CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL.

* The most characteristic feature of the Star-route trial,

which has been the central point of interest in our city for

the past three months, was the marvelously powerful speech

of Colonel Robert G. Ingersoll before the jury and the judge

last week.

People who knew this gifted gentleman only superficially,

had supposed that he was merely superficial as a lawyer.

While acknowledging his remarkable ability as an orator and

his vast accomplishments as a speaker, they doubted the

depth of his power. They heard him, and the doubt ceased. It

can be said of Ingersoll, as was written of Castelar, that

his eloquent utterances are as the finely-fashioned

ornamental designs upon the Damascus blade--the blade cuts

as keenly and the embellishments beautify without retarding

its power.

The following is Colonel Ingersoll's speech. Its swift

incisiveness, keen and comprehensive logic and apt

deductions from proper premises are only equaled by the

grand manner of its delivery, and under the circumstances

incidental to the case and the routes to be traversed, by

its expedition of action and brevity.--Washington, D. C.,

The Capital, Sept. 16th, 1882.

MAY it please the Court and gentlemen of the jury: Let us understand

each other at the very threshold. For one I am as much opposed to

official dishonesty as any man in this world. The taxes in this country

are paid by labor and by industry, and they should be collected and

disbursed by integrity. The man that is untrue to his official oath,

the man that is untrue to the position the people have honored him with,

ought to be punished. I have not one word to say in defence of any man

who I believe has robbed the Treasury of the United States. I want it

understood in the first place that we are not defending; that we are

not excusing; that we are not endeavoring to palliate in the slightest

degree dishonesty in any Government official. I will go still further:

I will not defend any citizen who has committed what I believe to be a

fraud upon the Treasury of this Government. Let us understand each other

at the commencement.

You have been told that we are a demoralized people; that the tide of

dishonesty is rising ready to sweep from one shore of our country to the

other. You have been appealed to to find innocent men guilty in order

that that tide may be successfully resisted. You have been told--and I

have heard the story a thousand times--that this country was demoralized

by what the gentlemen are pleased to call the war, and that owing to the

demoralization of the war it is necessary to make an example of somebody

that the country may take finally the road to honesty. We were in a

war lasting four years, but I take this occasion to deny that that war

demoralized the people of the United States. Whoever fights for the

right, or whoever fights for what he believes to be right, does not

demoralize himself. He ennobles himself. The war through which we passed

did not demoralize the people. It was not a demoralization; it was

a reformation. It was a period of moral enthusiasm, during which the

people of the United States became a thousand times grander and nobler

than they had ever been before. The effect of that war has been good,

and only good. We were not demoralized by it. When we broke the shackles

from four millions of men, women and children it did not demoralize us.

When we changed the hut of the slave into the castle of the freeman it

did not demoralize us. When we put the protecting arm of the law

about that hut and the flag of this nation above it, it was not very

demoralizing. When we stopped stealing babes the country did not

suddenly become corrupted. That war was the noblest affirmation of

humanity in the history of this world. We are a greater people, we are a

grander people, than we were before that war. That war repealed statutes

that had been made by robbery and theft. It made this country the home

of man. We were not demoralized.

There is another thing you have been told in order that you might find

somebody guilty. You have been told that our country is distinguished

among the nations of the world only for corruption. That is what you

have been told. I care not who said it first. It makes no difference to

me that it was quoted from a Republican Senator. I deny it. This country

is not distinguished for corruption. No true patriot believes it. This

country is distinguished for something else. The credit of the United

States is perfect. Its bonds are the highest in the world. Its promise

is absolute pure gold. Is that the result of being distinguished for

corruption? I have heard that nonsense, that intellectual rot all

my life, that the people used to be honest, but at present they are

exceedingly bad. It is the capital stock of every prosecuting lawyer;

but in it there is not one word of truth. Is this country distinguished

only for its corruption throughout Europe? No. It is respected by every

prince and by every king; it is loved by every peasant. Is it because we

have such a reputation for corruption that a million people from foreign

lands sought homes under our flag last year? Is corruption all we are

distinguished for? Is it because we are a nation of rascals that the

word America sheds light in every hut and in every tenement in Europe?

Is it because we are distinguished for corruption that that one word,

America, is the dawn of a career to every poor man in the Old World? I

always supposed that we were distinguished for free schools, for free

speech, for just laws; not for corruption. A country covered with

schoolhouses, where the children of the poor are put upon an exact

equality with those of the rich, is not distinguished for corruption.

And yet in the name of this universal corruption you are appealed to to

become also corrupt. This nation is substantially a hundred years old,

and to-day the assessed property of the United States is valued at

$50,000,000,000. Is that the result of corruption, or is it the

result of labor, of integrity and of virtue? I deny that my country is

distinguished for corruption. I assert that it rises above the other

nations distinguished for humanity as high as Chimborazo above the

plains. Never will I put a stain upon the forehead of my country in

order that I may win some case, and in order that I may consign some

honest man to the penitentiary. I stand here to deny that this is a

corrupt country. Let me say that the only tribute that I ever heard paid

to corruption was indirectly paid by Mr. Merrick himself. He told you

that official corruption destroyed the French Empire, and upon the ruins

of that empire arose the French Republic. He makes official corruption

the father of French liberty. If it works that way I hope they will

have it in every monarchy on the globe. Napoleon stole something besides

money; he stole liberty, and the French people finally got to that

condition of mind where they preferred to be trampled on by Germany

rather than to have their liberty devoured by Napoleon. From that

splendid sentiment sprang the French Republic. This country is the land

not of slavery, but of liberty, not of unpaid toil, but of successful

industry. There is not a poor man to-day in all Europe or a poor boy who

does not think about America. I recollect one time in Ireland that I

met with a little fellow about ten years old with a couple of rags for

pantaloons and a string for a suspender. I said, "My little man, what

are you going to do when you grow up?" "_Going to America_." It is the

dream of every peasant in Germany. He will go to America; not because

it is the land of corruption, but because it is the land of plenty, the

land of free schools, the land where humanity is respected.

There is another thing about this country. We have a king here, and that

king is the law. That king is the legally expressed will of a majority,

and that law is your sovereign and mine. You have no right to violate

one law to carry out another. We all stand equal before that law, and

the law must be upheld as an entirety, and in no other way. If in this

case you believe these defendants beyond a doubt to be guilty, it

is your duty to find them so, and you must find them so in order to

preserve your own respect. I do not agree with this prosecution in the

idea that the perpetuity of the Republic depends upon this verdict.

Decide as badly as you please, as horribly as you can, the Republic

will stand. The Republic will stand in spite of this verdict, and the

Republic will stand until people lose confidence in verdicts--until they

lose confidence in legal redress. When the time comes that we have no

confidence in courts and no confidence in juries, then the great temple

will lean to its fall, and not until then. As long as we can get redress

in the courts, as long as the laws shall be honestly administered,

as long as honesty and intelligence sit upon the bench, as long as

intelligence sits in the chairs of jurors, this country will stand, the

law will be enforced and the law will be respected. But so far as my

clients are concerned, everything they have, everything they love,

everything for which they hope, home, friends, wife, children, and that

priceless something called reputation, without which a man is simply

living clay, everything they have is at stake, and everything depends

upon your verdict. I want you to understand that everything depends

upon your decision, and yet my clients with their world at stake, home,

everything, _everything_, ask only at your hands the mercy of an honest

verdict according to the evidence and according to the law. That is all

we ask, and that we expect. By an honest verdict I mean a verdict in

accordance with the testimony and in accordance with the law, a verdict

that is a true and honest transcript of each juror's mind, a verdict

that is the honest result of this evidence. Whoever takes into

consideration the desire, or the supposed desire, of the outside public

is bribed. Whoever finds a verdict to please power, whoever violates

his conscience that he may be in accord, or in supposed accord, with

an administration or with the Government, is bribed. Whoever finds a

verdict that he may increase his own reputation is bribed. Whoever finds

a verdict for fear he will lose his reputation is bribed. Whoever bends

to the public judgment, whoever bows before the public press, is bribed.

Fear, prejudice, malice, and the love of approbation bribe a thousand

men where gold bribes one. An honest verdict is the result not of fear,

but of courage; not of prejudice, but of candor; not of malice, but of

kindness. Above all, it is the result of a love of justice. Allow me to

say right here that I believe every solitary man on this jury wishes to

give a verdict exactly in accordance with this testimony and exactly in

accordance with the law. Every man on this jury wishes to preserve his

own manhood. Every man on this jury wishes to give an honest verdict.

There are no words sufficiently base to describe a man who will

knowingly give a dishonest verdict. I believe every man upon this jury

to be absolutely honest in this case. The mind of every juror, like

the needle to the pole, should be governed simply by the evidence. That

needle is not disturbed by wind or wave, and the mind of the honest

juror never should be disturbed by clamor, nor by prejudice, nor by

suspicion. Your minds should not be affected by the fume, by the froth,

by the fiction, or by the fury of this prosecution. You should pay

attention simply to the evidence, and to use the language of one of my

clients, you should be governed by the frozen facts. That is all you

have any right to think of and all you have any right to examine.

Having now said thus much about the duties of jurors, let me say one

word about the duties of lawyers. I believe it is the duty of a lawyer,

no matter whether prosecuting or defending, to make the testimony as

clear as he can. If there is anything contradictory it is his business

if he possibly can to make it clear. If there is any question of law

about which there is a doubt, it is his right and it is his duty to

give to the court the result of his study and of his thoughts, for the

purpose of enlightening the court upon that particular branch of law.

No matter if he may believe the court understands it, if there is the

slightest fear that the court does not or has forgotten it, it is his

duty to bring the attention of the court to that law. It is not his duty

to abuse anybody. It is not my duty to abuse anybody. There is no logic

in abuse; not the slightest; and when a lawyer, under the pretext of

explaining the evidence to the jury, calls a defendant a thief and a

robber, he steps beyond the line of duty and, in my judgment, beyond the

line of his privilege. What light does that throw upon the case? In his

effort to explain the law to the court what cloud does it remove from

the intellectual horizon of his honor for the attorney to call the

defendant a robber, a thief, or a pickpocket? I shall in this case give

you what I believe to be the facts. I shall call your attention to the

testimony. I shall endeavor to throw what light I am capable of throwing

upon this entire question. I shall not deal in personalities. They are

beneath me. I shall not deal in epithets. Nobody worth convincing can be

convinced in that way. Now, let us see what the law is, and let us see

what our facts are. In the beginning of this dusty branch I shall ask

the pardon of every juror in advance for going over these facts once

again. You see they strike every man in a peculiar way. No two minds are

exactly alike. No pair of eyes distinguish exactly the same object

or the same peculiarities of the objects. This is an indictment under

section 5440 of the Revised Statutes, and there must not only be a

conspiracy to defraud, but there must be an overt act done in pursuance

of that conspiracy for the purpose of effecting the object of it. Now,

then, how must these overt acts be stated in this indictment? Is the

overt act a part of the crime, and must it, be described with the same

particularity that you describe the offence? Which of the overt acts set

out in this indictment is the overt act depended upon, together with

the act of conspiring, to make this offence? I hold, may it please your

Honor, that every overt act set out in the indictment must be proved

exactly as it is alleged, no matter whether the description was

necessary to be put in the indictment or not. No matter how foolish, how

unnecessary the description, it must be substantiated, and it must be

proven precisely as it is charged. No matter whether the particular

thing described is of importance or not, no matter how infinitely

unnecessary it was to speak of it, still, if it is a matter of

description, it must be proven precisely as it is charged. Upon that

subject I wish to call the attention of the Court to some authorities,

and it will take me but a few moments. I will call the attention of the

Court first to the case of the State against Noble, 15 Maine, 476. Here

a man was indicted for fraudulently and willfully taking from the river

and converting to his own use certain logs. These logs were described as

marked "W" with a cross, and "H" with another cross, and with a girdle.

Now, it seems that a part of this mark was not found, according to the

testimony upon the logs taken:

"The description of these logs in the indictment is the only way the

logs could be distinguished and could not be rejected as surplusage. It

has been settled that if a man be indicted for stealing a black horse,

and the evidence be that he stole a white one, he cannot be convicted.

The description of a log by the mark is more essential than that of

a horse by its color. If it was not necessary to describe the log so

particularly by the mark, yet so having stated it, there can be no

conviction without proof of it."

Now, the court, in deciding this, says:

"It may be regarded as a general rule, both in criminal prosecutions

and in civil actions, that an unnecessary averment may be rejected where

enough remains to show that an offence has been committed, or that a

cause of action exists. In Ricketts vs. Solway, 2 Barn., & Aid., 360,

Abbott, C. J., says: 'There is one exception, however, to this rule,

which is, where the allegation contains matter of description. Then, if

the proof given be different from the statement, the variance is fatal.'

As an illustration of this exception, Starkie puts the case of a man

charged with stealing a black horse. The allegation of color is

unnecessary, yet as it is descriptive of that, which is the

subject-matter of the charge, it cannot be rejected as surplusage, and

the man convicted of stealing a white horse. The color is not essential

to the offence of larceny, but it is made material to fix the identity

of that, which the accused is charged with stealing."

3 Stark., 1531. "In the case before us the subject-matter is a pine

log marked in a particular manner described. The marks determine the

identity, and are, therefore, matter purely of description. It would not

be easy to adduce a stronger case of this character. It' might have been

sufficient to have stated that the defendant took a log merely, in the

words of the statute. But under the charge of taking a pine log we are

quite clear that the defendant could not be convicted of taking an oak

or a birch log. The offence would be the same; but the charge to which

the party was called to answer, and which it was incumbent on him to

meet, is for taking a log of an entirely different description. The kind

of timber and the artificial marks by which it was distinguished are

descriptive parts of the subject-matter of the charge which cannot be

disregarded, although they may have been unnecessarily introduced. The

log proved to have been taken was a different one from that charged in

the indictment; and the defendant could be legally called upon to answer

only for taking the log there described. In our judgment, therefore,

the jury were erroneously instructed that the marks might be rejected as

surplusage; and the exceptions are accordingly sustained."

I also cite the case of the State against Clark, 3 Foster, New

Hampshire, 429:

"Indictment for fraudulently altering the assignment of a mortgage. The

indictment set forth the mortgage, and also the assignment, as it was

alleged to have been originally made from Miles Burnham to Noah Clark,

the respondent; and alleged that the assignment was signed, sealed,

delivered, witnessed by two witnesses, and duly and legally recorded at

length, in the registry of deeds of Rockingham county, on the 18th of

September, 1844. It then alleged that this assignment was fraudulently

altered on the 28th of June, 1844, by inserting the letter 'S' in two

places, between the words 'Noah' and 'Clark,' so that the assignment

originally made to Noah Clark, after the alteration appeared as if it

were made to Noah S. Clark.

"On trial the records of deeds were produced, and there was found a

record of the assignment purporting to be made to Noah S. Clark, the

record bearing date September 18, 1844, but there was no record of any

assignment to Noah Clark. The respondent's counsel objected that this

evidence did not support the allegations of the indictment. The forgery

was alleged to have been committed on the 28th of June, 1844, and the

court admitted evidence that Miles Burnham, who executed the assignment,

being applied to about the 30th of July, 1846, for a loan of money upon

a mortgage of the same property, declined to make the loan unless he was

satisfied there was no mortgage of conveyance of the land by Noah

Clark, and the person who drew the assignment searched the records with

Burnham, and found no such deed on record. This evidence was objected

to, but was understood to be introductory to other material and

pertinent evidence, and was therefore admitted; but no such other

evidence, to which it was introductory, was offered.

"The jury found a verdict of guilty, which the defendant moved to set

aside."

Upon that the court says:

"We are not able to look upon this statement that the deed was duly

recorded as well as witnessed and acknowledged according to the statute,

in any other light than as part of the description of the deed and

conveyance which the defendant was charged with altering. We are,

therefore, of opinion that the evidence upon this point did not sustain

the indictment."

Now, if the statement that the mortgage was recorded was such a material

part of the description that a failure to prove the record as charged

was fatal, so, I say, in these overt acts, if they charge that a thing

was done or a paper filed on a certain day and it turns out not to

be so, that is a fatal variance, and under that description in the

indictment the charge cannot be substantiated. I refer to the case

against Northumberland, 46 New Hampshire, 158, and also to the King

against Wennard, 6 Carrington & Paine, 586.

Clark vs. Commonwealth, 16 B., Monroe, 213:

"The doctrine seems to have been well settled in England and this

country, that in criminal cases, although words merely formal in

their character may be treated as surplusage and rejected as such, a

descriptive averment in an indictment must be proved as laid, and

no allegation, whether it be necessary or unnecessary, more or less

particular, which is descriptive of the identity of what is legally

essential to the charge in the indictment, can be rejected as

surplusage."

And in this case I cite Dorsett's case, 5th Roger's Record, 77:

"On an indictment for coining there was an alleged possession of a die

made of iron and steel, when, in fact, it was made of zinc and antimony.

The variance was deemed fatal."

And yet it was not necessary to state of what the die was made. If the

indictment had simply said he had in his possession this die, it would

have been enough, but the pleader went on and described it, saying it

was made of iron and steel. It turned out upon the trial that it was

made of zinc and antimony, and the variance was held to be fatal. So I

cite the court to Wharton's American Crim. Law, 3rd edition, page 291,

and to Roscoe on Criminal Evidence, 151. Now I cite the case of the

United States against Foye, 1st Curtis's Circuit Court Reports, 368,

and I do not think it will be easy to find a case going any further than

this. It goes to the end of the road:

"A letter containing money deposited in the mail for the purpose of

ascertaining whether its contents were stolen on a particular route and

actually sent on a post-route, is a letter intended to be sent by post

within the meaning of the post-office act."

This I understand was a decoy letter.

"The description of the termini between which the letter was intended to

be sent by post cannot be rejected as surplusage, but must be proved as

laid."

Upon that the court says:

"But a far more difficult question arises under the other part of

the objection. The indictment alleges, not only that this letter was

intended to be conveyed by post, but describes where it was to be

conveyed; it fixes the termini as Georgetown and Ipswich. The allegation

is, in substance, that the letter was intended to be conveyed by post

from Georgetown to Ipswich. The question is, whether the words from

Georgetown to Ipswich can be treated as surplusage. It was necessary to

allege that the letter was intended to be conveyed by post. The

words from Georgetown to Ipswich are descriptive of this intent. They

describe, more particularly, that intent which it was necessary to

allege. In United States vs. Howard, 3 Sumner, 15, Mr. Justice Story

lays down the following rule, which we consider to be correct: 'No

allegation, whether it be necessary or unnecessary, whether it be more

or less particular, which is descriptive of the identity of that which

is legally essential to the charge in the indictment, can ever be

rejected as surplusage.' Apply that rule to this case. It is legally

essential to the charge to allege some intent to have the letter

conveyed somewhere by post. Suppose the indictment had alleged an intent

to have it conveyed between two places where no post-office existed, and

over a post-route where no postroad was established by law. Inasmuch

as the court must take notice of the laws establishing post-offices

and post-roads, the indictment would then have been bad; because

this necessary allegation would, on its face, have been false. Words,

therefore, which describe the termini and the route, and thus show what

in particular was intended, do identify the intent, and show it to be

such an intent as was capable, in point of law, of existing.

"And we are obliged to conclude that they cannot be treated as

surplusage, and must be proved, substantially, as laid. We are of

opinion, therefore, that there was a variance between the indictment and

the proof; and that, for this cause, a new trial should be granted."

So I refer to the State vs. Langley, 34th New Hampshire, 530.

The Court. I think, Colonel Ingersoll, there is no doubt about this

doctrine.

Mr. Ingersoll. I do not want any doubt about it.

The Court. There cannot be.

Mr. Ingersoll. Well, I will just read this because I do not want any

doubt about it in anybody's mind.

The Court. I have no doubt about it.

Mr. Ingersoll. Very well:

"If a recovery is to be had, it must be _secundum allegata et probata_;

and the rule is one of entire inflexibility in respect to all such

descriptive averments of material matters. The cases upon this point,

many of which are collected in the case of State vs. Copp, 15 N. H.,

2F5, are quite uniform."

Now, if the Court please, I not only read this with regard to the

overt acts, but with regard to the description of the crime itself--the

conspiracy. I will then refer to State against Copp, 15th New Hampshire.

I will also refer to the case of Rex against Whelpley, 4th Carrington &

Payne, 132; to 3d Starkie on Evidence, sections 1542 to 1544, inclusive;

also to the United States against Denee and others, 3d Wood, page 48,

and a case under this exact section, 5440:

"It seems clear that the statute upon which this indictment is based

is not intended to relieve the pleader from any supposed necessity

of setting out the means agreed upon to carry out the conspiracy by

requiring him to aver some overt act done in pursuance of the conspiracy

and make such act a necessary ingredient of the offence." The court

then refers to the Commonwealth against Shed, 7th Cushing, 514, and

continues--in that case it was different:

"That difficulty does not exist here, for the overt act is part of the

offence, and must be proved as laid in the indictment."

So I find that the court passed upon this very question, and I wish to

call the attention of the Court again to one line on page 961 of the

record in this case:

"But in all cases the principle is simply this: That where the act which

was done in pursuance of the conspiracy is described in the indictment

it must be described with accuracy and completeness, and if there is a

variance in the proof it is fatal to the prosecution."

When I come to that part as to the necessity of describing offences

then I will cite the Court to some other authorities in connection with

these.

Now, then, we have got it established, gentlemen of the jury. There is

no longer any doubt about that law, and the Court will so instruct you,

that wherever they set out in the indictment that we did a certain thing

in pursuance of the conspiracy, they must prove that thing precisely as

charged, no matter whether the description was necessary or unnecessary.

They must prove precisely as they state. They wrote the indictment, and

they wrote it knowing they must prove it, and if they wrote it badly it

is not the business of this jury to help them out of that dilemma.

Now, as I say, we come to the dust and ashes of this case, the overt

acts, and I take up these routes precisely in the order in which they

were proved by the prosecution. First. I take up route 34149. Now, let

us see where we are. The first charge is that we filed false and altered

petitions by Peck, Miner, Vaile, and Rerdell. When did we file them?

The indictment charges that we filed them on the 10th day of July, 1879.

When did the evidence show they were filed? On the 3d day of

April, 1878. That is a fatal variance, and that is the end eternal,

everlasting, of that overt act. Without taking into consideration the

fact that every petition was true and genuine, the petitions were not

sent by the persons as charged. It was presented by Senator Saunders,

and that is the absolute end of that overt act, and you have no right to

take it into consideration any more than if nothing had been said upon

the subject.

Second. That on the 10th of July a false oath was placed upon the

records. Now, that is an overt act, and you know as well as I do that

the description of that must be perfect. If they say it is of one date

and the evidence shows that it is of another, it is of no use. It is

gone. They say, then, that a false oath was filed. When? On the 10th

day of July. Suppose the oath to have been false. When was it filed?

The evidence says April 3, 1879. That is the end of the false oath,

no matter whether that oath is good or bad. No matter whether they

committed perjury or wrote it with perfect and absolute honesty, it is

utterly and entirely worthless as an overt act.

Third. An order for expedition July 10, 1879, alleged to have been made

by Brady. As a matter of fact the order was signed by French. There is a

misdescription. No matter if Brady told him to sign it, it was not as a

matter of fact signed by Brady--it was signed by French. They described

it as an order signed by Brady. It is an order signed by French, and

the misdescription of variance is absolutely fatal, and you have no more

right to consider it than you have the decree of some empire long since

vanished from the earth. Now, this is all the evidence on this route.

That is all of it with the exception of who received the money, and I

will come to that after awhile. That is route 34149.

According to their statement in the indictment, holding them by that,

there is not the slightest testimony. We can consider that route out.

We have only eighteen now to look after. That is the end of that. It

has not a solitary prop; upon the roof of that route not a shingle is

left--not one.

Let us take the next route, 38135. What do we do in that according

to the indictment? And now, gentlemen, recollect, they wrote this

indictment. You would think we did, but we didn't. They wrote it,

and they are bound by it. But if I had been employed on behalf of the

defendants to write it I should have written it just in that way.

First. Sending and filing a false oath. When did we send it; when did we

file it? On the 26th day of June. That is what the indictment says. What

does the evidence say? April 18, 1879. Now, that is the end of that.

It was a true oath, but that does not make any difference. That oath is

gone. That has been sworn out of the case, and dated out of the case.

What is the next?

Second. Filing false petitions. When did we file them? The 26th day of

June, 1879. The last petition was filed the 8th of May, 1879, and it

does not make one particle of difference whether these dates were before

or after the conspiracy as set forth, but as a matter of fact, every one

of the petitions was true. That charge is gone, A fatal variance. What

is the next fraudulent order? That of June 20. There was never

the slightest evidence introduced to show that it was a fraudulent

order--not the slightest. And what is the next charge? Fraudulently

filing a subcontract. And right here I stop to ask the Court, of course

not expecting an answer now, but in the charge to the jury, is it

possible to defraud the Government of the United States by filing a

subcontract?

Now, gentlemen, I want you to think of it. How would you go to work

to defraud the Government by filing a subcontract? If the subcontract

provides for a greater amount of pay than the Government is giving the

original contractor, the Government will not pay it; it will only pay up

to the amount that it agreed to pay the contractor. It is like A giving

an order on B to pay C what A owes B. He need not pay him any more. That

is all. And if the ingenuity of malice can think of a way by which the

Government could be defrauded by the filing of a subcontract I will

abandon the case. It is an impossible, absurd charge, something that

never happened and never will happen. Well, that is the end of this

route with one exception. This is the Agate route. This is the route

where thirty dollars it is claimed has been taken from the Government.

It is that route. You remember the productiveness of that post-office.

They established an office and nobody found it out except the fellow

that was postmaster, and in his lonely grandeur I think he remained

about eighteen months and never sold a stamp. That is all that is left

in that route, that order putting Agate upon the route and taking it

off, and then giving one month's extra pay. That is all--another child

washed--38135--that is all there is to that route; no evidence except

epithets, no testimony except abuse. If anything is left under that it

is simply "robber, thief, pickpocket." That is all.

Now we come to another route, and I again beg pardon for calling

attention to these little things. The Government has forced us to do

it. It is like a lawsuit among neighbors. Each is so anxious to beat the

other they begin to charge for things that they never dreamed of at the

time they were delivered. They will charge for neighborly acts, time

lost in attending the funeral of members of each other's family before

they get through the lawsuit. So the Government started out in this

case, and not finding a great point had to put in little ones, and we

have to answer the kind of points they make.

41119. Overt acts. First. Filing a false oath. When did we file it? The

25th day of June, the indictment says. Who filed it? Peck and Miner.

Well, when was it filed or when was it transmitted? According to their

story, June 23, 1879. This oath is marked 8 C, and an effort was made

to prove by a man by the name of Blois that it was a forgery. That

was objected to, first, that it was not charged to be forged in the

indictment; and second, that a notary public had already sworn that

it was genuine, and that he could not be impeached in that way, and

thereupon that oath was withdrawn, and you will never hear of it any

more. I do not know whether it is true or not. That is found on record,

page 1469. Now, recollect that oath was withdrawn. That is the end of

it.

Second. Filing false petitions. When were they filed? July 8, 1879, and

it turned out that that charge was true, with two exceptions: First,

that they were not filed at that time; and, second, that all the

petitions were true. That is the only harm about that charge.

Third. A fraudulent order made by Brady, July 8th. Now let us see what

the fraud consists in. The fraud is claimed to be in expediting to

thirty-three hours when the petition only called for forty-eight. You

remember the charge expediting to thirty-three hours, when the petition

only called for forty-eight. Now, let us see. It is claimed that to

grant more than the petitions ask is a crime; certainly it must be

admitted that to grant less is equally a crime. The only evidence now

of fraud in this is that he was asked to expedite the forty-eight

hours, but he expedited to thirty-three. That is to say, he violated the

petitions, and if that is good doctrine, then the petitions must settle

whether expedition is to be granted or not. If that is good doctrine

there is no appeal from the petition. I do not believe that doctrine,

gentlemen. I believe it is the business of the Post-Office Department

to grant all the facilities to the people of the United States that the

people need. He must get his information from the people, and from the

representatives of the people; and while he is not bound to give

all they ask, if he does give what the people want, and what their

representatives indorse, you cannot twist or torture it into a crime.

That is what I insist. Now, the only charge is here, and while they ask

for forty-eight hours he gave thirty-three. That is the only crime. Did

he pay too much for it? There is no evidence of it. Before I get through

I will show you that there is no evidence that he ever paid a dollar too

much for any service whatever.

Now, then, if the doctrine contended for by the Government is correct,

then a petition is the standard of duty and the warrant of action, and

if they gain upon this route they lose upon every other route. Let us

examine. There are three charges. First, false petitions. They were all

true. Second, false oaths. They offered to prove it, and then withdrew

it. Third, that while the petitions called for forty-eight hours he

granted thirty-three, and before you can find that that was fraudulent

you must understand the precise connections that this mail made with all

others, and it was incumbent upon them to prove, not an inference, but a

fact, that there was not only reason, but reason in money--sound reason

for expediting it instead of forty-eight to thirty-three. That is the

end of that route. There is not a jury on earth, let it be summoned by

prejudice and presided over by ignorance, that would find a verdict of

guilty upon the testimony in that route. It is impossible. Another child

gone.

44155. Let us see what we get there, and I have not got to my client

yet. First, filing false petitions, by Peck, Miner, Vaile and Rerdell.

When? On the 27th of June, 1879. Were they false? Let us see. Mr. Bliss,

speaking of these petitions contained in a jacket held in his hand,

dated the 29th of June, 1879, record, page 687, said: "We do not attack

the genuineness of these petitions." That is the end of that. So much

for that.

Second. A fraudulent order increasing service, and yet all the petitions

are admitted to be genuine, and the order was in accordance with the

petitions on the route. Before the order was fraudulent because it was

not in accordance with the petitions, and in this route it is a fraud

because it is in accordance with the petitions. Now, just take it.

Here is the route. Every petition is genuine, the oath is true, not

a petition attacked, the order in accordance therewith, and the only

evidence that the order is a fraud is that it was in accordance with

genuine petitions recommended by the people and by the representatives

of the people. That is all.

Let me tell you another thing. Expedition had been granted on the route

long before, and this was simply an increase of trips, and no charge was

made that the order granting the expedition ever was a fraud.

Third. Another fraudulent order by Brady, of April 17, 1880, and it

turns out that this order was in fact made by French. That was the only

evidence that it was fraudulent, but the mere fact that French made it

takes it out of this case, and you have no more right to consider

it than you would an order made in the Treasury Department. The only

objection to this order now is what? That it was in violation of the

petitions. How? That it took off one or two of the trips. That was the

fraud of the order of April 17, 1880. The fraud consisted in taking off

two or three trips that had been put on.

Now, let us see. The next fraudulent order was July 16, 1880. What was

that for? For putting the service back precisely as it was. Now, I want

you, gentlemen, to understand that, every one of you. Here is a charge

in the indictment of a fraudulent order that took off, say, two trips

from the service. That is a fraud they say. Then the next order put

those two trips back, and that they say is another fraud. It would have

been very hard to have made an order in that case to have satisfied the

Government; it was an order to decrease it; it was an order to put it

back where it was; that is, it was a fraud, consequently it was a fraud

to do anything about it. That is all there is in that case.

Let us boil it down. False petitions. That is the charge. The evidence

is that the petitions are all true. A false oath is the charge. The

evidence is that the oath is true. A fraudulent order decreasing the

service, another fraudulent order increasing the service, that is,

leaving it just where he found it. In other words, according to this

indictment, Brady committed a fraud in reducing the trips, and another

fraud by putting the trips back. I think it was only one trip that he

reduced. Now, that is all there is in that case. People may talk about

it one day or one year. That is all there is, and that is nothing.

38145. Fraudulently filing what? A subcontract with J. L. Sanderson. I

say you cannot fraudulently file a subcontract against the Government.

It is an impossibility. Besides all that, Mr. Sanderson filed his own

subcontract. There is no evidence that anybody else did file it or

present it for filing. It was not our contract; it was Sanderson's

subcontract. How comes that in his indictment? Let me tell you. In the

first indictment they had Sanderson; and when they copied that first

indictment, with certain variations to make this, they forgot this

part and put in the fraudulent filing of Sanderson's contract. It never

should have been in this case. It has not the slightest relationship.

The real charge of fraud in this route is that a retrospective order was

made, and this order bore date February 26, 1881, and was retrospective

in this: that it was to take effect from the 15th of January, 1881; but

understand me, this was Sanderson's route. He received that money, and

it has nothing to do with us. Still I will answer it. That retrospective

order gave pay from the 15th of January, 1881. Now, it seems that before

the order of February 26, an order had been made by telegraph, dated

15th of January, 1881, to Sanderson, and this telegraphic order was for

daily service on eighty-nine miles. The jacket order of February 26,

1881, was for daily service on the whole route from January 15, 1881.

If that order had been carried out he would have received pay for

daily service on the whole route, instead of for daily service on the

eighty-nine miles to which he was entitled. It turned out that the order

of February 26, 1881, was signed by Postmaster-General Maynard. The only

possible charge is that Sanderson received pay for a daily service on

the whole route from January 15, 1881, to February 26, 1881, instead of

eighty-nine miles. But we find in the table of payments introduced by

the Government, that for that quarter a deduction was made of three

thousand four hundred and twenty-two dollars and nineteen cents, showing

that the department could only have paid for the daily service on the

eighty-nine miles, and that is exactly what the daily service would come

to on the balance of the route. That ends that route. We had nothing to

do with it anyway. It was Sanderson. He filed his own contract, he

got his own orders, he collected his own money and settled with the

department. We have nothing to do with it and we will bid it farewell.

The next is No. 38156. First, filing false oath June 12, 1879. The oath

was filed May 6, 1879.. That is the end of that. I do not care whether

it is true or false, that is, so far as this verdict is concerned. I

care whether it is true or false, so far as my clients are concerned,

but so far as this verdict is concerned, it makes no difference. There

is a fatal variance. Second, it is alleged that Brady made a fraudulent

order June 12, 1879. The order of June 12, 1879, was made by French.

There is another fatal variance. You have no right to take it into

consideration. French is not one of the parties here. Third, sending a

subcontract of Dorsey and filing it. As I told you before, you cannot by

any possibility thus defraud the Government; not even if you set up

nights to think about it. There is no proof that the subcontract was a

fraud. Let us have some sense. It is an absolute impossibility to commit

this offence, and therefore we will talk no more about it. Fourth, the

fraudulent order of Brady increasing the distance four miles. This was

done on the 20th of December, 1880. That is the only real charge in this

route. I turn to the record and find from the evidence, on page 943,

that the distance was from five to six miles, according to the

Government's own proof. Beside all that, the order of which they

complain is not in the record. It was never proved by the Government and

never offered by the Government, so far as I can find. That is the end

of that route. The only charge in it is that they increased the distance

four miles, and the evidence of the Government is that it was from five

to six.

The next is 46132. Overt acts: Filing a false oath by everybody June 24,

1879. The evidence shows it was filed April 11, 1879. That is the end

of that. No matter whether it is true or false, it is gone. Second, the

fraudulent filing of a subcontract. Well, I have shown you that that

cannot be fraudulent. The subcontract of Vaile shows that Vaile was

to receive one hundred per cent. It was executed April 1, 1878, in

consequence, as my friend General Henkle explained, of a conspiracy made

on the 23d of May following. The service commenced July 1, 1878. There

could have been no fraud in it. It was filed as a matter of fact May 24,

1879, and not June 4. Even if it had been a fraud, which is an

impossibility, the description is wrong and the variance is fatal. There

is no evidence that any order was fraudulent. Every one in this case is

supported by petitions, and every petition is admitted to be honest, or

proved to be honest and genuine. There is no proof at all, and not the

slightest attempt on the part of the Government to prove that there was

any fraud on this route. So much for that.

No. 46247. Let us see just where we are. First, filing false and forged

petitions. When? July 26, 1879. By whom? By Peck, Dorsey, and Rerdell.

Now, after they had solemnly written that in the indictment, and after

it had been solemnly found to be a fact by the grand jury, the attorneys

for the Government come into court and admit during the trial that all

the petitions upon this route were genuine; every one. It was admitted,

I say, that every petition was genuine. Read from page 1008 of the

record and there you will find what the Court said about these very

petitions:

"I shall take the responsibility of dispensing with the reading of

petitions when there is no point made with regard to them."

The petitions were so good, they were so honest, they were so genuine,

they were so sensible, that the curiosity of the Court was aroused

to find what on earth they were being read for on the part of the

prosecution. You remember it. Every one genuine, honor bright, from the

first line to the last. In reply to the Court at that time Mr. Bliss

said:

"There is no point made as to the increase of trips. These--" Meaning

the petitions--"relate to the increase of trips. There is no point made

there."

It is thus admitted that every petition was genuine. Second, a

fraudulent order increasing one trip. This order was never proved by the

Government. It was not even offered by the Government, so that the

route stands in this way: First, a charge of false petitions; second,

an admission that the petitions were all genuine; third, a charge that

a fraudulent order was made; fourth, no proof that the order was made.

That is all there is to that. And that is the end of it.

No. 38134. First, sending false and fraudulent petitions, and filing

the same. When? July 8,1879. On page 1031 of the record I find the

following:

"Mr. Bliss. The petitions under your Honor's ruling I am not going to

offer."

Why? Because they were all genuine. The court had mildly suggested

the impropriety of the Government proving its case by reading honest

petitions. Consequently, when it came to this, the next route, he said:

"The petitions under your Honor's ruling I am not going to offer."

Why? Because they are all honest, and under a charge in the indictment

that they are all fraudulent he did not see the propriety of reading

them. That is what he meant. This remark was made because the Government

admitted these petitions to be honest. When were these petitions filed?

The indictment says July 8. The evidence says May 6. So that if every

petition had been a forgery you could not take them into consideration

on this route. It is charged that Miner & Co. signed and placed in

Brady's office a false oath on July 8. On record, page 1032, it appears

that it was filed May 8, 1879, and not as described in the indictment.

The pleader has the privilege of describing it right or describing it

wrong. If he describes it right it can go in evidence. If he describes

it wrong it cannot go in evidence, and they have no right to complain if

you throw out evidence that they make it impossible for you to receive.

It has been charged with regard to this affidavit that Dorsey was not at

that time contractor, and therefore had no right to make the affidavit.

The affidavit was made April 21, 1879, and the regulation that such

affidavits must be made by the contractors was made July 1, 1879. That

is a sufficient answer. The next charge is a fraudulent order made by

Brady, July 8. The petitions were all admitted to be genuine. There was

no evidence that the order was not asked for by the petitions. There

was no evidence that the order in and of itself was fraudulent; not the

slightest. There is nothing like taking these things up as we go and

seeing what the Government has established. I know that you want to know

exactly what has been done in this case and you want to find a verdict

in accordance with the evidence.

Route 38140. Overt acts: First, making, sending, and filing false

petitions. When were they made and sent? The 23d day of May, 1879. There

were some petitions filed May 10, 1879, and there was a letter of the

same date. They are misdescribed. They are all genuine but they are out

of the case as far as this is concerned. I will tell you after awhile

where they are applicable in this case. A letter of Belford, of April

29, 1879, and a letter of Senator Chaffee, of April 24, 1879, we have,

while the indictment charges that they were all filed May 23, 1879.

There is an absolute and a fatal variance. All these petitions, however,

are admitted to be genuine and honest. See record, pages 1001-1003. The

charge in the indictment is that they were forged, false, and altered.

The admission in open court, by the representatives of the Government,

is, that they were genuine and honest. There is the difference between

an indictment and testimony. There is the difference between public

rumor and fact. There is the difference between the press and the

evidence. The next is that a false oath was filed by John W. Dorsey on

the 23d of May, 1879. When was that oath filed? April 30, 1879. A fatal

variance. Yet the man who wrote the indictment had the affidavit before

him. Why did he not put in the true date? I will tell you after awhile.

Did he know it was not true when he put it in the indictment? He did,

undoubtedly.

Third. Fraudulent order of May 23; reducing the time from nineteen and

three-quarter hours to twelve hours. As a matter of fact, no order was

made on the 23d of May upon this route. It is charged in the indictment

that it was made on the 23d of May. The evidence shows that it was on

the 9th of May. There is a fatal variance, and that order cannot be

considered by this jury as to this branch of the case. Here is an order

of which they complain. They charge that it was made on the 23d day of

May, the same day the conspiracy was entered into. As a matter of fact,

it was made on the 9th of May. On this description it goes out, and it

goes out on a still higher principle: That an order could not have been

made on the 9th of May in pursuance of a conspiracy made on the 23d of

that month. But I am speaking now simply as to the description of this

offence.

Fourth. A subcontract was fraudulently filed. I have shown you it is

impossible to fraudulently file a contract; utterly impossible. All the

agreements imaginable between the contractor and subcontractor cannot

even tend to defraud the Government of a solitary dollar. I make a

bid and the contract is awarded to me at so much. The mail has to be

carried. The Government pays, say five thousand dollars a year, it

makes no difference to the Government who carries the mail under that

contract, so long as it is carried. It is utterly impossible to defraud

the Government by contracting with A, B, C, or D. That is the end of

that route. The order itself is misdescribed, and that is all there is

in it. When the order is gone everything is gone.

No. 38113. Overt acts: Fraudulently filing a subcontract. We do not need

to talk about that any more. Second, Brady fraudulently made an order

for increase of trips. The evidence is that an increase was asked for by

a great many officers, a great many representatives, and by hundreds

of citizens, and that the increase was insisted upon not only by the

officers who were upon the ground, but by General Sherman himself. I do

not know how it is with you, but with me General Sherman's opinion

would have great weight. He is a man capable of controlling hundreds of

thousands of men in the field--a man with the genius, with the

talent, with the courage, and with the intrepidity to win the greatest

victories, and to carry on the greatest possible military operations.

I would have nearly as much confidence in his opinion as I would in the

guess of this prosecution. In my judgment, I would think as much of his

opinion given freely as I would of the opinion of a lawyer who was paid

for giving it. General Sherman has been spoken of slightingly in

this case; but he will be remembered a long time after this case is

forgotten, after all engaged in it are forgotten, and even after this

indictment shall have passed from the memory of man.

No. 38152. Overt acts: Fraudulent orders of August 3, 1880,

discontinuing the service and allowing a month's extra pay for the

service discontinued. That is all. May it please your Honor, in this

route the only point is, had the Postmaster General the right to

discontinue the service? And if he did discontinue it, was he under any

obligation to allow a month's extra pay? It is the only question. I call

your Honor's attention to the case of the United States against Reeside,

8 Wallace, 38; Fullenwider against the United States, 9 Court of Claims,

403; and Garfielde against the United States, 3 Otto, 242. In those

cases it is decided not only that the Postmaster-General has the right

to allow this month's extra pay, but he must do it. That is in full

settlement of all the damages that the contractor may have sustained.

The Court can see the very foundation of that law. For illustration, I

bid upon a route of one thousand miles. I am supposed to get ready to

carry the mail. Five hundred miles are taken from that route. The law

steps in and says that for that damage I shall have one month's extra

pay on the portion of the route discontinued. It makes no difference

whether I have made any preparation or not. The law gives me that and no

more. If I should go into the Supreme Court and say that my preparations

had cost me fifty thousand dollars, and the month's extra pay was

only five thousand dollars, I have no redress for the other forty-five

thousand dollars. That is all that is charged in this instance. And

if the Second Assistant Postmaster-General or any one else had done

differently he would have acted contrary to law. He is indicted for

doing in this case exactly what is in accordance with the law. Let us

get to the next route. That is all there is in this.

No. 38015. Overt acts: Sending a false oath. When? May 21. The evidence

shows that on May 14 it was sent, on May 15 it was filed. A fatal

variance, no matter whether it is true or false. That oath is gone. That

is the end of it.

What else? They did not show that the oath was false. First, it is

misdescribed in the indictment as to the date it is filed; second, the

evidence shows that it is honest and genuine, which is also fatal. That

is the end of this route, as far as the indictment is concerned. Second,

that Dorsey made and Rerdell filed false petitions. There is no proof

that any of the petitions were false, no proof that any were forged, and

no proof that John W. Dorsey or M. C. Rerdell had anything to do with

that route one way or the other. All the petitions on record, page

1160, are admitted to be genuine except one. One petition asking for a

ten-hour schedule was attacked and only one. But this petition was filed

May 14, 1879, and that is out so far as the indictment is concerned.

The Court. What is the date of the indictment?

Mr. Ingersoll. The 23d day of May. The indictment says that this was

filed July 10, 1879; the evidence says May 14, 1879. A fatal variance.

It is not the same one they were talking about. They did not find the

petition they described. It is their misfortune. Now, here is only one

petition attacked. Who attacked it? Mr. Shaw. See page 1159. They were

going to show that that was a forgery, and they were going to show it by

Shaw. That was the only one they attacked. What does Shaw say?

"I signed a petition for increase of service and expedition upon

that route, but I did not read the petition. If I had, I should have

discovered a ten-hour schedule."

He would not have discovered it if it had not been there, would he? That

shows it was there.

"I would not have recommended a ten-hour schedule on a seventy-mile

route."

He was the man that was going to prove that ten hours was not there. But

it shows that he was not able to do it, because he first swore that he

never read it, and second, that he would not have signed it if he had.

Good by, Mr. Shaw. That is all there is as to that matter. The Court

will understand I am going now upon what is in the indictment, and not

what has been thrown in from the outside.

The Court. I understand that.

Mr. Ingersoll. I am going according to the strict letter of this

indictment. I am holding these gentlemen to the law. That is what the

law is for. You cannot come into this court and throw seven or eight

cords of paper at a man and say, "You are guilty." They have managed

this case after that fashion, but I propose to bring them back to the

law.

Route 35051. First. Signing, sending and filing false petitions. When?

August 2, 1879. There is no evidence of any petitions being filed on

that day--none whatever. The only thing near it is a letter of Frederick

Billings, on record, page 1217. This letter was dated July 31, 1879.

Under the charge of signing, sending and filing false petitions, the

only evidence is that a man by the name of Billings wrote a letter, and

there is not the slightest testimony to show that a solitary word in

that letter was false--not one. Nothing to connect it with Mr. Billings;

no evidence that he ever spoke to him on the subject; no evidence that

Billings knew who was carrying the mail; no evidence that he ever knew

or did a thing except to write that letter, and he was interested, I

believe, in the Northern Pacific railroad. Now, that is everything there

is there; that is all there is in that case. Nobody has tried to show

that the letter of Billings was not true.

What else? A fraudulent order of August, 1879. Who made it? The

indictment says Brady made it. The evidence says it was signed by

French, and it was in accordance with Billings' letter. Is there any

fraud now in that route? Let us be honest. False petitions: Not one

filed. False oath: Not one attacked. Simply a letter that we did not

write, and that there is no evidence that we ever asked to have written.

That is the end of that. But they cannot even get the letter in,

gentlemen. They did not describe it right.

The next route is 40104. Overfacts: First. Fraudulently filing a

subcontract. That you cannot do. When did we file it? July. 23, 1879,

the indictment says. What does the evidence say? May 8, 1879. First,

we could not commit the offence; secondly, you could not prove it under

this description.

Second. Filing a false oath. When did we file it? July 23. That is what

the indictment says. What does the evidence say? November 26, 1878.

A fatal variance. See record, page 1305. That is the end of that. The

indictment is for something. You have got to follow it, and it certainly

is not as hard work to write an offence against a man as it is to prove

it. If they cannot write an offence, you certainly ought not to find the

man guilty. Besides all that, that oath was not even impeached, it was

not ever attacked. There was not a word said upon the subject except in

the indictment. It was charged to be false, and not one word of evidence

was offered to this jury to show that it was false.

Third. An alleged fraudulent order of increase by Brady, July 23, 1879.

Brady never signed any such order. It was signed by French. That is the

end of it, no matter whether it was good or bad, honest or dishonest.

That is the end of it, and yet there is not a particle of evidence to

show that it was dishonest, but you must hold them to their own case as

they have written it, and not as they wish it was now.

Fourth. A fraudulent order of April 10, 1880, allowing one month's

extra pay on the service reduced. This order was not even proved by the

Government. As a matter of fact, it was not offered by the Government;

and if it had been offered, and if it had been proved, it would have

only established the fact that Mr. Brady acted in accordance with law.

Now, we come to some more. 44160. First, filing false petitions. When

did we file them? July 16, 1880. The proof is that they were filed long

before that time The proof is that Peck, Dorsey and Rerdell had nothing

to do with this route after the 1st of April, 1879, and the petition

claimed to be signed by Utah people and claimed to be fraudulent in the

petition marked 19 Q. It was filed on the 7th day of May, 1879.

That is a fatal variance. This indictment charges it was filed July 16,

1880. The petition cannot be considered.

There is another petition marked 20 Q, claimed to have been written by

Miner, upon which the name of Hall is said to have been forged. It has

no file mark whatever, and consequently cannot be the petition referred

to in the indictment. That was filed. That, however, has been explained

by General Henkle fully. This petition was identified by McBean, and was

signed by him, and he recognized the signatures of many of the citizens

of Canyon City. Mr. Merrick admitted that the petition, 19 Q, was

never acted upon. As a matter of fact, orders had been made before the

petition was received, which shows conclusively that they were not acted

upon. The petition marked 20 Q, to which Hall's name was, as is claimed,

forged, was never filed, and was consequently never acted upon. This

charge stands as follows: Two petitions, one being filed May 17, 1879--a

fatal variance--and the other not filed--another fatal variance. These

petitions are both described as having been filed July 16, 1880. The

variance is absolutely fatal, and these petitions cannot be considered.

Besides, the order was made before the petition 19 Q was filed.

Second. The fraudulent order by Brady for increase of trips, July 16,

1880. The only objection to this route is that the expedition was

made before service was put on. This was in the power of the

Postmaster-General. It has been done many times, and is still being done

by the Postoffice Department, and the fact that it was done in this case

does not even tend to show that any fraud was committed or intended.

That is all there is in that case. The petitions were never acted

upon. One was never filed, and the other is not described, or rather is

misdescribed.

Route 48150. Overt Acts: A fraudulent order by Brady reducing service to

three trips a week, and allowing a month's pay on service dispensed with

July 26, 1880. This point, gentlemen, I have already argued.

Whenever the Post-Office Department dispenses with any service it is

bound to give one month's extra pay any time after the contract has been

made and any time after the bid has been accepted. It is bound to give

the month's extra pay on the service dispensed with, and this question,

as you heard me say a little while ago, has been decided by the Supreme

Court in Garfield's case. This route was operated by Sanderson. He was

the subcontractor, and, according to the subcontract filed and presented

here in evidence, he received every cent of the pay. We could have had

no interest in perpetrating any fraud upon that route. Why? Because

another man, J. L. Sanderson, received every dollar, and we not one

cent.

Another fraudulent order of increase, August 24, from Powderhorn to

Barnum, seven miles. No fraud was shown, but the order in fact, was

made for the benefit of Sanderson and not for the benefit of any of the

defendants in this case. In other words, it was made for the benefit

of the people, it was made because they wished to reach another

post-office.

Another charge is that the subcontract made by Sanderson was filed

September 18, 1878. Recollect the charge is about filing this

subcontract. The fact is it was filed in 1878 to take effect from July

1, 1878. See record, page 1406. On this very route the subcontract took

effect the 1st of July, 1878, with Sanderson, and from that moment until

now he has received every dollar. This route, as a matter of fact, is

out of the scheme. Sanderson carried the mail from the 1st of July,

1878, until the end of that contract, the last day of June, 1882. So

much for that route. It is gone. Nobody can get it back, either, in this

scheme.

Route 40113. Overt Acts: Filing of a false oath. When? June 3, 1879.

When was it filed? May 7, 1879. That oath is gone. Was it false? They

did not attack it. They never impeached it. Good.

Second. False petitions filed. When? June 3, 1879. All the petitions

were filed prior to May 10, 1879. They are gone. One was filed May 23,

but none was filed as alleged on June 3. They are gone. A magnificently

written instrument. A fatal variance as to every petition. And yet not a

solitary petition was attacked. Every petition was genuine and honest.

Third. A fraudulent order by Brady for increase and expedition. This

order was asked for by the petitions. No fraud was established. See

record, page 1503 on this route; also page 2159.

Fourth. They also charge that Brady made a fraudulent order on the 4th

of January, 1881. But the Government never proved that order, never

offered any order of that date. That is the end of that order.

Fifth. A fraudulent order of February 11, 1881. This was not offered by

the Government, and no evidence was offered as to the existence of the

order, neither the jacket, nor the order, nor the petitions, so far as

I can find. That is the end of that. Every overt act so far, except

some of the orders, wrong. The overt acts charged were filing fraudulent

petitions. When? May 23, 1879. These are the petitions said to have been

gotten up by Wilcox. Mr. Wilcox was a Government witness and he swore

that every petition was honest, that every name was genuine, and that in

order to get the names he did not circulate a falsehood, he circulated

only the truth. To use his own language, "I did only straightforward,

honest work." That is all there is on that.

44140 is the number of this route, and this evidence is on record, page

1568, and in regard to getting up these petitions you will recollect the

language used by the Court. His Honor said in effect clearly, "Every man

carrying the mail has the right to take care of his business. He has the

right to get up petitions. He has the right to call the attention of the

people to what he supposes to be their needs in that regard. He has

the right to do it; and the fact that he does it is not the slightest

evidence that he has conspired with any human being." Deny me the

right to attend to my own affairs? If I have taken the route from

the Government, and contract to carry the mail, tell me that I cannot

suggest to my fellow-citizens that they ought to have a daily mail

instead of a weekly? Tell me that I have not the right to talk it on the

corners, in every postoffice for which I start, and that if I do I am

liable to be pursued and convicted of an infamous offence? Every man has

the right to attend to his own affairs, and he has the right to get all

the people he can to help him. He has no right to go around lying about

it, but he has the right to call their attention to the facts the same

as you would have the right to get a road by your house; just exactly

the same as you would have the right to get a school-house built in

your district, no matter if you were to have the contract for making the

brick. You have a right to say what you please in favor of education,

no matter if you are an architect and expect to be employed to build the

schoolhouse, and any other doctrine is infinitely absurd.

There is another charge: That a false oath was filed on the 24th of May.

The affidavit was made by Mr. Peck, and I believe it has been admitted

that Mr. Peck never did anything wrong. Then there is alleged to be a

fraudulent order for increase, signed June 26, and they never introduced

the slightest evidence tending to show that there was fraud in the

order. It was made in accordance with the petitions. It was made in

accordance with what we believed to be the policy of the Post-Office

Department. And allow me to say to your Honor that I think that the

general policy of the Post-Office Department, as disclosed in the

documents that have been presented in the reports made to Congress that

have become a part of this case, I think even from that evidence I have

the right to draw an inference as to what the policy of the department

was.

The Court. I have no doubt in the world as to the views of the

Post-Office Department in regard to that subject. The Court refused to

receive evidence on that subject in defence, for the simple reason that

the Court was of opinion that no Second Assistant Postmaster-General

had the authority to establish any policy for this Government or for any

branch of this Government. The policy of the Government is to be found

in its laws, and the Court was unwilling to allow a Second Assistant

Postmaster-General to set up his policy in his defence against a charge

in this court. He had no right to have a policy.

Mr. Ingersoll. We never set up the policy of the Second Assistant. We

never asked to be allowed to prove the policy of the Second Assistant.

We never imagined it, nor dreamed of it, nor heard of it until this

moment. What we wanted to show was the policy, not of the Second

Assistant, but of the Postmaster-General. But I am not speaking now upon

that branch.

The Court. The Postmaster-General by law is the head of the department

of course. But several assistants were given him by law, and he had the

authority to apportion out the business of the department amongst those

several assistants. The particular business of the department pertaining

to the increase of service and expedition of routes belonged under this

apportionment to the Second Assistant Postmaster-General. His acts,

therefore, are to be looked to.

Mr. Ingersoll. I do not claim, if the Court please, that his policy had

anything to do with it. I simply claim that from the orders that have

been introduced, not of the Second Assistant, from the books that have

been introduced, showing the views of the Postmaster-General, not of

the Second Assistant. I also admit that if the Postmaster-General had

ordered by direct order the Second Assistant Postmaster-General to

expedite every one of these routes, even then there could have been such

a thing as a conspiracy to expedite them too greatly, and to receive

money from every man for whom they were expedited. I understand that.

But in the absence of any proof that it is so, all I have ever insisted

was that the general policy of the head of the department might be

followed by any subordinate officer without laying himself open to the

charge that he had been purchased. That is all.

Now, gentlemen, all these things had been asked. They had been earnestly

solicited by hundreds of Congressmen, by Senators, by Judges, by

Governors, by Cabinet officers and by hundreds and hundreds of citizens.

Now, let me recapitulate all the overt acts--and I have gone over

them all now excepting one, and I will come to that presently. In the

indictment there are twelve charges as to filing false petitions.

There are ten charges as to false oaths. There are seven charges as to

fraudulently filing subcontracts; and the evidence is that the ten oaths

are substantially true; that it is impossible to fraudulently file

a subcontract; and as to the petitions, that every one is absolutely

genuine and honest with the exception of three. They prove that the

words "schedule, thirteen hours," were inserted; that is, they tried to

prove that by Mr. Blois, who is an expert on handwriting, as has been

demonstrated to you. One with thirteen hours inserted in it, and the

very next paragraph in that same petition begs for faster time. I have

not the slightest idea that that ever was inserted by anybody. I believe

it was in there when it was signed. And why? There would have teen,

there could have been, there can be, no earthly reason for inserting

those words. You cannot imagine a reason for it.

Now, that is thirteen hours. Then there is another one they say had some

names of persons living in Utah, and we say that that is not described

properly; not only that, but that it was never acted upon, and in my

judgment that whole thing is a mistake and not a crime, because there

were plenty of petitions without that. There was no need of it. All the

other petitions have either been proved, or have been admitted to be

absolutely genuine.

Now, I have gone over every overt act except payments, and when it was

said here in court, or when the objection was made to these being proved

as overt acts, the Court will remember that again and again and again,

the prosecution denied that they were offered as overt acts.

The Court. I never understood them as being offered as overt acts.

Mr. Ingersoll. At that time the Court made just the remark that your

Honor has made now. He said: "But what are the payments?" Now, I will

take up the payments, and we will see whether there are any overt acts

in the payments, gentlemen.

Now, let me call your attention to that magnificent rule that has been

laid down by the Court. When you describe an offence you are held by

the description. When it is said that I made a false claim against

the Government in a conspiracy case, for instance, that I conspired to

defraud the Government, that I presented a false claim, it may be that

the laxity or lenity of pleading might go the extent of saying that

the pleader need not state the amount of that false claim, but if the

pleader does state the amount of that false claim he is bound by that

statement. Now, that is my doctrine.

The Court. What I understood in regard to the evidence of the payments

is this: The charge was a conspiracy to defraud and the averment was

that the fraud had been completed, and this evidence of payments was to

show that the fraud had been carried out.

Mr. Ingersoll. That is all. Now, let us see if this can be tortured into

an overt act. I now come to the presentation of false claims charged

to have been presented and collected by these defendants. It is a short

business. On the route from Kearney to Kent the charge is that Peck

and Vaile presented false claims on the third quarter of 1879 for five

hundred and fifty dollars and seventy-two cents. The entire pay for that

quarter, three trips and expedition, was seven hundred and ninety-five

dollars and seventy-eight cents. And there is no charge that the

increase of trips was fraudulent. Only the expedition was attacked. The

three trips, according to the old schedule price, came to seven hundred

and thirty-five dollars and eighty-one cents, all of which was honestly

carried, honestly earned. Now, deducting from the pay seven hundred and

ninety-five dollars and seventy-eight cents, the amount of the three

trips on the old schedule honestly performed, seven hundred and

thirty-five dollars and eighteen cents, if the expedition was

fraudulent, we have a fraudulent claim of sixty dollars and sixteen

cents. And yet the Government charges that we made a claim of five

hundred and fifty dollars and seventy-two cents. Not one cent is allowed

for carrying the two additional trips without expedition.

There is another trouble about this. It is charged that Peck and Vaile

presented this claim for their benefit. The record, page 386, shows that

Peck did not present this claim; that it was presented by H. M. Vaile;

that H. M. Vaile received the warrant for the full amount; that he

held a subcontract at that time for every dollar. This is another fatal

variance, and the evidence of Vaile is that every dollar belonged to

him; that not a dollar of that money was ever paid to any other one of

the defendants; that he paid all the expenses; that he paid the debts,

and that there never went a solitary cent to any Government official. So

much for that payment.

The next charge is that on route 41119, from Toquerville to Adairville,

Peck presented a false claim for the third quarter of 1879 for two

thousand four hundred and sixty dollars and fourteen cents. The pay for

that quarter was three thousand six hundred and twenty-eight dollars

and fourteen cents for seven trips and expedition. The pay for the three

trips on the old schedule was eight hundred and seventy-six dollars,

a difference of two thousand seven hundred and fifty-two dollars and

fourteen cents. And yet the Government charges that the false claim

presented was two thousand four hundred and sixty dollars and fourteen

cents. If they give the figures they must give them correctly. If I am

charged with presenting a claim against the Government for two thousand

four hundred and sixty dollars, that is not substantiated by showing

that I presented a claim for two thousand seven hundred dollars. If you

give the figures you must stand by the figures, and you are bound by

them. You cannot charge one thing and prove something else. This is a

fatal variance.

In addition to this fact, we find the deductions for failures in that

very quarter amounted to five hundred and forty dollars and forty-two

cents, and this deducted from the other amount leaves two thousand, two

hundred and eleven dollars and seventy-two cents. So that in both

cases the variance is absolutely fatal. I am showing you these things,

gentlemen, so that you may see that there is in this case no evidence to

fit the charges in this indictment.

44140, Eugene City to Bridge Creek. It is charged that Peck and Dorsey

presented a false account for the third quarter of 1879 for four

thousand seven hundred and eighty-three dollars and ninety-nine cents.

The pay for three trips with expedition was four thousand, six hundred

and eighty-nine dollars and twenty-two cents; the pay for one trip on

the old schedule was six hundred and seventeen dollars, a difference

of four thousand and seventy-two dollars and twenty-two cents. The

Government says the difference was four thousand seven hundred and

eighty-three dollars and ninety-nine cents, an absolutely fatal

variance.

Now, as a matter of fact, there were deductions in that quarter of one

thousand nine hundred and thirty-two dollars and eighty-three cents,

and this is deducted from the entire pay, leaving only as a claim three

thousand seven hundred and sixty-six dollars and thirty-nine cents.

And yet the Government charges that we presented a false claim for four

thousand seven hundred and eighty-three dollars and forty-nine cents. It

will not do. It is a fatal variance. But when we take into consideration

that there is no claim that the increase of trips was fraudulent,

only the expedition, and that by the old schedule one trip came to six

hundred and seventeen dollars, that three trips came to one thousand

eight hundred and fifty-one dollars, and that added to deductions

would make three thousand seven hundred and seventy-three dollars and

eighty-three cents, to be deducted from four thousand six hundred and

eighty-nine dollars and twenty-two cents, it would leave as a fraudulent

claim, even if their claim was true, nine hundred and fifteen dollars

and thirty-nine cents.

Now, the next is 44155, The Dalles to Baker City. The false claim was

eight thousand eight hundred and ninety-six dollars, by Peck. The pay

per quarter was sixteen thousand six hundred and sixty-six dollars and

nine cents. The pay for three trips and expedition was seven thousand

seven hundred and seventy dollars--a difference of eight thousand

eight hundred and ninety-six dollars and nine cents. But there were

deductions, ninety-nine dollars and thirty-four cents, leaving eight

thousand seven hundred and ninety-six dollars and seventy-five cents.

But by making this claim the Government concedes that the expedition was

legal, and another trouble is that the payment on this route was made

to Vaile, not to Peck or Miner. It was made to Vaile, who was the

subcontractor for the full amount, and this is another fatal variance.

Now, route 46132, Julian to Colton. The charge is that Peck and Vaile

presented a fraudulent claim for the third quarter of 1879, for one

thousand six hundred and fifty seven dollars and seventy-one cents.

The pay for three trips and expedition is one thousand nine hundred and

fifty-four dollars and seventy-one cents. For three trips on the old

schedule it was eight hundred and ninety-one dollars, a difference of

one thousand and sixty-three dollars and seventy-three cents. A fatal

variance. Besides it was not Peck and Vaile. Vaile was the subcontractor

at full rates on this route. He presented the claim. He received

the entire pay. Another variance. Route 44160, Canyon City to Camp

McDermitt. The charge is that Peck and Vaile presented a false account

for the fourth quarter of 1879, for eleven thousand eight hundred and

nineteen dollars and sixty-six cents. It is charged in the indictment

that this was paid in pursuance of the order set out in the indictment,

and we find on page sixty-four that the order was dated July 16, 1880.

That was the order. No such payment was made in pursuance of that order

for the reason that an order was made nearly a year afterwards, and

the order of July 16, 1880, as set out in the indictment, was not

retrospective, a fatal mistake in their indictment. As a matter of fact,

the pay for the fourth quarter of 1879 was five thousand three hundred

and seventy-five dollars. There were deductions to the amount of three

hundred and fifty-two dollars and seventy-two cents and the balance was

five thousand and twenty-two dollars and twenty-eight cents, instead of

eleven thousand eight hundred and nineteen dollars and sixty-six cents.

And this was paid to Vaile, who was a subcontractor at full rates, and

the variance in the case is absurd and fatal.

Route 46247, Redding to Alturas. The charge is that Peck and Dorsey

filed a fraudulent account for the third quarter of 1879 for seven

thousand four hundred and eighty-five dollars and six cents. This was in

pursuance of the order set out in the indictment, and the only order set

out in the indictment is dated February 11, 1881. That is another fatal

variance.

The next route is 35051, Bismarck to Miles City. The charge is that

Miner and Vaile presented a false account for the fourth quarter of

1879, for fourteen thousand one hundred. The pay for the quarter for six

trips was seventeen thousand five hundred dollars. For three trips

under the old order the pay was eight thousand seven hundred and fifty

dollars, leaving eight thousand seven hundred and fifty dollars as the

outside sum that could have been fraudulent, and yet the Government

charges fourteen thousand one hundred dollars, an absolutely fatal

variance. Besides that, there were deductions in that very quarter of

four thousand five hundred and three dollars. This amount deducted from

eight thousand seven hundred and fifty dollars leaves four thousand two

hundred and fifty-six dollars and eleven cents as the greatest amount

that could by any possibility have been fraudulent.

Three routes are lumped together next in the indictment, 38134, 38135,

38140, 38134, Pueblo to Rosita; 38135, Pueblo to Greenhorn; and 38,140,

Trinidad to Madison.

The charge here is on page eighty-one of the indictment that Miner

presented a fraudulent account for the fourth quarter of 1879 on routes

amounting to two thousand seven hundred and seventy-six dollars and

forty-seven cents.

The greatest possible difference that could be made on route 38135 is

seven hundred and sixty-seven dollars and twenty cents. The greatest

difference that could be made on route 38134 is one thousand nine

hundred and forty dollars.

The greatest difference that could be made on route 38140 is six hundred

and eighty-nine dollars and fifty-one cents. These three differences

added together do not make what is charged in the indictment, three

thousand seven hundred and seventy-six dollars and forty-seven cents,

but as a matter of fact they amount to three thousand three hundred and

ninety-six dollars and seventy-one cents. This cannot be the fraudulent

claim described in the indictment.

But I find that on the first route there was a reduction of twelve

dollars and sixty cents, on the second route of one hundred and

fifty-four dollars and thirty-eight cents, and on the third of

thirty-eight dollars and two cents, and these deductions added together

make two hundred and five dollars and ninety cents, and deducted from

the three thousand three hundred and ninety-six dollars and seventy-one

cents leaves three thousand one hundred and ninety dollars and

eighty-one cents. And yet the Government charges that the fraudulent

claim was two thousand seven hundred and seventy-six dollars and

forty-seven cents. It is impossible that the amount of the claim said

to be fraudulent by the Government can be correct; but, as a matter of

fact, according to the evidence, there was no fraud upon any claim in

that route.

The next is route 38150, Saguache to Lake City. The charge is that Miner

presented a false account for two thousand two hundred and two dollars

and seventy-seven cents, and that he did this in pursuance of the order

set out in the indictment, and the only order set out is dated August

24, 1880. That is an absolutely fatal variance. As a matter of fact,

Sanderson was a subcontractor on this route from July 1, 1878, at

full rates, and he carried the mail from July 1, 1878. The route was

expedited on his oath and for his benefit. No point was made during

the trial that the oath was not true. And the pay was calculated upon

Sanderson's oath, and the money paid to him. The only claim is that

there was an error in the order of four thousand five hundred and

sixty-eight dollars per year, and it is admitted that the mistake was

afterwards corrected and the money refunded. You remember it, gentlemen.

Mr. Turner, in making up the account showing how much the expedition

would come to--and you understand the way in which they make up that

expedition--made a mistake and added to the expedition and the then

schedule the amount of the then schedule, four thousand and odd dollars.

He made the mistake and it was honestly made. No man would dishonestly

do it because it was so easy of detection, and that was his only fault,

gentlemen. The only crime he ever committed in this case was to make

that mistake. That mistake was afterwards discovered, and the money was

paid back by Mr. Sanderson; and, yet, that man has been indicted, has

been taken from his home charged with a crime. He has been pursued as

though he were a wild beast. He made one mistake. They could not prove

the slightest thing against him. There was no evidence touching him.

There was only one way for them, and that was to dismiss him with an

insult. You remember the case. Not one thing against that man--not one

single thing. He stands as clear of any charge in this indictment as any

one upon this jury. He is an honest man. It is admitted now there was no

conspiracy on this route either. It is Sanderson's route, not ours. Not

only that, but the Government says that it was not one of the routes

with which Vaile had anything to do, or in which Vaile had any possible

interest. The failure here is fatal to the indictment, and I shall

endeavor to show that it is fatal to the entire case.

The next route is 35105, Vermillion to Sioux Falls. It is charged that

Vaile and Dorsey presented a false account for the third quarter of

1879, for eight hundred and eighty-one dollars and fourteen cents.

The pay for six trips and expedition was one thousand and eighty-five

dollars and fifty-eight cents. The pay for two trips on the old schedule

was two hundred and four dollars and forty-four cents, showing a balance

for once, as stated in the indictment--it being the only time--of eight

hundred and eighty-one dollars and fourteen cents.

Parties are entitled to pay for the extra trips, and the number of

men and horses has nothing to do with the value of an extra trip.

You understand that. If I agree to carry the mail once a week for five

thousand dollars a quarter, and you wanted me to carry it twice a week,

then I get ten thousand dollars a quarter, no matter if I do it with the

same horses and the same men. That is not the Government's business.

You all understand that, do you not? Every time you increase a trip you

increase the pay to the exact extent of that trip, no matter whether it

takes more horses or not. If I agree to carry the mail once a month for

five thousand dollars a year, and you want me to carry it once a week

I am entitled to twenty thousand dollars, no matter if I do it with

all the same men and same horses. It is nobody's business. But, if the

Government wants the mail carried faster, then I am entitled to pay

according to the men and animals required at a more rapid rate. You all

understand that. But as a matter of fact, upon this route, Vaile was

the subcontractor at full rates, was so recognized by the Government and

received every dollar himself, and, consequently, the charge that it

was paid to John W. Dorsey is not true, and is a fatal variance. The

Government proved it was paid to Vaile.

Next we have two routes, 38145, Ojo Caliente to Parrot City, and

38156, Silverton to Parrot City. These routes are put together in the

indictment. It is charged that a false account was presented of six

thousand and four dollars and seventeen cents, and that this was done in

pursuance of an order set out in the indictment. The order set out is on

page forty-seven. It is in relation to route 38145. The order was made

not in relation to the other route. No order as to the other route was

made. This was made February 26, 1881, consequently the claim presented

for the third quarter of 1879 could not by any possibility have been in

pursuance of that order. That order was made in 1881. The payment for

the third quarter of 1879 could not by any possibility have been made in

pursuance of that order. The evidence shows that it was paid before, and

consequently there is a fatal variance.

Routes 40104, Mineral Park to Pioche, and 40113, Wilcox to Clifton--two

routes put together. The charge is a fraudulent presentation for the

third quarter of 1879, of seven thousand and sixty-four dollars and

seventy-two cents. The pay on the first route was ten thousand five

hundred and three dollars and sixty-two cents, on the second route

three thousand five hundred and twenty-eight dollars. No proof has been

offered that the expedition was fraudulent. Not a witness was called on

route 40113. Not a solitary petition was objected to, the truth of no

oath was called in question, the honesty of no order was attacked, and

how can you say that the claim was fraudulent? No order attacked, no

oath questioned, no petition impeached. The only evidence upon these two

routes was something read in regard to productiveness and the size of

the mail, and that is all.

Route 38113, Rawlins to White River. The charge is that John W. Dorsey

and Rerdell presented a false account for the third quarter of 1879 for

two thousand nine hundred and seventy-five dollars. The order set out

in the indictment was made March 8, 1881, consequently the variance is

absolutely fatal, and there is no allegation in the indictment that the

expedition was fraudulent.

Now I have gone through every route with the payments. As to the general

allegation of the amount of money fraudulently claimed and received, the

allegation in the indictment is that J. W. Dorsey received, by virtue of

these fraudulent orders, made in pursuance of the conspiracy, brought

to perfection by these overt acts, for the year ending the 30th day

of June, 1880, one hundred and twenty-four thousand five hundred and

ninety-one dollars. Good. The evidence shows that there was paid on

the seven Dorsey routes in all sixty-two thousand eight hundred and

thirty-one dollars and forty-six cents. That is fatal as to that.

But we will go further. One of these routes was turned over to Vaile by

Dorsey, route 35015, and the amount paid to Vaile was two thousand eight

hundred and thirty-seven dollars and sixteen cents. So that the amount

paid on the Dorsey routes, instead of being one hundred and twenty-four

thousand five hundred and ninety-one dollars, was in truth and in fact

fifty-eight thousand nine hundred and ninety-four dollars and thirty

cents.

Now, the charge is that this was all received by John W. Dorsey, whereas

the evidence shows that John W. Dorsey received three warrants, two for

eighty-seven dollars each, both of which were recouped, and one warrant

for three hundred and ninety-two dollars, and that is every cent he

ever received, according to the evidence in this case. There is what

you might call a discrepancy. The indictment says he got one hundred and

twenty-four thousand five hundred and ninety-one dollars. The evidence

shows that he got three hundred and ninety-two dollars and not another

copper. I shall insist that that is a variance. If it is not a variance,

I will take my oath it is a difference.

The second claim is that John R. Miner received upon the routes awarded

to him, and claimed to be his in the indictment, ninety-three thousand

and sixty-seven dollars for the fiscal year ending June 30, 1880. The

evidence is that as a matter of fact on all these routes the money was

paid to assignees and subcontractors, and that John R. Miner as a fact,

received not one cent from the Government.

The third charge is that Peck received for the same fiscal year one

hundred and eight-seven thousand four hundred and thirty-eight

dollars. The evidence shows that he received nothing. There is another

difference. Thus it will be seen that every link in the chain in this

indictment is either a mistake or a falsehood. Every other one is a

mistake and then every other one is a falsehood, and this indictment was

made by adding mistakes to falsehoods, and what the indictment weaves

the evidence reveals.

Now, why were these dates put in this indictment, gentlemen? We have now

gone over every overt act charged in this indictment. The result is that

not one of the charges set forth has really been sustained. Hereafter I

will notice some things that have been proved outside of the indictment.

Nearly every petition and letter is admitted to have been honest

and genuine. Those that have been attacked were misdescribed in the

indictment and the evidence has shown that they were substantially true.

There is a fatal variance between the allegation and the proof so far

as these charges in the indictment are concerned, and they are left

absolutely without a prop. The dates attached to the overt acts are

false. There is only one of the routes in which the petitions are

properly described, and that is route 44140, where the petitions are

alleged to have been and were filed on the 23d of May, and every one was

proved to have been genuine and honest. The dates in the indictment were

false. Now, why? Let me tell you, gentlemen. They had to deceive the

grand jury. It would not do to tell the grand jury these men conspired

on the 23d of May, and in pursuance to that conspiracy filed some

affidavits on the third day preceding. They had first to deceive the

grand jury and put in false dates for the filing of petitions, for the

filing of subcontracts and for the drawing of money. What else did they

want these false dates for? To deceive the Circuit Court, or rather

the Supreme Court--to deceive his Honor, because if the date of these

petitions, the date of these oaths, had been set forth in the indictment

it would have been bad. The Court would have instantly said, you cannot

prove a conspiracy on the 23d of May by showing acts in April previous.

So these false dates were put in, in the first place, to fool the grand

jury, and in the next place to keep this Court in the dark. It was

necessary to have a good charge on paper, and why? Did they expect to

win this case on that indictment? No; but they could keep it in court

long enough to allow them to attack and malign the character of these

defendants; they could keep it in court long enough to vent their

venom and spleen upon good and honest men, and justify in part the

commencement of this prosecution.

This forenoon I tried to strip the green leaves off the tree of this

indictment. Now I propose to attack the principal limbs and trunk. What

is the scheme of this indictment? I insist that the law is precisely the

same as to the scheme of the conspiracy in its description that it is

as to the description of an overt act. Now, what is the scheme of this

indictment? That is to say, the scheme of this conspiracy? We want to

know what we are doing. It is the great bulwark of human liberty that

the charge against a man must be in writing, and must be truthfully

described.

First. For the defendants, with the exception of the officers Brady

and Turner, to write, and procure the writing of, fraudulent letters,

communications, and applications. Now, let us be honest. Is there the

slightest evidence that a fraudulent letter was ever written? Is there

the slightest evidence that a fraudulent communication was ever sent to

the department? Not the slightest evidence.

Second. To attach to said petitions and applications forged names. Is

there any evidence of that except in one case, and the evidence in that

case is that the order was made before the petition was received and

that the petition was never acted upon. More than that, is there any

evidence as to who forged any names to any petitions? Not the slightest.

Which of these defendants are you going to find guilty upon that

petition when there is not the slightest evidence as to who wrote it?

What next? To have these petitions signed by fictitious names or with

the names of persons not residing upon the routes. Is there any evidence

of that kind? Is there any evidence that the signatures of real persons

were attached, and the real persons did not live upon the routes? I

leave it to you, gentlemen.

Fourth. To make and procure false oaths, declarations, and statements.

Those I shall examine.

Fifth. For William H. Turner falsely to indorse on the back of these

jackets false brief statements of the contents of genuine petitions. You

know what has become of that charge, gentlemen.

This indictment against Turner has been changed into a certificate of

good moral character. That is the end of the indictment, so far as he is

concerned, and I am glad of it. He is a man who fought to keep the

flag of my country in the air, and who lay upon the field of Gettysburg

sixteen days with the lead of the enemy in his body, and I am glad to

have the evidence show that he was not only a patriot, but an honest man

with a spotless reputation. I do not think that, in order to be a great

man, you have got to be as cold as an icicle. I do not think that if you

wish to be like God (if there is one) it is necessary to be heartless.

That is not my judgment. When I find that a man is honest I am glad of

it. When I find that a patriot has been sustained my heart throbs in

unison with his. What is the next? That Brady, for the benefit, gain,

and profit of all the defendants--and I emphasize the word all because

upon that I am going to cite to the court a little law--made fraudulent

orders; that is, for the benefit of Turner, Brady, and everybody else.

Eighth. That he caused these fraudulent orders to be certified to the

Auditor of the Treasury for the Post-Office Department. Ninth. That

Brady refused to enter fines against these contractors when they failed

to perform their service; that he fraudulently refused to impose these

fines. What is the evidence? The evidence is that the whole amount of

fines imposed by Brady was one hundred and twenty-six thousand eight

hundred and sixty-five dollars and eighty cents. That evidence is

given in support of the charge that he refused to impose them, yet the

imposition amounts to one hundred and twenty-six thousand dollars.

How much of that vast sum did he relieve the contractors from upon the

evidence? Twenty-three thousand dollars, leaving standing of fines

that were paid, one hundred and three thousand six hundred and seventy

dollars and twelve cents. That evidence is offered to show that he

conspired not to impose the fines. One hundred and twenty-six thousand

dollars imposed in fines, and only twenty-three thousand dollars

remitted. Yet the charge was, and an argument has been made upon it

before this jury, that the contractors agreed that he was to have fifty

per cent, of all fines that he took off. Think of a man making that

contract with aman having power to impose the fines. "Now, all you will

take off I will give you fifty per cent. of." There is an old story that

a friend of a man who was bitten by a dog said to him, "If you will take

some bread and sop it in the blood and give it to the dog it will cure

the bite." "Yes," he says; "but, my God, suppose the other dogs should

hear of it?" Think of putting yourself in the power of a man who has

the right to fine you. And yet that is a part of the logic of this

prosecution. The next charge is of fraudulently cutting off service and

then fraudulently starting it and allowing a month's extra pay. That

happened, I believe, in two cases--thirty dollars in one case and

something more in the other.

The Court. Thirty-nine dollars.

Mr. Ingersoll. Then the case is nine dollars better than I thought.

Twelfth. By the defendants fraudulently filing, subcontracts. That I

have already shown is an impossible offence. All these things were done

for the purpose of deceiving the Postmaster-General. Now, the Court

has already intimated that we have no right to say that the

Postmaster-General would be a good witness to show whether he was

deceived or not, and that it may be that his eyes were sealed so tightly

that he has not got them open yet. But whether they can prove it by him

or by somebody else they have got to prove it in order to make out this

case.

That is the scheme of this indictment. It makes no difference whether

the Postmaster-General has found out that he was deceived or not. The

jury have got to find it out before they find a verdict against the

defendants. It is possible that the Postmaster-General thinks he was not

deceived or that he was; I do not know what his opinion is and do not

care. They have got to prove it by somebody. I do not say they can prove

it by him. I do not know. This is the scheme, and what I insist is that

this scheme must be substantiated and must be proved precisely as it has

been laid without the variation of a hair. You must prove it as you

have charged it, and you must charge it as you prove it. It is simply a

double statement. I wish to submit some authorities to the Court upon

this question: Must the exact scheme be proved? First, I will refer the

court to the tenth edition of Starkie, page 627. * * *

"It is a most general rule that no allegation which is descriptive of

the identity of that which is legally essential to the claim or charge

can ever be rejected. * * * As an absolute and natural identity of

the claim or charge alleged with that proved consists in the agreement

between them in all particulars, so their legal identity consists in

their agreement in all the particulars legally essential to support the

charge or claim, and the identity of those particulars depends wholly

upon the proof of the allegation and circumstances by which they are

ascertained, limited and described."

No matter whether the description was necessary or unnecessary:

"To reject any allegation descriptive of that which is essential to a

charge or a claim would obviously tend to mislead the adversary. * * *

It seems, indeed, to be a universal rule that a plaintiff or prosecutor

shall in no case be allowed to transgress those limits which in point

of description, limitation, and extent he has prescribed for himself; he

selects his own terms in order to express the nature and extent of his

charge or claim, he cannot therefore justly complain that he is limited

by them. * * * As no allegation therefore which is descriptive of any

fact or matter which is legally essential to the claim or charge can

be rejected altogether, inasmuch as the variance destroys the legal

identity of the claim or charge alleged with that which is proved, upon

the same principle no allegation can be proved partially in respect to

the extent or magnitude where the precise extent or magnitude is in its

nature descriptive of the charge or claim."

Nothing can be plainer than that. I refer also to Starkie on Evidence,

7th American edition, vol. 1, page 442. There he says:

"In the next place it is clear that no averment of any matter essential

to the claim or charge can ever be rejected, and this position extends

to all allegations which operate by way of description or limitation of

that which is material."

I also cite Russell on Crimes, 9th American edition, vol. 3, page 305,

and Roscoe's Criminal Evidence, 7th edition, page 86.

I now call the attention of the Court to the case of Rex vs. Pollman and

others, 2 Campbell, 239. I may say before reading this decision that,

in my judgment, so far as the scheme of this indictment is concerned, it

should end this case:

"This was an indictment against the defendants which charged that they

unlawfully and corruptly did meet, combine, conspire, consult, consent

and agree among themselves and together, with divers other evil-disposed

persons, to the jurors unknown, unlawfully and corruptly to procure,

obtain, receive, have and take, namely, to the use of them, the said F.

P., J. K. and S. H., and of certain other persons to the jurors likewise

unknown, large sums of money, namely, the sum of two thousand pounds,

as a compensation and reward for an appointment to be made by the lord's

commissioners of the treasury of our lord the king of some person to a

certain office, touching and concerning His Majesty's customs, to wit,

the office of a coast waiter in the port of London, through the corrupt

means and procurement of them, the said F. P., J. K. and S. H., and of

certain other persons to the jurors unknown, the said office then and

there being an office of public trust, touching the landing and shipping

coastwise of divers goods liable to certain duties of custom."

The indictment went on and stated various overt acts in furtherance of

the conspiracy.

"There were several other counts which all laid the conspiracy in the

same way."

Now I come to the part of the case which, in my judgment, affects this:

"It appears that the defendants Pollman, Keylock and Harvey had entered

into a negotiation with one Hesse to procure him the office mentioned in

the indictment for the sum of two thousand pounds, which they had

agreed to share among themselves in certain stipulated proportions; but

although this money was lodged at the banking house of Steyks, Snaith &

Co, in which the defendant Watson was a partner, and he knew it was to

be paid to Pollman and Keylock upon Hesse's appointment, there was no

evidence to show that he knew that Sarah Harvey was to have a part of

it, or that she was at all implicated in the transaction."

He was a co-conspirator, and he knew that the money was to be deposited

at this place.

He knew that, but he did not know that Sarah Harvey was to have a part

of it.

"Lord Ellenborough threw out a doubt whether as to Watson the indictment

was supported by the evidence."

The evidence being that Watson did not know that it was to be divided in

the precise way stated in the indictment. Manifestly, they need not have

stated in the indictment how it was to be divided; but having stated it,

the question is: Are they bound by the statement? Let us see:

"The attorney-general contended that the words in italics coming under

a _videlicet_ might be entirely rejected. The sense would be complete

without them. The indictment would then run that the defendants

conspired together to obtain a large sum of money as a consideration

and reward for appointment to be made by the lord's commissioners of the

treasury. This was the corpus delicti. The use to which the money might

be applied was wholly immaterial. The offence of conspiring together

would be complete however the money might be disposed of."

True.

"There was no occasion to state this, and the averment might be treated

as surplusage. Suppose the manner in which the money was to be disposed

of had been unknown. Would it have been impossible to convict those

engaged in the conspiracy? But, without rejecting the words, the

variance was immaterial. The charge in the indictment had been

substantially made out as laid.

"Dallas and Walton, of counsel for Watson, denied that the words could

be rejected, though laid under a videlicet, as they were material, and

they were not repugnant to anything that went before. The application

of the money might be of the very essence of the offence. Suppose it had

been obtained for the use of the lords of the treasury, who would make

the appointment: would not this be a much greater crime than if the

money had been obtained for the benefit of a public charity?"