I asked him, "Do you know these people;" made him swear that he knew Mr.
Street; that he knew the signatures of many; that he knew these people.
I proved where they were living; that they are living in the country
now, good, respectable, honest people. And yet the Government did not
bring one man whose name had been written here to prove that he had not
authorized it. Why? Because they could not. They knew by the testimony
here that the petitions were absolutely and perfectly honest. And it is
in that way that they seek to deprive men of their liberty. They did
not call a man whose name appeared on those petitions to say that his
signature was not genuine or not authorized. I proved that many of them
are still living and first-rate men.
Now, gentlemen, you remember besides that, that Mr. H. S. Stevens, the
delegate from that Territory, recommended the same thing asked for by
those petitions (pages 1635, 1636), where it was admitted by counsel for
the Government that the letters of Stevens were genuine. It is upon that
same route that General Fremont also wrote a letter (page 1636). And I
will show you that the names are exactly or substantially the same on 18
K as those found at pages 1638 and 1639.
Mr. Ker and Mr. Bliss both endeavored to show that there were no
petitions on this route, and that it was simply done on a letter. If you
will look at page 1603 you will find the evidence of Mr. Krider, who was
postmaster at Mineral Park, in which he says there were petitions.
In order to show that there was a conspiracy between these parties, or
between Dorsey and Vaile, or Dorsey, Rerdell, and Vaile, Mr. Ker called
the attention of the jury to two letters, one written by Rerdell to the
Sixth Auditor, and one written by Vaile. Here is a letter dated the 21st
of August, 1880. It is introduced, of course, to show that there was a
conspiracy at that time between Mr. Vaile and Mr. Dorsey. It was written
by Mr. Rerdell to the Sixth Auditor:
To the Sixth Auditor:
Sir: H. M. Vaile was subcontractor on route 40104 during the first
quarter of 1879. In the first settlement for that quarter Vaile was paid
for certain expedited service--it was subsequently discovered that the
expedition thus paid for was never performed--the department therefore,
and very properly, too, charged back to the route the amount thus paid
for expedition never performed, viz, some two thousand eight hundred
dollars.
Meanwhile Vaile, who alone was in fault, had ceased to have any
connection with the route--the charging back, therefore, fell on the
wrong man, the man who was in no way responsible for the non-performance
of the expedition, except so far as he stood between the department and
the subcontractor.
It is true that this payment was made by the regular contractor to
the subcontractor, but it is equally true that it was, in a measure,
a compulsory payment. By the rules of the Post-Office Department it
is made obligatory on the regular contractor to pay the subcontractor
before the department will settle with him--it is not, therefore,
a payment as between two individuals. The receipt is on the form
prescribed by the Post-Office Department, and is witnessed by (the
then) Postmaster Edmunds, as the rules prescribe. It is on file in the
Post-Office Department, and I maintain that our covenants were fulfilled
when we put the receipt on file. If Vaile had performed the service as
he agreed he would do, and for doing which he received this money,
we should have been reimbursed by a certificate of service from the
contract office. Now, will you permit Vaile to take advantage of his own
wrong, and thus enable him to defraud another man out of his money?
I refrain from discussing the question as to what would be the duty
of the department if Vaile, who had received the money wrongfully, had
ceased to have any connection with the department, because it is
not pertinent to this issue; if it were, I could cite you to many
authorities and precedents to the effect that even then it would be your
duty to refund the money to me. But this is not necessary, because Vaile
is still doing business with the department.
He is subcontractor on route 44156 for the full contract pay, which is
twenty-two thousand dollars per annum, hence the department will have
no difficulty in reimbursing itself for what was, in simple truth, an
overpayment.
I think you will agree with me when I ask that this money be refunded to
the subcontractor on route 40104 and charged to route 44156, because it
is simply correcting an error. You have the same authority to charge
it to one as you have to charge it to the other, and you have already
charged it to me.
The law-merchant would experience no difficulty in adjusting a matter
of this sort. The merchant who would refuse to correct an error of this
character would be justly called a lame duck, and would be scouted from
"'Change" Vaile was erroneously paid for the performance of a service
which he never did perform. Therefore I ask that he be compelled to
render unto Caesar the things that he ceasers.
Respectfully,