Washington, D. C., Dec. 21, 1882.
MAY it please the Court and gentlemen of the jury: We consider that the
right to be tried by jury is the right preservative of all other rights.
The right to be tried by our peers, by men taken from the body of the
county, by men whose minds have not been saturated with prejudice, by
men who have no hatred, no malice to gratify, no revenge to wreak, no
debts to pay, we consider an inestimable right, regarding the jury as
the bulwark of civil liberty. Take that right from the defendants in any
case and they are left at the mercy of power, at the mercy of
prejudice. The experience of thousands of years, the experience of the
English-speaking people, of the Anglo-Saxon people, the only people now
upon the globe with a genius for law, is that the jury is a breastwork
behind which an honest man is safe from the attack of an entire nation.
We esteem it, I say, a privilege, a great and invaluable right, that we
have you twelve men to stand between us and the prejudice of the hour.
We believe that you will hear this case without passion, without hatred,
and that you will decide it absolutely in accordance with the law and
with the evidence. This is the tribunal absolutely supreme. In a case
of this character, gentlemen, you are the judges of what is the law; you
are the judges of what are the facts; you are the absolute judges of the
worth of testimony; and you have not only the right, but it is your duty
to utterly disregard the testimony of any man that you do not believe
to be true. You, I say, are the exclusive judges, and for that reason we
ask, we beg you, to hear all this testimony, to pay heed to every word,
and then decide, not as somebody else desires, but as your judgment
dictates, and as your conscience demands. Here before this jury all
letters of Attorneys-General, all desires of Presidents, all popular
clamor, all prejudice, no matter from what source, is turned simply to
dust and ashes, and you are to regard them all simply as though they
never had been.
There is one other thing. Some people are naturally suspicious. It is an
infinitely mean trait in human nature. Suspicion is only another form
of cowardice. The man who suspects constantly suspects because he is
afraid. Whenever you find a man with a free, frank, generous, brave
nature, you will find that man without suspicion. Suspicion is the soil
in which prejudice grows, and prejudice is the upas tree in whose shade
reason fails and justice dies. And allow me to say that no amount of
suspicion amounts to evidence. No case is to be tried upon suspicion.
No case is to be tried upon suspicious facts. No case is to be tried on
scraps, and patches, and shreds, and ravelings. There must be evidence;
there must be absolute, solid testimony. A case is tried according to
the rocks of fact and not according to the clouds and fogs of suspicion.
No juror has a right to make a decision until he feels his feet firmly
fixed upon the bed-rock of truth.
So I say, gentlemen, that we are glad of the opportunity to make a
statement of this case to you, and to tell you exactly the manner in
which my clients became interested in what is known as the star-route
service. You have to be guided in this case by the indictment. That is
the star and compass of this trial. You cannot go outside of it. The
evidence must be confined to the charges contained in that instrument.
If you find us guilty of a conspiracy, it must be such a conspiracy as
is set forth in that indictment. That indictment is the charter of your
authority, and you have no right to find us guilty of anything in the
world except that which is therein charged.
Now, let me give you an exceedingly brief statement of what we are
here for. It is charged in that indictment that all these defendants,
including one who has been discharged by a jury, who has been found not
guilty, Mr. Turner, including another who is dead, Mr. Peck, conspired
together for the purpose of defrauding the United States, and we are
met at the threshold with the statement that conspiracy is very hard to
prove. It is like any other offence, gentlemen. They say conspirators
generally meet in secret. My reply to that is that people generally
steal in secret, and the fact that they stole in secret was never deemed
an excuse for not proving the offence before they were found guilty. You
can see that this is precisely like any other offence in the world. Men
when they commit crimes endeavor to get away from the public eye. They
are in love with darkness. They do not carry torches in front of them.
And it is so in every crime. But whether conspiracy is difficult to
prove or not, it must be established before you can find the defendants
guilty. That is a difficulty that the Government must overcome by
testimony. The jury must not endeavor to overcome it by a verdict. And
I say here to-day that the same rule of evidence applies to this case as
to any other, and you must be satisfied by the testimony the Government
will offer that these men conspired together; that they entered into
an arrangement wherein the part of each was marked out, and that that
arrangement was contrary to law; and that the object of that arrangement
was to defraud the Government of the United States.
This indictment is kind enough to tell us the means that were employed
to carry out that conspiracy. How did they find these means, gentlemen?
They must have had some evidence on which they relied. If they had
evidence enough to convince them, they must introduce that evidence
here, and if that evidence establishes beyond a reasonable doubt that
these men conspired, then you will find them guilty; otherwise not. The
difficulty of establishing it is something with which you have nothing
to do. How did they conspire? What were the means they had agreed
to use? Let us see. Thomas J. Brady was the Second Assistant
Postmaster-General. The Postmaster-General was not included in the
scheme, consequently they must deceive him. The Sixth Auditor was not
included in this conspiracy, and as by virtue of his office it was his
duty to go over all of these accounts and pass upon the legality of each
item, it was necessary to deceive him. According to the indictment Mr.
Turner was a clerk in the department, and his part of the rascality was,
on the jackets inclosing petitions, to make false statements in regard
to the contents of the petitions inclosed. The object of that being that
when the Second Assistant Postmaster-General, Mr. Brady, exhibited these
jackets to the Postmaster-General, it being considered that he would
not have time to read the petition, he would be misled by the false
statements on the cover touching the contents.
The next step was for the contractors to get up false petitions; that
is, petitions to be signed by persons who did not live along the route
upon which the mail was to be carried. These petitions also to be
forged; that is to say, the names of persons put there by another, or
the names of fictitious persons written, when in fact no such persons
existed.
The next thing to do was to write false and fraudulent letters; to
induce others to write such letters; the next thing, to make false
affidavits; and the next thing, to make false orders--those to be
made by Mr. Brady--and these false orders were to have, as a false
foundation, false petitions, false letters, false communications, false
affidavits, and fraudulently written representations.
That is the indictment. That is the scheme said to have been entered
into by my clients with all of these defendants, and the object being to
defraud the Government of the United States. Now, in order to establish
that scheme, it would be necessary for the Government to prove it. Not
to assert it. Neither have you the right to infer it. No man can
be inferred out of his liberty. No man can be inferred into the
penitentiary. That is not the way to deprive a man of his reputation and
of liberty--by inference. They must prove it. They must prove that the
petitions were false. They must prove that the letters were fraudulent.
They must prove that the orders rested upon those false and fraudulent
petitions, letters, and affidavits; and they must prove that Mr. Brady
knew them to be false.
It is also stated in this indictment that service was to be paid for
when it was not performed; that service was discontinued and a month's
extra pay allowed; that fines were imposed and afterwards set aside
because the contractors agreed to pay fifty per cent, of such fines to
General Brady. I will speak of them when I come to them.
Now, there is a clear statement. What part, then, did my clients play in
this scheme? I will tell you. It is charged in the indictment that John
M. Peck was in this scheme, and, although he is dead, whatever he did,
I imagine, can be established by the Government. A man can be found
guilty, I understand, of having entered into a conspiracy with another,
although the other be dead, and the living man can be convicted.
Now, it is stated in the outset that my clients never had been engaged
in carrying the mail and that is regarded as an exceedingly suspicious
circumstance. A man has got to commence some time, if he ever goes into
the business, and if this doctrine be true, the first bid that a man
ever makes is evidence that he has entered into a conspiracy. Suppose,
on the other hand, my clients have long been engaged in this business.
What would the Government counsel then have said? They would have said,
gentlemen, that they had been engaged for years in the business. They
knew all the tricks that were played, and consequently they were the
very persons to form a conspiracy. And that is the wonderful thing about
suspicion. It changes every fact. It colors every word it reads and
every paper at which it looks; and no matter what are the facts, the
moment they are regarded with a suspicious mind they prove what the man
suspects.
So, then, the first charge is that we had never been in the business,
and consequently our going into the business must have been the result
of a conspiracy. Gentlemen, if the doctrine be laid down that it is
dangerous for a man to make a bid the result of that doctrine will be
to double the expenses of the Government in carrying the mails. All that
will be necessary, then, is for the old bidders to combine. They will
know that there is no danger of any new men interfering with them,
because the new men will be immediately indicted for conspiracy and
the old men will have the field to themselves. You can see that this
is infinitely absurd. There is only one step beyond such absurdity, and
that is annihilation. No man can possess his faculties and get beyond
that absurdity, if it is evidence of conspiracy, because it is the first
thing.
As a matter of fact, however, John M. Peck had been engaged in the
mail business. He was engaged in the business before 1874. He had been
interested with others before that time. He was interested in several
important routes from 1874 to 1878. It was in the fall of 1877 that he
made arrangements to bid at the next letting. He was a business man.
He was not an adventurer. He was secretary at that time of the Arkansas
Central Railroad. He had been, I believe, for two sessions a member
of the Ar-kansas Legislature. He was in good standing, solvent, and
regarded as an honest man. In 1874 he was interested in the bids and,
as I said, was engaged in carrying the mails at the time these contracts
were entered into. He became acquainted with John W. Dorsey, I believe,
in 1874. When he made up his mind to put in more bids for the letting of
1878 he went after John W. Dorsey, and they met together in the city
of New York, I believe, in the month of September, and agreed that they
would put in some bids for the letting of 1878. Peck was acquainted with
John R. Miner and had been acquainted with him for a considerable time.
Mr. Miner wanted to go into some other business than that in which he
was then engaged, and those three men made up their minds to bid. Was
there anything criminal in that? Nothing. Any men anywhere have the
right to combine; the right to form a partnership; the right to come
together for the purpose of making proposals for carrying the United
States mails. Of course you will all admit that. Now, that is what they
did. There was nothing criminal, nothing secret, nothing underhanded.
Everything was above board, open, and in the daylight. There is no
conspiracy yet, and we will show that.
John M. Peck had been troubled with a lung disease. He had gotten much
better in September, and thought that he was almost well. Later in the
fall he took a severe cold and got much worse, and from that difficulty,
I believe, he never wholly recovered. He went, however, to Colorado and
New Mexico, and finally died.
Now, let us see about John W. Dorsey. I believe that great pains
have been taken to say that he was a tinsmith, which is a suspicious
circumstance. Why? Is there any law against a tinsmith bidding to carry
the mails? Is there any such provision in the statute? And yet that
has been lugged forward as one of the evidences of a conspiracy in this
case, and it has been lugged forward in a way to cast some disgrace upon
this man--simply because he was a tinsmith. Well, do you know I have
as much respect for a good tinsmith as for a good anything. What is
the difference? Sometimes I have thought I had more respect for a good
tinsmith than a poor professional man--sometimes. In this country of all
others labor is held to be absolutely honorable, and I think a thousand
times more of a man who works in the street and takes care of his wife
and children than I do of somebody else who dresses well and lives on
the labor of others, and then is impudent enough to endeavor to disgrace
the source of his own bread. I think the man who eats the bread of
idleness is under a certain obligation to speak well of labor. And yet
we have the spectacle in this very court of the Attorney General of the
United States endeavoring to cast a little stain upon this man. As a
matter of fact, and I am almost sorry to say it, John W. Dorsey is not
a tinsmith. I am almost sorry to make the admission. He happened to be
a merchant, which is no more honorable but somewhat easier. He dealt in
stoves and tinware. That, gentlemen, is his crime, and upon that rests
the terrible suspicion that he is a conspirator. And I want to say more,
that his reputation for honesty, his reputation for fair dealing, is as
good as that of any other man in the State in which he resides. He made
up his mind to cast his fortunes with John M. Peck and with John R.
Miner and make some bids for carrying the mails of the United States.
That is all there is about it.
There is, however, another suspicious circumstance, and that is that
John W. Dorsey was the brother of Stephen W. Dorsey, and Stephen W.
Dorsey at that time was a Senator of the United States. That is another
suspicious circumstance. Whenever you find a man with a Senator for a
brother, put him down as a conspirator. Another suspicious circumstance,
John M. Peck was the brother-in law of S. W. Dorsey, absolutely married
a sister of Mrs. Dorsey, and that was the beginning of this hellish
conspiracy. It was suspicious. He intended to rob the Government when he
was courting that girl.
Now, we come to another man, Mr. John R. Miner, and the suspicious thing
about Miner is that he lives in Sandusky. But that of itself would be
nothing. Dorsey lived there once, too. Now, do you not see how they
moved to that town with the diabolical purpose of swindling this great
Government? Miner was not in very good health--do you not see--pretended
to be sick so that he could leave Sandusky; and in some way Miner and
Dorsey were excellent friends--another suspicious circumstance; and
for several years whenever John R. Miner visited Washington he laid
the foundations of this conspiracy by always stopping at the house of
Senator Dorsey--another suspicious thing. And do you not recollect the
delight, the abandon with which Mr. Bliss emphasized the word house,
when he said that they met at Dorsey's house? I had a great notion to
get up and plead guilty on that emphasis.. Miner came here. He and Peck
were acquainted; and wherever you find four men acquainted, gentlemen,
look out, there is trouble. When Miner came here he went directly to the
house of Senator Dorsey. I admit it with all the damning consequences
that flow from that admission. He did not even go to a hotel. He went
directly to Dorsey's house. I want that in all your minds, because
the prosecution regards that as one of the foundation facts in this
conspiracy, and while admitting it, do you not see how much I save them
in the way of evidence.
And there is another damning fact connected with this case. Dorsey in
the top of his house had set apart one room for an office. It was up
two or three pair of stairs. I think he established his office there to
shield himself a little from the people who usually call on a Senator in
the city of Washington. But he found that he put himself to more trouble
than he did them, so he moved his office to the lower part of the
building, and when John Miner got to that house he occupied a room right
next to that office upstairs, and sometimes he went in there and wrote.
Now, you see, gentlemen, how that conspiracy was planted; how the
branches sprang out of the windows of that room and covered all the
territory of the United States. I might as well admit that frightful
fact. I do not know that they know that, but I might as well admit it,
because we want the worst to come first. Before Miner came here he wrote
a letter. There is another place to put a pin of suspicion. He wrote a
letter to S. W. Dorsey; that is, it was Miner or Peck, I have forgotten
which, and may be that very forgetfulness of mine is another evidence of
conspiracy. A letter was written either by Miner or Peck to Stephen
W. Dorsey, saying that they were going to bid; that Peck was not well
enough to be here at that particular time, and would he be kind enough
to hand that letter to some man in whom he had confidence and let that
man get such information as he could with regard to the routes upon
which they expected to bid--all these Western star routes.
Now, what did S. W. Dorsey do? There was a man in town by the name of
Boone. He sent for Mr. Boone, and I believe that Mr. Boone went to Mr.
Dorsey's house, and that Dorsey handed him that letter in his house.
And what was the object of the letter? For Boone to get information
regarding these routes. Well, now, what did Boone do? Boone made up a
circular which he sent to all the postmasters, or most of them, through
Oregon, Washington Territory, Colorado, New Mexico, Nevada, California,
Kansas, Nebraska; that is to say, the Western States and Territories;
and in this circular a certain number of questions were propounded to
each postmaster. First, the distance from that post-office to the next,
and from the next to the next, and so through the route. Second, the
condition of the roads, whether hilly or level. Third, about the snows
in winter and the floods in spring. Fourth, the cost of hay and corn and
oats. Fifth, the wages that would have to be paid to the man or men; and
it may be some other questions in addition. Now, these circulars were
sent by Boone to all the postmasters in consequence of a letter that he
received in Dorsey's house. What for? So that by the time that Miner and
Peck and John W. Dorsey came they could sit down and bid intelligently
upon these routes; so that they would have some information that would
guide them; in other words, that they would not be compelled to bid at
random.
Now, we will show, gentlemen, that that was done, and if at that time
there had been a conspiracy, certainly such information was of no
particular value. Now, that is what Mr. Boone did, and I believe that is
about all he did at that time. There is no conspiracy yet, no fraud
yet. It is utterly impossible to defraud the Government by getting
information from postmasters as to the condition of the roads, and as to
the distance from one post-office to another. There is no fraud yet, no
conspiracy up to this point. In a little while Mr. Miner and Mr. John W.
Dorsey appeared. Ah, but they say Stephen W. Dorsey was at that time
a Senator of the United States Yes, he was, and I believe he remained
Senator until the 4th of March, 1879. When his brother came we will show
to you that Stephen W. Dorsey said to his brother, "I would rather
you would not bid; I would much rather that you would keep out of this
business, because I am a Senator and somebody may find fault. Somebody
may suspect, and consequently I would much rather you would get out of
the business." John W. Dorsey did not agree with him. He said he did not
see how that could interfere with him, and that he believed he could
do well in that business, and the consequence was he went on. There is
nothing suspicious so far as I can see in that. That is what we will
show.
This man being a member of the United States Senate did what he did out
of pure friendship; did what he did for his brother, what he did for Mr.
Peck, and what he did for Mr.
Miner from pure friendship. I know it is very difficult for some people
to imagine that any man does anything for friendship. They put behind
every decent action the crawling snake of a mean and selfish motive. My
opinion of human nature is somewhat different. I have known thousands
and thousands of men capable of disinterested actions, thousands of men
that would help a brother, a brother-in-law, or a friend, and help
them to the extent of their fortune. I have known such men and I never
supposed such acts could be tortured into evidence of meanness.
The first charge against Stephen W. Dorsey is that he sent some bonds
and proposals for bids to a postmaster by the name of Clendenning, in
the State of Arkansas. The trouble with these bonds, as I understand it,
was that the amount of the bid was not put in the blank in the printed
proposal. It is claimed by the prosecution that according to the law the
postmaster has no right to certify to the solvency of the security until
that blank is filled. I want to explain this so that you will understand
it. I think I have one of the bonds and proposals here. I would like to
have the Court see exactly the scope of it. [Exhibiting blank form of
proposal and bond.] The proposal is that the undersigned,-------- whose
post-office address is--------, of the county of--------, and State
of--------, proposes to carry the mails of the United States from July
1, such a date, to June 30 of such a date, being four years,
between such and such a place, under the advertisement of the
Postmaster-General, for the sum of--------dollars per annum. Now, if I
understand the matter of the Clendenning bonds, they were filled up
with the exception of the blank in which the amount of the bid was to be
written. That is the charge, as I understand it. Whenever a man makes
a proposal to carry the mail for four years on a certain route, that
proposal must be accompanied with a bond in a certain amount, and
certain men must sign that bond as sureties, and then a certain
postmaster must certify to the solvency of the sureties, the sureties
having made oath as to the value of their property. Now, understand that
perfectly. It is not the bond that a man gives after his bid has been
accepted. It is a bond that he gives to show that his bid is in good
faith. That bond is conditioned that if the contract is awarded to him
he will give another and sufficient bond not only, but I believe it is
also conditioned that he will carry the mail. The charge is--and let us
get at it just exactly--that some bonds were sent to a man by the name
of Clendenning, who was a postmaster, and this blank was not filled.
Let me tell you why. It was the custom--and I want your Honor to
understand that perfectly, because so much was made of it before in
talk--to leave that blank unfilled. It is the blank for the amount of
the bid. In the advertisement of the Government the penalty of the bond
is stated, so that the amount of the bid has nothing to do with the
penalty in the bond. Understand me now. If the bond was for ten thousand
dollars, it was because that amount had been put in the advertisement
by the Government. It did not depend upon the amount of the bid. It had
nothing to do with it. The amount of the bid threw no light upon the
amount of the bond. The penalty of the bond was fixed by the Government
before the bid was made and inserted in the advertisement published
by the Government. Why then did they not wish to fill up this blank?
This blank, gentlemen, told the amount of the bid. Where there are many
bidders, and an important route, if you let the postmaster who has to
certify to the sureties know the amount of the bid he might sell you. He
could go and tell somebody else "I have certified to all the sureties
on this route, and the lowest bid up to this time is fifteen thousand
dollars," and the person whom he told might go and bid fourteen thousand
nine, hundred and ninety-nine dollars and take the route. Ah, but they
say the postmaster is not allowed to tell the amount of the bid. No.
What was the penalty if he did? He would lose his office. Now, here is
a postmaster holding an office worth, perhaps, a hundred dollars a
century, or, perhaps, fifty dollars a year, and by selling information
as to one bid he might make ten thousand dollars. I do not know what he
could have made. Certainly the bidders did not feel like trusting the
secret of their bids to the postmaster who certified to the sureties. As
a consequence the bond was filled up with the penalty according to the
advertisement, but the blank in which the amount of the bid was to be
written was not filled, because they wanted the postmaster's mind left
a blank upon that subject. In other words, that blank was left unfilled,
not to defraud the Government, but to prevent other people from
defrauding the bidder. That is all there is about it. That is everything
about the Cleudenning bonds. But it may be well enough to state,
gentlemen, that those Clendenning bonds were never used on a solitary
route in this indictment, and I believe never anywhere; that no contract
was ever awarded upon any one of those proposals. The only rascality
in the transaction, gentlemen, was the failure to fill a blank; and the
reason they failed to fill that blank was because they did not want
the postmaster to know the amount of the bid. Let us come right down to
practical matters and things. For instance, suppose one of this jury
is in the stone-cutting business, and the Government should issue an
advertisement calling for proposals to furnish dressed granite, and
specify that every man who bid must file a bond in a penalty of five
thousand dollars to carry out his contract, and that that bond must
be approved by the postmaster here. Suppose it was a contract of great
proportions. Would the man who bid be willing that the amount of the bid
should be inserted in the blank to be passed upon by the postmaster? No.
Why? He would not want the postmaster to know it. Who else would he not
want to know it? He would not want his sureties to know it. A man might
be standing by while the bond was being approved and read the amount of
the bid. The bidder would be afraid somebody would get at those figures
and go and underbid him. Every man of common, ordinary sense knows that.
If you made a bid you would not let your sureties know the amount and
you would not give the amount to the keeping of a postmaster, neither
would you leave it to chance or accident. You would say, "I will leave
the amount a blank. I will keep it in my mind, and when the paper comes
into my hands for the last time I will write, it in there and fold it
and seal it and give it to the Government." That is what every sensible
and prudent man would do, and what has been done for years. And yet that
act is brought forward as something to stain the reputation of an
honest man; something to strike down as with a sword the character of an
ex-Senator. They even say he wrote upon paper that had the mark of the
United States Senate Chamber upon it. That is only another evidence that
there was nothing wrong in it. It was stated, too, in the opening of
this case, that an affidavit was made upon paper that bore the mark of
the National Hotel of this city. Think of such a damning circumstance as
that! Well, gentlemen, so much for the Clendenning bonds. We will
prove that the blank was left unfilled on purpose, not to defraud the
Government, but to prevent other people from defrauding us. Let me say
in that connection that there was an investigation in 1878 upon this
very question. The Clendenning bonds were brought up. Testimony was
heard, and we will be able to show you the facts that I have stated.
Then, if I am right, gentlemen, there is nothing in it; and when the
opening statement was made the Government knew, just as well as I know,
that there was nothing in it; at least they ought to have known it.
Probably it is not proper for me to say they knew it, because men get so
prejudiced, so warped, so twisted that it is hard to tell what they know
or what they do not know. But that has nothing to do with this case and,
in my judgment, will never be admitted by the Court. If it is admitted
by the Court we will establish exactly what I have told you. So much for
the Clendenning bonds. Do not forget that the penalty of the bond was
put in by the Government.
Do not forget that the amount of the bid was left blank simply to
protect ourselves. Do not forget another thing: That leaving that blank
unfilled could not by any possible peradventure injure the Government.
The bond was just as good with that proposal unfilled at the time the
sureties signed it as though it had been filled. It had to be filled
before it was finally given to the Government or else there would be no
bid. If there was no bid, then no obligation rested upon the sureties.
Certainly they could not be harmed, and if there was no bid certainly
the Government could not be harmed; unless the bid should have happened
to be lower than any received; and yet out of that nothing, out of that
one bramble, a forest of rascality has been manufactured. Gentlemen,
that is the result of suspicion when it is hoed by malice and watered by
hatred.
The next suspicious circumstance, gentlemen, is that we bid. That is a
suspicious circumstance. Miner bid, Peck bid, and John W. Dorsey bid.
And the suspicious circumstance is that they did not bid against
each other. Why should they? I was at an auction the other day and
unconsciously bid against myself, but I did not think it any evidence
of rascality on my part; I thought it tended to show that I was not
attending strictly to business, and yet it is brought forward as
a suspicious circumstance that these gentlemen did not bid against
themselves. Another suspicious circumstance is that they bid in their
individual names. That is the way all the bidding is done, I believe.
I believe every bond has to be signed by the individuals and not by
any partnership. That I believe to be one of the regulations of the
department. Well, there is no rascality yet, as far as I can see. Now,
when the contract is accepted--I will come to the bidding question
again--the contractor has to give a bond. One of those bonds will be put
in evidence in this case. You will see what the contractor is bound to
do. Then it can be subcontracted. You will find that the contract given
by the subcontractor to the department is not a hundredth part as severe
as the bond the contractor gives to the Government. In the contract that
we give to the Government certain things are provided. You will find
that a copy of it will be intro duced. The contractor is left to
the mercy of discretion-I believe that is the word--of the
Postmaster-General You will find that if he fails to carry the mail one
trip, no matter by what he may be prevented, by flood or storm or fire,
he is not to be paid for it. Although he is there ready with his men
and horses, if he is prevented by the elements he has no pay. If the
Postmaster-General thinks he ought to have carried it when he did not,
he can take from his pay three times the value of the trip. He can take
from him one quarter's pay. He reserves in his own breast the power
to declare that contract null and void, because in his judgment the
contractor has not done his duty. Everything is left to him. The man who
signs that contract gives a mortgage on his life, liberty, and pursuit
of happiness. He has no redress. I simply call your attention to this
to show you the obligation that a contractor takes upon himself. We will
show you that he is under obligation to discharge any carrier that the
Government does not like; that he has no right to carry any package or
any letter that can go by mail; that he is to forfeit a trip when it is
not run, or not to exceed three times the pay of a trip; that he is to
forfeit one-quarter of a trip if the running time is so far behind that
he fails to make connection with the next mail; that if he violates any
of these provisions he forfeits a penalty equal to a quarter's pay, or
if he violates any other provision touching the carriage of the mail and
the time and manner thereof, without a satisfactory explanation in
due time to the Postmaster-General, he can visit a penalty in his
discretion, and the forfeitures may be increased in the penalty to a
higher amount, in the discretion of the Postmaster-General, according to
the nature or frequency of the failure and the importance of the mail.
Provided that, except as specified, and except as provided by law, no
penalty shall exceed three times the pay of a trip in each case.
It is also agreed by the said contractor and his sureties that the
Postmaster-General may annul the contract for repeated failures; for
violating the postal laws; for disobeying the instructions of the
Post-Office Department; for refusing to discharge a carrier when
required by the department; for transmitting commercial intelligence or
matter which should go by mail; for transporting persons so engaged as
aforesaid; whenever the contractor shall become a postmaster, &c.
It is further stipulated and agreed that such annulment shall not impair
the right to claim damages from said contractor and his sureties under
this contract; but such damages may, for the purpose of set-off or
counter-claim in the settlement of any claim of said contractor or his
sureties against the United States, whether arising under this contract
or otherwise, be assessed and liquidated by the Auditor of the Treasury
for the Post-Office Department.
And it is further stipulated and agreed by the said contractor and
his sureties that the contract may, in the discretion of the
Postmaster-General, be continued in force beyond its express terms for a
period not exceeding six months. You will see, gentlemen, how perfectly,
how absolutely, the contractor is in the power of the department. The
Government enforces its contracts. No matter how many years may elapse
they are still after the sureties and are still after the principal.
Nothing relieves a man but, death. Only a little while ago a case was
decided in the Supreme Court of which I will speak to you. An importer
of sugar gave the importers' bond to pay the duty upon that sugar. By
the custom of trade, sugar is sold in bond.
The importer sold to a third person and the third person went to get the
sugar. By law he could only take it after paying the tax; and yet one of
the officers of the Government, contrary to law, allowed him to take the
sugar without paying the tax. The Supreme Court has just held that the
original importer and his sureties are liable to pay that tax--the man
who took the sugar out having become bankrupt--although the sugar was
given to the second party simply by a violation of law, and that law
was violated by one of the officers of the custom-house without the
knowledge or consent of the original importer. I tell you, gentlemen,
whenever a man gives a bond to this Government the Government stays with
him. The Government does not die; the Government does not get tired; the
Government does not get weary. The Government can afford to wait, and
the poor man with the bond hanging over him cannot go into business,
cannot get credit, but just lingers out a life of expectation, of hope,
and of disappointment. I trust none of you will ever sign a bond to the
Government. There is another thing, gentlemen. If you bid on a hundred
routes and they are given to you and you put the service on ninety-nine
of the routes and carry it in accordance with the contract, and yet fail
on the hundredth route, the Postmaster-General has a right to declare
you a failing contractor. A failing contractor on the hundredth route?
Yes. On any more? Yes; on every one. And whoever is declared a failing
contractor on one route is by virtue of that declaration a failing
contractor on all. They are all taken from him. So that when a man bids
for more than one route, for instance, a hundred or a thousand, and gets
them and carries them all absolutely according to his contract but one,
he can be declared a failing contractor on all. What does that mean?
It means not simply ruin to him, but ruin to every one of his sureties,
unless they are in a condition to go on and carry the mail. I want
you to understand something of the obligation of a contractor with the
Government of the United States.
Now, I come to the bidding. These bids were made with a full
understanding of the obligation of a bidder. Messrs. Miner, Peck, and
John W. Dorsey bid, I believe, on about twelve hundred routes. You see
you are in great luck in bidding if you get one route in fifty that you
bid upon. In the first place, there are about ten thousand star routes.
I do not know that it is too much to say that the number of bids runs up
into the hundreds of thousands; somewhere in that neighborhood. Hundreds
of men often bid on one route. Consequently, nobody who bids expects to
get more than a few of the routes for which they bid. Now, is there the
slightest evidence in the statement of the Government as to the frauds
in this bidding? Let me tell you how some frauds have been committed.
Suppose, for instance, this was a fraudulent business, and Miner, Peck,
and Dorsey were bidding. Let me explain it to you. I want you to know
it. All there is in this case is simply to have you understand it. That
is all there is. And if you do not agree with me when we get through the
case I shall simply think that you have not comprehended it. Say that
four men bid on the same route, one man four thousand dol-ars, another
man three thousand dollars, another man two thousand dollars, and
another man one thousand dollars.
Now, the man who bids one thousand dollars is of no account, has not
a dollar in the world, and so when the bid is given to him he does not
want it. He is what they call a straw man. The law provides then that
the next man may have it. The law does not provide that he must take
it. He may have it if he wants to, but you cannot force him to take it,
because he is not the lowest bidder. He is the two thousand dollar man.
He is another straw gentleman. He does not want it. Then the Government
offers it to the next man at three thousand dollars. He is another
chap made of hay. He says he doesn't want it. Understand the Government
cannot force these straw and hay men to take it. Then they go to the
fourth fellow, who bid four thousand dollars. It is a good thing at four
thousand, and he says, "Yes; I will take it." That is what they call
fraudulent bidding. If you had found Dorsey and Miner and Peck bidding
on the same route and one of them failing and another one taking it, you
would not only have suspected fraud, but you would have known it.
Now, if it is a badge of fraud for them to bid upon the same route and
apparently against each other, I will ask you if it is not a badge of
fair dealing that they were not found bidding against each other. They
bid on about twelve hundred routes, and much to their astonishment they
got one hundred and thirty-four contracts.
You have heard here a great deal of talk about the number of men and
horses. We will show you all about it. Men differ upon this subject. If
men did not differ upon it at all these bids would be alike. Instead of
being a dozen bids, all different, and differing sometimes as much as
ten, twenty, thirty, forty, or a hundred dollars or more, they would bid
the same. If they all agreed on the number of horses and men it would
take, and about what it would cost, they would bid about alike, wouldn't
they? But when they are bidding they honestly differ. One man says it
would take twenty horses, and another says "no, it will take forty."
Do you not know that the number of horses depends a great deal upon
the kind of man who makes the estimate. Here is a man who is hard and
brutal, and he says a horse can do so much work. He says it is cheaper
to buy him and wear him out than it is to feed him decently. You have
known men who were perfectly willing to make fortunes out of a horse's
agony, and out of animal pain. There are hundreds of them in the world.
Now, take it on horse railroads, and with freighters, and teamsters.
Whenever you find a mean, infamous man, if he cannot whip his wife,
he will take his spite out on his horse. If a man is a good, broad,
generous, free fellow he will say, "I don't want to work that horse to
death; I think it will take four horses. I am going to keep my horses
fat, and I am going to treat them as a gentleman should." Another man,
a wretch, will come up and swear it would not take more than fifteen
horses. When his horses are through the service you will simply see a
pile of bones wrapped in a lamentable hide. You understand that.
Well, these men made twelve hundred bids and got one hundred and
thirty-four contracts. Ah, but they say, here is another badge of fraud,
another badge. Ah, they bid on small routes, on cheap routes, on routes
where the mail was carried infrequently and on slow time. If it is a
badge of fraud to bid on such routes the Government can never let out
any more. Most of these routes were cheap routes. Now, I owe it to you
to give you the reason for this. We will prove in the first place that
these men were not rich men. If they had been very rich they probably
would not have gone into the business at all. They would have gone into
that perfectly respectable business of buying Government bonds. They
would have bought Government bonds and made other fellows pay the
interest, and twice a year they would have formed a partnership with
a pair of shears, and thus in the sweat of their faces they would
clip their coupons. They bid on poor routes. Why? They were poor,
comparatively speaking.
They had not the money to stock the expensive routes where four horse
coaches were run. They preferred to take the cheaper lines. Why? Because
they could stock them. They would have been able to have stocked the
routes if they had only obtained the number they expected. But as I
told you, they got many more routes than they expected. Was that for the
benefit of the Government? How did these men come to bid so cheaply on
some of these routes? I will tell you. Because they had the information,
because they had received the facts from all the postmasters on the
routes, and consequently they made a good close calculation, and the
result was that their bids were below others, and the fact that their
bids were accepted saved the Government hundreds of thousands of
dollars. When they found themselves with all these contracts, the first
hard work they did was to give away all they could. That was the first
hard work. They had contracts, not for sale, but just to give, and they
succeeded in giving away several of them. I believe they sold two of
these children of conspiracy for the enormous sum of one hundred dollars
each. That was the highest sale they made at that time. Afterwards
another route was sold which I will explain when I come to it. Now there
is no rascality yet. No fraud yet. No conspiracy yet. Well, they then
went to work to get their bonds. But first let me say that there was
another reason for bidding on cheap routes. Whenever the bid is above
five thousand dollars, then the man who bids must, at the time he bids,
put up a check for five per cent, of the amount.
A check certified by a national bank. For instance, if it all comes to a
hundred thousand dollars he has got to put in a certified check for five
thousand dollars. Even in the little bids we made we had to deposit with
the Government some twenty-six or twenty-eight thousand dollars, and I
do not know but more, in cash, or what is the same as cash, for the bank
certifies that the money is there. That is another reason they bid on
smaller routes. What is the next? The Government asks such frightful
bonds, such terrible amounts, that a man must be almost a millionaire,
or else there must be a confidence in him that is universal, before he
can give these bonds.
There was one route at this very bidding where they had to give bonds
for six hundred and forty thousand dollars, and the sureties upon these
bonds under oath had to testify that they had real estate to the value
of six hundred and forty thousand dollars, exclusive of all debts, dues,
and demands. So there was another reason for bidding upon small routes.
Where the amount was under five thousand dollars no certified check had
to be deposited, and the smaller the route of course the smaller the
bond.
Now, I have endeavored to show you the reasons that we bid upon these
routes instead of upon the larger ones. The reasons as stated by the
Government are that we took these routes where the service was once a
week, so that we could have the service increased; that we took those
routes where the time was long so that we could have it shortened, that
is to say, expedited. But I tell you that when a perfectly good reason
lies at the very threshold of the question you have no right to go
further. The reasons I have given to you it seems to me are perfect and
you need no more.
Now, then, we got, I say, about one hundred and thirty-four routes. Of
these, one hundred and fifteen are without complaint. There is not a
word about the other one hundred and fifteen. Recollect it. We got one
hundred and thirty-four routes. In this indictment are nineteen; one
hundred and fifteen appear to be perfectly satisfactory to this great
Government. There is not a word as to those routes, not one word, I say,
as to one hundred and fifteen routes, and they want you to believe
that these defendants deliberately selected nineteen routes out of one
hundred and thirty-four about which to make a conspiracy, and that
they left one hundred and fifteen to go honestly along, but picked out
nineteen for the purpose of defrauding the Government.
Now, then, when these gentlemen found themselves with these routes, the
next thing was to put the stock and the carriers upon them. As I told
you, a good many more had been awarded to them than they anticipated.
They had not the money. So, in putting the stock upon several of the
routes, they found it necessary to borrow some money, and here comes
another suspicious circumstance. Mr. Miner borrowed some money of
Stephen W. Dorsey, and everybody is astonished that any man would be
mean enough to loan money to another; that any man could so far forget
the dignity of the office that he held as to help a friend. Their idea
of a Senator is of such a lofty and dignified character that he ceases
to take interest in anything except national affairs; that after he has
been sworn in he forgets all the relationships and friendships of
the world, and the idea of asking him to loan money seems, to the
prosecution, to be the height of unconstitutionality. But as a matter
of fact he did loan some money, and we will show you how that loan was
treated, showing you that at that time he had not the slightest interest
in it. He loaned some money, and kept loaning money until, I believe,
he had given them about sixteen thousand dollars to get these routes on.
Then he, being on his way to New Mexico, met in the city of Saint Louis
John R. Miner, who at that time was coming back, I think, from Montana
or Dakota, where he had been putting stock on a route. Miner saw Dorsey
in Saint Louis, and said to him, "We have got to have a little more
money, and I want you to indorse my note or to loan me your note and
I can get it discounted in the German-American Bank in Washington."
Finally, Dorsey said to him, "You have already obtained from me about
sixteen thousand dollars: I will give you the note you ask, or indorse
your note upon one condition, and that is that you shall give me
orders"--what are called Post-Office drafts--"not only for the amount of
this note, but for the amount of the sixteen thousand dollars." We shall
insist, gentlemen, that that evidence shows exactly our position, and
that you are entitled not only to draw from it, but that you must
draw from it the inference, the fact, that we had no interest in those
routes. Finally that was agreed to.
Now, understand it, at that time a contractor with the Government who
had agreed to carry the mail for a certain time could give what are
called post-office drafts or orders--you know, orders on his quarterly
pay--and they would be taken to the proper officer in the Post-Office
Department and they would be accepted, not for the full amount,
understand, but for any amount that might be due that contractor.
For instance, he might fail to carry the mail, he might be fined, and
consequently the amount of that draft might not be there, so that the
only thing the Post-Office Department agreed to do was to pay upon that
order or draft anything that was due to the contractor. That was done at
that time, and why? Because there was no way other than that to secure
these advances. So he gave these drafts. He came on to Washington.
The note was put into the German-American Bank. The orders on the
Post-Office Department were filed with it, and the money advanced by
the bank and charged to Stephen W. Dorsey. That made, then, at that time
about twenty-five thousand dollars that Dorsey had advanced. That being
done he went on about his business.
Now, I will show you what happened after that. I think the note in the
German-American Bank was nine thousand dollars or ten thousand dollars,
I have forgotten which. Dorsey then went on to New Mexico from Saint
Louis, and remained there, I believe, until December, 1878. Now, I want
you to understand this, because here turns a very important question,
and a very important point. Now, you recollect the information about
these bids was collected in the autumn and winter of 1877. The last
bid was to be put in, I think, February 28, 1878. Now, this was in the
August of that year, 1878. Still being pressed for money, Miner, Peck,
and J. W. Dorsey were in danger of being declared failing contractors.
Now, recollect it. We will show that at that time Brady, who, according
to the Government, was a co-conspirator, threatened to declare Dorsey,
Peck, and Miner failing contractors, and if he had declared them failing
contractors even on one route that was the end of all. At that time
Miner and John W. Dorsey sought out Mr. Harvey M. Vaile, and let me say
that is the first appearance of Mr. Vaile in these contracts. He knew
nothing about the bidding, was not in Dorsey's house, knew nothing about
the letting. That is his first appearance in these contracts, August,
1878. Now let us see what he did. He was a man of means. He had some
money; had been, I believe, for a long time engaged in carrying the
mails; understood the business. They will tell you that is a suspicious
circumstance as to him, and that the fact that that was John Dorsey's
first experience is a suspicious circumstance as to him. Really to avoid
suspicion you would have to have a man that had been in it a long time
but never had anything to do with it. They got him, and offered what? To
give him a third interest in this entire business. I think that was
it. They were to give him a third interest in this entire business,
a business that had been born of conspiracy, a business that had as a
silent partner the man who fixed the amount of money to be paid. Think
of that. According to the statement of the Government, here was a
conspiracy full-fledged, perfect in its every part, flanked by the
Second Assistant Postmaster-General, buttressed by all the clerks they
desired, and yet that conspiracy got so hard up that in August, 1878,
nine or ten months after its creation, it was willing to give a third to
anybody who would advance a little money to carry the thing on.
So Mr. Vaile came in. Now, then, they had to secure Vaile against any
loss, and it seems that on July 1, I believe, of that year, the law
allowed the subcontract to be filed. It was a little while before that
that a law had been passed for the protection of subcontractors. That
was all explained to you yesterday. You know it is something like
a mechanic's lien; that if the subcontractor would only file his
subcontract in the Post-Office Department and let that department know
the terms of it they would not pay the original contractor until this
subcontractor was paid. Now, that law had gone into effect a little
while before August, 1878, and the effect of that law, if anybody filed
a subcontract on these routes, was to cut out all those post-office
orders that Miner had given to secure Dorsey. You understand me now, do
you not? It was when he met him in Saint Louis that it was agreed
that these post-office orders were to be given and filed with the
German-American Bank in this city. Now, then, the law passed for
the protection of subcontractors, and subsequently the filing of
subcontracts on those very routes, would render those post-office orders
absolutely worthless. Very well. When they made the contract with
Mr. Vaile they agreed to file the subcontracts with the department
to protect Vaile and that rendered S. W. Dorsey's security absolutely
nothing. That cut out all other claims, drafts, and everything else, and
at that time Mr. Miner was fully authorized by power of attorney from J.
W. Dorsey and from John M. Peck, who was at that time in New Mexico, to
make this transfer to Vaile.
Now, see where we are on August 16, 1878. On Dorsey's return in
December, 1878--he had not been here from that time, and do you not see
he had nothing to do with it--he found that these subcontracts had
been filed. He found that the note in the German-American Bank had been
protested, and he found that his collateral security was not worth a
dollar, that it was all gone. Thereupon he demanded a settlement. The
matter drifted along for a little while, and a settlement was made with
the bank; and Mr. Vaile, holding the subcontract, undertook to pay that
Dorsey note, and he did pay it. He took it up, and gave, I believe, his
own instead, and that was finally paid. But the money due Dorsey, the
sixteen thousand dollars that at that time amounted to something more
by virtue of interest, was not provided for. The money that had been
expended by John W. Dorsey was not provided for. The money expended
by Peck was not provided for. Now, I want you to see exactly how that
matter stood at that time. We have got it up to that time and here
it stands, and the chief conspirator out sixteen thousand dollars and
without any interest in one of the routes. There is where he was at
that time, and that is what we will show. The brother of the chief
conspirator ten thousand dollars out, and not the interest of one cent
in any route. The brother-in-law of the conspirator about ten thousand
dollars out, and not a cent in. That was the condition of this
conspiracy at this time, and when Vaile took these routes Brady
telegraphed him and asked him, "What routes of Miner, Dorsey, and
Peck, are you going to put the stock on? This thing can be continued no
longer. The stock must go on." We will show it. Now, having got to that
point, we will take another step. There is nothing like understanding
things as we go along.
Now, from the time Mr. Vaile took the route, to the settlement in 1879,
to which I will call your attention in a little while, Mr. Vaile had the
absolute control. Neither Peck nor S. W. Dorsey had the slightest thing
to do with one of those routes until the final settlement, and I say to
these gentlemen of the prosecution now, that in that time they can find
no line, no word from Stephen W. Dorsey upon the subject. They cannot
find that he wrote a word to any official, that he sent a petition to
anybody, that he wrote a letter to any human being upon the subject,
or that he took any more interest in it than in the ashes of Sodom and
Gomorrah. It went right along.
Now, then, up to this time, Stephen W. Dorsey had made nothing. He was
only out about sixteen thousand dollars or eighteen thousand dollars.
John W. Dorsey was in the same healthy financial condition. John M. Peck
had reaped the same rich harvest of ten thousand dollars lost, and
all the things had been turned over to Mr. Vaile; John W. Dorsey put
out--left out--with nothing to show. That is the first chapter in this
conspiracy. [Resuming.]
I believe when I stopped, the principal conspirators were substantially
"broke." The head and front was out sixteen or eighteen thousand
dollars, and the other two ten thousand dollars each. Now, a contract
was made, and I propose to prove that contract in the course of this
trial. When that contract comes to be shown, it will be about this:
That, on the 16th day of August, 1878, H. M. Vaile, John R. Miner, John
M. Peck, and John W. Dorsey made an agreement That agreement made a
partnership, and we will show that a partnership was formed by and
between Miner, Vaile, Peck, and Dorsey on the 16th day of August, 1878.
We will show by the articles of that partnership that H. M. Vaile was
made treasurer, and that all the other partners agreed, by suitable
powers of attorney, to put the collection of all the money from the
Government absolutely in his hands. When he got the money he agreed,
first, to pay all the subcontractors; second, the expenses necessary
and incident to the proper conduct of the business; third, to divide the
profits remain-, ing among the parties as provided in that contract. The
profits were to be divided as follows: From routes in Indian Territory,
Kansas, Nebraska, and Dakota, to H. M. Vaile, one-third; to John R.
Miner, one-sixth; to John M. Peck, one-sixth; and to John W. Dorsey,
one-third. From routes in Montana, Wyoming, Colorado, New Mexico,
Arizona, Utah, Idaho, Washington Territory, Oregon, Nevada, and
California, to H. M. Vaile, one-third; to John R. Miner, one-third, and
to John M. Peck, one-third. Before any division of profits was to be
made, the sums which before that time had been advanced were to be
paid to the parties so advancing such sums; and if the profits were not
sufficient to repay the entire sums so advanced, they were to be paid
from time to time during the existence of the life of these contracts.
Now, you will find that such contract was made on the 16th day of
August, 1878, and that Mr. H. M. Vaile then took absolute and complete
control of every one of these routes, and the only thing they asked of
him was to repay the money that had been advanced, which, as you know,
and as I have told you, was the sixteen or eighteen thousand dollars
by S. W. Dorsey, the ten thousand dollars by Peck, and about the same
amount by John W. Dorsey. Now that is understood. At that time certain
papers were executed by all the parties. I told you that a law had been
passed by virtue of which a man could make a subcontract and have that
subcontract put on file, and thereupon he could be protected by the
Government. Now, when H. M. Vaile took these routes, and they were to
be managed by him, subcontracts were made by the other parties to Mr.
Vaile, and Mr. Vaile put those subcontracts on record. Now you can see
that they gave him the absolute and entire control of every route.
That was the condition. I have explained to you the the liability of
a contractor. He cannot put it off on a subcontractor. He is the
man primarily responsible to the Government during the life of that
contract, and for six months thereafter. Whenever a contract is awarded
to any person, he is regarded as the original contractor, and his
name is kept upon the books of the department during the life of that
contract. No matter how many subcontracts may be made, he is looked to
primarily if there is a failure of a a trip, or if there is a failure
of the service, and he is responsible for its complete performance. If
there comes some great storm and the road is obstructed by snow, or if
the bridges are all carried away by flood, and the subcontractor throws
down the contract, the original contractor must be ready to take it
up; and if he fail to do so, he can be fined three times what he has
received for each trip. There is one case in one of these nineteen
routes, gentlemen, where the fines exceeded the entire pay simply
because they did not carry the mail according to the contract. Now,
then, these parties finally made a settlement and they divided these
routes. They divided them. They ceased to have any interest in common.
Recollect, that was in April, 1879. I want you to know it because this
entire case depends on your knowing it. This entire case, gentlemen of
the jury, depends on your understanding it. In April, 1879, Mr. Vaile
having had possession of these routes for several months, a division was
made of them, and all interest in common was at that moment severed. At
this time, I say, these routes were divided, and all partnership and all
partnership interest was absolutely destroyed. I want to tell you why.
When Dorsey returned from New Mexico and found that his orders on the
Post-Office Department had been superseded by subcontracts and that his
collateral security was worthless he was indignant, and at that time
he and Mr. Vaile had a quarrel. He did not think he had been properly
treated, and for that reason the moment he got the note at the
German-American Bank provided for, the moment he induced Mr. Vaile
to assume the payment of that note, he gave evidence that he wanted a
settlement. Not that he wanted the routes divided at that time, because
he did not dream of such a thing. He wanted the settlement. He wanted
his money. The arrangement that had been made with Mr. Vaile was unknown
to Mr. Dorsey, who at that time was in New Mexico; and, as I told you
before, when he returned and found that the note that had been given to
the German-American National Bank was protested, and found, as I
told you twice, his collateral security was worthless, he wanted a
settlement. He wanted his money refunded to him. They said to him, "We
haven't the money. We have just got the stock really upon these routes.
We have just got under way, and we cannot pay out the money." "Very
well," said he, "what will you give me?" I want you all to see that this
was a simple, natural, ordinary proceeding. Said he, "I want my money."
Said Vaile to him, "We haven't the money, but I will tell you what we
will do. We will divide the routes with you." Now, recollect at that
time that they had a hundred and thirty-four routes, and had given some
of them away. At that time they agreed upon a division, and they agreed
how that division should be made. We will prove the agreement to you.
The agreement was that Mr. Vaile should choose first, taking the route
he wanted--he and Miner being together at that time--that Mr. Dorsey
should choose the next, and Mr. Miner should choose the third route;
and then that Mr. Vaile should choose the fourth, Stephen W. Dorsey the
fifth route, Mr. Miner the sixth route, Mr. Vaile the seventh route, and
so on. They finally concluded it would be fair for Mr. Vaile to take
the best route, Dorsey the next best, and Miner the next best, and then
again Vaile the best, Dorsey the next best, and Miner the next best,
and that that would be an average that would do justice to each. In
that way, gentlemen, they divided these routes. There was no conspiracy;
nothing secret. This division was made on the 6th day of April, 1879,
not only after Dorsey had gone out of the Senate, but after he had
advanced this money, after they had failed to repay him, after he had
failed to collect it, and when he finally had said, "I must have some
settlement that recognizes my claim." Gentlemen, I want you to know
that. In this case that fact will be one of the great central facts. On
the 6th day of April, 1879, these routes were absolutely divided, and
after that they had nothing in common. But you recollect that these
routes were divided by chance. Mr. Vaile chose the first route. He might
choose a route that had been bid off by Peck, or he might choose a route
that had been bid off by John W. Dorsey. Stephen W. Dorsey took the next
route, and that might have been a route that had originally been awarded
to his brother, or to Peck, or to Miner. You can see how that is. The
division was here complete. Mr. Miner did not have the routes he had bid
off and that had been given to him by the Government. Mr. Vaile came in,
and as Mr. Vaile was not an original bidder he took routes that had
been awarded to Miner and to Peck and to John W. Dorsey. By the division
Stephen W. Dorsey came into possession of routes that he never had bid
off, because he never bid for one. Consequently as he went along with
those routes, he needed and he had oftentimes the affidavit or the
certificate of the original contractor. That was a necessity. Otherwise
the division could not have been carried out. Anything that arises from
the necessity of the case does not tend to show any conspiracy or any
illegal partnership. I hope you understand perfectly that on the 6th day
of April, 1879, these routes were divided and Stephen W. Dorsey took his
share because they at that time owed him between sixteen and eighteen
thousand dollars.