"But if the words were rejected then the variance was more palpable. In
that case, there being no mention of any persons to whose use the money
was obtained, the necessary presumption was that it was obtained to the
use of the defendants themselves."
That is good sense.
"The evidence shows, however, that Watson was to have no part of it,
and that he was utterly ignorant of the manner in which it was to be
distributed.
"Lord Ellenborough. There can be no doubt that the indictment might have
been so drawn as to include Watson in the conspiracy. Even if the manner
the money to be applied was unknown, this might have been stated on the
face of the indictment, and then no evidence of its application would
have been required. The question is, whether the conspiracy as actually
laid be proved by the evidence?"
That is the question: Have they made out a case according to the
scheme of the indictment? Has the conspiracy as laid been proved by the
evidence?
"I think that as to Watson it is not. He is charged with conspiring to
procure this appointment through the medium of Mrs. Harvey, of whose
existence for aught that appears he was utterly ignorant. When a
conspiracy is charged it must be charged truly."
He did not know that Mrs. Harvey was to have a portion of the money, and
yet she was a member of the conspiracy. The evidence showed that she was
to have a portion of it, and Lord Ellenborough says that they did not
prove the charge as laid, and that it cannot include Watson.
"Garrow submitted that it was unnecessary to prove that each of the
defendants knew how the money was to be disposed of, and that it was
enough to show that the destination of the money was as stated in the
indictment. A fact of which all those engaged in the conspiracy must be
taken to be cognizant. Watson by engaging with the other conspirators
to gain the same end, had adopted the means by which the end was to be
accomplished."
That is what the attorney for the Government says. Lord Ellenborough
replies:
"You must prove that all the defendants were cognizant of the object of
the conspiracy and the mode stated in the indictment by which it was
to be carried into effect. A contrary doctrine would be extremely
dangerous. The defendant Watson must be acquitted."
Now let us apply that case to this. In the first place, they must not
only prove this indictment according to the scheme, but they must prove
that every defendant understood that scheme, knew the scheme, how it was
to be accomplished and what was done with the money.
The Court. In that case Watson was acquitted. What was done with the
others?
Mr. Ingersoll. They, of course, were found guilty, because they were
guilty, as the indictment charged. They knew the exact scheme set forth
in the indictment. They were guilty exactly as the indictment said. They
divided the money exactly as the indictment charged they divided
the money, and they were cognizant of every fact set forth in the
indictment. But Watson, although a co-conspirator, did not know what was
to be done with the money, and consequently was to be discharged. Why?
Because they did not prove the conspiracy as to him as charged. They
need not have set forth in the indictment what was to be done with the
money, but they did set it forth, and then they had to prove it. They
need not have said that every man knew what was done with the money,
but they did say that every man knew, and they failed to prove it, and
when they failed to prove it as to Watson he was discharged.
Now, gentlemen of the jury, what I insist upon and what I shall ask the
Court to instruct you is that the Government, no matter how guilty the
defendant may be, no matter if he has robbed this Government of hundreds
of millions, is to be tried by this indictment, is to be guilty of this
charge as written in this indictment and nowhere else; and he has got
to understand it. They say he understood it, and they have got to prove
that he understood it.
Now, upon that same subject they say that the money was to be divided
between all these parties--between Rerdell, Turner and everybody. I
think it was Mr. Bliss who said there was no evidence that Rerdell ever
had any of the money. Certainly they do not think that Turner obtained
any of the money. Is there any evidence of it? Not the slightest. Is
there evidence that there ever was any division, any evidence that
there was ever any money divided upon a solitary route mentioned in this
indictment? Not one particle. If you say there is evidence, when was the
division made?
The Court. The question is not what was done. The question is with what
view the conspiracy was entered into.
Mr. Ingersoll. Certainly.
The Court. 'The object of the conspiracy may have failed, and this money
might not have been divided as they intended, but still the conspiracy
would be here.
Mr. Ingersoll. Good, perfectly. But if they set forth in this indictment
that the money was divided, that statement is not worth a last year's
dead leaf unless they prove it. That is all I insist upon. You cannot
find anybody guilty of charges in an indictment unless you prove them.
Unless you prove them they amount to no more than charges written in
water, than characters engraved on fog or written on clouds. You have
got to prove them.
Now, upon this same point I say that if the scheme has not been
established by the evidence, the case fails, no matter what the proof.
The offence must not only be proved as charged, but it must be charged
as proved, doubling the statement for the sake of doubling the idea of
accuracy. That is in Archibald's Criminal Pleadings, American edition,
page 36. The same thing is held in First Chitty's Criminal Law, 213. I
also refer to the case of King against Walker, 3d Campbell, 264; King
vs. Robinson, 1st Hope's Nisi Prius Reports, 595. I have the books here,
but I will not take up the time of this Court in reading them.
Now, if I am right, that is the language of that indictment. The overt
acts with the leaves are gone; the scheme with the branch and trunk are
gone. They prove no such scheme, they prove no such division.
I will now proceed to examine the alleged evidence against my
clients, Stephen W. and John W. Dorsey, and I want to say right in the
commencement that suspicion is not evidence. You charge that a couple of
persons conspired. That they met about nine o'clock on the shadowy side
of the street.
_A suspicious circumstance_. Why did they not get _under the lamp?_ They
were seen together once more, and the moment a man came up they walked
off. Guilty. They ran. And out of these idiotic suspicions that never
would have entered the mind, except for the reason that the persons were
charged, hundreds of people begin to say, "There is something in it.
They met four or five times. One of them wrote a letter to the other,
and so help me God it was not dated." Another suspicious circumstance.
"There was a heading on the paper. It was not the number of his
office." So they work it up, and ignorance begins to stare, and wonder
to open its mouth, and finally prejudice finds a verdict.
Suspicion, gentlemen, is not evidence. You want to go at this with this
idea. Whatever a man does, the presumption is it is an honest act until
the contrary is shown. These men wrote letters. They had a right to do
it. They met. They had a right to meet. They entered into contracts.
They had a right to do it, no matter whether they were dated or not
dated. One of the greatest judges of England said if you let out of
the greatest man's brains all the suspicions, all the rumors, all the
mistakes, and all the nonsense, the amount of pure knowledge left would
be extremely small. If you take out of this case all the suspicions,
all the guesses, all the rumors, all the epithets, all the arrogant
declarations, the amount of real evidence would be surprisingly small.
Now, I want to try this case that way. I do not want to try it by
prejudice. Prejudice is born of ignorance and malice. One of the
greatest men of this country said prejudice is the spider of the mind.
It weaves its web over every window and over every crevice where light
can enter, and then disputes the existence of the light that it has
excluded. That is prejudice. Prejudice will give the lie to all the
other senses. It will swear the northern star out of the sky of truth.
You must avoid it. It is the womb of injustice, and a man who cannot
rise above prejudice is not a civilized man; he is simply a barbarian.
I do not want this case tried on prejudice. Prejudice will shut its eyes
against the light. I want you to try it without that.
And right here, although it is a subject about which most courts are a
little tender, the question arises as to the jury being judges of the
law and fact. One of the attorneys for the Government, Mr. Merrick, told
us that at one time he insisted that the jury was the judge of the law,
and made this remarkable declaration:
"But even at the time I spoke the words to the jury I did not believe
them to be indicative of safe and true principles of law."
Was he candid then? Is he candid now? I do not know. But his doctrine
appears to be this: "When I am afraid of the court I insist on the jury
judging the law. When I am afraid of the jury I turn the law over to the
court. But in this case, having confidence in both judge and jury, it is
wholly immaterial to me how the question is decided."
Now, if it please the Court, I believe the law to be simply this: I
believe the jury to be absolute judges of the facts, and yet if on the
facts they find a man guilty whom the court thinks is not guilty, the
court will grant a new trial. The court has the power to set aside a
verdict because the jury find contrary to the evidence. The court cannot
do it, however, when the jury finds a verdict of not guilty. I do not
believe that the jury have a right to disregard the law from the court
unless a juryman upon his oath can say that he believes, he knows, or
is satisfied that is not the law; and he must be honest in that, and he
must not be acting upon caprice. He must be absolutely honest. He must
be in that condition of mind that to follow the law pointed out by the
court would trample upon his conscience, and that he has not the right
to do. That is all the distance I go.
The history of the world will show that some of the grandest advances
made in law have been made by juries who would not allow their
consciences to be trampled into the earth by tyrannical judges. I am not
saying that for this case.
I am simply saying that as a fact. There was a time in this country when
they used to try a man who helped another to gain his liberty, and
there was now and then a man on the jury who had sense enough, and heart
enough, and conscience enough to say, "I will die before I carry out
that kind of law." They did not carry it out either, and finally the law
became so contemptible, so execrable, that everybody despised it. All
I ask this jury to do is just to be governed by the evidence and by the
law as the Court will give it to them, honestly and fairly.
Now, I am coming to the evidence against John W. Dorsey. I am traveling
through this case now we have started it. As you have heard very little
about it, gentlemen, and there is nothing in the world like speaking on
a fresh subject. I feel-an interest in John W. Dorsey. He is my client.
I believe him to be an absolutely honest man. He is willing to take the
effect of all his acts. He is no sneak, no skulk. He will take it as it
is. Let us see what he has done.
The first witness is Mr. Boone. Mr. Boone swears that John W. Dorsey was
one of the original partners. Well, that is so. It is claimed that the
conspiracy was entered into before there was any bidding. Well, Boone
does not uphold that view. Now, if Boone and Miner and John W. Dorsey
and Peck had an arrangement with Brady whereby they were to bid and then
have expedition and increase, I want to ask you why did Boone write
to all the postmasters to find out about the roads and the cost of
provender, and the kind of weather they had in the winter in order to
ascertain what bid to make? If he had had an arrangement with the Second
Assistant Postmaster-General to expedite the route he would have simply
made up his mind to bid lower than anybody else, and he would not have
cared a cent what kind of roads they had there, or what kind of weather
they had in the winter, or how much horse provender cost, and yet he
sent out thousands of circulars to find out these facts. For what? To
make bids. What for? According to the Government these were routes on
which they had already conspired for expedition and increase without the
slightest reference to the horses and men, and of course, if that theory
is true, Boone is one of the conspirators. But I will come to that
hereafter.
More routes, according to Boone's testimony, were awarded than they
anticipated. They got, I think, one hundred and twenty-six. They had no
money to stock the routes. They got more than they expected. Well, that
was not a crime. Boone left in August, 1878, and Mr. Merrick takes the
ground that Boone had done the work, manipulated all the machinery, and
yet could not be trusted with the secret. Boone had gathered all the
information, he had done the entire business, and yet the secret up to
that time had been successfully kept from him. Do you believe that?
Now, Vaile came, and another partnership was formed, and the second
partnership remained in force, I think, till the 1st of April, 1879, or
the last day of March, and then the routes were divided. Now, then,
John W. Dorsey is charged with conspiracy as to these routes, and these
routes were afterwards assigned to S. W. Dorsey to secure advances and
indorsements that were made.
Now, of the routes mentioned in the indictment, John W. Dorsey was
interested in seven at the time of the division. From Vermillion to
Sioux Falls, from White River to Rawlins, from Garland to Parrott City,
from Ouray to Los Pinos, from Silverton to Parrott City, from Mineral
Park to Pioche, and from Tres Alamos to Clifton. How much money did
he get on all these routes? I have already shown you. He received
two warrants for eighty-seven dollars and they recouped them both. He
received another warrant for three hundred and ninety-two dollars and
succeeded in keeping it. That is all the money he got in these seven
routes. Now, the testimony of Mr. Vaile shows, if it shows anything,
that after April, 1879, he took those routes and kept them and never
paid a dollar to any official in the world, and he also swears that no
matter how much he got, it made no difference as to the routes that had
been given to John W. Dorsey and Peck. It could not in any way affect
their amount, and that no person in the world except themselves had any
interest in them.
Now, it is charged that false affidavits were made by John W. Dorsey,
and that the making of these false affidavits was the result of
conspiracy. Let us see. It has been shown by the evidence, and I have
already shown it, and conclusively shown it, that the affidavit was
substantially correct, so far as the proportion was concerned.
Now, let me explain what I mean by proportion. For instance, I am
getting five thousand dollars a year on a route, and it takes five men
and ten horses. That is an aggregate of fifteen. Now, suppose I simply
expedite it a certain number of miles an hour, and say it will take
fifteen men and thirty horses. That makes an aggregate of forty-five,
does it not? Then the Government gives me three times as much for the
expedited service as for the then service. Now, suppose I am getting a
thousand dollars, and it only takes one man and one horse, and I make an
affidavit that it takes one hundred men and one hundred horses, and if
it is expedited it will take two hundred men and two hundred horses, how
much more do I get? I get just double, and the result of the affidavit
is exactly the same as though I said the one man and one horse that it
then took, and it would require two men and two horses. If you keep
the proportion you cannot by any possibility commit a fraud against the
Government. Now we understand that. Now let us see. When you make an
affidavit, what do you do? When you make an affidavit of how many horses
it will take, you take into consideration the length of the term, three
or four years. You take into consideration the life of a horse. You
take into consideration the roads and the weather. You take into
consideration every risk, and find it is only a matter of judgment, only
a matter of opinion, and the fact that men differ as to their judgment
upon those points accounts for the fact that they make different
affidavits. If everybody made the same calculation as to food, as to
weather, as to roads, as to disease, everybody would make substantially
the same bid, but on the same route they differ thousands of dollars a
year, because they differ in judgment as to the number of horses it will
require and as to the number of men.
And then there is another thing. Some men will make a horse do twice as
much as others. Some men are hard and fierce and merciless. Some men
are like they ask you to be in this case--icicles. Some men resemble
the gods so far that they will make a horse do five times the work they
should, and other men are merciful to the dumb beast. So they differ
in judgment. One man says he can go twenty-five miles every day, and
another man says he can only go fifteen. One man says stations ought to
be built twenty-five miles apart; another says they should be built
ten miles apart. They differ, and for that reason, gentlemen, the bids
differ, and for that reason the affidavits differ.
I shall not speak of all these affidavits, but I shall speak of the ones
that have been attacked. Mr. Merrick called Mr Dorsey a perjurer because
he made two affidavits on route 38145. Now, no such charge is made
in the indictment, but I will answer it. Now, then, as to the two
indictments--The Court. Two affidavits.
Mr. Ingersoll. Two affidavits. Well, there ought to have been two
indictments to cover both cases. Now, this is on route 38145, Garland
to Parrott City. Now, there were two affidavits made on 38145, as is
set forth in the evidence, but it is not in the indictment. The first
affidavit was sworn to March 11, 1879, in Vermont, and filed April 16,
1879. Neither could come in under this conspiracy anyway. The second was
made in Washington, April 26, 1879, and filed the same day, which is a
suspicious circumstance. The letter dated April 23, 1879, according to
the prosecution, purports to transmit an affidavit made on the 26.
There is no evidence that the affidavit dated the 26 was inclosed in
the letter dated the 23. The affidavit set forth the number of men and
animals required to run the route on a schedule of fifty hours, three
trips a week. There is no evidence as to the character of the paper
transmitted, if any was transmitted, nor in fact, is there any evidence
that any paper was transmitted with that letter.
Now, on page 804 of the record, Mr. Bliss submitted two papers to Mr.
McSweeney, a witness, saying, "I show you two papers pinned together."
Who pinned them? I do not know. "One dated April 26, 1879, and the
other dated April 24, 1879." The paper dated April 26 is indorsed in
the handwriting of William H. Turner. The indorsement on the paper dated
April 24 is in the handwriting of Byron C. Coon. This fact shows that
the papers that were read by Mr. Bliss as one paper and marked 17
E, were treated by the department as two separate papers received on
separate dates, and so marked and so filed, and they were marked at the
time they were identified as numbers 17 and 18. Now, the only question
is whether the last affidavit was made for the purpose of committing a
fraud upon the Government and whether the change in the figures in
the last affidavit were intended to or could in any way defraud the
Government of the United States.
Now, let us see what it is. Mr. Merrick charges that the second oath was
willful perjury. In order to show that this was an honest transaction,
and that Mr. Dorsey should be praised instead of blamed, I will call
your intention now to the exact state of facts. Now, if I do not make
out from this that it was a praiseworthy action instead of perjury, a
good, honest action, I will abandon the case. In the first affidavit
Dorsey swore that it would require three men and seven animals as the
schedule then was, and that for the proposed schedule it would take
eleven men and twenty-six animals. Now, three men and seven animals make
ten, and eleven men and twenty-six animals make thirty-seven. So that by
the first affidavit he swore that it would take three and seven-tenths
more animals to carry the mail on the expedited schedule than on the
schedule as it then was, did he not? Three men and seven animals as
against eleven men and twenty-six animals it would take three and
seven-tenths more animals, consequently you would get for that three and
seven-tenths more pay. Now, let us understand that. That is an increase
in the ratio of ten to thirty-seven, and if his pay had been calculated
on that first affidavit it would have been thirteen thousand four
hundred and thirty-three dollars and four cents. But it was not
calculated on that. He made another affidavit. Now, the second affidavit
said that it would take twenty men and animals instead of ten, as it
then was, and for the expedition fifty-four men and animals. Now, the
ratio between twenty and fifty-four was two and seven-tenths instead of
three and seven-tenths, so that under that second affidavit, which they
say was willful and corrupt perjury, he would only get eight thousand
four hundred and fifty-seven dollars, and the change of that affidavit,
if the amount had been calculated on the first instead of the second,
would have cost him for the three years yet remaining of his term
fourteen thousand nine hundred and twenty-five dollars and sixty cents,
and that change saved, exactly as if they had made the calculation on
the other affidavit, about fifteen thousand dollars, and yet they tell
me that that was willful and corrupt perjury. There has nothing been
shown in the case more perfectly honorable. Nothing shown calculated
to put John W. Dorsey in a fairer, in a grander light, than this very
affidavit that is charged to have been willful perjury. Do you see?
He made the first affidavit, and in it he made a mistake against the
Government of fourteen thousand nine hundred and twenty-five dollars,
and, then, like an honest man, he corrected it, and for that honest
correction he is held up as a perjured scoundrel. It will not do, my
friends.
But, as a matter of fact, not one of these affidavits is set out in the
indictment, not one charged in the indictment. They are wandering tramps
that were picked up as they went along with this case, and have no
business here.
In route 38152 he made no affidavit. In route 38113 there is no charge
in the indictment that he made any affidavit. In the route 38156
the affidavit was not false. It was charged and was not successfully
impeached. In route 40104 the affidavit was never disputed and it was
never attacked. In route 40113 the affidavit was not attacked, not a
solitary witness was examined. In route 35105 no affidavit was made by
Dorsey. In route 38134 there are two more affidavits.
Now let us see. Here is some more fraud. Put it down, 38134--two
affidavits--a great fraud. The first affidavit said three men and twelve
animals. That made fifteen; that for the expedition it would take seven
men and thirty-eight animals. That made forty-five. In other words the
proportion was fifteen to forty-five, just three times as much. Three
times fifteen make forty-five. Then he made a second affidavit, filed
with a purpose to defraud the Government. Let us see. In the second
affidavit he said that it took two men and six animals. That makes
eight. That on the expedition it would take six men and eighteen
animals. That makes twenty-four. The proportion was eight to
twenty-four. Three times eight make twenty-four; and three times fifteen
make forty-five. So that the amount was raised exactly the same to
a cent, under the second affidavit that it was under the first, and
consequently could not have been made for the purpose of defrauding
anybody. Impossible. The proportion of course is the material thing in
every affidavit, and it is only by that proportion that you can tell
whether they are trying to defraud this Government or not. Suppose that
second affidavit had changed the proportion so that he was not to get
just the amount of money, then you might say it was a fraud. But it did
not change the proportion.
On route 38156 another affidavit is filed and not successfully
impeached. I went over that. I have got through with that. That is all
there is to it. That is all, that is everything--everything--everything.
There is no evidence tending to show that John W. Dorsey ever spoke
to Thomas J. Brady. There is no evidence to show that he ever saw him.
There is no evidence to show that he was ever seen in his company; no
evidence to show that he ever saw Turner; that he ever heard of Turner;
that he ever spoke to Turner; that he ever received a letter from
Turner; that he ever wrote anything to him; no evidence as a matter of
fact that he ever exchanged a word with these men; no evidence that he
ever saw Harvey M. Vaile; that he ever spoke to him. Certainly there is
no evidence that he ever conspired with him. No evidence that he ever
made an agreement with Thomas J. Brady or with Mr. Turner or with any
officer--no agreement of any sort, kind, character, or description at
any place, upon any subject, or for any purpose, not the slightest;
no evidence that he conspired with anybody; no evidence that he ever
received from the United States a solitary dollar, with the exception of
three hundred and ninety-two dollars--not the slightest.
There is no evidence that he ever wrote a false communication to the
department--nothing of it. There is no evidence that he ever wrote a
petition; no evidence that he ever forged one; no evidence that he ever
signed anybody's name to one; no evidence that he did anything of the
kind or that he ever changed one; no evidence that he ever put a man's
name to it that did not live on the route; no evidence that he ever
put in a fictitious name; no evidence that he helped to deceive the
Postmaster-General--not the slightest. If there is I want somebody just
to put their finger upon the evidence. There is no evidence that he ever
made false statements at any time. There is no evidence that he ever
paid, as I say, a dollar to any official, and no evidence that he ever
promised to pay it. All the evidence is that he got three hundred and
ninety-two dollars. He made the affidavits in accordance with what
he believed to be the truth. The evidence shows that when he made the
affidavits on those routes he had no personal interest, that he received
not a dollar for making them. He made them because he supposed the
contractor or subcontractor had to make them. He made them because he
believed them to be true. He was guided by the little experience he had
himself and by the statements made to him by others; and in all this
evidence there is not a word, not a line, not a letter tending to
show he did a dishonest act, and the jury will bear me out that in
the affidavits attacked he was substantially right, while in the first
instance he was too high; in others he was too low. But there is no
evidence that he deliberately swore to what he believed to be untrue.
The proportion sworn to by him has always been substantially correct.
In other words, gentlemen, the testimony shows that John W. Dorsey is an
honest man, and there is no jury, there never was, there never will be,
that will find a man like that guilty upon evidence like this. It never
happened; it never will happen.
Now, I come to my other client, Stephen W. Dorsey, and I feel an
interest in him. He is my friend. I like him. He is a good man. He has
good sense. He is not simply a politician, he is a statesman; and I want
you to understand that he never did an act in this case that he did not
thoroughly understand as well as any lawyer in this prosecution ever
will understand; or as well as any lawyer of the defence ever will
understand. He knew exactly his liabilities. He knew exactly his
responsibility. He knew exactly what he did and he knew he did only what
was right. In the opening of this case Mr. McSweeney made a statement.
He told you the exact connection of Dorsey with this matter. He not
only told you that, but he told you that Dorsey had lost money on these
routes, and that he had never been repaid the money he had advanced, and
in that connection he said that he had turned the routes over to James
W. Bosler, and the department knew of James W. Bosler because they
introduced testimony here that the warrants were paid to James W.
Bosler. Mr. McSweeney stated that Bosler controlled the business, and
now we are asked by the prosecution, "Why did you not bring James W.
Bosler on the stand and show that you had lost money?" I return the
compliment and say to them, why did you not bring James W. Bosler on the
stand and show that it was not true that we had lost money, as he kept
the books? I ask them that. Why did they not bring James W. Bosler?
Mr. Merrick. If your Honor please, there is no evidence whatever as to
whether S. W. Dorsey lost money on those routes, and the statement of
counsel made in the opening, I respectfully submit, cannot be used as
evidence by the counsel in the case.
The Court. Of course it is impossible for me to say after so long a time
spent in receiving evidence what evidence has been given on a disputed
question. I cannot say from recollection what evidence has been given
on this subject, but I understand the remarks now made are not made upon
evidence in the case, but in reply to remarks made in the opening in the
case.
Mr. Ingersoll. Partially so.
Mr. Merrick. The opening by their counsel.
The Court. By their counsel.
Mr. Merrick. By their counsel, Mr. McSweeney.
Mr. Ingersoll. Let me just state it, and the Court will understand it
perfectly. Mr. McSweeney, in his opening, said that these routes had
been turned over to James W. Bosler; that he received the money and paid
it out, and that S. W. Dorsey on these very routes had not made money,
but lost money. Very well. But that statement was simply a statement. It
was never proved afterwards. The Government said to us, "Why did you not
bring James W. Bosler to prove that?"
The Court. Where did they say that?
Mr. Ingersoll. They said it in their speeches. Mr. Merrick said it.
Mr. Merrick. Not to prove as to the money.