Closing Address to the Jury in the Second Star Route Trial.
MAY it please the Court and gentlemen of the jury: Perhaps some of you,
may be all of you, will remember that I made one of the opening speeches
of this case, and that in that opening speech I endeavored to give you
the scheme or plan of the indictment. I told you, I believe, at that
time, that all these defendants were indicted for having conspired
together to defraud the United States. In that indictment they were kind
enough to tell us how we agreed to accomplish that object; that we went
into partnership with the Second Assistant Postmaster-General, he being
one of these defendants, and that we then and there agreed to get up
false petitions, to have them signed by persons who were not interested
in the mail service, to sign fictitious names to these petitions, those
names representing no actual, real, living persons; that we also agreed
to have false and fraudulent letters written to the department urging
this service; that in addition to all that we were to make and file
false and fraudulent affidavits, in which we were to swear falsely as to
the number of men and horses to be employed, and the number of men
and horses then necessary; that in addition to that we were to file
fraudulent subcontracts; that the Second Assistant Postmaster-General
was to make false and corrupt orders, and that all these things were to
be done to deceive, mislead, and blindfold the Postmaster-General. They
also set out that these orders so corruptly made were to be corruptly
certified to the Auditor of the Treasury for the Post-Office Department
in order that we might draw our pay. That is what is known as the
general scheme or plan of this indictment. You have heard the testimony,
and remember some of it. Of course you do not remember it all. Probably
no man ever lived who could do such a thing. You have heard the
testimony discussed, I believe, for about twenty days, so that I take it
for granted you know something about it, or at least have an idea that
you do. The story that we told you in the first place, and that we now
tell you, is about this:
In 1877 Mr. Peck, Mr. Miner, and John W. Dorsey made up their minds to
make bids and to go into the mail business. I want you to remember that
there is not one word in this indictment about any false bid ever having
been made. Remember that. There is nothing in this indictment about
a false bond having been given; not a thing. There is nothing in this
indictment charging that any of the original contracts were false. I
want you to remember that. There is no evidence that any person signing
any one of those contracts as security was not perfectly solvent. There
is no evidence, not one syllable, that any proposal was fraudulent,
or that any bid was fraudulent. How is it possible for a bid to be
fraudulent? I will tell you. If you make a bid, and make a contract or
enter into an agreement at the same time with some of the Post-Office
officials so that your bid will be accepted when it is not the lowest,
there is a fraud, and there is a fraudulent bid. There is one other
way, and that is to put in a bid to carry the mail at so many thousand
dollars, and then have below that straw bidders, men not responsible,
and when the time comes to accept the bid of those gentlemen they refuse
to carry it out, and then the law is that it shall be given to the next
highest, and he refuses, and the next, and he refuses, and the next
highest, and he refuses, and so on until it comes to the highest bidder.
There are such combinations and have been, I have no doubt, for many
years in the Post-Office Department. That is called straw bidding, and
it is fraudulent bidding. There is no such charge as that in this case.
Every bid that was made was made in good faith, and every bid that was
accepted was followed by a good and sufficient contract entered into by
the party making the bid, and so that is the end of that.
Now, in 1877, I say these men entered into an agreement among themselves
that they would bid on certain routes, and Mr. Peck, or Mr. Miner,
or John W. Dorsey--they may have it as they choose--somebody, wrote a
letter to Stephen W. Dorsey and in that letter told what they were going
to do and requested him to get some man to obtain information in regard
to these routes. You know that testimony. Stephen W. Dorsey was then in
the United States Senate. He sent for Mr. Boone and he showed him that
letter. In consequence of that Mr. Boone sent out his circulars to the
postmasters all over the country, or all over the portion as to which
they were to bid, and asked them about the roads, about the price of
oats and corn, about the price of labor, and about the winters; in other
words, all the questions necessary for an intelligent man, after having
received intelligent answers, to make up his mind as to the amount for
which he could carry that mail. Mr. Boone, you remember, says that
he was to have at that time a certain share. There is a conflict of
testimony there. Mr. Dorsey says that he told Boone that when John W.
Dorsey came here they could arrange that, and he had no doubt that they
would be willing to give him a share; but that he did not give it to
him. The circulars were sent out and the information in some instances,
and I do not know but all, came back. Then they agreed upon the amounts
they were to bid. I believe Mr. Miner came here in December, and John W.
Dorsey, I think, in January, and in February the bids were made. All the
amounts were put in the bidding-book issued by the Government, by Mr.
Miner and Mr. Boone; all with two exceptions, and those amounts had been
placed there by them, but under the advice of Stephen W. Dorsey those
amounts were lowered. I remember one was upon the Tongue River route,
the other route I have forgotten. Mr. Miner, Mr. Peck, and John W.
Dorsey were together. Afterwards a partnership was formed between John
W. Dorsey and A. E. Boone. Stephen W. Dorsey advanced some money. There
is nothing criminal about that. It is often foolish to advance money,
but it is not a crime. It is often foolish to indorse for another,
and many a man has been convinced of that, but it is not a crime. He
advanced until, I believe, he was responsible for some fourteen or
fifteen thousand dollars, and thereupon he declined to advance any more.
He saw Mr. Miner in Saint Louis, and said to Mr. Miner, "This is the
last I am going to advance." I think he gave him some notes that he
hypothecated or discounted at the German-American National Bank. He
wanted security, and thereupon they gave him Post-Office drafts for the
purpose of securing his debt. He would advance no more money and went
away to New Mexico. Mr. Miner had a power of attorney from John W.
Dorsey who was absent, and a power of attorney from John M. Peck who was
absent. I believe on the 7th of August, or about that time, Mr. Boone
went out. Why? They had not the money at the time to put on the service.
Why? A great many more bids had been accepted than they had anticipated,
and instead of getting twenty or thirty routes they got, I believe, one
hundred and thirty-four routes. The consequence was they did not have
the money to stock the routes. There was another difficulty.
There was an investigation by Congress, and that delayed them a month
or two, and the consequence was that when the 1st of July came, the day
upon which the service should have been put on, it was not only not put
on, but they had not the means to do it. Then what happened? Then it was
that Mr. Miner took in Mr. Vaile, and an agreement was made which bears
date the 16th day of August, 1878. It was not finally signed by all the
parties, I believe, until some time in September or October. Under that
contract, which you have all heard read, Mr. Vaile was given an interest
in this business. More than that; subcontracts were given to Mr. Vaile,
and under the subcontract law which was passed on the 17th day of May,
1878, I believe, Vaile could file his subcontract in the Post-Office
Department, and that rendered all Post-Office drafts or orders that had
been given absolutely worthless. That was done. The subcontracts were
given to Vaile under the powers of attorney that Miner held from Peck
and John W. Dorsey, and of course he could act for himself. That was
the situation. Stephen W. Dorsey was not here. When he returned he found
that everything had been disposed of except his liability, and that he
would have to pay the notes. His security was gone, and the subcontracts
were filed. At that time he and Mr. Vaile had a quarrel. That is our
story. In the meantime John W. Dorsey was on the Tongue River route. I
believe he visited Washington in November and left word that he would
like to sell out all his interests in these routes, and I believe fixed
the price. Some time in November or December Mr. Vaile made up his mind
to take the routes, and afterwards changed his mind. Stephen W. Dorsey
was then in the Senate. On the 4th of March, 1879, his term expired. I
believe on that very day, or about that day, he wrote a letter to Brady
calling his attention to these subcontracts that had been filed for the
protection of Vaile and denouncing them. That was the first thing he
did. Then a few days afterwards the parties met. In a little while
afterwards they made a division of this entire business. You know how
the division was made. Stephen W. Dorsey fell heir to about thirty of
these routes, I think. In addition he had to pay ten thousand dollars to
his brother and ten thousand dollars to Peck. Mr. Vaile, I think, took
forty per cent, and Mr. Miner thirty per cent. Mr. Vaile and Mr. Miner
went into partnership and Stephen W. Dorsey took his routes, and that
ended it. Mr. Peck was out and John W. Dorsey was out. That is our
story. When they divided those routes, in order to vest the property
of those routes in the persons to whom they fell, it was necessary
to execute subcontracts and give PostOffice drafts and things of that
character. All those necessary papers they then and there agreed to
make. Up to this point there is not one act established by the evidence
not entirely consistent with perfect innocence; not an act. That is our
story. After these routes fell to us we did what we had the right to do
and what we could to make the routes of value. As business men we had
the right to do it, and we did only what we had the right to do.
The next question that arises, and which of course is at the very
threshold of this case, is, did these parties conspire? That is the
great question. In my judgment you should settle that the first thing
when you go to the jury-room. After having heard the case as it will be
presented by the Government, and after having heard the charge of the
Court, the first thing for you to decide is, was there a conspiracy?
How is a conspiracy proved? Precisely as everything else is proved. You
prove that men conspire precisely as you prove them guilty of larceny or
murder or any other crime or misdemeanor. It has been suggested to you
that as conspiracy is very hard to prove you should not require much
evidence; that you should take into consideration the hardships of the
Government in proving a crime which in its nature is secret. Nearly all
crimes are secret. Very few men steal publicly, with a band of music
and with a torch in each hand. They generally need their hands for other
purposes, if they are in that business. All crime loves darkness. We all
know that. One of the troubles about proving that a man has committed
a crime is that he tries to keep it as secret as possible. He does not
carry a placard on his breast or on his back stating what he is about to
do. The consequence is that it is nearly always difficult to prove
men guilty as stated in the indictment. But that does not relieve the
prosecution. That burden is taken by the Government, and they must
prove men guilty of conspiracy precisely as they prove anything else. Is
circumstantial evidence sufficient? Certainly, certainly. Circumstantial
evidence will prove anything, provided the circumstances are right,
and provided further that all the circumstances are right. A chain of
circumstances is no stronger than the weakest circumstance, as a chain
of iron is no stronger than the weakest link. Where you establish or
attempt to establish a fact by circumstances, each circumstance must be
proved not only beyond a reasonable doubt, but each circumstance must
be wholly inconsistent with the innocence of the defendants. Now, let me
call your attention to what I claim to be the law upon the subject, and
I will call the attention of the Court to it at the same time. I will
take this as a kind of test:
The hypothesis of guilt must flow naturally from the facts proved
and must be consistent with them; not with some of them, not with the
majority of them, but with all of them.
In other words if they establish one hundred circumstances and
ninety-nine point to guilt and one circumstance thoroughly established
is inconsistent with guilt or perfectly consistent with innocence, that
is the end of the case.
It is as if you were building an arch. Every stone that you put into the
arch must fit with every other and must make that segment of the
circle. If one stone does not fit, the arch is not complete. So with
circumstantial evidence. Every circumstance must fit every other. Every
solitary circumstance must be of the exact shape to fit its neighbor,
and when they are all together the arch must be absolutely complete.
Otherwise you must find the defendants not guilty. The next sentence is:
The evidence must be such as to exclude every reasonable hypothesis
except that of guilt. In other words, all the facts proved must be
consistent with and point to the guilt of the defendants not only, but
they must be inconsistent, and every fact proved must be inconsistent,
with their innocence.
Now, what does that mean? It means that every fact that is absolutely
established in this case, must point to the guilt of the defendants. It
means that if there is one established fact that is inconsistent with
their guilt, that fact becomes instantly an impenetrable shield that no
honest verdict can pierce. That is what it means. That being so--and the
Court in my judgment will instruct you that that is the law--let us talk
a little about what has been established.
In the first place, nearly all that has been established, or I will not
say established, but nearly all that has been said, for the purpose of
showing that our motives were corrupt, and that we actually conspired,
rests upon evidence of what we call conversations. Some witness had a
conversation with somebody, three years ago, four years ago, or five
years ago. The unsafest and the most unsatisfactory evidence in this
world is evidence of conversation. Words leave no trace. They leave no
scar in the air, no footsteps. Memory writes upon the secret tablet
of the brain words that no human eye can see. No man can look into the
brain of another and tell whether he is giving a true transcript of
what is there. It is absolutely impossible for you to tell whether it is
memory or imagination. No one can do it. Another thing: Probably there
is not a man in the world whose memory makes an absolutely perfect
record. The moment it is written it begins to fade, and as the days pass
it grows dim, and as the years go by, no matter how deeply it may have
been engraven, it is covered by the moss of forgetfulness. And yet you
are asked to take from men their liberty, to take from citizens their
reputation, to tear down roof-trees, on testimony about conversation
that happened years and years ago, as to which the party testifying
had not the slightest interest. As a rule, memory is the child of
attention--memory is the child of interest. Take the avaricious man. He
sets down a debt in his brain, and he graves it as deep as graving upon
stone. A man must have interest. His attention must be aroused. Tell
me that a man can remember a conversation of four or five years ago in
which he had no interest. We have been in this trial I don't know how
many years. I have seen you, gentlemen, gradually growing gray. You
have, during this trial, heard argument after argument as to what some
witness said, as to some line embodied in this library. [Indicating
record.] You have heard the counsel for the prosecution say one thing,
the counsel for the defence another, and often his Honor, holding the
impartial scales of memory, differs from us both, and then we have
turned to the record and found that all were mistaken. That has happened
again and again, and yet when that witness was testifying every attorney
for the defence was watching him, and every attorney for the prosecution
was looking at him. How hard it would be for you, Mr. Juror, or for any
one of you to tell what a witness has said in this case. Yet men are
brought here who had a casual conversation with one of the defendants
five years ago about a matter in which no one of the witnesses
was interested to the extent of one cent, and pretend to give that
conversation entire. For ray part, were I upon the jury, I would pay no
more attention to such evidence than I would to the idle wind. Such men
are not giving a true transcript of their brains. It is the result
of imagination. They wish to say something. They recollect they had a
conversation upon a certain subject, and then they fill it out to suit
the prosecution.
Now, I am told another thing; that after getting through with
conversations they then gave us notice that we must produce our books,
our papers, our letters, our stubs, and our checks; that we must produce
everything in which we have any interest, and hand them all over to this
prosecution. They say they only want what pertains to the mail business,
but who is to judge of that? They want to look at them to see if they do
pertain to the mail business. They won't take our word. We must produce
them all. It may be that with such a net they might bring in something
that would be calculated to get somebody in trouble about something, no
matter whether this business or not. They might find out something that
would annoy somebody. They gave us a notice wide enough and broad enough
to cover everything we had or were likely to have. What did they want
with those things? May be one of their witnesses wanted to see them. May
be he wanted to stake out his testimony. May be he did not entirely
rely upon his memory and wanted to find whether he should swear as to
check-books or a check-book, and whether he should swear as to one stub
or as to many. May be he wanted to look them all over so that he could
fortify the story he was going to tell. We did not give them the books.
We would not do it. We took the consequences. But what did we offer?
That is the only way to find out our motive. I believe that on page 3776
there is something upon that subject. I will read what I said:
Now, gentlemen, with regard to the books. As there has been a good
deal said on that subject I make this proposition: Mr. Dorsey has
books extending over a period of twenty years, or somewhere in that
neighborhood. He has had accounts with a great many people on a great
many subjects. He does not wish to bring those books into court, or to
have those accounts gone over by this prosecution, not for reasons
in this case, but for reasons entirely outside of the case. If the
gentlemen on the other side will agree, or if the Court will appoint any
two men or any three men, we will present to those men all our books,
every one that we ever had in the world, and allow them to go over every
solitary item and report to this court every item pertaining to John W.
Dorsey & Co., Miner, Peck & Co., or Vaile, Miner & Co., with regard
to every dollar connected, directly or indirectly, with this entire
business from November or December, 1877, to the present moment, and
report to this Court exactly every item just as it is. I make that
proposition.
That proposition was refused. What else did I do? I offered to bring
into court every check, including the time they said we drew money to
pay Brady. I offered to bring in every check on every bank in which we
had one dollar deposited; every one. That was not admitted. And why?
Because the Court distinctly said that it rests upon the oath of the
defendant at last; he may have had money in banks that we know nothing
about. To which I replied at the time that if we stated here in open
court the name of every bank in which we did business, and there is any
other bank knowing that we did do business with it, we will hear from
it. So that we offered, gentlemen, in this case, every check on every
bank but one. I did not know at that time that we had ever had an
account with the German-American Savings Bank; I did not find that out
until afterwards. But you will remember that Mr. Merrick held in his
hand the account of Dorsey with that bank; and Mr. Keyser, who, I
believe, had charge of that bank, was here, and if there had been
anything upon those books, certainly the Government would have shown it.
More than that; that bank went into the hands of a receiver, I think,
eight months before any of these checks are said to have been given
for money which was afterwards given to Brady. Now, they insist, that
because we failed to bring the books into court, therefore the law
presumes that the absolute evidence of our guilt is in those books.
I believe they claim that as the law. If my memory serves me rightly,
Colonel Bliss so claimed in his speech. In other words, that when they
give us notice to produce a book, and we do not produce it, there is a
presumption against us. That is not the law, gentlemen. When they give
us notice to produce a book or letter and we do not produce it, what
can they do? They can prove the contents of the book or letter. In other
words, if we fail to produce what is called the best evidence, then the
Government can introduce secondary evidence. They can prove the contents
by the memory of some witness, by some copy, no matter how; and that is
the only possible consequence flowing from a refusal to produce the book
or letter.
And yet, in this case, gentlemen, Mr. Bliss wishes you to give a verdict
based upon two things: first, upon what we failed to prove; secondly, on
what the Court would not let them prove. He tells you that they offered
to prove so and so, but the Court would not let them; he wants you to
take that into consideration; and secondly, that there were certain
things that we did not prove; and that those two make up a case. That is
their idea. Now, let us see if I am right about the law.
The first case to which I will call the attention of the Court is a
very small one, but the principle is clear. It is the case of Lawson
and another, assignees of Shiffner, vs. Sherwood, and it is found in 2
English Common-Law Reports; 1 Starkie, 314.
The Court. Colonel Ingersoll, you cannot argue that question to the
jury; you cannot cite an authority and discuss it to the jury.
Mr. Ingersoll. Then I will discuss it with the Court; it is immaterial
to me which way I turn when I am talking. I insist that the jury must at
last decide the law in this case. I will read another case to the Court,
found in 9 Maryland, Spring Garden Mutual Insurance Company, vs. Evans.
The Court decides in this case that the only consequence of their
refusal to produce the papers, they not denying that they had them, was
to allow the opposite party to prove their contents. That is all; that
it could not be patched out with a presumption.
The Court. But if afterwards they should attempt to contradict the
secondary evidence the Court would not have allowed them to do it.
Mr. Ingersoll. It does not say so.
The Court. That is the law.
Mr. Ingersoll. Suppose, after the other side had proved the contents,
there was an offer of the actual original papers. I can find plenty of
authority that they must be received.
The Court. I have never seen such authority, but I have seen a great
many to the contrary.
Mr. Ingersoll. I have never seen an authority to the contrary that was
very well reasoned. But, then, I will not argue about that, for that is
not a point in this case.
The Court. If you have the papers, and have received notice to produce
them, you are bound to produce them. If you do not produce them
secondary evidence is admissible to prove their contents. But after the
secondary evidence has been received, the Court will not allow you then,
after having first failed to produce the papers upon notice, to resort
to the primary evidence which you ought to have produced upon the
notice, for the purpose of contradicting the secondary evidence that was
given.
Mr. Ingersoll. Now, let me give the Court a case in point: In this very
case that we are now trying, Mr. Rerdell in his statement to MacVeagh
said there was a check for seven thousand dollars; that the money
was drawn upon that check; that he and Dorsey went together to the
Post-Office Department and that Dorsey went into Brady's room; that that
money was drawn by Dorsey. That was his statement to MacVeagh and James.
The Court. It was not his statement here.
Mr. Ingersoll. Yes, that was his statement here, as I will show
hereafter. But let me state my point. He was coming upon the stand.
The check, instead of being for seven thousand dollars, was for seven
thousand five hundred dollars; instead of being drawn to the order
of Dorsey or to bearer, it was drawn to the order of Rerdell himself;
instead of being drawn at the bank by Dorsey, it was drawn by Rerdell
in person and had his indorsement upon the back of it. We were asked to
produce that. I preferred not to do it until I heard the testimony of
Mr. Rerdell. Why? Because I wanted to put that little piece of dynamite
under his testimony and see where the fragments went, and I did. That is
my answer to that.
Now, I find another case in the first volume of Curtis's Circuit Court
Reports, where it is said, on page 402, that--By the common law a notice
to produce a paper--The Court. [Interposing.] Before we part from what
you were saying, I wish to say that I do not think that the other side
gave you notice to produce the checks; that is my memory.
Mr. Ingersoll. Yes. Let me state my memory to the Court: I do not
remember exactly every one of these four thousand pages of testimony;
there are three or four that I may be a little dim about; but I do
remember that a notice was given to us to produce everything in the
universe, nearly, and that the Court held that the scope was a little
too broad. I have forgotten the page, but I will tell you where it
comes in: It was where Mr. Rerdell swore about the stub-book. I find
the notice, may it please your Honor, on page 2255, and it was dated the
13th of February. This is the notice, and it gave the same notice to all
the defendants:
You are hereby notified to produce forthwith in court, in the above
entitled cause, all letters and communications, including all telegrams,
of every kind and description, purporting to come from any one of said
defendants and addressed to you or delivered to you, and all memoranda
in which reference is made to any contract or contracts of any one of
said defendants with the United States or with the Postmaster-General
for carrying the mail under the letting of 1878 on any route in the
United States, or in any way referring to any contract or contracts
for so carrying the mail, in which J. W. Bosler or any one of said
defendants had any interest, or in any way referring to any act,
contract, or proceeding thereunder, or to any payment, draft, warrant,
check, or bill, or note, or to any possible loss or profit in connection
with such contract or contracts, or to the management or execution
thereof, or referring to any possible gain or profit to be derived
by any of said defendants from contracts for carrying the mail of
the United States, or to any payments under such contract, or to the
distribution of the proceeds made or to be made of said payment, or to
the management of any enterprise or enterprises in connection with the
transportation of the mail, or to gains, profits, or losses accruing or
likely to accrue from such enterprises, or to the financial means for
carrying on the same; and also to produce any and all books containing
any entry or entries in regard to any of the subjects, matters, checks,
drafts, or payments relating or having reference to the subjects, &c.,
hereinbefore referred to; and also any letter-book or letter-books
containing letter-press copies of letters referring to the said subject
or subjects.
I believe just about that time, or a little after, another notice was
given.
Mr. Merrick. If the counsel will allow me, my impression is that that
notice was deemed by the Court to be too broad.
The Court. It was.
Mr. Ingersoll. Then another notice was given that specified all these
things.
Curtis says in this case that--By the common law, a notice to produce a
paper, merely enables the party to give parol evidence of its
contents, if it be not produced. Its non-production has no other legal
consequence.
I find too, that in the Maryland case they make a reference to Cooper
vs. Gibson, 3 Camp., 303. I also have another case, to which I will call
the attention of the Court, United States vs. Chaffee, 18 Wallace, 516.
I have not the book here, but I can state what it is. My recollection
of the case is this: That an action was brought against some distillers;
that by law distillers have to keep certain books in which certain
entries by law have to be made. Notice was served upon the defendants to
produce those books. They refused so to do; and the question was whether
any presumption arose against the defendants on account of that refusal.
The Court. I agree with you entirely that far in your law, that the
mere fact of the failure to produce books or papers has no effect at
all against the party declining to produce them. But it is a different
question altogether, after secondary evidence has been given, in
consequence of such refusal, to supply the place of the primary
evidence. If the books and papers have an existence, and the party who
has received the notice has refused to produce them, and the other party
has given secondary evidence of the contents of such books and papers,
that secondary evidence will have to stand, under those circumstances,
as the proof in the case.
Mr. Ingersoll. That is not the point. Of course that will stand for what
it is worth. I was arguing this point: Can the jury hatch and putty and
plaster the secondary evidence with a presumption born of the failure to
produce the books and papers?
The Court. What I mean is just this: If you should fail to produce the
primary evidence, and then the secondary evidence of the contents is not
contradicted----
Mr. Ingersoll. [Interposing.] It may not be contradicted, because it
happens to be inherently improbable.
Mr. Merrick. The Government claims the law to be as your Honor has
intimated, and we have formulated it in one of our prayers. But that
abstract proposition is hardly applicable in the present case, for the
Government claims the application of another and plainer proposition:
That wherever a defendant himself takes the stand and has in his
possession a certain paper which, when called upon on cross-examination
to produce, he refuses, then a presumption unquestionably arises of such
potency that it is difficult to resist.
Mr. Ingersoll. There is no difference, so far as the law is concerned,
whether the defendant, as a defendant, fails to produce the books and
papers, or whether, in his capacity as a witness, he fails to produce
the books and papers. The law, it seems to me, is exactly the same.
Now, in this case of the United States vs. Chaffee et al. (18 Wall.,
544), Justice Field denounces that you should presume against the
party because he fails to produce books and papers known to be in his
possession. And why? I suppose a party can not be presumed out of his
liberty; he cannot be presumed into the penitentiary; and you cannot
make a prison out of a presumption any more than you can make a gibbet
out of a suspicion.
And again, the court instructed the jury that the law presumed that
the defendants kept the accounts usual and necessary for the correct
understanding of their large business and an accurate accounting between
the partners, and that the books were in existence and accessible to the
defendants unless the contrary were shown.
That same thing has been claimed here.
The Court. No.
Mr. Ingersoll. We have heard it very often that this was a large
business.
The Court. You have not heard anything of that kind from the Court.
Mr. Ingersoll. I am not saying that. I said "claimed"; if I had referred
to your Honor I should have said "decided." Here is another instruction
of the court:
If you believe the books were kept which contained the facts necessary
to show the real amount of whiskey in the hands of the defendants in
October, 1865, and the amount which they had sold during the next ten
months, or that the defendants, or either of them, could by their own
oath resolve all doubts on this point; if you believe this, then the
circumstances of this case seem to come fully within this most necessary
and beneficent rule.,
He applied the word "beneficent" to a rule that put a man in the
penitentiary on a presumption.
The Court. He was conservative.
Mr. Ingersoll. He ought to read some work on the use and abuse of words.
Now, Judge Field says further:
The purport of all this was to tell the jury that although the
defendants must be proved guilty beyond a reasonable doubt, yet if the
Government had made out a _prima facie_ case against them, not one
free from all doubt, but one which disclosed circumstances requiring
explanation, and the defendants did not explain, the perplexing question
of their guilt need not disturb the minds of the jurors.
That is this case exactly: that is the exact claim of Colonel Bliss in
this case. Gentlemen, you have only to take into consideration, he says,
what we offered to prove and what the Court would not allow us, and what
the defendants failed to prove. "Why didn't they call Bosler?"
Now, gentlemen, we claim the law to be this: That while notice is given
us to produce books and papers and we fail to do it, the only legal
consequence is that the Government may then prove the contents of such
books and papers, and that their proof of the contents must be passed
upon by you.
The next thing to which I call your attention is the crime laid at our
door, that we exercised the right of petition. It is regarded as a very
suspicious circumstance that petitions were circulated, signed, and sent
to the office of the Second Assistant Postmaster-General. Why did these
people petition? Let me tell you. If you will look in every contract
in this case you will find certain provisions relative to carrying the
mail. Among others you will find this: That no contractor has any right
to carry any newspaper or any letter faster than the schedule time; that
he has no right to carry any commercial news, or to carry any man who
has any commercial news about his person, faster than the schedule time.
No mail can be carried by anybody except the United States, and if a
community wants more mail it has no right to establish an express that
will carry the mail faster, because the United States has the monopoly.
Now, if you want more mail, what are you to do? You cannot start one
yourself; the Government will not allow it. What have you to do? You
have to petition the Government to carry the mail faster or to carry
it more frequently; and the reason you have to ask the Government to
do this is because the Government will not permit you to do it;
consequently you have only one resort. What is that? Petition. And in
this very case I believe his Honor used this language:
Every man carrying the mail has the right to take care of his business.
He has the right to get up petitions. He has the right to call the
attention of the people to what he supposes to be their needs in that
regard. He has the right to do it, and the fact that he does it is not
the slightest evidence that he has conspired with any human being.
Now, if the man carrying the mail has the right to call the attention of
the people to their needs, have not the people the right to do all
that themselves? If the man carrying the mail has the right to get up a
petition, surely the people have the right; and if the people have the
right, surely the man has that right. That is the only way we can find
out in this country what the people want--that is, to hear from them.
They have the right to tell what they want.
But these gentlemen say, "Anybody will sign a petition." Well, if that
is true, there is no great necessity for forging one. Very few people
will steal what they can get for the asking. If a bank or a man offers
you all the money you want, you would hardly go and forge a check to get
it. I will come to that in a few moments.
Now, gentlemen, according to this evidence, you have got to determine,
as I said in the outset, Was there a conspiracy? The second question you
have to determine is, When? In every crime in the world you have got to
prove the four W's--Who, When, What, Where? Who conspired? When? What
about? Where? Now I want to ask you a few questions, and I want you to
keep this evidence in mind. Was there a conspiracy when Dorsey received
the letter from Peck or Miner? Had the egg of this crime then been
laid? Had it been hatched at that time? Is there any evidence of it? The
object then was to make some bids. It is not necessary to conspire to
make bids. You cannot conspire to make fraudulent bids unless you enter
into an agreement that the lowest bid is not to be accepted, or agree
upon some machinery by which the lowest bid is not received, or put in a
bid with fraudulent and worthless security. Will the Government say that
there was a conspiracy at the time Peck or Miner wrote to S. W. Dorsey?
What evidence have you that there was? None. What evidence have you that
there was not? The evidence of Miner and the evidence of S. W. Dorsey.
What else? Boone had not been seen at that time. John W. Dorsey was not
here. Peck was not here. Peck or Miner had written the letter. Was there
any conspiracy then? Is there any evidence of it? Is there enough to
make a respectable suspicion even in the mind of jealousy? Does it
amount even to a "Trifle light as air."
Was it when Dorsey sent for Boone? Boone says no. He ought to know. S.
W. Dorsey says no. John W. Dorsey was not here. Miner had not arrived.
The only suspicious thing up to that point is that Dorsey lived "in
his house;" that he received this letter "in his house," and that Boone
visited him "in his house." That is all. Now, if there is a particle of
evidence, I want the attorney for the Government who closes this case
to point it out, and to be fair. Was it when Miner got here in December,
1877? Miner says no. Boone says no. Stephen W. Dorsey says no. John
W. Dorsey was not yet here. All the direct evidence says no. All the
indirect evidence says nothing. Now, let us keep our old text in view.
I want to ask you if there is a thing in all the evidence not consistent
with innocence? Was it not consistent with innocence that Peck and
Miner and John W. Dorsey should agree to bid? Was it not consistent with
innocence that John W. Dorsey met Peck at Oberlin, and that he met
Miner in Sandusky? Was not that consistent with innocence? Was it not
consistent with innocence for Peck to write S. W. Dorsey a letter? Was
it not consistent with innocence for Dorsey to open it and read it and
then send for Boone and give it to him? Boone in the meantime proceeded
to get information so that they could bid intelligently. Was
that consistent with innocence? Perfectly. More than that, it was
inconsistent with guilt. What next? May be this conspiracy was gotten
up about the 16th of January, when John W. Dorsey came here. Dorsey says
no; Boone says no; Miner says no; and S. W. Dorsey says no. That is the
direct evidence. Where is the indirect evidence? There is none. Ah,
but they say, don't you remember those Clendenning bonds? Yes. Is there
anything in the indictment about them? No. Was any contract granted upon
those bonds or proposals? No. Was the Government ever defrauded out of a
cent by them? No. Is there any charge in this case relative to them? No.
Everybody says no. John W. Dorsey entered into a partnership with A.
E. Boone after he came here. Is that consistent with innocence? Yes. No
doubt many of the jury have been in partnership with people. There is
nothing wrong about that. He also entered into partnership with Miner
and Peck. There were two firms, John W. Dorsey & Co., which meant A. E.
Boone and John W. Dorsey, and Miner, Peck & Co., which meant Miner, Peck
and John W. Dorsey. Is there anything criminal in that? No. They had a
right to bid. They had a right to form an association, a partnership.
There was nothing more suspicious in that than there would have been in
evidence of their eating and sleeping. Now, then, was this conspiracy
entered into on August 7, 1878, when Boone went out? Boone says no, and
with charming frankness he says if there had been a conspiracy he would
have staid. He said, "If I had even suspected one, I never would have
gone out. If I had dreamed that they had a good thing, I should have
staid in." He swears that at that time there was not any. Miner swears
to it and S. W. Dorsey swears to it. Everybody swears to it except the
counsel for the prosecution. Rerdell swears to it. That is the only
suspicious thing about it. Now, at that time, August 7, when Boone went
out, S. W. Dorsey was not here and John W. Dorsey was not here. Who was?
Miner. What was the trouble? Brady told him, "I want you to put on that
service. If you don't I will declare you a failing contractor." A little
while before that Miner had met Dorsey in Saint Louis, and Dorsey
had said, "This is the last money I will furnish. No matter whether
I conspired or not, I am through. This magnificent conspiracy,
silver-plated and gold-lined, I give up. There are millions in it, but
I want no more. I am through." So Mr. Miner, using his power of attorney
from John W. Dorsey and Peck, took in Mr. Vaile.
I believe that Mr. Rerdell swears that the reason they took in Vaile was
that they wanted a man close to Brady. According to the Government they
had already conspired with Brady. They could not get much closer than
that, could they? Miner was a co-conspirator, and yet they wanted
somebody to introduce him to Brady. John W. Dorsey and S. W. Dorsey were
in the same position. They were conspirators. The bargain was all made,
signed, sealed, and delivered, and yet they went around hunting somebody
that was close to Brady. Brady said, "I will declare you all failing
contractors. I can't help it, though I have conspired with you. I give
up all my millions. This service has got to be put on. The only way to
stop it is for you to seek for a man that is close to me. You are not
close enough." Now, absurdity may go further than that, but I doubt
it. You must recollect that that contract was signed as of the 16th of
August. You remember its terms. At that time not a cent had been paid
to S. W. Dorsey. His Post-Office drafts had been cut out by the
subcontracts. Afterwards he had a quarrel with Vaile. We will call it
December, 1878.
Was the conspiracy flagrant then? Let us have some good judgment about
this, gentlemen. You are to decide this question the same as you decide
others, except that you are to take into consideration the gravity of
the consequences flowing from the verdict. You must decide it with your
faculties all about you, with your intellectual eyes wide open, without
a bit of prejudice in your minds, and without a bit of fear. You must
decide it like men. You must judge men as you know them. Was there a
conspiracy between these defendants in December, 1878, when S. W. Dorsey
came back here and found out the security for his money was gone, and
when he had the quarrel with Mr Vaile? Is there the slightest scintilla
of testimony to show that Mr. Vaile came into this business through any
improper motive? I challenge the prosecution to point to one line of
testimony that any reasonable man can believe even tending to show that
Mr. Vaile was actuated by an improper motive. I defy them to show a line
tending to prove that John R. Miner was actuated by an improper motive
when he asked Vaile to assist him in this business. I defy them to show
that Brady was actuated by an improper motive when he told them, "You
must put on that service or I will declare you all failing contractors."
Was there a conspiracy then? I ask you, Mr. Foreman, and I ask each
of you, Was there a conspiracy at that time? Have the prosecution
introduced one particle of testimony to show that there was? In March
was there a conspiracy? Will you call dividing, a conspiracy? Will you
call going apart, coming together? If you will, then there must have
been a conspiracy in March. A conspiracy to do what? A conspiracy to
separate; a conspiracy to have nothing in common from that day forward.
Mr. Vaile entered into a conspiracy then that he would have no more
business relations with S. W. Dorsey. He swears that at that time
nothing on earth would have tempted him to go on. That is what they call
being in a conspiring frame of mind. Not another step would he go. In
March they separated, and each one went his way. It was finally fixed
up, and finally settled in May. John W. Dorsey was out with his ten
thousand dollars, and Peck was out with his ten thousand dollars. S.
W. Dorsey, for the first time became the owner of thirty routes, or
something more, and Miner and Vaile of the balance, I think about
ninety-six. According to that contract of August 16, John W. Dorsey only
had a third interest in the routes he had with Boone, and not another
cent. There was a division. If there was a conspiracy of such a
magnitude, why should Boone go out of it? Why should John W. Dorsey
sell out for ten thousand dollars? Why should John W. Dorsey offer Boone
one-third of it? Why was Mr. A. W. Moore offered one-quarter of it?--a
gentleman who could be employed for one hundred and fifty dollars a
month? I ask you these questions, gentlemen. I ask you to answer them
all in your own minds. Recollect, on the 16th of August there was
a conspiracy involving hundreds of thousands of dollars. In that
conspiracy was the Second Assistant Postmaster-General. They had the
Post-Office Department by the throat. They had the Postmaster-General
blindfolded. Yet Miner went to Vaile and said, "Now, just furnish a
little money to put on these routes and you may have forty percent, of
this conspiracy." He was giving him hundreds of thousands of dollars.
Is that the way people talk that conspire together? Would not Miner have
gone to Brady and said, "Look here, what is the use of acting like a
fool? What do you want me to give forty per cent, of this thing to Vaile
for? I had better give twenty per cent, more to you. That would allow me
to keep twenty per cent, more too, and then there will be one less to
keep the secret." He never thought of that.
I want you to think of these things, gentlemen, all of you, and see how
they will strike your mind. What did they want of Boone? S. W. Dorsey
they say was the prime mover. He hatched this conspiracy. Miner, his
own brother, Peck, and everybody else were simply his instruments, his
tools. What did he want Boone for? He had a magnificent conspiracy from
which millions were to come. He told Boone, "I will give you a third
of it." What for? He told Moore, "I will give you one-quarter."
Seven-twelfths gone already. T. J. B. thirty-three and one-third
per cent. That is about all. Then sixty-five per cent, more to the
subcontractors. I want you to think about these things, gentlemen. If
they had such a conspiracy what did they want of Mr. Moore?
Mr. Ingersoll. [Resuming.] Gentlemen, was it natural for S. W. Dorsey
to get the money back that he had advanced, or some security for it?
Was that natural? When a man seeks to have a debt secured is that a
suspicious circumstance? That is all he did. He was out several thousand
dollars. He wanted to secure that debt and he took another debt of
twenty thousand dollars upon him as a burden. If this had been a
conspiracy he could have furnished this money that he had to pay to
others to put the service on the route. I leave it to each one of you
if that action to secure that debt was not perfectly natural. I will ask
you another question. If he was the originator of the conspiracy would
he have taken thirty per cent, burdened with a debt of twenty thousand
dollars? The way to find out whether there is sense in anything or
not is to ask yourself questions. Put yourself in that place; you, the
master of the situation; you, the author of the entire scheme. Would
you take one-third of what you yourself had produced, and that third
burdened with twenty thousand dollars worth of debt, and then make your
debt out of the proceeds? I want every one of you to ask yourself the
question, because you have got to decide this case with your brains and
with your intelligence; not somebody else, but you, yourself. We want
your verdict; we want your individual opinion; not somebody else's.
There is the safety of the jury trial. We are to have the opinions of
twelve men, and those opinions agreeing. Where twelve honest men agree,
if they are also independent men, the rule is that the verdict is right.
The opinion of an honest man is always valuable, if he is only honest,
and if it is his opinion, it is valuable. It is valuable if he does not
go to some mental second-hand store and buy cheap opinions from somebody
else, or take cheap opinions. In this case I ask the individual opinion
of each one of you. I want each one of you to pass upon this evidence;
I want each one of you to say whether if Dorsey had been the author
and finisher of this conspiracy he would have taken thirty per cent.,
burdened with twenty thousand dollars of debt to others and fifteen
thousand dollars of debt to himself? If you can answer that question
in the affirmative you can do anything. After that nothing can be
impossible to you, except a reasonable verdict. You cannot answer it
that way. Why should he have cared so much about fifteen or sixteen
thousand dollars with a conspiracy worth hundreds of thousands of
dollars? Why run the risk of making the whole conspiracy public? Why
run the risk of his detection and its destruction? You cannot answer it.
Perhaps the prosecution can answer it. I hope they will try.
Mr. Ker, on page 4493, makes a very important admission.
After they (meaning the defendants) had these contracts, there was a
combination, an agreement between all these people, that they were to
do certain things in order to get at the public Treasury and get more
money.
What does that mean? That means that this conspiracy was entered into
after the defendants obtained the contracts, so that Mr. Ker fixes the
birth of this conspiracy after these contracts had been awarded to the
defendants. That being so, all the bids, proposals, Clendenning letter,
Haycock letter, proposals in blank, and bidders' names left out fade
away.
The Chico letter I will come to after awhile. I will not be as afraid of
it as were the counsel for the prosecution. I will not, like the Levite,
pass on by the other side of the Chico letter. I will not treat it as if
it were a leper, as if it had a contagious disease. When I get to it I
will speak about it. All these things, then, under that admission,
go for naught, and have nothing to do with the case, and consequently
nobody need argue with regard to them any more, although incidentally
I may allude to them again. There is no doubt, recollect, after
this admission. There is no clause in the indictment saying that we
endeavored to defraud this Government by bids, by proposals, by bonds,
or by contracts. Not a word. That is all out; in my judgment it never
should have been in the case at all. What is the next thing we did?
It is alleged that the moment Dorsey got these contracts he laid the
foundation to defraud the Government by a new form of subcontract. Let
me answer that fully, and let that put an end to it from this time
on. Until May 17, 1878, the Post-Office Department did not recognize
subcontractors. After these contracts came into the possession of
these defendants Congress passed a law recognizing subcontractors.
Consequently the contracts of the subcontractors that were to be
recognized by the Government had to be somewhere near the same form as
the contracts with the original contractors. The moment the contract
of the subcontractor was to be recognized by the Government then it was
necessary and proper to put a clause in that subcontract for expedition
and a clause in that subcontract for increase of service. Why? So that
the Government should know, if the route was expedited, what percentage
the subcontractor was entitled to. Instead of that clause in the
subcontract being evidence that Mr. Dorsey was endeavoring to swindle
the Government, the evidence is exactly the other way. It was put there
for the purpose of protecting the subcontractor, so that if expedition
was put upon the route the Government would know what per cent, of the
expedition to pay the subcontractor. If that clause had not been in that
subcontract the Government could not have told how much money to pay
the subcontractor, and as a consequence the subcontract would have been
worthless as security for the subcontractor. And yet a clause put in for
the protection of the subcontractor is referred to in your presence as
evidence that the man who suggested it was a thief and a robber. What
more? They say to these witnesses, "Did you ever see such a clause as
that in a subcontract before?" No. Why? The Government never recognized
a subcontractor before that time, and consequently there was no
necessity for such a clause. Think how they have endeavored to torture
every circumstance, no matter how honest, no matter how innocent, no
matter how sensible; how they have endeavored to twist it and turn
it against these defendants. Gentlemen, whenever you start out on the
ground that a man is guilty, everything looks like it. If you hate a
neighbor and anything happens to your lot you say he did it. If your
horse is poisoned he is the man who did it. If your fence is torn
down he is the fellow. You will go to work and get all the little
circumstances that have nothing to do with the matter braided and woven
into one string. Everything will be accounted for as coming from that
enemy, and as something he has done.
They say another thing: That we defrauded the Government by filing
subcontracts. You cannot do it. When this case is being closed I want
somebody to explain to the jury how it is possible for a man to defraud
this Government by filing a subcontract. I do not claim to have much
ingenuity. I claim that I have not enough to decide that question or
to answer it. I can lay down the proposition that it is an absolute,
infinite, eternal impossibility to fraudulently file a subcontract
as against the Government. It cannot he done. Oh, but they say, the
subcontractor did not take the oath. There is no law that he should take
an oath and there never was. There may be at some time, but there is
not now. The law that everybody engaged in carrying the mail and every
salaried officer of the department shall take an oath was passed before
the law of the 17th of May, 1879, allowing a subcontractor to file his
subcontract. Before that time the Government had nothing to do with
the subcontractor. If he actually carried the mail; if he actually took
possession of the mail, he had to take the oath of the carrier. But I
defy these gentlemen to find in the law any oath for a subcontractor.
There never was such an oath. If there is one, find it. The law that
every salaried officer and every carrier of the mail shall take the oath
was passed years and years and years before the law was passed
allowing subcontracts to be filed. What of it? Suppose a man who is a
subcontractor carries the mail and does not take any oath. That is as
good as to take the oath and not carry the mail. What possible evidence
is it of fraud? Suppose it should turn out that the carrier did not take
the oath, but carried the mail honestly. What of it? Is it any evidence
of fraud? If a man tells the truth without being sworn, is that evidence
that he is a dishonest man? If a man carries the mail properly and in
accordance with law without being sworn to do so, it seems to me that is
evidence that he is an honest fellow, and you don't need to swear
him. So when a subcontractor takes a subcontract and carries the mail
according to law it does not make any difference whether he swears to
do so or not. Is there any evidence in this case that the subcontractors
stole any letters on account of not having taken the oath? When they
answer, let them point to the law that the subcontractor is to take an
oath. There is no such law and never was.
Now, according to this admission of Mr. Ker, the conspiracy commenced
after they got the contract. Very well. I need not talk about anything
back of that. I do not know whether the admission is binding upon the
Government or not. I believe the Court holds that the Government is
not bound by the admission of any agent, and that the Government
only authorizes an agent to admit facts. May be he is mistaken. The
Government only authorizes an agent to admit the law. At any rate Mr.
Ker did the very best he knew how, and he says this conspiracy commenced
when they got the contracts, and so we need not go back of that unless
the Government is now willing to say that Mr. Ker has made a mistake.
I lay down the proposition, gentlemen, that you need not go back of the
division of these routes. Then you must go forward. What was done after
that? Recollect the exact position of Senator Dorsey and the exact
position of these other people.
The next claim is, although there was no conspiracy until after they
got the contracts, that Senator Dorsey was interested in these contracts
while he was a Senator of the United States. If they could establish
that fact it would not tend to establish a conspiracy. There is nothing
in this indictment about it. I admit that if he were a Senator, and at
the same time interested in mail contracts, he might be tried and
his robes of office stripped from him, and that he could be rendered
infamous. But that is not what he is being tried for. They say he was in
the Senate, and he was anxious to keep it secret. Mr. Ker says he was so
anxious to keep it secret that he sent all these communications out West
in Senate envelopes, so they would think a Senator had something to do
with it. Then it turned out that all the envelopes were in blank; just
plain white envelopes, with nothing on them, and away went that theory.
If he were in the Senate and engaged in these routes also, and wished
to keep it a profound secret, because if known it would blast his
reputation forever, do you think he would have had all these circulars
sent out in Senate envelopes and on Senate paper? If he did allow
that to be done, it is absolutely conclusive evidence that he was not
interested. Suppose I was trying to keep it an absolute, profound,
eternal, everlasting secret that I had anything to do with a certain
matter, would I write letters about it? Would I use paper that had my
name, the number of my office, and the character of my business printed
upon it? Would I? To ask that question is to answer it. Another thing:
They claim that he was in the Senate and infinitely anxious to keep it a
secret, and yet he found Mr. Moore, a perfect stranger, and said to him
in effect: "Yes, Mr. Moore; I don't know you, but I want you to know
me. I ama rascal. I am a member of the Senate, but I am engaged in mail
routes. I hope you will not tell anybody, because it would destroy me.
I have great confidence in you, because I don't know you." That is the
only way he could have had confidence in Moore. He would have to have it
the first time he saw him or it never would have come. To this perfect
stranger he said, "Here, I am in the Senate, but I am interested in
these routes. I am in a conspiracy. I want you to go out and attend to
this business. I want you to do all these things, and the reason I tell
you is because I am a Senator and I want it kept a profound secret. That
is the reason I tell you." That is what these gentlemen call probable.
That is their idea of reasonableness and of what is natural. That may be
true in a world where water always runs up hill. It can never be true in
this world. It is not in accordance with your experience. Not a man here
has any experience in accordance with that testimony or that doctrine;
not one. You never will have unless you become insane. If this trial
lasts much longer you may have that experience. It is a wonder to me it
has not happened already.
There is another queer circumstance connected with this case. While
Dorsey told it all to Moore he kept it a profound secret from Boone.
Boone, you know, was in at the first. Boone got up all this information.
Boone was interested in these bids, and yet he never told Boone. He had
known Boone, you see, for several weeks. He told Moore the first day,
the first minute. He wished to relieve his stuffed bosom of that secret.
Moore was the first empty thing he found, and he poured it into him.
It is astonishing to me that he succeeded in keeping that secret from
Boone, but he did. He even kept it from Rerdell.
Rerdell never heard of it--a gentleman who picks up every scrap, who
listens at the key-hole of an opportunity for the fragment of a sound.
He never heard it. John W. Dorsey did not even know anything about it.
Nobody but Moore. Now, I ask you, gentlemen, is there any sense in that
story? I ask you. I ask you, also, if the testimony of Stephen W.
Dorsey with regard to that transaction is not absolutely consistent
with itself? Did he not in every one of those transactions act like a
reasonable, sensible, good man? Oh, but they say it is not natural for
a man to help his brother; certainly it is not natural for a man to help
his brother-in-law, and nobody but a hardened scoundrel would help a
friend, and Dorsey is not that kind of a man. Occasionally in a case an
accident will happen, and from an unexpected quarter a side-light will
be thrown upon the character of a man, sometimes for good, and sometimes
for evil. Sometimes a little circumstance will come out that will cover
a man with infamy, something that nobody expected to prove, and that
leaps out of the dark. Then, again, sometimes by a similar accident a
man will be covered with glory. In this case there was a little fact
that came to the surface about Stephen W. Dorsey that made me proud that
I was defending him. Oh, he is not the man to help his brother; he is
not the man to help his brother-in-law; he is not the man to help a
friend; and yet, when Torrey was upon the stand, he was asked if he was
working for Dorsey, and he said no, and was asked if Dorsey paid him at
a certain time, or if he owed him, and he said no. He was asked why, and
he replied, "Because only a little while before, when I was not working
for him, and my boy was dead, he gave me a thousand dollars to put him
beneath the sod." That is the kind of a man Stephen W. Dorsey is. I
like such people. A man capable of doing that is capable of helping his
brother, of helping his brother-in-law, and of helping his friend. A man
capable of doing that is capable of any great and splendid action.
Is there any other man connected with this trial that ever did a more
generous, nay, a more loving and lovely thing? How such a man can excite
the hatred of the prosecution is more than I can understand.
Now, we have got to the division, and the question arises, was there
a division? Let us see. On page 5009 Mr. Bliss admits that Vaile,
immediately upon Dorsey's coming out of the Senate, came here for the
purpose of settling up this business; that he made up his mind to
have no more to do with Dorsey. Then Mr. Bliss makes this important
admission, and I do not want any attorney for the Government to deny it.
He admits that in May there was a final division, and that that division
was to take effect as from the 1st day of April, and that after
that each party took the routes allotted to him, and they became the
uncontrolled property of that person, no other person having the right
to interfere. There is your admission, just as broad as it can be made.
Mr. Bliss, after having made that admission, which virtually gives up
the Government's case, then threw a sheet-anchor to the windward and
said, "But when they divided they made a bargain with each other that
they would make the necessary papers." What for? To carry out the
division. That is all. Now, the only corner-stone for this conspiracy,
the only pebble left in the entire foundation is the agreement to make
the necessary papers after the division. That is all that is left. The
rest has been dissolved or dug up and carted away by this admission. Let
us see what that agreement was. Mr. Bliss turned to the evidence of John
W. Dorsey, on page 4105:
Q. At the time you sold out, was there any understanding about your
making papers?--A. That was a part of the agreement. I was to sign all
the necessary papers to carry on the business.
When he sold out he agreed to sign all the necessary papers. It is like
this: Mr. Bliss says on such a day, for instance, they divided. Suppose,
instead of being routes it was all land. They divided the land and then
they agreed to make the deeds. That was the conspiracy; not in the land;
not in the agreement about the land; not in the bargain, but in the
execution of the papers in consequence of the bargain. That was the
conspiracy. They agreed to make all the necessary papers. That was the
agreement. Then the Court asked John W. Dorsey a question.
Q. You agreed to sign what?--A. All the necessary papers to carry on the
business.
That is what he agreed to do. What else? What were those papers? First,
they were to sign all the subcontracts that were necessary, all the
Post-Office drafts necessary, and they were to sign letters like this:
The Post-Office Department, in regard to this route, will hereafter send
all communications to the undersigned.
In other words, the object was to let the person who fell heir to a
given route in the division control that route. That was all. The man
who was the contractor agreed that he would sign all the necessary
papers. For what purpose? To allow each man who got a route to be the
owner of it and control it and draw the money. That is all. And yet it
is considered rascality.
Let me call your attention to another piece of evidence on this subject.
On page 5016, Mr. Bliss is talking about all these papers and these
letters that were written and apparently signed by Peck, but really
signed by Miner, saying, "I want you to send all communications in
reference to such a route to post-office box No. so and so, John M.
Peck," sometimes with an M. under it and sometimes without. He did that
in consideration of the agreement at the time he got the routes that had
been originally allotted to Peck. Mr. Bliss brought here a vast number
of these papers, and then he continued, on page 5017:
All those, gentlemen, are orders, dated after the division, many of
them coming away down into 1881, and all of them relating to routes with
which Peck had no connection, because he severed his connection with all
the routes prior to the 1st of April, or as of the 1st of April, 1879.
John W. Dorsey tells you that he signed papers right along--Of course
he did. He agreed to--and I have here a series of them. Many of them are
orders not in blank. There are among the papers, orders signed in blank,
but these are dated, and they are witnessed not always by the same
person as indicating that they got together and signed a lot of orders
at the time of the division. There is every indication that the dates
are correct. The witnesses are different at different times.
The Court. These same orders would have been made if the division had
been perfectly honest.
That is what I say. That is what we all say, gentlemen.
If the transaction then had been perfectly honest the papers would have
been precisely as they are. From the papers being precisely as they
are, do they tend to show that the transaction was dishonest, when it is
admitted by everybody and decided by the Court, that if the transaction
had been perfectly honest the papers would have been just as they are?
Recollect my text. Every fact when you are proving a circumstantial case
has to point to the guilt of the defendants, and their guilt has to be
found from all the facts in the case beyond a reasonable doubt. If there
is one fact inconsistent with their guilt, the case is gone.
There is another little admission to which I call your attention.
Nothing delights me so much as to have the prosecution in a moment of
forgetfulness, or we will say on purpose, admit a fact. Mr. Bliss said,
on page 5018:
You will bear in mind that the division took place some eight months
previous to that.
That was January 1, 1880,
However that may be, these papers are all papers which on their faces
might be innocent and fair and proper. They are papers which, under
ordinary circumstances, might be executed to enable others than the
contractor to draw the pay and to be tiled with the department, though
it appears, I think, by the evidence in this case that no draft could be
filed except shortly prior to the quarter as to which it applied. As to
these papers all that we have to say is this: they are papers on
their face apparently innocent, papers calculated to go through in the
ordinary practice as though there was nothing wrong about them. At the
same time the evidence shows that they were papers executed by these
several parties at the time of or in pursuance of the agreement of the
division.
I do not want anything better. That settles the papers. They were made
at the time they agreed to make them. It was the only way in which they
could give the party who got the route absolute control of the route.
Now, gentlemen, apart from these papers, I believe they have three
witnesses, at least they are called witnesses, in this case. The first
witness that I will call your attention to, and who figures about as
early as anybody, is A. W. Moore. I want to ask you a few questions
about his testimony. I want you to understand exactly what he swears to
and the circumstances. Let us see.
He swears first that he had a conversation with Miner, in which he told
Miner that he would work for him for one hundred and fifty dollars a
month and expenses, with permission to put on some of his own service, I
think, in Oregon and California, and that Mr. Miner accepted his terms,
and employed him as the agent of Miner, Peck & Co. Recollect that,
Miner, Peck & Co. Second, that Miner told him to report at Dorsey's
house to get instructions. Miner at that time was staying at Dorsey's
house. I do not know whether it was to get instructions from Dorsey or
from the house, or from Miner. I take it, from Miner. No matter. Mr.
Moore then swears that he reported to Dorsey and Dorsey asked him his
opinion about the service. Moore had never been there and did not know
one of the routes, but Dorsey was anxious for his opinion. How did he
know any more about the service than Dorsey? There is no evidence that
Moore knew the price. There is no evidence that he knew the amount the
Government was to pay on a single route. He was a stranger. Then he had
another conversation with Dorsey in which Dorsey told him that they had
bid on the long routes with slow time, because that was the way to make
money. Not satisfied with that, Mr. Dorsey showed him the subcontracts
with the blanks and with the changes, and then he explained to him the
descending scale, and he explained to him the percentage of expedition.
He said Dorsey told him forty per cent, of the expedition. Boone swears
it was sixty-five per cent. There is a little difference; not much.
Moore swears that he himself was to have twenty-five per cent, of the
stealings. Let us see how that is. Boone swears that the subcontractor
was to have sixty-five per cent. Rerdell swears that Brady was to have
thirty-three and one-third per cent. That leaves one and two-third per
cent, for the contractor. Do you see? The subcontractor got sixty-five
dollars out of one hundred dollars, and then Brady got thirty-three
dollars and thirty-three and one-third cents. That makes ninety-eight
dollars and thirty-three and one-third cents, leaving the contractor one
dollar and sixty-six and two-third cents. That was all he got. Did you
ever know of anybody on earth doing business at a smaller per cent, and
paying for the trouble? Now, Mr. Moore comes in with his statement.
He says the subcontractor got forty per cent, and then he himself got
twenty-five per cent. That makes sixty-five. Then, according to Rerdell,
Brady was to have thirty-three and one-third per cent. That makes
ninety-eight and one-third. There is the most wonderful coincidence in
this whole trial. Rerdell and Boone and Moore agree exactly that the
contractor gave up ninety-eight and one-third per cent, to others and
took one and two-thirds himself. Did you ever know as much humanity in
a conspiracy as that? Did you ever know such a streak of benevolence
to strike anybody? It reminds me of a case of disinterested benevolence
that happened in Southern Illinois. A young man there went to a lawyer
and said to him, "I want to get a divorce, I was married at a time when
I was drunk, and when I sobered up I didn't like the marriage. I want a
divorce." The lawyer asked, "What do you want of a divorce?" "Well,"
he said, "do you know the widow Thompson?" "Yes." "She has been a widow
there for about forty years. Do you know her boy? He is the biggest
thief in this county. He went over the Ohio River the other day and
stole a set of harness and a mule." "What has that to do with this
divorce case?" "Well," he said, "I want to get a divorce and I want to
marry that widow." "What for?" "I want to get control of that boy and
see if I can't break him from stealing. I have got some humanity in me."
Here are S. W. Dorsey, his brother, his brother-in-law, Miner and Vaile
starting a charity conspiracy, and out of every hundred dollars that
they steal they offer ninety-eight dollars and thirty-three cents upon
the altar of disinterested friendship. You are asked to believe that.
You will not do it.
Mr. Moore also swears that he received some money by a check, but he
does not know whether the check was payable to him or payable to Miner,
and he got a power of attorney signed by Miner from John W. Dorsey and
John M. Peck, and then he started, S. W. Dorsey assuring him in the
meantime that he could tell the people out there that the service would
be increased and expedited in a few days. Mr. Moore is a peculiar man.
He says that that suited him exactly. He was willing to steal what
little he could; he was willing to steal for one hundred and fifty
dollars a month if he couldn't get any more, or he was willing to steal
for a part of the stealing. If he could not get that he would take an
ordinary salary. I should think he was a good man from what he says. You
heard him. They were wonderfully anxious to prove by Moore that Dorsey
was the head and front of this whole business. That was the object, and
so he swore as to the instructions. He said he was instructed to get up
petitions so that they could be torn off and the names pasted on other
petitions. He swore he carried out those instructions. He swore that
Major agreed to do it, and I think a man by the name of McBeau was going
to do it. Yet, gentlemen, there never was such a petition gotten up.
Major swore here that he never heard of it; that he never dreamed of it,
and never agreed to it; that it was a lie; that it was never suggested
to him. Moore went out West and came back as far as Denver, and at
Denver met John R. Miner, and then came here and saw Dorsey. What did he
do with Dorsey? He swears that he went to Stephen W. Dorsey and settled
with him, and that Dorsey settled in a very generous and magnanimous
way, and did not want to look at his account, and did not want to look
at the book; had no anxiety or curiosity about the items. He just said,
"How much is it?" It happened to be even dollars--two hundred and fifty
dollars. When a man goes out West and has hotel bills and all that sort
of thing, when he comes to render his expense account it is always even
dollars. Moore said two hundred and fifty dollars. Dorsey gave it to
him; never looked at the book at all. Moore swears that he made that
settlement with Stephen W. Dorsey on the 11th day of July, 1878. Dorsey
was then in the Senate.
Look at page 1417. You see that Moore had been smart; that is what
people call smart. You know it is never smart to tell a lie. Very few
men have the brains to tell a good lie. It is an awfully awkward thing
to deal with after you? have told it. You see it will not fit anything
else except another lie that you make, and you have to start a factory
in a short time to make lies enough to support that poor little bantling
that you left on the door-step of your honesty. A man that is going to
tell a lie should be ingenious and he should have an excellent memory.
That man swore that he settled with Dorsey to the 11th day of July, 1878;
swore it for the purpose of convincing you that Dorsey employed him;
that Dorsey gave him instructions; that Dorsey was the head and front of
the conspiracy. I then handed him a little paper, and asked him, "Do you
know anything about that? Did you ever sign that?" And here it is:
Not July 11. That is the day he got the money of Dorsey.
July 24, 1878.
Received of Miner, Peck & Co., one hundred and sixty-six dollars,
balance of salary and expenses in full to July 11, 1878.