You are told that is evidence of a conspiracy. Suppose the letter had
been this way: "We boast of being solid. We can get anything, whether
reasonable or not." That probably would have been evidence of perfect
innocence. He writes a letter and says:
We make no boast of being solid with anybody, but can get what is
reasonable.
They say that is evidence of conspiracy. Suppose he had written the
opposite, "We do boast of being solid and we can get anything, whether
it is reasonable or not." According to their logic that would have been
evidence of absolute innocence. Whenever you are suspicious you extract
poison from the fairest and sweetest flowers. Prejudice and suspicion
turn every fact against a defendant.
On page 4557 Mr. Ker tells us that Vaile never saw Peck, and yet had the
impudence to write that his subcontract was signed by Peck in person.
The subcontract is in evidence here. Nobody pretends that it was
not signed by Peck, and yet that is brought forward as a suspicious
circumstance against Mr. Vaile, because there is no evidence that Mr.
Vaile ever saw Mr. Peck. Is there anything in a point like that? "My
contract was signed by Mr. Peck in person." He does not mean by that
that he saw him sign it. The evidence here is that it was signed by
Peck, and yet the fact that he says Peck did sign it, and the fact that
he had never seen Peck, Mr. Ker endeavors to torture so that you will
think he wrote what he knew to be untrue.
On page 3251 Mr. Ker says that Miner does not deny writing the letter
marked 63 E. This letter was dated the 10th day of May, 1879, and was on
one of the Dorsey routes.
Miner swears that he never signed a paper, never touched pen to paper on
any of the Dorsey routes after the 5th day of May, 1879.
Now, gentlemen, after having made all these statements to you, and I
have only taken up a few of them, these misstatements, these mistakes,
Mr. Ker winds up by telling you it is the safer plan to find a verdict
of guilty, because if you find them guilty wrongfully the Court will
upset your verdict.
Gentlemen, you have sworn to try this case according to the law and the
evidence. You are the supreme arbiters of this case. It is for you to
decide upon this evidence, and for you alone. Yet you are told by Mr.
Ker to shirk that responsibility. You are told by him to violate your
oaths and find against these defendants, for the sake of certainty,
and then turn them over to the mercy of the Court. That is not the law.
These defendants are being tried before you. They have the right to your
honest judgment. If you have any doubt as to their guilt you must find
them not guilty or violate your oaths. You are told it is the safer way
to find them guilty and then let them appeal to the Court for mercy!
That doctrine is monstrous. It is deformed. Such a verdict would be the
spawn of prejudice, and cowardice, and perjury. You cannot give such a
verdict and retain your self-respect. You cannot give such a verdict
and retain your manhood! If you have any doubt as to the guilt of these
defendants you must say they are not guilty. You have no right to turn
them over to the Court, no matter whether the Court is merciful or
unmerciful. You must pass upon their guilt, and you must do it honestly.
I never heard so preposterous, so cruel a sentiment uttered in a court
of justice. It amounts to this, gentlemen: If you have any doubt of
guilt resolve the doubt against the defendant. If the evidence is not
quite sufficient, find against the defendants and turn them over to the
mercy of the Court. Why should we have a jury at all? Why should you sit
here at all? Why should you hear this evidence, if after all you are to
shirk the responsibility and turn the defendants over to the Court? You
never will do it, gentlemen.
Now, gentlemen, I wish to call your attention to a few points made by
Colonel Bliss. You must remember that Colonel Bliss has been very highly
complimented by his associates as a kind of peripatetic index of this
case, an encyclopedia of all the papers; that he never makes a mistake;
that he recollects amounts with absolute certainty, and that he is
infallible. Keeping all these things in your mind, I wish to call your
attention to some statements that he has made. First of all, I will
refer to a little of his philosophy, or law, and that is, that in
every affidavit you should state not the number necessary on the then
schedule, but the actual number, and that there could be no doubt about
the number of men and horses used at the time when an affidavit was
made, and that consequently anybody making an affidavit should put in
the number then actually used.
Let us see how that will work. He says the oaths are false because they
do not state the actual number of men and horses employed in carrying
the mail at the time they were made. He says that the person making the
affidavit swore to the number actually employed, and that where that
number was not employed that fact of itself shows the affidavits to
be false. I say that is not the law. The law calls for the number
necessary, not the number actually employed. Let me show how easy it
would be to cheat the Government on the principle laid down by the
gentleman. I will show you how infinitely silly that is. Let me
illustrate. Here is a route one hundred and fifty miles long, once a
week. You know it is possible for one man and one horse for a little
while to carry that mail and to go one hundred and fifty miles one way
and one hundred and fifty miles the other, making three hundred miles in
a week. You can take a magnificent horse and a good, stout, tough man,
and you can do it.
The Court. Or a boy.
Mr. Ingersoll. Or a stout, tough boy.
The Court. A boy would be best.
Mr. Ingersoll. You do not need any boy. Just one man and one horse will
answer. The man can ride the horse one hundred and fifty miles in three
days, and then ride one hundred and fifty miles back in the next three
days. All you have to swear to, according to Mr. Bliss, is the number
actually used, and so you would come in and swear to two on this route.
Now, when you are making an affidavit as to the number to be used on
a schedule to be made, you cannot swear to the number actually in
use, because they are not then in use. You have to swear to the number
necessary. You have to swear to the number required.
Now, see. On a mail route one hundred and fifty miles long I would only
want a good smart horse, and one good active man or boy. I would not
need to carry it more than one week, because I could make the affidavit
for that week, and then the question would be how many men and horses
would be required for a daily mail on the same route. I would put in a
reasonable number, and the difference between the number then actually
used and the reasonable number to use would be the standard by which to
fix my pay.
If you take the man and horse actually used, and then take the number
that would reasonably be used, you would make a difference of a thousand
per cent. And yet that is the doctrine laid down here to guide us as to
these affidavits.
Let me tell you what the law is. It does not make any difference what
you are really using at the time. You must swear to the number that
would be reasonably necessary to carry the mail on the then schedule.
You must swear to the number that would be reasonably necessary to carry
the mail on the proposed schedule. In the first place, if you put a
great deal of work on a man and horse, you must put the same proportion
on man and horse in the second schedule. If you are easy on man and
horse in the first schedule, you must be easy on man and horse in the
second. The only object, gentlemen, is to keep the proportion, because
you are to be paid according to the number of men and horses used.
Now, they say it would be necessary to go out there in order to tell how
many men and horses would be necessary, and that the men who made these
affidavits had never been on the routes. There was no need of being
on the routes. I could give you the number required on any route two
hundred or five hundred miles long. I could give you the number of men
and horses reasonably required to carry the mail once, twice, three
times, or seven times a week; and I could give you the number reasonably
required to carry it at the rate of three miles an hour or five miles an
hour or six miles an hour without going there. I need not go there for
the purpose of the affidavit. I can take it for granted that the road
is good and level, and I can keep exactly the same proportion and nobody
can be defrauded. If you take the rule of Colonel Bliss it would be
the easiest thing on earth to defraud the Government. That would be by
taking the actual number in use and then taking the number necessary.
Oil page 4761 Mr. Bliss makes the point that according to law the Second
Assistant Postmaster-General was not bound to allow according to the
affidavits. He is right as to that. That is what Mr. Bliss says, and
that is what John W. Dorsey swore he thought, and that is what Mr.
Thomas J. Brady swore he did. He did not take the affidavit as a
finality. Mr. Thomas J. Brady said that he took it for granted that the
man, when he made the affidavit, thought it was true, and that the
man, when he made the affidavit, swore to the best of his knowledge and
belief. But Thomas J. Brady never swore that he considered himself bound
by the affidavit. On the contrary, he swore that he had a standard in
his own mind, and that expedition was to cost thirty dollars a mile,
or something of that kind. He went by that standard, and he gauged the
affidavits by it.
On page 4762 Mr. Bliss says that Brady admitted that he made no inquiry
as to the truth of affidavits, and that he accepted them as absolutely
conclusive. On page 3434 Mr. Brady swears: