W. D. are all exactly +like it. Now, is it not infinitely surprising that Dorsey should +imitate Rerdell without trying and without an object? Is it not +perfectly wonderful that this memorandum should be in imitation of +Rerdell's writing, when it was written by Dorsey? But if it was +forged by Rerdell, it is not wonderful that it looks like Dorsey's +writing. If Dorsey wrote it without thinking of Rerdell, I say the +accident is infinitely wonderful that he imitated Rerdell. Which is +the more probable—that Dorsey imitated Rerdell without design +and without trying, or that Rerdell imitated Dorsey with a design, +and when trying to do so? That is the way to put this argument, and +I hope the gentlemen will answer it. The ingenuity that would be +displayed in the answer would a thousand times pay me for the loss +of the point. I want them to account for this, how Dorsey's natural +handwriting comes to look like Rerdell's, and how it is that this +looks precisely like Rerdell's in many instances. Why is it, +gentlemen? I will tell you. Mr. Rerdell had written the initials J. +W. D., S. W. D., and M. C. R. so often that when he came to put +them upon this memorandum he forgot to disguise his hand. That is +the reason. You find on 87 X the J. W. D. precisely as it is on the +pencil memorandum. You find the M. C. R. precisely as it is on the +pencil memorandum. You see if you have done the same thing many +times with your hand, the hand gets a mind of its own. It is in +that way that you learn to play upon the piano. The hand becomes +educated and follows the keys through all the mazes of melody +without asking one question of the mind. You can write a name so +often, you can make initials so often, that when you come to write +them, no matter what your object is, the hand, educated with a mind +of its own, pursues the old accustomed motions and paths. That is +the reason that J. W. D. and S. W. D. and M. C. R. are exactly in +the handwriting of Rerdell in this pencil memorandum. According to +that, Dorsey had paid out in all, I think, about $65,000, or +something like that There is no truth in it, gentlemen.</p> +<p>Now, in order to prepare your mind for the next point I am going +to make, and in order that you may know something about this man +Rerdell, I will give you some further information about him. I do +not think you are sufficiently acquainted with his character, and +any little points that I have I want to give to you. I want to +paint his portrait in every lineament, every mark. I want to give +you every hair in his head. Remember that this witness is to be +corroborated. He is to be propped and indorsed. Everybody admits +that he is the pewter of perjury and has to be plated with the +silver of respectability gotten from somebody else. They all admit +that. He is an empty bag. Somebody has to fill him up before he can +stand upright. They admit that. I want to call your attention to a +few things as to which he lacked corroboration.</p> +<p>On page 2215, Rerdell swears that Miner told him that the +amounts in the bids were filled in by S. W. Dorsey. On page 4177 +Miner denies this, and says that he filled in the bids with only +two exceptions.</p> +<p>On page 2216 Rerdell swears that the mail matter for J. W. +Dorsey, Peck, and Miner was handed him by S. W. Dorsey, and that +Dorsey said that he was going to take the business out of Boone's +hands. On page 3766, Dorsey swears that he had no such conversation +with Rerdell.</p> +<p>On page 2217, Rerdell swears that S. W. Dorsey applied to him to +go West. On page 3768 Dorsey swears that he did not employ him to +go West.</p> +<p>On page 2218, Rerdell swears that he received instructions from +S. W. Dorsey as to what to do on the Bismarck route. On page 3769, +S. W. Dorsey swears that that is utterly untrue.</p> +<p>On page 2219, Rerdell says that he was instructed to establish a +<i>paper post-office</i> sixty miles north of the route. What was +that for? According to his testimony there was a mistake in the +advertisement, and the route was too long, and this was a device to +shorten it by adding sixty miles to it to make a post-office thirty +miles off the route, or sixty altogether, so as to get pay for the +increase of distance. If it was to be a fraud, why put the +post-office off the route? Why not have it on the route? Where +would the fraud be if they traveled the sixty miles except in +having a postoffice where none was needed? They certainly would +make nothing from the Government by traveling the sixty miles. If +they traveled the sixty miles they would be paid for that sixty +miles, but if they wanted pay for the sixty miles without traveling +that sixty miles, they would not have put the post-office so far +off the route. They would have put it on the route, or very near to +it, and pretended that it was off the route.</p> +<p>Gentlemen, it is infinitely absurd to suppose that Stephen W. +Dorsey would have instructed that man to go out in that country and +get up a false post-office. How long would a fraud like that last +and live? How long could the money be drawn for that service in +that country? They say no human being lived there. Who was to be +postmaster? Who was to make the reports? How long, in your +judgment, would it be before the department would find out that +there was no such post-office, no postmaster, and no mail? No one +could think of a more shallow device than that Stephen W. Dorsey, a +man who is blest with as much brain as any man it is my pleasure to +know, would never dream of such an idiotic device. And yet, that is +the testimony of Mr. Rerdell.</p> +<p>It may be that Mr. Rerdell when he got out there thought he +could start a town and make money in some other way. But it will +not do to say that Stephen W. Dorsey told him to get up a false and +fraudulent post-office when Mr. Dorsey must have known that the +mail could not have been carried to it but a few days before it +would have become known that there was no such office. They would +have to appoint a postmaster and he would have to live there in his +loneliness a hermit of the plain, and would have to make a report +like that from Agate that gave such delight to Mr. Bliss to read. +There was not a letter sent to that place; not one, nor would there +be. Mr. Dorsey knew if there was a postmaster appointed he would +have to report, and in three months from that time he would have to +report, first, that there was no post-office; second, that there +had never been any mail; and third, that he did not expect any. You +see it is utterly absurd to lay such a charge at the door of +Stephen W. Dorsey.</p> +<p>On page 3769 Dorsey swears that the statement is a +falsehood—that he never did any such thing. He also denies it +on page 3924.</p> +<p>On page 2220 Rerdell swears that he gave Pennell a petition for +a post-office. On page 2156 Joseph Pennell swears that he never saw +the petition; and on page 2171 that he never signed it, and that +none was sent.</p> +<p>On page 2221 Rerdell swears that he was instructed by S. W. +Dorsey to build stations fifteen or sixteen miles apart, and use +every third station. On page 3769 S. W. Dorsey swears that no such +instructions were given. On page 4092 J. W. Dorsey swears that they +started to build the stations about thirty miles apart, and that +after he saw General Miles and was told by that officer that there +would be, and must be a daily mail, then he concluded to build +stations between the stations that he had built going over.</p> +<p>That is a sensible, straight story. When he went out they built +the stations some thirty-odd miles apart, and when he talked with +General Miles, General Miles told him that there must be a daily +service, and then he determined to build intermediate stations as +he went back. What was that testimony sworn to by Rerdell for? To +make you believe, gentlemen, that Stephen W. Dorsey when he sent +Rerdell out knew that there was to be expedition, and knew it +because he was in conspiracy with the Second Assistant +Postmaster-General. The testimony of John W. Dorsey lets the light +in upon that story. The sun rises, and the mist goes. What is his +story? "I went there and built the stations about thirty miles +apart, and when I talked with General Miles he assured me that +there must be expedition and a daily mail, and then I built +stations at the intermediate points as we went back." That is the +story. It is consistent with itself.</p> +<p>Is it not wonderful that the Government did not also prove by +Pennell that Rerdell gave him instructions to build the ranches, +and told him that he had been so instructed by S. W. Dorsey?</p> +<p>On page 2233 Rerdell swears that Miner told him that Vaile was +close to Brady. On page 4177, Miner swears that it is not true; +that he never had any such conversation. Why did they want a man +close to Brady? As I explained to you before, gentlemen, they had +already, according to their testimony, as they claim, proved that +Miner had conspired with Brady, and yet he was going around trying +to find a man close to Brady. Being a co-conspirator was not close +enough. So Mr. Rerdell is corroborated there again by Mr. Miner who +swears that what Rerdell swears is a lie.</p> +<p>On page 2224 Rerdell swears that in November, 1878, Miner asked +him to write certain words in a line on petition 40104. On page +4178, Miner swears that he never asked him to interline any +petition.</p> +<p>On page 2225 Rerdell swears he had a conversation with Vaile and +Miner on the 20th of December, 1878, at the National Hotel, about +his employment, and that he had a great many conversations there. +On page 4020, Vaile swears that there never was any such +conversation. On page 4021, Vaile also swears that he has no +recollection of such a conversation then or at anytime. On page +4178, Miner swears that the talk was between Rerdell and himself, +and that Vaile was not there.</p> +<p>On page 2225 Rerdell swears that Vaile told him that the mail +service they had ought to reach six hundred thousand or seven +hundred thousand dollars. On page 4021, Vaile swears that he does +not think he ever said any such thing—does not think it was +possible that he ever said any such thing. On page 4179 Miner +swears that Vaile never made any such statement in his +presence.</p> +<p>On page 2226 Rerdell swears that at the instance of Vaile and +Miner he went West, January 4, 1879, to put service on the Rawlins +route. On 4022 Vaile swears that Rerdell did not go West at his +instance; that Miner gave him, Rerdell, a subcontract for the +entire pay, for the whole term, and that Rerdell undertook it on +his own behalf. On 4179 Miner swears that he made the arrangements +with Rerdell himself.</p> +<p>On page 2227 Rerdell says that Vaile and Miner both told him +that the service would be increased right away, and to make +subcontracts with that in view. On page 4180 Miner swears that he +gave him no such directions, and that Rerdell did all he did on his +own responsibility, and that Vaile did not give him any such +authority. It is for you to say., gentlemen, which of these men you +will believe.</p> +<p>On page 2228 Rerdell swears that in March, 1879, had a +conversation with Vaile about an affidavit, and received +instructions from Vaile or Miner. On page 4024 Vaile swears that he +recollects no such conversation and does not think he ever had +it.</p> +<p>On page 2228 Rerdell swears that Vaile said in the presence of +Miner that he could get Brady to accept an affidavit from a +subcontractor. On page 4024 Vaile swears that he is very sure that +he did not say so, and that he never asked Brady any such question. +On page 4182 Miner swears that he never made any such statement in +Vaile's presence.</p> +<p>On page 2228 Rerdell swears that a day or two after Vaile says +he had seen Brady, and that Brady had agreed to accept an affidavit +from a subcontractor. On page 4024 Vaile denies this.</p> +<p>On the same page, 2228, Rerdell swears that he was instructed by +Vaile and Miner to write to Perkins and get him to send his +affidavit. On page 4024 Vaile swears, "Never!"—that he did +not know Perkins was a subcontractor. On page 4182 Miner swears +that he has no recollection of it, and that he never instructed +Rerdell to send any form of affidavit to Mr. Perkins.</p> +<p>On page 2230 Rerdell swears that Miner wrote a form of +affidavit. On page 4182 Miner swears that he has no recollection of +it, and that he never instructed Rerdell to send any form to +Perkins. As a matter of fact the Perkins affidavit is in the +handwriting of Rerdell. Yet he tells you that Miner wrote the form. +It will not do.</p> +<p>On page 2231 Rerdell swears that he filled in blanks under the +direction of S. W. Dorsey—that is, of the Perkins +affidavit—and filed it under the direction of S. W. Dorsey. +On page 3793 Dorsey swears that he never knew there was such an +affidavit, and that he never gave such instructions; and more than +that, that he never at any time or place gave Rerdell authority to +change any affidavit or any petition that was to be filed.</p> +<p>On page 2233 Rerdell swears he was instructed to make the +subcontract without any reference to expedition; and that he, +Dorsey, would guarantee the payments if they were not filed. On +page 3771 S. IV. Dorsey swears that he gave him no such +instructions.</p> +<p>On page 2234 Rerdell swears that affidavits of Peck and Dorsey +were acknowledged in blank. On page 4189 Miner swears that so far +as he remembers they were filled in before they were signed.</p> +<p>Again, it may be proper for me to say here: Why did not the +Government call J. S. Taylor, the notary of New Mexico, to prove +that the affidavits were in blank when they were sworn to by John +M. Peck? Why did they not? The law presumes that every officer has +done his duty, and when we find at the foot of an affidavit the +certificate of a notary public the law presumes that the paper +above it was in the precise condition at the time the certificate +was placed there in which it is then. That is the presumption of +law, and there is only one way to overcome that presumption. You +must prove to the contrary. One of the easiest ways on earth to do +that is to bring the officer. They did not bring J. S. Taylor here +from New Mexico, the man before whom Peck acknowledged the +affidavit in this case. It would have been easy to have him come, +and to have asked him whether Peck did not swear to all these +affidavits in blank. They did not call him. They had him here once +and that was enough. They did not call him this time. They did not +call Rufus Wainwright, of Middlebury, Vermont. He is the officer +before whom John W. Dorsey swore to these affidavits. The gentlemen +of the prosecution say the affidavits were in blank, and yet they +dare not put upon the stand the notary before whom they were sworn +to. It was not because they did not think of it. It was not because +they had not the money. The Government had money by the million and +agents by the thousand. You recollect how they tried to prove the +destruction of those dispatches in the Western Union office. You +recollect how they brought here the superintendent, how they +brought here agent after agent, how they brought here the man that +went around and collected the dispatches, and the man that drove +the wagon, and the man that owned the wagon, and the boys that +received the dispatches on the street, and the man in the cellar +that received them after they got there, and the man that bought +them, and the book-keeper that made out the check to pay for them. +They brought the man that receipted for them at the railroad, and +they followed them from the railroad to Holyoke, Massachusetts, and +brought the superintendent of the factory and the books of the +railroad to show they had arrived. They followed those dispatches +from paper to pulp and yet it never occurred to them to send to +Middlebury and get Rufus Wainwright. They never thought to have J. +S. Taylor subpoenaed from New Mexico. They had all the conveniences +of modern civilization at their command and yet they never thought +of getting Wainwright or Taylor.</p> +<p>On page 3771 S. W. Dorsey swears that he never instructed +Rerdell to get any affidavits in blank. On pages 4126, and 4107, J. +W. Dorsey swears that he made none in blank; that he has no +recollection of any such thing. On page 2240, Rerdell swears that +he had a conversation with S. W. Dorsey about getting blank +affidavits. On page 3771 S. W. Dorsey denies it. On page 2241 +Rerdell swears that S. W. Dorsey instructed him to make up the +affidavit on route 41119 and gave him the per cent, of the increase +of pay. What does he say there? From one hundred and fifty to two +hundred per cent.</p> +<p>Mr. Merrick. That was afterwards corrected.</p> +<p>Mr. Ingersoll. I thank you for the suggestion. That happened on +Friday. We adjourned until the next Monday morning. He came in the +next Monday morning, and he said that he had made a mistake, and +that it ought to be from one hundred and fifty to two hundred and +fifty per cent. I immediately went and got the affidavits on the +Toquerville route, because I said the percentage must be over two +hundred per cent, in that affidavit or he would not have changed. I +found in the affidavit that it was two hundred and fifty-five per +cent., and I found that was why he changed. I followed that out, +and I found that was the same route upon which Mr. Rerdell stole +nearly five thousand dollars, according to the testimony of S. W. +Dorsey, and Rerdell did not deny it. So much for Toquerville and +Adairville. We will come to it again perhaps.</p> +<p>Let me give the pages where all these matters are found. On page +3772 Dorsey denies the conversation about the affidavits, and also +on page 3773. Rerdell's, change of his evidence will be found on +page 2277.</p> +<p>On page 2243 Rerdell swears that while he was in jail S. W. +Dorsey had a key to what he called his, Rerdell's, office. On page +3735 S. W. Dorsey swears that he never had a key to Rerdell's +office, and that he never was in the office but twice, both times +with Rerdell, and that he never took a paper out of the office +except what Rerdell gave him. It will also be remembered that when +Rerdell was asked in his examination-in-chief whether anybody had a +key to his office he replied that S. W. Dorsey had a key to his +office. He did not at that time state that his wife had a key. Why? +Because he wanted it understood that S. W. Dorsey was the only +person that had a key, and that S. W. Dorsey, while Rerdell was in +jail, went to that office and opened it and robbed it. On +cross-examination I made him swear that his wife had a key, and we +afterwards found that his wife went there. He knew she had a key. +Still, in his cross-examination, when asked who had a key, he said +S. W. Dorsey. What was that for, gentlemen?</p> +<p>So that you would Infer that S. W. Dorsey was the only person +who had a key, and that he went there and robbed that office, as I +said before. On pages 2634 and 2635 Mrs. Cushman swears that she +went to Rerdell's office with Mrs. Rerdell. When? About six o'clock +in the morning. And that they found the office open? No. They found +the office locked, but found papers in a confused condition, and +took away some papers. They were there about fifteen minutes. +Recollect this was the third morning that Rerdell was in jail. +Rerdell went to jail Monday evening. That made the visit of Mrs. +Cushman and Mrs. Rerdell on Thursday morning, and they went there +at six o'clock. Keep that in mind. Rerdell got out of jail on +Friday. George A. Calvert, the janitor, visited every room +frequently. His testimony is on page 2672. He swears he found the +door of Rerdell's room unlocked. When? The day before Rerdell got +out of jail. What time of day? In the morning. What morning was +that? Thursday morning. When did Rerdell get out of jail? Friday +morning. When did Mrs. Rerdell and Mrs. Cushman visit the room? +Thursday morning. What time in the morning? Six o'clock. When did +Calvert find the room open? That same morning. The women swear that +when they went there the room was locked. Now the question arises, +who opened it? The women. That is all there is to that.</p> +<p>Mrs. Rerdell, on page 2635, swears she got the key on the second +day after Rerdell's incarceration, in the evening. That would be +Wednesday evening. She used it the next morning, Thursday.</p> +<p>On page 2247 Rerdell swears that on the 20th of December, 1878, +Vaile promised him a good salary. On page 4021 Vaile swears that he +has no recollection of any such promise. That is what they call +corroboration. On page 2348 Rerdell swears that in May, 1879, S. W. +Dorsey said, "You know that John is a man of very little judgment. +He does not know how to talk to these contractors." On page 3773 S. +W. Dorsey swears that there never was any such conversation.</p> +<p>On page 2249 Rerdell swears, "As secretary and manager, I kept +the books for a short time." On page 3636 W. F. Kellogg swears that +he, Kellogg had entire charge of Dorsey's books from the summer of +1872 to the fall of 1879, and that nobody else ever made a scratch +of a pen in those books. On page 2270 Rerdell swears that Dorsey +and Bosler were having a settlement in New York and sent for the +books, and that he took the original books over and left them +there, and that he went over to New York in June, 1881, and saw +both books there and brought the journal over and left the ledger. +On page 3955 Dorsey swears that the first settlement he had with +Bosler was in December, 1879, or January, 1880. Rerdell swears that +the time he got the copy made of his journal by the Gibbses, was +between Christmas, 1879, and 1880. Dorsey swears there was not +another settlement until November, 1882. The first settlement being +in 1879, and Rerdell swearing that he took the books over for a +settlement, shows that he did not have them here in Washington to +be copied at the time he says and at the time other people swear +that they copied them.</p> +<p>On page 3788 S. W. Dorsey swears that he never sent for any +transcript, and that he, Dorsey, referred to the route-book, and +that Rerdell never sent any such book or books as he claimed. On +page 2271 Rerdell swears that he gave copies of the journal to +Dorsey in June, 1881. That was the time that he made the affidavit. +His language by any natural interpretation means that lie handed +those copies over to Dorsey at the time he made the affidavit on +the 20th of June, 1881. On page 3988 Dorsey swears that he did not, +and on page 3785 he again swears that he never had them. On page +3784 he again swears that Rerdell never brought any book to him +except the route-book. On page 2271 Rerdell swears that Dorsey, on +the 13th of May, 1879, him to make up a statement of the routes +showing the profits, and that he thinks he gave it to Bosler. On +page 3875 Dorsey swears that he never made up any such statement by +his direction, and that he never gave Rerdell such an order. Why +should he? According to Rerdell's own statement, in which there is +not a particle of truth, Dorsey, on the 13th of May, 1879, that +very day, had written a letter to Bosler, in which he told him +about the profits, about how much it had cost him, and about how +much it would cost him, and about how much the profits would be, +and how much he paid to Brady. After writing such a letter to +Bosler, containing all the facts, why would he want Rerdell to make +up a statement that was already in the letter itself? Nobody can +answer. There is not genius enough in this world to make the +answer.</p> +<p>On page 2272 Rerdell swears that he saw 7 B, which is a +petition, in 1879, and that there were three words in his own +handwriting that were not there when he first saw it, the three +words being "and faster time." He also swears that he was +instructed to put them in by S. W. Dorsey. I now say that Mr. +Rerdell never wrote those three words. On page 783 it appears that +7 B was filed April 18, 1879. On page 3786 S. W. Dorsey swears that +Rerdell's statement is false. I will now turn to the testimony of +George Sears about the petition, 7 B, which Mr. Rerdell swears was +altered by interlineation or the addition of three words, "and +faster time." The page is 829.</p> +<p>Here comes a witness of the Government, apparently a good and +honest man, and he swears that the words "and faster time" were in +that petition when he signed it. I will take his word for it. I +will take his guess as against the other man's oath.</p> +<p>On page 2273 Rerdell swears that he altered 11 B and 12 B by +instructions of S. W. Dorsey. Now, gentlemen, Stephen W. Dorsey got +such a momentum of crime on him and got running at such a rate that +he could not stop, and whenever a petition came in he had it +altered without reading it. It did not make a bit of difference +what the petition asked for. He just said to his clerk, "Look and +see if there is not any line you can add something to. I want +something put in it, and I want it put in now." Mr. Rerdell says he +did these things without any thought. He just made the changes as +he was told, without considering whether it was right or wrong. He +told you here on the stand that at one time he was requested to get +a petition, and he had a lot of names on hand, and so he just wrote +a petition and stuck the names to it. He could not even remember +the route it was on. It was a matter of so little importance that +he did not charge his memory with it. He was told to get a petition +in the regular way, and instead of doing that he said he took some +names that he had and just wrote a petition and stuck the names on, +because that was easier; and it was a matter of so little +importance he really did not remember. He was like the gentleman in +Texas who was tried for murder, but did not remember the name of +the man he killed; he did not charge his mind with it.</p> +<p>Now for 11 B:</p> +<p>Hon. D. M. Key, Postmaster-General:</p> +<p>We, the undersigned, citizens of the State of Colorado, residing +near and getting our mail at Muddy Creek post-office, on route +38135, from Pueblo to Greenhorn, respectfully represent—I +never noticed before that the "p" is interlined in the word +"represent." I have no doubt that was done by order of +Dorsey—that it is necessary that the service on said route +should be increased from two trips per week to six trips per week, +and a faster schedule. This section of the country is being rapidly +settled by people of intelelgence, and we ask the increased service +for the benefit of us who have already made our homes here, and +also as an inducement to others to settle. We also request that the +schedule time be reduced so as to run from Pueblo to Greenhorn in +eight hours, so that citizens along the route may get their mail at +a seasonable hour.</p> +<p>I have read the petition as it was in the first place. The +Government tells you that after that petition came here, and after +it had been submitted to Stephen W. Dorsey, he told his clerk to +add in the first part of the words "on quicker time;" and yet if he +had read the last paragraph he would have seen quicker time was +there called for. Rerdell says Dorsey told him to insert the words +"on quicker time," and when I read this last paragraph to him he +was stuck. Then what did he say? When he got into that little +corner and was looking for a mouse-hole, he said he didn't read it +and didn't know it was there. Do you believe that a man like +Stephen W. Dorsey would deliberately have a petition changed, would +deliberately forge a petition, without knowing what was in it and +without knowing whether the necessity existed for changing it or +not? That falsehood has not even a fig-leaf to cover its +absurdity.</p> +<p>Here is 12 B. It would not have taken long to have read that. +Rerdell said Dorsey had him put in the words "and a faster +schedule." I will read the last paragraph to that:</p> +<p>We also respectfully request and urge that the running time be +reduced so as to run from Pueblo to Greenhorn in eight hours, so +that citizens along the line may get their mails in a seasonable +hour.</p> +<p>He says Stephen W. Dorsey, a man of sense, got that petition, +read it all over, and then told this fellow to put in "and a faster +schedule" when right in the next paragraph it asked for eight +hours. A man who will swear that way had rather tell a lie on +ninety days' credit than tell the truth for cash. Just look at it. +That is what they call a corroboration. The more you look at this +testimony the more absurdities you find. Every truth has an +infinite number of signs. Every truth has to fit an infinite number +of things. Infinite wisdom could not manufacture a falsehood that +would stand the test of investigation.</p> +<p>On page 2272 Rerdell says, speaking of the three petitions, 7 B, +11 B, and 12 B, "We," meaning S. W. Dorsey and himself, "had +examined these petitions together, and he," meaning S. W. Dorsey, +"told me to put in the clause for expedition." Now, 7 B was filed +April 18. That is the day he left for the West, and 12 B were filed +on the 8th of May. If they had them all at one time together, and +if he and Dorsey had talked about them, why were they not filed at +the same time? Why was one filed April 18th and the other two on +the 8th of May? That testimony of Rerdell's will not do.</p> +<p>On page 2279 Rerdell says that he found among Dorsey's papers +the tabular statement, about the middle of April, 1879. the first +column was the number of the route; in the second the termini; in +the third the pay; in the fourth the anticipated pay by +percentages, and in the fifth the percentage to T. J. B., +thirty-three and one-third, with the figures carried out at the end +of the column. He tells you that he had that tabular statement when +he first went to MacVeagh. That tabular statement was in the +handwriting of S. W. Dorsey. Yet the Attorney-General was not +satisfied. He wanted that backed up by a book not in the +handwriting of S. W. Dorsey. That will not do. Rerdell also tells +you that at the time he went to the Attorney-General he not only +had that tabular statement, but he had a letter-press copy of the +original letter that Dorsey wrote to Bosler on the 13th day of May, +1879. He had that letter, the original of which was in Dorsey's +handwriting, in which he admitted he had paid Brady twenty thousand +dollars. He had the tabular statement in Dorsey's own handwriting +in which he was to pay thirty-three and one-third per cent, to +Brady. Yet the Attorney-General did not think there was sufficient +evidence, and said, "You had better go to New York and steal a book +that Dorsey never wrote a word in." Oh, no; that will not do.</p> +<p>On page 2280 Rerdell swears that he lost that memorandum. I +guess he did. On page 3785 S. W. Dorsey swears that he never made +any such memorandum. On page 2280 Rerdell swears that he employed +Gibbs and wife to make a true and correct copy of the books in +March, 1880; that he was directed by S. W. Dorsey to send him a +true transcript of the books in order to settle with Bosler, and +that Gibbs and wife copied the journal and ledger, and that he sent +the copy to New York. On page 3788 Dorsey swears that he never +heard of the employment of Gibbs and wife, and that he never +received any such books or transcripts. On page 2644 Gibbs swears +that his wife copied only the journal, not the ledger. Yet Rerdell +swears that he copied the journal and the ledger. On page 2644 +Gibbs again swears that Rerdell brought him one book. What color +was it, red, brown, or black? Rerdell says he took him two red +books. Gibbs swears he got one brown book or one black book. That +is what they call corroboration. On page 2320 Rerdell swears with +regard to the paper 2 A, that the words, "schedule thirteen hours" +were written by Miner. If those words, "schedule thirteen hours," +were not written by Rerdell, then—they were written by +somebody else. [2 A handed to Mr. Ingersoll.] I guess this is the +petition that was fixed up. It looks as if it had been to a +hospital. Rerdell says Miner wrote the words "schedule thirteen +hours." Just look at that word "thirteen," gentlemen.</p> +<p>You have no idea how it affects your imagination and brain to be +indicted seven times. On page 2209 Boone swears with regard to this +same paper and the same words, that there is nothing in the +handwriting to indicate that it was written by Miner; that it is a +back-hand; a changed handwriting. On page 4186 Miner swears that it +is absolutely not true; that the words "schedule thirteen hours" +are absolutely and positively not in his handwriting, and further +that he never filed the petition. Gentlemen, evidence of +handwriting is very unsatisfactory necessarily. Men do not always +write the same. The same man does not always write the same hand. +There is the difference of pen, the difference of ink, the +difference of paper, the difference of position, and the +difference, too, of the man's feelings. At one time he feels in +splendid health and at another time he may be tired and worn out. +The paper may not be in the same position. The slope of the desk +may be different. Countless reasons change the handwriting of a +person, and when a man swears that certain handwriting is or is not +another's handwriting he must swear on the general appearance; he +must swear on the impression that it first makes upon him.</p> +<p>I know Mr. Smith and I know Mr. Jones, but it may be that I +could not describe the differences in the faces of the two men so +that a stranger could afterwards tell them. Yet I know them. It is +the effect of all the features upon me. I cannot say it is because +of the ear of one, or his nose, or his mouth. I know the +combination. I remember the grouping of the features and the form, +and that is all I remember. If I am shown a paper and asked, "Is +that Mr. Smith's handwriting?" I say it is, or I say no. Why? +Because it looks like it or it does not look like it. I cannot +recognize it because an "e" is made in a certain way or because a +"d" is turned in a certain way, because the next day he may turn it +the other way. You have got to go upon the general impression. On +page 2336 Rerdell swears that the oath on route 38140, marked 5 E, +was filled in by S. W. Dorsey; that the word "twelve" was written +by him, Rerdell, after it was filed, and was written because Turner +told him that the schedule must be twelve hours; that Turner handed +him the oath and he thereupon changed the "fifteen" to "twelve." On +page 3355 Turner swears that he has no knowledge of any alteration +in any affidavit. On page 3793 S. W. Dorsey swears that he did not +know there was any such affidavit; and he also frequently swears +that he never asked Rerdell to change any affidavit that had been +filed, and that he never gave any such orders. These gentlemen find +one affidavit about which we did not ask Mr. Dorsey particularly +and they say, "You have not contradicted that." When a man swears +that he never gave an order about any affidavit, that covers every +affidavit.</p> +<p>On page 2337 Rerdell swears that the oath marked 20 F, on route +38145, was filled in by him after it was signed, under the +direction of S. W. Dorsey. On page 3793 Dorsey denies giving any +such directions.</p> +<p>On page 2338 Rerdell swears that blanks in the oath 22 F, the +second oath, were filled in by S. W. Dorsey, but will not say +whether before or after execution. On page 3771 Dorsey says he does +not remember doing any such thing; but certainly there is no +evidence that Dorsey did this after the affidavit had been +made.</p> +<p>On page 2339 Rerdell swears that the words "ninety-six" in the +petition 14 H, were written by Miner. Boone, on page 2709, declines +to say that Miner wrote them. On page 4273 Miner swears that the +words are not in his handwriting, that he never wrote them. On page +2298 Rerdell swears that he signed a check "S. W. Dorsey by M. C. +Rerdell," and that he had that check at home. It may be that is one +of the checks for June drawn upon Middleton's bank that we could +not find.</p> +<p>On page 2340 Rerdell says that the oath marked 8 I, on route +44140, was filled in by him in Washington after it was signed and +sworn to, under the direction of S. W. Dorsey. On page 3792 S. W. +Dorsey denies that he gave any such directions.</p> +<p>On page 2342 Rerdell swears that S. W. Dorsey signed the name of +J. M. Peck to the warrant 55 G. I have forgotten the day that the +draft was given, but I think it was the 2d day of August. It was +paid on August 25, 1880. All I have to say is that there was an +abundance of time for that draft to go to New Mexico and to be +signed by John M. Peck; there was thousands of time. It makes not +the slightest difference who signed the name of John M. Peck to +that warrant. The question is, was that money coming to John M. +Peck? No. John M. Peck had sold out his interest. He was not +entitled to one dollar, and it made no difference who signed his +name to the check. Does it show that there was a conspiracy if +Dorsey signed his name after Peck had sold out his interest in the +routes? Any draft coming to him came to him simply as the trustee +and the draft was for the benefit of the person who bought him out. +Suppose Mr. Dorsey had signed his name. Would that prove that there +was any conspiracy? It would simply be in accordance with his right +as the matter then stood. He was entitled to that draft and Peck +was not entitled to that draft. Why? Because he had bought him out +and paid him ten thousand dollars for his interest. That was all. +Yet they would claim if that draft happened to be indorsed by Mr. +Dorsey that it would be evidence of a conspiracy entered into in +the fall of 1879.</p> +<p>On pages 2348 and 2361 Rerdell says that figures were inserted +in all affidavits given him by S. W. Dorsey, except on route 41119, +and that Dorsey told him, Rerdell, to put them in the blanks. On +page 3793 S. W. Dorsey denies that.</p> +<p>On page 2223 Rerdell says that in August, 1878, he had a talk +with Miner, who said that they could do nothing while Boone was in +the combination; that Brady was hostile to Boone, and that Boone's +place was to be taken by Vaile; and that Miner asked his opinion +about Vaile, and asked what Rerdell thought about Dorsey's +approving it, adding that Vaile was very close to Brady. On page +4177 Miner swears that he has no recollection of the conversation, +and does not believe any such conversation ever occurred.</p> +<p>Ah, but they say that when a paper was handed to Mr. Miner, an +affidavit, for instance, he could not give you the history of it; +he could not tell you where he was when he wrote it; he could not +tell you where he was when he filled it. I would not have believed +his testimony if he could. He had to take care of some ninety-six +routes. Upon those routes there were numberless papers, notices +from the department, notices of fines and deductions, of +remissions, and everything of that kind. On each route there were +probably a hundred papers, and may be more—petitions, +affidavits, and papers of all descriptions. If a man should stand +up here five years afterwards and pretend that he knew the history +of each paper, I would know he had not the slightest regard for +truth.</p> +<p>Mr. Miner said when he was shown a paper, "I don't remember ever +having seen that paper before; I don't remember when it was +written." That was the truth. If he had wished to stain his heart +with perjury he could have said, "Yes, I remember it. I know +absolutely the time I wrote it. I know I sent it to New Mexico. I +know it was filled up before it was sworn to"; but he was honest +enough and he was brave enough to face the truth and say, "I don't +remember," and I respected him for it when he did it. Whenever you +hear the truth, as a rule the first thought is, "May be it won't +do." But if it is the truth, the longer you think about it the +better it seems, while if it is a lie, the longer you think about +it the worse it gets. It would have been, apparently, to Mr. +Miner's interest to say, "I remember it perfectly," but the man had +honor enough to tell the truth. And when you come to investigate +his evidence it sounds much better than though he had pretended to +remember time and place.</p> +<p>I call your attention to page 2446; that is about the +affidavit.</p> +<p>On page 2384 Rerdell speaks of the charges made to Samuel Jones +and James B. Belford for two thousand dollars. Then Mr. Bliss in +his speech, which I will come to after a while, says that Mr. +Rerdell spoke about a charge to J. B. B. He never did, never. He +said James B. Belford. I started the J. B. B. business. I was the +first one who ever said it, and Mr. Rerdell never swore J. B. B. +Then they sent out to Denver to get a fellow who had the same +initials. I will come to this man after a while.</p> +<p>On pages 2429 and 2430 Rerdell swears that he had two +balance-sheets of the books, made by Donnelly; that he showed them +to MacVeagh and Woodward. How does it happen that Woodward was not +sworn about it? Nothing would have been of more importance, if they +wished to prove the existence of the two red books, than to prove +by Woodward that Mr. Rerdell, in June, 1881, showed him copies of +those balance-sheets or the balance-sheets themselves. They did not +bring Mr. Woodward on the stand. Why? Mr. Woodward, in my judgment, +had he come upon the stand, would have sworn to the truth. Rerdell +says, "I do not know where they are." Then he paused. Then I saw +the working of his mind just as plainly as though his skull had +been opened. He got himself together and swore that he gave them to +Dorsey in July, 1882. He had to get them out of his hands some +way.</p> +<p>On page 3736 S. W. Dorsey swears that he, Rerdell, did not give +him any balance sheets.</p> +<p>On page 2434 Rerdell swears as to the papers he gave to +Dorsey—the original journal, and copy of the Oregon +correspondence made by Miss Nettie L. White. Miss White was not +called. He gave these, he says, to Dorsey, July 13, 1882. On page +2793 Dorsey swears that he did not give them to him, nor did he +give a paper of any kind.</p> +<p>On page 2461 Rerdell is asked if he did not admit to Judge</p> +<p>Carpenter, in January, 1882, that he had a memorandum written by +himself, which he showed to James and MacVeagh, and that he made it +so much like Dorsey's handwriting that he did not think anybody +could tell it. What was his answer? "I may have done so." Honest +man!</p> +<p>On page 2462, in answer to the question, "Did you not tell +Carpenter that you brought no book from New York?" the honest man +answered:</p> +<p>Very likely I said I brought no book over from New York.</p> +<p>On the same page, in answer to the question, "Did you not tell +French that you were trying to entrap James?" he admits that it is +likely he was.</p> +<p>On page 2463 he admits that he may have told French that he had +learned to imitate the handwriting of Dorsey so well that Dorsey +himself could not tell the imitation; and that he wrote that +memorandum in pencil because he could the more easily deceive. +Honest man!</p> +<p>Mr. Bliss holds S. W. Dorsey up to scorn because he endeavored +to turn two men out of the Cabinet on the testimony of Rerdell; and +yet he is trying to put four men in the penitentiary on the same +oath. Do you not think that it is better to get a man out of the +Cabinet than to put another into the penitentiary? And do you not +think it is better that a man be put out of office than that he be +put into the penitentiary, his family destroyed, and his home left +to ruin, upon the oath of a man who swears that the oath was a lie? +Dorsey was an awfully wicked man to try to get Mr. MacVeagh out of +office on Rerdell's testimony. But now they turn around and want to +put Mr. Vaile and Mr. Miner into the penitentiary on the same +testimony. The other testimony was the best, because we did not +promise him immunity. I will come to it after a while.</p> +<p>On page 2465 Rerdell swears that he did not have any pencil +memorandum that he showed to MacVeagh, claiming that it was in the +handwriting of Dorsey, and was asked, "Did you not tell Bosler that +you had?" What does he say? "Possibly I did." "Did you not tell +Bosler that you wrote it?" "Possibly I did."</p> +<p>S. W. Dorsey swears on page 3810 that Rerdell told Bosler that +it was in the waste-basket, and Bosler took the pieces out and put +them together. Rerdell says he had written it, and in pencil, so +that it would look more like Dorsey's handwriting. Why did you not +ask Bosler about it, gentlemen, when you had him on the stand to +prove your letter? Even Mr. Bliss, in his speech, asked, "Why +didn't they call Bosler?" Why didn't you have the fairness to tell +all the circumstances? I will tell them all when I get to that part +of it. Why did you not tell them that you had looked all through +Mr. Bosler's books?</p> +<p>On page 2466 Rerdell swears that he did not get that memorandum +out of the waste-basket, but got a note from Mac-Veagh, and that +Dorsey was present.</p> +<p>On page 3810 Dorsey swears that it was a pencil memorandum +imitating his (Dorsey's) hand closely.</p> +<p>On page 2466 Rerdell admits that he very likely told Bosler in +June, 1881, that he had no book on the train and brought none from +New York. In answer to my question, he says, "Possibly I did," or +"Probably I did," tell Bosler. I cannot bring other witnesses to +contradict him when he admits that he did. That is enough for +me.</p> +<p>On page 2467 he admits that he very likely told Judge Wilson +about the affidavit; that if he told him anything, he told him that +no such book existed, and that there was no necessity for any book +except an expense book.</p> +<p>On page 2469 Rerdell swears that he had a copy of the day-book +and ledger in June, 1881, in Dorsey's office; that Dorsey took them +that day, and that they had been there ever since they were made, +to be carried to Congress. Then he began to gather his ideas, and +he says:</p> +<p>Hold on. I am mistaken. These books were all sent over to New +York before that, in the summer of 1880, when I carried the +originals over for the last settlement I was present at, between +Dorsey and Bosler.</p> +<p>There was no settlement in 1880, the time he speaks of. Mr. +Merrick then says:</p> +<p>Q. There were two sets of those copies?</p> +<p>That would be four copies and two originals.</p> +<p>A. No, sir.</p> +<p>On page 3955, S. W. Dorsey swears that he had the first +settlement with Bosler in December, 1879, or January, 1880, and had +no subsequent adjustment until November or December, 1882; no +settlement between those dates. Yet Rerdell says that he took those +books over in the summer of 1880 for a settlement, when there was +no settlement, and at the same time carried the originals. A moment +before he had sworn that the originals were there in the office in +June, 1881.</p> +<p>On page 2470 Rerdell swears that he did not give the books to +Dorsey in 1881.</p> +<p>On page 2447 he swears that he did not have the balance-sheet in +New York; that he had it in the office in June, 1881.</p> +<p>On page 2479, Rerdell, in speaking of the pencil memorandum, was +cornered, caught. He said, "I have kept it as a voucher." Then +finally he admits that it was not his property, but was the +property of Dorsey; and the last admission he made upon that +subject was, "I stole it." He says that while he was in jail +somebody got into the office and destroyed his papers. And yet, on +page 2480, he tells that the first time it ever occurred to him to +use that pencil memorandum was after the first trial was over. Can +you believe that? He was trying to steal it on the 13th of July, +1882; was trying to go over to the Government on the 5th day of +July, 1882, and did not think that he had that pencil memorandum! +Writing a letter on that day to Dorsey; giving him notice that he +was going to desert him; saying in that very letter that he had +been persuaded by Bosler to make the first affidavit; saying that +he was making preparations to go to the Government, was going to +set himself right, and yet did not remember the pencil memorandum! +Why? Because he manufactured it afterwards. He says that within a +day or two after he was out of jail he found this paper a second +time. He found it before, and laid it carefully away as a voucher. +Then he lost sight of it. Then he was trying to sell it to the +Government, and he forgot it; trying to blackmail Bosler and +Dorsey, and forgot it. When he got out of jail he found it. That +will not do. How does he say it got to his house? His wife carried +it from the office while he was in jail. And yet he would have us +believe that Dorsey broke into that office and stole all the +papers. And yet he says that was in the office, and Dorsey did not +take it. It will not do. He manufactured that paper after that +time.</p> +<p>On page 2481 Rerdell swears that he did not know that he had +that paper at that time, at the time he says his wife got the +papers. I say he did not; I say he made it afterwards.</p> +<p>On page 2490 Rerdell swears that he had those red books in the +office at 1121 I street; that he never made any effort to conceal +them. And yet Kellogg never saw one of those books; never saw +Rerdell working upon them, and never saw them in the office.</p> +<p>On page 2491 Rerdell swears that he thinks Kellogg did some work +on those red books; that Kellogg helped him (Rerdell) make the +first entries. On page 3636 Kellogg swears not only that he did not +help him to make those entries, but positively swears that he never +even saw any such books.</p> +<p>On page 3635 Kellogg swears positively that Rerdell did not keep +any books, but a private expense-book and a route-book; and that he +(Kellogg) never saw any other books; that he never saw a ledger or +journal in red leather, kept by Rerdell. He swears that he himself +kept the three books (the journal, ledger, and cash-book,) and that +Rerdell never made an entry in them.</p> +<p>On page 2512 Rerdell swears that he never imitated Dorsey's +handwriting, or tried to, in Kellogg's presence. On page 3636 +Kellogg swears that he saw him do it.</p> +<p>On the same page (2512) Rerdell swears that he never signed +Dorsey's name to show Kellogg that he could imitate it. On page +3636 Kellogg swears that he did do it.</p> +<p>I have just given you a few, gentlemen, of the corroborations of +this man Rerdell. Recollect that you cannot believe him unless he +is corroborated. If you believe him at all you have got to believe +all, unless you believe he is mistaken. Where a man comes on the +stand as an informer—and I do not call him an +informer—even in that capacity he has to be taken altogether +or not at all.</p> +<p>Now, with all these contradictions upon his head, I will now +come to the affidavit of July 13, 1882. You will remember that I +read you the letter of July 5, in which he says that Bosler got him +to make the affidavit of 1881. At page 2374 Rerdell gives an +account of this affidavit. Dorsey got him in Willard's Hotel, +locked the door, and had him. Now, he said to him, "Mr. Rerdell, I +will tell you what I am going to do with you: I am going to have +you prosecuted for perjury." Let us imagine that conversation. +Rerdell replies, "What are you going to have me prosecuted for?" +"For making the affidavit of June, 1881." "Why," says Rerdell, "in +that affidavit I swore you were innocent." Says Dorsey, "Don't you +know you swore to a lie? Do you think I would stand a lie of that +kind, sir? Do you think I will allow any man willfully, +maliciously, and with malice aforethought, to swear that I am an +innocent man? I will have you arrested to-night, sir." "Well," says +Rerdell, "my good God, ain't there any way I can get out of this?" +"Yes; make another affidavit just like it. Now, sir, you have +perjured yourself and I will arrest you for perjury unless you do +it again." "Well," says Rerdell, "when I get that done you will +have two cases against me." "I can't help it," Dorsey says. "Is +that the way you treat a friend? I swore to that lie from pure +friendship. Don't you remember you took me by both hands and begged +me, for God's sake, and for your wife's sake and your children's +sake, to make that affidavit? And now are you going to be such a +perfect devil as to have me arrested for perjury for making that +same affidavit?" Dorsey says, "Yes, sir; that is the kind of man I +am." "Well, but," says Rerdell, "don't you know the trial is going +on now? They are trying to prove, now, that you are guilty, and in +that affidavit of mine I swore you are innocent, and how are you +going to prove a man guilty when you swear that he is innocent?" +Dorsey says, "That is my business, not yours. I am going to have +you arrested." "But," says Rerdell, "you had better hold on, I tell +you." "Why?" "I have got the red book that I got in New York." +Dorsey says, "I don't care." Rerdell says, "I have got the pencil +memorandum that you made for me to open the books upon, and charge +William Smith with eighteen thousand dollars. And you wrote John +Smith first, and I changed it to Sam Jones, don't you recollect, as +otherwise there would be two Smiths? And there is the account +against J. H. Mitchell, and J. W. D., and cash, and profit and +loss." Dorsey says, "I don't care about that. I am not going to +allow a man to commit perjury. I am going to have you arrested." +Rerdell says, "You had better not have me arrested." Dorsey says, +"Why? What else have you got?" "I have got a copy of the letter +that you wrote to Bosler on the 13th of May, 1879, which you say +that you paid twenty thousand dollars to Thomas J. Brady. That copy +was made by Miss Nettie L. White." "Do you believe I care anything +about that? You have perjured yourself, and it is no difference to +me whether it was in my favor or not. Justice must be done, and I +am going to have you arrested." Rerdell says, "You had better not. +I have got a tabular statement in your handwriting, Dorsey, where +you had a column for the amount due and the amount received, and +another column for thirty-three and one-third per cent, given to +Brady, and then at the top, in your handwriting, 'T. J. B., +thirty-three and one-third.'" Dorsey says, "I don't care what you +have got." Rerdell says, "That ain't all I have got, Dorsey. I tore +out of your copy-book a copy of the letter I wrote to Bosler on the +21st or 22d of May, 1880, in which I told him that I had gone to +Brady, and that Brady said you were a damn fool for keeping a set +of books, and suggested to me to have some copies made, and I had +the copies made, and I can prove the copies by Gibbs if he does not +try not to remember that he made them. Now, go on with your +rat-killing; go on with your perjury suit." Dorsey had him already +locked up there, don't you see? But Dorsey was bent on having that +man arrested for perjury because he had sworn that he (Dorsey) was +innocent. Dorsey was implacable.</p> +<p>What else did he do? He put his hand in his pocket and said, "Do +you see those letters to that woman?" Then, sir, when he saw the +handwriting he was like that other gentlemen that saw the +handwriting on the wall, and he began to get weak in the knees, and +says, "Dorsey, I hope you are not going to have me arrested for +perjury. I am willing to do it again right now, on the same +subject."</p> +<p>Now, it turns out that at that time Dorsey did not have those +letters. Dorsey swears that he never got those letters until after +Rerdell was put upon the stand. And after he swore that, the +Government had the woman to whom the letters were written +subpoenaed. Why did they not place her on the stand? That is for +you to answer, gentlemen. That is the affidavit of July 13. +Recollect, there was a trial going on at that time in which Dorsey +was insisting that he was innocent, and although Rerdell had sworn +that he was, he was going to have him arrested right off.</p> +<p>What else did he have against Dorsey at that time? Now, says +Rerdell, "Dorsey, don't you have me arrested for perjury. I have +got a memorandum of that mining stock that was to be given to +McGrew and Tyner and Turner and Lilley for corrupt purposes."</p> +<p>What else did he have? After he had agreed to make the +affidavit, Dorsey wrote out what he wanted him to swear to, in +pencil, and gave it to him. And when he got his liberty, when he +walked out of that room a free citizen, he had all the papers I +have spoken of not only, but he had in his possession a draft, in +Dorsey's handwriting, of the affidavit Dorsey wanted him to make. +He made the first affidavit from friendship; the second from +fright. You know he never took a dollar for an affidavit. He was +not that kind of a man. You might get around him by talking +friendship or you might scare him, but you could not bribe him; he +wasn't that kind of a man. Armed with all these papers he was +frightened; so he made the affidavit of July 13—</p> +<p>Now, let us see. He admits that—I will not say every word, +but the principal things in the affidavit of June, 1881, are false. +He swore to them knowing them to be false. But he tried to get out +by saying he did not write them all. Writing is not the crime. The +crime is swearing that they are true when they are not true. It +does not make any difference who wrote it. For instance, you swear +to an affidavit, and you afterwards say, "I did not write it." "Did +you know the contents?" "Yes." "Did you swear to it?" "Yes." What +difference does it make who wrote it? And yet he endeavors to get +behind that breastwork and say, "I did not write all that +affidavit; I only wrote part of it. What I wrote was true, but what +I swore to was not." That will not do.</p> +<p>So the affidavit of July, 1882, he now swears was a lie. But he +gives a reason for writing that, that you know is utterly, +perfectly, completely false. You know that Dorsey never threatened +to have him arrested for perjury because he had sworn in favor of +Dorsey. You know it, and all the eloquence and all the genius of +the world could not convince you that at that time Rerdell was +afraid that Dorsey would have him arrested for perjury. No, +sir.</p> +<p>Now, let us take the next step. Mr. Rerdell testified, on page +2275, that this letter (32 X) was received by him in due course of +mail in 1878. Upon being asked whether he did not know that S. W. +Dorsey was here in Washington at that time, he replied that he knew +he was not. I will read it to you, gentlemen:</p> +<p>Chico Springs, P. O.</p> +<p>Mountain Spring Ranch, Colfax County, New Mexico,</p> +<p>"April 3, 1878.</p> +<p>"M. C. Rerdell, 1121 I Street:</p> +<p>"Dear Rerdell: I wish you would get fullest information in +regard to all the new post-office lettings and keep posted as to +the schemes going on in the department. There are certain routes we +want advertised and others we do not. I shall be in Washington as +soon as the 12th unless something unexpectedly happens,</p> +<p>"Faithfully,</p> +<center>"DORSEY."</center> +<p>Q. What Dorsey was that?—A. That is S. W. Dorsey's +handwriting.</p> +<p>Q. And signature?—A. Yes, sir.</p> +<p>There is where he first speaks of it. At the time that letter +was introduced, or in a little time, gentlemen, they also +introduced the envelope. I do not know that I should have suspected +the letter if they had not introduced the envelope. Whenever there +is an effort to make a thing too certain I always suspect it. When +that Morey letter was gotten up, what made me suspect it was that +they had the envelope, and I said to myself, "Why did they want the +envelope if it was clearly in the handwriting of Garfield? What +difference did it make whether it was sent to Morey or to somebody +else? What difference did it make when it came from Washington?" +The only question was, "Did Garfield write it?" And upon that +subject the envelope threw no light. When a man feels weak and +thinks that other people will know what he does not want them to +know, then it is that he wants to barricade and strengthen before +the attack. So they got up this envelope, and when I looked at that +it did not look to me as if that stamp had been through the mail. I +noticed the handwriting of "Chico Springs, N. M.," and then I +noticed the 3 or the B on the postage stamp, and then I knew that +the man who wrote "Chico Springs" never made the letter or figure +on that stamp. It is utterly impossible for the man who wrote that +"Chico Springs" to make that mark on the stamp. This stamp looked +awfully clean, and I said, "Well, I wouldn't wonder if that was an +envelope used here in the city which has been got through the mail +in some way." They had it stamped on the back and I said, "Perhaps +that was written in 1879." No. You see, if it was not written in +1879 it did not do any harm, because in 1879 Dorsey was not a +member of the Senate. Having gone out on the 4th of March, 1879, +that letter was dated in April, 1879, why then there was no harm in +his writing to Mr. Rerdell and telling him to look after the mail +business. But if it was written on the 3d of April, 1878, it went +far to show that Dorsey was personally interested at that time in +mail routes. You will notice the printed date, April 3, 1878. They +introduced that letter. I noticed that that envelope was a funny +looking thing, and that the writing on it did not correspond with +the mark on the stamp. I noticed also that upon the back they had +the stamp. I do not know how they got it. When the Post-Office +Department has possession of a paper they can put almost anything +on it.</p> +<p>When I said to Mr. Rerdell on cross-examination, not knowing +anything about the letter, "Was that not written in 1879?" he said, +'"No, sir." Said I, "Don't you know, as a matter of fact, that +Dorsey was not here on the 3d of April, 1879?" He said, "As a +matter of fact I know that he was here on the 3d of April, 1879." +"Don't you know, as a matter of fact, that he was here on the 3d of +April, 1878?" He says, "I know as a matter of fact that he was not +here on the 3d of April, 1878; he was at Chico Springs." He knew as +a matter of fact that he was here in 1879, and he swore that so as +to preclude the possibility of his having written the letter in +1879. And he swore to the positive fact that he was not here on the +3d of April, 1878, so as to show that he wrote him that letter from +Chico Springs. They wanted some letter from Dorsey in 1878, to show +that he was personally interested in these routes while in the +Senate. They submitted that letter to Mr. Boone, who was their +witness. He looks at it and he tells you that Dorsey did not write +that letter. A clear forgery. Whom else do they bring now? They +leave it right there, and by that admit that Rerdell forged that +letter. Mr. Boone, their witness, swears it. Nobody swears to the +contrary except Rerdell. Boone threw the letter from him +contemptuously, and said, "That is not Dorsey's handwriting," and +they dare not bring another witness. The country is filled with +experts, gentlemen, who know about handwriting; the United States +had plenty of men and plenty of money, and they never brought a +solitary man.</p> +<p>Now, gentlemen, do you want to know how this fellow got caught? +I will tell you. There is the letter, and they dare not put a man +on the stand to swear that it is in Dorsey's handwriting. Look it +all over. But I want to tell you how Rerdell got caught about +Dorsey being present on the 3d of April, 1878, and I might as well +tell you how I found it out. I do not want to pretend to be any +more ingenious than I am. I found it out because I made the same +mistake myself. I stumbled on that same root. I hit my toe of +heedlessness on the same obstruction. I went up to look at the +Senate journal. I opened a book to see whether Dorsey was here on +the 3d of April, 1878. You see at the bottom there of the title +page, Mr. Foreman—Washington: Government Printing Office. +1877.</p> +<p>You know I was not looking for the book of 1877, so I shut that +book up. I then took the next book and opened it, and it said at +just the same place:</p> +<p>Washington: Government Printing Office. 1878.</p> +<p>I thought it was the book. So I looked over here, and I found +that there was no session of the Senate in April, and I said to +myself, "Is that possible that there was no session in April, 1878? +Why, there must have been." But the book said "no." I looked back +here, and it still said 1878. Then I happened to look back to this +book that said 1877, and it said that the session commenced +December 3d, 1877, and consequently April 3d, would be found in the +book marked 1877 on the title page. So I turned right over here and +looked up at the top and saw the date, April 3d, 1878. He was +looking for the 1878 book, and that included April, 1879, and when +he got to April, 1879, there was no session of the Senate. So he +came right in here and swore that Dorsey was not here in 1878, but +that he was here in April, 1879. I looked in that book and found +that Mr. Dorsey, on the 3d of April, 1878, was appointed by the +Vice-President on a committee of conferees, on the part of the +Senate, together with Senators Windoin and Beck, and I saw exactly +how Mr. Rerdell made his mistake. He opened the book, and at the +bottom-of the title page it said 1877. That was not what he was +looking for. He was looking for 1878. And the book that said 1878 +showed that in April the Senate was not in session. The book that +said 1877 showed that in April the Senate was in session on April +3d, 1878. That man thought he was backed by the records of the +Senate, and thereupon he manufactured that letter. And that is the +letter sworn by Boone not to be in the handwriting of S. W. Dorsey. +Now, gentlemen, there is nothing in this world that a man would be +prevented from doing, for its baseness, who would do that.</p> +<p>There is more evidence than this. I asked Mr. Rerdell, "When you +got that letter did you understand it?" He said, "No." "Did you do +anything on account of it?" "No." "Did you know what it meant?" +"No." And yet he has the temerity to swear that he received that on +the 3d of April, 1878.</p> +<p>How did he come to spell the name Reddell? I will tell you. On +page 2275 he had a letter to go by. That is the very page on which +the Government puts in that letter. This letter is a letter of +introduction. When Rerdell manufactured that letter he had this +letter of introduction to go by:</p> +<p>Hon. J. L. Routt, Denver:</p> +<p>My Dear Governor: I wish to introduce my friend, Mr. M. C. +Reddell.</p> +<p>It was written Reddell in that letter, and when this man wanted +to manufacture one he had one in his possession that Dorsey wrote +about that time (April 14, 1879), and he noticed that in that he +spelled the name Reddell. So when he wanted to get up a fraud he +spelled the name Reddell. That is the way. There is no pretence +that Dorsey wrote that letter, and they dare not bring an expert or +another man on earth acquainted with the handwriting of Dorsey and +submit it to him and expect him to say that that is the handwriting +of S. W. Dorsey. So much for that.</p> +<p>Now, it is claimed that while Torrey was writing up Dorsey's +books, having in his possession the check stubs, he was uncertain +as to whether a charge was twenty-five dollars or twenty-five +cents, and he thereupon sent to Rerdell to ascertain the true state +of the account, so that he might open his books. Thereupon Rerdell +made the calculation in the evidence marked (94 X,) and Donnelly +wrote under it that it was right. Donnelly made that little +certificate at the bottom. Here is the important paper [submitting +94 X to the jury], another piece manufactured out of whole cloth, +not whole paper. Now, I ask a few questions about this. In the +first place, they knew that unless this was corroborated it was +good for nothing, and we find on it:</p> +<p>Lewis Johnson & Co., note due 28th October, three thousand +dollars.</p> +<p>Was that note at Lewis Johnson & Co.'s? Why did they not +bring some of the officers of that bank, if there was such a note +for three thousand dollars there? But no one was brought. And yet +they knew that everything coming from Rerdell must be +corroborated.</p> +<p>If Rerdell had come to Donnelly to find what the account was, +how did it happen to be in Rerdell's handwriting before it got to +Donnelly? Donnelly wrote this certificate at the bottom. Rerdell +had written all the facts before. If he went to Donnelly to get the +facts, how did Rerdell happen to write this before it got to +Donnelly? It is like me wanting to get some information from a man, +and writing the information before going to him.</p> +<p>Now, if Donnelly wrote that after Rerdell had written, where did +Rerdell get the information? If Donnelly had the books, Donnelly +should have given the information. If Rerdell had the books, why +did he want to go to Donnelly for information? And if Donnelly had +the books, how did Rerdell write the information before he went to +Donnelly? Then if he wanted that information for Torrey, why did he +not send it to him? How does it happen that Rerdell wrote out the +information for Donnelly, then got Donnelly to certify it, because +Torrey had asked it? And then how does it happen that Rerdell kept +it? It seems to me that that ought to have been sent to Torrey. +Torrey wrote to Rerdell for information; Rerdell wrote it all down, +and then got Mr. Donnelly to say it was so. If Donnelly had the +books, Donnelly should have given the information. If Rerdell had +the books, he did not have to go to Donnelly for information. That +is another manufactured paper. As I say, how does it happen to be +in the possession of Rerdell? They claim that it was for Torrey's +benefit. I believe when Torrey was on the stand they asked him if +there was not some dispute about thirty-five cents. Now they bring +that here to show that there was a dispute about twenty-five cents. +Was there any reason for supposing that it was twenty-five cents? +No, except that it was in the dollar column, that is all. Of what +use was Donnelly's statement after Rerdell had made the +calculation? Nobody on earth can tell why that was given. Why did +they not bring some of the books or clerks from Lewis Johnson & +Co.'s Bank to show that there was a note there in October for three +thousand dollars.</p> +<p>There is another little matter, a conversation between Rerdell +and Brady. Rerdell said he had a conversation with Brady in which +he told him about the Congressional committee; that he was summoned +to bring his books. Brady was astonished that Dorsey would be "Damn +fool enough to keep books," and suggested to have them copied. If +this is true, Brady at that time made a confident of Rerdell. If it +is true, Brady at that time admitted to Rerdell that he (Brady) was +a conspirator; that he had conspired with Dorsey. And yet Brady +says that he never had but three or four conversations, I believe, +with this man, and Rerdell himself admits that he never had but +four or five, and when he is pinned down on cross-examination he +accounts for enough of these interviews, without any interviews on +the subject of the books, to exceed all that he ever had. Do you +believe that he ever had any such conversation? Do you believe that +Brady would make a confident of him? Do you believe that Brady +would substantially admit in his presence that he had been bribed +by Dorsey? I do not.</p> +<p>Now, in order that you may know what this man is, I want you to +have an idea of his character. So we will come to the next point. +Mr. Rerdell admits that he sat with the defendants during the early +part of this trial; that he was willing to make a bargain with the +Government; that he proposed to the Government that he would sit +with his co-defendants, and would challenge from the jury the +friends of the defendants. Did any man wearing the human form ever +propose a more corrupt and infamous bargain? That proposition ought +to have been written on the tanned hide of a Tewksbury pauper. He +went to the Government and deliberately said, "Gentlemen, I am +willing to make a bargain with you. I am willing to sit with my +co-defendants, pretending to be their friend, and while so +pretending I will challenge their friends from the jury. I will so +arrange it that their enemies may be upon the panel." "And why do +you say that, Mr. Rerdell?" "In order to show my good faith towards +the Government." He made the first affidavit for friendship, the +second for fear, and he made this proposition to show his good +faith. There never was a meaner proposition made by a human being, +under the circumstances, than that. He proposed to do it. Mr. +Blackmar says that the proposition was rejected; but that does not +affect Mr. Rerdell. He was willing to carry it out.</p> +<p>What more does he swear? He swears that he tried to carry it +out. In other words, that although it had been rejected, that made +no difference to him. Mr. Blackmar says they would not do it. +Rerdell swears that he tried to: went right along and did his level +best; and if the Court had allowed him four challenges he would +have challenged four friends of the defendants from the jury.</p> +<p>What more does he admit? That when the Court decided that all of +us together only had four, he endeavored to challenge one. Why? +Because he believed he was a friend of the defendants; because he +believed he would be against the prosecution; and he wanted to get +the friends of the defendants away. Why? To the end that the +defendants might be tried by an enemy. That is what he was trying +to accomplish.</p> +<p>Let us take another step. That proposition reveals the entire +man; that takes his hide off; that takes his flesh all off; that +leaves his heart bare, naked; you can see what he is made of, and +it shows the workings of his spirit, the motions of his mind; and +you see in there a den of vipers; you see entangled, knotted +adders. And yet that man is put upon the stand stamped by the seal +of the Department of Justice, and that department says to twelve +men, "Here is a gentleman that you can believe; that gentleman +proposes to sell out his co-defendants to us, but we would not buy; +he is an honorable kind of gentleman, but we would not buy."</p> +<p>Mr. Merrick. It should be interpolated there—if you will +pardon me a moment—that the Government refused to accept +Rerdell until he himself had pleaded guilty.</p> +<p>Mr. Ingersoll. I understand that. I say now, Mr. Merrick, that I +would not for anything in the world, on a subject of that kind, go +the millionth part of an inch beyond the testimony. Although you +and I have not been very cordial friends during this trial, and +neither have I and Mr. Bliss, yet if I know myself I would not for +anything in this world put a stain upon your reputation, or upon +the reputation of either of you, by misstating a word of this +testimony. I would not do it. I am incapable of it. I admit that +the evidence is that the proposition was rejected, but I also +insist that the Government knew the proposition had been made, +otherwise it could not have been rejected. And so I say that after +this man had made that proposition, infamous enough to put a blush +upon the cheek of total depravity, the Government put that witness +upon the stand, sealed with the seal of the Department of +Justice.</p> +<p>Now, we will go another step. He sat with us from day to day, +gentlemen, as you know, went in and out with us, as one of the +co-defendants. In the meantime—and there is a laughable side +even to this infamy—he borrowed money from Vaile. He went to +him as a co-defendant, as a friend, and said, "I want a hundred and +forty dollars; I want to buy bread and meat to give me strength to +swear you into the penitentiary." And Vaile gave him the money. +Would you believe a man like that? You cannot think of a man low +enough, you cannot think of a defendant vile enough to be convicted +on such testimony.</p> +<p>Now, we will go another step. He wanted to make that bargain +with Mr. Blackmar. Mr. Blackmar swears that he told Mr. Merrick of +it, and that Mr. Merrick rejected it; would have nothing to do with +it.</p> +<p>At that time Mr. Woodward had two affidavits of Rerdell in his +possession—an affidavit of Rerdell, made in September, +supplemented by another affidavit, I believe, of November, that he +made in the city of Hartford, covering seventy pages. When Mr. +Woodward saw Mr. Rerdell sitting with the defendants, pretending to +go with them, he (Woodward) had those two affidavits of Rerdell in +his pocket. Did the prosecution know that Rerdell had made the two +affidavits? I do not say they did, gentlemen. I only go right to +the line of the evidence; there I stop.</p> +<p>Another thing: Mr. Blackmar swears that they had a signal to +look at the clock, and that night Rerdell would meet him at six or +seven o'clock, I have forgotten the hour; but Mr. Blackmar could +not sit in his room all the time waiting for him, and so he gave +him a certain signal, so that he would know he was to wait that +night. Then what happened? Then Mr. Rerdell came to Mr. Blackmar +and gave to him written reports. Of what? I do not know. He sat +with the defendants; he gave to Mr. Blackmar written reports. What +were they? I do not know. What did Mr. Blackmar do with them? He +handed them to Colonel Bliss. What did he do with them? I do not +know. Did he read them? I do not know. Did he know that they were +in the handwriting of Mr. Rerdell? I do not know. That is for +you.</p> +<p>Still another point:</p> +<p>Mr. Bliss, after this jury had been impaneled, stood before them +while Rerdell was sitting with us as a defendant, and said:</p> +<p>The ranks of the defendants are closed up, and +he—Rerdell—stands before you now as one of the +defendants, whose testimony—Meaning the confessions made to +MacVeagh and to Postmaster-General James—will be accepted by +the Court and by you, &c.</p> +<p>The question arises, Did Mr. Bliss know at that time that Mr. +Woodward had in his pockets two affidavits made by Rerdell, one +made in September and the other in November? Did he know at that +time that Rerdell had given his papers over to Mr. Woodward? Did he +know at that time that he had offered to challenge the friends of +the defendants from the panel? And so knowing, did he give us to +understand that Rerdell had passed from the influence of the +Government and was now acting as one of the co-defendants? Is it +possible that Mr. Bliss would furnish Rerdell with a mask behind +which he could gather information from the defendants and sell it +to the Government for immunity? Is it possible? Those were the +circumstances. I do not say that he knew. I do not know.</p> +<p>Gentlemen, I do not believe that it is the duty of a Government +to prosecute its citizens. I do not believe that it is the duty of +a Government to spread a net for one of the people whom it should +protect. I do not believe in the spy and informer system. I believe +that every Government should exist for the purpose of doing justice +as between man and man. The mission of a Government is to protect +and preserve its citizens from violence and fraud. The real object +of a Government is to enforce honest contracts, to protect the weak +from the strong; not to combine against the one, not to offer +rewards for treachery, not to show cold avarice in order that some +citizen may have his liberty sworn away. The objects of a good +Government are the sublimest of which the imagination can conceive. +The means employed should be as pure as the ends are noble and +sacred. The Government should represent the opinions, desires, and +ideals of its greatest, its best, and its noblest citizens. Every +act of the Government should be a flower springing from the very +heart of honor. A Government should be incapable of deceit. The +Department of Justice should blow from the scales even the dust of +prejudice. Representing a supreme power, it should have the +serenity and frankness of omnipotence. Subterfuge is a confession +of weakness. Behind every pretence lurks cowardice. Our Government +should be the incarnation of candor, of courage, and of conscience. +That is my idea of a great and noble Government.</p> +<p>The next point to which I call your attention is the withdrawal +of the plea of not guilty by Mr. Rerdell. You probably remember the +occurrence. I will read to you what he said upon that occasion. I +find it on page 2202:</p> +<p>After mature reflection and a full consideration of the whole +subject, I have determined to abandon any further defence of myself +in this case, and put myself at the mercy of the Court and the +Government; and if desired to do so by the counsel for the +Government, to testify to all my knowledge of any facts with +reference to any of the defendants either against or for them, +myself included. Therefore, I now in person ask leave to withdraw +my plea of not guilty, heretofore interposed, and enter my plea of +guilty, and in so doing put myself upon the mercy of the Court I +feel this to be a duty I owe to myself, my family, and to truth. I +have arrived at this fixed determination upon my own reflections +and responsibilities, and without any previous consultation with my +counsel, who, I believe, would not have advised me to this course, +and whom I now relieve from all and any responsibility for the +course I have adopted.</p> +<p>Now, gentlemen, is it not wonderful that if Mr. Rerdell was +about to tell the truth as a witness in this case, he could not +even withdraw his plea of not guilty without misstating the facts? +Is it not wonderful that he felt called upon at that time to tell +several falsehoods? He says that he took this step upon his own +responsibility. He says that he did it without the advice of his +counsel. He tells you that he believes if he had asked his counsel, +his counsel would have been opposed to it. He says he is willing to +be a witness for the Government if the Government desires it, +leaving you to infer that at that time no arrangement had been made +for him to be a witness; that it was all in the regions of +uncertainty; that he had withdrawn into the recesses of his own +mind, and consulting with himself and nobody else had made up his +mind to throw himself upon the mercy of the Government and the +Court, and took that step without even allowing his counsel to know +what he was about to do.</p> +<p>But he speaks further on the subject. I read from page 2523. I +was then examining him:</p> +<p>Q. How did you come to do it?—A. I finally made up my mind +to what I would do. I talked it over the evening before with my +counsel.</p> +<p>He so states under oath; and yet when he stood up before this +Court and withdrew his plea of not guilty, he said he acted without +the knowledge of his counsel—I read this to show you that the +statement he made to the Court at the time he withdrew his plea was +absolutely false. What next? I will go on a little further. The +same man Rerdell, after he had made up his mind to go over to the +Government; after he had made up his mind to swear away, if it was +within his power, the liberty of S. W. Dorsey, admits, on page +2525, that he endeavored to get five thousand dollars from Mr. +Dorsey.</p> +<p>On page 2589 Mr. Rerdell swears positively that he did not know +that he was to be used as a witness for the Government until he was +called in court to take the stand. Let us look at the evidence of +Mr. Bliss on page 2590. I will read you what he said:</p> +<p>Mr. Bliss. Your Honor, we propose to show, in substance, that +this witness, for reasons with which we have nothing to do, +connected with his own views of his own safety, from an early +period was desirous of being accepted by the Government as a +witness; that the counsel in the case refused to communicate with +him or to have anything to do with him until, in the presence of +his own counsel, he was brought to Mr. Merrick's office, and there +the whole thing was explained; and that then for the first time the +Government accepted his willingness to be a witness; and they did +it under circumstances which held out to him no inducement and +which involved no training or anything of the kind by anybody +representing the prosecution.</p> +<p>Now, let us go to the next step. I want to be perfectly fair. On +page 2591 Mr. Merrick asked Mr. Rerdell this question:</p> +<p>Q. When did you first learn that you would be put upon the stand +after pleading guilty?—A. It was the day before my plea was +made in court.</p> +<p>Yet when he rose to withdraw the plea he expressed his +willingness to go upon the stand for the Government, leaving you to +infer that no arrangement had been made, and he afterwards finally +swore that he did not know that he was to be called until he was +called.</p> +<p>These things, gentlemen, you must remember.</p> +<p>On page 2515 Rerdell swears that on the Sunday after he got out +of jail he proposed to Mr. Lilley to have Lilley act for him, and +authorized Lilley to say to the Government that if the Government +would accept him he would go on the stand and rebut Vaile. He told +him that he had in his possession a letter or two of Mr. Vaile's. +Rerdell tells you that he made this proposition on the 16th or 17th +of September, 1882, which was after he made the affidavit of June, +1881. On the same page he said it was just after Vaile went off the +stand. That is my recollection. In the last trial Vaile testified +on the 4th of August, 1882. So about that time Rerdell, according +to his testimony, went to Lilley and made a proposition to sell out +then. When he made the affidavit of July 13, 1882, the trial was +then in progress. The very next month, August, while the trial was +still going on, that same man, having made the affidavit of July +13, 1882, went to his attorney, Mr. Lilley, and authorized him to +say to the Government that Mr. Rerdell would take the stand to +swear against Mr. Vaile. Remember another thing, gentlemen. The +only thing he offered to do then to insure his own safety was to +swear against Vaile. He did not offer to swear against Dorsey. He +did not authorize Mr. Lilley to tell the Government about the +pencil memorandum and the tabular statement and his letter to +Bosler and Doisey's letter to Bosler and the Chico letter. Not a +word. He simply went and wanted to sell some letters he had that +had been written by Vaile. Why did he make that offer? Because that +was all he had.</p> +<p>On page 2517 he says that nothing was said about pardon, but he +says that Lilley told him that he thought he could get him off. +What does that mean? That means pardon. On page 2518 he swears that +he saw Woodward in November in Hartford, and Woodward and he wrote +out the statement, covering, I believe, about seventy pages of +legal cap. Then Mr. Rerdell, on page 2519, swears that he never +made an affidavit after that. Then he admits, on the same page, +that the day before he came into court he met Mr. Woodward and made +another affidavit. That was supplementary to the first. In the +meantime he found some new papers. So we find, according to his +testimony, these affidavits:</p> +<p>On page 2521 we find that he made an affidavit in June, 1881. +Remember, gentlemen, that he swore to that affidavit three or four +times.</p> +<p>He made another affidavit in July, 1882, and another in +September and November of the same year, and another in February, +1883. And yet he swears that he was not to have immunity.</p> +<p>Now, gentlemen, one point more about his plea of guilty. After +having withdrawn his plea of not guilty, after rising in court and +solemnly saying that he was guilty, and that he was guilty as +charged in the indictment, which says that Rerdell conspired with +Brady and Vaile and Miner and John W. Dorsey and S. W. Dorsey and +Turner, that they all conspired, and that all the false affidavits +and false petitions and false everything else mentioned in the +indictment were made for the common benefit of all, then on page +2570 he solemnly swears that he never entered into any conspiracy +or agreement with the defendants mentioned in the indictment or any +of them for the purpose of defrauding the Government. When I asked +him, With whom did you conspire, when did you conspire, and what +was the conspiracy? he could not tell; and yet he had stood up in +court and admitted that he was guilty, and then on oath denied it. +Did he not swear himself that after the division was made in the +routes Stephen W. Dorsey had not the interest of a cent in any +route that went to Vaile or Miner? Did he not also swear that Vaile +and Miner had not the interest of one cent in any route that went +to Stephen W. Dorsey? Did he not swear that they were not mutually +interested, and yet did he not stand up in court, and by a plea of +guilty say that they were not only mutually interested, but he was +one of the interested parties himself? It seems impossible for that +man to tell the truth on any subject whatever. On page 2571 he +swears he never made any agreement with Vaile to defraud the United +States. He stood up in court and admitted, that he had. He swore +that he never made any agreement with John W. Dorsey. He admitted +that he had. He swore that he never made any agreement with S. W. +Dorsey, and yet stood up in court and admitted that he had.</p> +<p>Now let us see whether he expected immunity. He swears that he +was taken to Mr. Merrick's office by Mr. Woodward and his counsel. +What Mr. Merrick told him we find on page 2590:</p> +<p>Q. And did I not say that, under the circumstances, the +Government would have nothing to do with you unless you pleaded +guilty?—A. You did.</p> +<p>Q. And that if you pleaded guilty you had nothing to trust to +but the mercy of the Government and the Court?—A. That is +what you did, sir, exactly.</p> +<p>Now, on page 2523:</p> +<p>Q. Was it not arranged that Mr. Woodward was to come to your +house and then take you to one of the attorneys for the +prosecution, for the purpose of arranging the terms and conditions +upon which you were to take the stand?—A. It was not.</p> +<p>In another place he swears that it was, and that the arrangement +was carried out.</p> +<p>The next point I wish to make, if the Court please, is that +whenever what is called an accomplice or an informer turns what is +called State's evidence, and whenever he is permitted by the court +to be sworn as a witness in a case, there is then upon the part of +the Government an implied promise that if he tells the truth he +shall not be punished. I read from the Whiskey cases, 9 Otto, page +595. Mr. Justice Clifford delivers the opinion of the court.</p> +<p>Courts of justice everywhere agree that the established usage is +that an accomplice duly admitted as a witness in a criminal +prosecution against his associates in guilt, if he testifies fully +and fairly, will not be prosecuted for the same offence, and some +of the decided cases and standard text-writers give very +satisfactory explanations of the origin and scope of the usage in +its ordinary application in actual practice.</p> +<p>The Court. What point are you now making to the Court?</p> +<p>Mr. Ingersoll. I am making this point: It appears from the +evidence that Mr. Wilshire, the attorney of Mr. Rerdell told him at +the time he was making up his mind whether he would go to the +Government or not, about the whiskey cases.</p> +<p>I make the point that when an accomplice turns State's evidence +the State cannot prosecute him after that if he testifies fully and +fairly; that the usage is immemorial, and that there is not an +exception in the records of all the cases in the books; +consequently that when Mr. Merrick told him, "You must look simply +to the Government and to the Court and you will have just exactly +what the law gives you and no more," his remarks meant that the law +gave him perfect immunity, provided he went upon the stand and +swore truthfully.</p> +<p>The Court. You have demonstrated, as far as you have been able +to, that he has not sworn truthfully.</p> +<p>Mr. Ingersoll. He has not; he has not; and if the Government +will act fairly with him he will get no immunity.</p> +<p>When he went to the Government he understood the law to be that +if he swore fully and fairly, or if he swore in such a way that +they could not prove that he did not swear fully and fairly, he was +to have immunity. He understood that the more he swore against the +defendants the better was his chance for immunity. He knew that the +Government would never complain of any lie he swore against the +defendants.</p> +<p>Now, the next question is what is the law of accomplices, of +informers? There was a remark made by Mr. Bliss in his speech, that +they had plenty of evidence in this case without the testimony of +Mr. Walsh or Mr. Moore or Mr. Rerdell; plenty of evidence without +the testimony of Mr. Rerdell. If that had been so then the +Government had no right to put Mr. Rerdell on the stand. There is +but one excuse for using the testimony of a man who pleads guilty, +and that is that without his testimony a conviction cannot, in all +probability, be obtained. And upon that point I refer to 10 +Pickering, 478, and to 9 Cowen, 711; and not only upon that point, +but upon the point I made at first, that whenever you put such a +man upon the stand that of itself amounts to a promise of absolute +immunity:</p> +<p>The object of admitting the evidence of accomplices is in order +to effect the discovery and punishment of crimes which cannot be +proved against the offenders without the aid of an accomplice's +testimony. In order to prevent this entire failure of justice +recourse is had to the evidence of accomplices.—I Phillips on +Evidence, 107.</p> +<p>If, therefore, there be sufficient evidence to convict without +his testimony, the court will refuse to admit him as a +witness.—Roscoe's Criminal Evidence, 127.</p> +<p>Neither do I believe that Mr. Rerdell had a right to go upon the +stand until his case was finally disposed of. Precisely the same +language is used by Wharton on Criminal Evidence, 439:</p> +<p>An accomplice is used by the Government because his evidence is +necessary to a conviction.</p> +<p>That is the opinion of Mr. Justice MacLean, in 4 MacLean's +Circuit Court Reports, 103.</p> +<p>Mr. Merrick. If not improper I may remark that all those cases +refer to a condition of things prior to the trial in which the +party appears as the witness.</p> +<p>Mr. Ingersoll. The usual question is—and the court +determines that question—whether a man shall be a witness or +not.</p> +<p>The Court. How can the court determine that without passing upon +the evidence in the case? That is not the duty of the court; it +belongs to the jury.</p> +<p>Mr. Ingersoll. The prosecuting attorney has to pass upon that +himself when he makes up his mind to put him upon the stand; and he +only has the right to do that when he believes that no conviction +can be had without that testimony.</p> +<p>The Court. Then it belongs to the prosecuting attorney.</p> +<p>Mr. Ingersoll. I go further than that, and say that the +prosecuting attorney cannot do that without consultation with the +court, and without saying to the court that he believes no +conviction can be had without that testimony.</p> +<p>Mr. Merrick. May I be allowed to suggest a point which probably +you would like to comment upon—that all these cases refer to +accomplices prior to the trial. My own opinion in reference to the +case was that I would not put Rerdell upon the stand until he had +pleaded guilty.</p> +<p>The Court. I do not see the ground for the distinction between +the cases. Undoubtedly, when an accomplice goes over to the +Government and offers his testimony, he does it always in the hope +of pardon or immunity from prosecution.</p> +<p>Mr. Ingersoll. That is all I want at present. I want it +understood, if the Court please, that I shall argue to the jury +that at the time he made up his mind to go to the Government, he +understood that that meant immunity.</p> +<p>The Court. Oh, well, of course it did.</p> +<p>Mr. Ingersoll. The next point is that the Court has to take all +his story or none; and I read from the second volume of Starkie on +Evidence, side-page 24:</p> +<p>In judging of the credit due to the testimony of an accomplice, +it seems to be a necessary principle that his testimony must be +wholly received as that of a credible witness or wholly rejected. +His evidence on points where he is confirmed by unimpeachable +evidence is useless. The question is whether he is to be believed +upon points where he received no confirmation. And of this the jury +are to form their opinion from the nature of the testimony, his +manner of delivering it, and the confirmation which it receives +derived from other evidence which is unsuspected. If his character +be established as a witness of truth, he is credible in matters +where he is not corroborated. If, on the other hand, +nothwithstanding the corroboration upon particular points, doubts +and suspicions still remain as to his credit, his whole testimony +becomes useless.</p> +<p>That is the point I want to make. If they are only to take his +evidence where it is corroborated, they might as well have had the +corroboration in the first place without him.</p> +<p>Now, gentlemen, the evidence, in my judgment, shows, and shows +beyond a doubt—and I believe it is now admitted—that at +the time Mr. Rerdell made up his mind to go to the Government he +expected that he was to have absolute immunity. You must judge of +his evidence in the light of that fact, in the light of that +knowledge, in the light of what had been told him by his counsel. +Now, it is for you to say. You know something of this man. You have +seen him from day to day. You saw his manner upon the stand. Why, +they tell you that at one time he was overcome with emotion, and +that that is evidence that he was telling the truth. It may be that +there is left in that man some little spark of goodness still. When +he was swearing, or endeavoring to swear, away the liberty of the +man who had been his friend, may be at that time the memory of the +past did for a moment rush upon him. He may have remembered the +thousand acts of kindness; he may have remembered the years of +liberality; he may have remembered the days that he had spent +beneath that hospitable roof; he may have remembered the wife and +children; he may have remembered all these things, and for just +that moment he may have realized what a wretch he was. In no other +way can you account for his having emotion.</p> +<p>But I am about through with that gentleman. I shall not take up +your time in the remainder of my speech by commenting upon Mr. +Rerdell. Let us finish his testimony now; let us put him out of +sight; let us put him in his coffin, close the lid, nail it +down:</p> +<p>First nail—affidavit of June 20, 1881; drive it in.</p> +<p>Second nail—the letter of July 5, 1882, when he says that +affidavit of 1881 was made by the persuasion of Bosler; drive it +in.</p> +<p>Third nail—affidavit of July 13, 1882, where he swears +that they were all perfectly innocent.</p> +<p>Fourth nail—the pencil memorandum; drive that in.</p> +<p>Fifth nail—the tabular statement that gave thirty-three +and one-third per cent, to Brady; drive it in.</p> +<p>Sixth nail—his pretended letter to Bosler telling about +the advice of Brady; drive that in.</p> +<p>Seventh nail—the letter he pretends that Dorsey, on the +13th of May, 1879, wrote to Bosler, the copies being made by Miss +White; drive that in.</p> +<p>Wind his corpse up in the balance-sheets from the red books made +by Donnelly.</p> +<p>Then you want a plate for his coffin. Let us paste right on +there the Chico letter, April 3, 1878.</p> +<p>Now, we want grave-stones. Let us take the red books, put one at +his head and one at his feet.</p> +<p>And let his epitaph, written upon the red book placed at his +head, be—Up to this moment I have been faithful to every +trust.</p> +<p>My prayer to Gabriel is, "When you pass over that grave don't +blow." Let him sleep. There are, there never were, there never will +be twelve honest men who will deprive any citizen of his liberty +upon the evidence of a man like Mr. Rerdell. It never happened; it +never will.</p> +<p>And now, gentlemen, it becomes my duty to answer a few points +made by the gentlemen who have addressed you on behalf of the +Government. The first gentleman who addressed you was Mr. Ker, and +he had something to say—considerable to say—about what +are known as the Clendenning bonds.</p> +<p>They claim, gentlemen, first, that an immense fraud was in view +when these proposals—I think they are proposals—with +accompanying bonds and oaths of sureties were sent to Mr. +Clendenning. I wish to give you, in the first place, my explanation +of this paper. See if I understand it. If you sent this paper to +that officer or to that gentleman as a form to guide him in making +up the bonds, you would only fill up that portion of the bond in +giving him a sample which you wanted him to fill up, and you would +fill it up in order to show him exactly how he was to fill it up; +and you would leave out that part which was already filled up in +the bond. That is exactly what was done in this case. There was not +one of those bonds that had an oath of the surety or the names of +the sureties, because they were unknown. The names were unknown, +and the amounts that the postmaster would certify to, and so all +that was left in blank in the bond sent. But this being only a +sample, it was sent to him so that he might know how to fill up the +bonds that were sent. Consequently that portion which was +absolutely blank in the bond sent would be filled up as a guide to +him, and that portion which was filled up in the bonds sent would +be left blank in the guide, because he had nothing to do with that +part. Now, that is all there is to it.</p> +<p>What was left out, as they claim? Why they claim that the name +of the bidder was left out and the amount of the bid. It makes no +difference. That is not the slightest evidence of fraud, is it?</p> +<p>What was the next thing? They were never used, never. No bond +included in that bundle was ever accepted by the Government. No +bonds were ever made, no contract ever based upon them, not a +solitary cent taken from the Government by those papers. Why, then, +this secrecy? Because when a man is in this business he does not +want anybody else to know that he is bidding, in the first place; +and, in the second place, he does not want anybody to know the +amount of the bid. If the amount of the bid is put in, then the +persons going security will know it, and they may tell. The +postmaster who approves the security will know it, and he may tell. +The object of the secrecy is not to defraud the Government, but to +prevent other people finding the amount of the bid and then +underbidding. That is the object, and it is the only object. And +yet this little, poor, dried-up bond, soaked in the water of +suspicion, swells almost to bursting in the minds of the counsel +for the prosecution. There is nothing of it. It was never worthy of +mention, in the first place. You will never think of it when you +retire. It will never enter your minds; but if it does, remember +that the object of the secrecy was simply as a precaution against +other bidders, and had nothing whatever to do with the +Government.</p> +<p>There is one other point. I believe Mr. Dorsey did say, in his +examination-in-chief, that he did not talk to anybody about it, and +it afterwards occurred that he did go and ask Mr. Edmunds whether +what he had asked Clendenning to do was illegal or improper. To +that contradiction you are welcome.</p> +<p>Mr. Ker gives the date of Boone's circular to postmasters asking +for information, and says it was dated December 1, 1879. Thereupon +Mr. Merrick corrects him, and says it was in 1878. The Court does +the same. As a matter of fact, these circulars were dated December, +1877. Gentlemen, I just simply speak of this to show how easy it is +for people to be mistaken. Those circulars were gotten up for the +purpose of getting information before bidding. All the bids were +put in in February, 1878. The circulars were sent out, I believe, +in November and December, 1877. And yet upon that one point Mr. Ker +is mistaken two years.</p> +<p>On page 4512 Mr. Ker states that Miner, in April, 1878, said to +Moore that it all depended upon affidavits of the contractors, and +that "they were all good affidavit men." The object of this, if it +had an object, was to show that this conspiracy was entered into +with Moore, and that S. W. Dorsey was a part of it in April, 1878. +The evidence of Moore is that the conversation took place, not in +April, but in July, 1878, at the city of Denver. And yet Mr. Ker +tells you that it was in April. 1878. It is not, perhaps, a very +material point, but it simply serves to show you the manner in +which this evidence is repeated to you by the counsel for the +prosecution.</p> +<p>At page 4537 Mr. Ker says that before J. W. Dorsey went West he +made an arrangement with his brother to sell out his interest for +ten thousand dollars; that he did this before he started West; that +he did it before there was any service put on; and that these +contracts were taken at such low figures; yet John W. Dorsey had +raised his interest up to ten thousand dollars. Mr. Ker tells you +that the evidence shows that before any service was put on and +before John W. Dorsey went West he tried to sell out his interest +for ten thousand dollars. Now, what was the object in making this +statement, unless it was pure forgetfulness? Why it was to connect +Vaile with this business some time in April, 1878.</p> +<p>On pages 4100 and 4102 J. W. Dorsey swears that he was here in +Washington in November, 1878; before that time he had gone to the +Tongue River route; he had come back from Bismarck; and it was +then, not in April; it was then, not before he went West; it was +then, not before any service was put on, that he talked with Vaile +about selling out to him for ten thousand dollars; and it was in +November that he left the instructions for his brother to sell to +Vaile. It was not in April; it was not before he went West; it was +not before any service was put on.</p> +<p>At page 4540 Mr. Ker states that—Dorsey held thirty-three +routes, and there was not one of them, I suppose, that was not +expedited to the fullest extent.</p> +<p>What evidence is there of that? Is there any evidence that any +route of Dorsey's was expedited not mentioned in this +indictment?</p> +<p>Did not Mr. Ker know whether the routes had been expedited or +not? Did not I offer in this court to prove what was done with +every solitary route we had? I say to the gentleman that the other +routes were not expedited. I say to the gentleman that only two +other routes were, and we were not interested in them. And I say +also that they know the record, and they knew the record when this +statement was made; but they may have forgotten it. But is it fair, +gentlemen, for a prosecuting officer to state to you that he +supposed all the routes of Dorsey were expedited? One of those in +the indictment was not expedited; and not a route outside of the +indictment belonging to Dorsey, in which he had an interest, was +expedited. So much for that statement.</p> +<p>At page 4546 you are told by Mr. Ker that—Nobody ever +heard of expedition on a route before.</p> +<p>We proved what form of contracts had been in the PostOffice +Department for twenty years, and proved that in every one of them +there was a clause for expedition. So much for that evidence, +gentlemen.</p> +<p>At page 4546 Mr. Ker tells us that J. W. Dorsey +testified—That the routes were taken so low as to cut out +other people, but that they knew they were to be expedited, and +they knew they were to be increased.</p> +<p>J. W. Dorsey testified upon that subject, and his testimony will +be found at page 4085:</p> +<p>Q. Did you have an arrangement by which you should bid an +extremely small amount on the routes, with the further +understanding that the service was to be increased and +expedited?—A. No, sir; I never thought of such a thing.</p> +<p>And in his entire testimony in chief and cross, I believe there +is not another question on that subject.</p> +<p>On page 4549, referring to the letter of John M. Peck, which was +in fact written by Miner, Mr. Ker says:</p> +<p>Cedarville ought to have had as many mails as the other points +between, according to the order, but they were going to supply it +only once a week. .</p> +<p>As a matter of fact, gentlemen, this letter was written on the +22d of October, 1878, and at the time the letter was written the +mail, according to the contract, was carried only once a week on +that route, and consequently Cedarville would have had exactly the +same mail as any other point; that is to say, once a week.</p> +<p>Page 556 of the record shows that three trips a week were put +upon this route to Loup City with a schedule of thirteen hours, but +not until the 10th of July, 1879, nine months after this letter was +written.</p> +<p>On page 4609 Mr. Ker, in commenting upon an affidavit on the +Toquerville and Adairville route, reads from the evidence of John +W. Dorsey, citing page 3945, and ends at this question and +answer:</p> +<p>Q. It was done so entirely, was it not?—A. It ought to +have been so.</p> +<p>Now, let me read you the balance:</p> +<p>Q. Was it not so done?—A. No, sir.</p> +<p>Q It was not?—A. No, sir.</p> +<p>Q For whose benefit was it done?.—A. He—Meaning +Rerdell—stole five thousand dollars on that route, or very +nearly that—four thousand nine hundred dollars on that very +route.</p> +<p>Q. When did he steal that five thousand dollars?—A. About +a year ago or a year and a half; I do not remember the time.</p> +<p>Q. From whom?—A. From Mr. Bosler and myself.</p> +<p>Q. At what time?—A. I should think in February, 1882.</p> +<p>The question now arises, did Mr. Rerdell take this money as +charged? Read now from the record, at pages 734 and 735, and you +will find in the last line of the tabular statement introduced in +this case that on this very route four thousand eight hundred and +twenty-seven dollars and eighty-three cents was paid to M. C. +Rerdell as subcontractor on that route. We also find that it was +paid on the 4th of February, 1882. This is the money that Dorsey +swears Rerdell stole, and that gentleman never took the stand to +deny it.</p> +<p>At page 4616, Mr. Ker, after going over all the evidence with +regard to the affidavits as to the impossibility of the number of +men and horses doing the service rendered necessary by the +affidavit, comes to the following conclusion: That under the oath +the proportion was, as nine to twenty-three; that under the oath of +Johnson the real proportion should have been, and was, eight to +twenty-two.</p> +<p>In other words, the real proportion, according to Mr. Ker's own +statement, would have taken more money from the Treasury than the +wrong proportion made under the fraudulent affidavit, and that was +nine to twenty-three. Nine into twenty-three goes twice and +five-ninths; that is, two hundred and fifty-five per cent, and a +fraction. That is the fraudulent proportion. Mr. Ker says that the +real proportion was not as nine into twenty-three, but as eight to +twenty two. Eight into twenty-two goes twice and six-eighths; that +is to say, two and three-quarters; that is to say, two hundred and +seventy-five per cent. The fraudulent proportion, according to his +claim, only gave us two hundred and fifty-five per cent. The real +proportion, which Mr. Ker admits was right, according to the +evidence of Johnson, would have given us two hundred and +seventy-five per cent. In other words, we got twenty per cent, less +under the fraud than we would under the evidence of Johnson that +Mr. Ker admits to be correct. Finding that it is twenty per cent, +less under the fraudulent affidavit than under Johnson's estimate, +he shouts fraud.</p> +<p>On page 4617 Mr. Ker tells us that Sanderson "had no more to do +with the route than you or I had." On page 731 I find that Mr. +Sanderson drew all the money on the route from Saguache to Lake +City, I believe, with one exception—the third quarter of one +year—1878, it may be. He drew every dollar upon that route, +anyhow, up to February 17, 1882, except for one quarter. And yet +Mr. Ker stood up before you and said that Sanderson "had no more to +do with the route than you or I had."</p> +<p>Let us see if we have any more evidence. I find on page 3271 a +subcontract executed on route 38150, from Saguache to Lake City, by +Miner, Peck & Company to Sanderson for the whole time until +June 30, 1882. I find that subcontract is signed by John R. Miner +and J. L. Sanderson. This contract was to be from the 1st of July, +1878, and was made the 15th of May, 1878, and here it is in +evidence. The evidence is that the contract was made between Miner, +Peck & Company and Sanderson; the evidence also is that +Sanderson drew the pay. And yet Mr. Ker stands up before you and +says that Sanderson "had no more to do with the route than you or I +had."</p> +<p>The subcontract, gentlemen, states that Sanderson is to have the +entire pay, and it was before the contract term began. So much for +that.</p> +<p>Mr. Ker. When was it filed?</p> +<p>Mr. Wilson. That does not make any difference.</p> +<p>Mr. Ingersoll. "When was it filed?" There was a trial in my town +of a suit against the city, I believe, for allowing a culvert to +get filled up and flood a man's cellar. They brought in evidence to +prove, don't you see, that the culvert was not filled up, and one +witness swore that the day before the rain he saw a dog go through +there. One of the jurors got up and said that he would like to ask +a question; he said, "What was the color of that dog?"</p> +<p>On page 4631 Mr. Ker states that during the investigation by +Congress—Contractors got out printed letters and sent them to +every subcontractor upon every star route in the country, asking +them to write to their members of Congress urging their members of +Congress to vote for this appropriation.</p> +<p>On page 1346 is Rerdell's letter upon this very route, in which +not one word is said about the contractor doing anything one way or +the other. There is no evidence that any other letter was written +on that route. I call your attention to it to show how the +prosecution strained every possible point, and how they endeavored +to patch and piece and putty and veneer this evidence. Mr. Miner +wrote a letter (page 669). I do not remember any other evidence +upon this subject. And certainly it would be impossible to write a +milder letter than Mr. Miner wrote. He did not ask the people to +get up petitions against reduction, or ask for more service. Here +is what he says, and I will read you Mr. Miner's letter:</p> +<p>It will be well for the people of your section to send to the +member of Congress from your district such petitions as will +express their opinions on the subject of this reduction.</p> +<p>Truly, yours,</p> +<p>JNO. R. MINER, Ag't.</p> +<p>Could you write a milder letter than that, to save your life, +and refer to the subject? Could you write a fairer letter than +that, to save your life?</p> +<p>He does not say, "Get up petitions against it." He does not say, +"Send those petitions to your member of Congress and tell him to do +what he can to prevent it." Not one word of that kind.</p> +<p>Yet that is considered as evidence of fraud; that is considered +as evidence of conspiracy.</p> +<p>The next point made is that Mr. Ker states, at page 4632, that +Brady endeavored to bribe the members of Congress into making this +appropriation by doubling every star route in the Southern and +Middle States, and did so during the Congressional investigation. +What are the facts? The deficiency bill passed April 7, 1880.. That +appropriated money only for the purpose of carrying the mails up to +June 30, 1880. The regular appropriation bill was passed at the +same session, and appropriated money to carry the mails from the +1st of July, 1880. Now let us see if Brady doubled the trips in +these Southern and Middle States during that investigation. On page +3393 Brady says:</p> +<p>Practically on July 1, 1880, we doubled up the entire service +for all the Southern and Middle States.</p> +<p>This was after the deficiency bill had passed; it was after the +money appropriated by that bill had been expended; and it was paid +for out of the regular appropriation for the Post-Office +Department.</p> +<p>Yet that was a bribe. It just shows that Congress by the regular +appropriation indorsed the policy of Mr. Key to have a daily mail +to every place where there was a county-seat.</p> +<p>At page 4652, on the route from Mineral Park to Pioche, there +were two petitions, marked 17 K and 18 K. It is somewhat singular +that the Government brought no persons whose names are on these +petitions to show that they had not authorized their names to be +signed thereto, but they brought persons to show that the +signatures were not genuine.</p> +<p>On page 1621 the witness Wright swears that the names are the +same on both petitions. He is then asked if he knows the signatures +of any other people, and he says "Yes." He then says that the +signature of John Deland is not genuine. He swears that he knows +nearly every one of the people. He is then asked whether these +signatures are in the handwriting of the people, and he replies +that he thinks not. Then he is asked as to the signature of +Cornell, and he says; That is not in his handwriting.</p> +<p>Here is his cross-examination, gentlemen: * * *</p> +<p>I asked him, "Do you know these people;" made him swear that he +knew Mr. Street; that he knew the signatures of many; that he knew +these people. I proved where they were living; that they are living +in the country now, good, respectable, honest people. And yet the +Government did not bring one man whose name had been written here +to prove that he had not authorized it. Why? Because they could +not. They knew by the testimony here that the petitions were +absolutely and perfectly honest. And it is in that way that they +seek to deprive men of their liberty. They did not call a man whose +name appeared on those petitions to say that his signature was not +genuine or not authorized. I proved that many of them are still +living and first-rate men.</p> +<p>Now, gentlemen, you remember besides that, that Mr. H. S. +Stevens, the delegate from that Territory, recommended the same +thing asked for by those petitions (pages 1635, 1636), where it was +admitted by counsel for the Government that the letters of Stevens +were genuine. It is upon that same route that General Fremont also +wrote a letter (page 1636). And I will show you that the names are +exactly or substantially the same on 18 K as those found at pages +1638 and 1639.</p> +<p>Mr. Ker and Mr. Bliss both endeavored to show that there were no +petitions on this route, and that it was simply done on a letter. +If you will look at page 1603 you will find the evidence of Mr. +Krider, who was postmaster at Mineral Park, in which he says there +were petitions.</p> +<p>In order to show that there was a conspiracy between these +parties, or between Dorsey and Vaile, or Dorsey, Rerdell, and +Vaile, Mr. Ker called the attention of the jury to two letters, one +written by Rerdell to the Sixth Auditor, and one written by Vaile. +Here is a letter dated the 21st of August, 1880. It is introduced, +of course, to show that there was a conspiracy at that time between +Mr. Vaile and Mr. Dorsey. It was written by Mr. Rerdell to the +Sixth Auditor:</p> +<p>To the Sixth Auditor:</p> +<p>Sir: H. M. Vaile was subcontractor on route 40104 during the +first quarter of 1879. In the first settlement for that quarter +Vaile was paid for certain expedited service—it was +subsequently discovered that the expedition thus paid for was never +performed—the department therefore, and very properly, too, +charged back to the route the amount thus paid for expedition never +performed, viz, some two thousand eight hundred dollars.</p> +<p>Meanwhile Vaile, who alone was in fault, had ceased to have any +connection with the route—the charging back, therefore, fell +on the wrong man, the man who was in no way responsible for the +non-performance of the expedition, except so far as he stood +between the department and the subcontractor.</p> +<p>It is true that this payment was made by the regular contractor +to the subcontractor, but it is equally true that it was, in a +measure, a compulsory payment. By the rules of the Post-Office +Department it is made obligatory on the regular contractor to pay +the subcontractor before the department will settle with +him—it is not, therefore, a payment as between two +individuals. The receipt is on the form prescribed by the +Post-Office Department, and is witnessed by (the then) Postmaster +Edmunds, as the rules prescribe. It is on file in the Post-Office +Department, and I maintain that our covenants were fulfilled when +we put the receipt on file. If Vaile had performed the service as +he agreed he would do, and for doing which he received this money, +we should have been reimbursed by a certificate of service from the +contract office. Now, will you permit Vaile to take advantage of +his own wrong, and thus enable him to defraud another man out of +his money?</p> +<p>I refrain from discussing the question as to what would be the +duty of the department if Vaile, who had received the money +wrongfully, had ceased to have any connection with the department, +because it is not pertinent to this issue; if it were, I could cite +you to many authorities and precedents to the effect that even then +it would be your duty to refund the money to me. But this is not +necessary, because Vaile is still doing business with the +department.</p> +<p>He is subcontractor on route 44156 for the full contract pay, +which is twenty-two thousand dollars per annum, hence the +department will have no difficulty in reimbursing itself for what +was, in simple truth, an overpayment.</p> +<p>I think you will agree with me when I ask that this money be +refunded to the subcontractor on route 40104 and charged to route +44156, because it is simply correcting an error. You have the same +authority to charge it to one as you have to charge it to the +other, and you have already charged it to me.</p> +<p>The law-merchant would experience no difficulty in adjusting a +matter of this sort. The merchant who would refuse to correct an +error of this character would be justly called a lame duck, and +would be scouted from "'Change" Vaile was erroneously paid for the +performance of a service which he never did perform. Therefore I +ask that he be compelled to render unto Caesar the things that he +ceasers.</p> +<p>Respectfully,</p> +<center>M. C. RERDELL.</center> +<p>Acting for himself and for the regular contractor on route +40104.</p> +<p>That is to show also, gentlemen, that there was a conspiracy +between Vaile and Rerdell. Now, Mr. Vaile wrote a letter also to +the same man. I will read it:</p> +<p>Washington, D. C., July 9, 1880.</p> +<p>Hon. J. McGrew:</p> +<p>Sir: In reply to yours of July 8th, relating to the Jennings +case, I would state that I did not receive the money in manner and +form as stated by one M. C. Rerdell, nor was the draft of J. W. +Dorsey, on said route 40104, for the quarter named, to get an +advance of money for myself or for my own use.</p> +<p>At the time I receipted for my pay as subcontractor on said +route I did not, in fact, receive any money, but did so receipt +that J. W. Dorsey might negotiate his draft on said route, and for +no other purpose.</p> +<p>Although I was subcontractor of record on said route at the time +named, I was not a subcontractor in my own behalf, but as trustee +for J. W. Dorsey, S. W. Dorsey, Isaac Jennings, and others, to +collect said money and pay it over as said parties should direct. I +further state that all money that ever came into my hands from said +route I did pay over to the parties named as trustee, as by them +directed.</p> +<p>Acting as trustee of said Jennings, and believing that he had +performed the mail service on said route as by him agreed, and in +accordance with the laws and regulations of the Post-Office +Department, I did pay said Jennings, on the 1st day of April, 1879, +the sum of $1,257.73, a sum of money he was entitled to provided he +had carried the mail three days per week on the schedule required, +which I fully believed at that time he had done, and for a long +time after.</p> +<p>I further state that I am informed that said Jennings is not +responsible; that it would be utterly impossible for me to receive +back the $2,800, or any part thereof; that in fact this sum of +money sought to be collected of me, if collected for said +Jennings's benefit, or go into his hands in addition to the sum he +now has unlawfully, doubly remunerating him for his neglect of +duty.</p> +<p>I further state that all the money collected on said route not +paid to said Jennings was paid to liquidate the debts of J. W. +Dorsey, S. W. Dorsey, and others previously contracted, and not one +dollar ever remained in my hands.</p> +<p>I further state I believe both J. W. Dorsey and S. W. Dorsey are +irresponsible, and it would be impossible for me to collect any +part of said money from them. As above stated, said money came into +my hand only as their agent or trustee, and at once paid out as +they directed; that my subcontract was put on file simply to enable +J W. Dorsey to negotiate his draft on said route, when in fact said +Jennings was the real subcontractor. Said Jennings agreed to +perform the service on said route strictly in accordance with the +laws and regulations of the department, for the annual sum of +$12,600.00, the duplicate of which contract was delivered over to +S. W. Dorsey by myself, and which I believe is now in the hands of +M. C. Rerdell, and which, or a copy thereof, I demand shall be +filed with you in this case, that you may see what said Jennings +agreed to do.</p> +<p>This is certainly a strange claim. Jennings agreed to perform +mail service on said route. I believed he had done it, and paid him +accordingly. It turns out long after he did not properly perform +the service, but was attempting a swindle, and a deduction is +ordered for not performing the service properly. Then this man, the +guilty party, having got money from me, as trustee, wrongfully, as +well as from the Government, and asks that the Auditor compel me to +pay him the sum of $2,800.00, when, as I am informed, he is seeking +to get this same deduction remitted.</p> +<p>Surely if he succeeded in all this he will make a good thing out +of his rascality and I a good victim without remedy. I state again +I did not hypothecate said draft for myself, did not receive one +cent as subcontractor, but became the payee of said draft that said +J. W. Dorsey might negotiate it, and I to dispose of the proceeds +as he should direct, all of which I did. Therefore I request you +not to compel me to pay the sum of money asked, but if I am liable +at all let the parties seek their redress at law, where all the +facts can be obtained and justice rendered me. And it is also well +known that I am a man of means, and any judgment rendered against +me could and would be collected, dollar for dollar.</p> +<p>I am, very respectfully,</p> +<center>H. M. VAILE.</center> +<p>That was introduced to show that at the time Vaile was in a +conspiracy with S. W. Dorsey. Why did they introduce it? Simply for +one line in it in which he says he was acting as the trustee of S. +W. Dorsey. He was. How? Dorsey had advanced money. The routes were +liable, and the persons who held the routes had agreed to refund +it. The subcontracts were made to Vaile, and Vaile agreed out of +the proceeds of the route to pay the debt to S. W, Dorsey. To that +extent he was the trustee of S. W. Dorsey. Dorsey swears it. Vaile +admits it, and we all claim it to be true. And yet they introduced +that letter simply because that line was there. Now, gentlemen, I +have read both of those letters, and I want you to remember them if +you can, and tell me whether at that time Vaile and Dorsey were in +a conspiracy together to defraud this Government. And yet the +Government introduced this letter just to prove that one thing, and +no more.</p> +<p>On the Julian and Colton route there is this peculiarity: The +Government failed to prove the number of men and horses necessary +on the original schedule for three-times-a-week service, and +consequently we are left without any standard by which to judge; +without any standard by which to measure.</p> +<p>On page 4685 Mr. Ker calls attention to the fact that the +proposal marked 6 P, originally contained an offer to carry the +mail at thirty-six hours for seven thousand seven hundred and +twenty-two dollars additional, but he states that the thirty-six +was rubbed out and twenty-six was put in its place.</p> +<p>That is, they offered to carry it in thirty-six hours for seven +thousand and odd dollars, and then afterwards fraudulently, of +course, rubbed out the thirty-six and inserted twenty-six. But they +did not change the sum for which they offered to carry it. They +offered to carry it in thirty-six hours for seven thousand seven +hundred and twenty-two dollars, and afterwards they rubbed out the +thirty-six and put in twenty-six, and then offered to carry it in +twenty-six hours for seven thousand seven hundred and twenty-two +dollars. The question arises, how did that hurt the Government? The +question arises, was that a fraud? If it had been originally +twenty-six hours and they had rubbed out those figures and put in +thirty-six hours, then you might say the intention was to defraud +the Government. But the proposition had to be accepted after that +was done, and consequently in no event could the Government be +defrauded by the change of the proposal before the Government +accepted the proposal. I might say to a man, "I will let you have a +house and lot for ten thousand dollars." He does not accept the +proposal. Have I not the right on the next day to charge him twelve +thousand dollars for it? Is that a fraud? If I tell him, "You may +have it for ten thousand dollars," and he accepts, then, as an +honorable man, I cannot change the proposal. But if I tell him he +may have it for twelve thousand dollars and then afterwards tell +him he may have it for ten thousand dollars, Mr. Ker calls that a +fraud of two thousand dollars. If one of the jury should give me a +contract to deliver one hundred horses for ten thousand dollars, +and I should scratch out the one hundred and put in seventy-five, +certainly you would not consider yourself defrauded. Or if I agreed +to carry the mail in thirty hours for the Government for seven +thousand seven hundred and twenty-two dollars, and then afterwards +changed and said I would carry it in ten hours less time for the +same price, can that be tortured into a fraud—unless I might +be indicted for defrauding myself?</p> +<p>On page 4569 Mr. Ker says that Mr. Farrish, who was the +subcontractor says:</p> +<p>I always carried the mail in from six to ten hours before +expedition. I carried the mail from Greenhorn to Pueblo. I did not +stop at Saint Charles.</p> +<p>On page 835 Mr. Farrish says he carried the mail for three +months in 1881. That is the only time Farrish carried the mail. +This route was expedited on the 26th day of June, 1879, and yet Mr. +Ker says that Farrish carried the mail before it was expedited and +carried it in from six to ten hours. Mr. Farrish did not carry the +mail until about two years after it had been expedited.</p> +<p>On page 4768 Mr. Ker, speaking of the two affidavits on the +route from Pueblo to Rosita, laughs at the idea that the proportion +was the same in both.</p> +<p>Now, what is the proportion in both? One affidavit says that on +the then schedule it would take eight men and horses; that is, the +horses and men added together make eight, and that on the proposed +schedule it would take twenty-four. Then they would be entitled to +just three times the money they were receiving on the original +schedule, because three times eight are twenty-four. Let me explain +here what I mean by proportion. If I am carrying the mail with, +say, four horses and two men, making a total of six, and if then +that service is increased so that it takes twelve men and horses, I +get twice the original pay; if it takes eighteen men and horses, I +get three times the original pay. You understand that there is +always a relation between the pay and the number of men and horses +used. If I am using one man and one horse and am getting a thousand +dollars for the service, and if it is expedited so that I have to +use two men and two horses, I would get two thousand dollars. In +the first affidavit they had eight men and horses. If they put up +the service to what they were going to, it would take twenty-four. +Three times eight are twenty-four. Then they would get three times +the original amount of money. In the second affidavit he swears +that it takes fifteen men and animals on the present schedule, and +on the proposed schedule it would take forty-five men and animals. +Three times fifteen are forty-five. Three times eight are +twenty-four. You see that on both affidavits you get the same +amount of money to a cent, because the proportion is absolutely and +exactly the same. Yet Mr. Ker laughs at the idea of the proportion +being the same. It took eight men and horses in the first affidavit +on the present schedule, and twenty-four on the proposed schedule. +There the contractor would be entitled to three times the original +sum. In the next affidavit it took fifteen men and horses on the +original schedule and forty-five men and horses on the proposed +schedule. Again, he would be entitled to three times the original +sum.</p> +<p>On page 4579 Mr. Ker says the oath was put in for three trips. +By looking at page 867 we find that it was for seven trips and not +three. There is nothing like accuracy.</p> +<p>On page 4580 Ker says that Brady had on the jacket before him +the evidence that Hansom was a subcontractor at three thousand one +hundred dollars a year, and the contract gave the contractor a +clear profit of five thousand and forty-eight dollars. The fact is, +that Brady's order was made on July 8, 1879. That order is on page +866. Hansom's subcontract was filed October 22, 1879, about three +month's after Brady's order was made. And yet Mr. Ker tells you +that on that jacket when Brady made the order he had notice of +Hansom's subcontract. Unless he had the gift of seeing into the +future he knew nothing about it. He would have had to see into the +future three months in order to have had it before him at that +time.</p> +<p>On page 4703 Mr. Ker says that the letter of J. W. Dorsey, +written April 26, 1879, referred to the Perkin's affidavit as not +putting the number of men and animals high enough. Let us see. +Another case of arithmetic. The letter refers to Dorsey's statement +transmitted with the letter. It could not be the way stated by Mr. +Ker for the following reasons: The affidavit of Perkins said three +men and six animals one trip a week on the then time. That makes +nine. On one trip a week with the reduction to eighty-four hours, +eight men and twenty-four animals would be required. That makes +thirty-two. The proportion then gives three and five-ninths or +three hundred and fifty-five per cent, increase of pay. That is the +affidavit, he says, that Dorsey wrote out and said was not high +enough, and then fixed up one that was. The affidavit that John W. +Dorsey sent in the letter says that it will require for three trips +a week on the then time four men and twelve animals, making +sixteen; on the proposed schedule for the same number of trips +eleven men and thirty-two animals, making forty-three. As sixteen +is to forty-three—that is, two hundred and sixty-nine per +cent, increase of pay. Now, that letter, he says, claims that the +Perkins affidavit did not put it high enough. I say that he did not +refer to the Perkins affidavit. He could not say that did not put +it high enough, because that put it at three hundred and fifty-five +per cent., and the affidavit he inclosed in the letter, put it at +two hundred and sixty-nine per cent.—nearly one hundred per +cent. less. According to Mr. Ker he was complaining that that +affidavit was too low, and so he inclosed one, one hundred per +cent, lower. That will not do. Besides all that the affidavit of +John W. Dorsey is for forty-five hours, while the first affidavit, +I believe, is for eighty-four hours. John W. Dorsey offers to carry +it in forty-five hours for two hundred and sixty-nine per cent., +and the other affidavit on the basis of eighty-five hours calls for +three hundred and fifty-five per cent. Do you not see, gentlemen, +it is utterly impossible to believe that?</p> +<p>On page 4738 Mr. Ker again falls into mathematics. He says that +Mr. Brady allowed on the Bismarck route for three hundred men and +three hundred horses.</p> +<p>I tell you this prosecution ought to go into the stock business. +One hundred and fifty men and one hundred and fifty horses were +called for by the affidavit. Now, Mr. Ker says when Brady doubled +the trips he doubled the horses, and when he doubled the trips he +doubled the men. That would make three hundred men and three +hundred horses. If he had doubled the trips again he would have had +six hundred men and six hundred horses, enough cavalry to have +protected that entire frontier. Yet after all the Bismarck and +Tongue River business, Mr. Vaile comes in and swears, on page 4062, +that the loss on that route to Vaile and Miner was at least fifty +thousand dollars; and Mr. Miner swears that the loss on the route +was between forty and fifty thousand dollars. Vaile says if he had +known at that time of the clause in the contract by which he could +have gotten out of it he would have abandoned the route, but that +he had not read a contract for ten or twelve years. Now, as a +matter of fact, gentlemen, and it seems to me the prosecution ought +to be perfectly fair, Brady allowed only forty per cent, of the +affidavit made in regard to the one hundred and fifty men and the +one hundred and fifty horses, and yet according to Mr. Ker he +allowed for three hundred men and three hundred horses; instead of +allowing for forty per cent, of one hundred and fifty men and one +hundred and fifty horses, he allowed for one hundred per cent. +more. That would have run the pay up, I should think, to about a +million dollars. Mr. Ker also says that Mr. Vaile swears that he +induced Brady to give an extension to August 15th, and thereupon +Mr. Ker makes the remarkable statement that Vaile did not do it; +that Boone did it; I am very thankful for the admission. From that +it appears that Boone was more potent with Brady than Vaile +was.</p> +<p>If he was, why did they have to get somebody close to Brady? +Afterwards we are told by Mr. Ker that Mr. Boone was kicked out to +make a place for Vaile, so as to get a man close to Brady.</p> +<p>Mr. Ker. Will you tell me what page it was I spoke about +Boone?</p> +<p>Mr. Ingersoll. It was Mr. Bliss. It is Mr. Bliss's turn to +explain now. The notes that I have were handed to me by another, +and I supposed referred to Mr. Ker. Mr. Bliss said:</p> +<p>This, I think, can leave no doubt in the minds of any one that +the extension was obtained by Mr. Boone.</p> +<p>Mr. Bliss says that on page 4899, and so I will relieve Mr. Ker +of that charge.</p> +<p>Mr. Ker. I am glad to be relieved of something.</p> +<p>Mr. Ingersoll. I do not want to do any injustice to Mr. Ker; +between Mr. Bliss and Mr. Ker I am perfectly impartial.</p> +<p>Mr. Ker attacks the affidavit made by Vaile on the Vermillion +and Sioux Falls route. Let us get at the facts. The route was let +as fifty miles long. That is the distance that was given in the +advertisement by the Government. They wanted expedition on that +route. The Government asked for it. Mr. Vaile asked if he could +make the affidavit, and he made it, supposing the route was fifty +miles long. He never had been over it. It turned out that it was +about seventy-three miles long, and consequently the affidavit +provided for too fast time. The affidavit called for ten hours. +That made over seven miles an hour; or, including the stoppages, I +presume about ten miles an hour. The difficulty arose out of the +mistake in the distance. Vaile so swears, on page 4030. He also +swears that he went to the department and there saw Mr. Brewer, who +was in charge of that bureau, or at least of that business, and it +was Brewer who suggested to him to make the affidavit. Mr. Vaile +did not ask for any expedition on that route. Mr. Brewer spoke to +him about it. Mr. Vaile swears that Brewer spoke to him first. Mr. +Vaile swears that he made the affidavit at the instigation of Mr. +Brewer. Mr. Bliss says Brewer is an honest man, and calls him +honest Brewer. Why did he not call honest Brewer to the stand and +let him deny that he asked Mr. Vaile to make that affidavit?</p> +<p>The Court. Yes.</p> +<p>Mr. Ingersoll. [Resuming]. If the Court please, and gentlemen of +the jury, on page 4645 there is the letter from Miner to Carey.</p> +<p>John Carey, Esq.,</p> +<p>Fort McDermitt, Nev.</p> +<p>Dear Sir: One S. H. Abbott, who was postmaster at Alvord, I +find, by accident, is writing to the department that you do not pay +your bills, and that there is no need of anything more than a +weekly mail.</p> +<p>I wish you would see this man at once and satisfy him; pay him +whatever is reasonable and report to R. C. Williamson, at The +Dalles.</p> +<p>I suppose that is what he is after. He knows nothing of the +through mail, and probably a weekly is all he needs; but more +likely he wants some money. He complained once before to the +department that he had to make a special trip to Camp McDermitt to +make his returns, and I sent him thirty dollars, and it was all +right. Now, I suppose, he wants a little more money. Yours, +&c.,</p> +<center>JOHN R. MINER.</center> +<p>That letter was introduced to show that there was a conspiracy +between Miner and Brady; and yet when that man complained that the +service was not put on at the time it should have been, and that he +was postmaster, was forced to carry his returns to the nearest +post-office, and consequently spent about thirty dollars, Miner +sent him the money. Why? Because he and Brady were not +confederates; because they were not conspirators. For that reason +he sent the man thirty dollars. The letter says, "The man that was +postmaster." When this letter was written Mr. Abbott was not +postmaster; he had ceased to be postmaster. Yet they have +endeavored to impress upon you the idea that when this letter was +written to Abbott he was then postmaster. He had written a letter, +stating that a weekly mail was all that was wanted, and that Mr. +Carey did not pay his bills. Mr. Miner wrote to Carey on that +account, "The man is trying to make trouble. He tried to make +trouble once before, and we sent him thirty dollars. He is not +postmaster now. He has no official position. Go and see him. Give +him what is reasonable, and tell him to mind his own business." +Why? If he had been in a conspiracy with Brady he would not care +what Mr. Abbott wrote to the department. If he was absolutely +certain there he would not care anything about it. But having no +arrangement with the Second Assistant, having no arrangement of the +kind set forth in the indictment, he did not want Mr. Abbott to +write letters; he did not want Mr. Abbott to make trouble. That +letter, instead of showing that there was a conspiracy, shows +absolutely that there was not, and the letter was not written to +him while he was an official. The man was not then postmaster. He +simply had been.</p> +<p>The next point made by Mr. Ker is a very powerful point, that +Mr. Vaile came from Independence, where the James boys came from, +and where they steal horses. Suppose I should say that Mr. Ker +comes from Philadelphia, the town that Mr. Phipps lives in, the man +who stole the roof off of the poorhouse. Would there be any +argument in that?</p> +<p>Mr. Ker says that J. W. Dorsey wrote in his letter that the +profits would be one hundred thousand dollars a year. That was a +mistake. I turn to the letter and I find that it says one hundred +thousand dollars in the life of the contract, and not one hundred +thousand dollars a year.</p> +<p>Mr. Bliss. Your Honor, I claim the right to call attention to +the fact that Mr. Ker read the letter in full referring to the one +hundred thousand dollars clear of expenses. He read it and then +followed it by the statement of one hundred thousand dollars a +year, which was obviously a mistake.</p> +<p>Mr. Ingersoll. That only makes it worse. After he had read the +letter to the jury, and while the echoes of the letter were still +in the court-room, he then said one hundred thousand dollars a +year, while the letter said one hundred thousand dollars within the +life of the contract. Upon such statements, gentlemen, they expect +to strip a citizen of his liberty. [To counsel for the Government.] +You will have some work to do in a little while. It may be that Mr. +Ker forgets these things. I do not say how it happened.</p> +<p>Mr. Ker also tells you that Miner wanted to cut out S. W. Dorsey +and J. W. Dorsey and Mr. Peck. Was that because he was a +co-conspirator? He also tells you that Miner deserted his friend S. +W. Dorsey. Was he at that time a conspirator? Mr. Ker tells you +that S. W. Dorsey wanted to gratify his spite against Vaile and +that the first thing he did after he got out of the Senate was to +write that letter to the Second Assistant Postmaster-General +against the subcontracts. Does that show they were co-conspirators? +Did he want to gratify his spite because he had made a bargain with +them by which they were to realize hundreds of thousands of +dollars?</p> +<p>Mr. Ker also says that Miner's letter to Tuttle shows the +conspiracy.</p> +<p>It is perfectly wonderful, gentlemen, how suspicion changes and +poisons everything.</p> +<p>Let me read you the letter from which Mr. Ker draws the +inference that there was a conspiracy. It is on page 885:</p> +<p>Washington, D. C., August 19, 1878. Frank A. Tuttle, Box 44, +Pueblo, Colo.,</p> +<p>Dear Sir: Yours 14th received. We accept your proposition, +provided (so that there shall be no conflict) that a friend of +ours, who has recently gone to Colorado, has not made different +arrangements before we can get him word.</p> +<p>The petition for expedition should be separate from the petition +for increase of number of trips. We make no boast of being solid +with anybody, but can get what is reasonable. Yours, truly,</p> +<center>MINER, PECK & CO.</center> +<p>You are told that is evidence of a conspiracy. Suppose the +letter had been this way: "We boast of being solid. We can get +anything, whether reasonable or not." That probably would have been +evidence of perfect innocence. He writes a letter and says:</p> +<p>We make no boast of being solid with anybody, but can get what +is reasonable.</p> +<p>They say that is evidence of conspiracy. Suppose he had written +the opposite, "We do boast of being solid and we can get anything, +whether it is reasonable or not." According to their logic that +would have been evidence of absolute innocence. Whenever you are +suspicious you extract poison from the fairest and sweetest +flowers. Prejudice and suspicion turn every fact against a +defendant.</p> +<p>On page 4557 Mr. Ker tells us that Vaile never saw Peck, and yet +had the impudence to write that his subcontract was signed by Peck +in person. The subcontract is in evidence here. Nobody pretends +that it was not signed by Peck, and yet that is brought forward as +a suspicious circumstance against Mr. Vaile, because there is no +evidence that Mr. Vaile ever saw Mr. Peck. Is there anything in a +point like that? "My contract was signed by Mr. Peck in person." He +does not mean by that that he saw him sign it. The evidence here is +that it was signed by Peck, and yet the fact that he says Peck did +sign it, and the fact that he had never seen Peck, Mr. Ker +endeavors to torture so that you will think he wrote what he knew +to be untrue.</p> +<p>On page 3251 Mr. Ker says that Miner does not deny writing the +letter marked 63 E. This letter was dated the 10th day of May, +1879, and was on one of the Dorsey routes.</p> +<p>Miner swears that he never signed a paper, never touched pen to +paper on any of the Dorsey routes after the 5th day of May, +1879.</p> +<p>Now, gentlemen, after having made all these statements to you, +and I have only taken up a few of them, these misstatements, these +mistakes, Mr. Ker winds up by telling you it is the safer plan to +find a verdict of guilty, because if you find them guilty +wrongfully the Court will upset your verdict.</p> +<p>Gentlemen, you have sworn to try this case according to the law +and the evidence. You are the supreme arbiters of this case. It is +for you to decide upon this evidence, and for you alone. Yet you +are told by Mr. Ker to shirk that responsibility. You are told by +him to violate your oaths and find against these defendants, for +the sake of certainty, and then turn them over to the mercy of the +Court. That is not the law. These defendants are being tried before +you. They have the right to your honest judgment. If you have any +doubt as to their guilt you must find them not guilty or violate +your oaths. You are told it is the safer way to find them guilty +and then let them appeal to the Court for mercy! That doctrine is +monstrous. It is deformed. Such a verdict would be the spawn of +prejudice, and cowardice, and perjury. You cannot give such a +verdict and retain your self-respect. You cannot give such a +verdict and retain your manhood! If you have any doubt as to the +guilt of these defendants you must say they are not guilty. You +have no right to turn them over to the Court, no matter whether the +Court is merciful or unmerciful. You must pass upon their guilt, +and you must do it honestly.</p> +<p>I never heard so preposterous, so cruel a sentiment uttered in a +court of justice. It amounts to this, gentlemen: If you have any +doubt of guilt resolve the doubt against the defendant. If the +evidence is not quite sufficient, find against the defendants and +turn them over to the mercy of the Court. Why should we have a jury +at all? Why should you sit here at all? Why should you hear this +evidence, if after all you are to shirk the responsibility and turn +the defendants over to the Court? You never will do it, +gentlemen.</p> +<p>Now, gentlemen, I wish to call your attention to a few points +made by Colonel Bliss. You must remember that Colonel Bliss has +been very highly complimented by his associates as a kind of +peripatetic index of this case, an encyclopedia of all the papers; +that he never makes a mistake; that he recollects amounts with +absolute certainty, and that he is infallible. Keeping all these +things in your mind, I wish to call your attention to some +statements that he has made. First of all, I will refer to a little +of his philosophy, or law, and that is, that in every affidavit you +should state not the number necessary on the then schedule, but the +actual number, and that there could be no doubt about the number of +men and horses used at the time when an affidavit was made, and +that consequently anybody making an affidavit should put in the +number then actually used.</p> +<p>Let us see how that will work. He says the oaths are false +because they do not state the actual number of men and horses +employed in carrying the mail at the time they were made. He says +that the person making the affidavit swore to the number actually +employed, and that where that number was not employed that fact of +itself shows the affidavits to be false. I say that is not the law. +The law calls for the number necessary, not the number actually +employed. Let me show how easy it would be to cheat the Government +on the principle laid down by the gentleman. I will show you how +infinitely silly that is. Let me illustrate. Here is a route one +hundred and fifty miles long, once a week. You know it is possible +for one man and one horse for a little while to carry that mail and +to go one hundred and fifty miles one way and one hundred and fifty +miles the other, making three hundred miles in a week. You can take +a magnificent horse and a good, stout, tough man, and you can do +it.</p> +<p>The Court. Or a boy.</p> +<p>Mr. Ingersoll. Or a stout, tough boy.</p> +<p>The Court. A boy would be best.</p> +<p>Mr. Ingersoll. You do not need any boy. Just one man and one +horse will answer. The man can ride the horse one hundred and fifty +miles in three days, and then ride one hundred and fifty miles back +in the next three days. All you have to swear to, according to Mr. +Bliss, is the number actually used, and so you would come in and +swear to two on this route. Now, when you are making an affidavit +as to the number to be used on a schedule to be made, you cannot +swear to the number actually in use, because they are not then in +use. You have to swear to the number necessary. You have to swear +to the number required.</p> +<p>Now, see. On a mail route one hundred and fifty miles long I +would only want a good smart horse, and one good active man or boy. +I would not need to carry it more than one week, because I could +make the affidavit for that week, and then the question would be +how many men and horses would be required for a daily mail on the +same route. I would put in a reasonable number, and the difference +between the number then actually used and the reasonable number to +use would be the standard by which to fix my pay.</p> +<p>If you take the man and horse actually used, and then take the +number that would reasonably be used, you would make a difference +of a thousand per cent. And yet that is the doctrine laid down here +to guide us as to these affidavits.</p> +<p>Let me tell you what the law is. It does not make any difference +what you are really using at the time. You must swear to the number +that would be reasonably necessary to carry the mail on the then +schedule. You must swear to the number that would be reasonably +necessary to carry the mail on the proposed schedule. In the first +place, if you put a great deal of work on a man and horse, you must +put the same proportion on man and horse in the second schedule. If +you are easy on man and horse in the first schedule, you must be +easy on man and horse in the second. The only object, gentlemen, is +to keep the proportion, because you are to be paid according to the +number of men and horses used.</p> +<p>Now, they say it would be necessary to go out there in order to +tell how many men and horses would be necessary, and that the men +who made these affidavits had never been on the routes. There was +no need of being on the routes. I could give you the number +required on any route two hundred or five hundred miles long. I +could give you the number of men and horses reasonably required to +carry the mail once, twice, three times, or seven times a week; and +I could give you the number reasonably required to carry it at the +rate of three miles an hour or five miles an hour or six miles an +hour without going there. I need not go there for the purpose of +the affidavit. I can take it for granted that the road is good and +level, and I can keep exactly the same proportion and nobody can be +defrauded. If you take the rule of Colonel Bliss it would be the +easiest thing on earth to defraud the Government. That would be by +taking the actual number in use and then taking the number +necessary.</p> +<p>Oil page 4761 Mr. Bliss makes the point that according to law +the Second Assistant Postmaster-General was not bound to allow +according to the affidavits. He is right as to that. That is what +Mr. Bliss says, and that is what John W. Dorsey swore he thought, +and that is what Mr. Thomas J. Brady swore he did. He did not take +the affidavit as a finality. Mr. Thomas J. Brady said that he took +it for granted that the man, when he made the affidavit, thought it +was true, and that the man, when he made the affidavit, swore to +the best of his knowledge and belief. But Thomas J. Brady never +swore that he considered himself bound by the affidavit. On the +contrary, he swore that he had a standard in his own mind, and that +expedition was to cost thirty dollars a mile, or something of that +kind. He went by that standard, and he gauged the affidavits by +it.</p> +<p>On page 4762 Mr. Bliss says that Brady admitted that he made no +inquiry as to the truth of affidavits, and that he accepted them as +absolutely conclusive. On page 3434 Mr. Brady swears:</p> +<p>I accepted their statement as conclusive so far as they +knew.</p> +<p>Brady also swears that he had his standard in his own mind, as I +said before, and that he had an opinion of his own, and that by +that standard and opinion he was governed.</p> +<p>On page 4765 Mr. Bliss charges that Brady took the oath of +Perkins on route 38113 as the basis for the expedition. Mr. +Turner's calculation on file shows that that affidavit was not the +basis of the calculation.</p> +<p>Mr. Bliss. Your Honor, allow me to say that subsequently I +stated to the Court and to the jury distinctly that while the +indorsement on the jacket recited the Perkins affidavit as being +the one used, or the affidavit of the subcontractor, and while Mr. +Brady transmitted to Congress that Perkins affidavit as the one +upon which he acted, I still believed that the calculation showed +that he used the other affidavit.</p> +<p>Mr. Wilson. He never made that statement until he made it during +the progress of my argument when I was discussing that very +point.</p> +<p>Mr. Bliss. You are mistaken.</p> +<p>Mr. Merrick. He made it while I was here and I was not here +during Mr. Wilson's argument.</p> +<p>Mr. Ingersoll. If he has taken it back three times, that is +enough. On page 4766 Mr. Bliss charges Brady with having two +affidavits on the Pueblo and Greenhorn route, from John W. Dorsey, +on the same day.</p> +<p>Mr. Bliss. Mr. Henkle called my attention to the fact that it +was not the Greenhorn route, but the Pueblo and Rosita route, and I +corrected it.</p> +<p>Mr. Ingersoll. Good enough. I did not know about his taking it +back. I was not here at the time. The fact was, however, that only +one affidavit was ever filed, and that was an affidavit, not by J. +W. Dorsey, but by John R. Miner.</p> +<p>Mr. Bliss. There were two on the Pueblo and Rosita route by John +W. Dorsey.</p> +<p>Mr. Ingersoll. We will come to them. You will get tired of them +before we get through with them.</p> +<p>On page 4767 Mr. Bliss refers to two affidavits. The first +affidavit, the one not used, calls for three men and seven animals +on the then schedule. That makes ten. On the proposed schedule of +eighty hours it called for nine men and twenty-seven animals. That +makes thirty-six. The proportion then in this affidavit is 3.6, +that is, the pay would be 3.6 times the original pay. In the second +affidavit five men and fifteen animals, twenty in all, are called +for on the then schedule, and on the proposed schedule twelve men +and forty-two animals. The proportion there is 2.7. So that the +affidavits, leaving out the fractions, which are substantially the +same, stand in this way: By the first the contract price would have +been multiplied by three and the contractor would have had three +times the original pay, and by the second he would have had twice +the original pay. Substituting an affidavit at only double the pay +is called a fraud, because they withdrew an affidavit for treble +the pay. That is what Mr. Bliss calls a fraud. He says still that +it is a fraud.</p> +<p>Now, then, there were two affidavits, and these two affidavits, +gentlemen, Mr. Bliss well knew were filed on different schedules. +The first affidavit was filed on a proposed schedule of eighty +hours. The second affidavit was filed on a proposed schedule of +fifty hours. The affidavit agreeing to carry the mail in fifty +hours offered to do it at double the pay. The affidavit on eighty +hours wanted three times the pay, or substantially that. One was +3.7 and the other was 2.6. Just think of trying to make that a +fraud on the Government. Suppose they had filed a third affidavit +and offered to carry it for nothing. That would have been carrying +a fraud to the extreme.</p> +<p>Mr. Bliss. Your Honor, with reference to that, I said, expressly +referring to these two affidavits: It is not a question of +proportion. The question is whether the mere existence of those +double affidavits did not give Brady conclusive notice that the man +who could make those affidavits was not a reliable man, because no +matter what the time was to which it was to be increased, he stated +the number necessary on the then schedule, as so and so in one +affidavit and in the other he stated the number differently. I +referred to it solely in that connection, as the language shows on +the page referred to.</p> +<p>Mr. Ingersoll. For instance, a man writes, "You owe me five +hundred dollars according to my books," and writes the next day, "I +have made a mistake. You don't owe me anything." Mr. Bliss insists +that the second letter would show that the man was not to be relied +upon. That is his idea of honesty. If in the first letter he had +written that I did not owe him anything, and in the second letter I +did, that might be suspicious. But when in the first he writes that +I owe him and in the second that I do not, there can be no +suspicion as to his honesty. In the first affidavit this man stated +so much, and in the second affidavit he put it one-third less. That +simply shows the man was paying attention to it and wanted to make +an honest offer. And yet everything in this case is poisoned with +prejudice and suspicion.</p> +<p>Another point: Mr. Bliss, on page 4770, says that on the Pueblo +and Rosita route the number of trips was seven and that there was +no increase. Upon that statement he bases an argument of fraud. The +argument is that there was no increase of trips. Now, on page 866, +the order shows that in the first place there was one trip a week +and there were six trips added. That makes seven. The original pay +was three hundred and eighty-eight dollars. Six trips were added, +and the value of the six trips, which gave two thousand three +hundred and twenty-eight dollars of additional pay. Yet Mr. Bliss +tells you that there was no increase of trips. As a matter of fact, +six trips were added, and that was all that could be added.</p> +<p>Mr. Bliss. Were they added coincidently with the affidavit for +expedition?</p> +<p>Mr. Ingersoll. You say they were not added; I say they were.</p> +<p>Mr. Bliss. No, sir; I said at the time of the expedition there +was no increase of trips and the affidavit was based upon the seven +trips.</p> +<p>Mr. Ingersoll. I say that at that time there was an +increase.</p> +<p>Mr. Bliss. Your Honor, the point is this: I think I am right in +saying that the increase of trips took place after the expedition. +That is my recollection about it. I have not referred to the +record. I think Colonel Ingersoll will find that is so.</p> +<p>Mr. Ingersoll. We will see whether you are right. At the time +the affidavit was made there were just three trips, and afterward +there were four trips added. Let us get it exactly right. I read +from page 866:</p> +<p>Date, July 8, 1879. State, Colorado.</p> +<p>Number of route, 38134.</p> +<p>Termini of route, Pueblo and Rosita.</p> +<p>Length of route, fifty miles.</p> +<p>Number of trips per week, one.</p> +<p>Mr. Bliss. I see you are right. The trips were increased.</p> +<p>Mr. Ingersoll. When anybody gives it up I will stop. That is +fair and that is honorable.</p> +<p>Now, the next point. On page 4771 Mr. Bliss says that the oath +on the Toquerville and Adairville route was made for seven trips, +although the order only gave them six trips, of course the +inference being that they got as much pay for six trips as they +were entitled to for seven trips. On page 3290 the original order +was for one trip. Two trips were added. Look on page 949 and you +will find that more trips were added. The second order increased +four trips, and that made seven in all; and yet Mr. Bliss makes the +statement that there were only six. That is another mistake.</p> +<p>Another point. On page 4772 Mr. Bliss states that Mr. Rerdell +spoke in his testimony about J. B. B. I have referred to that. I +have referred before to the claim that Rerdell was sustained by the +testimony of Mr. Bissell. As a matter of fact, I do not remember +that Mr. Rerdell ever said one word in his testimony as to charging +anything to J. B. B.</p> +<p>Ninth point. At page 4778 Mr. Bliss states that Dorsey admitted +in his letter to Anthony Joseph that the average rate for mail +service on star routes was only five dollars a mile. Mr. Dorsey +says in his letter no such thing. He says the "average cost of +horseback service"; he does not use the language employed by Mr. +Bliss, "The average rate for mail service on star routes," but he +says, "The average cost of horseback service." That is a small +point, but it shows how anxious the gentlemen are to get the thing +fully as big as it is.</p> +<p>Tenth point. At page 4783 Mr. Bliss says that Brady cut off +forty-nine thousand dollars of increase on the Mineral Park and +Pioche route on the 22d of January, 1879, because the mail bills +showed so little business. That is another mistake. The order +cutting off the forty-nine thousand dollars was made on the 22d of +January, 1880, not 1879. I mention this simply for the sake of +accuracy.</p> +<p>Eleventh point. At page 4785 Mr. Bliss says that the mail bills +on the Silverton and Parrott City route showed that Brady ran the +service up from seven hundred and forty-five dollars to fourteen +thousand nine hundred dollars, and that the fourteen thousand nine +hundred dollars was afterwards increased to thirty-one thousand +three hundred and forty-three dollars and seventy-six cents. The +record shows nothing of the kind (see pages 1894-5). The original +pay was one thousand four hundred and eighty-eight dollars (page +1854). The pay under the order of June 12, 1879, was six thousand +five hundred and twelve dollars and twenty-eight cents (page 1855). +No other increase was ever made. On page 1855 is the increase and +expedition, being in all fourteen thousand eight hundred and eight +dollars and sixty three cents. The original pay was one thousand +four hundred and eighty-eight dollars. A little change was made in +the route that brought it up to one thousand seven hundred and +three dollars and sixty-five cents. That, together with the +expedition, makes a total of sixteen thousand five hundred and +twelve dollars and twenty-eight cents. And yet Mr. Bliss told you +that it was thirty-one thousand three hundred and forty-three +dollars and seventy-six cents. So that this encyclopædia of +the papers made a mistake, in one year, of fourteen thousand eight +hundred and thirty-one dollars and forty-eight cents. For the whole +contract time it would be a mistake of forty-five thousand dollars. +And yet, strange as it may appear, that mistake was made against +the defendants. Well, let us go on.</p> +<p>Twelfth point. On page 4800, bottom line, Mr. Bliss says:</p> +<p>They got so much in the way of offering petitions that Mr. +Rerdell being told by Stephen W. Dorsey, upon this route from +Pueblo to Greenhorn, to go to work and alter the petitions, +inserted the words "and faster time."</p> +<p>As to this petition, 7 B, in which are the words "and faster +time," George Sears swears, at pages 829 and 830, that it is in the +same condition now as when it was signed by him, he thinks. +Thereupon Mr. Bliss told you that he was mistaken in the paper. You +must recollect these things.</p> +<p>Mr. Bliss. Are there not two petitions there altered?</p> +<p>Mr. Ingersoll. That is on another route. There were 7 B, 11 B, +and 12 B. 7 B was the written paper, and you introduced 11 B and 12 +B. One said "quicker time," and one said "on faster schedule," and +yet in the very next paragraph they asked to have it run in eight +hours. Mr. Rerdell had to admit that he put in the words without +knowing what the petition called for, and that Dorsey instructed +him to put them in.</p> +<p>Mr. Bliss. Your Honor, in the very same paragraph, the very +line, where I said "faster schedule," I called attention to the +fact that the words were unnecessary.</p> +<p>Mr. Ingersoll. That is not the only point. The point is, who +wrote "faster time"?</p> +<p>Mr. Bliss. That is not what I said. You have not given the whole +sentence.</p> +<p>Mr. Ingersoll. You cannot expect me to read your whole seven +days' speech. That would be too much. This is what you said:</p> +<p>They got so much in the way of altering petitions that Mr. +Rerdell being told by Stephen W. Dorsey, upon this route from +Pueblo to Greenhorn, to go to work and alter the petitions, +inserted the words "and faster time."</p> +<p>That is it exactly.</p> +<p>Mr. Bliss. Then follows this:</p> +<p>He inserted "and faster schedule," "on quicker time," though +there was not any necessity for doing that, because if they had +gone further down, after some argument in the petition, to the +request for expedition, they would have seen that there was no +necessity for that little forgery up there.</p> +<p>Mr. Ingersoll. That is a magnificent admission. "There was no +necessity for" putting that in. I am glad he admits that. He would +ask you to believe that S. W. Dorsey, a man of intelligence and +brains, would ask to have a petition forged, altered, interlined, +without knowing what was in that petition. It will not do, +gentlemen.</p> +<p>Thirteenth point. At page 4810, Mr. Bliss says that McBean told +Moore, in reference to route No. 44140, Eugene City to Bridge +Creek, "that he could carry all the mail in his pocket."</p> +<p>Now, as a matter of fact, Mr. McBean does not state any +conversation with Moore covering this route. That was another +mistake. No matter.</p> +<p>Fourteenth point. At page 4814, Mr. Bliss, in speaking of the +Ojo Caliente route, says the service in fact never was performed in +fifty hours; that the evidence of that is conclusive. Now, let us +see. Here is a jacket on page 3008, and that jacket shows that out +of seventy-eight half trips, expedition was lost on twenty-three +and made on fifty-five. Yet Mr. Bliss tells you it never was made. +The jacket on page 3040 shows that expedition was lost on twelve +half trips and made on sixty-six. And yet Mr. Bliss says it was +never made. The jacket on page 3056 shows that at the time they +were carrying seven trips a week, nineteen expeditions were lost +out of one hundred and ninety-two half trips. And yet Mr. Bliss +says the fifty-hour schedule never was made. Another mistake.</p> +<p>Mr. Bliss. That is long after the time I was referring to. As to +the other point, I simply repeat it.</p> +<p>Mr. Ingersoll. It will not help it to repeat it. For every +expedition lost on this route or any other the Government did not +pay. When the expedition was lost, the pay was deducted; when the +expedition was made the pay was given, and not otherwise. You see, +gentlemen, how they have endeavored to get the facts before you; +what a struggle it has been over all these obstacles—lack of +memory, the immensity of this record—how they have climbed +the Himalayas of difficulty; how they have gone over the Andes and +Rocky Mountains of trouble to get at the facts!</p> +<p>Fifteenth point. On page 4820 Mr. Bliss states that there could +not have been legally allowed, on the evidence on The Dalles route, +on expedition over $4,144. As a matter of fact, the evidence does +not cover the whole route as to the number of men and horses used. +The Government never proved the number of men and horses necessary +to carry the mail over the whole route, but only a part. Mr. Ker +admits that the evidence is defective in that regard. When you have +no standard, gentlemen, you cannot measure.</p> +<p>Sixteenth point. On page 4820 Mr. Bliss, in speaking of the +route from Eugene City to Bridge Creek, says that, taking the +undisputed facts as they were, before and after the expedition, +Brady could not legally have allowed more than $2,991.23. The +evidence is (page 1343) that Wyckoff was the subcontractor from +July, 1878, to 1880. Powers first carried the mail in 1880. The +route was increased and expedited in June, 1879. Mr. Powers never +carried it from the expedition. Mr. Wyckoff was the only man who +did that, and Mr. Wyckoff was not called. Consequently there was no +evidence as to the number of men and horses used on either +schedule. That left the gentleman without a standard and without a +measure.</p> +<p>Seventeenth point. On page 4820 Mr. Bliss says that on the +Silverton and Parrott City route the oath was made for seven trips +a week on the present schedule, when it ought to have been two +trips on the old schedule and seven trips for the new schedule. As +there is no evidence as to the number of men and horses used on the +old schedule, of course there is no evidence in this record to +impeach that oath; you cannot find it.</p> +<p>Eighteenth point. On page 4822 Mr. Bliss states that after the +passage of the act of April 7, 1880, there were two increases upon +the White River route. The fact is there was just one after the +passage of that law. Of course a little mistake like that does not +make much difference in a case of this magnitude.</p> +<p>Nineteenth point. On page 4824 Mr. Bliss states that Raton was +put on the Trinidad route April 24, 1879 (Page 1031 ). The office +was embraced on the routes July 1, 1878. The first order in +reference to it was made June 6, 1878. It was put on the route from +July 1, 1878, increasing the distance twenty-three miles. Yet Mr. +Bliss tells you that it was put on the route April 24, 1879.</p> +<p>Mr. Bliss. Is not that the date of the order?</p> +<p>Mr. Ingersoll. It may have been the date of your order.</p> +<p>Mr. Bliss. Is not that the date of the order in the case?</p> +<p>Mr. Ingersoll. I do not know anything about that. I give you the +exact facts.</p> +<p>Twentieth point. On page 4825, Mr. Bliss, in speaking of the Ojo +Caliente route, charges that by the order increasing the trips on +this route in February, 1881, there was paid from the Treasury +illegally two thousand and eleven dollars and forty-six cents. As a +matter of fact had we been paid for that entire quarter it would +have amounted to seven thousand one hundred and thirty-nine dollars +and forty-one cents. The pay was not adjusted until April 22< +1881 (page 731). The amount that was then paid was not seven +thousand one hundred and thirty-nine dollars and forty-one cents, +but it was three thousand seven hundred and twenty-seven dollars +and twenty-two cents. It was not for the entire quarter, but simply +for the actual service rendered. The quarterly pay for the +preceding quarter, before the expedition, was three thousand three +hundred and fifty-eight dollars and twenty-six cents; showing that +we received only for that quarter an excess, on account of +expedition, of three hundred and sixty-eight dollars and ninety-six +cents. But he told you that we got illegally two thousand and +eleven dollars and forty-six cents. That is a small matter.</p> +<p>Twenty-first point. On page 4897, Mr. Bliss says in effect that +Dorsey undertook to state that he kept no books; that he was doing +a business amounting, I think he says, to six million dollars a +year, and yet he kept no books. On the contrary, Dorsey swore that +he did keep books; on the contrary, he swore that Kellogg was his +book-keeper. Kellogg swore that he did keep the books. Torrey swore +that he was his book-keeper, and kept the books. And yet Mr. Bliss +stood up before this jury and said to you that Mr. Dorsey wanted +you to believe, or stated that he kept no hooks of that immense +business. It will not do. No books but the red books, I suppose, +were kept.</p> +<p>Twenty-second point. At page 4883, Mr. Bliss says that in regard +to one of Vaile and Miner's routes (Canyon City to Fort McDermitt) +there were large profits, amounting to twenty thousand dollars a +year. Then he says eighty thousand dollars during the four years. +And yet Mr. Bliss knew at that time that that expedition lasted +only eleven months. Trying to fool the jury about sixty-two +thousand dollars.</p> +<p>Twenty-third point. On page 4815 Mr. Bliss states that the fines +on the Bismarck and Tongue River route, during Brady's +administration, were only thirteen thousand dollars. If you will +look at page 727 of this record, where the table is put in evidence +as to the fines, you will find that he deducted from the pay +twenty-nine thousand two hundred and twenty-four dollars. Mr. Bliss +made a mistake of sixteen thousand two hundred and twenty-four +dollars. But in a case like this that is not important. Gentlemen, +you know you cannot always be accurate.</p> +<p>Mr. Bliss is an accurate man, as a rule. He has been called the +index of this business for the Government. Twenty-fourth point. On +page 4987 Mr. Bliss says:</p> +<p>The one fact of the evidence of the payment of money by Dorsey +to Brady remains the same whether the books were put out of the way +by Dorsey or by Rerdell. That is the great central point, so far as +the books were concerned; and as to that the testimony is +absolutely uncontradicted.</p> +<p>Mr. Brady swears that Dorsey never gave him a dollar. Dorsey +swears that he never had a money transaction with Brady amounting +to one cent. Mr. Rerdell does not pretend to swear that he knows of +Mr. Dorsey having paid a dollar to Mr. Brady. He does not pretend +to swear that he knows of any one of these defendants having paid +one dollar to Mr. Brady. And yet Mr. Bliss will tell you that the +fact that Dorsey paid Brady money is uncontradicted.</p> +<p>Mr. Bliss. I did not intend that, Colonel Ingersoll. I do not +think it is capable of that interpretation.</p> +<p>Mr. Ingersoll. What did you mean?</p> +<p>Mr. Bliss. As to the statement being in the books it is +uncontradicted.</p> +<p>Mr. Ingersoll. Let me see. He now turns and says he did not mean +the money, he meant the books. The evidence is overwhelming on our +side that the books did not exist. When you deny the existence of +the book I take it you deny the existence of any item in it. It is +a question whether any such books ever existed, gentlemen. Rerdell +swore in the affidavit of June 20, 1881, and he swore to that +affidavit three times hand-running, that no such books existed. He +swore substantially the same thing on the 13th of July, 1882. He +told Mr. French that no such books ever existed. He told Judge +Carpenter that no such books ever existed. He stated to Bosler that +no such books ever existed. And now this gentleman says the +evidence is uncontradicted that Brady was charged in those books. +That is a good deal worse than the other. Let us go on.</p> +<p>Twenty-fifth point. At page 4962 Mr Bliss says that Mr. Dorsey, +according to his own statement—Had brought Rerdell up and led +him to infamy.</p> +<p>Did Dorsey make any such statement? Did Mr. Dorsey, gentlemen, +in your presence, swear that he had brought Rerdell up? Did he, in +your presence, swear that he had led him to infamy? Did he, in your +presence, swear that he had done anything of the kind? I have got +the exact words.</p> +<p>Who, according to his own statement, he, Dorsey, had brought up, +had led to infamy, and who, according to his own statement, had +stated that MacVeagh had told a lie.</p> +<p>A curious use of the English language. I believe it is in that +connection, though, that he speaks about Mr. Dorsey having the +impudence to go to the President of the United States. That is not +a very impudent proceeding. In this country a President is not so +far above the citizen. In this country we have not gotten to the +sublimity of snobbery that a citizen cannot give his opinion to the +President; especially a citizen who did all he could to make him +President; especially a citizen in whom he had confidence. Not much +impudence in that. I do not think that during the campaign General +Garfield would have regarded it impudent on the part of Mr. Dorsey +to speak to him. I do not believe in a man, the moment he is +elected President, feeding upon meat that makes him so great that +the man who helped put him there cannot approach him, and every man +who voted for him helped to put him there. I am a believer in the +doctrine that the President is a servant of the people. I have not +yet reached that other refinement of snobbery.</p> +<p>Mr. Bliss. In point of fact, Colonel Ingersoll, I made no such +statement. Now let me read the passage on the very page you refer +to.</p> +<p>Patched up the affidavit of Mr. Rerdell, addressed it to the +President, admittedly went to the President with it, and then had +the impudence to come here and malign the character of General +Garfield by saying that upon that affidavit of an accused man, +instead of seeking a trial, he would have removed two members of +his Cabinet.</p> +<p>I meant nothing about the impudence of going to the +President.</p> +<p>Mr. Ingersoll. He had the impudence then to come here and malign +Garfield by saying that upon that statement he would have turned +out two members of his Cabinet. That is Mr. Bliss's idea of +impudence; and yet, upon the testimony of the same man, he wants to +put five men in the penitentiary.</p> +<p>Mr. Bliss. Not upon the sole testimony, I suppose.</p> +<p>Mr. Ingersoll. Not upon the soulless testimony. Now, I think +that Mr. Dorsey had a right to go and see Mr. Garfield. I think he +had a right to take that affidavit with him. General Garfield was +told what this man had said concerning Mr. Dorsey. He had the right +to take that affidavit of that man with him so that General +Garfield, or the then Attorney-General rather, might know how much +confidence to put in the statement of that man. He had a right to +do that. If he found in this way that his Attorney-General and his +Postmaster-General were seeking to have a man convicted by means +not entirely honorable, then it was not only his privilege, but it +was his duty to discharge them from his Cabinet. But I am not +saying anything in regard to them now, because they are not here to +defend themselves.</p> +<p>Mr. Bliss. I want to correct myself. Further down on that page I +see I did refer to the impudence of this man going to Garfield.</p> +<p>Mr. Ingersoll. Well, as Mr. Bliss has been fair enough to state +it, I will not follow up my advantage. On another page Mr. Bliss +says that the idea that Mr. Vaile did what he did for Miner out of +any sympathy is "too thin." Mr. Bliss cannot believe that Vaile +became Miner's friend so suddenly, but he thinks it highly probable +that they conspired instantly. That is his view of human nature. +Friendship is of slow growth; conspiracy is a hot-house plant. +Gentlemen, is that your view of human nature, that a man cannot +become the friend of another suddenly? Whenever he does become his +friend the friendship has to be formed suddenly, does it not? There +is a first time to everything. A moment before it did not exist; a +moment afterwards it is dead very suddenly.</p> +<p>There was a boy came to town one morning and met an old friend. +The old friend asked the boy, "How is your father?" He says, +"Pretty well, for him." "How is your mother?" "Pretty well, for +her." "Well, how is your grandmother?" "She is dead." "Well," says +the old man, "she must have died suddenly." "Well," said the boy, +"pretty sudden, for her."</p> +<p>Whenever one man becomes the friend of another's, a moment +before that he was not, and a moment after he was. It must be +sudden. But I imagine that there was a friendship sprang up between +Vaile and Miner, and I will tell you why. They have been partners +ever since. You, gentlemen, have had the same experience a thousand +times. It is not necessary to conspire with a man in order to like +him. Neither is it necessary to like him to conspire with him. Men +have conspired without friendship a thousand times more, probably, +than they have formed friendships without conspiracy.</p> +<p>Mr. Bliss says that because Miner failed to produce the power of +attorney that Moore swore was given to him when he went West, the +jury have a right to infer that instructions to get up false +petitions were in writing and were included in that power of +attorney. Mr. Moore did not swear to the contents of that power of +attorney. Do you think that it is within the realm of probability +that a man ever gave a power of attorney to another and inserted in +it: "You are hereby authorized to get up false petitions; you are +further authorized to have them so written that you can tear them +off and paste others on?</p> +<p>"N. B. You will make such contracts with all contractors.</p> +<p>"P. S. Don't tell anybody."</p> +<p>There was another witness in this case, Mr. Grimes (page 808). +Not the one that wore the coat—All buttoned down +before—but Mr. Grimes, postmaster at Kearney. He came all the +way here to swear that he stopped using mail bills on the route +from Kearney to Kent because he was so ordered by a letter from the +Post-Office Department. Then it was discovered that he did not have +the letter with him; he went home to get the letter, but he never +came back any more.</p> +<p>We introduced Spangler (page 341) from the inspection division +of the Post-Office Department; I think he was in charge of that +division. He swore, as a matter of fact, that there never were any +mail bills on that route at all.</p> +<p>Mr. Carpenter. He was in charge of the mail bills on that +route.</p> +<p>Mr. Ingersoll. The mail bills on that particular route. That man +Grimes was brought clear here to prove that he stopped using mail +bills, and then we proved that there never were any mail bills used +on that route for him to stop using. I do not suppose that that man +was dishonest. These people just got around him and talked to him +until he "remembered it." They just planted the seed in his mind, +and then came the dew and the rain and the lightning until it began +to sprout and in time blossomed and bore fruit—mail bills. +When we come to find out that there never were any mail bills used, +away went Mr. Grimes.</p> +<p>On page 4969 Mr. Bliss says:</p> +<p>They have not, up to this moment, dared to state under oath, I +think, that those books are not in their possession.</p> +<p>On page 3784 Dorsey swears that he never received any such +books. Never saw any such books. He swore again and again that he +never heard of any such books.</p> +<p>Mr. Bliss. I stated distinctly that the defendants had not +stated that in the form required to excuse them from the +production. I stated that distinctly.</p> +<p>Mr. Ingersoll. All right; away goes that.</p> +<p>On page 4983 Mr. Bliss says:</p> +<p>Is it not an absurdity to suppose that Dorsey would leave +Rerdell in charge of his business from July, 1879, to August, 1880, +and then on from that time until the close of the contract term in +August, 1882; leave all the business in that way, and then through +Bosler settle the accounts with Mr. Rerdell and have no knowledge +in any way, not only of the entries contained in the books which +Rerdell kept, but have no knowledge that he kept any books +whatever? Is it not absurd to suppose any such thing? These ten +routes represented an income of two hundred and fifty-odd thousand +dollars a year, or a total business, including income and outgo, of +five hundred thousand dollars a year, for three years, going no +further than that. These ten routes alone represented transactions +amounting to half a million dollars a year. There were one hundred +and thirty routes and Mr. Dorsey took one-third in value if not in +number. If the value was the same, Mr. Dorsey took not less than +forty routes. As ten routes involved a business of one million five +hundred thousand dollars in that period, the forty routes involved +in that proportion transactions amounting to six million +dollars.</p> +<p>You made a calculation on the supposition that all the routes +were expedited the same as those in the indictment, and when you +made that calculation you knew they were not expedited.</p> +<p>Mr. Bliss. I object, your Honor, to his making any such +statement as that. In the first place, it is not evidence; and in +the second place, which is of more importance, it is not true. I +did not know any such thing, and I do not know any such thing.</p> +<p>Mr. Ingersoll. Do you say now that the other routes of his, to +the number you talked of, were expedited?</p> +<p>Mr. Bliss. I am not on the stand to be cross-examined now. But I +do say to your Honor that there is no evidence of that in this +case. And then I go beyond that, and say that I did not know those +things then and I do not know them now.</p> +<p>Mr. Ingersoll. Very well; he made the argument on the +supposition that all the routes were expedited. I say that not one +of them was expedited in which Mr. Dorsey had an interest.</p> +<p>Mr. Bliss. There is no evidence on that subject.</p> +<p>Mr. Ingersoll. Is there any evidence of what you say?</p> +<p>Mr. Bliss. I put a supposititious case; you have stated a +fact.</p> +<p>Mr. Ingersoll. I will put another supposititious case, and mine +is that the other routes were not expedited.</p> +<p>The Court. That is the right way to meet it. Counsel ought not +to turn to counsel on the other side and make an appeal to his +knowledge in regard to matters not in evidence.</p> +<p>Mr. Ingersoll. I know, but he said he did not know it. Then I +asked him, as a matter of fact, if he did not know—</p> +<p>The Court. [Interposing.] He stated his supposition, and you met +that supposition—</p> +<p>Mr. Ingersoll. [Interposing.] I am always glad to get +information. Now, then, I will go to another point, and that is the +$7,500 check. Mr. Bliss speaks of that check at page 4997, and he +says:</p> +<p>There is a question raised as to whether it was drawn in Mr. +Rerdell's presence.</p> +<p>I do not think there was. How could such a question be raised, +gentlemen? The check was made payable to M. C. Rerdell, or his +order. On the back of the check is Mr. Rerdell's name, put there by +himself. He is the only indorser. And yet Mr. Bliss tells you that +there is a question raised as to whether the money was drawn in Mr. +Rerdell's presence or not. The check shows, and the evidence is +absolutely perfect, that the money was paid to Rerdell in person. +The question is this: Whether it was drawn in Mr. Rerdell's +presence. If it was paid to him in person, I imagine that he was in +that neighborhood at that time. The check was written by him, +everything except the signature of Dorsey. It was drawn to Mr. +Rerdell, or order, and indorsed by Rerdell himself. There was no +other indorser. So that it is absolutely certain that he drew the +money in question. And yet Mr. Bliss says the question is whether +it was drawn in Rerdell's presence or not.</p> +<p>Mr. Bliss continues and states that the money went to S. W. +Dorsey. Did it? Mr. Dorsey, on page 3965, states the circumstances. +He was packing to go away. He had not the time to go to the bank +himself. He had the check written payable to Mr. Rerdell, or order, +and he signed it. Rerdell went to the bank, got the money, brought +it back and put it in his carpet-sack. That is the testimony.</p> +<p>Now, Mr. Bliss says:</p> +<p>No evidence was given as to what Stephen W. Dorsey was wanting +just at that time with seven thousand five hundred dollars in +bills.</p> +<p>According to Mr. Rerdell, he wanted that money to give to Mr. +Brady. That is what Mr. Rerdell intended to swear. But when he +found that that check was made payable to him, and indorsed by him, +then they had to take another tack. They dare not say then, "That +is the check." They dare not say then, "That is the money." Rerdell +had forgotten at the time he swore that that check was payable to +his order. When he told his seven thousand dollar story to MacVeagh +he forgot about that check. When he told it to the +Postmaster-General, if he did—I have forgotten whether he did +or not—he forgot about that.</p> +<p>Now, gentlemen, I will call your attention to the part to which +I really wish to direct your attention. It is an admission by the +Government, an admission by Colonel Bliss; it is in these words, on +page 4997, speaking of this very thing:</p> +<p>However that may be, they themselves put in a check here for +seven thousand five hundred dollars, drawn about the time Mr. +Rerdell spoke of, the money upon which admittedly went to Stephen +W. Dorsey, though there is a question raised as to whether it was +drawn in Mr. Rerdell's presence or whether it was not drawn by him. +But the money went to Stephen W. Dorsey, and there was a promise +made to show you what was done with that seven thousand five +hundred dollars. But, like many another promise in this case, it +remains unfulfilled to-day. No evidence was given as to what +Stephen W. Dorsey was wanting just at that time with seven thousand +five hundred dollars in bills.</p> +<p>Mr. Dorsey offered to tell you what he did with it, and you said +you did not want it; you did not want to know when he was on the +stand. He offered to tell you what he did with the money, and you +would not take his statement. Hear what he says:</p> +<p>Mr. Dorsey was not taking seven thousand five hundred dollars in +bills to the West.</p> +<p>How do you know? Who ever told Mr. Bliss that he was not taking +seven thousand five hundred dollars to the West? He must have got +that from Mr. Rerdell. May be that is the reason they would not +allow Dorsey to tell, because before that time they had been +informed that he would swear that he took the seven thousand five +hundred dollars to the West. How else did Mr. Bliss find this +out?</p> +<p>It is not in the evidence, not a line. Somebody must have told +him. Who could have told him? Nobody, I think, except Mr. Rerdell. +Is it possible, then, that Mr. Bliss was afraid that Mr. Dorsey +would swear that he took it West? And was he afraid also that you +would believe it? I do not know. He did not want him to state. Now +here is what I want to call your attention to:</p> +<p>After all the talk about that evidence, all the talk about the +seven thousand dollars, all the talk about the seven thousand five +hundred dollar check, Mr. Bliss at least, admits to this jury:</p> +<p>Of course all that transaction might have occurred precisely as +Mr. Rerdell testified, and there might have involved no corruption +on Mr. Brady's part.</p> +<p>If, then, it may have occurred exactly as Rerdell swore, and +involved no corruption, certainly it might have occurred as Mr. S. +W. Dorsey swore and involved no corruption. I will go on now with a +little more from Mr. Bliss:</p> +<p>The drawing of the money and going to Mr. Brady's room might +have been a mere accident, as a call there to attend to some other +business.</p> +<p>Of course, that is reasonable. I might go the bank and draw five +thousand dollars, and then I might stop in the Treasury Department, +but that is no evidence that I am bribing the Secretary of the +Treasury. I might step over to see the President; that would be no +reason to believe that I bribed the Executive.</p> +<p>Of course that is not conclusive. It is only a little straw in +this case, as showing a transaction of that kind involved in +connection with all the evidence you have in this case—A +little straw evidence of Mr. Brady's acts, and particularly as at +the time when that occurs evidence in connection with the large +increases which Mr. Brady was then ordering; evidence in connection +with the books, and the evidence they bear; evidence in connection +with the declarations of Brady to Walsh—evidence all +consistent.</p> +<p>And then he adds this piece of gratuitous information:</p> +<p>Mr. Dorsey was not taking seven thousand five hundred dollars in +bills to the West.</p> +<p>How does he know? How did he find that out? And has it come to, +this? Has all the testimony upon that point—has the +confession of Rerdell to MacVeagh and James shrunk to this little +measure—that it is "only a straw"? Has it shrunk to this +measure that Mr. Bliss admits that the whole thing might have been +exactly as Rerdell swears, and yet have been perfectly innocent? +Has it shrunk to this little measure? The Government would not tell +us—I presume the Government will not tell us, what check it +was, the proceeds of which were taken by Mr. Dorsey to Mr. Brady. +Neither will they say whether that sum was made up in one check or +by adding together a number of checks; and, if so, what number?</p> +<p>At page 295 Mr. Bliss told you, in his opening speech, that +Rerdell had on one occasion gone with Mr. Stephen W. Dorsey to the +bank, and that seven thousand dollars had been drawn; that he had +gone with Dorsey to the door of the Post-Office Department, or to +Brady's room, at the time—he would not undertake to say +which—Mr. Dorsey stating to him that he intended to pay that +money to Mr. Brady, and that he (Mr. Dorsey) then went in. But when +they come to put this man on the stand he will not swear that +Dorsey ever told him that he intended to pay the money to Brady. +Probably that part of the statement, that Dorsey told him that he +was going to pay that money to Brady, can be found in the affidavit +made before Mr. Woodward, in September, and repeated in the +affidavit made at Hartford in November. But it is not in evidence +here.</p> +<p>Now, we brought all the checks that we had given on Middleton's +bank, with the exception of two, I believe, that amounted to some +hundred and odd dollars. We gave the Government counsel notice that +there were two others.</p> +<p>Among those checks was this one for seven thousand five hundred +dollars. There were many others. I asked the gentlemen to pick out +their check; they would not do it. I asked the gentlemen to pick +out the checks; they did not do it. And now if we had failed to +produce checks that were important in this case, the Government +could have produced the books and clerks of Middleton & +Company, and shown exactly the checks we drew upon that bank that +month. They did not do it. As a matter of fact, I offered all the +checks on all the banks I could think of that we had any business +with in any way, except one, and that turned out to be the +German-American Savings Bank, and it turned out that that went into +bankruptcy eight months before this business; so there is no +trouble about that. Why did they not pick out the checks upon which +they claimed that the money was drawn that was paid to Brady?</p> +<p>Mr. Rerdell, on page 2254, in speaking of the money, swore that +money was charged to Brady on the stub. He says that Dorsey told +him, "You will find the amount on the stub of the check-book." The +jury will notice that he speaks of the "amount," the "stub," and +the "book," all in the singular. That was followed, I believe, by +about six pages of discussion, and everybody who took part in that +discussion, the Court included, spoke of the sum of money as an +"amount," upon a "stub," in a "checkbook."</p> +<p>I call attention to 2254-'55-'56-'57-'58-'59. On all those pages +it is spoken of as a stub of a check-book, or amount on a stub in a +check-book. After the discussion was closed, then the witness began +to talk about "books," "checks," "stubs," and "amounts." Why did he +do that?</p> +<p>His object was to get the evidence broad enough—checks and +check-books enough—to fit their notice, to the end that they +might get possession of all the check-books, and of all the amounts +on all the stubs.</p> +<p>What more? The discussion convinced Mr. Rerdell that it would be +far safer to say "stubs" than "stub"; that it would be far better +to say "check-books" than "checkbook," and far better to say +"amounts" than "amount"; because he would have a better chance in +adding these up so as to make six thousand five hundred dollars, or +seven thousand dollars, or six thousand dollars, than to be brought +down to one check, one amount, and one stub-book. So he went off +into the region of safety, into the domain of the plural.</p> +<p>Now, the last point—at least for this evening—so far +as Mr. Bliss is concerned, I believe, is about the red books. Mr. +Bliss tells you that Mrs. Cushman was telegraphed to from the far +West. There was a little anxiety, I believe, on the part of Rerdell +about the book, and he telegraphed her. She found it there in the +wood-shed, you know, hanging up, I think, in the old family +carpet-sack—I have forgotten where she found it—and she +put it away. Now, there is a question I want to ask here, and I +know that Mr. Merrick when he closes will answer it to his entire +satisfaction; I do not know whether he will to yours or to mine: +How does it happen that Mrs. Rerdell never saw that red book? How +does it happen that Mrs. Rerdell, when she was put on the stand, +never mentioned that red book? How does it happen that she never +heard of it when her husband went to New York to get it; when +everything he had in the world, according to his idea, was +depending upon it; when it was his sheet-anchor; when it was the +corner-stone of his safety? And yet his wife never heard of it, +never saw it, did not know it was in the wood-shed, slept in that +house night after night and did not even dream that her husband's +safety depended on any book in a carpet-sack hanging in the +wood-shed. She never said a word about it on the stand, not a word. +Gentlemen, nobody can answer that question except by admitting that +the book was not there and did not exist.</p> +<p>But perhaps I have said enough about the speeches of Mr. Ker and +Mr. Bliss. Of course, their business is to do what they can to +convict. I do not know that I ought to take up much more time with +them. I feel a good deal as that man did in Pennsylvania who was +offered one-quarter of a field of wheat if he would harvest it. He +went out and looked at it. "Well," he says, "I don't believe I will +do it." The owner says, "Why?" "Well," he says, "there is a good +deal of straw, and I don't think there is wheat enough to make a +quarter."</p> +<p>So now, gentlemen, if the Court will permit, I would like to +adjourn till to-morrow morning.</p> +<p>Now, gentlemen, the next witness to whose testimony I will +invite your attention is Mr. Boone. Mr. Boone was relied upon by +the Government to show that this conspiracy was born in the brain +of Mr. Dorsey; that these other men were simply tools and +instrumentalities directed by him; that he was the man who devised +this scheme to defraud the Government, and that it was Dorsey who +suggested the fraudulent subcontracts. They brought Mr. Boone upon +the stand for that purpose, and I do not think it is improper for +me to say that Mr. Boone was swearing under great pressure. It is +disclosed by his own testimony that he had eleven hundred routes, +and that he had been declared a failing contractor by the +department; and it also appeared in evidence that he had been +indicted some seven or eight times. Gentlemen, that man was +swearing under great pressure. I told you once before that the hand +of the Government had him clutched by the throat, and the +Government relied upon his testimony to show how this conspiracy +originated. Now I propose to call your attention to the evidence of +Mr. Boone upon this subject.</p> +<p>On page 1352 Mr. Boone swears substantially that on his first +meeting with Stephen W. Dorsey—that is, after they met at the +house—he said to Dorsey that he (Boone) would be satisfied +with a one-third interest. Now, the testimony of Boone is that Mr. +Dorsey then and there agreed that he might have the one-third +interest.</p> +<p>Mr. Dorsey says it is not that way; that he told him that when +the others came they would probably give him that interest, or +something to that effect.</p> +<p>Mr. Boone further swears that when J. W. Dorsey did come there +was a contract—or articles of agreement you may call +them—handed to him by J. R. Miner, purporting to be articles +of partnership between John W. Dorsey and himself, and that he +signed these articles; that that, I believe, was on the 15th of +January, 1878, and that it was by virtue of that agreement that he +had one-third. It was not by virtue of any talk he had with S. W. +Dorsey that he got an interest, and you will see how perfectly that +harmonizes with the statement of Stephen W. Dorsey.</p> +<p>Mr. Dorsey's statement is: "I cannot make the bargain with you, +but when John W. Dorsey comes I think he will, or they will." It +turned out that when John W. Dorsey did come in January he did +enter into articles of partnership with A. E. Boone, and did give +him the one-third interest. So the fact stands out that he got the +one-third interest from John W. Dorsey and not from Stephen W. +Dorsey. If the paper had been written and signed by Stephen W. +Dorsey that would uphold the testimony of Boone. If Boone had said, +"I made the bargain with Stephen W. Dorsey," and the articles of +co-partnership were signed by him, I submit that that would have +been a perfect corroboration of Boone. Stephen W. Dorsey swears +that the bargain was made with John W. Dorsey, and you find that +the agreement was signed by John W. Dorsey, and not by Stephen W. +Dorsey. I submit, therefore, that that is a perfect corroboration +of the testimony of Stephen W. Dorsey.</p> +<p>At page 1544 Mr. Boone says that, as a matter of fact, all +contractors endeavored to keep what they were doing secret from all +other contractors. Think of the talk we have heard about secrecy. +If the bidders upon any of these routes did not want the whole +world to know the amount they had bid, that secrecy was tortured +into evidence of a criminal conspiracy. If John W. Dorsey did not +want the world to know what he was doing, if Mr. Boone wanted to +keep a secret, these gentlemen say it is because they were engaged +in a conspiracy to defraud the Government, and crime loves the +darkness. What does Mr. Boone say? As a matter of fact, that all +contractors endeavored to keep what they were doing secret from all +other contractors where they feared rivalry. Of course that is +human nature.</p> +<p>Mr. Boone further says that he never knew of one contractor +admitting even that he was going to bid. He always pretended, don't +you see, that he was not going to bid. He wanted to throw the other +contractors off their guard. He did not want them to imagine that +he was figuring upon that same route, because if they thought he +was, they might put in a much lower bid. He wanted them to feel +secure, so that they would put in a good high bid, and then if he +put in a tolerably low bid he would get the route. That is simply +human nature.</p> +<p>Boone further says that always when a letting came on he had his +bids in; that contractors keep their bids secret from rival +contractors, not for the purpose of defrauding the Government, but +for the purpose of taking care of their business. Now, gentlemen, +when men make these proposals and keep their business +secret—as it turns out that in these cases they were keeping +their business secret—the fact that they are so doing is not +evidence going to show that they are keeping that business secret +because they have conspired. Have you not the right to draw the +inference, and is it not the law that you must draw the inference, +that they kept their business secret for the same reason that all +honest men keep their business secret?</p> +<p>At page 1545, Mr. Boone, swearing again about his talk with Mr. +Dorsey that night after the arrangement was concluded, says that +he—Dorsey—told me to be careful of Elkins, because +Elkins was representing Roots & Kerens, large contractors, * * +* the largest in the department, at that time, in the +Southwest.</p> +<p>And yet that evidence has been alluded to as having in it the +touch and taint of crime, because S. W. Dorsey said to Boone to say +nothing to Elkins. Who was Elkins? He, at that time, as appears +from the evidence, was the attorney of Roots & Kerens; and who +were they? Among the largest, if not the largest contractors in the +department; that is, the largest in the Southwest.</p> +<p>Mr. Boone stated that the letter of Peck to S. W. Dorsey +requested him to get some man who knew the business to look after +the bids or proposals. Now, I want to ask you, gentlemen, and I +want you to answer it like sensible men, if Stephen W. Dorsey got +up a conspiracy himself, why was it that Peck wrote to him asking +him to get some competent man to collect the information about the +bids—that is, about the country, about the routes, about the +cost of living, about wages, the condition of the roads, and the +topography of the country?</p> +<p>If it was hatched in the brain of Stephen W. Dorsey, how is it +possible, gentlemen, that a letter was written to him by Peck +asking him to get a competent man to gather that information? Mr. +Boone swears that he had such a letter. Mr. Boone swears that +Dorsey showed the letter to him. Mr. Boone swears that, in +consequence of that letter, he went to work to gather this +information. Did Mr. Dorsey do anything about gathering +information? Nothing. Did he give any advice? None. Did he ask any +questions? Not one. Did he interfere with Mr. Boone in the +business? Never.</p> +<p>You know that was a very suspicious circumstance. I believe +there was a direction given that letters be sent to James H. +Kepuer. That was another suspicious circumstance. Mr. Boone swears +that he was also in the mail business; that he did not want the +letters to go some place; that he had to give at the department an +address; that thereupon he chose the name of James H. Kepner, his +step-son, so that all the mail in regard to this particular +business would go in one box, and not be mingled with the mail in +reference to his individual business or the business represented by +the firm to which he belonged. What more does he swear? That +neither Dorsey nor any one of these defendants ever suggested that +name, or ever suggested that any such change be made; that it was +made only as a matter of convenience; that it was not intended to +and could not in any way defraud the Government.</p> +<p>Now, Mr. Boone has cleared up a little of this. He has cleared +up the letter; he has cleared up the charge of secrecy; he has +cleared up the charge that we had the letters addressed to James H. +Kepner & Co.; he has shown that everything done so far was +perfectly natural, perfectly innocent, and in accordance with the +habits of men engaged in that business.</p> +<p>Now I come to the next thing (page 1550). The next great +circumstance in this case, the great suspicious circumstance, was +that the amount of the bid was left blank in the proposals. The +moment they saw those blanks in the bids they knew then that the +Government was to be defrauded, and they brought Mr. Boone here for +the purpose of showing that that was done to lay the foundation for +a fraud. What does Boone swear? He swears that he always left that +part of the proposal blank; always had done so; had been engaged in +the mail business for years, and never filled that blank up in his +life, in which the amount of the bid should be inserted. It was not +left blank to defraud the Government, but to prevent the +postmasters and sureties, or any other persons, finding out the +amount of the bid. Away goes that suspicious circumstance.</p> +<p>After the bids had been properly executed and came back into the +hands of the contractors, from the time the figures were put into +those routes, what does he say they did?</p> +<p>We slept with them until we could get them to the +department.</p> +<p>He says they never allowed anybody to see them after the amount +of the bid had been inserted; that they would not allow anybody to +see the amount of the bids; that it was left out, however, only for +self-protection, and for no other reason. That is the Government's +own witness. He is the man they brought to show that this blank in +the bid was a suspicious circumstance. He is the man they brought +here to show that because Stephen W. Dorsey had told him to say +nothing to Elkins, that injunction of secrecy was evidence of a +conspiracy.</p> +<p>At page 1552, Mr. Boone, in speaking of these same things, says +that however they were made, whether the name of the bidder or the +route was put in, or whatever he did—that is, Boone—he +did not do it for the purpose of defrauding the Government. They +say to him, "Don't you know that you left out not only the amount +of the bid, but the name of the bidder?" He says, "Whatever I did, +whether I left out the amount of the bid or the name of the bidder, +I did not do it for the purpose of defrauding the Government; I had +no such idea, no idea of defrauding the Government by leaving any +blank or any blanks." He did the work. Stephen W. Dorsey left no +blank; A. E. Boone left every blank; and yet they brought him +forward to prove that that was the result of a conspiracy; and +after he comes upon the stand he swears, "I left those blanks +myself; I always left them in proposals exactly in that way; and +whether I left out the amount of the bid or the name of the bidder, +I did not do it to defraud the Government; I did it simply to +protect myself, as I had the right to do." So much for that. That +is gone.</p> +<p>So, speaking of these other proposals (the Clendenning +proposals) what does Mr. Boone say—the witness for the +Government, the very man who got up those proposals, the man who +wrote them, the man who wrapped them up, and sealed them? What does +he say? "Those proposals were not gotten up for the purpose of +defrauding the Government; I did not send them to Clendenning for +that purpose." That is the end of that. No conspiracy there.</p> +<p>The object, don't you see, gentlemen, was to show by Boone that +he acted under the direction of Dorsey; that Dorsey was responsible +for everything that Boone did; and that although Boone was guilty +of no crime in leaving the bid blank, still if he did it by +authority of Dorsey, Dorsey had an ulterior motive of which Boone +was ignorant. Let us see.</p> +<p>At page 1554, Mr. Boone swears that Dorsey never told him at any +time or any place that he wanted any blanks left. And yet they were +endeavoring by that witness to saddle that upon S. W. Dorsey. But +that witness swears that Dorsey never even told him that he wanted +any blanks left in any paper, proposal, bid, or bond. He says that +Dorsey never at any time or place told him (Boone) that he (Dorsey) +wanted any blanks left, or any proposals of any particular form +printed, to the end that a fraud might be perpetrated upon the +Government—not a word.</p> +<p>And, gentlemen, I am now in that space of time where they say +this conspiracy was born. At page 1567, before Miner got here, Mr. +Boone swears that Dorsey told him that he would advance money for +the other defendants, and Mr. Boone swears that after he got here +he never asked Dorsey for a dollar except through Miner; that +Dorsey never gave a dollar except through Miner.</p> +<p>What more? This is the witness that is going to establish the +guilt of Stephen W. Dorsey. Stephen W. Dorsey never told Boone at +any time that he had any interest whatever in those mail routes. +Boone never heard of it. Dorsey never told him to print a proposal +with a blank; never told him to leave a blank after it was printed; +never told him to do anything for the purpose of defrauding the +Government in any way at any time. This is extremely good reading, +gentlemen, when you take into consideration that this is the +witness of the Government, their main prop until the paragon of +virtue made his appearance upon the stand.</p> +<p>Page 1558. Another great point: That in preparing the +subcontracts, Dorsey having it in his mind to conspire against the +Government, or really having conspired, according to their story, +wanted a provision in a subcontract for increase and +expedition.</p> +<p>Why, it strikes me, gentlemen, that that is evidence of honesty +rather than dishonesty. If these subcontracts were to hold good +during the contract term, and if in the contract given to the +contractor by the Government there was a clause for increase and +expedition, why should not the subcontract provide for the same +contingencies that the contract provided for with the Government? +That looks honest, doesn't it?</p> +<p>It was advertising the subcontractor that the moment he signed +his subcontract the trips were liable to be increased and the time +was liable to be shortened, and that if the time was shortened or +the trips increased the pay was to be correspondingly increased. +But I will go on with the testimony.</p> +<p>Page 1558: In preparing the subcontract Mr. Dorsey instructed +Boone to provide for an expedition clause. That was a suspicious +circumstance. What for? To conform to the expedition clause in the +contract with the Government. If making it like the Government +contract is evidence of conspiracy, the fact that the Government +contracts have that clause is evidence that the Government +conspired with somebody. It is just as good one way as the other. +The Government made a contract with the contractor, the contractor +made one with the subcontractor, and the contractor so far forgot +his duties, so far forgot his moral obligations, that he made it +just the same as his contract with the Government. Gentlemen, is +there any depth of depravity below that? Absolutely copying the +contract that the Government was going to make with him, and +treating the subcontractor, so far as the contract was concerned, +as the Government had treated him, he (Boone) prepared a clause +which he thought filled the bill, and which he still thinks, I +believe, would have been better to use than the other. When he +showed that to Stephen W. Dorsey, Dorsey suggested another form. It +was the same thing exactly, but in different words. There was the +testimony I have read to you, and now here is what Mr. Bliss states +about it at page 4865:</p> +<p>But Stephen W. Dorsey, away back there, knew sufficient about +expedition to appreciate the importance of keeping for the +contractors thirty-five per cent, and giving to the men who were +performing the service only sixty-five per cent.</p> +<p>Why not? Is that a crime? Suppose I agreed to carry the mail +four years for $10,000 a year and I subcontract with another man. +Have I not the right to get it carried as cheaply as I can? I just +ask you that as a business proposition. Or has every mail to treat +this Government as though it was in its dotage? Must you do +business with the Government as though you were contracting with an +infant or an idiot? Must you look at both sides of the contract? +That is the question. The Government, for instance, advertises for +so much granite, and I put in a bid which is accepted; at the same +time I know that I could furnish that granite for twenty-five per +cent. less. Is it my duty under such circumstances to go and notify +the Government that I have cheated it, and that I would like to +have it put the contract down? There may be heights of morality +that would see the propriety of such action, but it is not for +every-day wear and tear. Very few people have it; it scarcely ever +comes into play in trading horses. Must we treat the Government as +though it were imbecile? I say it was a simple business +transaction. The Government advertises for proposals to carry the +mail; I make my bid for $10,000, and we will say that my bid is +accepted. Now, I admit that I could carry it for $5,000 and make +money.</p> +<p>Am I criminal if I go on and perform the contract as I agreed +and draw the money? Or suppose the people along the route do not +want it expedited and increased, and so I talk to them about it; I +go to Mr. Brown and say, "Mr. Brown, you are living in this smart, +thriving town, and you need a daily mail." I go to the next village +and I say, "Why, gentlemen, you will never have a town here until +you have a daily mail; I am the fellow now carrying the mail." And +I keep talking about it, you know, and finally get a fellow to get +up a petition, or I write one myself, and send it around, and say +to them, "Gentlemen, what you want is more mail, faster mail; the +mail is the pioneer of civilization, gentlemen; have a daily mail, +and along the line at once towns and villages and cities will +spring up, and all the hillsides will be covered with farms, and +school-houses will be here, and wealth will be universal." Any +crime about that. Every railroad has been built just that way. +Every park has been laid out in every city by just such means. +Nearly every street that has been improved has been improved in +that way, by men who had some interest in the property, by men who +were to be benefited by it themselves, and who ought to be +benefited. Should the men that get the public attention in that +direction be benefited, or the men who do nothing? I say that the +men who give attention to the business have a right to be benefited +by it. And yet here is the crime, gentlemen. And then we only gave +these fellows sixty-five per cent, and took thirty-five ourselves, +because we were bound to the Government to fulfill the contract, as +was explained to you so admirably, so perfectly, by Judge Wilson. +The contract was to run for four years, and I believe in a certain +contingency for six months thereafter. We had to carry out the +contract, whether the subcontractor carried out his contract with +us or not.</p> +<p>Now, this is what Mr. Bliss says:</p> +<p>So, after a large mass of subcontracts had been struck from the +press, which gave to the subcontractors all the +increase—There never was a subcontract that gave to the +subcontractors all the increase; there is no evidence that there +ever was such a subcontract, he—That is, Stephen W. +Dorsey—directed them to be put back on the press.</p> +<p>I should think he would. If he found any subcontracts were +printed that gave to the subcontractor all the increase, I do not +wonder that he had them destroyed.</p> +<p>Here you get, we will say, a contract for ten thousand dollars +for one trip, with the agreement that if there are two trips the +compensation shall be twenty thousand dollars. Thereupon you make a +contract with a subcontractor, and you agree in that subcontract +that he shall have all the increase. Of course, you want that made +over again; of course, you would not make that kind of a +subcontract.</p> +<p>He directed them to be put back on the press, and this provision +giving the subcontractor his money struck out and this other clause +put in.</p> +<p>Gentlemen, that is an entire and absolute mistake. There is no +such evidence, there never was in this case, and I take it there +never will be. The evidence was—and you remember it; and you +remember it; and you remember it; and you [addressing different +jurors]—that Stephen W. Dorsey allowed to the subcontractor +sixty-five per cent, of the expedition, and that same subcontractor +provided what he should have for one trip, and what he should have +for two trips; that is to say, what he should have for increase; +and it provided at the same time for sixty-five per cent, on +expedition. Mr. Boone swears it; others swear it. Not only that, +but it is printed in the record again and again and again. Why did +Stephen W. Dorsey do that? I can tell you why: He did not. Why did +Stephen W. Dorsey do that, if it was not because his fertile +imagination had already conceived the plan of defrauding the United +States, and he was making an arrangement by which that fraud could +be consummated? How would that help him consummate a fraud? Suppose +he struck out all the per cent, to the subcontractors; suppose he +had not had any subcontract printed; suppose the subcontract was +printed, and printed on purpose to deceive and defraud the +subcontractors; how does that show that he was trying to defraud +the United States? Why, if it proves anything it proves the other, +that he had not entered into a conspiracy by which he could get the +money from the United States, but had endeavored to get it from the +subcontractors. If it proves anything it proves that. But the +reason it does not prove anything is because the statement is not +correct.</p> +<p>Now, just see how a conspiracy can be built of that material. A +man that can do that can make a cover for Barnum's Circus with one +postage-stamp; he can make a suit of clothes out of a rabbit-skin; +he can make a grain of mustard seed cover the whole air without +growing.</p> +<p>That is given as an evidence that Dorsey had conspired. There is +not a thing on the earth that he could have done that would not +prove conspiracy just as well as that—just exactly—no +other act. Humph! That is the way they build a conspiracy.</p> +<p>Why not take another step? Why not have a little bit of ordinary +good hard sense? On the 17th day of May, I believe, 1878, the act +was passed allowing the subcontractor to put his subcontract on +file. Now, that contract ought to provide for all the contingencies +of the service, so that if the trips were increased the Government +would know how much to pay that subcontractor; so that if the time +was expedited the Government would know how much to pay the +subcontractor. The subcontract ought to have been made in that way, +and it would be perfectly proper to make it in that way.</p> +<p>I once went to see a friend of mine who had the erysipelas and +who was a little crazy. I sat down by his bedside, and he said, +"Ingersoll, I have made a discovery; I just tell you I am going to +be a millionaire." Said I, "What is it?" He says, "I have found out +that if four persons take hold of hands after they have had a hole +made in the ground and put a piece of stove-pipe in it, and then +run around it as hard as they can from left to right, a ball of +butter will come out of the pipe." Now, I think that is about as +reasonable as the way conspiracies are made, according to Mr. +Bliss.</p> +<p>Now, we come to Mr. Boone (page 1560). He says that the action +he had taken was upon his own responsibility, and that at no time +had any papers been gotten up with any view of defrauding the +Government. That was good.</p> +<p>I am like the Democrat who said, after hearing the returns from +Berks County, "That sounds good." Then, here is a question asked +him:</p> +<p>Q. I understood you to say that the contract was made between +you and somebody, fixing your interest in all this +business?—A. Yes, sir.</p> +<p>Q. Do you recollect about the date of that?—A. I think it +is on the day John W. Dorsey got here in Washington.</p> +<p>On page 1561 he swears that at the time Boone made that contract +with John W. Dorsey he and Dorsey had not conspired to defraud the +Government in any way, nor did they ever do so after that contract +was made. When was that contract made? It was made on the 15th day +of January, 1878. Who made it? John W. Dorsey of the one part, and +Albert E. Boone of the other. And they tell exactly what that +contract was for. Here is the contract, on page 1561, and this +shows that the statement of Stephen W. Dorsey, that the matter was +deferred until John W Dorsey should come, is absolutely +correct:</p> +<p>That the parties to this agreement shall share in all the +profits, gains, and losses as follows: John W. Dorsey shall have +two-thirds and Albert E. Boone, share one-third.</p> +<p>Now, gentlemen, there was the original partnership agreement. +Let us see if that was ever dissolved.</p> +<p>The next contract was made on the 12th of September, 1878.</p> +<p>Now, therefore, in consideration of one dollar in hand paid, the +receipt whereof is hereby acknowledged, I hereby, sell, assign, and +transfer to Albert E. Boone all my said two-thirds interest in the +routes in the name of said Boone in the States of Texas, Louisiana +Arkansas, Kansas, and Nebraska, and in the name of said Dorsey in +the States of Texas, Louisiana, and Arkansas.</p> +<p>The reason he did that was because Mr. Miner had made a contract +with Boone to that effect; and probably I had better read that now +so that you will have it exactly and know what we are doing. I read +from page 1569;</p> +<p>Washington, D. C, August 7, 1878.</p> +<p>Whereas A. E. Boone has this day, for the purpose of saving a +failure in the routes in the name of John R. Miner, John M. Peck, +and John W. Dorsey—"For the purpose of saving a failure," +recollect. Although Stephen W. Dorsey, according to the +prosecution, was a conspirator, and although John W. Dorsey was +another, and Peck was another, yet on the 7th day of August, 1878, +"for the purpose of saving a failure," they made this: assigned to +John R. Miner his one-third interest in the routes in their names, +now, therefore, I, John R. Miner, agree that John W. Dorsey shall +assign his interest in routes in the name of A. E. Boone in Kansas +and Nebraska, Texas and Louisiana, and Arkansas; in the name of +John W. Dorsey, in Texas, Louisiana, and Kansas. The latter clause +not guaranteed.</p> +<center>JOHN R. MINER.</center> +<p>Now, he said to Mr. Boone, "I have got to have another man come +in; we haven't got the money to run these routes; I have got to get +somebody with us; if you will go out, I will agree that John W. +Dorsey will assign to you his two-thirds interest in all the routes +in Kansas, Nebraska, Texas, Louisiana, and Arkansas. I will agree +that John W. Dorsey, although he has a two-thirds interest in all +these routes, shall assign them to you, A. E. Boone, and they shall +thereupon become your property." That agreement was made on the 7th +of August, 1878; and then, as I read you before, on the 12th day of +September, Miner made that promise good, and John W. Dorsey did +assign to Boone his two-thirds interest in all the routes that +Miner said he would. Then Boone was out of it. He had no more to do +with Miner, Peck & Co., and no more to do with John W. Dorsey; +he went his road and they went theirs. He went out in consideration +that John W. Dorsey would give him (Boone) two-thirds of all the +routes that he before that time had one-third in. Then Miner took +in Mr. Vaile, because he had the money to go on with the +business.</p> +<p>Page 1562, still talking about Mr. Boone. There is another very +suspicious circumstance that was brought up by the prosecution. +These bids were put in in different names, and that was looked at +as a very suspicious circumstance. What does Boone say about that? +He says that the object in bidding in separate names was not to +defraud the Government, but was to have the service divided up and +not to bid against each other. That was reasonable. The arrangement +was simply to keep from injuring themselves; it was not made to +defraud the Government, but it was made so that they might not by +accident injure each other. It was a common thing for members of a +firm to bid in that way, and it is a common thing for persons to +organize themselves for the purpose of bidding and running +contracts, and when they thus bid they always bid in their +individual names. The fact that we bid in our individual names was +taken as a circumstance going to show that we had conspired to +defraud the Government, and a witness they bring forward to prove +that fact swears that it has been the custom for all firms to bid +in their individual names. Away goes that suspicion. The coat-tail +of that point horizontalizes in the dim distance.</p> +<p>Page 1563. The point was made, gentlemen, that we bid on long +routes with slow time, knowing—understand, knowing—that +the service would be increased and that the time would be +shortened. The only word I object to there is the word "knowing." +That we bid on long routes with slow time thinking that the service +would be increased and the time shortened was undoubtedly true. +That we bid expecting that the service might be increased and the +time shortened is undoubtedly true. That when we bid we took into +consideration the probability of the service being increased and +the time shortened is undoubtedly true. The only difference is the +difference between thinking and knowing; between taking into +account probabilities and making the bid because we had made a +bargain with the Second Assistant Postmaster-General. That is the +difference. Let us see what Boone says about it. I read from page +1563:</p> +<p>On all service of three times a week and under there is a chance +for improvement in getting it up to six or seven times a week.</p> +<p>Everybody who has ordinary common sense knows that! If I bid on +service for once a week there is a great deal better chance for +getting an increase of trips than if there were seven when I +started. Everybody knows that. There is about six times as good a +chance.</p> +<p>All contractors consider that—That chance—in their +bids, and bid lower on one, two, and three times a week service +than on a daily service—Why?—because the chances are +the route will be increased.</p> +<p>Boone swears on the same page that he always did that himself; +that he always had done it. Yet that is lugged in here as evidence +of a conspiracy.</p> +<p>There is a great deal better chance for expedition when a route +is let at two or three miles an hour, than when it is let at six or +seven.</p> +<p>Of course there is. The slower it is let the better chance of +getting it expedited. The faster it is let the less chance of +getting it expedited. There is no need of bringing a man here to +show that. You know that. If you thought there was more money in +expedition and increase than on the original schedule, you would, +as I insist, bid on such routes as the advertisement showed the +time was to be slow and the service infrequent upon. Now, +gentlemen, to take advantage of such a perfectly apparent thing as +that will not do. You have heard a good deal about star routes, +gentlemen. Every one of you by this time ought to make a pretty +good guess.</p> +<p>Postmaster-General; every one of you. If you do not know all +about this subject, you never will.</p> +<p>The Foreman (Mr. Crane). We ought to be good lawyers, too.</p> +<p>Mr. Ingersoll. You also ought to be good lawyers, at least on +this subject! I do not know that you have all the testimony in your +minds, as there have been so many misstatements made, but if you +ever are to know anything on this subject you know something now; +and if you, Mr. Foreman, or you Mr Renshaw, were to-morrow to go to +work to bid on some star routes you would bid on the longest +routes, on the slowest time, and with the most infrequent trips. +You would do that. Then would you say, "That is evidence that we +have conspired"? Has a man got to be so stupid that he will not +take advantage of a perfectly plain thing in order to escape the +charge of conspiracy? If you were to put your money in land in the +Western country you would not go where the country was settled up, +and give one hundred dollars an acre for land. You would go where +you could get laud for two, or three, or four, or five dollars an +acre, and say, "There is a chance for land to rise." That is not +conspiracy. So if you were going to bid on mail service you would +bid where the time is slow, or the route long, and the service once +a week. Then you would say that the country might grow, that +railroads might be built and that they might get the service up to +seven trips a week; and that instead of going on two miles an hour +may be they would want to make it seven miles an hour. That is the +service to make money on. Is it a crime to make money? Is it a +crime to make a good bargain with the Government? I suppose these +gentlemen of the prosecution made the best bargain they could with +the Government themselves. Is it a crime? I say no. Is a man to be +regarded as a conspirator because some outsider thinks he got too +good a bargain? That will not do. Boone says he always did that. Of +course he did. He says another thing. These gentlemen say that we +did not go above three trips, and that is another evidence of +fraud. They say we did not bid on any route with more than three +trips a week. Mr. Boone tells you, on page 1565, that the +department never advertised for four trips a week. That is the +reason I think they did not bid on any of these. He also swears +that they never advertised for five trips. That is a good reason +for our not taking any routes with five trips, is it not? There +were not any advertised. The Government did not offer to let us +have any. That is a good reason for not taking any of them. The +Government had not any of that kind. After you get beyond three +trips Boone swears that the next number is six or seven; never +four, never five. Don't you see? And yet it is a very suspicious +circumstance that we did not bid on any four-trip routes, or any +five-trip routes; that we stopped at three. Why did we stop at +three? Because if we had not stopped at three we would have had to +go to six. Why did we not go to six? Because at six trips a week we +would have been obliged to put up too much money, and to put up too +many certified checks. It required too many men to go on the bonds. +That is the reason. Gentlemen, if there had been a conspiracy it +would have been just about as well for us to bid on six or seven +trips to get the expedition of time. If there had been a conspiracy +to make money, and it had been understood by the Second Assistant +Postmaster-General, he could have just as well given us routes with +seven trips a week, and put the service up to seven, eight, nine, +or ten miles an hour, and he could have done that in the +thickly-populated parts of the country; if it had been the result +of a conspiracy.</p> +<p>Let me read more from what Mr. Boone says on page 1565:</p> +<p>The proposals that I destroyed were upon routes of at least six +times per week.</p> +<p>How did he come to destroy them? Another suspicious circumstance +against Dorsey! Boone said when he went into the business he just +took the bidding-book and commenced at A, and was going right +straight through to X, Y, and Z, and make a bid, I believe, on +every route that was in the book. I think that is his testimony. +Boone says:</p> +<p>I was going on without instructions. I was going on without +authority from anybody, working on the bids.</p> +<p>He thinks it was the same day that Miner got here, or the day +afterwards, and he—I suppose meaning Dorsey—came up to +the room and saw what the witness was doing. He was making up bids +for every route in the advertisement, going right along with big +and little, when Dorsey said there was a mistake. No proposals were +to be made for over three times a week or for routes under fifty +miles. When Miner came into the room witness asked what was the +reason of that. I say upon this point that Stephen W. Dorsey never +said a word about it, and that Boone is mistaken. But he says he +asked Miner the reason. What did Miner say? Did he say to him, "It +is because we have got a conspiracy? We have got it fixed with the +Second Assistant Postmaster-General"? No. He said this, he said for +fear of failure in getting bonds; that they could not get the bonds +for all the service and could not get certified checks for all the +service. Boone was going clear through the book from preface to +finis. They could not get bonds for all the service and could not +get certified checks for all the service. You remember that for all +the service over five thousand dollars they had to put up five per +cent., I think, in certified checks. Now, there was an immense +volume, of three or four thousand routes and he was going to put in +a bid on every one of them. That is what Boone was going to do. He +did not understand the conspiracy at that time. Miner explained to +him, "We cannot get the certified checks. We cannot get the +bondsmen." He did not tell him, "Good Lord, my friend, you don't +understand the terms of the conspiracy. We are taking no such +service as that. We are taking none over three times a week, +because, don't you see, we want the chance for increase. We want +the lowest. If we can find any service where the horses agree to +stand still, that is the service to take. You must look over the +terms of the conspiracy and have some sense about it."</p> +<p>Boone says he was starting in, taking the advertisements, going +right through the territory, all over that country, and bidding on +every route, not missing one. He never saw Stephen W. Dorsey do any +work on the bids. The proposals sent down to the postmasters in +Arkansas, including those to Clendenning, he (Boone) fixed himself +and sealed them. Gentlemen, there is no evidence that Mr. Dorsey, +as I understand it, ever saw one of those papers, but simply the +form that was written out by Boone that was sent to Clendenning +with instructions what to do with the proposals. That I understand +to be the evidence. They proved by Boone that Dorsey never saw +them; never wrote them; never ordered them to be written; never +ordered a blank to be left unfilled. And yet, gentlemen, he was the +man whom they say had brooded over this conspiracy; the man that +gave to it life and form. He is the man that used Boone and John W. +Dorsey and Peck and Miner as instrumentalities and tools.</p> +<p>What more? Did Boone take those bonds up to Dorsey and show them +to him? He says that he did not open them; that he did not show +them to Dorsey. That is what Mr. Boone swears. Surely Mr. Boone is +an honorable man, stamped with the seal of the Department of +Justice. He did not even show them to Dorsey. Dorsey never saw +anything except the form after Boone had made it out. I showed you +that form on yesterday, I think, marked 16 X. That is the only +thing that Dorsey saw. He did not know what blanks were left in the +bonds, or whether any were left. He never gave any orders about +them, and never saw them. Yet the prosecution want you to hold him +responsible as a conspirator for those bonds.</p> +<p>What more, gentlemen? Those bonds were never used. Nobody was +ever defrauded. Not a proposal was put in the Post-Office +Department. They never came to life. Dead! No contract, says Mr. +Boone, was ever awarded on those proposals, even the proposals sent +back, unless it was a contract to him, Boone. That is what he +swears. And yet Dorsey is to be held responsible.</p> +<p>Let us hurry along, gentlemen. See how Dorsey came to do this. +How did that arch-conspirator, as they claim him to be, happen to +write that letter to Clendenning? On page 1567 Boone says that he +suggested to Dorsey that he had better send a note with the +proposals to Clendenning. Boone suggested it. He was not a +conspirator, but he suggested it. Dorsey was the conspirator, but +never dreamed of it. How fortunate for a conspirator to have an +innocent man think of the means of carrying out a conspiracy; never +thinking of crime, but having it all suggested by perfect innocence +and then crime taking advantage of it. That is the position! He +suggested that Dorsey would better send a note with the proposals +to Clendenning. I will read from page 1568:</p> +<p>Q. Was there not danger that he would be declared a failing +contractor? Was it at that time the practice of the department if a +man, for instance, had fifty contracts and failed on one to declare +him a failing contractor on all?—A. No, sir; but they would +declare him a failing contractor on that one route and suspend his +pay until he paid up the loss to the Government—just my case +now, exactly.</p> +<p>Q. That was one of the reasons that you had. Now, you were +informed at that time that they had not the money to carry this +on.</p> +<p>When, as a matter of fact, did you go out of the +concern?—A. The 8th day of August, 1878.</p> +<p>Q. Was S. W. Dorsey then in Washington?—A. No, sir; he was +not. He had been gone ten or twelve days.</p> +<p>Now, then, we come to August 7, 1878, the time that Mr. Boone +went out. He did it for the purpose of saving a failure on the +routes in the names of Miner, Peck, Dorsey, and himself. That is +what he went out for, and that is his only reason. On page 1570 Mr. +Boone swears that so far as he knows neither John W. Dorsey, John +R. Miner, John M. Peck, nor Stephen W. Dorsey had any arrangement +with the Second Assistant Postmaster-General to increase the +service; none whatever.</p> +<p>Boone went out on the 7th day of August, 1878. S. W. Dorsey was +in New Mexico. He did not return here until about the time Congress +assembled in December. Boone swears that he then learned from S. W. +Dorsey that he, Dorsey, did not know that Boone was out of the +concern; did not know that he had left on the 7th day of August, +1878. Now, gentlemen, if Stephen W. Dorsey was the main +conspirator, if he was doing this entire business, is it possible +that A. E. Boone went out on the 7th day of August, that John W. +Dorsey assigned his interest in all the routes mentioned in the +agreement, and John R. Miner took in Vaile, and the service was put +on those routes by the money furnished by Vaile, that all that was +done and yet Stephen W. Dorsey never heard of it and did not even +know that Boone was out, did not even know that Vaile was in? +Besides that, gentlemen, as I told you, Dorsey was not here. He was +in New Mexico. He was in utter ignorance of this entire business, +and yet they claim that he was the directing spirit.</p> +<p>Mr. Boone further testifies, on page 1571, that Brady showed him +a telegram from the postmistress at The Dalles, saying that the +service was down. When I read that I thought may be that was where +Moore got his hint to swear that he telegraphed to find out what +was done with that service. Boone further swears that Brady said +that it must be put on; that he said it could not be put on at the +contract price, and that Brady told him, "I advise you to telegraph +and put it on at any price," and that unless all the service was on +by the 15th day of August he would declare the contractor a failing +contractor on every route the service was down upon. That is what +Brady told him. Stephen W. Dorsey was not here. According to the +testimony of Moore he knew when he went away that the service in +Oregon was not put on, but he abandoned it, and paid no attention +to it. He happened to meet Miner at Saint Louis, and told him, I +believe, "There are my notes for eight thousand five hundred +dollars. That is all I will do. I am through! I have already +advanced thirteen or fourteen thousand dollars. I will not advance +another dollar." Why did not Miner tell him, "If you are not going +on with this conspiracy I am going home"? Why didn't Miner tell him +then, "What did you get up a conspiracy like this for, just to +abandon it"? Why did not Miner say to him, "This is your child. I +became a criminal at your suggestion. I entered into this +conspiracy because you urged me to, and now after we have got the +routes, you are going to abandon it"? Why did he not say to him, +"Dorsey, if you are not going on with this conspiracy I am going +back to Sandusky"? Did Dorsey at Saint Louis treat it as his +bantling? or did he say to Miner, "This is all I will do"? Did he +mean for himself? No. "All I will do for you."</p> +<p>Certainly he would not have made the threat to Miner that he +would not do anything more for himself. He then said to Miner, "I +am through!" Miner knew at that time that Stephen W. Dorsey had not +the interest of one solitary dollar except the money he had +advanced. Stephen W. Dorsey, according to the testimony of this +prosecution, knew when he left this city that the routes were not +in operation in Eastern Oregon. He went away knowing that J. W. +Dorsey and John R. Miner and John M. Peck were in danger of being +declared failing contractors. Yet he never even called on Brady to +see about it. He never asked to have the time extended a minute. He +never took the least interest in the business. He started for New +Mexico, and went by way of Oberlin, Ohio. He happened to meet Miner +in Saint Louis, and for Miner's sake, for Peck's sake, for John W. +Dorsey's sake, and not for his own sake, he gave them some notes to +the extent of eight thousand five hundred dollars that they could +have discounted, and said to Miner then and there. "That is the +last dollar. That is the last cent." What more did he do? He +abandoned the whole business. He went to New Mexico. He never wrote +about it; he never spoke about it; he never received a dispatch +concerning it until the following December, when he came back to +Washington, and then for the first time found that Boone had gone +out and that Vaile had come in. What more? Although he was +interested to the extent of thirteen or fourteen thousand dollars, +he did not know until he came back in December that his security +had been rendered worthless. He found that out then for the first +time. That is a fine model of a conspirator. Reading again from +Boone's testimony, on page 1371:</p> +<p>Fully a month and a half of the time had been taken up by the +Congressional investigation, and we—That is to say, Miner, +Peck, Boone, and the rest—did not know what to do with the +service. We dared not to move. We expected that the contracts would +be taken from us.</p> +<p>Do you tell me that under such circumstances, if Stephen W. +Dorsey had conceived this thing, he would have gone off and left +it? Do you tell me, with the entire business trembling in the +balance, without the money to put the service on, at the mercy of +Thomas J. Brady, that if Stephen W. Dorsey had gotten up that +conspiracy, and also put in thirteen or fourteen thousand dollars, +he would have gone away and left it, and told Miner and the others, +"I will have no more to do with it," and leave it so effectually +and so perfectly that he did not even know that Boone had gone out +and Vaile had come in until the following December, when he came +here to take his seat in the Senate?</p> +<p>On page 1580, again quoting from Mr. Boone:</p> +<p>The fact—Here is something that rises like the Rock of +Gibraltar. It is one of those indications of truth that rascality +never had ingenuity enough to invent:</p> +<p>The fact that Dorsey refused to advance any more money on +account of this business was taken into consideration by me when I +made up my mind to go out.</p> +<p>Do you want any better testimony than that, that Dorsey did +refuse to advance any more money?</p> +<p>Don't you see how everything fits together when you get at the +facts? How naturally they all blend and harmonize when you get at +the facts. Now, here is some more from Mr. Boone:</p> +<p>If I had not gone out the service would have undoubtedly failed, +unless they got the money to put it on. When Mr. Dorsey declined to +furnish any more money or to indorse any more notes, there was +nothing else to do but for me to go out and let somebody else come +in who had the money.</p> +<p>That is a witness for the Government, and yet at the time that +happened they say there was a great conspiracy; that the Second +Assistant Postmaster-General was in it; that a Senator of the +United States was in it; and that these other men were simply +tools. It will not do, gentlemen. If that had been the case Stephen +W. Dorsey would have remained here. He would have gone to Mr. Brady +and said, "I must have time," and Mr. Brady would have given him +all the time he desired, because, according to this prosecution, it +was their partnership business. Brady had ten times as great an +interest as Stephen W. Dorsey. According to the testimony of Mr. +Rerdell, Brady had an interest of thirty-three and one-third per +cent., and according to the testimony of Rerdell and Boone, Dorsey +only had an interest of seven-eighths of one per cent.</p> +<p>That means, as I understand it, according to their testimony, +thirty-three and one-third per cent, of the gross expedition; not +profits, but of the gross expedition. That is what they swear. When +he gave on a route an expedition of, say, six thousand dollars, two +thousand dollars would go to Brady each year. In other words, +thirty-three and one-third per cent, of the money paid for +expedition went to Brady.</p> +<p>Mr. Walsh testified and gave the exact figures, and called the +amount, if the Court will recollect, sixty thousand dollars, and +twenty per cent, he said of that is twelve thousand dollars. That +had to run, he says, for three years, and that made thirty-six +thousand dollars. That is the testimony in this case, gentlemen. If +you should have a row of men as long as the row of kings that +Banquo saw, stretching out "to the crack of doom," and they should +swear to it, I should still die an unbeliever; but that is their +testimony. Dorsey ran away and left his conspiracy and Brady would +not attend to his own business. Now, I read again from Boone:</p> +<p>With regard to the preparation of circulars, the sending of them +to postmasters, the printing of proposals, the printing of bonds +and subcontracts, there was nothing done differently from what I +had always done before.</p> +<p>Recollect that. He is a Government witness. Dorsey in a +conspiracy got Boone to help him, and in helping him Boone did +nothing different from what he had always done before. There is not +much left of this case, gentlemen, but I will keep going on just +the same. Mr. Boone swears that he followed the regular custom and +practice of doing business.</p> +<p>Then, there is another suspicious circumstance. At the bottom of +the contracts published by the Government, for the purpose of +informing contractors as to how the bonds or contracts are to be +signed, and exactly what is to be done by each person, there are a +lot of instructions.</p> +<p>Mr. Carpenter. On the proposals.</p> +<p>Mr. Ingersoll. On the proposals. When they got up the proposals +of their own, they, understanding the business, left off all those +directions that the Government put upon its forms. Why? Those +directions were put there for the benefit of men who did not +understand the business. These men did understand the business, and +consequently it was nonsense for them if they had to have the +printing done, to put on the bottom of the contracts two or three +paragraphs of directions to themselves. They understood exactly how +to do it without the directions.</p> +<p>Who left them off? Stephen W. Dorsey? No. John W. Dorsey? No. He +had nothing to do with it. Miner? No. He had nothing to do with it. +Who left them off? Boone says he did. Was he instructed to do it? +No. Did it take a conspiracy to leave them off? No. He left them +off for two reasons, and good ones, too. One was to save the +expense of printing. That was a good reason. There was no +conspiracy needed for that. The other was, that knowing how to +perfect the proposals, and understanding all those instructions, +there was no need of having them printed for their benefit.</p> +<p>Next, on page 1582. What instructions as a matter of fact did +Mr. Boone receive from Mr. Dorsey, if he received any? The question +arises, upon what subject? In reference to what particular point? +Boone says on this page that he received no instructions from +Dorsey in reference to the business except in regard to the +subcontract blanks.</p> +<p>That is the one subject on which he received any instructions +from S. W. Dorsey. I have shown you that those instructions were in +the interests of honesty and fair dealing. Those were the only +instructions he received. On every other subject there is not a +word. Why? Here Boone gives the reason. "I did not require any." +Why? Because he understood the business himself. What else? "I was +to go ahead and do whatever was necessary to be done." He did it +without consulting anybody. He did it in his own way. He did it as +he thought best for all concerned. Now, gentlemen, there will be an +effort made to convince you that Stephen W. Dorsey did everything +during all that period. If you are told that, when you are told it +remember what I tell you now: that Mr. Boone swears that he did it +himself; that he attended to the entire business, and that he was +instructed by Dorsey in no particular except as to that one blank, +and that I have clearly demonstrated was in the interests of +honesty and in the interests of the subcontractor, so that the +subcontract might agree with or be similar to the contract made +with the Government. That is all.</p> +<p>Now we come to another point. You must recollect that Mr. Boone +got out the circulars. Mr. Boone sent to all the postmasters to +know about the roads and the price of grain and the price of labor, +about the snow in winter and the rain in the spring. He got all +that up. He went through the bidding-book originally and made the +bids. He it was who prepared most of these proposals. He did all +the work until Miner came. S. W. Dorsey did not do any of it. Boone +never saw him working upon or touching the proposals. What S. W. +Dorsey did he did at Boone's request. What he did he did at Miner's +request. What he did he did simply because he was a friend. Boone +attended to it all. Now, what does Boone say on page 1584? He +swears that so far as he knew there never was any conspiracy on the +part of these defendants with him, with each other, or anybody +else, in reference to these routes, or any route bid for and +awarded to them during that time. There was no conspiracy to +defraud the Government in any way. That is what the Government +witness swears to—a man brought here to stain the reputation +of Stephen W. Dorsey. That is what a Government witness swears; +swearing, too, under pressure; swearing, too, under circumstances +where the Post-Office Department could strip him of everything he +had on earth; swearing under circumstances where if he did not +please the Government they could pursue him as they have pursued +us. Perhaps I had better read what he says. I read from page 1583 +of my examination:</p> +<p>Now, then, so far as you know, Mr. Boone, was there any +conspiracy on the part of any of these defendants with you, or with +anybody else, to your knowledge, in respect of these routes +mentioned in the indictment or of any routes bid for and awarded to +them during that time—any conspiracy to defraud the +Government in any way?</p> +<p>And he answered:</p> +<p>No, sir.</p> +<p>That was a Government witness, acquainted with all the +transactions during that time. He was swearing under the shadow of +power, with the sword hanging over his head, and yet he swears he +never knew or heard of any such thing.</p> +<p>Let us go on. On page 1589 he swears that Mr. Dorsey told him to +fix the blanks and make them up and to write what he wanted done in +Arkansas, and that while he, Boone, was engaged in so doing he said +to Dorsey, "Had you not better write a note so that I can attach it +to the blanks?" And Dorsey did so. Dorsey told him to fill up what +he wanted in Arkansas, and what was necessary to be executed there, +and he did so.</p> +<p>Boone indicated exactly what he wanted put in. I showed you the +Clendenning bonds yesterday and showed you just what Boone did. He +filled up the blanks that he wanted to have filled down there. Of +course, the blanks that were already filled in he did not want +interfered with. That is what he says. There is another part of his +testimony. I want to call the attention of the gentlemen to it. "I +hand you," said they, "32 X." Mr. Bliss did the handing. What was +that? That was the Chico letter. What did they want to introduce +that for? To show that S. W. Dorsey was interested personally in +these routes in 1878. That was a magnificent piece of testimony for +them to show that Dorsey in 1878 was writing to Rerdell to watch +the advertisement of these routes. So they introduced that letter. +Mr. Boone looked at it. He was a Government witness. The noose was +around his neck and the other end of the rope was in the hands of +Mr. Bliss. What did Mr. Boone say? "Mr. Dorsey never wrote that +letter." Then said Mr. Bliss to him, "That is not Mr. Dorsey's +writing?" And Mr. Boone said "No, sir." And at the same time threw +the forged scrap away contemptuously. What else? On April 3, 1878, +Mr. Dorsey was here.</p> +<p>Mr. Merrick. Was Mr Dorsey here at that time?</p> +<p>Witness. He was here, sir; and I was in communication with him +on that very day.</p> +<p>That is the evidence of a Government witness; a man who was +depended upon to show that not only my client, but that Mr. Miner +entered into a conspiracy in the fall of 1877 to defraud this +Government. I want you to remember one thing which I was about to +forget. Mr. Ker, I believe, spoke six or seven days and I do not +remember of his having mentioned the Chico letter. He acted as if +it had a contagious disease. He was followed by Mr. Bliss in +another week, but he did not mention the Chico letter; at least I +have never happened to read it in his speech. Both of them are as +dumb as oysters after a clap of thunder. Not a word. They did not, +either of them, have the courage to refer to it. They did not have +the nerve to ask you to believe it. I tell you one thing, +gentlemen, I would either admit that it was a forgery, or I would +swear that it was genuine. I would do something with it. I would +not allow that paper, blown by the wind, to scare me from the +highway of the argument! I would do one thing or the other. I would +either admit that Mr. Rerdell forged it, or I would insist that it +was the handwriting of Stephen W. Dorsey. Why was it left where it +was, gentlemen? They could not get anybody to swear that it was +Dorsey's handwriting. That is all.</p> +<p>Now we will take the next step. They had so much confidence in +that witness that they concluded they would prove the pencil +memorandum by him. They had such a clutch on him. So they stuck +that up to him. Recollecting the position he was in, recollecting +the danger, recollecting all that might probably follow speaking +the truth, here is what he says:</p> +<p>Everything above "profit and loss" in that memorandum favors the +handwriting of S. W. Dorsey.</p> +<p>What else?</p> +<p>And everything below favors the handwriting of M. C. +Rerdell.</p> +<p>Fit conclusion for a Government witness, brought here to show +that Stephen W. Dorsey was the arch-conspirator. And they ended the +witness; dismissed him from the stand, after he had shown that +Dorsey did not conspire; after he had shown that he himself fixed +the subcontracts, with the exception of only one; after he had +shown that he himself filled out the blanks to send to Clendenning; +after he had shown that he did everything without being advised by +S. W. Dorsey, and then he swore that their principal witness was a +forger. Then they dismissed him. That was the end of the Government +witness who was to brand the word "conspirator" upon the forehead +of Stephen W. Dorsey's reputation. But instead of putting +"conspirator" there, he put the word "forger" upon the principal +witness for the Government. Magnificent exchange! Now, gentlemen, +you know as well as I do that Mr. Boone knew all that was happening +during that entire time. You know as well as I do that he did not +swear anything for the defence that he could help swearing.</p> +<p>What else? Mr. Bliss, on page 303, says that:</p> +<p>Parties conspiring make an informal verbal agreement.</p> +<p>When did we make that agreement? When does the testimony show +that we made an informal verbal agreement? Who were present at the +time? Where were we? Do you recollect the number of the house? Do +you recollect the day of the month? Has any one of you ever had in +his mind which side of the street that was on? What town was it in? +Could you locate it if you had a good map? I do not care whether it +is informal or formal. Did we make one? In order to make a verbal +agreement you have to use some words. Is there any evidence as to +the words we used? Not a word that I have heard, not a word.</p> +<p>What else? He says that this is necessarily secret and intended +to be secret. The first thing done was that Dorsey told it to +Moore. Then, for fear it would get out, J. W. Dorsey told it to +Pennell and to thirty fellows around the camp-fire out in Dakota. +And there was a suspicion in Brady's mind that somebody might hear +of it, and so he told Rerdell. He says, "Get the books copied; this +is a secret thing." Then Dorsey wrote it to Bosler, and he was so +awfully afraid that it would get out that he kept a copy of the +letter. You see, Mr. Bliss says the object was to keep it secret. +Then Miner and Vaile told it to Rerdell for fear he would not +believe it when Brady told him. They were bound the thing should +not get out. Yes, sir. And then Rerdell, just bursting with the +importance of keeping that secret, told it to Perkins and Taylor; +went away out there for that purpose. And then Moore, he gave it +away to Major and McBean for the purpose of keeping it secret. Then +Miner told Moore. From whom did they keep it secret? Nobody in +God's world but Boone. He is the only fellow that nobody told. +Boone went through it all, saw all the plan and heard all the +whispering, and he is the only man in the country, I think, that +did not suspect it. And on the 7th day of August he left the +concern because there was not a conspiracy, and admits to you that +if he had had even a suspicion of it he would have +staid—staid or died.</p> +<p>Now, was there ever a conspiracy published so widely, that one +end of the country kept so secret from the other? Was there ever a +conspiracy like that, the news of which ran through the West like +wild-fire, while the fellows at the East never heard of it? +Everybody knew it out on the plains. All you had to do was to +subpoena a fellow that wanted to come to Washington, and he would +remember it. And yet that is the evidence that the prosecution +desires you to believe. I do not believe it. I do not think I ever +shall. But then they promised so much at the beginning, and they +have done so little in many respects.</p> +<p>Something had to be said, and so Mr. Bliss, on page 265, in a +little burst of confidence to the jury, says:</p> +<p>At least one United States Senator was the paid agent of these +defendants.</p> +<p>Who was the Senator?</p> +<p>Mr. Bliss. Did I say that, sir?</p> +<p>Mr. Ingersoll. Look at page 265 and see whether you did.</p> +<p>Mr. Bliss. Read all that I said there.</p> +<p>Mr. Ingersoll. I will do that.</p> +<p>But we shall show to you that at least one United States +Senator, urging such increase, was the paid agent of these +defendants.</p> +<p>Mr. Bliss. I then went on and said we should show it if you put +him on the stand.</p> +<p>Mr. Ingersoll. Yes, if we furnished you the evidence.</p> +<p>Mr. Bliss. No, sir; that is not what I said.</p> +<p>Mr. Ingersoll. Why didn't you produce the Senator?</p> +<p>Mr. Bliss. Why didn't you put him on the stand?</p> +<p>Mr. Ingersoll. How did I know what Senator you meant?</p> +<p>Mr. Bliss. Did you have two?</p> +<p>Mr. Ingersoll. No, sir; and we did not have the one. If you +could have proved it, it was your duty, as the attorney of the +United States, to do it, and if you did not do it, you did not do +your duty in this case.</p> +<p>Mr. Bliss. Whose name is expressed in the memorandum?</p> +<p>Mr. Ingersoll. Why did you not say that to the jury? You dared +not do it. That is like what was said here the other day before +this jury, and taken out of the record. We will come to it. These +are the gentlemen who did not wish to stain the names of citizens. +These are the gentlemen who did not wish to bring anybody into this +case that had not been indicted. And yet Mr. Bliss, in his opening, +said that he would show you at least one Senator who was the paid +agent of these defendants; and now, having failed to do it, he +stands here before you and asks whose name was on the pencil +memorandum, meaning that J. H. Mitchell was the paid agent of these +defendants.</p> +<p>Ah, gentlemen, I would not, for the sake of convicting any man +on this earth, stain the reputation of another in a place and in a +way where that other could not defend himself. I would not do it. I +do not think there is any crime beyond that. It is as bad to stab +the reputation as it is to stab the flesh; it is as bad to kill the +honor of the man as to put a dagger into his heart.</p> +<p>There are so many things in these papers that I would never get +through, if I commented upon them all, if I talked forty years. I +now refer to page 4509. I have to change from one of these lawyers +to the other. Now, on this subject of subcontracts, showing how we +are endeavoring to cheat and defraud the Government, Mr. Ker says, +at page 4509:</p> +<p>Acting upon Stephen W. Dorsey's advice he put in this clause +giving the subcontractors sixty-five per cent, of the increase. I +want you to remember the sixty-five per cent., because I will show +you some subcontracts with that amount in, but I do not want you to +think for one moment that the subcontractors ever got a dollar out +of it.</p> +<p>Gentlemen, the evidence is that the subcontractors were paid the +amount mentioned in their subcontracts. I believe all of them are +on file in this case, and on all that were filed in the department +the money was paid directly to the subcontractor. And yet Mr. Ker +tells you that he does not want you to think for a moment that the +subcontractors ever got one dollar out of it. Is it possible, +gentlemen, that there is any necessity for resorting to such +statements? Can you conceive of any reason for doing it, except +that they are actually mistaken, except for the fact that they know +they have not the evidence to convict these defendants?</p> +<p>We are not begging of you. We are not upon our knees before you. +But we do want to be tried according to the evidence and according +to the law. We do not want your mind, nor yours, nor yours +[addressing different jurors] poisoned with a misstatement. We want +to be tried, and we want the verdict rendered by you when every +fact is as luminous in your mind as the sun at mid-day. We want +every fact to stand out like stars in a perfect night, without a +cloud of doubt between you and the fact. That is the kind of a +verdict we want. We want a verdict that comes from a clear head and +a brave heart. We do not want a verdict simply from sympathy. We +want a verdict according to the evidence and according to the law. +And when the verdict is given we want every one of you to say, +"That is my verdict; I found it upon the evidence and upon the law; +dig beneath it and you will not find used as the corner-stone a +misstatement, or a mistake, or a falsehood; it stands upon the rock +of fact, upon the foundation of absolute truth."</p> +<p>Do you know that if I were prosecuting a man, trying to take +from him his liberty, trying to take from him his home, trying to +rob his fireside and make it desolate, and if I should succeed and +afterwards know that I had made a misstatement of the evidence to +the jury, I could not sleep until I had done what was in my power +to release that man; and after he was released, or even if he were +not released, I would go to him when he was wearing the prison +garb, and I would get down on my knees and beg him to forgive me. I +would rather be sent to the penitentiary myself, I would rather +wear the stripes of eternal degradation, than to send another man +there by a misstatement or a mistake that I had made. That is my +feeling. I may be wrong.</p> +<p>It may be that I am guilty, according to Colonel Bliss, of +sneering at everything that people hold sacred. But I do not sneer +at justice. I believe that over all, justice sits the eternal +queen, holding in her hand the scales in which are weighed the +deeds of men. I believe that it is my duty to make the world a +little better, because I have lived in it. I believe in helping my +fellow-men. I do no not sneer at charity; I do not sneer at +justice, and I do not sneer at liberty. And why did he make that +remark to you, gentlemen? Is it possible that for a moment he +dreamed that he might prejudice your minds against the case of my +client, because, I, his attorney, am not what is called a believer? +Is it possible that he has so mean an opinion of a Christian that a +Christian would violate his oath when upon the jury, simply to get +even with a lawyer who happened to be an infidel? Is that his idea +of Christianity? It is not mine; it is not mine. I stand before you +to-day, gentlemen, as a man having the rights you have, and no +more; and I am willing to work and toil and suffer to give you +every right that I enjoy. And I know that not one of you will allow +himself to be prejudiced against my client because you and I happen +to disagree upon subjects about which none of us know anything for +certain. I do not believe you will. And yet, that remark was made, +gentlemen—I will not say that it was made, but may be it +was—hoping that it would lodge the seed of prejudice in your +minds, hoping that it might bring to life that little adder of +hatred that sleeps unknown to us in nearly all of our bosoms. I +have too much confidence in you, too much confidence in human +nature to believe that can affect my client.</p> +<p>Now, gentlemen, there is no pretence, there is no evidence that +every subcontractor did not get the per cent, mentioned in his +subcontract, except one, and that was Mr. French, on the route from +Kearney to Kent; and the evidence there is that Miner settled with +him, I believe, and gave him a certain amount of money in lieu of +expedition. That is the solitary exception.</p> +<p>Now, gentlemen, I come to a most interesting part of this +discussion, and I hope we will live through it. In the first place, +what is a conspiracy? Well, in this case, they must establish that +it was an agreement entered into between the persons mentioned in +this indictment, or two of them, to defraud the Government. How? By +the means pointed out and described in the indictment. While it may +not be absolutely necessary to describe the means, I hold that if +they do describe them, tell how the conspiracy was to be +accomplished, they are bound by their description; they must prove +such a conspiracy as they describe. If a man is indicted for +stealing a horse and the color of the horse is given, it will not +do to prove a horse of another color. If they describe the offence +they are bound by the description.</p> +<p>Now, this is a conspiracy entered into, as they claim, by the +persons mentioned in the indictment, to do a certain thing. What is +the object of the conspiracy? To defraud the Government. And, +gentlemen, I believe the Court will instruct you that the +conspiring is the crime. The object of the conspiracy is to defraud +the United States. What are the means? According to this indictment +false petitions, false oaths, false letters, false orders. What I +insist on is that the means cannot take the place of the object; +that the means cannot take the place of the conspiracy described. +When you describe a conspiracy by certain means to defraud the +Government, and set out the means so that the Second Assistant +Postmaster-General is a necessity, then you cannot turn and shift +your ground, and say that it was not the conspiracy set out in the +indictment, but that it was a conspiracy to do some of the things +recited as means in the indictment; you cannot say that it was not +a conspiracy entered into with the Second Assistant +Postmaster-General, but was a conspiracy entered into with some +others to make a false petition or a false affidavit. The ostrich +of this prosecution will not be allowed to hide its head under the +leaf of an affidavit. They must prove, in my judgment, the +conspiracy that they describe in the indictment, and none +other.</p> +<p>Now, what else? You must be prepared, gentlemen, when you make +up a verdict, if you say that there was a conspiracy, to say when +it was entered into and who entered into it. And I suppose when you +retire, the first question for you to decide will be: Was there a +conspiracy? Has any conspiracy been established beyond a reasonable +doubt? If you say yes, then the next question for you to decide is, +who conspired? Who were the members of that conspiracy?</p> +<p>After you do that there is one other thing you have to do: You +have to find that one of the conspirators, for the purpose of +carrying the conspiracy into effect, did something; that is called +an overt act. You have to find, that at least one of them did +something to effect the object of that conspiracy. You must +remember, gentlemen, that the overt act must come after the +conspiracy. In other words, you cannot commit an overt act and make +a conspiracy to fit it; you must have the conspiracy first, and +then do an overt act for the purpose of accomplishing the object of +that conspiracy. The conspiracy must come first, and the overt act +afterwards. You all understand that now.</p> +<p>Now, this indictment is so framed that the earliest time within +the life of the statute of limitations for an overt act is the 23d +day of May, 1879. Why? The indictment charges that as the day, the +conspiracy was entered into. Any overt act in consequence of that +conspiracy must have been done after the 23d of May, 1879. Now, get +that in your heads, level and square. The conspiracy, according to +this, is not back of the 23d of May, 1879, and any overt act done, +in order to be considered an overt act, must be done after the date +of that conspiracy. If they prove any act done before that time, it +shows that it was not an overt act belonging to the conspiracy +mentioned in the indictment. If it is an overt act at all, it is an +overt act of another conspiracy entered into before the date +mentioned in this indictment, and consequently will not do for an +overt act in this case. Now, I want you all to understand that.</p> +<p>I forget how many overt acts are charged in this indictment; +some sixty or seventy, I think. And understand me, now, gentlemen, +no matter what date they fix to an overt act in the indictment, no +matter whether there is any date to it or not in the indictment, if +it turns out to have been done before the time fixed for the +conspiracy it is dead as an overt act: it is good for nothing. The +overt act is the fruit of the conspiracy; the conspiracy is not the +result of the overt act. Now let me make a statement to you, so +that you will understand it.</p> +<p>Every petition, every letter, every affidavit, upon which orders +for expedition were based, was filed before the 23d of May, 1879, +except on two routes—Toquerville to Adair-ville and Eugene +City to Bridge Creek. If that is true, then not a solitary petition +filed in this case can be considered as an overt act; and a +conspiracy without an overt act is nothing; it simply exists in the +imagination; it is an agreement made of words and air, and never +was vitalized with an act done by one of the conspirators for the +purpose of giving it effect. Recollect that every petition, every +affidavit, every letter filed, was filed before the 23d day of May, +with the two exceptions I have mentioned. That is the date when the +conspiracy came into being. And consequently an overt act must be +after that time.</p> +<p>Now,'when they came to write this indictment, why did they not +tell the truth in it? I do not mean that in an offensive sense, +because a man has the right to write in that indictment what he +wants to. That is a matter of pleading. But why did they not tell +the facts? Why did they put in the indictment that a certain +petition was filed on the 26th day of June, when they had the +petition before them and knew that it was filed in April, 1879? Why +did they put in that indictment that a certain affidavit was filed +on the 26th or 27th of May, I think it was, when they knew that it +was filed in April or March? Why? Because if they had put that in +the indictment the indictment would have been quashed, so far as +their overt acts were concerned. The Court would have said, "I +cannot allow you to put on paper that a man entered into a +conspiracy on the 23d of May, and then did an act to carry that +conspiracy into effect in April before that time. I cannot allow +you to do that, because that is infinitely absurd, and pleadings +have to be reasonable on their face." But you see they stated that +this was done after the conspiracy. They had to do it or they would +be gone. I believe there is no dispute about this law that if they +describe the overt act—and they must describe it, because it +is a part of the offence—that is, the offence is not complete +without it—they must prove it exactly as they describe +it.</p> +<p>If they describe it with infinite minuteness, they must prove it +with infinite minuteness. If they set out that an affidavit was +written on bark, they must produce a bark affidavit. If they were +foolish enough to say it was written in red ink they must produce +it in red ink. If they allege that an oath was sworn to twice +before two notaries public they must produce an oath sworn to +twice. They are bound to prove exactly what they charge, and if +they were too particular about it that is their fault, not +ours.</p> +<p>I say that all these, with the exception of the two routes I +have named, were filed too early to play any important part in this +case. Now, I will come to those routes. Remember, that every overt +act must be after the conspiracy. There are two exceptions, and +those two exceptions include petitions and affidavits. And there is +a splendid kind of justice in the way this thing is coming out, so +far as that is concerned.</p> +<p>The petitions filed on the Toquerville route and on Bridge Creek +route, I believe, are genuine; I believe the Government admits that +they are honest; and they were not attacked except upon one point, +and that was that a daily mail did not mean seven times a week. The +point made by the Government was that a daily mail meant six trips +a week—that is, where you have them every day. We took the +ground that daily mail meant a mail every day, and that in the +Western country, as here, they have seven days in a week.</p> +<p>We contended that you cannot have a daily mail without having +seven trips a week. I think that was the only point made against +these petitions—that they were for a daily mail, and that +somebody put in a figure 7.</p> +<p>No petition for increase of service alone was ever attacked by +the Government in this case, except 25 L, on The Dalles route, and +20 H and 29 H, on the Canyon City route. 25 L was filed April 23, +1879. That was one month before the conspiracy had life. +Consequently that is mustered out of this case as an overt act.</p> +<p>23 L was filed June 27, 1879, and is in time, provided it had +been a dishonest petition. And it is the only petition filed on the +date alleged in the indictment, and it was not attacked. It was +signed by the business men of Baker City, and is set out, I +believe, on page 1617.</p> +<p>20 H was filed May 7th. That is not in time. That is gone.</p> +<p>29 H has no file mark, and never was proved. So that goes.</p> +<p>All the allegations as to false petitions for increase of +service—and by that I mean additional trips—are shown +to have been genuine, honest, true petitions.</p> +<p>There are but two affidavits, one correctly described. Both were +made by Peck. Mr. Bliss admits that Peck had nothing to do with any +of these routes after April 1, 1879, and both of them were made by +Peck, and were sworn to before that date.</p> +<p>The affidavit on the Toquerville route was filed by M. C. +Rerdell, who swears that he was not in any conspiracy to defraud +the United States; that he was not in a conspiracy with Vaile and +Miner and John W. Dorsey, nor with anybody else. It was filed by +the subcontractor of record, M. C. Rerdell, and it is the same +route on which Mr. Rerdell, by virtue of his subcontract, +appropriated about five thousand dollars of money belonging to +other people.</p> +<p>The other exception is on the Bridge Creek route, and, strange +as it may appear, that was also filed by Mr. Rerdell.</p> +<p>And, strange as it may appear, it has not been successfully +impeached as to the men and horses necessary under the existing and +proposed schedule. The overt act is not proved, because the oath is +not proved to be false, and because Peck and Rerdell, according to +Mr. Bliss's admission and according to Rerdell's oath, were not in +the conspiracy, and the overt act has to be done by one of the +conspirators, of course.</p> +<p>The Court. I understood—I do not know whether I have been +under a delusion all this time or not—that the indictment +charged that these affidavits and false petitions were the means by +which the conspiracy was to be carried into execution; that they +were not the overt acts. If they had been set out as overt acts in +the indictment, the Court would have seen that they antedated the +time, and if an objection had been made to them the Court would not +have received them as overt acts. The reason why they have been +admitted and regarded as in the case all along, to my mind, was +that they were acts tending to prove, so far as they tended to +prove anything, the nature of the combination between these parties +anterior to the 23d of May.</p> +<p>Mr. Ingersoll. Before the conspiracy.</p> +<p>The Court. Before the conspiracy. So that whatever character +belonged to that association anterior to that time, if it was +continued on after that time, carried out with overt acts done +subsequently to that time, they were properly received as evidence +going to establish the conspiracy—not as overt acts, but as +means to show the character of the combination amongst the parties +anterior to that date.</p> +<p>Mr. Ingersoll. That saves me a great deal of argument. Now, I +understand, gentlemen, that the Court will instruct you that you +cannot take any petition, any letter, any oath, any paper of any +kind that was filed or written or used prior to the 23d of May, +1879, as an overt act; that all that that evidence is for is to +show you the relation sustained by the parties before that +time.</p> +<p>The Court. Yes; you are right.</p> +<p>Mr. Ingersoll. Now, that saves a great deal of trouble.</p> +<p>There are on the Toquerville and Adairville route, and on the +Eugene City and Bridge Creek route, petitions filed after the 23d +of May, 1879, set out in indictment as overt acts. I shall insist, +if the Court will allow me, that if there is no evidence that those +petitions were dishonest, no evidence going to show that they were +not genuine, those petitions cannot be used as overt acts for the +reason that they are charged in the indictment as false and +fraudulent petitions. So, gentlemen, I take that ground, that as to +the petitions filed after the 23d day of May on the only two routes +left for these gentlemen to find overt acts upon (Eugene City to +Bridge Creek, and Toquerville to Adairville), if those petitions +have not been proved to be false they cannot be regarded as overt +acts for the reason that they were described in the indictment +itself as false and fraudulent petitions. It is perfectly clear, is +it not?</p> +<p>What else have we left? A couple of affidavits. Who made them? +Mr. Peck. When? Before the 1st day of April, 1879, and Mr. Bliss +admits that from that time on he never had anything to do with this +business. Mr. Rerdell filed them, and Mr. Rerdell swears that he +was never in any conspiracy; and Mr. Bliss admits that Peck, after +the 1st of April, had nothing to do with this business. That +substantially knocks the bottom out of that dish.</p> +<p>Now, they attacked the affidavit on the Bridge Creek route, but +they did not succeed in showing that it was not an honest +affidavit.</p> +<p>Now, gentlemen, after what the Court has decided I want to call +your attention to another thing.</p> +<p>Do not forget what the Court has decided—that all these +things are not overt acts, but that they simply show the relations +of the parties.</p> +<p>Now, if you go and find Vaile and Miner getting up petitions on +their routes, and you also find Dorsey getting up petitions on his +routes, then they claim that that is the result of an agreement +between them. That is not the law. Neither is there in that the +scintilla of common sense. If I find you plowing in your field and +your neighbor plowing in his field, I have no right to draw the +conclusion that you have conspired to plow or to help each other. +But if I find your neighbor and you plowing in your field, and I +afterwards find you and your neighbor plowing in his field, I have +the right to conclude that you have swapped work and that you have +something in common. If I find you plowing in your field and your +neighbor walking behind you sowing grain or dropping corn, and then +I find you in the fall shucking out the corn together, and I find +your neighbor taking half of it to his barn and you taking half of +it to your barn, I make up my mind that you have had some dealings +on the corn question.</p> +<p>Now, we find that on May 5, 1879, these parties absolutely +divided, and after that, when Vaile and Miner got up a petition on +their route, Dorsey did not help them; and when Dorsey got up one +on his, Vaile and Miner did not help him. That shows what the +relations of the parties were. Does that show that they were then +in a conspiracy? Does it show that they had any conspiracy before +that time? They had separated their interest; they had ceased to +act together; one did nothing for the other. If there had been a +conspiracy before that time that conspiracy died on the 5th of May, +1879; and if it did, then there is no possibility of any conviction +in this case, no matter what the evidence is—not the +slightest.</p> +<p>Now, I want you to understand that ground exactly. I am not +begging the question. I am not afraid to meet every point, every +paper, every scratch, in this case. But I want you to understand +it. All those things were allowed for the purpose of showing the +relations of the parties, the relations that the defendants +sustained to each other; and the evidence is that they sustained no +relations to each other after 1879; that each went his own road to +attend to his own business in his own way. That is the +evidence.</p> +<p>Now comes the next point. What are the overt acts in the +indictment? Really they are the orders made by Mr. Brady, unless +you take this poor little affidavit made by Peck and filed by +Rerdell.</p> +<p>Then comes the next point. You cannot treat anything as an overt +act unless it was made by one of the conspirators. Is there any +evidence in this case that Mr. Brady ever conspired with anybody? +Not the slightest. And unless he conspired with us, any other made +by him cannot be regarded as an overt act in this case. I think +everybody will admit that. Unless Brady conspired with us, and we +with him, any order of his cannot be regarded as an overt act.</p> +<p>I ask you, gentlemen, what evidence is there in this case that +Mr. Brady ever conspired with any of these defendants? I will +answer that question before I get through, and I think I will +answer it to your entire satisfaction.</p> +<p>I will go a step further in this case, and I may go a little +further than the Court will go. I say that when they state in that +indictment that an order is made for the benefit of Miner, Vaile, +and Dorsey, and the evidence is that it was made for the benefit +only of Vaile and Miner, that is a fatal variance, and it cannot be +treated as an overt act for any conspiracy. And when the indictment +charges that an order was made for the benefit of S. W. Dorsey, and +Vaile, and Miner, and it turns out that it was made for the sole +benefit of S. W. Dorsey, I claim that that is a fatal variance.</p> +<p>Gentlemen, I was going through all these overt acts and all +these terrible false claims. But the decision of the Court has +utterly and entirely relieved me from that duty. So I will turn my +attention to another person.</p> +<p>The next defendant to whom I may call your attention is Mr. John +W. Dorsey. It is claimed that John W. Dorsey was one of the +original conspirators; that he helped to hatch and plot this +terrible design. Let us see what interest John W. Dorsey had. You +have heard me read the agreement he made, have you not, with Miner? +Now, let me read to you the agreement that he made on the 16th day +of August, 1878. Now, we will find out what interest John W. Dorsey +had in all this conspiracy. On the 16th of August, 1878, there was +no reason for telling any lie about it. They could not get on the +routes in August, 1878; they had not the money, and so they took in +Vaile. At that time, gentlemen, there was no reason for their +writing anything in this paper that was not true, not the +slightest. And I take it for granted that most people tell the +truth when there is no possible object in telling anything else, if +their memory is good:</p> +<p>4th. The profits accruing from the business shall be divided as +follows: From routes in Indian Territory, Kansas, Nebraska, and +Dakota, to H. M. Vaile, one-third.</p> +<p>To John R. Miner, one-sixth; to John M. Peck, one-sixth; and to +John W. Dorsey, one-third.</p> +<p>From routes in Montana, Wyoming, Colorado, New Mexico, Arizona, +Utah, Idaho, Washington, Oregon, Nevada, and California, to H. M. +Vaile, one-third; to John R. Miner, one-third; to John M. Peck, +one-third. [Page 4014.]</p> +<p>And to John W. Dorsey nothing. The entire interest of John W. +Dorsey in the whole business was one-third of the profits on routes +in the Indian Territory, Kansas, Nebraska, and Dakota. This was +signed by H. M. Vaile, John R. Miner, John M. Peck, and John W. +Dorsey, and I believe these are all admitted to be the genuine +signatures of the parties.</p> +<p>The only routes mentioned in this indictment in which John W. +Dorsey on the 16th day of August, 1878, had any interest whatever +were: Kearney to Kent in Nebraska, Vermillion to Sioux Falls in +Dakota, and Bismarck to Tongue River in Dakota. Remember that, +gentlemen. That is very important. The evidence is that he sold out +his interest in the following December, made a bargain for ten +thousand dollars, and the evidence is that he received the money, +and the evidence is that after that he never had any interest in +the profits, no matter how much was made. And yet these gentlemen +say that he was part and parcel of a conspiracy formed on the 23d +of May, 1879. Long before that time he had sold out every dollar's +interest he had, and had no more interest in it than though he had +never existed. He got his ten thousand dollars; that was all. Now +let us see what he did when the routes were divided.</p> +<p>Mr. Merrick. When did you say he sold out and got the money?</p> +<p>Mr. Ingersoll. The bargain was made in December, and his brother +wrote to him at first that Vaile would not give it to him, and then +that he would. Don't you recollect the two letters you asked Dorsey +so much about?</p> +<p>It had been agreed to once, and then after S. W. Dorsey came out +of the Senate John W. Dorsey was paid ten thousand dollars, and +Miner swears that the division was absolute, perfect, and complete; +and that nothing was signed by one for the other after the 5th of +May, 1879.</p> +<p>Mr. Bliss. Miner does not say when. He swore that he, signed no +papers after the 5th of May, 1879.</p> +<p>Mr. Ingersoll. He says that he signed no papers for the other +side, and that the other side signed none for Vaile and Miner.</p> +<p>Mr. Davidge. You are talking of two different things.</p> +<p>Mr. Ingersoll. I will show you after awhile that you are wrong, +as I always do. I never made a mistake on you yet.</p> +<p>The only routes mentioned in this indictment in which John W. +Dorsey on the 16th day of August, 1878, had any interest whatever +were from Kearney to Kent, in Nebraska; Vermillion to Sioux Falls, +in Dakota; and Bismarck to Tongue River, in Dakota. And I will say +right here that if at any time I do injustice to Mr. Bliss or +anybody else, if it is pointed out I will take it back cheerfully, +and if it is not pointed out, and they show that I did it, I will +get up and admit it and say that I was mistaken.</p> +<p>Mr. Bliss. You will have a great deal to admit.</p> +<p>Mr. Ingersoll. Very well, I will do it, for I have the courage +of conviction, and I have the courage to say that I am mistaken +when I am.</p> +<p>Now, the evidence is that John W. Dorsey sold out his interest +for ten thousand dollars, and that he received the money, and that +after that he had no interest in the profits when the three routes +were divided, and the only three were the ones I have +mentioned.</p> +<p>On the first route, from Vermillion to Sioux Falls, John W. +Dorsey was the subcontractor and he gave Mr. Vaile the entire pay +for all increases and all expeditions. John W. Dorsey had the right +to subcontract, and Mr. Vaile had the right to make the contract. +The statement on page 726 shows simply that John W. Dorsey never +drew a dollar upon that route. That is one route fairly and +squarely disposed of. Understand, I cast no imputation upon Mr. +Vaile for having the contract and for getting the money. When I +come to it I will show you that he had a right to.</p> +<p>The next route is from Kearney to Kent. John W. Dorsey had an +interest in that route, according to the agreement of August 16th, +of one-third. You will see from page 726 of the record that the +first quarter John M. Peck got the money, two hundred and +forty-five dollars and six cents. John W. Dorsey was entitled to +one-third of that, if it was profit. The next quarter was paid on +the 22d of January, 1879—that is, for the fourth quarter of +1878, and that was paid to H. M. Vaile. And never another solitary +cent was paid to anybody in such a way that John W. Dorsey was +entitled to any part or portion of it. That gets that route out of +trouble, so far as John W. Dorsey was concerned, no matter what the +increase may have been after that, no matter what the expedition +was, no matter whether French carried it for nothing, no matter +what happened to Cedarville or that city of Fitzalon; it was no +interest to John W. Dorsey, no matter whether the road ran direct +from Fitzalon to Cedarville or not. He was entitled to one-third of +the profits on one payment to Peck, and that payment was two +hundred and forty-five dollars and six cents; whether he ever got +it I do not know.</p> +<p>Let us see how he came out on the next route, from Bismarck to +Tongue River. He went out there to build stations. I will come to +that in a little while. Now, I call attention to page 727. The +third quarter from July 1 to September 30, 1878, was paid November +8, 1878, to H. M. Vaile. Never a solitary dollar on the route was +paid to John W. Dorsey, according to this record, if you can rely +on these books.</p> +<p>That is the state of the case on these three routes. And yet it +is solemnly averred in the indictment that all the orders on these +routes were made for the joint benefit of John W. Dorsey and +others. Now, before another payment was made the division of the +routes had been completed, and John W. Dorsey sold out his interest +in these routes and all others for ten thousand dollars. So that he +never received a dollar upon the Bismarck route and the Vermillion +route except as it is included in the gross sum of ten thousand +dollars which he received for his entire interest, and that entire +interest is described perfectly in the contract of August 16, 1878. +Now, it John W. Dorsey had no interest in any route except as +stated in the contract, of course nothing was done upon any other +route for his benefit; nothing was done in which he, by any +possibility, had the slightest pecuniary interest. How were the +petitions filed for his benefit? How were the affidavits made for +his benefit? How were the orders made for his benefit? He had no +interest; he had parted with it, and had nothing more to do with it +than the attorneys for the prosecution in this case.</p> +<p>It is claimed by Mr. Bliss that when John W. Dorsey sold out he +agreed to make the necessary papers for the routes, and he tried to +impress upon your minds the idea that the bargain was that John W. +Dorsey knew that for ten thousand dollars he had to commit perjury +and forgery and several other cheerful crimes, from time to time, +as he might be called upon by the gentlemen who had been his +co-conspirators.</p> +<p>J. W. Dorsey frankly and cheerfully swore that he agreed to make +the necessary papers. He did not swear that he agreed to commit any +frauds, perjuries, or forgeries. Nothing of the kind. He agreed to +execute, of course, the necessary legal papers—the papers +that, as contractor, were necessary for him to make to vest title +of the route in the person to whom he had sold—just the +necessary papers that would allow the man who had paid him for the +route to draw the money from the Government if he performed the +service.</p> +<p>Now, what were the papers? I say right here, gentlemen, that +under the law as it was then, under the law as it is now, it is +impossible for a contractor to assign his contract so as to be +relieved from responsibility to the Government; the Government will +not permit it. The Government will permit him to make a +subcontract, and that is what John W. Dorsey did; that is one of +the things he agreed to do. In order to make that subcontract +absolutely certain; in order to put it beyond his power to do +anything with it, that subcontract was made for the entire pay, for +the entire increase and expedition. And what more? In order to make +that absolutely perfect, so they would not have a loop-hole +anywhere, he signed blank drafts upon the Post-Office Department +for the entire pay of every quarter during the contract term. And +then, if they were fined—and nobody knew how much they would +be fined—they had the right to fill up that order for the +amount due them from the Post-Office Department after deducting +fines.</p> +<p>He sold out in March, 1879. The regulation or order making it +necessary for the contractor to make an oath as to additional stock +and men was not in existence, was not a binding law or regulation, +until the 1st day of July, 1879. When he sold out in March, unless +he were gifted with prophecy, he would not know what the regulation +of the 1st of July following would be.</p> +<p>Now, there were two affidavits made by John W. Dorsey on route +38134, Pueblo to Rosita. Around those affidavits Mr. Bliss hovered +and Mr. Ker remained. John W. Dorsey testifies that he received one +of those affidavits in the morning and swore to it, and that it was +filled up when he swore to it. Mr. Bliss and Mr. Ker, I believe, +both say that it was not filled up.</p> +<p>Mr. Bliss. Where does Mr. Dorsey say that it was filled up when +he swore to it?</p> +<p>Mr. Ingersoll. I have not the page here, but I will give it to +you. He swore that a dozen times, that he never swore to any blank +affidavits.</p> +<p>Mr. Bliss. I undertake to say that it cannot be found in his +evidence.</p> +<p>The Court. He testified that he received them both by mail, and +that the second one was contained in a letter which said that there +was an error in the first, and the second was sent for the purpose +of correcting that error.</p> +<p>Mr. Ingersoll. There could not have been any error in the first +unless it had been filled up. You cannot make an error in blank. On +page 4838, Mr. Rerdell swore that he left this city on the 17th or +18th of April for the West, and then he adds, "I think on the +18th." Then the Government brought the hotel-keepers from Sydney, +Nebraska, and from Denver, and from some other place, nearly as +many witnesses as you had about the paper pulp. And they proved +that Rerdell was beyond the Missouri River on the 21 st of +April.</p> +<p>Now see what Mr. Bliss says on page 4914:</p> +<p>And yet, gentlemen, it is beyond dispute that as early as the +15th of April, 1879, Mr. Rerdell had left this city and gone +West.</p> +<p>Why did he have it stated on the 15th, gentlemen? I will tell +you. Oh, I tell you the human mind is a queer thing when it gets to +working. John W. Dorsey was in Middlebury, Vermont; if a letter had +been sent from here on the 15th, it certainly would have got up +there before the 21st. So they wanted Rerdell out of this town as +early as possible, so that it would make it highly improbable that +it would take a letter from that time to the 21st to get to +Middlebury. Now, the evidence is that he left here, he thinks, on +the 18th. When did the letter get up there? I think the 20th or +21st.</p> +<p>Mr. Davidge. There was a Sunday intervened.</p> +<p>Mr. Ingersoll. They say, gentlemen, that there is no evidence +that the blanks were filled, and yet John W. Dorsey swears that he +received a letter stating that the first affidavit was erroneous, +and the second one was sent to him to correct it. How would you +correct one affidavit in blank by another affidavit in blank? How +did he ever get those affidavits? I will tell you. We will have +that little matter settled. Here is what Rerdell swears on page +2232:</p> +<p>Q. When did you return from that visit?—A. I returned +about the 5th of May.</p> +<p>Q. State whether or not after you returned, you found blank +affidavits among the papers connected with the business?—A. +Yes, sir.</p> +<p>Q. How many did you find?—A. Well, there were several +blank affidavits of John W. Dorsey's and several of John M. Peck's. +I don't know how many there were.</p> +<p>Q. Were they blank affidavits?—A. Well, sir, they were +blank affidavits similar to that one I sent, leaving out the number +of men and animals in each case.</p> +<p>Q. Did they purport to have been sworn to?—A. Yes, +sir.</p> +<p>Q. Were those affidavits among the papers when you left here to +go West?—A. Some of them were. I think those of Peck's were +here, probably four or five, or half a dozen, and I had made out, +before I left here, a lot of them and sent them to John W. Dorsey. +In the mean time, when I returned here, John W. Dorsey was +here.</p> +<p>Mr. Rerdell swears that just before he went away he sent the +affidavits to John W. Dorsey, and the only question between them +is, were they in blank, or were they filled. John W. Dorsey swears +that they were filled, because when he received the second he +received a letter stating that there was an error in the first, and +that error had been corrected in the second. The last nail in the +coffin of that doctrine.</p> +<p>Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen +of the jury, before finishing what I am about to say in regard to +the two affidavits of John W. Dorsey I will now call your attention +to a statement made by Mr. Bliss, on page 304, in his opening +speech to you:</p> +<p>Mr. Dorsey, while Senator, was, I think, chairman of the +Committee on Post-Offices, and chairman of the subcommittee in +charge of all the appropriations. That brought him, of course, +directly in connection with the Post-Office Department and its +officials, and gave him, as we all understand, necessarily, from +the nature of the case, the possession of some exceptional power +over officials of the department—greater power than a Senator +would have when occupying som'-other position.</p> +<p>That statement was made to you, gentlemen, for the purpose of +making you believe that while Senator Dorsey was a member of the +Senate he was also chairman of the PostOffice Committee, and of the +subcommittee having power over the appropriations, and that he not +only took advantage of being a Senator, but by virtue of being +chairman of that committee had exceptional power over the officials +of the Post-Office Department. He was trying to convince you that, +finding himself chairman of that committee, finding himself with +this power, he thereupon entered into a conspiracy.</p> +<p>What evidence did the Government offer upon that point? Nothing. +Did Mr. Bliss at that time suppose that Mr. Dorsey was chairman of +that committee? The records were all here. The Government had +plenty of agents to ascertain what the fact was; and yet, without +knowing the facts, Mr. Bliss stated to this jury that he believed +that; that Dorsey was chairman of the Post-Office Committee and of +the sub-committee; wanting to poison your minds with the idea that +Mr. Dorsey had taken advantage of having held that position. Now, +the only evidence upon that point I find on page 3992, and that is +the evidence of Mr. Dorsey himself. He is asked, Were you a member +of the Post-Office Committee in 1877? No. In 1878? No. Or chairman +of the subcommittee? Here is what he says, that he had not been on +that Post-Office Committee "for nearly two years" prior to July 1, +1878. And yet an attorney representing the United States, +representing the greatness and honor, the grandeur and the glory of +fifty millions of people, for the purpose of poisoning your minds, +there made that statement without knowing anything about it or +without caring anything about it. I thought I would clear that +point up the first thing this morning.</p> +<p>Now we will go on with the affidavits. You know these terrible +affidavits that were sworn to in Vermont. It was stated that the +first affidavit was wrong and that the second affidavit was +substituted for the first. Now, if the second affidavit took more +money out of the Treasury than the first affidavit you might say +that there was a sinister motive, a dishonest motive in withdrawing +the first and substituting the second, unless it appeared clearly +that the second was true. But suppose it turns out that the +substitution did not take an extra dollar from the United States? +Then what motive do you say they had in doing it? Was it a motive +to steal something, or was it a motive simply to be correct? What +other motive could there have been?</p> +<p>Now, let us see. The first affidavit said three men and twelve +animals; for the expedition, seven men and thirty-eight animals; +and the proportion was exactly three hundred per cent—that +is, three times as much. Now, then, they put in another affidavit. +The second affidavit says two men and six animals. That makes +eight. And on the expedited schedule six men and eighteen animals, +which makes twenty-four; and three times eight are twenty-four; +exactly the same. Three times fifteen are forty-five, and three +times eight are twenty-four, and the amount of money drawn under +the second affidavit is precisely the same that would have been +drawn under the first affidavit.</p> +<p>Now, do you pretend to tell me that they took the trouble to +withdraw the first affidavit and put in the second affidavit +because they were trying to defraud somebody? On the contrary, they +took that trouble because there was a mistake made in the first +affidavit and they wanted to correct it, not for the purpose of +getting more money, but for the purpose of getting a correct +affidavit.</p> +<p>Mr. Crane (foreman of the jury). Was not that first affidavit +interlined?</p> +<p>Mr. Ingersoll. No, sir.</p> +<p>If there had been any fraud about it, would they not have +withdrawn the paper? They had a right to withdraw it. Yet they left +the paper there; they left it there as a witness. Why? Because it +did not prove anything against them; it only proved they desired to +be correct.</p> +<p>My recollection is there were erasures in both affidavits. Let +us find them. Before I get through I will endeavor to show you that +every erasure and interlineation is an evidence of honesty instead +of dishonesty. What are the numbers of these affidavits? [Examining +the papers.] They are number 4 C and 5 C. Route 38134. I will read +them.</p> +<p>Hon. Thomas J. Brady,</p> +<p>Second Assistant Postmaster-General:</p> +<p>Sir: The number of men and animals necessary to carry the mail +on route 38134 on the present schedule is three men and twelve +animals. The number necessary on a schedule of ten hours, seven +times a week, is seven men and thirty-eight animals.</p> +<p>Respectfully,</p> +<center>JOHN W. DORSEY,</center> +<p>Subcontractor.</p> +<p>There does not appear to be any erasure or interlineation or +anything else in that affidavit. Now, here is the other one:</p> +<p>Hon. Thomas J. Brady,</p> +<p>Second Assistant Postmaster-General:</p> +<p>Sir: The number of men and animals necessary to carry the mails +on route 38134 on the present schedule, seven times a week, is two +men and six animals. The number necessary on the schedule of ten +hours, seven times a week, is six men and eighteen animals.</p> +<p>Respectfully,</p> +<center>JOHN W. DORSEY,</center> +<p>Subcontractor.</p> +<p>That is the second affidavit. The first was withdrawn. That is, +they had permission to withdraw it, and in the second affidavit is +the interlineation "seven times a week," isn't it? That is simply +an interlineation, because there had been an omission to state the +service that was then being performed or that was to be +performed.</p> +<p>Mr. Crane (foreman of the jury). That has puzzled me a good +deal, to understand the motive of those two affidavits.</p> +<p>Mr. Ingersoll. There certainly could not be any motive for +putting in seven or three times a week, for this is simply to make +it agree with the truth. If I give a note to a man for five hundred +dollars and should happen to write in the word "hundred" and not +the word "five," and then should take it back and write in the word +"five" above it, that is not a sign of fraud.</p> +<p>Will somebody give me number 18 K; I just happened to see +something there which may be worth something, or may not.</p> +<p>Now, gentlemen, here is a petition marked 2 A, that Rerdell +swears that the words "schedule thirteen hours" were written in by +Miner. In one of these papers I happened to see the word +"schedule." Just notice the word "schedule" on this paper +[exhibiting to the jury,] and then have the kindness to look at the +word "schedule" in this other one [exhibiting to the jury,] and see +whether you think one man wrote them both. Rerdell says he wrote +the word "schedule" in that one [indicating,] and that Miner wrote +the word "schedule" in this other one [indicating.]</p> +<p>Now, gentlemen, there is another charge against John W. Dorsey, +on route 38145, and upon that route he made two affidavits. In the +first affidavit he swore it would require three men and seven +animals on the schedule as it then was, and that makes ten; that +with the proposed schedule it would take eleven men and twenty-six +animals, making thirty-seven. Now, if it took ten on the schedule +as it then was, and thirty-seven on the proposed schedule, then the +Government, which accepted that affidavit, would have to pay him +three times and seven-tenths as much, which is the relation between +ten and thirty-seven. The proportion then is three and +seven-tenths. On the first affidavit his pay would have been twelve +thousand nine hundred and thirty-five dollars and fifty-two cents a +year.</p> +<p>Now I come to the second affidavit, which said that for the +schedule as it then stood ijt would take twenty men and animals. On +the proposed schedule he said it would take twelve men and +forty-two animals, making fifty-four. Now, the ratio of the second +affidavit was as twenty is to fifty-four. The ratio in the first +affidavit was as ten is to thirty-seven, so that under the second +affidavit, which they say was willful and corrupt perjury, he got +eight thousand four hundred and fifty-seven dollars a year instead +of twelve thousand nine hundred and thirty-five dollars and +fifty-two cents. There were three years for the contract to run, +and a little over. Under the first affidavit he would have received +thirteen thousand nine hundred and ninety-two dollars and +seventy-five cents during the contract term more than he took under +the second. An affidavit was put in there that he thought was +erroneous. He withdrew that affidavit and put in a second one. If +he had allowed the first to remain and they had calculated the +amount on the first he would have received thirteen thousand nine +hundred and ninety-two dollars and seventy-five cents more than he +did under the second affidavit. But he withdrew the first and put +in the second, and took from the Treasury thirteen thousand nine +hundred and ninety-two dollars and seventy-five cents less, and +they charge that as a fraud, as an evidence of conspiracy and +perjury. Now, that is all there is against John W. Dorsey.</p> +<p>On page 4090 John W. Dorsey swears that General Miles wanted to +know how far apart he (Dorsey) was building the stations on the +Tongue River and Bismarck route. Let us turn to page 4090. You know +they were trying to prove that when John W. Dorsey went out there +and built the ranches that he was going to build them about fifteen +or seventeen miles apart, because it was claimed that they knew +there was to be increase and expedition. You remember that. Now, +when John W. Dorsey came upon the stand he swore that when they +went out there they started to build those stations, I believe, +somewhere in the neighborhood of thirty or thirty-five miles apart, +as they could get water. Then he swore that when he went himself +over, I think, to Miles City, where General Miles was, that General +Miles asked him how far he was building his stations apart. John W. +Dorsey told him. Then General Miles gave him his advice. Now, I +want to read this to you. I asked him this question:</p> +<p>Q. When you got to Fort Keogh did you go to see General +Miles?—A. Yes, sir.</p> +<p>Q. Did you have any conversation with him in regard to this +route, with regard to the needs of the country for mail service; +and, if so, what was it? A. I told him all about the business +generally. He seemed to understand it pretty well. He wanted to +know how far apart we were building stations. I told him. He wanted +to know how often the mails would run, and I told him it would be +weekly service, I thought. "We have been pent up here two or three +years," he says, "with mails from eighteen to twenty days apart, +reaching us by the way of Ogden and Bozeman." And he says, "We can +get it in seven or eight days over this line." And now I would like +to say that he did not say that he knew there would be an increase, +but he said he should like to have it increased to three trips a +week, or daily, and fifty hours' time. I told him there was no use +to try to get it at all; that it could not be done at present; that +nobody knew the distance through that country; that we expected to +have it measured; that it was claimed by everybody that it was a +good deal more than two hundred and fifty and probably over three +hundred miles, and nobody would undertake to carry it. Said I, "If +you extend it the contractor can throw up his contract and you will +be without any mail." He said, "We are going to ask for what we +want, but we will take what they will give us."</p> +<p>"Your stations are too far apart; you can't run any fast time +with your stations so far apart; you want more stations, and nearer +together." The result was that when I went back I met Mr. Pennell, +who had built the stations thirty to thirty-five miles apart, and +going back we put in intermediate stations. We only carried out +lumber enough from Bismarck to build eight or nine stations, for +the windows, &c.; we did not think of building any more at that +time. Mr. Pennell says the order was to build the stations +seventeen to twenty miles apart in going out. That is no such +thing. There was not a station built going out closer than thirty +to thirty-five miles.</p> +<p>Q. What, if anything, did General Miles say that convinced you +that you ought to build stations nearer together?</p> +<p>Then he testifies that on account of what he said he did this, +and that he had no instructions from Washington.</p> +<p>That is the testimony. Mr. Bliss endeavored to frighten the +witness by stating in his presence that he (Bliss) did not believe +General Miles would swear to any such thing, judging, of course, +from the conversation that he (Mr. Bliss) had had with General +Miles. Notwithstanding that threat, John W. Dorsey, confident that +he was telling the truth, knowing that he was telling the truth, +told his story, and the Government never brought General Miles to +contradict him.</p> +<p>Now, the next thing about John W. Dorsey is the conversation +that he had with some men in July or August out on the road, that I +have spoken to you about before. Nothing could be more perfectly +improbable. It may be that he did tell some man that he was a +brother of Senator Dorsey, and, perhaps, he did say that if he got +into a tight place or hard up for money he could borrow money from +his brother. I do not know what he may have said on that subject. +But, gentlemen, there is not a man on this jury, not one of you, +who has the slightest suspicion that John W. Dorsey at that time +told those men substantially that his brother was in a conspiracy +with the Second Assistant Postmaster-General, and that he, John W. +Dorsey, was also a conspirator. There is not one of you who +believes that, not one, and you never will. Why not? Because it is +so utterly and infinitely unreasonable and absurd. Now, that is the +evidence against John W. Dorsey. My attention is called to one +other point in his case, and so I will call your attention to +it.</p> +<p>Mr. Bliss, gentlemen, on page 243, in speaking of the two +affidavits on the Pueblo and Rosita route, says:</p> +<p>We find this extraordinary condition of things. On route 38134, +from Pueblo to Rosita, which, I think, is the same route upon which +the obliging Mr. John W. Dorsey, as I have just stated to you, was +allowed to make the affidavit instead of Mr. Miner.</p> +<p>Now, he goes on to describe these two affidavits, and then he +says:</p> +<p>Those two affidavits were before Mr. Brady, made by John W. +Dorsey on the same day, and yet Mr. Brady chose to pick out one or +the other of them and say, "I believe that as the absolutely +conclusive statement of the number of men and animals that are now +in use upon that route, and upon that affidavit I will make my +order taking from the Treasury thousands of dollars of money." You +will see that the first affidavit made the number two men and six +animals, making eight as the number of stock and carriers then in +use; but the other one called for three men and twelve animals, +making fifteen as the number then in use, and, therefore, according +as he accepted one or the other, by the rule of three, to which I +called your attention just now, there would be twice the amount of +money allowed from the Treasury under the one affidavit that there +would be under the other.</p> +<p>Just think of that, gentlemen. The number of men and animals +then in use has nothing to do with the number of men and animals +stated in the other affidavit; those amounts bear no relation to +each other. The number of men and animals in use in the first +affidavit, and the number that would be necessary on the next +schedule, do bear a relation to each other. The number of men and +animals on the second affidavit on the then schedule bears relation +to the proposed number on the proposed schedule, and not to the +number on the other affidavit. And yet Mr. Bliss stood right before +you, with those two affidavits that would take the same amount of +money out of the Treasury, to a fraction, precisely the +same—not the difference of the billionth part of a +farthing—and stated to you that one would take twice as much +money from the Treasury as the other. You will think that he is as +defective in mathematics as in law. I say to you now that the +amount that would be taken out of the Treasury on those two +affidavits is precisely the same.</p> +<p>I did not think that anybody could excel Mr. Ker in mathematics, +but Mr. Bliss bears off the palm. He bean, off the palm even in +misstatement, and bears off the palm in mistake. The two affidavits +would call for the same amount of money precisely, and yet Mr. +Bliss stands up before you and says there is twice as much on one +as the other. Now, what is that for? That is to prejudice you: that +is all.</p> +<p>Gentlemen, you saw John W. Dorsey; you heard his testimony; you +know whether he is a man to be believed. It is for you to judge +whether he is honest or dishonest, and I leave his testimony with +you. It was direct; it was to the point; and his manner on the +stand was absolutely and perfectly honest.</p> +<p>Now, there is another point made. You know you have to think of +these things as you can, and step on them and then go on. Another +point is made, and it was urged by Mr. Bliss day after day. And +what is that? That Mr. Brady took the affidavits of all these men +as absolutely true; that he allowed them to fix the limit of the +money they would take out of the Treasury; that he allowed +interested men to make the affidavits, and then he took the +affidavits as absolutely true; that he allowed the contractors +themselves to fix the sum they would seize. Now let us see what +that is. Mr. Brady swears that he regarded the affidavit as the +honest opinion of the man who made it, but not as necessarily true; +that he had a standard of his own. Your views upon all such +questions, gentlemen, will depend upon which side of human nature +you stand—whether you are a believer in total depravity, or +whether you think there is a little virtue left in human nature. If +you stand on the side of suspicion, if you allow the snake of +prejudice to forever whisper in your ear, why, your idea will be +that every man is a rascal; and whenever he does a decent action +you will say, "This action is a little velvet in the paw for the +purpose of covering the claw of some devilment that he has in +store." If you judge from that side you can torture any act, no +matter what it is, into evidence of guilt. But you may judge from +the other side and say that men, as a rule, are decent; that they +would rather do a kind act than a mean thing; that they would +rather tell the truth than tell a lie. I tell you to-day that there +is an immensity of good in human nature. There are hundreds and +thousands and millions of men to-day who are honest, who would not +for anything stain the whiteness of their souls with a lie. They +are laboring-men, it may be, working by the day for a dollar or a +dollar and a half, and only taking enough of it to keep life and +strength in their bodies and giving the rest to wife and child. And +there are battles as grand as were ever won by a celebrated +general, and just as bravely fought, with poverty day after day; +and the man who fights the battles gains the victory and goes down +to the grave with his manhood untarnished. You know it, and so do +I. And yet you are all the time told to suspect everything, no +matter what it is. There is a flower there; ah, but there is a +snake under it! Always making that remark; accounting for every +decent looking action by a base motive. That is not my view of +human nature.</p> +<p>Now, Mr. Brady says that he had a standard of his own; that he +let these men make their statements, and he took their statements +as being what they believed to be the truth. And why not? Suppose I +say to a man, "What will you take for that horse?" And the man +says, "That horse is worth a hundred dollars." Suppose he goes and +swears to it; that would not make any difference in the price I +would give for the horse, not a bit. You see I am not buying an +affidavit, I am buying a horse. So, when Brady says to the +contractor, "What will you carry the mail at six miles an hour +for?" and the man says "Twenty-five thousand dollars," and he +swears to it, Brady is not buying the affidavit; it is the service. +If he does not believe the service is worth that much, he says, "I +can't do it," and that is all. But they say "No; that is not what +Brady did."</p> +<p>Now, as a matter of fact, there are nineteen routes in this +indictment, and I believe eighteen of them were expedited. I have +made a calculation for the purpose of showing that the amount to be +paid was a matter of bargain; that it was a matter talked over +between the parties; that it was the result of agreement, and that +Mr. Brady did not take the affidavit as the actual amount, and that +they were not bound to take the amount that he actually said. Now, +I have deducted what was allowed from what could have been allowed +on the affidavits, and I find that the price did not depend upon +the affidavits. I find that there was a difference between the +amount called for by the affidavits and the amount granted of over +three hundred thousand dollars. And yet these gentlemen say to you +that Brady allowed the men who made the affidavits absolutely to +fix the amount. Gentlemen, that will not do. It was a matter of +agreement, a matter of bargain, the same as any other agreement or +any other bargain.</p> +<p>Now, gentlemen, suppose they had had a conspiracy and said, "We +want to get all the money we can out of the Treasury." They would +have agreed upon a per cent.; they would have had all those +affidavits showing substantially the same per cent., wouldn't they? +Because they would have wanted harmony in it. They would have said, +"It won't do for you to make an affidavit on that route with one +thousand two hundred per cent., on this route with five hundred, on +that route with two hundred and twenty per cent., and on the other +route with three hundred and forty per cent. That won't do; that is +nonsense; we are in a conspiracy and we want all these things to +agree and harmonize." And the result would have been that they +would have had about the same per cent, in all those affidavits. +And yet those affidavits vary in per cent, all the way from two +hundred and twenty to one thousand two hundred. They say, "Result +of conspiracy." I do not look at it in that way.</p> +<p>It is also claimed that the persons who sold out—that is +to say, John M. Peck and John W. Dorsey—agreed to make the +necessary papers that the other parties required. That being so, +why should not affidavits have been made in blank? Now, I ask you +if the other parties were willing to swear to anything that these +men would write, why were they made that way? Why not avoid the +suspicious circumstance of blanks and put the amount in at first, +knowing that the men would not hesitate to swear? Of what use was +it, gentlemen, to have an affidavit suspiciously made, to have +blanks suspiciously left, when the men were willing to swear to any +numbers they would put in? Why did not the parties who made the +affidavits write in the amounts? Does not that very fact, that +blanks were left, show that they were to take the judgment of the +men who were to do the swearing? Why would they leave blanks? Why +did they not fill them up at the time and have them sworn to?</p> +<p>Why were they not continuously written? That is another point, +if this was a conspiracy. Guilt is always conscious that it is +guilty. Guilt is always suspecting detection. Guilt is infinitely +suspicious. Guilt would make all the papers as nearly right as +possible. Guilt would look out for erasures. Guilt would abhor +blots. Guilt would have avoided having blanks filled in with +different colored inks. Guilt would want everything fitting +everything else, nothing to excite suspicion. Innocence is +negligent. The man with honest intentions is the one that does not +care. But the guilty man does not travel in the snow. He wants no +tracks left.</p> +<p>Now, another thing: The fact that no effort was made to have the +affidavits in the same handwriting, no effort to have the blanks +apparently filled at the same time, that they were interlined, that +there were erasures—all those things tend to show that the +parties were honest in what they did. It was just as easy to have +one without an erasure as with it; ii was just as easy to have one +continuously written as to have the blanks filled up; just as easy +to have one without any interlineations as with it. And yet these +parties, knowing that they were conspirators (according to these +gentlemen), Mr. Brady occupying a high and responsible position, +were so careless of their reputations, that they did not even +endeavor to make the papers passable upon their face.</p> +<p>Another thing: These very routes were investigated by Congress +in 1878—this very business. If the parties at that time had +been conscious of guilt, why were any suspicious papers left on +file? Why were not others substituted that had no suspicious +interlineations, no suspicious erasures, no suspicious blanks that +had been filed? Why were these very affidavits at that time +reported to Congress?</p> +<p>The first investigation was in 1878, and on account of that +investigation the contractors for about a month and a half were +left. Then there was another investigation in 1880.</p> +<p>Mr. Merrick. Is there any evidence that they were all reported +to Congress?</p> +<p>Mr. Ingersoll. I think so; I think that is here in the record. I +understand the evidence to be that it was all reported to +Congress.</p> +<p>Mr. Merrick. The investigation of 1880 was general, and not as +to these particular routes.</p> +<p>Mr. Ingersoll. In 1878 there was a special investigation growing +out of these Clendenning bonds and out of the Peck bids, and out of +the connection that they said Stephen W. Dorsey had with this +business. That is what it grew out of. Now, in the light of that +investigation, let us take it for granted for one moment that +according to their statement the parties had conspired. If anything +on earth would make them afraid about papers I think it would have +been that investigation; and yet no effort was made to conceal one, +not the slightest.</p> +<p>Then we will go another step. General Brady was Second Assistant +Postmaster-General. All these papers were absolutely in his power. +He could have called for them at any time. Every suspicious paper +could have been destroyed or an unsuspicious one substituted for +it.</p> +<p>Now, I want to know if it is conceivable that General Brady, +under these charges, when the new administration came in, under the +threat of the Government, would voluntarily leave those papers upon +the files if they had been dishonest and he knew it?</p> +<p>Take another step. So far as we have learned from the +prosecution I believe there is one paper claimed by them to have +been lost. They do claim that there was a second affidavit on the +Bismarck and Tongue River route. One is gone and one remains. Which +remains? The affidavit for one hundred and fifty men and one +hundred and fifty horses. It seems to me absolutely capable of +demonstration that we did not take the one that is gone. Had we +been going to take anything we would have taken the one for one +hundred and fifty men and one hundred and fifty horses, and left +the other. But the other, about which nobody ever did complain, was +taken, and the one upon which they build their great argument of +fraud upon that route was left. And then it turned out that General +Brady only allowed forty per cent, of that affidavit.</p> +<p>Now, this prosecution was not begun in a moment. It was talked +about for weeks and months, I might almost say for years. Talk, +talk, talk in the papers everywhere. These men were not suddenly +charged with this offence. They understood it; they knew it. I +think I have been engaged in this suit, or suits growing out of +this business, for two years. It was a matter of slow growth. Mr. +Brady retired, I believe, some time in April, 1881, knowing at that +time that these charges had been made and that the charges were +being pressed. Mr. Dorsey knew it at the same time. All these +defendants knew it. Now they say that at that time we were in +conspiracy with Mr. Brady, and they say that at that time we were +in conspiracy with Mr. Turner. We had the papers in our power.</p> +<p>Now, if Mr. Dorsey was wicked enough to conspire, if Mr. Brady +was villainous enough to conspire, I ask you whether they would +have left behind the evidence of their conspiracy? Why were the +papers left? Because General Brady never dreamed that one of them +was dishonest.</p> +<p>Why did not Vaile and Miner, John W. Dorsey and Peck and Stephen +W. Dorsey ask for the papers? Because they believed every one to be +honest, and they had no use for them. They were willing that the +Government should make out of them what it could. I ask again, is +it conceivable that John R. Miner, if he knew there was on the +files of the department a petition that he had changed, that he had +erased, that he had interlined or forged, is it conceivable, if he +had been wicked enough to enter into the conspiracy, that he would +have been foolish enough to leave the paper there? Would he not +have gone to Brady and said to him, "I conspired; you know it; I +changed the petition, and I want it; I erased a word in a petition, +I want it; I signed a name to a petition, I want it"? And Brady +would have said, "Yes, and you ought to have called for it long +ago; you can have it." If S. W. Dorsey had interlined an affidavit +or had filled a blank, if S. W. Dorsey had made an erasure or an +interlineation, he, of course, must have known it, and if he +conspired with Brady he must have known it, and he must have gone +to General Brady and said, "I want that affidavit on such a route; +we can write another, and I want that; I want that petition;" and +it would have been given. You cannot conceive of such infinite +stupidity as to say that those people knew that those papers were +dishonest, and that they still left them on file as weapons for +their enemies. You cannot do it.</p> +<p>So much, gentlemen, for the affidavits, and so much for the +papers.</p> +<p>Now, there is another question, and I have no doubt that you +have asked it yourselves. It has been asked a great many times by +the prosecution. That question is this: Why did Dorsey retain +Rerdell in his employ after the 20th of June, 1881? These gentleman +tell you that it is evidence of guilt that he did it. I will tell +you why he did it. At that time the public mind was almost +infinitely excited on this question. At that time the public was +ready to believe anything. It had its mouth wide open, like a young +robin, ready for worms or shingle-nails—it made no +difference—anything that dropped in. Every newspaper was +charging that these defendants were guilty, that Stephen W. Dorsey +was a conspirator, that millions had been taken from the Treasury, +and there were nearly as many mistakes in the press then as in the +speech of Mr. Bliss now. But I can excuse that, because it was +before the evidence. Now, what was Mr. Dorsey to do in the then +state of the public mind? That man, no matter how bad he was, how +base he was, had the power to have him indicted. That man could +have gone before the grand jury and had Mr. Dorsey or any other +public man indicted in the then state of excitement and feeling of +the public. What was the result of his going even to James and +MacVeagh? I believe Mr. Turner says that on account of the +statement of this man Rerdell, he (Turner) was turned out of his +office. That is the effect. What became of McGrew? What became of +Lilley? What became of Lake? What became of twenty or thirty other +officials upon whose reputation this man had breathed the poison of +slander? Stephen W. Dorsey at that time knew that that man in the +then state of public excitement was powerful for mischief. That man +made the affidavit of June, 1881, at the request of James W. +Bosler, as he himself says, and swore that he went to the +Government simply to find out the Government's secrets; swore that +he was still upon the side of Stephen W. Dorsey; took back what he +had said, and swore that it was a lie. The question then was what +to do with him? Stephen W. Dorsey made up his mind not to do +anything more, just to let him alone, just let him stay as he was. +That was the wise course. It was the course that any wise man, in +my judgment, would have pursued under the circumstances. What else +could he do? Let him alone. Let him alone. He did not at that time +expect that he would ever be indicted. He shrank from an +indictment, as every sensitive man does, because when you have +indicted a man you have put a stain upon him that even the verdict +of not guilty does not altogether remove. He did not want that +stain. He was a man of power; he was a man of position, a man of +social and political standing, a man wielding as much influence as +any other one man in the United States. He did not wish to be +indicted. He did not wish his reputation to be soiled and stained. +And so he allowed that man to stay where he was. He may have made a +mistake, but whether mistake or not, that is what he did.</p> +<p>There is another question. Why did we fail to produce our books +and papers? I will tell you. The notice to produce them was given +to us on the 13th day of February. We had noticed curious motions. +Two days afterwards, Mr. Rerdell went on the stand. What did they +want the books and papers for? For Mr. Rerdell to look at. Why did +he want to look at the books and papers? To stake out his +testimony. He hated to depend upon his memory. We took the +responsibility of letting the witness swear to the contents of the +books and papers, and let them call that secondary evidence. We +took that responsibility rather than to furnish the books and +papers to be looked at by that man in order that he might make no +mistakes in his testimony. What happened afterwards justified our +course. If we had shown to him the books and papers, and checks, +and stubs, do you think he would have made any mistake about that +seven thousand five hundred dollar check? Would he have said that +he went with Dorsey, and that Dorsey drew the money, and that he +looked over his shoulder, and that then he and Dorsey walked down +to the Post-Office Department, if he had known that that check was +drawn to his order? If he had known before he swore, that he +indorsed that check, he would have said he went down and got the +money himself; he would not have said that Dorsey did. He would +have made no mistakes there. He would not have been driven into the +corner of saying "stub" or "stubs," "checkbook" or "check-books," +"amount" or "amounts." No, sir. And that one thing justified +absolutely the wisdom of our course.</p> +<p>Then the Court decided that, having failed to produce our books +on notice and allowed the other side to introduce secondary +evidence of their contents, we would not be allowed then to produce +them. I insisted that we had the right then to produce them, and +the Court decided that we had not. We took the responsibility of +refusing, and we took that responsibility because we made up our +minds that we would not allow that man to look over the books, +checks, and stubs for the purpose of manufacturing his +testimony.</p> +<p>The Court. Where did you offer to produce the books?</p> +<p>Mr. Merrick. Where did you offer the production of the books? +That is just what I was about to ask.</p> +<p>Mr. Carpenter. The Court said we could not.</p> +<p>Mr. Merrick. Where did you make the offer?</p> +<p>The Court. I want to know.</p> +<p>Mr. Carpenter. Mr. Ingersoll did not say he made the offer.</p> +<p>Mr. Merrick. I think he did.</p> +<p>The Court. I think he did.</p> +<p>Mr. Carpenter. Just read it, Mr. Stenographer. He says nothing +of the kind.</p> +<p>The Stenographer, (reading)</p> +<p>I insisted that we had the right then to produce them, and the +Court decided that we had not.</p> +<p>Mr. Ingersoll. That is exactly what I say.</p> +<p>The Court. The Court did not give any intimation at that time, +but after that point in the trial had passed, several days, several +weeks, I think, the attention of the Court was called to this +question, and the Court remarked, in the course of the opinion, +that it understood the law to be that after a party, upon whom +notice had been given to produce books, had failed to produce the +books, and the other side had given secondary evidence, then the +Court would not allow the party having the books to produce them +for the purpose of contradicting the secondary evidence.</p> +<p>Mr. Ingersoll. That is all I claim.</p> +<p>The Court. But there was no such offer made, so far as I +recollect.</p> +<p>Mr. Ingersoll. Why should we make the offer after your Honor had +decided that we could not do it?</p> +<p>Mr. Merrick. I will answer the question. Because whether it +would have been accepted or not was a question for the counsel for +the Government when the offer was made. And again, the learned +counsel will recollect that after the notice was given, when S. W. +Dorsey was on the stand on cross-examination, I demanded those +books and those stubs, and he asked leave to consult his counsel. +The Court denied that request, and then there was a peremptory +refusal to produce any book or any paper.</p> +<p>The Court. Oh, yes. Mr. Ingersoll and Mr. Davidge repeatedly +announced to the Court that they were not going to produce books to +assist the prosecution.</p> +<p>Mr. Ingersoll. Yes; I said that twenty times, and the Court, as +I understood it, held that after we had refused to produce the +books and driven the other party to secondary evidence, we could +not then produce the books.</p> +<p>The Court. You made no offer to produce the books.</p> +<p>Mr. Ingersoll. I resisted the opinion of the Court and made the +best argument I could, but the Court said that was not the law.</p> +<p>The Court. The remark of the Court arose upon an argument on the +part of Mr. Ingersoll, and if I am not mistaken, upon the effect of +the refusal to produce the books and papers, Mr. Ingersoll +contending that there was no presumption against his client on +account of the refusal to produce the books and papers, and that +the jury ought to be instructed that the only effect of refusing to +produce the books and papers was to leave the case upon the +secondary evidence.</p> +<p>Mr. Ingersoll. I am not referring to that discussion, nor to +that decision of your Honor; I am referring to the decision you +made during the trial.</p> +<p>The Court. That was the only occasion since this trial began, in +which the Court referred to that rule of law which denied the right +to introduce primary evidence for the purpose of contradicting the +secondary evidence, after the primary evidence had been withheld in +the first instance.</p> +<p>Mr. Ingersoll. Of course, I am not absolutely certain, I never +am; but I will endeavor to find in the record exactly what you said +on that subject.</p> +<p>And now, in order that we may be perfectly correct, and in order +to show, too, how easy it is to be mistaken, Mr. Merrick just said +upon that very subject of the books and papers, that while Mr. +Dorsey was upon the stand, he asked leave to consult his counsel. +If Mr. Merrick will read the testimony he will find that Mr. Dorsey +made that remark when he was asked about the affidavit of June 20, +1881.</p> +<p>Mr. Merrick. You are right.</p> +<p>Mr. Ingersoll. That just shows how easy it is to make a mistake +when it comes to a matter of recollection.</p> +<p>Mr. Merrick. I think it was upon a question of the insertion of +the change in the character of the affidavit—its being +addressed to the President; and when I asked him if he had not made +that change he asked leave to consult his counsel. For the moment I +thought it was upon the books. But the substance still remains, +that, on the question of the books, I asked him on his +cross-examination—and the counsel will state his recollection +to be the same—about the stubs and the books, and called upon +him to produce them, and the counsel replied, "We will not."</p> +<p>Mr. Ingersoll. I presume I did. I made that reply a good many +times.</p> +<p>Mr. Merrick. Will the counsel be frank enough to state when that +decision was made?</p> +<p>Mr. Ingersoll. Which decision?</p> +<p>Mr. Merrick. When he was on the stand on cross-examination.</p> +<p>Mr. Ingersoll. And I said we would not produce them?</p> +<p>Mr. Merrick. After the testimony in chief and Rerdell was +gone.</p> +<p>Mr. Ingersoll. Then I said we would not produce them. And now I +will say that the decision of the Court was made before that time +that we could not produce them, and if I do not show it then I will +publicly take it back.</p> +<p>The Court. I do not think you can show it.</p> +<p>Mr. Ingersoll. If I do not, then I will beg your Honor's pardon, +and if I do—if I do—Now, I think what happened +afterwards in this case with that very witness justifies the course +that we pursued. He also stated at the time that we had, I believe, +some twenty thousand pages of letters on all possible subjects to a +great number of people. We knew that there was a spirit +abroad—and some of it in a part of the prosecution—to +find something against somebody else somewhere. We made up our +minds that our private books and correspondence never should be +ransacked by this Department of Justice. We took the consequences, +and we are willing to take them. We say that the inference from our +refusal is an inference of fact, and must be decided by the jury, +and is not an inference of law.</p> +<p>We have been asked a good many times why we did not put James W. +Bosler on the stand. The prosecution subpoenaed Mr. Bosler. They +appeared to have an affection for him. They subpoenaed him, and he +came here. Afterwards they issued an attachment for him. They had +him, arrested at midnight and brought here. He gave some testimony, +and you will find it on page 2611.</p> +<p>Mr. Merrick. I do not know that there was an attachment.</p> +<p>Mr. Ingersoll. You know you have a right to prove things by +circumstances. Now, it is said that he put the marshal out of the +house; I think that is evidence tending to show that an attachment +was issued.</p> +<p>Mr. Ker. And kept him out with a club.</p> +<p>The Court. I understood also that Mr. Dorsey kicked somebody +else out of his house about the same time.</p> +<p>Mr. Ingersoll. Oh, yes; it has been a very lively term of +court.</p> +<p>There were two very important things that they were to prove by +Mr. Bosler, and they were patting him on the back here for weeks. +Friendship sprang up between them. It was a very young plant at +first, but the Bosler ivy grew upon the oak of the prosecution. I +saw him sitting here, everything delightful. The prosecution, I +hoped, began to flatter itself that Mr. Bosler was on their side; I +hoped that was so. Finally they put Mr. Bosler on the stand. What +did they want to prove by him? That Dorsey wrote a letter to him on +the 13th of May, 1879, telling how much money he had given to +Brady; that is one thing they wanted to prove by him. The second +thing was that Rerdell had written a letter to Bosler, I believe, +on the 20th of May or 22d of May, 1880, stating that he (Rerdell) +had been subpoenaed to go before the Congressional committee and +take his books and papers; that he got very much frightened; that +he had taken the advice of Brady and got a very valuable suggestion +from Brady, which he was going to follow. They wanted to prove that +by Mr. Bosler.</p> +<p>Rerdell had already sworn that Dorsey sent a letter to Bosler on +the 13th of May, 1879. Rerdell had sworn to the contents of that +letter; that the contents were that he had paid Brady so much +money, &c., which you remember, and then that he, in 1880, had +written a letter to Mr. Bosler, and I believe he pretended to have +a copy of it. Now, here comes Bosler's testimony, on page 2611.</p> +<p>Q. Have you made a search among your papers to find a letter +alleged to have been written to you by Stephen W. Dorsey, and dated +on or about the 13th of May, 1879?—Yes, sir.</p> +<p>That is the letter that Rerdell swore about.</p> +<p>Q. Have you searched?—A. I have.</p> +<p>Q. Did you find it?-A. No, sir.</p> +<p>Q. Have you made search for a letter purporting to have been +written by him to you, and dated on or about the 22d of May, +1880?—A. Yes, sir.</p> +<p>Q. Did you find that letter?—A. I did not.</p> +<p>The Court: Was there ever such a letter?</p> +<p>Bosler replied: "There never was such a letter received by +me."</p> +<p>There is the testimony of Mr. Bosler, and on that testimony the +two letters of May 13, 1879, and May 22, 1880, turn to dust and +ashes.</p> +<p>Now, they say, "Why didn't you put Bosler on?" Not much +necessity of Mr. Bosler after that. And besides, gentlemen, I +believe I will take you into my confidence just a little bit. The +evidence of Rerdell as to the affidavit of June 20, 1881, and the +affidavit of July 13, 1882 (an affidavit in which he swore that +there was nothing against Mr. Bosler, an affidavit that was made +apparently for the benefit of Bosler), all that evidence, the +evidence of Mr. Stephen W. Dorsey upon those questions, advertised +the prosecution that Mr. Bosler knew of many circumstances; that he +was present a portion of the time, and I did not know but finally +the prosecution would get so much confidence in Mr. Bosler that +they would call him. I was hoping they would. They did not. It did +not work quite as I expected. That is all there is about that.</p> +<p>Now, there is one further point to which I wish to call your +attention. I want you to remember that a partnership is not a +conspiracy, although all the facts about a partnership are +consistent with the idea of a conspiracy up to a certain point; and +all the facts about a conspiracy are consistent with a partnership +up to a certain point. The fact that men act together does not show +that they have conspired; does not show that they have a wicked +design. The fact that they are engaged in the same business does +not show that they have a wicked design or that they are there by +conspiracy. In other words, I want your minds so that you will +distinguish between a fact that may be innocent, and generally is +innocent, and a fact that must be evidence of guilt. I want you to +distinguish between the facts common to all partnerships, common to +all agreements, and those facts that necessarily imply a criminal +intent. If you wil do that gentlemen, you will have but little +trouble.</p> +<p>[At this point a volume of the report of the trial was handed up +to the Court by Mr. Ingersoll with a reference to a certain +page].</p> +<p>The Court. Without looking at the book I take risk of saying +that the Court never announced its opinion on that question until +the case referred to a few moments ago.</p> +<p>Mr. Ingersoll. I just gave my memory on the subject. It does not +make any great difference in this case, of course.</p> +<p>Mr. Carpenter. This is during the cross-examination of +Rerdell.</p> +<p>The Court. Yes, the Court did state on that occasion:</p> +<p>That is not the point here. If they are allowed to go on and +cross-examine this way without the production of the books, they +cannot contradict the witness afterwards by producing the +books.</p> +<p>I had forgotten that I had announced it twice.</p> +<p>Mr. Ingersoll. If the Court please, I did not want to bring this +up, because I knew you had, and so I thought I would slip you the +book and let you off easy.</p> +<p>The Court. I do not think it weakens the position at all that +the same announcement has been made twice instead of once.</p> +<p>Mr. Carpenter. We thought it made it stronger.</p> +<p>The Court. Still, the books were not produced.</p> +<p>Mr. Ingersoll. Now, if the Court please, I am not +arguing—</p> +<p>The Court. [Interposing.] I will leave you to the jury.</p> +<p>Mr. Ingersoll. Your Honor knows that I have always shown great +modesty about trying to do anything against any decision.</p> +<p>The Court. I do not dispute that.</p> +<p>Mr. Ingersoll. Now, the next question, gentlemen, is what is +meant by corroboration? If you tell a man that he is not a great +painter, he does not get angry. He says he does not pretend to +paint, or is not a great sculptor. But if you tell him he has no +logic, he loses his temper. Yet logic is perhaps the rarest quality +of the human mind. There are thousands of painters and sculptors +where there is one logician. A man swears, for instance, that he +went down to a man's house in the morning at six o'clock, and that +Mr. Thomas was standing just in front of the house, and when he +went in the dog tried to bite him, and that after he got in he had +such and such conversation. Now, there are thousands of people who +have brains of that quality that they think the fact that he did go +there at six o'clock in the morning, and did see Mr. Thomas +standing out in front of the house, and especially the fact that +the dog did try to bite him, is a corroboration of the conversation +that took place in the house. There are just such people. In this +case, for instance, in Mr. Brady's matter, they say that the fact +of Walsh being in his house is important. Suppose that he was, what +of it? Is that corroboration? Corroboration must be on the very +point in dispute. It must be the very hinge of the question. Then +it is corroboration, if the question is what did the man say. It is +not corroboration to prove that the man was there unless the man +swears that he was not there. Then the inference is drawn that if +he would lie about being there he might lie about what he said.</p> +<p>Now, understand me. They will say, for instance, "Here is an +affidavit, and these blanks have been filled up. Rerdell says they +were filled up, and he says they were filled up after they were +sworn to." Now, the fact that the affidavit is there and that the +blanks are filled up is not corroboration, because the point to be +corroborated is that it was done after it was sworn to. And so the +existence of the affidavit, while it is necessary, is no +corroboration; the filling up of the blank is no corroboration; its +being on file is no corroboration. Why? The point to be +corroborated is not that the blanks were filled, but that they were +filled after the paper had been sworn to! That is the point. And +when they begin to talk to you about corroboration I want you to +have it in your minds all the time that to be corroborated about an +immaterial matter is nothing; it has nothing to do with the +question; but there must be corroboration on the very heart of the +point at issue!</p> +<p>There is another thing, gentlemen. It does not make any +difference what I say about this man, or that man, or the other +man, unless there is reason in what I say. If I tell you that the +evidence of a witness is not worthy of belief, I must tell you why. +I must give you the reason. If I simply say the witness is a +perjurer, that shows that I either underrate your sense, or have +none of my own, because that is not calculated to convince any +human mind one way or the other. You are not to take my statement; +you are to take the evidence, and such reasons as I give, and only +such as appeal to your good sense. If I say, "You must not believe +that man," I must give you the reason why. If the reason I give is +a good one, you will act upon it. If it is a bad one I cannot make +it better by piling epithet upon epithet. There is no logic in +abuse; there is no argument in an epithet.</p> +<p>And there is another thing. An attorney has a certain privilege; +he is protected by the court. He is given almost absolute liberty +of speech, and it is a privilege that he never should abuse. He +should remember if he attacks a defendant, that the defendant +cannot open his mouth. He should remember that it does not take as +much courage to attack, as it does not to attack. He should +remember, too, that by the use of epithets, by abuse, that he is +appealing to the lowest and basest part of every juror's head and +heart. It is on a low level. It is a fight with the club of a +barbarian instead of with an intellectual cimeter. There is no +logic in abuse. There is no argument in epithet. Remember that. The +weight and worth of an argument is the effect it has upon an +unprejudiced mind, and that is all it is worth. Therefore I do not +want you, gentlemen, to be carried away by any assault that may be +made—I do not say that any will be made—but any that +may be made, that is not absolutely justified by the evidence.</p> +<p>There has been one little thing said during this trial; that is, +about the testimony of defendants. I believe Mr. Bliss takes the +ground that you cannot believe a defendant; that defendants cannot +be believed unless they are corroborated. Mr. Bliss has the +kindness to put the defendants in this case on an equality with his +witness Rerdell. Gentlemen, you cannot believe any witness unless +his evidence is reasonable. Every witness has to be corroborated by +the naturalness of his story. Every witness is to be corroborated +by his manner upon the stand and by the thousand little indications +that catch the eye of a juror or of a judge or of an attorney. +Congress has passed a law allowing defendants to swear when they +are put upon trial. Will you tell me that that law is a net, a +snare, and a delusion, and the moment a defendant takes the stand +the prosecution is to say, "Of course he will lie"? Why do they say +that? Because he is a defendant, and you cannot believe a word that +he says; he is swearing in his own behalf. There is that same low, +slimy view of human nature again, that a defendant who swears in +his own behalf must swear falsely. I do not take that view. The +defendant has the same right upon the stand that anybody else has, +and if his character is not good his character can be attacked; it +can be impeached by the prosecution precisely as you would impeach +the reputation of any other witness. If he tells a story which is +reasonable you will believe it, and you will believe it +notwithstanding he is a defendant and notwithstanding he has an +interest in the verdict. In old times they would not allow a man to +swear at all if he had the interest of a cent in any civil suit. +They would not allow him to testify when he was on trial for his +own liberty and his own life. That was barbarism. The +enemy—the man who hated him—he could tell his story, +but the man attacked, the man defending his own liberty and his own +life, his mouth was closed and sealed. We have gotten over that +barbarism in nearly all the States of this Union, and now we say, +"Let every man tell his story; don't allow any avenue to truth to +be closed; let us hear all sides, and whatever is reasonable take +as the truth, and what is unreasonable throw away." And, gentlemen, +let me say here that it is not your business to go to work picking +a witness's testimony all apart and saying, "Well, I guess there is +a little scrap now that there is some truth in," or "here is a +line, and I guess that is so, but the next eleven lines I do not +believe; the next sentence, I think, will do." That is not the way +to do. If a witness is of that character you must throw his entire +evidence to the winds, for it is tainted and the fountains of +justice should not be tainted with such evidence, and a verdict +should not be touched and corrupted with such testimony. You will +take the evidence of these defendants as you would take that of any +other man, and it is for you to say whether that evidence is true. +It is for you to say that.</p> +<p>If corroboration was so necessary why were not their witnesses +corroborated? Why didn't they call Mr. Bosler to corroborate their +witness?</p> +<p>Now, one of the defendants in this case is Mr. John R. Miner, +and I want you to think of the terrible things they have against +him. One of the charges made against him is that he wrote a +petition and wrote in six names attached to it. His explanation is, +that if he did anything of that kind it was because he received a +petition which was so worn that it could not be presented, and he +copied it, and that the six names were found on that petition. +There was no other way on earth for him to get those names, and we +find them on the same route in, I believe, seven other petitions +which were filed; we find that those very names are on the other +petitions, and I think Mr. Hall's name—the one the most +trouble was made about—was on three or four petitions of the +other kind.</p> +<p>Mr. Carpenter. He admitted that he wrote them.</p> +<p>Mr. Ingersoll. Yes; Hall admitted that he wrote them. But I +believe this petition was never filed in the department.</p> +<p>I think Mr. Woodward said he found it among the papers at some +other place.</p> +<p>There is a petition called the Utah petition that has some names +in Utah. I think Mr. Woodward swore that he tound it in room No. 22 +or 23.</p> +<p>Mr. Merrick. In the case itself, in the department.</p> +<p>Mr. Ingersoll. Yes; but it has no file mark. Mr. Woodward says +he does not now remember how it got in there. As I was about to +remark, there was a petition called the Utah petition with some +names of persons living off the route, I believe—two or three +sheets. The petition itself was genuine, and was indorsed, I +believe, by Senators Slater and Grover and by Congressman +Whiteaker. Now, then, how did these names come in there? The +petition is ample without those names; large enough. I will tell +you what I think. I think that it is a part of another petition, +and that it was the result of an accident. I think it was done in +the Post-Office Department, not intentionally, but as an accident. +The evidence is that they kept three routes in one pigeonhole, and +that the papers sometimes got mixed; that is Mr. Brewer's +testimony. A very strange thing happened to that petition. While it +was before this jury it came apart again. And if some clerk not +absolutely familiar with the papers had taken it up, he would have +been just as liable to put it on the wrong petition as on the right +one. My plan is to account for a thing in some way consistent with +evidence, if I naturally can. I do not go out of my way hunting for +evidence of crime. And when there was a petition, large enough, +with a plenty of genuine names on it, I cannot imagine anybody +would go and get names from any other petition and paste them on to +that. But being in this same country, and the testimony being that +they had three of these routes in one pigeon-hole, my idea is that +the papers got mixed and mingled sometimes, and I say the +probability is that it was an accident. That is the best way to +account for it. If Miner had known that that petition was there +that he had made, would he have allowed it to stay there? Why would +he want to do such a thing if he was in a conspiracy with Brady? +Why would he have to resort to perjury and interlineation in order +to get Brady to make orders that he, Brady, had conspired to make? +Absurdity cannot go beyond that. Here is the doctrine: "I have +conspired with the Second Assistant Postmaster-General. He will do +anything for me that I want. Now, I will go and forge some +petitions." That seems to me perfectly idiotic. This petition was +indorsed by Senators Grover and Slater and Congressman +Whiteaker.</p> +<p>Then, there is another petition; that one I showed you this +morning, with the words "schedule thirteen hours," and the evidence +was (that is, if you call what Rerdell stated evidence) that Miner +wrote the words "schedule thirteen hours." I have shown you, this +morning, those words, and without any other particle of argument I +want to leave it to you who wrote those words—whether Rerdell +wrote them or Miner.</p> +<p>Then, there is another wonderful thing about that petition. It +is not on any of the routes in this indictment, and has no business +here—I mean the Ehrenberg petition. The one I spoke of was +the Kearney and Kent.</p> +<p>The next petition is the Ehrenberg and Mineral Park. They say +that there has been some word erased and another written in. Nobody +pretends that it is not a genuine petition. Nobody pretends that it +was not signed by every one of the persons by whom it purports to +be signed. Then, another peculiarity; it is not on any route in +this indictment, and has no more to do with this case than the last +leaf of the Mormon Bible; not the least.</p> +<p>Let us see if they have any more of these terrible things. Here +is petition 2 A, on the Kearney and Kent route. That is the +petition that has the words "schedule thirteen hours."</p> +<p>That is the one indorsed by Senator Saunders. Petition 18 K, on +the route from Ehrenberg to Mineral Park, is not a route in this +case. It turned out that the names on it are genuine, and the +genuineness of the petition has not been challenged. The only point +made is that the word "Ehrenberg" has been written by somebody +else. There is no evidence to show that the petition was not +properly signed; that the persons on there did not sign their names +or authorize somebody else to do it. The probability is there may +have been some mistake in the name, or it may have been misspelled. +There was some mistake made, and the word "Ehrenberg" was written +in. On page 4186 Mr. Miner swears positively that in regard to the +petition 2 A he never wrote the words "schedule thirteen +hours."</p> +<p>Then, there is another petition, I think it is on page 1247, the +Camp McDermitt petition. There are the words "ninety-six hours." +And they get that down there to a fine point. Mr. Boone swore that +he did not know who wrote the word "ninety," but that Miner wrote +the word "six.." Well, that is too fine a point, gentlemen, to put +on handwriting. It seems there is an interlineation there of the +words "ninety-six," and they say they do not know who wrote the +word "ninety" and that Miner wrote the word "six." But Miner swears +that he did not write it at all.</p> +<p>Now, then, you take away the evidence of Mr. Rerdell as to +Miner, and what is left? The evidence left is that of A. W. Moore. +And what is that? It is that Miner instructed him to get up false +petitions. This was the first time he ever went out. But Moore +swore that he made arrangements to do what Miner instructed him to +do; that he made such arrangements with Major; but Major swears he +did not. Moore swore that he made some arrangement with McBean, and +the Government did not ask McBean whether he did or not, but I will +show that he did not. The testimony shows that on the first trip, +at the time he saw Major, he did not see McBean. Now, just see. He +swore, in the first place, that he made that arrangement with Major +and McBean. I find afterwards that his evidence shows that he did +not see McBean on the first trip, but he did see him on the +second.</p> +<p>On page 1408 we find that when Moore went West the second +time—when he left here and had made a bargain with Dorsey for +one-quarter interest in his route, and Miner told him to go West +and let Dorsey's routes go to the devil, and he said he would, and +never notified Dorsey that he was going to do it—that man +comes here now and swears that he made a contract with Dorsey for +one-quarter interest, and then started West and made a contract +with Miner, letting Dorsey's routes go. He did not have the decency +to even notify Dorsey that he was going to do so. That is the man. +On the first trip he did not agree with anybody about petitions. +Now, understand my point, because it kills Mr. Moore again. We have +to keep killing these people—keep killing them. It is +something like the boy who was found pounding a woodchuck. He was +pounding him away in the road with all his might, and a man came +along and said to him, "What are you pounding that woodchuck for?" +He said, "Oh, I am just pounding him." "But," the man said, "he is +dead." "Yes, I know it," said the boy, "but I am pounding him to +show him that there is punishment after death."</p> +<p>Now, on page 1408, we find that this man Moore went to the West +a second time. I have shown you that the first time, he swears that +he did not see McBean at all. He saw Major and made the arrangement +with him, he says. Major swears that he did not. They do not put +McBean on the stand. Now, he goes a second time.</p> +<p>On the second trip, he says he had nothing to do with the +petition business at all, and did not explain the petition business +to anybody because he had not the time, and on the first trip did +not see McBean at all. And yet he swears that he made an +arrangement with McBean about these very petitions. The proof that +he did not see Mc-Bean on his first trip is found on page 1398.</p> +<p>There is one other point about which we have heard an immensity +of talk and upon which a great deal of air has been wasted, and +that is, that there was a bargain that Brady was to have fifty per +cent, of all the fines that he remitted. In other words, that he +made a bargain with his co-conspirators that if he fined them a +thousand dollars and then remitted it, that he was to have five +hundred dollars or one-half of that fine. That is a nice bargain; +for me to put myself in the power of a man and say, "Now, you fine +me what you want to, and then if you will take it off, I will give +you half of it." It seems to me that that would be quite an +inducement for him to fine me. Yet, here is a man who makes a +bargain that Brady may impose a fine upon them and that he may have +half of it back—that is, upon their doctrine, although they +have never proved it, but they state it just the same as though +they had. But here are the facts. Here are the fines and deductions +on twelve routes. The fines amount to eighty-nine thousand six +hundred and thirty-eight dollars and twenty-two cents and the +remissions amount to seven thousand four hundred and twenty-eight +dollars and fifty-four cents; that is all. And yet they pretend +that we had a bargain. Now, come to the mail routes, and we find +that the fines amounted to sixty-one thousand two hundred and +thirty-two dollars and twenty cents and all that they could get +their co-conspirators to take off of that (although according to +the doctrine of the prosecution they were to have fifty per cent.) +was thirteen thousand eight hundred and fifty dollars and sixteen +cents. That was all they could get off. There are the figures. +There has been talk enough on that subject, but all the air that +wraps the earth could not answer those facts. Words enough to wear +out all human lips could not change those facts. Fines eighty-nine +thousand dollars, remissions seven thousand dollars; fines +sixty-one thousand dollars, remissions thirteen thousand dollars. +And yet they pretend that he had a bargain by which he had fifty +per cent, of all he remitted. I need not make any more argument on +that point.</p> +<p>There have been one or two things in this trial that I have +regretted, and one I find in Mr. Ker's speech. And I find frequent +reference to it in other places, and that is the blindness of S. W. +Dorsey. Affidavits were made by Drs. Marmion, Bliss, and Sowers +that Mr. Dorsey had lost at least eleven-twelfths of his vision. +And yet it has been constantly thrown out to you that it was a +ruse, a device, and I believe Mr. Ker said in his speech that Mr. +Dorsey saw a paper in Mr. Merrick's hand, Mr. Merrick, I believe, +holding a balance-sheet from the German-American Savings +Bank—a paper several feet wide or long—and because Mr. +Dorsey said to him, "I believe you have it in your hand," why they +said this man is pretending to be blind. His testimony was that he +had been in a dark room for three months; that his eyes had not +been visited by one ray of light for three months, and that for six +months he had not read a solitary word. And yet the prosecution +sneeringly pretended that there was nothing the matter with his +eyes. They subpoenaed Dr. Marmion, but they dare not put him on the +stand. They threw out hints and innuendoes that these doctors had +sworn falsely, but they dare not put it to the test. It seems that +nothing in the world can satisfy them about Stephen W. Dorsey +except to see him convicted, except to have them put their feet +upon his neck. Gentlemen, you never will enjoy that pleasure. You +never will while the world swings in its orbit find twelve honest +men to convict Stephen W. Dorsey—never. This Government may +put forth its utmost power; it may spend every dollar in its +Treasury; it may hire all the ingenuity and brain of the country, +and it can never find twelve men who will put Stephen W. Dorsey in +the penitentiary—never, and you might as well give it up one +time as another. Try it year after year; poison the mind of the +entire public with the newspapers; get all the informers you can; +bring all the witnesses you can find; put all of those whom you +call accomplices on the stand, and I give you notice that it never +can be done, and I want you to know it. Spend your millions, and +you will end where you start. As long as the average man runs there +will always be one or two honest men in a dozen; so you cannot +convict one of these defendants. Go on, but it will never be +accomplished.</p> +<p>There is one other thing which perhaps may be worth noticing. I +believe that they proved by Mr. Dorsey that he wrote an account of +his relation to this business, and published it in the <i>New York +Herald</i>. The only point with which Mr. Merrick quarreled in that +entire paper was the statement that Peck was a large contractor, +and when Dorsey was put on the stand he explained that while Peck +had not many routes in his own name, that he was the partner of a +man named Chidester. That is the only thing of which he complained, +and yet that communication pretended to tell the relation that +Dorsey sustained to this entire business, and if that had not +accorded precisely with Dorsey's testimony on the stand every word +of it would have been read to you again and again. And Mr. Ker says +that letter was written for the purpose of poisoning public +opinion. Was the letter of the Attorney-General of the United +States, written just before this trial began, written to bias +public opinion also?</p> +<p>Mr. Merrick. Is there any evidence of that letter in this trial? +If not I object to any reference to it.</p> +<p>The Court, You cannot refer to that, because it is not in the +case.</p> +<p>Mr. Ingersoll. I take it back. Was Dickson indicted to bias +public opinion?</p> +<p>Mr. Merrick. I object to that also. He was indicted by the grand +jury on competent testimony.</p> +<p>The Court. There is no evidence in this case that he was +indicted.</p> +<p>Mr. Ingersoll. I will take it back then. I would ask the Court, +however, after the attorney for the Government has said that Dorsey +wrote that letter to bias public opinion, if I have not the right +to say that he wrote that letter because letters had been written +by others.</p> +<p>Mr. Merrick. Not unless those letters are in proof.</p> +<p>The Court. The fact that he wrote the letter is in evidence in +the case. That of course makes it the proper subject of comment on +either side. Anything else not in evidence is not a subject of +controversy.</p> +<p>Mr. Ingersoll. I will take it for granted, however, that the +jury understand what is going on in this case.</p> +<p>Mr. Merrick. Yes, they understand the evidence.</p> +<p>Mr. Ingersoll. I understand that the jury, as members of this +community, as citizens of the United States, have at least a vague +idea of what the Department of Justice has done.</p> +<p>It is also claimed, and has been claimed, and I have answered it +again and again and again, that S. W. Dorsey is the chief +conspirator. Why? Is it possible that it is because he was the +chief man politically? Is it possible that any politician was +envious of his place and power? Is it possible that any politician +was envious of the influence he had with President Garfield? Is it +possible that he had interfered with the career of some piece of +mediocrity? Why is it that he is made the chief figure? These are +questions that are asked and questions that you can answer. How +does it happen that his name never figures in any division? That +his name never figures in any paper made in regard to this +business? How does it happen that when he was contending with the +German-American National Bank that he must be paid, how is it that +it never occurred to Miner or Vaile to tell him, "Why, this is a +conspiracy of your own hatching. You advanced this money to give +life to your own bantling, and you have got to wait until the +conspiracy bears fruit, and if you are not willing to wait you can +do the next worse thing, have it made public"? If at that time, +when he was opposing and fighting Vaile because he had cut out his +security, Vaile had known that Dorsey was in the conspiracy, one +word from him and Stephen W. Dorsey's mouth would have remained +shut forever. But it did not occur to Miner, it did not occur to +Vaile. That won't do. Why didn't Vaile say to him, "Mr. Dorsey, you +are making a great deal of fuss about a few thousand dollars. You +are in the Senate; you are interested in these routes, and I want +to hear no more from you"? Why didn't he say it? Because it was not +true; that is why.</p> +<p>Now, gentlemen, if what the prosecution claims is true, not only +Stephen W. Dorsey, not only Thomas J. Brady, not only John R. +Miner, not only H. M. Vaile, and John W. Dorsey are guilty of +conspiracy, but hundreds and hundreds of other people. Do you +believe it is possible that all the persons who petitioned for an +increase of service, who petitioned for expedition—do you +believe they were in a conspiracy? Do you believe they were +dishonest men, and do you believe they asked for what they did not +want? Do you believe that these defendants had at their beck and +call the representatives of the entire great Northwest? Do you +believe that members of Congress of the Lower House and of the +Senate were their agents and tools? Was Senator Hill a conspirator? +Was the present Secretary of the Interior a conspirator? Were +Senator Grover and Senator Slater also conspirators? Were generals, +judges, district attorneys, members of State and Territorial +Legislatures—were they all conspirators? Did they indorse +false petitions for the purpose of putting money in the pockets of +these defendants? Let us be honest. Do you believe that General +Miles was a conspirator, or that General Sherman, whose title is +next to that of the President, and whose name is one synonymous of +victory, entered into a conspiracy? Do you believe that he knows as +much about the mail business as Colonel Bliss? Do you believe that +he knows as much about the wants of the great Northwest as the +gentlemen who are prosecuting this case? Was he a conspirator with +their Representative in Congress from Oregon? Was Horace F. Page a +conspirator? These are questions, gentlemen, that you must answer. +Were all these men, these officers of the Army, State officers, +Federal officers, and men of national reputation—were they +all engaged in a conspiracy; were they endeavoring to assist these +defendants in plundering the Treasury of these United States? These +are questions for you to ask and questions for you to answer. Is it +not wonderful that such a conspiracy should have existed in all the +Western States at one time?</p> +<p>Gentlemen, is it wonderful that all the people of the West want +mails? Do you not know, and do I not know, that the mail is the +substantial benefit we get from the General Government? Don't you +know that the mail is the pioneer of civilization? Do you not know +that there ought to be a mail wherever the flag floats? Do you not +know that the only way to keep a great country like this together, +a vast territory of three million square miles—three million +five hundred thousand square miles—is by the free +distribution of the mail? If you are going to keep the people who +populate that territory together, if you are going to keep them of +one heart and one mind, if you are going to make them keep step to +this Union and to the progress of this nation, you must have +frequent intercourse with them all. The telegraph must reach to the +remotest hamlet; the little electric spark, freighted with +intelligence and patriotism, must visit every home; and the +newspaper and the letter, bearing words of love from home and news +from abroad, must visit every house, so that every man, whether +digging in the mine or working on the farm, may feel the throb and +thrill of the great world, and be a citizen of a mighty nation +instead of an ignorant provincial.</p> +<p>I am in favor of frequent mails everywhere, all over the plains, +all through the mountains, everywhere, wherever the flag flies, I +want the man who sits under it to feel that the Government has not +forgotten him; that is what I want. I take pride in this country. I +am one of the men who believe that there is only air enough in this +entire continent to float one flag. I am one of the men who believe +that it is the destiny of the United States to control every inch +of soil from the Arctic to the Antarctic, and that when a nation +loses its ambition to grow, increase, and expand it begins to die. +And what right has a man who is carrying the mail to interfere with +the policy of the Post-Office Department? These are large +questions, gentlemen of the jury, and I want you to deal with them +in a large and splendid American spirit. I want you to feel that we +are citizens of the greatest Government on this globe. I want you +to feel that here, to every man, no matter from what clime he may +come, no matter of what people, no matter of what religion, the +soil will give emolument, the sun will give its light and heat, the +Government will give its protection. I like to feel that way about +the Government. And yet, because the department adopted a splendid +and generous policy, it is tortured into evidence of +conspiracy.</p> +<p>Now let me speak just a moment about these people—the +defendants in this case. First, there is Stephen W. Dorsey. I take +a great interest in this case; I admit it. I would rather lose my +right hand than have you convict Stephen W. Dorsey. I admit it. I +admit that if he were convicted I would lose confidence in trial by +jury; I would believe that there were no twelve men in the world +that had the honor and the manhood to stand by what they believed +to be the evidence and the law. I would feel as though trial by +jury was a failure. I admit I have that interest in it—all +that anybody can have in any case. You can only convict that man by +the testimony of A. W. Moore and M. C. Rerdell. That testimony +withdrawn from the record and there is not one word against him. I +want you to know and I want you to remember what kind of a man he +is. You have seen him; you know him; and you know something of him. +It is for you to decide whether you will take the testimony of +Rerdell as against that man. It is for you to decide whether you +will take the testimony of A. W. Moore as against that man. These +men who are prosecuting him seem to forget who he is and what he +has been. Yet men disgrace the position that Stephen W. Dorsey +helped to give them, by attacking him.</p> +<p>John W. Dorsey can be convicted by the testimony of nobody. +There is no testimony against him, except that of one man. He is an +honest man. He told exactly what he did, and he told it like an +honest man. He told why he did not put his money in the bank at +Middlebury, Vermont, because they thought that he owed a debt which +he did not think he owed. He need not have told it, but he is an +honest man, and that is the reason he told it. The prosecution does +not appreciate that kind of man, that is, they say they do not.</p> +<p>The only witnesses against Miner are Rerdell and Moore, and they +being dead, that is the end of it.</p> +<p>What evidence is there against Harvey M. Vaile? One witness, Mr. +Rerdell. What did Harvey M. Vaile do? At the solicitation of Mr. +Miner he advanced money to prevent his having a failing contract. +What else did he do? He wrote a letter saying that he was trustee +for S. W. Dorsey, and he was, because the concern owed S. W. Dorsey +a few thousand dollars, and agreed out of the profits to repay +Stephen W. Dorsey. That is all. That is all. You have seen Mr. +Vaile here from day to day. You know that he is a man of mind. I +think he is an honest man. I think he testified to the exact truth. +He did what any other man had the right to do, he helped a man, not +entirely from charity, but believing after all that it might be a +good investment, as you have done if you have ever had the +opportunity. And there is not the slightest scintilla of evidence +against him, not the slightest. I believe every word that he +testified, and so do you.</p> +<p>And then they come to Thomas J. Brady, and they tell you that +that man is to be convicted upon the testimony of whom? Mr. Walsh. +And who else? Mr. Rerdell. You have some idea of human nature. You +have a little and I have a little. Here is Mr. Walsh, an athlete; a +man who, had he lived in Rome in ancient times, might have been a +gladiator. He loans Mr. Brady twenty-five thousand or thirty +thousand dollars. For some of this money he has notes, for other +portions he has not. He sends word to Brady that he would like to +fix the interest. He goes there and Brady takes these notes and +puts them in his pocket and they part as philosophers. If we +believe that, we must believe it as idiots. You do not believe it. +You do not believe any man ever allowed another to take twenty-five +thousand dollars in notes belonging to him and put them in his +pocket and walk off, he taking off his hat at the door and you +bowing and wishing him a happy voyage. My mind is so constructed +that I cannot believe that; I cannot help it. I imagine your minds +are built a little after the same model. I do not believe the +story; you do not.</p> +<p>Who is the next witness against Mr. Brady? Mr. Rerdell.</p> +<p>It is sufficient for me to speak the name. I need argue no +further. That is enough. You saw Mr. Brady on the stand and you +heard him give his testimony. No man could listen to it without +knowing it to be true. I say now to each one of you that when you +heard it you believed it, and every one of you believed it was the +truth. Take from this record the testimony of Rerdell, Walsh, and +Moore, and what is left? Some papers, petitions, orders, +affidavits, all made, signed and filed in the cloudless light of +day. That is all that is left. Where is your conspiracy? Faded into +thin air, nothing left.</p> +<p>I presume it will be said by the prosecution that I spent about +three days on Mr. Rerdell. I admit it. Why? Because I regarded +Rerdell as your case. Because I made up my mind that when I killed +Rerdell the case had breathed its last. That is the reason. And had +it been necessary to spend a few weeks more I should have done so. +But it is not necessary. Probably I wasted a great deal of time +upon the subject, but if he is not dead I do not want it in the +power of any human being to say that it was my fault. I went at him +with intent to kill, and I kept at him after I knew that he was +dead. I admit it.</p> +<p>Now, gentlemen, let us see what I have proved. Let us see what +up to this time I have substantiated in my judgment.</p> +<p>First, I think I have shown that John W. Dorsey, John M. Peck, +and John R. Miner agreed in 1877, to go into the mail business. +That Peck wrote a letter to Stephen W. Dorsey, who was then a +United States Senator, asking him to get some competent man to get +reliable information as to the cost of service on routes in the +Western States and Territories then advertised by the General +Government. That S. W. Dorsey gave that letter to A. E. Boone. That +he told him to say nothing about it to other contractors. That +Boone sent out circulars for the purpose of getting the requisite +information; that is, the cost of corn and oats and the wages of +men.</p> +<p>That John R. Miner came to Washington on the 1st of December, +1877. That he went to the house of Stephen W. Dorsey, as had been +the custom for several years. That he occupied a room in that +house, and that he and Mr. Boone went on with the business of +making proposals and getting up forms of contracts.</p> +<p>That John W. Dorsey came here in the early part of January, +1878. That after his arrival the partnership was formed between him +and A. E. Boone, and that the partnership was dated the 15th day of +January, 1878.</p> +<p>That S. W. Dorsey, at the request of his brother and +brother-in-law, advanced the amount of money necessary to pay +incidental expenses. That he gave his advice whenever it was asked. +That he assisted the parties all that he conveniently could.</p> +<p>That the last bids or proposals were put in by these parties on +the 2d of February, 1878. That the awards were made on the 15th day +of March of the same year. That Miner, Peck, Dorsey, and Boone +received about five times as many awards as they had anticipated. +Thereupon another partnership was formed with the style of Miner, +Peck & Co., and that the partners in this firm were John R. +Miner, John M. Peck, and John W. Dorsey. That thereupon John W. +Dorsey and John R. Miner went West for the purpose of +subcontracting the routes. That John R. Miner on his return from +the West met Stephen W. Dorsey at Saint Louis about the 16th of +July, 1878. That Stephen W. Dorsey up to that time had advanced +eight thousand or nine thousand dollars. That he then gave to Mr. +Miner notes amounting to about eight thousand five hundred dollars +to be by him discounted at the German-American National Bank of +Washington. That Stephen W. Dorsey then told Miner that he would +advance no more and would indorse no more. That Stephen W. Dorsey +went from Saint Louis to New Mexico; that John R. Miner came to the +city of Washington, arriving here about the 20th of July. That John +R. Miner then found that service in eastern Oregon was not in +operation, although it had been subcontracted; but he then applied +to Thomas J. Brady for an extension of time. That Brady refused to +give it. That Miner, Peck & Co. had not the money to stock the +routes not then in operation, and that Stephen W. Dorsey had +refused to advance further means. That John W. Dorsey was then in +the West and that John M. Peck was then in New Mexico. That +thereupon Mr. Miner applied to Harvey M. Vaile, and that Mr. Vaile +went to Mr. Brady and asked whether an extension of time could be +given, provided he undertook to put the service on those routes. +That Brady then gave him until the 16th day of August, 1878. That +thereupon Miner, under the authority of powers of attorney from +John M. Peck and John W. Dorsey, agreed upon the terms on which H. +M. Vaile should advance the money necessary to put the service in +operation.</p> +<p>That the contract bears date the 16th day of August, 1878, and +was duly executed by all the parties on the last of September or +first of October of that year.</p> +<p>That the service was not in operation by the 16th of August, and +that in August, Brady telegraphed to H. M. Vaile to know what +routes he was going to put service on.</p> +<p>That thereupon Vaile replied that he would see that all the +service of Miner, Peck, and Dorsey was put in operation. That +through the assistance of Mr. Vaile the service was put in +operation.</p> +<p>That before that time Stephen W. Dorsey had been secured by +Miner, Peck, and John W. Dorsey executing PostOffice drafts upon +the routes that had been awarded to them.</p> +<p>That on the 17th day of May, 1878, an act was passed by the +Congress of the United States allowing subcontractors to place +their subcontracts on file.</p> +<p>That after Vaile came in and agreed to furnish the money +necessary to put the service in operation, John R. Miner having +powers of attorney from Peck and John W. Dorsey, executed to H. M. +Vaile subcontracts for the purpose of securing him for the money he +had advanced.</p> +<p>That H. M. Vaile put these subcontracts on file, thus cutting +out and rendering worthless as security the PostOffice drafts that +had been given to S. W. Dorsey for the purpose of securing him.</p> +<p>That John W. Dorsey returned from the Bismarck and Tongue River +route in November, 1878, and that he then offered to sell out his +entire interest in the business to Vaile for ten thousand dollars, +and left instructions authorizing his brother, S. W. Dorsey, to +make such sale for such amount. That John W. Dorsey then returned +to the Tongue River route.</p> +<p>That Stephen W. Dorsey returned to Washington in December, 1878, +and for the first time found that the subcontracts had been given +to Vaile. That he and Mr. Vaile had a quarrel with the +German-American National Bank on that question.</p> +<p>That afterwards Dorsey was to give ten thousand dollars to John +W. Dorsey, and ten thousand dollars to John M. Peck. That he then +concluded not to do so.</p> +<p>That on the 4th day of March, when S. W. Dorsey's Senatorial +term expired, he immediately wrote a letter to Brady insisting that +the subcontracts that had been filed by Vaile were in fraud of his +rights. That thereupon the parties in interest came together. That +S. W. Dorsey acting for Peck, his brother, and himself agreed with +Vaile and Miner to a division of the routes.</p> +<p>That S. W. Dorsey paid Peck ten thousand dollars for his +interest, paid John W. Dorsey ten thousand dollars for his +interest, and took substantially thirty per cent, of the routes and +paid himself the money that was owing to him by Miner, Peck & +Co.</p> +<p>That the parties at the time executed to each other subcontracts +and such other papers as were necessary to vest, as far as they +then under the law could vest, the routes so divided in the parties +to whom they fell.</p> +<p>That on the 5th of May, 1879, the division was completed, and +that from that time forward Vaile and Miner had no interest in the +routes that fell to Stephen W. Dorsey, and that from that time +forward Stephen W. Dorsey had no interest in the routes that fell +to Vaile and Miner, and that John W. Dorsey and John M. Peck had no +interest in any route from that date forward until the present +moment. That S. W. Dorsey took entire and absolute control of his +routes, and that Miner and Vaile took entire control of their +routes. That from that time until the present neither party +interfered with the routes of the other.</p> +<p>That Vaile and Miner made no paper of any sort, character, or +kind for Stephen W. Dorsey after the 5th of May, 1879, and that +neither John W. Dorsey, nor John M. Peck, made any papers of any +kind, sort or character for Miner or Vaile after that date, no +matter what date papers bear that were made before that time. That +S. W. Dorsey made no papers for Miner or Vaile after that date. And +that Miner and Vaile made no papers for S. W. Dorsey after that +date, May 5, 1879. That all the papers bearing date after the 5th +of May, were in fact signed by the parties at or before that time. +That they were so signed for the purpose of making the division +complete.</p> +<p>That Vaile and Miner on their routes got up petitions that they +had a right to do. That S. W. Dorsey upon his routes got up +petitions, as he had a right to do.</p> +<p>That the routes were increased and expedited by the Second +Assistant Postmaster-General in accordance with the policy of the +department and in accordance with the petitions filed and the +affidavits made, as he had a right to do.</p> +<p>That it was not for the contractors to settle the policy of the +Post-Office Department.</p> +<p>That the evidence of A. W. Moore is unworthy of belief, and that +his statement that he settled with S. W. Dorsey is demonstrated to +be false by the receipts that he afterwards gave in final +settlement to John R. Miner, as admitted by himself. That his +testimony as to the existence of a conspiracy is rendered worthless +and absurd by the fact that he sold out not only his interest, but +his services up to that time, for six hundred and eighty-two +dollars. That his conversations with Miner could not have taken +place. That he never made or offered to make such contracts with +Major as he pretended he was instructed to make, and as he swore +that he did make. That his conversation with S. W. Dorsey never +occurred.</p> +<p>That the testimony of Rerdell is utterly and infinitely unworthy +of credit. That he is not only contradicted by all the evidence, +but by himself, and how can you corroborate a man who tells no +truth? There must be something to be corroborated.</p> +<p>That the red books never existed.</p> +<p>That the pencil memorandum was forged by himself.</p> +<p>That the Chico letter was written by him.</p> +<p>And that the letter from Dorsey to Bosler, said to have been +dated May 13, 1879, was born of the imagination of Mr. Rerdell.</p> +<p>That Rerdell's letter to Bosler of the 22d of May, 1880, was +never sent, was never received, and was never written until after +this man made up his mind to become a witness for the Government. +That Bosler never received that letter, or the letter pretended to +have been written by Dorsey on the 13th of May, 1879.</p> +<p>That the tabular statement in which thirty-three and one-third +per cent, was allowed to Brady never existed. That Rerdell did not +visit Dorsey's office in New York in June, 1881, and that he had no +conversation with Torrey. That Rerdell was not there. That he did +not have the conversation detailed by him with Dorsey at the +Albermarle Hotel. That Dorsey did not write the letter of the 13th +of June, 1881.</p> +<p>That Rerdell swore in June, 1881, that Dorsey was entirely +innocent. That he swore to three affidavits of the same kind. That +he again swore to the same thing on the 13th of July, 1882. That he +admitted by his letter of July 5, 1882, that S. W. Dorsey did not +even ask him to make the affidavit of June, 1881, but that he was +persuaded to do it by James W. Bosler. That he was not locked up at +Willard's Hotel. That he was not threatened with a prosecution for +perjury. That he was not shown the letters he had written to a +woman. That the whole story with regard to the making of that +affidavit was utterly and unqualifiedly false. That he never had +the conversation with Thomas J. Brady that he claimed. That Brady +never suggested to to him to have any books copied. That there were +no books of Dorsey's that needed to be copied. That he did not see +S. W. Dorsey draw any money at Middleton's bank at the time he +states. That he, Rerdell, drew the money himself. And that his +entire testimony is absurd, contradictory, and utterly unworthy of +credit.</p> +<p>Let me say another thing to you, gentlemen, right here. It would +be better a thousand times that all the defendants tried in the +next hundred years should escape punishment than that one man +should be convicted upon the evidence of a man like this—a +man who offered to the Government to make a bargain while the trial +was in progress, that he would challenge from the jury all the +friends of the defendants, and help the Government to get the +enemies of the defendants upon the jury. You never can afford to +take the evidence of such a man. It turns a court-house into a den +of wild beasts. You cannot do it.</p> +<p>I have shown that the story of Walsh is improbable, and that all +that Boone swears against these defendants cannot be believed. That +Walsh never loaned the money to Brady that he claimed, and that +Brady never took from him the notes as he says. That Brady never +made in his presence the admissions that he swears to. Think of it; +Brady robbing Walsh, and at the same time saying to Walsh, "I am a +thief and public robber."</p> +<p>I have shown to you, gentlemen, it seems to me, that no +reasonable human being, taking all this evidence into +consideration, can base upon it a verdict of guilty. It cannot be +done.</p> +<p>Now, gentlemen, the responsibility is upon you, and what is that +responsibility? You are to decide a question involving all that +these defendants are. You are to decide a question involving all +that these defendants hope to be. Their fate is in your hands. +Everything they love, everything they hold dear, is in your power. +With this fearful responsibility upon you, you have no right to +listen to the whispers of suspicion. You have no right to be guided +or influenced by prejudice. You have no right to act from fear. You +must act with absolute and perfect honesty. You must beware of +prejudice. You must beware of taking anything into consideration +except the sworn testimony in this case. You must not be controlled +by the last word instead of by the last argument! You must not be +controlled by the last epithet instead of by the last fact. You +must give to every argument, whether made by defendant or +prosecution, its full and honest weight. You must put the evidence +in the scales of your judgment, and your manhood must stand at the +scales, and then you must have the courage to tell which side goes +down and which side rises.</p> +<p>That is all we ask. We ask the mercy of an honest verdict, and +of your honest opinion. We ask the mercy of a verdict born of your +courage, a verdict born of your sense of justice, a verdict born of +your manhood, remembering that you are the peers of any in the +world. And it is for you to say, gentlemen, whether these +defendants are worthy to live among their fellow-citizens; whether +they shall be taken from the sunshine and from the free air, and +whether they are worthy to be men among men.</p> +<p>It is for you to say whether they are to be taken from their +homes, from their pursuits, from their wives, from their children. +That responsibility rests upon you.</p> +<p>It is for you to say whether they shall be clothed in dishonor, +whether they shall be clad in shame, whether their day of life +shall set without a star in all the future's sky; that is for +you.</p> +<p>It is for you to say whether Stephen W. Dorsey, John W. Dorsey, +John R. Miner, Thomas J. Brady, and H. M. Vaile shall be branded as +criminals.</p> +<p>It is for you to say, after they have suffered what they have, +after they have been pursued by this Government as no defendants +were ever pursued before, whether they shall be branded as +criminals.</p> +<p>It is for you to say whether their homes shall be blasted and +blackened by the lightning of a false verdict.</p> +<p>It is for you to say whether there shall be left to these +defendants and to those they love, a future of agony, of grief and +tears. Nothing beneath the stars of heaven is so profoundly sad as +the wreck of a human being. Nothing is so profoundly mournful as a +home that has been covered with shame—a wife that is worse +than widowed—children worse than orphaned. Nothing in this +world is so infinitely sad as a verdict that will cast a stain upon +children yet unborn.</p> +<p>It is for you to say, gentlemen, whether there shall be such a +verdict, or whether there shall be a verdict in accordance with the +evidence and in accordance with law.</p> +<p>And let me say right here that I believe the attorneys for the +prosecution, eager as they are in the chase, excited with the hunt, +after the sober second thought, would be a thousand times better +pleased with a verdict of not guilty. Of course they want victory. +They want to put in their cap the little feather of success, and +they want you to give in the scales of your judgment greater weight +to that feather than to the homes and wives and children of these +defendants. Do not do it. Do not do it.</p> +<p>I want a verdict in accordance with the evidence. I want a +verdict in accordance with the law. I want a verdict that will +relieve my clients from the agony of two years. I want a verdict +that will drive the darkness from the heart of the wife. I want a +verdict that will take the cloud of agony from the roof and the +home. I want a verdict that will fill the coming days and nights +with joy. I want a verdict that, like a splendid flower, will fill +the future of their lives with a sense of thankfulness and +gratitude to you, gentlemen, one and all.</p> +<p>The Court. Let me inquire of the counsel for the defence if +there are to be any other arguments upon their side?</p> +<p>Mr. Henkle. May it please your Honor, inasmuch as I alone +represent two of the defendants, it is perhaps due to this jury and +to myself to explain why I do not propose to argue the case. I had +prepared myself, with a good deal of labor and painstaking, to +submit an argument to the jury.</p> +<p>But after the exhaustive and able argument of my Brother Wilson, +I and my colleagues were of the opinion that there was room but for +one more argument on the part of the defence, and with entire +unanimity we selected our colleague, Brother Ingersoll, to make +that argument. And how grandly he has justified the choice, the +jury, your Honor, and the spectators will determine.</p> +<p>I saw some time ago a little paragraph in a paper in this city, +which represents the interest of the Government, in which it was +said that the defendants' counsel were afraid to argue this case +because they would come in collision with each other; that each +would try to throw the conspiracy at the door of the others and +exonerate himself, and that therefore they were afraid to argue the +case. I want to say to your Honor that so far from being afraid to +argue the case, I should have been very happy to pursue the +argument, so far as I am concerned. But out of tender consideration +to the jury, who have been kept for six long months from their +business and their interests, which I know are suffering, we have +unanimously concluded that we would close the argument with that +which your Honor has just heard. And I simply want to say further, +that I not only do not antagonize with anything that has been said +by my Brother Wilson, or by my eloquent friend who has just +concluded, but I indorse most fully and cordially every word that +has been uttered. And so far as my clients are concerned, gentlemen +of the jury, the case is with you.</p> +<p>Mr. Davidge. May it please your Honor, perhaps I ought to add a +single word. It was understood among counsel when Colonel +Ingersoll, as stated by General Henkle, was unanimously selected to +represent the defendants, that both Colonel Ingersoll and myself +should have the privilege of addressing the jury if, in the +judgment of either, it should be necessary. I have felt such a deep +interest in the present case that I have almost hoped he might +leave unoccupied some portion of the field of argument. I have +listened to every word that has fallen from his lips. He has filled +the whole area of the case with such matchless ability and +eloquence that I have no ground upon which I could stand in making +any further argument. He has so fully uncovered the origin of this +so-called prosecution, its methods, and the character and weight of +the evidence upon which a conviction is sought, that I can add +nothing whatever to what he has said. I need not add that every +syllable he has uttered receives my grateful indorsement, as well +as that of all the defendants and their counsel in this case.*</p> +<pre> + * Twelve jury men decided this morning that the Government + had not legally established a case of conspiracy against the + Star Route defendants. This verdict of absolute acquittal + coming so unexpectedly has created a very marked sensation. + The announcement in the court room of the verdict was + followed by an uproarious scene of applause, tears, + hysterics and cheers. Every one expected the jury to + disagree. Judge Wylie himself, a week or ten days ago, + called up the counsel for the prosecution and said to them, + "I do not think you are going to get a verdict out of that + jury. I have watched it carefully, and I am certain that + four of the best men on it are in doubt." Last night an + employee of the Department of Justice reported that the jury + stood eleven to one for acquittal. This came from one of the + bailiffs, who claimed to have overheard a vote. + + At any rate the prosecution had intended, if a disagreement + was reported, to ask to have the jury dismissed, on the + ground of the condition of Juror Vernon. Had this been + attempted, Dr. Sowers, who attended Vernon yesterday would + have testified that Vernon was all right mentally, after he + had braced him up with two drinks of brandy. + + The court room was crowded when the jurors took their + places. Every one of the defendants was there. Dorsey sat by + his wife, flushed and expectant. Upon the left of Mrs. + Dorsey was her sister Mrs. Peck. Brady was just back of his + special counsel. Judge Wilson, looking as hard and grim as + ever. All of the counsel for the Star Route defendants were + in their seats. Colonel Ingersoll's face showed great self- + control, although he was evidently laboring under strong + nervous excitement. He was flanked by his entire family. + + Mr. Farrell, Mr. Baker (Colonel Ingersoll's secretary), and + the white-haired and white-bearded Mr. Bush, the hard + working associate of Colonel Ingersoll, were also present. + + When the jurors took their places in the court room + precisely at ten o'clock, Judge Wylie looked at them, and + said In his slow hesitating way: "Gentlemen, I have sent + for you to learn—ahem—to learn if you have agreed—ahem— + upon a verdict." Mr. Crane the foreman said: "We have + agreed." + + Judge Wylie gave a start of surprise and looked towards the + seats for the counsel of the Government. Not one of them was + present. This looked very ominous for the Government's case, + and indicated besides that the bailiffs must have betrayed + the secrets of the jury room to the prosecution, as neither + Bliss nor Merrick came to the court room at all. Mr. Ker, + one of the counsel for the prosecution, came in and stood In + the door as the Judge said to the Clerk, "Receive this + verdict." There was the usual silence as every one turned + toward the foreman. Mr. Crane said very deliberately. "We + find the defendants not guilty." + + Then there followed a scene of great confusion and uproar, + which the Judge could not restrain. Indeed he did not try. + The triumph of such an unexpected success after two years of + fighting in the face of the entire power of the Government, + made the humblest person connected in the most remote degree + with the defence crazy with joy. When Colonel Ingersoll came + out of the Court House a crowd gathered in front of him, and + then one stout-lunged, broad shouldered man cried out "Three + cheers for Colonel Ingersoll." There was a wild scene of + tiger-like cheering from the excited crowd. This + demonstration was a personal compliment to the Colonel, for + when the defendants passed out there was not the slightest + sign of approval or disapproval beyond the congratulations + of personal friends. Colonel Ingersoll stood on the broad + steps of the Court House and smiled with the benevolent air + of a popular orator in front of a congenial crowd, and + laughed outright when some over-euthusiastic admirer called, + "Speech, speech." + + The morning was clear and bright. Colonel Ingersoll watched + the crowd a moment, himself a picture of radiant good + nature, as he stood with his white straw hut encircled with + a blue band, pushed back from his face. His short thin black + coat was partially buttoned over a white duck waistcoat. He + rested his hands in the pockets of his gray trousers. The + request for "Speech, speech" so amused him that he chuckled + over It all the way to his open carriage, which came up a + moment after. He was driven through Pennsylvania Avenue with + his family. People called out to him from the sidewalk, and + he was obliged to lift his hat so much that he finally sat + bareheaded, like a conquering hero, waving his hands to the + right and to the left. His house was thronged all day. Mrs. + Blaine and her daughter Margaret were among the first who + called. There was a profession of people all day long who + had no sympathy at all with the defendants, and who were + perfectly indifferent whether they went to the penitentiary + or not, but who were most heartily glad that their friend + Colonel Ingersoll had accomplished such a great personal + victory. + + Now that the case is over, it is time to tell some facts + about the prosecution which have been withheld until the + case was closed. In the first place, the management of the + prosecution has been equally scandalous with the crimes + charged against the defendants. The District Attorney here + has always been allowed a five dollar fee for the + prosecution of cases. Attorney-Generals who preceded Mr. + Brewster ruled that this should be the official fee of + special counsel. This was made up by allowing the payment of + lump sums as retainers. When Bliss and Merrick were put upon + the extravagant pay of one hundred and fifty dollars per day + it was inevitable that they would prolong the case to the + uttermost. Bliss has, on top of all this pay, put in an + extraordinary list of personal expenses, which have been + allowed up to a very recent date. The amount of extra matter + run into this case only to prolong it has resulted in so + confusing the case as to materially aid the defence. + + Then the reporting of the case has been turned into a huge + job. The stenographers will clear between thirty and forty + thousand dollars on their work. + + The other day I estimated from official sources, the cost of + the Star Route trials at one million dollars. It will go + above that. It will foot up near one million two hundred + thousand dollars. This evening Col. Ingersoll was serenaded. + + There was a large gathering of friends of the Star Route + defendants at Colonel Ingersoll's house to-night. Indoors + the acquitted men, their counsel, and a large number of + their more intimate friends, many of them women, met to + exchange mutual congratulations. And in the street a crowd + had gathered, partly out of curiosity—and partly to express + their sympathy with the defendants. They cheered Ingersoll + and the other counsel as well as the defendants and the + jury, and called for speeches. Colonel Ingersoll and Judges + Wilson and Carpenter spoke briefly. + + Col. Ingersoll's speech was short and vigorous. He hailed + the verdict of the jury as a victory for truth and justice, + and as a notice to the administration that it could not + terrorize a jury by indicting jurymen, and a warning to the + President that he could not force a verdict by turning + honest servants out of office. + + The Sun, New York, June 15,1883. +</pre> +<a name="link0007" id="link0007"><!-- H2 anchor --></a> +<div style="height: 4em;"><br /> +<br /> +<br /> +<br /></div> +<h2>ADDRESS TO THE JURY IN THE DAVIS WILL CASE.</h2> +<pre> + * The matchless eloquence of Ingersoll! Where will one look + for the like of it? What other man living has the faculty of + blending wit and humor, pathos and fact and logic with such + exquisite grace, or with such impressive force? Senator + Sanders this morning begged the jury to beware of the + oratory of Ingersoll as it transcended that of Greece. + Sanders was not far amiss. In fierce and terrible invective + Ingersoll is not to be compared to Demosthenes. But in no + other respect is Demosthenes his superior. To a modern + audience, at least, Demosthenes on the Crown would seem a + pretty poor sort of affair by the side of Ingersoll on the + Davis will. It was a great effort, and its chief greatness + lay in its extreme simplicity. + + Ingersoll stepped up to the jurors as near as he could get + and kept slowly walking up and down before them. At times he + would single out a single juryman, stop in front of him, + gaze steadily into his face and direct his remarks for a + minute or two to that one man alone. Again he would turn and + address himself to Senator Sanders, Judge Dixon or somebody + else of those interested in establishing the will as + genuine, At times the gravity of the jury and the audience + was so completely upset that Judge McHatton had to rap for + order, but presently the Colonel would change his mood and + the audience would be hushed into deepest silence. If the + jury could have retired immediately upon the conclusion of + Ingersoll's argument, there is little doubt as to what the + verdict would have been. + + If Ingersoll himself is not absolutely convinced that the + will is a forgery, he certainly had the art of making people + believe that he was so convinced. He said he hoped he might + never win a case that he ought not to win as a matter of + right and justice. The idea which he sought to convey and + which he did convey was that he believed he was right, no + matter whether he could make others believe as he did or + not. In that lies Ingersoll's power. + + Whether by accident or design the will got torn this + morning. A piece in the form of a triangle was torn from one + end. Ingersoll made quite a point this afternoon by passing + the pieces around among the jury, and asking each man of + them to note that the ink at the torn edges had not sunk + into, the paper. In doing this he adopted a conversational + tone and kept pressing the point until the juror he was + working upon nodded his head in approval. + + Both Judge Dixon and Senator Sanders interrupted Ingersoll + early in his speech to take exception to certain of his + remarks, but the Colonel's dangerous repartee and delicate + art in twisting anything they might say to his own advantage + soon put a stop to the interruptions and the speaker had + full sway during the rest of the time at his disposal. The + crowd—it was as big as circumstances would permit, every + available inch of space in the room and in the court house + corridors being occupied—enjoyed Ingersoll' a speech + immensely, and only respect for the proprieties of the place + prevented frequent bursts of applause as an accompaniment to + the frequent bursts of eloquence.—Anaconda Standard, Butte, + Montana, Sept. 5,1891. +</pre> +<p>MAY it please the Court and gentlemen of the jury, waiving +congratulations, reminiscences and animadversions, I will proceed +to the business in hand. There are two principal and important +questions to be decided by you: First, is the will sought to be +probated, the will of Andrew J. Davis? Is it genuine? Is it +honest?</p> +<p>And second, did Andrew J. Davis make a will after 1866 revoking +all former wills, or were the provisions such that they were +inconsistent with the provisions of the will of 1866?</p> +<p>These are the questions, and as we examine them, other questions +arise that have to be answered. The first question then is: Who +wrote the will of 1866? Whose work is it? When, where and by whom +was it done? And I don't want you, gentlemen, to pay any attention +to what I say unless it appeals to your reason and to your good +sense. Don't be afraid of me because I am a sinner.* I admit that I +am. I am not like the other gentleman who thanked God "that he was +not as other men."</p> +<pre> + * Col. Ingersoll when speaking of himself as a sinner in + this address is referring to the remarks made by Senator + Sanders, who in the preceding address said: + + "In an old book occur the words, 'My son if sinners entice + thee consent thou not.' I will not apply this to you, + gentlemen of the jury. But I have a right to demand of you + that you hold your minds and hearts free from all influences + calculated to swerve you until you have heard the last words + in this case." The Senator enjoined them not to be beguiled + by the eloquence of a man who was famed for his eloquence + over two continents and in the islands of the sea; a man + whose eloquence fittingly transcended that of Greece in the + time of Alexander. +</pre> +<p>I have the faults and frailties common to the human race, but in +spite of being a sinner I strive to be at least a good-natured one, +and I am such a sinner that if there is any good in any other world +I am willing to share it with all the children of men. To that +extent at least I am a sinner; and I hope, gentlemen, that you will +not be prejudiced against me on that account, or decide for the +proponent simply upon the perfections of Senator Sanders. Now, I +say, the question is: Who wrote this will? The testimony offered by +the proponent is that it was written by Job Davis. We have heard a +great deal, gentlemen, of the difference between fact and opinion. +There is a difference between fact and opinion, but sometimes when +we have to establish a fact by persons, we are hardly as certain +that the fact ever existed as we are of the opinion, and although +one swears that he saw a thing or heard a thing we all know that +the accuracy of that statement must be decided by something besides +his word.</p> +<p>There is this beautiful peculiarity in nature—a lie never +fits a fact, never. You only fit a lie with another lie, made for +the express purpose, because you can change a lie but you can't +change a fact, and after a while the time comes when the last lie +you tell has to be fitted to a fact, and right there is a bad +joint; consequently you must test the statements of people who say +they saw, not by what they say but by other facts, by the +surroundings, by what are called probabilities; by the naturalness +of the statement. If we only had to hear what witnesses say, +jurymen would need nothing but ears. Their brains could be +dispensed with; but after you hear what they say you call a council +in your brain and make up your mind whether the statement, in view +of all the circumstances, is true or false.</p> +<p>Did Job Davis write the will? I would be willing to risk this +entire case on that one proposition. Did Job Davis write this will? +And I propose to demonstrate to you by the evidence on both sides +that Job Davis did not write that will. Why do I say so?</p> +<p>First: The evidence of all the parties is that Job Davis wrote a +very good hand; that his letters were even. He wrote a good hand; a +kind of schoolmaster, copy-book hand. Is this will written in that +kind of hand? I ask Judge Woolworth to tell you whether that is +written in a clerkly hand; whether it was written by a man who +wrote an even hand; whether it was written by a man who closed his +"a's" and "o's"; whether it was written by one who made his "h's" +and "b's" different. Job Davis was a good scholar.</p> +<p>No good penman ever wrote the body of that will. If there were +nothing else I would be satisfied, and, in my judgment, you would +be, that it is not the writing of Job Davis.</p> +<p>It is the writing; of a poor penman; it is the writing of a +careless penman, who, for that time, endeavored to write a little +smaller than usual, and why? When people forge a will they write +the names first on the blank paper. They will not write the body of +the will and then forge the name to it, because if they are not +successful in the forgery of the name they would have to write the +whole business over again; so the first thing they would do would +be to write the name and the next thing that they would do would be +to write the will so as to bring it within the space that was left, +and here they wrote it a little shorter even than was necessary and +quit there [indicating on the will] and made these six or seven +marks and then turned over, and on the other side they were a +little crowded before they got to the name of A. J. Davis.</p> +<p>Now, the next question is, was Job Davis a good speller? Let us +be honest about it. How delighted they would have been to show that +he was an ignorant booby. But their witnesses and our witnesses +both swear that he was the best speller in the neighborhood; and +when they brought men from other communities to a spelling match, +after all had fallen on the field, after the floor was covered with +dead and wounded, Job Davis stood proudly up, not having missed a +word. He was the best speller in that county, and not only so, but +at sixteen years of age he wasn't simply studying arithmetic, he +was in algebra; and not only so, after he had finished what you may +call this common school education in Salt Creek township, he went +to the Normal school of Iowa and prepared himself to be a teacher, +and came back and taught a school.</p> +<p>Now, did Job Davis write this will? Senator Sanders says there +are three or four misspelled words in this document, while the fact +is there are twenty words in the document that are clearly and +absolutely misspelled. And what kind of words are misspelled? Some +of the easiest and most common in the English language. Will you +say upon your oaths that Job Davis, having the reputation of the +champion speller of the neighborhood—will you, upon your +oaths, say that when he wrote this will (probably the only document +of any importance, if he did write it, that he ever wrote) he +spelled shall "shal" every time it occurs in the will? Will you say +that this champion speller spelled the word whether with two "r's," +and made it "wherther," making two mistakes, first as to the word +itself, and second, as to the spelling? Will you say that this +champion speller could not spell the word dispose, but wrote it +"depose"? And will you say the ordinary word give was spelled by +this educated young man "guive"? And it seems that Colonel Sanders +has ransacked the misspelled world to find somebody idiotic enough +to twist a "u" in the word give, and even in the Century +dictionary—I suppose they call it the Century dictionary +because they looked a hundred years to find that peculiarity of +spelling—even there, although give is spelled four ways, +besides the right way, no "u" is there. And will you say that Job +Davis did not know the word administrators?</p> +<p>Now, let us be honest about this matter—let us be fair. It +is not a personal quarrel between lawyers. I never quarrel with +anybody; my philosophy being that everybody does as he must, and if +he is in bad luck and does wrong, why, let us pity him, and if we +happen to have good luck, and take the path where roses bloom, why, +let us be joyful. That is my doctrine; no need of fighting about +these little things. They are all over in a little while anyway. Do +you believe that Job Davis spelled sheet—a sheet of +paper—"sheat"? That is the way he spells it in this document. +Now, let us be honor bright with each other, and do not let the +lawyers on the other side treat you as if you were twelve +imbeciles. You would better be misled by a sensible sinner than by +the most pious absurdities that ever floated out from the lips of +man. Let us have some good, hard sense, as we would in ordinary +business life. Do you believe that Job Davis, the educated young +man, the school teacher, the one who attended the Normal school +would put periods in the middle of sentences and none at the end? +That he would put a period on one side of an "n" and then fearing +the "n" might get away, put one on the other; and then when he got +the sentence done, be out of periods, so that he could not put one +there, and put so many periods in the writing that it looked as if +it had broken out with some kind of punctuation measles?</p> +<p>Job Davis, an educated man! And you are going to tell this jury +that that man wrote that will! I think your cheeks will get a +little red while you are doing it. This man, when he comes to this +little word "is" in the middle of a sentence, his desire for +equality is so great that he wishes to put that word on a level +with others, and starts it with a capital, so that it will not be +ashamed to appear with longer words.</p> +<p>And yet the will was written by Job Davis, and Sconce saw him +write it, and Mrs. Downey saw him write it. If there were one +million Sconces, and a million Mrs. Downeys, and they held their +hands up high and swore that they did, I know that they did not, +unless all the witnesses who have testified to the education of Job +Davis have testified lies. There is where I told you a little while +ago that when a lie comes in contact with a fact it will not fit. +These other people in Salt Creek township that have come here and +sworn to that, did not know whether it was spelled right or wrong. +They did not take that into consideration.</p> +<p>It seems to me utterly, absolutely, infinitely impossible that +this will was written by a good speller. I know it was not. So do +you. There is not a man on the jury that does not know it was not +written by a good speller—not a man. And you cannot, upon +your oaths, say that you believe two things—first, that Job +Davis was a good speller, and, secondly, that he wrote this will. +Utterly impossible. There is another word here, "wordly"—"all +my wordly goods." "Worldly" it ought to be; but this Job Davis, +this scholar, did not know that there was such a word as worldly, +he left out the "l" and called it wordly, "all my wordly goods," +and they want you to find on your oath that it was written by a +good speller. There are twenty words misspelled in this short will, +and the most common words, some of them, in the English language. +Now, I say that these twenty misspelled words are twenty +witnesses—twenty witnesses that tell the truth without being +on their oath, and that you cannot mix by cross-examination. Twenty +witnesses! Every misspelled word holds up its maimed and mutilated +hand and swears that Job Davis did not write that will—every +one. Suppose witnesses had sworn that Judge Woolworth wrote this +will. How many Salt Creekers do you think it would take to convince +you that he was around spelling sheet "sheat"?</p> +<p>Mr. Woolworth. I have done worse than that a great many +times.</p> +<p>Mr. Ingersoll. You have acted worse than that, but you have +never spelled worse than that.</p> +<p>Now, this Job Davis died in 1868. Nobody has seen him write for +twenty-three years, but everybody, their witnesses and ours, +positively swears that he was a good speller. Now, comes another +question: Who wrote this will? Colonel Sanders tells us that it is +immaterial whether Job Davis wrote it or not. To me that is a very +strange remark. If Job Davis did not write it, Mr. Sconce has sworn +falsely. If Job Davis did not write it, then there was no will on +the 20th of July, 1866, and all the Glasgows and Quigleys and +Downeys and the rest are mistaken—not one word of truth in +their testimony unless Job Davis wrote that will.</p> +<p>And yet a learned counsel, who says that his object is to assist +you in finding a correct verdict, says it don't make any difference +whether Job Davis wrote the will or not. I don't think it will in +this case.</p> +<p>Who wrote the will? I am going to tell you, and I am going to +demonstrate it, so that you need not think anything about +it—so that you will know it; that is to say, it will be a +moral certainty.</p> +<p>Who wrote this will? I will tell you who, and I have not the +slightest hesitation in saying it. James R. Eddy wrote this will. +And why do I say it? Many witnesses have sworn that they were well +acquainted with Mr. Eddy's handwriting—many. Several of the +witnesses here had the writing of Eddy with them. That writing was +handed to the counsel on the other side, so that they might frame +questions for cross-examination. Those witnesses founded their +answers as to peculiarities upon the writings given to the other +side, and not on the writing in this will—just on the +writings of letters and documents they had in their possession, and +that we handed to the opposite counsel. Now, what do they say? +Every witness who has testified on that subject said that Eddy had +this peculiarity: First, that whenever a word ended with the letter +"d," he made that "d" separate from the rest of the word.</p> +<p>And, gentlemen, there are twenty-eight words in this short will +ending with the letter "d"; clearly, unequivocally, in twenty-seven +of the words ending in "d," the "d" is separate from the rest of +the word.</p> +<p>I do not include the twenty-eighth, because there is a little +doubt about it. The testimony is unvarying, except the writing that +Eddy has done since he has been found out to be the forger of that +will. Nobody has sworn that he had a letter from him in which that +is not the fact, unless that letter was written since the +institution of this suit. Twenty-seven of these words end with "d" +and the "d" is made separate from the rest of the word. Will Judge +Woolworth please tell the jury whether any witness testified that +Job Davis made these separate from the rest of the word? Poor Job, +dead, and his tombstone is being ornamented with "guive," and he is +now made to appear as an ignorant nobody.</p> +<p>Twenty-eight words ending with "d." Now, if that were all, I +would say that might be an accident—a coincidence, and that +we could not build upon that as a rock. I would say we must go +further, we must find whether any more peculiarities exist in +Eddy's writing that also exist in this will. We must be honest with +him. Now, let us see. He always had the peculiarity of terminating +that "d" abruptly, down just above the line, or at the line, +lifting his pen suddenly, making no mark to the right. Every one of +the "d's" in the will is made exactly that way. Corroboration +number two. These twenty-seven witnesses, the "d's," swear that +Eddy is their father, that they are the children of his hand, that +he made them.</p> +<p>Another peculiarity: They say that Eddy always made a double "l" +in a peculiar manner. The last "l" came down to the line of the up +stroke, and that "l" as a rule stopped there. It did not go on to +the right—a peculiarity. Now, let us see. In this will there +are nine words that end with a double "l" (and I want you to look +at that when you go out); each one is made exactly the same +way—each one. Nine more witnesses that take the stand and +swear to the authorship of this will.</p> +<p>Has anybody shown that that was Job Davis's habit? Poor, dead +dust cannot swear; nobody has said that. Another peculiarity is +that Eddy made a "p" without making any loop to the right in the +middle of it. Now and then he makes one with a loop, but his habit +is to make one without. Moses Downey swore that Job Davis made a +"p" with three loops, a loop at the top, a loop at the bottom and a +loop in the middle. That is exactly what he swore, and he was the +one who taught Job to write; and he said he made his letters +carefully, he closed his "a's" at the top, he made his "o's" round, +he made his "h's" after the orthodox pattern, he was all right on +the "b's"—your witness.</p> +<p>Now, gentlemen, you remember how that "p" looks, without any +loop; and there are twenty-one "p's" that have no loop to the +right—twenty-one in this will. Twenty-one more witnesses, and +every one of them is worth a hundred Sconces, with his sheep and +hogs floating in the air. Twenty-one witnesses that swear to the +paternity of this will. Moses Downey, your own witness, swears that +Job made a "p" with three loops. There is not a "p" in the will +with three loops, and there are twenty-one without any, and the +evidence of all the witnesses on our side was that it was his habit +to make "p's" without any loop, and they were given the papers that +they might cross-examine every one.</p> +<p>Now, do you see, we are getting along on the edge of +demonstration.</p> +<p>These things cannot conspire and happen. They may in Omaha, but +they can't in Butte, or even in Salt Creek township. Nature is +substantially the same everywhere and I believe her laws are +substantially the same everywhere, from a grain of sand to the +blazing Arcturus; everywhere the probabilities are the same. Let us +take another step.</p> +<p>It is also sworn by intelligent men who have the writing of Eddy +in their possession, (writing shown to the other side) that it was +his habit to use "a's," "o's" and "u's" indiscriminately. For +instance, "thut" that, you all remember in the will. When you go +out you will see it. He often uses an "o" where an "a" should be, +an "a" where a "u" should be, a "u" where an "a" or "o" should be; +in other words, he uses them interchangeably or indiscriminately. +How many cases of that occur in this will? +Twenty-two—twenty-two instances in this will in which one of +these vowels is used where another ought to have been used.</p> +<p>Twenty-two more witnesses that James R. Eddy wrote this will. +Twenty-two more. They have taken the stand; they won't have to be +sworn, because they can't lie. It would be splendid if all +witnesses were under that disability—that they had to tell +the truth. That cannot be answered by logwood ink. Eddy made "p's" +just the same, whether he used logwood or nigrosin, and he used his +"a's" and "o's" and "u's" indiscriminately, no matter whether he +was writing in ink, red, blue, brown, iron, Carter's, Arnold's, +Stafford's, or anybody else's. Another witness testified that he +used "r" where he ought to use "s," and that he used "s" where he +ought to use "r," or that he made his "r's" and "s's" the same. +Many instances of that kind occur in this will, and every "r" says +to Eddy, "you are the man"—every one. Every "s" swears that +your will is a poor, ignorant, impudent forgery.</p> +<p>That is what it is—the most ignorant forgery ever +presented in a court of justice since the art of writing was +invented. It comes in covered with the ear marks of fraud. And yet +I am told that it requires audacity to say that it is a forgery. +What on earth does it require to say that it is genuine? Audacity, +in comparison with what is essential to say that it is genuine, is +rank meekness and cowardice. Words lose their meaning. All swear +that Eddy scattered his periods with a liberal hand, like a farmer +sowing his grain. Now, we will take the twenty-third line of the +will. "To their use (period) and (period) benefit (another period) +forever (another period)"; twenty-fifth line: "Davis (period) and +(another period) Job (another period) Davis (another period) of +(another period) Davis (another period) County (another period)." +What a spendthrift of punctuation this man was! And yet he was well +educated, studying algebra, going to the Normal school in Iowa, +champion speller of the neighborhood. Every period certifies and +swears that Job Davis did not write that will. He had studied +grammar. Punctuation is a part of grammar and no one but the most +arrant, blundering, stumbling ignoramus, would think of putting six +or eight periods along in a sentence, and then leaving the end of +that sentence naked without anything. Another peculiarity is, Mr. +Eddy uses "b" and "h" interchangeably. He makes a "b" exactly like +an "h," makes an "h" exactly like a "b." You can see that all +through the will. There are several instances of it, and each one +says that Job Davis did not write it. Downey says he did not write +that way, and each one says that Mr. Eddy did write it, and nobody +else.</p> +<p>I am not through yet. The testimony is that Eddy was a poor +speller.</p> +<p>Now, the learned counsel, Mr. Dixon, says that in this case we +must be governed by the probable, by the natural, by the +reasonable—three splendid words, and they should be in the +mind of every juror when examining this testimony. Is it natural, +is it probable, is it reasonable? We have shown that Eddy was the +poorest speller in the business. Whenever they went to a spelling +match, at the first fire he dropped; never outlived, I think, the +first volley. And one man by the name of Sharp distinctly +recollects that they gave out a sentence to be spelled: "Give alms +to the poor," and Eddy had to spell the first word, give; and he +lugged in his "u" with both ears—"guive," and he dropped dead +the first fire. The man remembers it because it is such a curious +spelling of give; and if I had heard anybody spell it with a "u" +when I was six years old it would linger in my memory still.</p> +<p>Now, let us take Judge Dixon's test. It is a good one, well +stated, and it is for you to decide whether the misspelled words +were misspelled by a good speller or a poor speller. If you say Job +Davis wrote it, then you are unnatural, unreasonable and +improbable.</p> +<p>Isn't it altogether more natural, more reasonable, more +probable, to say that a bad speller misspelled the words than that +a good speller did?</p> +<p>Let us stick to his standard, and see if Eddy spelled give +"guive"—and, gentlemen, you cannot find in all the writing of +James R. Eddy, written before he was charged with this forgery, +where the word give appears, that it is not written with a +"u"—I defy you to find a line in the world where "given" is +"guivin." Now, let us go another step. Everybody admits that he was +a poor speller, and is it not more reasonable to say that he wrote +the will on the spelling, than that the champion speller did? We +have some more evidence on Mr. Eddy as good as anything I have +stated.</p> +<p>Now, do not be misled because I am a sinner. Let us stick to the +facts. William H. Davis testified to the spelling of Eddy, and +while he testified, held in his hand a will that he had seen James +R. Eddy write. In this will there were twenty words misspelled; +shall, "shal" and in the James Davis will, shall "shal." Good! +Whether, in our will "wherther"; in the other will, +"wherther"—just the same; sheet of paper, "sheat" in our +will; "sheat" in the other will; in our will "guive," in that +"guive." Did Job Davis rise from the dead and write another will? +Was one copied from the other, and the copy so slavish that it was +misspelled exactly the same? You cannot say it was entirely copied, +for now and then a word, by accident, is right.</p> +<p>Judge Dixon tells you that Eddy did not disguise his spelling. +Good Lord! How could he disguise his spelling? He spelled as he +thought was right. No man of his education would think of +disguising his spelling. He knows how to spell give; he believes it +is with a "u" still There is a prejudice against "u" since he was +charged with forgery, and so he has dropped it; but he thinks it is +right, nevertheless. Now, isn't it perfectly wonderful, is it not a +miracle, that James R. Eddy made exactly the same mistakes in +spelling and writing one will that Job Davis did in writing +another?</p> +<p>Isn't it wonderful beyond the circumference of belief, that a +good speller and bad speller happened to misspell the same words? +It won't do. There is something rotten about this will, and the +rotten thing about it is that James R. Eddy wrote it, and he wrote +it about March, 1890. That is when he wrote it, and he let the +proponent in this case have it. We will get to that shortly. So, +gentlemen, I tell you that every misspelled word is a witness in +our favor. There is something more. Eddy uses the character "&" +in writing, instead of writing "and." The will is full of them; and +it is stated that sometimes when he endeavors to write out the word +"and" he only gets "an," and that peculiarity is in this will. "An" +for "and"; that you will find in the seventeenth line in the last +word of the line. Colonel Jacques swore that one of Eddy's +misspelled words was the word "judgment"; that he put in a +superfluous "e," and in this case here is "judgement"—"shall +give the annuity that in the judgement of the executors shall be +final;" there is the superfluous "e"—judgement. Now, there is +another. Their witnesses swore that as a rule he turns the bottom +of his "y's" and "g's" to the left. Now, you will find the same +peculiarity in this will, and the amusing peculiarity that he turns +the "g's" a little more than he does the "y's." I don't want these +things answered by an essay on immutable justice. I want them to +say how this is. Another thing, how he makes a "t," with a little +pot hook at the top, and that hook has caught Mr. Eddy. You will +find them made in the will, exactly, where the "t" commences a +word—where it is what we call the initial letter. And what +else? When he makes a small "e" commencing a word, he always makes +it like a capital "E," only smaller. That is the testimony, and +that happens in this will and it happens in the papers and +letters.</p> +<p>Now, I say, that all these peculiarities taken together, the +same words misspelled, the same letters used interchangeably, the +same mistakes in punctuation, the same mistakes in the words +themselves—all these things amount to an absolute +demonstration. So, I told you, he uses the capital "I" with the +word "is" and that he does twice in this will.</p> +<p>Here are hundreds, almost, of witnesses that take the stand and +swear that Eddy is the author of that will. He wrote it—every +word of it. He negotiated with John A. Davis for it, and I will +come to that after a little. And how do they support this will that +has in it the internal evidence that it was written by James R. +Eddy? Why do I say it is impossible that he should have written it, +and the will should be genuine? Because at the date of that will, +or the date it purports to bear, Eddy was only eight years old. And +we don't know the real date, gentlemen, of that will yet. My +opinion is that it was dated by mistake, so that it came on a date +that Davis was not there, or came on a day that was Sunday, and +then they folded up that will, and scratched it and rubbed it until +the date is absolutely illegible, and nobody can say whether it is +June, July, or January. There was a purpose. The day may have been +Sunday, or they may have afterward ascertained that he was not +there. It is a suspicious circumstance that the day is left loose +so they can have a month to play on, maybe more. Now, they say, can +you impeach Sconce?</p> +<p>Every misspelled word in the will impeaches Sconce, ever; period +impeaches Sconce, every "a" that is used as "o" impeaches him, and +"o" as "u"; every "b" that is made like an "h" impeaches him, every +"h" that is made like a "b" impeaches him.</p> +<p>In other words, every peculiarity of James R. Eddy that appears +in that will impeaches J. C. Sconce, Sr.—Captain Sconce. +There is a thing about this will which, to my mind, is a +demonstration. It may be that it is because I am a sinner, but I +find, and so do you find it in the second initial of Sconce, in the +letter "C." There are two punctures, and you will find that exactly +where the punctures are there is a little spatter in the +ink—a disturbance of the line, in the capital first; in the +small "c" there is another puncture and another disturbance of the +line. Professor Elwell says that these holes were made afterwards. +Let's see. There is a hole, and there is a splatter and a change of +the line. There is another hole and there is another change. There +is another hole and there is another change. What is natural? What +is reasonable? What is probable? It is that the hole being there, +interrupted the pen, and accounts for the diversion of the line, +and for the spatter. That is natural, isn't it? but they take the +unnatural side. They say that these holes were made after the +writing. Would it not be a miracle that just three holes should +happen to strike just the three places where there had been a +division of the line and a little spatter of the ink? Take up your +table of logarithms and figure away until you are blind, and such +an accident could not happen in as many thousand, billion, +trillion, quintillion years as you can express by figures.</p> +<p>Three holes by accident hitting just the three places where the +pen was impeded and where the spatters were. Never such a thing in +the world. It might happen once. Nobody could make me believe that +it happened twice—that is, a hole might happen to get where +the pen was interrupted once; as to the second hole, I would bet +all I have on earth, as to the third hole, I know it did not. I +just know it did not. And yet Mr. Elwell says that these holes were +made afterwards, and he goes still further, and says that there is +not any trouble in the line. If anybody will look at it, even with +the natural eye, they can see that there is; and, in a kind of +diversion, they called Professor Hagan, when he called attention to +it, Professor Pin-holes and pin-hole expert. He might have replied +that that was a pin-head objection.</p> +<p>Professor Elwell accounts for all the dirt on this will by +perspiration, all on one side and made by the thumb, and although +there were four fingers under it at the same time, the fingers were +so contrary they wouldn't perspire. This left the thumb to do all +the sweating. I need not call him a professor of perspiration, for +that throws no light on the subject; but I say to you, gentlemen, +that those marks, those punctures, were in that paper when Sconce +wrote his name. Sconce says they were not—he remembered. He +has got a magnificent memory. I say that even that shows that he is +not telling the facts.</p> +<p>Now, what else? We went around among the neighbors. He was +charged with passing counterfeit money, with stealing sheep, with +stealing hogs, with stealing cattle and with stealing harness.</p> +<p>Mr. Woolworth. It was not proved that this man was accused of +counterfeiting, of passing counterfeit money.</p> +<p>Mr. Ingersoll. I tell you how I prove it. A man by the name of +Lanman was on the stand. He swore he was acquainted with Sconce's +reputation. Colonel Sanders asked him who he had ever heard say +anything about it. He said Lewis Miller and Abraham Miller and a +man by the name of Hopkins and several others. What did they say? I +asked them afterwards, and among other things I recollect he was +charged with passing counterfeit money, stealing hogs, stealing +sheep, stealing harness, killing another man's heifer in the woods. +I don't think I am mistaken, but if I am I will take counterfeit +money back. I won't try to pass counterfeit money myself, although +a sinner.</p> +<p>Mr. Woolworth. (Interrupting): He was not charged with killing a +heifer.</p> +<p>Mr. Ingersoll. No, no; the heifer was there. I have a very good +memory; I suppose it comes from the habit of taking no notes. +Lanman was the man, and while we are on Sconce there is a thing +almost too good to be passed.</p> +<p>Mr. Jackson was on the stand, Senator Sanders asked him, +"Whoever told you anything against him?" "Well," Jackson answered, +"I asked Hopkins—" "Who else?" "Well," he said, "I had a +private conversation, I don't like to tell." "You have got to +tell." Mr. Jackson said to the Court: "Must I tell; it was a +private conversation." "You must tell." "Well," he said, "it was +with Mr. Carruthers, one of the counsel for proponent;" and he said +that what Mr. Carruthers said had more influence upon him than +anything else, because Carruthers was in a position to know.</p> +<p>Mr. Sanders. (Interrupting). Were those his exact words?</p> +<p>Mr. Ingersoll. Yes, that he was an attorney. I tell you that was +a death-blow; that came like thunder out of a clear sky, when you +haven't seen a cloud for a month.</p> +<p>Besides that he was impeached in open court. What else? The +witnesses that came to the rescue of Sconce; how did they rescue +him? They lived down there and never heard anything against him. +All these rumors, thick in the air, the bleating of sheep following +him wherever lie went; the low of cattle and yet these people never +heard it. Tried for stealing harness, they never heard of it They +were not acquainted with him. They said that they had some personal +dealings with him and he was all right and one man endeavored to +draw a distinction between truth and honesty. A man could be a very +truthful man and a very dishonest man. Just think of that +distinction, a man of truth but dishonest. That won't do. Even +Senator Sanders said: "Some accusations, probably a dozen," to use +his excellent language—what memories we have! Let me read the +exact words: "Some accusations; probably a dozen or more, of +stealing sheep and hogs <i>lit on</i> Sconce."</p> +<p>Mr. Sanders: I didn't say that.</p> +<p>Mr. Ingersoll. I don't insist; but those are the exact words I +remember. And don't you remember that he went into a kind of homily +on neighborhood gossip, that hardly anybody escaped? I believe a +good many of this jury have escaped and a good many in this +audience have escaped. You can pick out a great many men that a +dozen accusations of stealing hogs and sheep and heifers have not +lit on.</p> +<p>Then, there is another thing about Sconce that I don't like, +gentlemen. Sconce, in giving the history of the affair in Arkansas, +was asked if he didn't say, "Did I say that Davis' name was on it +when I signed it?" and right there he skulked and stated under oath +that when he said that he alluded to the photograph. Could he by +any possibility have alluded to the photograph when he said: "Did I +say that Davis's name was on it when I signed it?" Did he ever sign +the photograph? No; he never signed the photograph. Davis never +signed the photograph, and if he ever said those words he said them +with reference to the original will, and he knows it. And yet, in +your presence, under oath, he pretended that when he made that +remark he alluded to the photograph. I wish somebody would reply to +that and tell us whether, as a matter of fact, he alluded to the +photograph.</p> +<p>Now, Mr. Sconce, as you know, has the most peculiar memory in +the world. He remembers things that had nothing whatever to do with +the subject, photographed in all details, everywhere; and yet, +gentlemen, your knowledge of human nature is sufficient to tell you +that that kind of memory is not the possession of any human +being.</p> +<p>Thousands of people imagine that detail in memory is evidence of +truth. I don't think it; if there is something in the details that +is striking, then there is; but naturalness, and, above all, +probability, is the test of truth. Probability is the torch that +every juryman should hold, and by the light of that torch he should +march to his verdict. Probability! Now, let us take that for a +text. Probability is the test of truth. Let us follow the natural, +let us follow the reasonable.</p> +<p>At the time they say this will was made, Andrew J. Davis had +removed from Iowa years before; had settled, I believe, in Gallatin +county. His interests in Iowa were nothing compared with his +interests in this Territory at that time. From the time he left +Iowa he began to make money; I mean money of some account. He began +to amass wealth. He was, I think, a sagacious man.</p> +<p>Judge Dixon says that he was a man of great business sagacity. I +am thankful for that admission. In a little while he became worth +several hundreds of thousands of dollars. Afterwards he acquired +millions. Now, during all that time, from the 20th of July, 1866, +up to the day of his death, he never inquired after the James Davis +will. It is a little curious he never wrote a letter to James Davis +and said, "Where is the will, have you got it?" Not once. They have +not shown a letter of that kind, not a word. Threw it in the +waste-basket of forgetfulness and turned his face to Montana. Years +rolled by, he never wrote about it, never inquired after it.</p> +<p>They have brought no witnesses to show that A. J. Davis ever +spoke of the will; not a word. Gentlemen, let us be controlled by +the natural, by the reasonable, by the probable.</p> +<p>In 1868 one of the executors died—Job Davis. I think +Colonel Sanders said that if a man of Judge Davis's intelligence, +knowing what a difficult thing a will is to write, should have +allowed Mr. Knight, a Kentucky lawyer, to draw his will, who had +not had much practice, why, he is astonished at that, and in the +next breath tells you that Andrew J. Davis employed a twenty-two +year old boy who could not spell "give" to draw up his will in +1866. Isn't it wonderful what strange things people can swallow and +then find fault with others! Now, remember:</p> +<p>In 1868 Job Davis died; then there was only one executor to that +will. A. J. Davis went on piling up his money, thousands on +thousands. Greed grew with age, as it generally does. Gold is +spurned by the young and loved by the old. There is something +magnificent after all about the extravagance of youth, and there is +something pitiful about the greed of old age. But he kept getting +money, more and more, and in '85 he had sold the Lexington mine. He +was then a millionaire. In '85, I think. They say he sold that mine +in '81, maybe he was then a millionaire. There was the will of '66 +down in Salt Creek township, used as a model for other wills, for +the purpose of teaching the neighbors spelling and elocution, to +say nothing of punctuation. They got up little will soirees down +there—will parties—and all the neighbors came in and +Mrs. Downey read it aloud and wept when she thought it was the +writing of her brother Job. That accounts for the tear drops, I +suppose; the round spots on the will. 1885; Andrew J. Davis worth +millions. Then what happened? Then James Davis, the other executor, +died. Then there was a will floating around down in Salt Creek +township, sometimes in a trunk, sometimes in a box, other times in +an old envelope, other times in a wrapper, and when I think of the +shadowy adventures of that document it makes me lonesome. James is +dead, poor Job nothing but dust; a will down there with no +executors at all; and A. J. Davis did not know in whose possession +it was, and never wrote to find out. Let us be governed by the +natural, gentlemen, by the probable. Never found out, never +inquired, and after James Davis died he lived four years more. I +think James Davis died on the 5th of December, 1885, then he lived +a little more than three years after he knew that both executors +were dead and did not know whether the will existed or not. Judge +Dixon tells us perhaps if he had made a will before he died it +would have been different from this. I think perhaps it would. What +makes him think that it would have been different? If that will +existed in Salt Creek township he knew it, and he knew it in 1885, +6, 7, 8, 9, and when death touched with his icy finger his heart he +knew it then, and if he made that will in '66, it was his will when +he died unless it had been revoked. He knew what he was doing.</p> +<p>I tell you there was no will down in Salt Creek township at all; +there wasn't any here. There have been a good many since. Now, +where is the evidence that he ever thought of this will, that he +ever spoke of it?</p> +<p>What else? He appointed three executors of his will, that is, in +'66, if he made it, and in that he provided that a like maintenance +should be given to Thomas Jefferson, Pet Davis and Miss Bergett, +all three of Van Buren County, State of Iowa. What else did he say? +That the executors should have the right of fixing that amount, and +whatever amount in their judgment should be fixed should be final. +What is the legal effect of that? The legal effect of that is that +the estate could not have passed to John A. Davis until the last +who had a life interest was dead. The proceeds could have been +taken, every cent of them, from that estate and given to the three +persons for life maintenance, and the youngest of those persons was +four years old. John A. Davis would have had to wait seventeen +years. And do you think that A. J. Davis ever made a will like +that, putting it into the power of two executors to divert the +entire income to certain persons and that there could be no +division until they were all dead.</p> +<p>Now, another improbability. Recollect, all the time, that we are +to be governed by reason and naturalness. Now, then, it was claimed +that Judge Davis held certain relations with a certain Miss +Caroline Bergett. It was claimed that a daughter known as Pet Davis +was his. It was also claimed that a boy, Thomas Jefferson Davis, +was his son. Nobody tells the truth in this will although it has +been alluded to and argued as well, I think, as could be. There is +this trouble in the will that though the boy Jeff was never in Van +Buren County until he was twelve years old—was never there +until six years after the will was dated, yet his supposed father +describes him as of Van Buren County.</p> +<p>Next, Miss Caroline Bergett had married a man by the name of W. +V. Smith in 1853, and in 1858, W. V. Smith took his wife and +children and moved to Texas—eight years before this will was +made, and yet A. J. Davis forgot her name, forgot her residence, +forgot the residence of the boy that was imputed to him; that of +itself is enough to show that he was not present when the will was +made. If there is anything on earth that he would remember this is +it, and you know it. Although Mrs. Downey could not remember when +she was married or when her first child was born, she does remember +the time it took her to dust the room where there was a +clothes-press, a table and three or four chairs. She recollects +that.</p> +<p>Another improbability:</p> +<p>John A. Davis, the proponent, had charge of the Davis farm down +in Iowa and stayed there for six years after this alleged will was +made, and although he was acquainted with the Quigleys, the +Henshaws, the Sconces, and all the aristocracy of the neighborhood, +he says he never heard of the existence of this will which so many +people of that section talked about. What a place for keeping +secrets!</p> +<p>Senator Sanders says that the reason Judge Davis made his will +in Salt Creek township was because in that township they knew about +this woman or these women and these children, and he didn't want to +go into any other community and make his will.</p> +<p>Any need of publishing his will? Any need of reading any more +than the attesting clause to the attesting witnesses? Any need to +divulge a line? None. Ah, but Senator Sanders said that he wanted +to keep the secret. That is the reason he left the will upon that +table and rode away in a debonnair kind of style on his roan horse +with the bobtail, leaving a congregation of Salt Creek loafers to +read his will. He wanted to keep it secret; hoped that it would +never get out. Imagine the scene, Job Davis writing the will; Mrs. +Downey with a duster tucked under her arm like the soubrette in a +theatre. Well, when he was writing the will she was looking over +his shoulder and read the will as fast as he wrote it. That makes +me think of the fellow who was writing a letter and there was a man +looking over his shoulder, so he said: "I would write more but +there is a dirty dog looking over my shoulder," and the fellow +said: "You are a liar."</p> +<p>Everybody read it. Mrs. Downey read it; she read it as Job wrote +it; then he read it aloud; and then he went and got Sconce and read +it again; then in comes Glasgow and he read it. I think Mrs. Downey +must have read this will ten or twelve times.</p> +<p>Mr. Myers. She said twenty-five.</p> +<p>Mr. Ingersoll. Oh, yes; twenty-five, because it was in Job's +handwriting; and whenever the twilight crept around the farm +bringing a little sadness, a little pathetic feeling, she would +light a candle and hunt the will, and read it just to think about +Job. She would see the words "guive" and "wherther" and all that +brought back Job, and she used to wonder "wherther" he was in +Paradise or not.</p> +<p>Now, John A. lived down there and knew all these people and +never heard of that will.</p> +<p>What do you think of that? Why is it that John never got any +information from Sconce? Sconce, who saw the will written and who +was one of the attesting witnesses. Why didn't he hear of it from +old Downey? Why didn't he hear of it from the Quigleys or the +Dotsons? Why didn't he hear of it in Salt Creek township, when it +was seen and read and read and read again until I think many of +them knew it by heart? And yet the only person really interested +was walking around unconscious of his great good fortune, and +nobody ever told him. There is another thing: For four months after +Andrew J. Davis died nobody told John about the will. Nearly four +months passed away; I think he died on the 11th of March, 1890, and +this will came to John on the first day of July. All the neighbors +knew it. Just as soon as A. J. died, they all said: "John is coming +right into the fortune now" only nobody told John; and the first +man we find with the will is James R. Eddy, and the next man we +find with the will is John A. Davis, the proponent. When John A. +Davis saw this will, leaving him four or five million dollars, it +did not take much to convince him that the signature was genuine. +Human nature is made that way. If it was leaving four or five +millions to either of us, including the sinner who addresses you, +the probability is that I would say, "Well, that looks pretty +genuine—pretty genuine." And then if I could get a few other +fellows to swear that it was, I would feel certain, and say, "That +is my money."</p> +<p>Now, another improbability. All the evidence shows that Judge +Davis was a business-like, quiet, methodical, careful, suspicious +man, secretive, keeping his business to himself, keeper of his own +counsels; and when he did make a will it was sealed; it was given +to one of his friends to put away, and to keep. It did not become +the common property of the neighborhood. He did not mount his roan +horse and ask the people of the community to look at it. He was a +methodical, business-like man, and I suppose many of you, gentlemen +of the jury, knew him; and I shall rely somewhat on your knowledge +of A. J. Davis, for you to say whether he made this will, whether +in 1866 he left his old father naked to the world; whether he cared +nothing for brothers and sisters; whether he cared nothing for the +children of the sister that raised him. I leave it for you to say. +You probably know something about this matter. Andrew J. Davis, +when he was a child, when all the children were gathered around the +same knee, the children that had been nourished at the same tender +and holy breast, he would not have done this then. If some good +fortune came to one, it was divided.</p> +<p>How beautiful the generosity, the hospitality of childhood! But +as they grow old there comes the love of gold, and the love of gold +seems to have the same effect upon the heart that it does upon the +country where it is found. All the roses fade, the beautiful green +trees lose their leaves, and there is nothing in the heart but sage +brush. And so it is with the land that holds within the miserly +grip of rocks what we call the precious metals.</p> +<p>The next question in the case is the Knight will. Was any such +will made? And I say here to-day, knowing what I am saying, I never +saw upon the witness stand a man who appeared to be more candid, +more anxious and desirous of telling the exact truth than E. W. +Knight, and from what I have heard there is not a man in Montana +with a better reputation. He has no interest in this business, not +one penny; and it was months and months after the death of Judge +Davis that we knew such a will ever existed—that is, on our +side. Either Mr. Knight was telling what he believed to be true, or +he was perjuring himself. No ifs and ands about it. He is a man of +intelligence and knows what he is saying. He swears that A. J. +Davis made a will.</p> +<p>And what else does he swear to? That there was also the draft of +a will, which gave away the mine or provided for its working, and +then at the end of that draft, provided that the rest of the +property should be divided in accordance with the statute. +Thereupon Mr. Knight told him: "Your heirs would interfere by +injunction, and you had better bequeath your whole property and fix +the amount to be expended in the development of the mine." +Thereupon he made another will, and that will was signed.</p> +<p>Now, Mr. Knight knows whether it was signed or not. The will was +signed or Mr Knight committed perjury knowingly, willfully and +corruptly. What does he say? That it was signed. What else? That it +was attested. Then these gentlemen came forward with Mr. Talbot, +who says that Knight said that when Davis came to the bank to get +the will he thought he was going to execute it. That is, the idea +being, it was not signed.</p> +<p>What was it attested for if it was not signed? That is absurd to +the verge of idiocy. But they say that Mr. Knight is not +corroborated. Let us see. He says that Andrew J. Davis made a will. +Mr. Keith swears that A. J. Davis made a will. Knight says that +Davis went out and brought Keith in, and Keith swears that he lived +next door and A. J. Davis did come in there and get him and he +knows the time on account of the sickness of his child. +Corroboration number two. Knight swears that Davis then went for +another man. Keith says that he did go and get Caleb Irvine. +Corroboration number three. Knight said one of the men who signed +the will was in his working clothes. Corroboration number four. +Knight swears that Davis read the attesting clause. Keith swears +the same. Keith swears that Davis signed it, that he signed it, and +then Irvine signed it. What more? He swears that Knight wrote it, +and he was writing it when he went in. And yet they have—and +I will use an expression of one of the learned counsel—the +audacity to say that Mr. Knight has not been corroborated.</p> +<p>And they would have you believe that Knight took that will over +to Helena and put it in the safe when it was not signed by A. J. +Davis, and they would make you think besides that, that it was +attested by two witnesses, and that two witnesses had to say that +they saw A. J. Davis sign it, that he signed it in their presence, +and that they attested his signature in his presence and in the +presence of each other. They proved a little too much, gentlemen. +They proved that by Talbot. They proved that by Andrew J. Davis, +Jr., who expects to fall heir to all that is taken, and they proved +it also by John A. Davis, the proponent.</p> +<p>Recess.</p> +<p>May it please the Court and gentlemen: When we adjourned I was +talking about the testimony of Mr. Knight, and the making of the +Knight will. The evidence is, the way that will came to be made, or +what started it, is, as follows: A. J. Davis borrowed of the First +National Bank of Helena forty thousand dollars to put in the mines, +and Governor Hauser remarked when he got the money: "Another old +man going to fool with mines until he gets broke." And that it +seems piqued A. J. Davis, touched his vanity a little, and then he +said: "That mine shall be developed whether I live or die. I am +satisfied that it is a good mine, and I am going to make a will and +I am going to provide in that will for the mine being developed." +And thereupon he talked with Mr. Knight. And finally Knight drew up +a draft of a will, according to his testimony, providing for the +working of that mine. And what did he say when he got through with +it? "Now as to the balance of the property, let it be divided +according to law. That makes a good will." That is what he said. +Then Mr. Knight said to him: "If you make the will that way it may +be that the heirs will come in and enjoin the working of the mine +on the ground that it is a waste of money. You had better make a +full will and dispose of all your property as you may desire, and +fix the amount to be used in the devolopment of that mine."</p> +<p>Now, this is either true or false. It is true if Mr. Knight can +be believed; and he can be believed if any gentleman can be +trusted.</p> +<p>What more? Knight says that A. J. Davis made the memoranda from +which to draw that will, had his manager come, and in that will it +told how the shafts should be run, how much work should be done, +and charged his trustees to do development work up to a certain +amount.</p> +<p>Is that all born of the fancy of this gentleman? And can you +believe that a man like Mr. Knight, who has run the largest bank in +Montana for twenty-five years—can you believe that such a +man, who is not in any necessity, who is not in need of money, +comes here and swears to what he knows to be a lie, and makes this +all out of his own head, carves it out of his imagination?</p> +<p>The second will was made, the second will was signed, the second +will was attested, the second will was given Mr. Knight to keep. +They say it was not signed, and yet Mr. Knight swears he told one +man about it. He told Mr. Kleinschmidt, so that if anything +happened to him, Knight, he would know that Knight had in that +vault the will of Andrew J. Davis. Do you think he would have done +that if the will had not been signed, if it were worth only waste +paper? And yet they are driven to that absurdity for the purpose of +attacking the evidence of this man. It will not do.</p> +<p>Judge Knowles said that in a conversation at Garrison, he said +that in the will the mine was left to Erwin Davis, and the reason +given for it was that Erwin Davis was a business man. Now, the only +way that can be explained, is one of two ways. One is that Judge +Knowles has gotten two matters mixed; the other is that he is +absolutely mistaken.</p> +<p>Judge Knowles, the President of the First National Bank of +Butte—Judge Knowles, who has been the attorney of Andrew J. +Davis, Jr.—Judge Knowles had this conversation, or some +conversation, with Knight; and why would Knight have taken pains to +tell him a deliberate falsehood?</p> +<p>There is something more. After all this occurred, Andrew J. +Davis, Jr. went to Mr. Knight and asked him to write out what he +remembered about that will, and Knight dictated it on the spot and +sent it to him.</p> +<p>Where is that letter? Here it is. I want to read that letter to +this jury. That was a letter written long ago. A letter written +before this will was filed in this court. A letter written before +Mr. Knight knew that A. J. Davis, Jr. had any will. A letter +written before Knight imagined there could ever be a lawsuit on the +subject. Andrew J. Davis Jr. went to him and asked him to write out +what he knew about that will, and he turned, according to his own +testimony, and dictated it, and sent it to him, like a frank, +candid, honest man; and before I get through I will read that +letter, and when it is read I want you to see how it harmonizes +absolutely and perfectly with his testimony here on the stand.</p> +<p>I will draw another distinction. Mr. Knight gave two depositions +in this case. These depositions have not been suppressed like the +deposition taken of Sconce. Not suppressed. Why? Because we are +willing that the jury should read the two depositions and hear his +testimony besides, and there is not the slightest contradiction in +the depositions themselves, or between the depositions or either +one of them and his evidence that he gave here—except two +that they claim; and think what immense contradictions they +are.</p> +<p>In one deposition he says that A. J. Davis left some bequests to +some aunts. Mr. Knight swears on the stand that he never said +aunts, he said sisters, but if he did say aunts he meant sisters, +because he never heard of his having any aunts, and yet that is +held up as a contradiction, and to such an extent that you are to +throw away the testimony of this man.</p> +<p>Now, here is the letter. This will was filed July 24, 1890, and +when he wrote this letter he did not know that A. J. Davis Jr. knew +of a will, or that John A. Davis knew of a will. And this is what +he writes:</p> +<p>Helena, Montana, July 22, 1890.</p> +<p>I beg to say that some time in 1877 or 1878, I made a draft of a +will for your uncle Andrew J. Davis, which he duly executed, and +left the same on file with me, as a special deposit for two or +three years, when the same was canceled and destroyed; when I was +led to believe and to conclude that he had made and executed a will +to supersede and take the place of that.</p> +<p>That explains Talbot's testimony. Instead of saying to Talbot +that A. J. Davis came there, as he thought, to execute the will, +and destroyed that will, it not being signed, what he said was that +he destroyed the will, but from the way he acted he thought he was +going to make another, that he was going to execute a will; and +this is exactly what Mr. Talbot said. To execute a will, and it +took a re-direct examination to swap the "a" for "the."</p> +<p>I cannot satisfactorily recall the considerations and provisions +of said will drawn by me, but the main burden and desire was that +the work on the mine known as the Lexington, should be continued to +a certain amount of development, and that the mill should be +carried on under a certain management, and after providing for the +payment of his just debts, he made certain bequests naming certain +nephews and nieces, running from ten thousand to fifteen thousand +dollars each, and you are especially named for the sum of +twenty-five thousand dollars, and if the estate exceeded in value +the net sum of five hundred thousand dollars, then those bequests +were to be increased; and if in excess of one million dollars, the +further increase was named and specified.</p> +<p>That is the letter he wrote before he ever knew there would be +this suit; before he knew of the existence of this will.</p> +<p>A certain boy named Jefferson—claimed to be his +son—was given the sum of twenty thousand dollars to be paid +to him in yearly sums of five thousand dollars for four years, and +the same provision as to a certain girl, claimed to be his +child.</p> +<p>Is that not exactly what he swore to on this stand?</p> +<p>Certain executors named E. W. Knight, S. T. Hauser, and W. W. +Dixon, each to receive the sum of ten thousand dollars for +services.</p> +<p>Yours truly,</p> +<center>E. W. KNIGHT.</center> +<p>Now, gentlemen, they were informed of the existence of that will +and of its destruction, and were so informed before John A. Davis +filed this will. And when we pleaded this will, John A. Davis +pleaded that it had been republished, and yet no evidence was given +in of any republication. They knew that under the statute of +Montana, when a man makes will number one, and afterwards makes +will number two, and afterwards destroys will number two, that will +number one is not revived; that the making of the second will kills +the first, and the destruction of the second kills that, and leaves +the man intestate and without any will. Now, there is the letter of +Mr. Knight—full, free, frank, candid, honorable, like the man +himself. He says there that he does not remember all the +provisions, but he does remember that he provided for some nephews +and nieces, and provided for Andrew J. Davis, Jr., twenty-five +thousand dollars, for one Jefferson twenty thousand, for the girl +about the same, and that he provided also for the executors of the +will, and appointed Knight, Hauser, and Dixon as his executors. +That is exactly what he says here.</p> +<p>Now, was that will made? Have they impeached Mr. Keith? I tell +them now that they cannot impeach him. He has sworn to the making +of that will, apart and separate from Mr. Knight. Oh, they say, why +didn't they bring Knight in, and prove by him that he then +recollected Mr. Keith? What has that to do with it? Mr. Keith +recollected Mr. Knight, swore that he wrote the will, and that he +was writing it when he came in, and swore that he attested it, that +Davis signed it, and Irvine also signed it. What more do we want on +that will? I say, gentlemen, that the will of 1880 ends this case. +There is not ingenuity enough in the world to get around it, and +there was and never will be enough brains crammed into one head to +dodge it. That will was made, and every man on the jury knows it. +That will was executed by Andrew J. Davis, every man of you knows +it, and the will was afterwards destroyed.</p> +<p>Now, the question is, did that second will revoke the first +will? Had it a revoking clause in it? E. W. Knight swears it had, +and he swears that he copied it from a will made by an uncle of his +named John Knight, and he had that will in his possession here and +in that will there are two revocation clauses, and Knight swears +that he copied those clauses, and right here it may be well enough +to make another remark. When he read the will to A. J. Davis, and +the passage "hereby revoking all wills," Davis said: "There is no +need of putting that in. I never made any other will. This is the +first." Knight said to him, "Well, that is the way, that is the +form, and I think it is safer to have it that way." And Davis said: +"All right; let it go."</p> +<p>How do you fix that? There is no way out of it, that the will +was made in 1880, revoking all former wills. What else? The +conditions of the will of 1880, with regard to working the mine, +with regard to bequests to nephews, with regard to bequests to +others, with regard to the twenty thousand dollars given to Jeff +Davis, and the twenty thousand dollars given to the girl; these +provisions are absolutely inconsistent with the provisions of this +will of 1866. So on both grounds the will of 1880 destroys, +cancels, and forever renders null and void the will of 1866, even +if it had been the genuine will of A. J. Davis, and the Court will +instruct you to that effect.</p> +<p>And after Mr. Keith had testified, the proponents in this case +subpoenaed Mr. Knight, and if they thought that Knight would swear +that Keith was not the man, why did they not put him on the stand? +They ran no risk. He is an honest man. He would tell the truth. I +never had the slightest fear in bringing an honest man on the +stand. Never. I want facts, and I hope as long as I live that I +shall never win a case that I ought not to win on the facts. No man +should wish or endeavor to win a case that he knows is wrong.</p> +<p>I say there is not a man on this jury but believes in his heart +and soul this minute that this will was made. You have to throw +aside the testimony of a perfectly good man, and no matter whether +what he said about Erwin Davis to Judge Knowles was true or +not—and I must say that I never saw a witness on the stand in +my life more eager to tell his story than Judge Knowles was. Never. +He was bound to get it in or die. He answered questions over +objections before the Court was allowed to pass upon the +objections. Why? Because he is the President of the First National +Bank. Now, without saying that he was dishonest about it, I say he +was mistaken. Knight never said one word of that kind to him.</p> +<p>It was impossible that he could have said it. So is Mr. Talbot +mistaken. So is Andrew J. Davis, Jr. mistaken, and so is John A. +Davis mistaken. Think of the idiotic idea that a will, not signed, +was given to Knight to keep, attested by two witnesses, and not +signed by the testator. Idiotic! Now, as I understand it, +gentlemen, you will have to find that that will was made.</p> +<p>Now, what is the next great question in this case, and the +question that will be argued at some length, probably, by the other +side? And why? Because it is the first and only point, so far as +facts are concerned, that they have won in this case. Just one. And +what is that? Our experts said that they thought that the ink was +nigrosin ink, and the fact that they wanted a test proves that they +were sincere. Their witnesses said they did not think it was +nigrosin ink. Mr. Hodges said it had too much lustre, but that +there was only one way in which it could be absolutely determined +and that was by a chemical test. But, say these gentlemen, or +rather said Judge Dixon, "the moment that ink turned red the whole +case of the contestants was wrecked." Let us see.</p> +<p>If there had been no logwood ink in existence—not a +particle—after the 20th day of July, 1866; if, on the night +of the 20th of July, 1866, all the logwood ink on earth had been +destroyed and then this ink had turned out to be logwood, why, of +course, it would have been a demonstration that this paper was +written as far back as the 20th of July, 1866. If it had turned out +that it was written in nigrosin ink and that that had only been +invented in 1878, it would have been a demonstration that the will +was a forgery. But you must recollect the fact that it is written +in logwood ink is not only consistent with its genuineness, but +consistent with its being a forgery. Why? There was logwood ink in +existence in 1890, plenty of it, and if Mr. Eddy wrote this will in +1890, he could have written it in logwood ink; and the fact that it +is written in logwood ink does not show that it was written in +1866. Why? Because there was logwood ink in existence every year +since 1866, till now.</p> +<p>Suppose I said that the paper was only ten years old and it +turned out that it was forty, is that a demonstration in favor of +the other side? If it turned out to be ten, it is a demonstration +on our side.</p> +<p>But if it turned out to be forty, is not that consistent with +the genuineness of the instrument, and also with the spuriousness +of the same instrument? You can see that. Nobody's smart enough to +fool you on that. Nobody. Take the whole question of ink out and +the question is still whether Eddy wrote it or not. Take the ink +all out and it is still the question whether Job Davis wrote it or +not. Absolutely, and all the test proved was, that our +experts—some of them—were mistaken about its being +nigrosin ink. Mr. Tolman stated that it was impossible to tell +without a chemical test; that it looked like nigrosin ink and from +the manner in which it seemed to run he thought it was nigrosin +ink, but that it was impossible to tell without a test. Mr. Hodges, +their expert, said it looked to him like logwood ink; that it had +too much lustre for nigrosin, but he added that it was impossible +to tell without a chemical test. That is what he said. Mr. Ames +said the same thing, and I appeal to you, gentlemen, if Mr. Ames +did not have the appearance of an honest, of a candid, and of a +fair man. Professor Hagan said that it was nigrosin ink, but he +admitted that the only way to know was to test it. And what else? +Their own expert, Mr. Hodges, said that logwood ink penetrates the +paper. If this ink has been on here twenty-five years it penetrates +the paper.</p> +<p>Sometimes an accident happens in our favor; a piece of that will +was torn off this morning. You see the edge there torn off +slanting. You see that "o-f"; how much that ink has sunk into that +paper. Not the millionth part of a hair. It lies dead upon the top. +Just see how the ink went in there—not a particle. It lies +right on top. I would call that "float." There is the other edge. +There is where the ink stops. It has not entered a particle. And +when you go to your room I want you to look at it. That ink has not +penetrated a particle. And let us see what this witness Hodges +says: "Logwood ink penetrates the paper."</p> +<p>There it is, "to determine the nature of the ink, use +hydrochloric acid." What else?</p> +<p>"I think this will was written with Reimal's ink, and that was +made in Germany in the neighborhood of 1840. Reimal's ink +penetrates the paper." And then they say that we endeavored to draw +a distinction between modern and ancient. This is what Mr. Hodges +says about it.</p> +<p>On the addition of hydrochloric acid to logwood ink it will turn +to a bright red. The old-fashioned ink was manufactured by mixing a +decoction of logwood with chromide of potash and formed a blue +black solution. Logwood inks as made to-day differ from those, in +that the modern logwood inks contain another sort of chrome than +chromide of potash; they contain chromium in the form of an acetate +or a chlorine.</p> +<p>Hodges was the man that talked about ancient and modern logwood +inks; and he, before the test was made, said that the old logwood +ink would turn a bright red, modern logwood not so bright. And +after the evidence was all in, Professor Elwell came smilingly to +the post and said, "they have got it exactly wrong end to; the +older the duller and the newer the brighter." And after a moment +said, "This was kind of dull." Before the test was made, Mr. Tolman +swore, "I agree with Professor Hodges that if it is an old logwood +ink it will turn a bright, scarlet red. In the case of modern +logwood inks I don't agree with him, but to that extent I think his +tests are good," and he drew that distinction before the test was +made.</p> +<p>Gentlemen, you saw this will. I want to call your attention to +it again. You see that "J" in Sconce's name, that is pretty red. +Not so awfully scarlet, though, that it would affect a turkey +gobbler. You see it in "Job"; you see it in "James Davis," but +there it is brown, and not red, and not scarlet, and no flame in +it, and Professor Hodges himself said that although both were +logwood inks, he would not swear that Job Davis and James Davis +were written with the same ink. Do you see the red in that +"Job"?</p> +<p>Now find the red on that "s" of "James." He said he would not +swear that they were written in the same ink, but both in logwood +ink, that is to say, they might have been different inks. While I +would not swear that they were the same inks, I would swear that +both inks contained logwood. And that is all he swore to, and I +must say that I believe he was a perfectly honest, fair +gentleman.</p> +<p>Now, all that the ink test proves on earth is that it is logwood +instead of nigrosin, and that does not prove that Eddy did not +write the will, because there was plenty of logwood ink when he did +write it. That is the kind of ink he used. And it has no more +bearing—the fact that it turned out to be logwood—to +show that it is a genuine will than though it had turned out to be +iron ink. Suppose the experts had been wrong on both sides, and it +had turned out to be iron ink, what would have happened then? Is it +a genuine will? Nothing can be more absurd than to argue that that +test settled the genuineness of this will.</p> +<p>Hodges says another thing; that perhaps the pen went to the +bottom of the ink bottle and got a little of the settlings of the +ink on it, when he wrote "James Davis," and consequently that has a +different color. Well, if the pen had gotten some of this sediment +on it, the more sediment the more logwood, and the more logwood the +brighter the color. Instead of that, it is dull.</p> +<p>There is another trouble: With regard to the experts, while +undoubtedly there are some men who do not swear to the exact truth, +whether paid or not, undoubtedly some men swear truthfully who are +paid. I do not believe that you doubt the testimony of Hodges +simply because you paid him so much a day. I don't. And certainly +we have found no men philanthropic enough to go around the country +swearing for nothing. I judge of the man's oath, not by what he is +paid, but by the manner in which he gives his testimony—by +the reason there is behind it. That is the way I judge and yet +Senator Sanders judges otherwise, as he told you in a burst of +Montana zeal. * * *</p> +<p>I like Montana, too, and I believe the Montana people are big +enough and broad enough not to have prejudice against a man because +he comes from another State. Every State in this Union is +represented in Montana, and the people who left the old settled +States and came out to the new Territories, dropped their +prejudices on the way—and sometimes I have thought that that +is what killed the grass. I like a good, brave, free, candid, +chivalric people. I don't care where you come from—I don't +care where you were born. We are all men, and we all have our +rights; and as long as the old flag floats over me, I have just as +many rights in Montana as I have in New York. And when you come to +New York I will see that you have as many rights, if you are in my +neighborhood, as you have in Montana. That is the kind of +nationality I believe in. I hate this little, provincial prejudice; +and yet Senator Sanders invoked that prejudice. That insults you. +We did not insult you when we asked you when you went on the jury, +if you cared whether the money stayed in Butte or not, or whether +you were interested or not, or related or not. Those were the +questions asked every juror, and we relied absolutely on your +answers when you said that you were unprejudiced, and that you +would give us a fair trial; and we believe you will.</p> +<p>Now, then, with regard to these experts, you have got to judge +each one by his testimony; and it is foolish it seems to me, to +call them vipers and pirates, as Senator Sanders did. A very strong +expression—"vipers, pirates" living off, he said, the +substance of others; and yet he had an expert on the stand, Mr. +Dickinson; he had another, Mr. Elwell; he had another, Mr. Hodges; +and after that he rises up before this jury and calls them "three +vipers" and "three pirates." I never will do that, If I ask a man +to swear for me, and he does the best he can, I will leave the +"pirate" out.</p> +<p>I will drop the "viper," and I will stand by him, if I think he +is telling the truth; and if he is not I won't say much about him; +I don't want to hurt his feelings. But I want to call your +attention again to the fact that every expert on our side swore, +knowing that they had three experts on the other side, and that if +we made a mistake they could catch us in it; and we did make a +mistake in that ink; and the test showed that we made a mistake, +and that is all the test did show; but it did not show that the +will is genuine any more than if it had turned out to be carbon +ink; then both sides would have been mistaken. And yet after all it +did turn out to be modern logwood ink, and it did turn out not to +be Reimal's logwood ink, made of the chromate of potassium; did +turn out not to be that, and I say on this will that there is an +absolute, decided and distinct difference between the color on the +name Job Davis and the name James Davis. And right here, I might as +well say that that man Jackson, who came here from Butler, +Mo.—and when I said Butler was a pretty tough place, rose up +in his wrath and said it was as good as New York any day—that +man says that when he saw the will he does not remember of seeing +the names of James Davis and Sconce in it, but he did remember of +seeing the name of Job Davis. I don't think he saw any of it. Now, +there is another question here—because I have said enough +about ink, at least enough to give you an inkling of my views.</p> +<p>There is another question. Why didn't John A. Davis take the +stand? That is a serious question. John A. Davis had sworn, on the +13th of March, 1890, that his brother died without a will. John A. +Davis, on the 24th day of July, 1890, filed a will in which he was +the legatee. That will came into his possession under suspicious +circumstances. What would a perfectly frank and candid man have +done? What would you have done? You would not have allowed yourself +to remain under suspicion one moment. You would have said, "I got +that will so and so." You would have let in the light, "I obtained +it in such a place, it is an honest, genuine will, and here it is, +and here are the witnesses to that will." But instead of that, John +A. Davis never opened his mouth, except to file a petition swearing +that it came into his possession on the first day of July. He knew +that he was suspected, didn't he? He knew that the men in whose +veins his blood flowed believed that the will was a +forgery—knew that good men and women believed that he was a +robber, and that he was endeavoring to steal their portion. He knew +that, and any man that loves his own reputation and any man that +ever felt the glow of honor in his heart one moment, would not have +been willing to rest under such a suspicion or under such an +imputation. He would have said: "Here is its history, here is where +I got it, it is not a forged will. It is genuine. Here are the +witnesses that know all about it. Here is how I came into +possession of it."</p> +<p>No, sir. Not a word. Speechless—tongueless. And he comes +into this court and comes on to this stand to be a witness, and is +asked about a conversation he had with Burchett, and then we asked +him, "How did you come into the possession of that will?" All his +lawyers leaped between him and the answer to that question. They +objected. If he came by that will honestly he would have said, "I +am going to tell the whole story." He wants you to believe that he +came by it honestly, doesn't he? He wants you to believe it. He not +only wants you to believe it, gentlemen, but he asks twelve +men—you—to swear that he came by it honestly, doesn't +he? If you give your verdict that that is a genuine will, then you +give your oath that John A. Davis came by it honestly; and he wants +you twelve men to swear it. And yet he dare not swear it himself. +He wants you to do his swearing. He is afraid to stand in your +presence and tell the history of that will. He is afraid to tell +the name of the man from whom he received it. He is afraid to tell +how much he gave for it; afraid to tell how much he promised. He is +afraid to tell how they obtained witnesses to substantiate it in +the way they have. Well, now, ought not you to let him tell his own +story, ought not you, gentlemen, to be clever enough to let him do +his own swearing?</p> +<p>Now, I will ask you again if he came by that will honestly, +fairly, above board, would he not be glad to tell you the story? +Would he not be glad to make it plain to you? If that was a +perfectly honest will and came to him through perfectly pure +channels, would he not want you to know it? Would he not want every +man and woman in this city to know it? Would he not want all his +neighbors to know it? And yet, he is willing, when this case is +being tried, and when he is on the stand, and asked how he got the +will—he is willing to close his mouth—willing to admit +that he is afraid to tell; and I tell you to-day, gentlemen, that +the silence of John A. Davis is a confession of guilt, and he knows +it, and his attorneys know it. A client afraid to swear that he did +not forge a will, or have it forged, and then want to hire a man to +defend him and call him honest! Well, he would have to hire him; he +would not get anybody for nothing. And yet he is asking you to do +it. If John A. Davis came properly by it, let him say so under +oath. Don't you swear to it for him, not one of you.</p> +<p>Now, there is another question. Why did not James R. Eddy take +the stand? We charged him with forging the will. We made an +affidavit setting forth that he did forge the will, and in this +very court Mr. Dixon arose and said he was glad that the charge had +been fixed, and the man had been designated. Judge Dixon said here, +before this jury, when this case was opened, "the man who was +charged with forging this will will be here. He will stand before +this jury face to face; and he will explain his connections with +the will to your satisfaction." That is what Judge Dixon said. +Where is your witness? Where is James R. Eddy? Why did you not +bring him forward? I know he is here now—delighted with the +notoriety that this charge of forgery gives him—with a moral +nature that is an abyss of shallowness,—delighted to be +charged with it, and he will probably be my friend as long as he +lives, because I have added to his notoriety by saying he is a +forger. Why did they not bring him on the stand? Mr. Dixon gives +one reason. Because the jury would not believe him. And that is the +man who is first found in possession of this will. That is the man +in whose hands it is, and it is from that man that John A. Davis +received it. And the reason that he is not put on the stand is that +it is the deliberate opinion of the learned counsel in this case +that no jury would believe him.</p> +<p>How does that work with you? James R. Eddy here—his +deposition here—and they could not read his deposition +because he was here—and they had him here and kept him here, +so that we could not read his deposition. They were bound that he +should not go on the stand. Why? Because the moment he got there he +could be asked, Where did you find the will? Who was present when +you found it? When did you first tell anybody about it? When did +you first show it to John A. Davis? How much did he agree to give +you for it? What witnesses have you talked to in this case? What +witnesses have you written to in this case? What work have you done +in this case? What affidavits have you made in this case? And what +have you done with the other three wills that you have in this +case?</p> +<p>Such questions might be asked him, and they were afraid to put +him on the stand. Every letter that he had written would have been +identified by him if he had been put on the stand. Maybe he would +have been compelled to write in the presence of the jury, to see +whether he would spell words correctly.</p> +<p>They knew that the moment he went on the stand their case was as +dead as Julius Cæsar. They knew it and kept him off.</p> +<p>Now, there is only one way for them to win this case. And that +is to keep out the evidence. Only one way to win the +case—suppress John A. Davis. Keep your mouth closed or defeat +will leap out of it. Eddy, keep still. Don't let anything be seen +that will throw any light upon this. I ask you, gentlemen of the +jury, to take cognizance of what has been done in this case. Who is +it that has tried to get the light? Who is it that has tried to get +the evidence? Who is it that has objected? Who is it that wants you +to try this case in the dark? Who is it that wants you to guess on +your oaths? The failure of Eddy to testify is a confession of +guilt. They dare not put him on the stand—dare not.</p> +<p>Now, gentlemen, there is a little more evidence in this case to +which I am going to call your attention. Something has been said +about a conversation in March, 1891. Sconce had his deposition +taken in Bloomfield, Iowa. That deposition has been suppressed. +John A. Davis was there at the time it was taken. John A. Davis and +Sconce went into the passage leading up to the office of +Carruthers. Mr. Burchett, sheriff of the county, a man having no +possible earthly or heavenly interest in this business, happened to +stop at the corner to read his paper—looked at it as he +opened it—and he then and there heard John A. Davis say, +"Stick to that story and I will see that you get all the money you +have been promised," and thereupon Sconce replied, "All right I'll +do it." Sconce denies it, and that denial is not worth the breath +that he wasted in forming the denial. John A. Davis denies it. Of +course he denies it. But he dare not tell where he got that will. +He dare not do it. He wants you to do that for him. He wants you to +lift him out of the gutter and wash the mud off him. He is afraid +to do it himself.</p> +<p>I want to call your attention to that conversation, and that of +itself is enough to impeach Sconce. That is enough of itself to +show that John A. Davis was entering into a conspiracy or rather +had entered into one with Mr. Sconce. Now, gentlemen, there is +another thing, and we must not forget it. Curious people down in +Salt Creek township, on the other side; of course there are plenty +of good men there or the township could not exist, and we had a +good many of them here—good, straight, honest, intelligent +looking men. But the other side had some—all in the +family—all of them.</p> +<p>Swaim, he was not in the family, but he is a clerk in Trimble's +bank, where Wallace is the cashier, where they suppress +depositions; say they are not finished when they are signed by the +person who swears to them.</p> +<p>John C. Sconce, the only living witness, whose "ancient but +ignoble blood has crept through rascals ever since the flood," +cousin to James Davis, cousin to Job Davis, cousin to Mrs. Downey, +cousin to Eddy, cousin to Dr. Downey by marriage, brother to T. J. +Sconce, Jr., brother-in-law to Abe Wilkinson, cousin to Tom Glasgow +and Sam, cousin to Moses Davis, cousin to Alex. Davis, uncle to +Henshaw's daughter, and father-in-law of George Quigley. Every one +of them united. Blood is thicker than water. Eddy stuck to his +family.</p> +<p>James R. Eddy—cousin to Sconce, son of Mrs. Downey, (Mrs. +Downey, the duster lady, who remembers that Davis asked her to +remain, but didn't ask her advice, didn't have her sign the will, +didn't give her any bequest, but there she was with her duster), +grandson of James Davis, nephew of Job Davis, and related by blood +or marriage to both the Glasgows, Moses and Alexander Davis, to T. +J. Scotice and J. C. Sconce, Jr., Abe Wilkinson, George Quigley, S +M. Henshaw, (the celebrated lawyer). J. L. Hughes, and Eli Dye, +brother-in-law to C. O. Hughes, and foster brother to John Lisle, +and Mrs. A. S. Bishop. And it is just lovely about John Lisle.</p> +<p>John Lisle is one of the fellows that saw this will. "How did +you come to see it, John?" "James Davis," he says, "was my guardian +and he had to give a bond, and so one day when James Davis was away +from home, I thought I would go and see the bond."</p> +<p>Of course he thought James Davis kept the bond that he gave to +somebody else—to the county judge; but Mr. Lisle pretends +that he thought the bond would be in the possession of the man who +gave it. And so he sneaked in to look among the papers. Now, do you +believe such a story—that he thought that man had the bond? +Didn't he know that the bond was given to somebody else? Foolish! +Bishop swears the same thing; James Davis was guardian for his +wife, and he was looking to see if James had the bond; and another +fellow by the name of Sconce, was looking for a note, and when he +opened this double sheet of paper folded four times and happened to +see Sconce's name he said: "Here it is—a promissory +note."</p> +<p>Mary Ann Davis—that is to say, Mrs. Eddy, that is to say, +Mrs. Downey, is the mother of J. R. Eddy, daughter of James Davis, +sister to Job, second cousin to Sconce, wife of Downey, and related +by blood or marriage to Tom and Sam Glasgow, Moses and Alexander +Davis, Abe Wilkinson, S. M. Henshaw, J. C. Sconce, Jr., T. J. +Sconce, George Quigley and C. O. Hughes. All right in there, woven +together.</p> +<p>E. H. Downey—son-in-law of James Davis, brother-in-law of +Job, husband of Mary Ann Davis-Eddy-Downey, and step-father of Mr. +Eddy.</p> +<p>J. C. Sconce. Jr.—cousin to Eddy, nephew of J. C. Sconce, +Sr., cousin to Mrs. Downey, cousin of E. H. Downey, son-in-law of +Henshaw, cousin to George Quigley, related to Tom and Sam Glasgow, +Abe Wilkinson and Moses and Alex. Davis.</p> +<p>George Quigley—son-in-law of Sconce.</p> +<p>Sam Glasgow—cousin of Sconce, son-in-law of Dye, brother +to Tom Glasgow, brother-in-law to Moses and Alex. Davis, cousin to +Abe Wilkinson, and related by marriage to J. R. Eddy. Here they +are, same blood. All have the same kind of memory; runs in the +blood.</p> +<p>Henshaw—father-in-law to J. C. Sconce, Jr. +Lisle—adopted son of James Davis, and his ward, and foster +brother to Eddy. A. S. Bishop—married to Allie Lisle, ward of +James Davis, foster sister of James R. Eddy.</p> +<p>T. J. Sconce—Eddy's cousin, J. R. Sconce's brother, +brother-in-law and cousin to the Glasgows, cousin to Alex, and +Moses Davis, brother-in-law to Abe Wilkinson and uncle to J. C. +Sconce, Jr.</p> +<p>Moses Davis—cousin of Sconce, brother-in-law to the +Glasgows, cousin to Abe Wilkinson, brother of Alex. Davis, and +related to Eddy and Arthur Quigley.</p> +<p>Alexander Davis—cousin to Sconce, brother of Moses Davis, +brother-in-law to the Glasgows, cousin to Wilkinson and related by +marriage to Arthur Quigley.</p> +<p>Abe Wilkinson—brother-in-law to Sconce, cousin to Alex, +and Moses Davis, and cousin to the Glasgows.</p> +<p>Tom Glasgow—cousin to Sconce, and Abe Wilkinson, and a +brother-in-law of Moses Davis, and a brother to Sam Glasgow, and +related by marriage to Eddy.</p> +<p>Arthur Quigley—brother-in-law to Alex. Davis, and brother +to George Quigley, who is a son-in-law of Sconce. John L. +Hughes—his nephew married Eddy's wife's sister. Eli +Dye—father-in-law of Sam Glasgow.</p> +<p>There they are, all of them related except Swaim and Duckworth +and Taylor; and Duckworth, he is in the tie business along with +Eddy. There is the family tree. All growing on the same tree, and +there is a wonderful likeness in the fruit. Why, that Glasgow has +as good a memory as Sconce. He remembers that this is the same will +he saw—paper like that, and he swears—I think it is Sam +Glasgow—that he did not read the contents or see a signature. +And yet he comes here, twenty-five years afterwards, and swears it +is the same paper. And then the paper was clean and now it is +covered with all kinds and sorts of stains.</p> +<p>Now, gentlemen, take the signature of A. J. Davis, and I want +you all to look at it. I say it is made of pieces. I say it is a +patchwork. It is a dead signature. It has no personality—no +vitality in it, and I want you to look at it, and look at it +carefully. I say it is made of pieces. Of course every counterfeit +that is worth anything, looks like the original, and the nearer it +looks like the original the better the counterfeit. All the +witnesses on the side of the proponent who have sworn that it is +his signature, also swear that he wrote a rapid, firm +hand—nervous, bold, free, and that he scarcely ever took his +pen from the paper from the time he commenced his name until he +finished; and I want you to look at that name. I will risk your +sense; I will risk your judgment—honest, fair and +free—whether that is a made signature, or whether it is the +honest signature of any human being.</p> +<p>And now, gentlemen, one word more. I contend, first, that the +evidence shows beyond all doubt that Job Davis did not write this +will. Second, that it is shown beyond all doubt, that James R. Eddy +did write this will, and that that evidence amounts to a +demonstration. I claim that the will of 1880 was made precisely as +E. W. Knight and Mr. Keith swear; that that will was utterly +inconsistent with the will of 1866, even if that had been genuine; +that it revokes that will, that its provisions were inconsistent, +and that afterwards that will was destroyed, and that there is not +one particle of evidence beneath the canopy of heaven to show that +it was not made and to show that it was not destroyed.</p> +<p>And the Court will instruct you that the will of 1866, even if +genuine, is not revived.</p> +<p>This is the end of the case. So I claim that the probabilities, +the reason, the naturalness, are all on the side of the contestants +in this case—all. And I tell you, that if the evidence can be +depended on at all, A. J. Davis went to his grave with the idea +that the law made a will good enough for him. Do you believe, if he +were here, if he had a voice, that he would take this property and +give it to John A. Davis; that he would leave out the children of +the very woman who raised him; that he would leave out his other +sisters, that he would leave out the children of his sisters and +brothers? Do you believe it? I know that not one man on that jury +believes it.</p> +<p>This case is in your hands. That property is in your hands. All +the millions, however many there may be, are in your hands; they +are to be disposed of by you under instructions from the Court as +to the law. You are to do it. And, do you know, there is no prouder +position in the world, there is no more splendid thing, than to be +in a place where you can do justice. Above everybody and above +everything should be the idea of justice; and whenever a man +happens to sit on a jury in a case like this, or in any other +important case, he ought to congratulate himself that he has the +opportunity of showing, first, that he is a man, and second, of +doing what in his judgment ought to be done, and there will never +be a prouder recollection come to you hereafter than that you did +your honest duty in this case. Say to this proponent: "If you +wanted to show us that you got this will honestly, why didn't you +swear it; if you wanted us to believe it was a genuine will, why +didn't you have the nerve to take your oath that it is a genuine +will?"</p> +<p>Now, you have the opportunity, gentlemen, of doing what is +right. Your prejudice has been appealed to, but I say that you have +the manhood, that you have the intelligence, and that you have the +honesty to do exactly what you believe to be right; and whether you +agree with me or not, I shall not call in question your integrity +or your manhood. I am generous enough to allow for differences of +opinion. But when you come to make up your verdict, I implore you +to demand of yourselves the reasons; to be guided by what is +natural; to be guided by what is reasonable. I want you to find +that this will was found in the possession of Eddy in April or +March, next in the hands of John A. Davis; and that John A. Davis +dare not tell how he came in possession of it. John A. Davis, on +the edge of the grave—for this world but a few days, and +according to the law without that will he could have had an income +of over fifty thousand a year. He was not satisfied with that. He +wanted to take from his own brothers and sisters, wanted to leave +his own blood in beggary.</p> +<p>He never saw the time in his life that he could earn five +thousand a year—never. And he was not satisfied with fifty +thousand—he wanted four and a half millions for himself. +.</p> +<p>Gentlemen, I want you to do justice between all these heirs. I +want you to show to the United States that you have the manhood, +that you are free from prejudice, that you are influenced only by +the facts, only by the evidence, and that being so influenced, you +give a perfectly fair verdict—a verdict that you will be +proud of as long as you live. How would you feel, to find a verdict +here that this is a good will, and afterwards have it turn out to +be what it is—an impudent, ignorant forgery?</p> +<p>Now, all I ask of you is to take this evidence into +consideration. Don't be misled even by a Christian, or by a sinner, +for that matter. Let us be absolutely honest with each other. We +have been together for several weeks. We have gotten tolerably well +acquainted. I have tried to treat everybody fairly and kindly, and +I have tried to do so in this address.</p> +<p>I have had hard work to keep within certain limits. There would +words get into my mouth and insist on coming out, but I said: "go +away; go away." I don't want to hurt people's feelings if I can +help it. I don't want anyone unnecessarily humiliated, but I say +whatever stands between you and justice must give way; and if you +have to walk over reputations—and if they become pavement you +cannot help it. You must do exactly what is right, and let those +who have done wrong bear the consequences.</p> +<p>Now, gentlemen, I have confidence in you. I have confidence in +this verdict. I think I know what it will be. It will be that the +will is spurious, and that the will of 1880 revoked it, whether +spurious or not. That is my judgment, and I don't think there is +any man in the world smart enough or ingenious enough to get any +other verdict from you as long as John A. Davis was afraid to swear +that it was an honest will; as long as James R. Eddy, the forger, +dare not take the stand; and they will never get a verdict in this +world without taking the stand, and if they do take it, that is the +end. There is where they are.</p> +<p>Now, all I ask in the world, as I said, is a fair, honest, +impartial verdict at your hands. That I expect. More than that I do +not ask. And now, gentlemen, I may never see you again after this +trial is over—separated we may be forever—but I want to +thank you from the bottom of my heart for the attention you have +paid to the evidence in this case and for the patient hearing you +have given me.</p> +<p>Note: The Jury disagreed and the case was compromised.</p> +<a name="link0008" id="link0008"><!-- H2 anchor --></a> +<div style="height: 4em;"><br /> +<br /> +<br /> +<br /></div> +<h2>ARGUMENT BEFORE THE VICE-CHANCELLOR IN THE RUSSELL CASE.</h2> +<pre> + * Russell vs. Russell, before Martin P. Grey. V. C., Camden, + N. J., June 21, 1899. This was Colonel Ingersoll's last + appearance in public. The report of this argument has been + made from the stenographer's notes and therefore of + necessity incomplete. It was delivered without notes and the + proofs were not seen or corrected by the author. No + decision in this case has as yet been rendered, August 1, + 1900 +</pre> +<p>IF your Honor please: I agree with Mr. Pancoast at least in one +remark that he made—I think about the only one—that +John Russell is dead. I think there is no controversy about that. +But as to the other remarks made and the positions taken by him, I +fail to agree.</p> +<p>In the first place, for several hundred years the courts of +England, and for more than a hundred years the courts of this +country, have very jealously guarded the right of dower; and +wherever a woman has by antenuptial agreement given up her right of +dower, all the courts have decided—and I know of no +exception, and Mr. Pancoast has brought forward none—that at +the time she made the contract waiving her dower she must have been +in the possession of all of the facts, so that she could act with +absolutely full knowledge. And where a man seeks to make an +agreement by virtue of which the wife, or the supposed wife, shall +waive her dower, decision after decision says that he must tell the +truth, and the whole truth, and that it is just as fraudulent to +suppress a fact as to manufacture one. He must tell the absolute +truth. The relation of the parties is such, and the dower right is +such, that the courts will not take the right away from the woman +unless she gives it freely, and, at the time she gives it, knows +all the facts bearing upon the question as to whether she should or +should not release or waive her dower.</p> +<p>Now, on that same line the courts have taken another step. They +do not put upon the wife the burden of showing that the husband was +guilty of fraud directly; they simply put the burden upon the wife +of showing what his property was and what the consideration was in +the agreement; and then the court steps forward and says that if +the amount is disproportionate when you take into consideration his +wealth, then the burden is immediately shifted, and the person +seeking something under his will, or seeking his property, must +show that when the woman signed the antenuptial agreement she had +been put in possession of all the facts; that she then knew, and +knew from him, what he was worth; and that if she did not and the +amount in the agreement is disproportionate to his estate, the +agreement is null and void. Then gentlemen who represented the +heirs of the testator, or the legatees, said: "Well, it was +generally known that he was a rich man; that was his reputation in +the neighborhood; and she, if she had taken any pains or acted with +reasonable discretion, could have ascertained the fact."</p> +<p>The Court then took another step in advance and said that it was +not her duty; she was not bound to inquire as to his wealth; and +yet Mr. Pancoast talks as though the maxim of caveat emptor applies +in this business—as though it had been a bargain between two +sharpers, she making what she could out of his admiration, and he +cheapening her to the extent of his power, driving the best +possible bargain, saying that she should have looked out for her +rights; that she should have investigated and found out about his +property; that she should have called in a detective to ascertain +what it was, and that the courtship should have been carried on in +that commercial spirit.</p> +<p>But the law says: No; she is not obliged to ask a question. She +is not obliged to take into consideration any thing that is said in +the neighborhood. She relies upon one source for her information, +and that is the man whom she is going to marry. And the law says he +shall meet her with perfect candor, and there shall pass from his +lips nothing but words of truth; and then if, being in full +possession of all the truth, she makes the contract, that contract +shall stand; otherwise, that it shall not.</p> +<p>There is no use of my quoting these decisions—there is no +decision any other way.</p> +<p>The first question that arises is as to the condition of this +contract under evidence—this antenuptial contract. Is the +amount disproportionate to his estate?</p> +<p>If we are to try this case relying on the notions of Mr. +Russell, and say that his opinion shall govern, why, it may be said +that Russell imagined that he was generous. That would be +astonishing, but hardly as astonishing as the fact that Mr. +Pancoast thinks he is generous.</p> +<p>Mr. Pancoast: You don't know me very well.</p> +<p>Mr. Ingersoll: I don't think you would do so badly as that. It +may be that Russell imagined that one thousand dollars in stock of +some bank was a liberal provision in his will. I don't know whether +he did, and I do not care whether he did or not. The question is +not for Mr. Russell; it is not a question for Mr. Pancoast, and it +is not a question for myself; it is for your Honor to decide. Is +the amount mentioned in this antenuptial contract, taken together, +if you please, with the fifteen hundred dollars in the +will—is the amount made by the addition of the two +amounts—disproportionate to this estate?</p> +<p>There is a case here from Illinois, Achilles vs. Achilles (which +ought to be a strong case), in which I believe the man was worth +seventeen or eighteen thousand dollars; and my recollection is that +he provided an annuity of three hundred dollars for his wife, with +rent free of a house; also rent free of a vacant lot for a garden. +That is what he gave her—what would be about four hundred +dollars or five hundred dollars a year; and he had eighteen +thousand dollars. The Supreme Court of Illinois thought that amount +so disproportionate to the value of the estate that the provision +was set aside.</p> +<p>Now, in this case, five thousand dollars or six thousand +dollars—we will say five thousand anyhow—is the amount; +and there is an estate worth a quarter of a million or, to come +even within their own testimony, worth two hundred thousand +dollars.</p> +<p>The first question for your Honor to decide is whether that +amount is so disproportionate to his estate that—unless the +other side show that she was put in possession of all the +facts—it must be set aside.</p> +<p>The defendants in this case have not endeavored to show that Mr. +Russell ever informed the complainant what he was worth. The only +evidence we have on that point is what he said with regard to his +poverty—not one word about how much he had, and as to his +poverty, only indirectly. And here is the way the old man's mind +worked: They were first engaged to be married. Mr. Pancoast +believes, or at least he has expressed himself as though he +thought, that a man of seventy-five could not be in love (I do not +know what his experience is, but I hope no fate like that will +overtake me), and that a woman of fifty could not feel the tender +flame. I do not know enough about biology to state with accuracy +how that is, but I heard a story once about a colored woman having +lived to be one hundred and twenty-five, and a man interested in +the question that Mr. Pancoast has raised asked this aged lady how +old a woman had to be before she ceased to have thoughts about +love?</p> +<p>And the old woman said: "I don't know, honey; you will have to +ask somebody older than I is." And I guess that is about the +experience of the race.</p> +<p>Mr. Russell said to this woman: "I want to make a contract with +you, and I will give you fifteen thousand dollars." She said that +was satisfactory, and Russell—having a little Semitic blood +in his veins, I guess—said to himself, "I must have offered +too much, she accepted so readily." So the next time he saw her he +said, "I do not think I can make it more than ten thousand +dollars." "Well," she said, "all right; ten thousand dollars will +do." In the meantime he was getting a little older, and the last +time he came he said he could not make it more than five thousand +dollars, because his estate was so entangled that he did not know +that he would be able to pay it—that it would be a pretty +difficult job to pay that amount within six months. Well, she +accepted, and in order that she should accept it, he said that, in +addition, he would provide well for her in his will—that he +would make a liberal provision. There is the contract. No evidence +in the world that he told her what he was worth; the only evidence +is that he pleaded poverty.</p> +<p>And right at this point, I say that all the decisions I know of +declare the contract void unless the defence, on their part, show +that she was put in full possession of all the facts; and that the +defence in this case did not do.</p> +<p>Now, so far as this contract is concerned, on the evidence it is +void, and void notwithstanding the fact that the trustees paid her +five hundred dollars; and Mr. Pancoast, according to my +recollection, is mistaken when he says that she demanded the +balance. He offered her the balance, and she stated that she had +been informed that she had some rights against the estate, and +therefore refused to receive it. That is the fact about it. He sent +her five hundred dollars, and wanted to send her the balance, but +she would not have it. Then he asked her to take it, and showed her +a receipt to be signed, in which she waived everything, and she +refused to sign it.</p> +<p>Under those circumstances I do not think it is possible for your +Honor to say that she has been estopped.</p> +<p>The next point raised by Mr. Pancoast is that the oral agreement +to provide well for her in the will is void under the statute of +frauds.</p> +<p>Well, I am free to say that I do not know how it is in New +Jersey, but in every other State in which I am acquainted with the +law, the statute of frauds, to be operative, must always be +pleaded. I do not know how it is here. That statute has not been +pleaded in this case, and I never heard of it until the argument +to-day. If it is to be pleaded before it can be invoked, it is too +late to cite it now. But let us go on the supposition that he is +right, that the antenuptial contract is void, and that the other +contract to provide for her in the will is also void. Then where +does that leave us? That leaves us exactly as though no contract +had been made. That leaves us without any antenuptial contract, +without any agreement to provide liberally for her in the will. +Then what is our condition? Then the wife is entitled to her dower +in the real estate; that follows as a necessity. She loses her +interest in the personalty, because that is given away by the will, +but if the antenuptial contract and parole agreement are both +dead—one because disproportionate to the estate and because +of the fraud of Russell, and the other on account of the statute of +frauds, then she is left with her dower in the real estate. It is +impossible, it seems to me, to arrive at any other conclusion. It +certainly would be inequitable to say that she had been estopped on +account of what was done with the five thousand dollars in the +hands of the trustees.</p> +<p>There is another view of it. There has been, if the contracts +are good, a partial performance; and that of itself would take it +out of the statute of frauds.</p> +<p>Then the question is, if it is out of the statute of frauds, and +if it is out because the contract has been partially performed, the +next question, and, it seems to me, the only question that arises, +is, has a court of equity the right to determine what the words +"You shall be well provided for," "I will provide for you liberally +in my will," or "I will make a liberal provision for you in my +will"—what those words mean?</p> +<p>According to the idea of counsel on the other side, the Court is +bound to decide according to the meaning that was in the mind of +Mr. Russell. But there comes in here another principle. The only +way we can find the meaning in his mind is by finding the words +that he used; and we are not to import his meanness into the words, +if he had meanness; neither would we import his generosity, if he +had generosity. We would give to those words their natural meaning, +apart from the thought of the one who used them, and apart from the +thought of the one who heard them, because the words are known, +their meaning is known and can be ascertained by the Court.</p> +<p>Now, the word "reasonable" is about as hard a word to define as +a court was ever called upon to define, and yet courts of law and +courts of equity, in hundreds and thousands of instances, have +passed upon the meaning of the word "reasonable," and have not only +passed upon its meaning, but have given it from time to time +definitions.</p> +<p>A man must give reasonable care to the property of another given +into his keeping. Well, what is reasonable care? Is it reasonable +for him to take such care of it as he does of his own? Not if he is +unreasonably careless of his own. And the law takes another step, +and says you must take such care of it as is reasonable, as a +reasonable man would, and the courts then go on to define what a +reasonable man under the circumstances would do. Now, there is no +word in the language that courts have been called upon to define +that is vaguer—where the line between dawn and dusk, between +light and dawn, has to be drawn with greater care or greater +intelligence—than that word "reasonable." The word +"appropriate" has been decided again and again. The word +"necessary," the word "convenient," the word +"suitable"—"suitable to his or her condition in +life"—"suitable to the condition of the party"—all +these words have been given judicial meaning hundreds and thousands +of times.</p> +<p>And now we come to the word "liberal," is that a hard word to +define?</p> +<p>Everybody in the world has his notion of what liberal means. +Given the circumstances and the actions of the man, and everyone +you meet is ready to decide whether he is liberal or illiberal. A +man loses his pocketbook; five thousand dollars in it; a boy finds +it, returns it to him, and he gives the boy five cents. There is +not a man in the world, no matter whether he is a judge or not, who +would say that was liberal—nobody. If there was only a dollar +in the pocketbook and he gave him half of it, you would say that +was liberal. You would have to take the circumstances into +consideration. You also take into consideration the circumstances +of the man who found it. If he is a poor man you can not be liberal +unless you give him more than you would give the man who did not +need it.</p> +<p>What is a liberal provision for a wife that has no means of +making her own living? If the man is able, nothing less than a +sufficient sum to take care of her. Suppose Mr. Vanderbilt, who is +worth two or three hundred millions—I do not know what he is +worth, and I do not care, but I suppose he is worth a hundred +millions—should agree to make a liberal provision for his +wife, and make it so that he gets away from the statute of frauds, +and thereupon leaves her twenty-five hundred dollars. Nobody would +say that was liberal. Why? Because that word is capable of a clear +and reasonably exact definition. To be liberal, he would have to +leave her enough to live in the same style that she has been living +in with him, and enough to keep her during her life. Anything less +than that would be illiberal, mean, contemptible.</p> +<p>So I might go through all the actions of men in regard to +contracts, payments, divisions. We all know what liberal means, and +it always means a little more than the law could compel you to do. +If a man hires another and says, "I will give you five dollars a +day," and the other works twenty days, and he gives him one hundred +dollars; nobody says he is liberal, and nobody says he is mean. But +when the man goes further and says, "You have worked well; I am +very much pleased with what you have done; there is fifty dollars +(or twenty-five dollars) as a present," everybody says, "Why, that +is liberal, that is generous." But no man ever yet got the +reputation of being generous by doing exactly what he was bound to +do. He may have the reputation of being just, honest, of keeping +his contracts, of being a good, fair, square man, but he never got +the reputation of being generous, and he never got the reputation +of being liberal, by simply doing what the law compelled him to do, +or what his contract compelled him to do, or what he did in +consideration of that for which he had received value.</p> +<p>In this case Russell said, "I will make a liberal provision for +you in my will." If he had made no will the law would have given +her one-third of his personal property. That would not have been +liberal. That would simply have been the law. That is the law, and +that is what the law has said is just. Whether the law is right or +not, I do not know, but that is what the law says. That is just, +and no man can be liberal unless he goes just a little beyond +justness—just a little.</p> +<p>So when he says, "I will provide for you liberally in my will," +in order to comply with that agreement he has got to go somewhat +beyond the law, and the law says one-third; it is impossible for +him to be liberal without going a little beyond one-third, and then +he is only liberal to the extent that he does go beyond what the +law fixes.</p> +<p>Now, it seems to me that there is no escape from that. Neither +does it seem to me that there is the slightest difficulty in your +Honor fixing what is liberal—no more difficulty than you +would have in saying what is right; and we have hundreds of cases +where a man has said, "If you will do so and so I will do what is +right," and it has been enforced—has been enforced thousands +and thousands of times. "I will do what is right," "I will do what +is just," "I will do what is liberal," "I will do what is necessary +and proper"—all these words have been judicially determined +and their meaning fixed by hundreds and thousands of decisions. I +do not see the slightest trouble in that.</p> +<p>So, in this case, looking at the parole contract as +bad—and it is bad—the woman is at the very least +entitled to her dower; and the only way that she can be robbed of +it is by holding that a contract is good which was made by her +without any knowledge of the value of the property that he held. +But every decision says that makes the contract void, and that she +is not bound to make examination herself; he is bound to give her +that information. The law says that when two hearts come together +in that way, and there is supposed to be affection, they must be +candid. He must conceal nothing. His hands must be open; not only +must what he says be the truth, but he must tell it all, and she +cannot be bound by any contract that she does not make in the full +blaze of all the facts. She must have them all, and if he keeps +back any, if he makes himself poorer than he is, he destroys the +contract. If he tries to take advantage of her the law says he only +takes advantage of himself. The Court is her attorney; the Court +appears for her for the preservation of her dower right; and the +Court will not allow a man to take advantage of any misstatement, +of any suppression, of any fraud, no matter whether active fraud, +or a fraud that rests in non-action. The Court is her attorney and +says the contract is bad, and if you try to deceive her you deceive +yourself; and if you fail to put her in possession of all the facts +the consideration of the contract fails and it is dead and +done.</p> +<p>If these decisions have any meaning, that is the law, and if +there is a decision on the other side, I should like to hear it. I +haven't found one, not one; and in all the cases where applications +have been made to set aside an antenuptial contract, I have not +found one where the disproportion was as great as it appears in +this case. The difference is between six thousand five hundred +dollars and an estate of a quarter of a million. I have not found +one that had anywhere near that disproportion, and yet case after +case is set aside on the disproportion of about four hundred +dollars or five hundred dollars a year and the fortune of eighteen +thousand dollars—one where it is thirty thousand and she gets +about five hundred dollars. I do not know of a solitary case where +the deception was as great as in this. I do not say that he +intentionally deceived, because I do not know, and, as Mr. Pancoast +remarked, he is dead. We simply go on the facts that are shown.</p> +<p>Now, as to the value of the property, I do not think there is +any real dispute about that. Mr. Russell is one of the executors, +and when he went over the real estate here on the stand he had in +his hand a list of all that real estate, with the values put upon +it by our two witnesses; and he was asked the value, and he looked +at the parcel, and he looked at the amount, and I tried it here +myself, just to see if I could guess what his answer would be. I +deducted in my own mind fifty per cent, sometimes, sometimes thirty +per cent., sometimes forty per cent., and I hit it within five +dollars in fifteen cases, just guessing by myself what he would +say, because I knew that he was going by the figures without the +slightest reference, in many cases, to what the property was worth. +He estimated one parcel at two thousand two hundred dollars; I +think it was worth about five thousand dollars. He fixed another at +three thousand two hundred and fifty dollars; I think it is worth +about five thousand dollars. He fixed a third at four hundred +dollars; I think it is worth about six hundred dollars. When he was +asked about those same parcels, without the figures he sometimes +went beyond the price that our experts had fixed; sometimes he +doubled his own price, and sometimes he fell below his price. I +think in one or two instances he even fell below; but that at the +time he had in his mind, any knowledge apart from the figures that +had been made by the experts, I do not believe.</p> +<p>The Vice Chancellor: Is it of any significance? If your argument +is right the disproportion is so great that it makes no +difference.</p> +<p>Mr. Ingersoll: Perhaps not. Then his co-executor was not called +at all. So I take it that we can safely say that the property was +worth in all two hundred thousand dollars, taking it according to +their own estimate. The estimate of the man who fixed it on account +of the inheritance tax, I do not think is of any weight. He did not +go over it all and did not see it. I say the disproportion is so +great—they having failed to show that the knowledge was in +her possession, put there by him—that the contract must be +set aside. That we insist upon.</p> +<p>One of two things has to be done, it seems to me: Both those +contracts set aside and her dower in the real estate given to her, +or both contracts allowed to stand and the court to fix what is a +liberal provision in the will—and in that, for one, I see no +difficulty. "Liberal" is a word as easily understood at least as +the word "reasonable"—certainly as the word "necessary," +certainly as the word "convenient," certainly as the word +"suitable," and in fact I might say as almost any other word except +some scientific term that limits its own definition.</p> +<p>Now, we have already said that a liberal provision could not be +less than the law gives us. In that view of the case, she should +have, in lieu of her dower, the five thousand dollars, and, on +account of the will she should have at least whatever one-third of +the personal property is worth.</p> +<p>It seems to me that one of those two courses must be pursued. +Here is an old man who wants to get a woman some twenty-five years +younger than he is. Just think how Mr. Pancoast's blood would throb +at a woman twenty-five years younger than he. Think what visions +would haunt his brain. Think of the Cupids that, with outstretched +wings, would follow in the darkness of the night as he contemplated +his happiness. Here was a man of that age who wanted this woman, +and taking into consideration his ideas of money—a man that +considered a thousand dollars a liberal provision; one worth two +hundred and thirty thousand dollars or two hundred and forty +thousand dollars, offering her five thousand dollars—he +wanted her badly. You can hardly think of a more wonderful thought +visiting his brain than that of giving all that money for a woman +nearly twenty-five years younger than himself.</p> +<p>I want to be kind to Mr. Russell; I want to say that he was +honestly in love with this woman. I want to be respectful to her by +saying that the affection was reciprocated, and that on her part it +was absolutely honest. But I do say that Mr. Russell withheld from +her the information as to his property. Mr. Russell endeavored to +drive the best bargain he could, and I say that by keeping back the +facts that he was bound to make known to her, he defeated +himself—that while he did deceive her, he destroyed his +contract.</p> +<p>Now, by no way of reasoning I can think of can you arrive at any +different conclusion. All matters of this kind, of course, should +be dealt with from a high standard, the highest standard we have, +the very highest. The affection that man has for woman is, in my +judgment, the holiest and the most beautiful thing in nature; the +affection that woman has for man—that affection, that +something that we call love—has done all there is of value in +the world. It has civilized mankind; made all the poems, painted +all the pictures, and composed all the music. Take it from the +world and we shall be simply wild beasts—far worse than wild +beasts, for they have affection for each other and for their +young.</p> +<p>So I say this should be treated from the highest possible +standpoint, and treating it in that way your Honor must say that a +woman must act with a full knowledge of every fact that had any +bearing upon the question to be decided by her; and if she was not +put in possession of all of these facts, by the man who said he +loved her, then the contract is void.</p> +<p>On the other hand, if the contract is held valid, and with it +the agreement to provide liberally for her in his will, then I say +that there can be no liberality that does not go beyond the law. In +the one case she is entitled to five thousand dollars and one-third +of the personalty, and in the other case she is entitled to her +dower.</p> +<div style="height: 6em;"><br /> +<br /> +<br /> + +<br /> +<table summary="" border="3" cellpadding="4"> +<tbody> +<tr> +<td><big><big><a href="http://www.gutenberg.org/files/38813/38813-h/38813-h.htm"> +TABLE OF CONTENTS FOR ALL 12 EBOOKS IN THIS SET</a></big></big></td> +<td></td> +</tr> +</tbody> +</table> +<br /> + +<br /> +<br /> +<br /></div> +</body> +</html> |