Mr. Ingersoll. He had the impudence then to come here and malign
Garfield by saying that upon that statement he would have turned out two
members of his Cabinet. That is Mr. Bliss's idea of impudence; and yet,
upon the testimony of the same man, he wants to put five men in the
penitentiary.
Mr. Bliss. Not upon the sole testimony, I suppose.
Mr. Ingersoll. Not upon the soulless testimony. Now, I think that Mr.
Dorsey had a right to go and see Mr. Garfield. I think he had a right
to take that affidavit with him. General Garfield was told what this man
had said concerning Mr. Dorsey. He had the right to take that
affidavit of that man with him so that General Garfield, or the then
Attorney-General rather, might know how much confidence to put in the
statement of that man. He had a right to do that. If he found in this
way that his Attorney-General and his Postmaster-General were seeking
to have a man convicted by means not entirely honorable, then it was
not only his privilege, but it was his duty to discharge them from his
Cabinet. But I am not saying anything in regard to them now, because
they are not here to defend themselves.
Mr. Bliss. I want to correct myself. Further down on that page I see I
did refer to the impudence of this man going to Garfield.
Mr. Ingersoll. Well, as Mr. Bliss has been fair enough to state it, I
will not follow up my advantage. On another page Mr. Bliss says that
the idea that Mr. Vaile did what he did for Miner out of any sympathy is
"too thin." Mr. Bliss cannot believe that Vaile became Miner's friend
so suddenly, but he thinks it highly probable that they conspired
instantly. That is his view of human nature. Friendship is of slow
growth; conspiracy is a hot-house plant. Gentlemen, is that your view of
human nature, that a man cannot become the friend of another suddenly?
Whenever he does become his friend the friendship has to be formed
suddenly, does it not? There is a first time to everything. A moment
before it did not exist; a moment afterwards it is dead very suddenly.
There was a boy came to town one morning and met an old friend. The old
friend asked the boy, "How is your father?" He says, "Pretty well, for
him." "How is your mother?" "Pretty well, for her." "Well, how is your
grandmother?" "She is dead." "Well," says the old man, "she must have
died suddenly." "Well," said the boy, "pretty sudden, for her."
Whenever one man becomes the friend of another's, a moment before that he
was not, and a moment after he was. It must be sudden. But I imagine that
there was a friendship sprang up between Vaile and Miner, and I will
tell you why. They have been partners ever since. You, gentlemen,
have had the same experience a thousand times. It is not necessary to
conspire with a man in order to like him. Neither is it necessary to
like him to conspire with him. Men have conspired without friendship a
thousand times more, probably, than they have formed friendships without
conspiracy.
Mr. Bliss says that because Miner failed to produce the power of
attorney that Moore swore was given to him when he went West, the jury
have a right to infer that instructions to get up false petitions were
in writing and were included in that power of attorney. Mr. Moore did
not swear to the contents of that power of attorney. Do you think that
it is within the realm of probability that a man ever gave a power of
attorney to another and inserted in it: "You are hereby authorized
to get up false petitions; you are further authorized to have them so
written that you can tear them off and paste others on?
"N. B. You will make such contracts with all contractors.
"P. S. Don't tell anybody."
There was another witness in this case, Mr. Grimes (page 808). Not
the one that wore the coat--All buttoned down before--but Mr. Grimes,
postmaster at Kearney. He came all the way here to swear that he stopped
using mail bills on the route from Kearney to Kent because he was
so ordered by a letter from the Post-Office Department. Then it was
discovered that he did not have the letter with him; he went home to get
the letter, but he never came back any more.
We introduced Spangler (page 341) from the inspection division of the
Post-Office Department; I think he was in charge of that division. He
swore, as a matter of fact, that there never were any mail bills on that
route at all.
Mr. Carpenter. He was in charge of the mail bills on that route.
Mr. Ingersoll. The mail bills on that particular route. That man Grimes
was brought clear here to prove that he stopped using mail bills, and
then we proved that there never were any mail bills used on that route
for him to stop using. I do not suppose that that man was dishonest.
These people just got around him and talked to him until he "remembered
it." They just planted the seed in his mind, and then came the dew
and the rain and the lightning until it began to sprout and in time
blossomed and bore fruit--mail bills. When we come to find out that
there never were any mail bills used, away went Mr. Grimes.
On page 4969 Mr. Bliss says:
They have not, up to this moment, dared to state under oath, I think,
that those books are not in their possession.
On page 3784 Dorsey swears that he never received any such books. Never
saw any such books. He swore again and again that he never heard of any
such books.
Mr. Bliss. I stated distinctly that the defendants had not stated that
in the form required to excuse them from the production. I stated that
distinctly.
Mr. Ingersoll. All right; away goes that.
On page 4983 Mr. Bliss says:
Is it not an absurdity to suppose that Dorsey would leave Rerdell in
charge of his business from July, 1879, to August, 1880, and then on
from that time until the close of the contract term in August, 1882;
leave all the business in that way, and then through Bosler settle the
accounts with Mr. Rerdell and have no knowledge in any way, not only
of the entries contained in the books which Rerdell kept, but have no
knowledge that he kept any books whatever? Is it not absurd to suppose
any such thing? These ten routes represented an income of two hundred
and fifty-odd thousand dollars a year, or a total business, including
income and outgo, of five hundred thousand dollars a year, for three
years, going no further than that. These ten routes alone represented
transactions amounting to half a million dollars a year. There were one
hundred and thirty routes and Mr. Dorsey took one-third in value if
not in number. If the value was the same, Mr. Dorsey took not less than
forty routes. As ten routes involved a business of one million five
hundred thousand dollars in that period, the forty routes involved in
that proportion transactions amounting to six million dollars.
You made a calculation on the supposition that all the routes were
expedited the same as those in the indictment, and when you made that
calculation you knew they were not expedited.
Mr. Bliss. I object, your Honor, to his making any such statement as
that. In the first place, it is not evidence; and in the second place,
which is of more importance, it is not true. I did not know any such
thing, and I do not know any such thing.
Mr. Ingersoll. Do you say now that the other routes of his, to the
number you talked of, were expedited?
Mr. Bliss. I am not on the stand to be cross-examined now. But I do say
to your Honor that there is no evidence of that in this case. And then
I go beyond that, and say that I did not know those things then and I do
not know them now.
Mr. Ingersoll. Very well; he made the argument on the supposition that
all the routes were expedited. I say that not one of them was expedited
in which Mr. Dorsey had an interest.
Mr. Bliss. There is no evidence on that subject.
Mr. Ingersoll. Is there any evidence of what you say?
Mr. Bliss. I put a supposititious case; you have stated a fact.
Mr. Ingersoll. I will put another supposititious case, and mine is that
the other routes were not expedited.
The Court. That is the right way to meet it. Counsel ought not to turn
to counsel on the other side and make an appeal to his knowledge in
regard to matters not in evidence.
Mr. Ingersoll. I know, but he said he did not know it. Then I asked him,
as a matter of fact, if he did not know--
The Court. [Interposing.] He stated his supposition, and you met that
supposition--
Mr. Ingersoll. [Interposing.] I am always glad to get information.
Now, then, I will go to another point, and that is the $7,500 check. Mr.
Bliss speaks of that check at page 4997, and he says:
There is a question raised as to whether it was drawn in Mr. Rerdell's
presence.
I do not think there was. How could such a question be raised,
gentlemen? The check was made payable to M. C. Rerdell, or his order. On
the back of the check is Mr. Rerdell's name, put there by himself. He is
the only indorser. And yet Mr. Bliss tells you that there is a question
raised as to whether the money was drawn in Mr. Rerdell's presence or
not. The check shows, and the evidence is absolutely perfect, that the
money was paid to Rerdell in person. The question is this: Whether it
was drawn in Mr. Rerdell's presence. If it was paid to him in person,
I imagine that he was in that neighborhood at that time. The check was
written by him, everything except the signature of Dorsey. It was drawn
to Mr. Rerdell, or order, and indorsed by Rerdell himself. There was no
other indorser. So that it is absolutely certain that he drew the money
in question. And yet Mr. Bliss says the question is whether it was drawn
in Rerdell's presence or not.
Mr. Bliss continues and states that the money went to S. W. Dorsey. Did
it? Mr. Dorsey, on page 3965, states the circumstances. He was packing
to go away. He had not the time to go to the bank himself. He had
the check written payable to Mr. Rerdell, or order, and he signed it.
Rerdell went to the bank, got the money, brought it back and put it in
his carpet-sack. That is the testimony.
Now, Mr. Bliss says:
No evidence was given as to what Stephen W. Dorsey was wanting just at
that time with seven thousand five hundred dollars in bills.
According to Mr. Rerdell, he wanted that money to give to Mr. Brady.
That is what Mr. Rerdell intended to swear. But when he found that that
check was made payable to him, and indorsed by him, then they had to
take another tack. They dare not say then, "That is the check." They
dare not say then, "That is the money." Rerdell had forgotten at the
time he swore that that check was payable to his order. When he told his
seven thousand dollar story to MacVeagh he forgot about that check.
When he told it to the Postmaster-General, if he did--I have forgotten
whether he did or not--he forgot about that.
Now, gentlemen, I will call your attention to the part to which I really
wish to direct your attention. It is an admission by the Government, an
admission by Colonel Bliss; it is in these words, on page 4997, speaking
of this very thing:
However that may be, they themselves put in a check here for seven
thousand five hundred dollars, drawn about the time Mr. Rerdell spoke
of, the money upon which admittedly went to Stephen W. Dorsey, though
there is a question raised as to whether it was drawn in Mr. Rerdell's
presence or whether it was not drawn by him. But the money went to
Stephen W. Dorsey, and there was a promise made to show you what was
done with that seven thousand five hundred dollars. But, like many
another promise in this case, it remains unfulfilled to-day. No evidence
was given as to what Stephen W. Dorsey was wanting just at that time
with seven thousand five hundred dollars in bills.
Mr. Dorsey offered to tell you what he did with it, and you said you
did not want it; you did not want to know when he was on the stand. He
offered to tell you what he did with the money, and you would not take
his statement. Hear what he says:
Mr. Dorsey was not taking seven thousand five hundred dollars in bills
to the West.
How do you know? Who ever told Mr. Bliss that he was not taking seven
thousand five hundred dollars to the West? He must have got that from
Mr. Rerdell. May be that is the reason they would not allow Dorsey to
tell, because before that time they had been informed that he would
swear that he took the seven thousand five hundred dollars to the West.
How else did Mr. Bliss find this out?
It is not in the evidence, not a line. Somebody must have told him.
Who could have told him? Nobody, I think, except Mr. Rerdell. Is it
possible, then, that Mr. Bliss was afraid that Mr. Dorsey would swear
that he took it West? And was he afraid also that you would believe it?
I do not know. He did not want him to state. Now here is what I want to
call your attention to:
After all the talk about that evidence, all the talk about the seven
thousand dollars, all the talk about the seven thousand five hundred
dollar check, Mr. Bliss at least, admits to this jury:
Of course all that transaction might have occurred precisely as Mr.
Rerdell testified, and there might have involved no corruption on Mr.
Brady's part.
If, then, it may have occurred exactly as Rerdell swore, and involved no
corruption, certainly it might have occurred as Mr. S. W. Dorsey swore
and involved no corruption. I will go on now with a little more from Mr.
Bliss:
The drawing of the money and going to Mr. Brady's room might have been a
mere accident, as a call there to attend to some other business.
Of course, that is reasonable. I might go the bank and draw five
thousand dollars, and then I might stop in the Treasury Department, but
that is no evidence that I am bribing the Secretary of the Treasury. I
might step over to see the President; that would be no reason to believe
that I bribed the Executive.
Of course that is not conclusive. It is only a little straw in this
case, as showing a transaction of that kind involved in connection with
all the evidence you have in this case--A little straw evidence of Mr.
Brady's acts, and particularly as at the time when that occurs evidence
in connection with the large increases which Mr. Brady was then
ordering; evidence in connection with the books, and the evidence
they bear; evidence in connection with the declarations of Brady to
Walsh--evidence all consistent.
And then he adds this piece of gratuitous information:
Mr. Dorsey was not taking seven thousand five hundred dollars in bills
to the West.
How does he know? How did he find that out? And has it come to, this?
Has all the testimony upon that point--has the confession of Rerdell
to MacVeagh and James shrunk to this little measure--that it is "only
a straw"? Has it shrunk to this measure that Mr. Bliss admits that the
whole thing might have been exactly as Rerdell swears, and yet have been
perfectly innocent? Has it shrunk to this little measure? The Government
would not tell us--I presume the Government will not tell us, what check
it was, the proceeds of which were taken by Mr. Dorsey to Mr. Brady.
Neither will they say whether that sum was made up in one check or by
adding together a number of checks; and, if so, what number?
At page 295 Mr. Bliss told you, in his opening speech, that Rerdell had
on one occasion gone with Mr. Stephen W. Dorsey to the bank, and that
seven thousand dollars had been drawn; that he had gone with Dorsey
to the door of the Post-Office Department, or to Brady's room, at the
time--he would not undertake to say which--Mr. Dorsey stating to him
that he intended to pay that money to Mr. Brady, and that he (Mr.
Dorsey) then went in. But when they come to put this man on the stand
he will not swear that Dorsey ever told him that he intended to pay the
money to Brady. Probably that part of the statement, that Dorsey told
him that he was going to pay that money to Brady, can be found in the
affidavit made before Mr. Woodward, in September, and repeated in the
affidavit made at Hartford in November. But it is not in evidence here.
Now, we brought all the checks that we had given on Middleton's bank,
with the exception of two, I believe, that amounted to some hundred and
odd dollars. We gave the Government counsel notice that there were two
others.
Among those checks was this one for seven thousand five hundred dollars.
There were many others. I asked the gentlemen to pick out their check;
they would not do it. I asked the gentlemen to pick out the checks;
they did not do it. And now if we had failed to produce checks that were
important in this case, the Government could have produced the books and
clerks of Middleton & Company, and shown exactly the checks we drew upon
that bank that month. They did not do it. As a matter of fact, I offered
all the checks on all the banks I could think of that we had any
business with in any way, except one, and that turned out to be the
German-American Savings Bank, and it turned out that that went into
bankruptcy eight months before this business; so there is no trouble
about that. Why did they not pick out the checks upon which they claimed
that the money was drawn that was paid to Brady?
Mr. Rerdell, on page 2254, in speaking of the money, swore that money
was charged to Brady on the stub. He says that Dorsey told him, "You
will find the amount on the stub of the check-book." The jury will
notice that he speaks of the "amount," the "stub," and the "book," all
in the singular. That was followed, I believe, by about six pages of
discussion, and everybody who took part in that discussion, the Court
included, spoke of the sum of money as an "amount," upon a "stub," in a
"checkbook."
I call attention to 2254-'55-'56-'57-'58-'59. On all those pages it
is spoken of as a stub of a check-book, or amount on a stub in a
check-book. After the discussion was closed, then the witness began
to talk about "books," "checks," "stubs," and "amounts." Why did he do
that?
His object was to get the evidence broad enough--checks and check-books
enough--to fit their notice, to the end that they might get possession
of all the check-books, and of all the amounts on all the stubs.
What more? The discussion convinced Mr. Rerdell that it would be far
safer to say "stubs" than "stub"; that it would be far better to say
"check-books" than "checkbook," and far better to say "amounts" than
"amount"; because he would have a better chance in adding these up so as
to make six thousand five hundred dollars, or seven thousand dollars, or
six thousand dollars, than to be brought down to one check, one amount,
and one stub-book. So he went off into the region of safety, into the
domain of the plural.
Now, the last point--at least for this evening--so far as Mr. Bliss is
concerned, I believe, is about the red books. Mr. Bliss tells you that
Mrs. Cushman was telegraphed to from the far West. There was a little
anxiety, I believe, on the part of Rerdell about the book, and he
telegraphed her. She found it there in the wood-shed, you know, hanging
up, I think, in the old family carpet-sack--I have forgotten where she
found it--and she put it away. Now, there is a question I want to ask
here, and I know that Mr. Merrick when he closes will answer it to his
entire satisfaction; I do not know whether he will to yours or to mine:
How does it happen that Mrs. Rerdell never saw that red book? How
does it happen that Mrs. Rerdell, when she was put on the stand, never
mentioned that red book? How does it happen that she never heard of it
when her husband went to New York to get it; when everything he had in
the world, according to his idea, was depending upon it; when it was his
sheet-anchor; when it was the corner-stone of his safety? And yet
his wife never heard of it, never saw it, did not know it was in the
wood-shed, slept in that house night after night and did not even dream
that her husband's safety depended on any book in a carpet-sack hanging
in the wood-shed. She never said a word about it on the stand, not a
word. Gentlemen, nobody can answer that question except by admitting
that the book was not there and did not exist.
But perhaps I have said enough about the speeches of Mr. Ker and Mr.
Bliss. Of course, their business is to do what they can to convict. I do
not know that I ought to take up much more time with them. I feel a good
deal as that man did in Pennsylvania who was offered one-quarter of a
field of wheat if he would harvest it. He went out and looked at it.
"Well," he says, "I don't believe I will do it." The owner says, "Why?"
"Well," he says, "there is a good deal of straw, and I don't think there
is wheat enough to make a quarter."
So now, gentlemen, if the Court will permit, I would like to adjourn
till to-morrow morning.
Now, gentlemen, the next witness to whose testimony I will invite your
attention is Mr. Boone. Mr. Boone was relied upon by the Government
to show that this conspiracy was born in the brain of Mr. Dorsey; that
these other men were simply tools and instrumentalities directed by him;
that he was the man who devised this scheme to defraud the Government,
and that it was Dorsey who suggested the fraudulent subcontracts. They
brought Mr. Boone upon the stand for that purpose, and I do not think
it is improper for me to say that Mr. Boone was swearing under great
pressure. It is disclosed by his own testimony that he had eleven
hundred routes, and that he had been declared a failing contractor
by the department; and it also appeared in evidence that he had been
indicted some seven or eight times. Gentlemen, that man was swearing
under great pressure. I told you once before that the hand of the
Government had him clutched by the throat, and the Government relied
upon his testimony to show how this conspiracy originated. Now I propose
to call your attention to the evidence of Mr. Boone upon this subject.
On page 1352 Mr. Boone swears substantially that on his first meeting
with Stephen W. Dorsey--that is, after they met at the house--he said
to Dorsey that he (Boone) would be satisfied with a one-third interest.
Now, the testimony of Boone is that Mr. Dorsey then and there agreed
that he might have the one-third interest.
Mr. Dorsey says it is not that way; that he told him that when the
others came they would probably give him that interest, or something to
that effect.
Mr. Boone further swears that when J. W. Dorsey did come there was a
contract--or articles of agreement you may call them--handed to him by
J. R. Miner, purporting to be articles of partnership between John W.
Dorsey and himself, and that he signed these articles; that that, I
believe, was on the 15th of January, 1878, and that it was by virtue of
that agreement that he had one-third. It was not by virtue of any talk
he had with S. W. Dorsey that he got an interest, and you will see how
perfectly that harmonizes with the statement of Stephen W. Dorsey.
Mr. Dorsey's statement is: "I cannot make the bargain with you, but when
John W. Dorsey comes I think he will, or they will." It turned out that
when John W. Dorsey did come in January he did enter into articles of
partnership with A. E. Boone, and did give him the one-third interest.
So the fact stands out that he got the one-third interest from John W.
Dorsey and not from Stephen W. Dorsey. If the paper had been written and
signed by Stephen W. Dorsey that would uphold the testimony of Boone.
If Boone had said, "I made the bargain with Stephen W. Dorsey," and the
articles of co-partnership were signed by him, I submit that that would
have been a perfect corroboration of Boone. Stephen W. Dorsey swears
that the bargain was made with John W. Dorsey, and you find that the
agreement was signed by John W. Dorsey, and not by Stephen W. Dorsey. I
submit, therefore, that that is a perfect corroboration of the testimony
of Stephen W. Dorsey.
At page 1544 Mr. Boone says that, as a matter of fact, all contractors
endeavored to keep what they were doing secret from all other
contractors. Think of the talk we have heard about secrecy. If the
bidders upon any of these routes did not want the whole world to know
the amount they had bid, that secrecy was tortured into evidence of a
criminal conspiracy. If John W. Dorsey did not want the world to know
what he was doing, if Mr. Boone wanted to keep a secret, these gentlemen
say it is because they were engaged in a conspiracy to defraud the
Government, and crime loves the darkness. What does Mr. Boone say? As a
matter of fact, that all contractors endeavored to keep what they were
doing secret from all other contractors where they feared rivalry. Of
course that is human nature.
Mr. Boone further says that he never knew of one contractor admitting
even that he was going to bid. He always pretended, don't you see, that
he was not going to bid. He wanted to throw the other contractors off
their guard. He did not want them to imagine that he was figuring upon
that same route, because if they thought he was, they might put in a
much lower bid. He wanted them to feel secure, so that they would put in
a good high bid, and then if he put in a tolerably low bid he would get
the route. That is simply human nature.
Boone further says that always when a letting came on he had his bids
in; that contractors keep their bids secret from rival contractors, not
for the purpose of defrauding the Government, but for the purpose of
taking care of their business. Now, gentlemen, when men make these
proposals and keep their business secret--as it turns out that in these
cases they were keeping their business secret--the fact that they are so
doing is not evidence going to show that they are keeping that business
secret because they have conspired. Have you not the right to draw the
inference, and is it not the law that you must draw the inference, that
they kept their business secret for the same reason that all honest men
keep their business secret?
At page 1545, Mr. Boone, swearing again about his talk with Mr.
Dorsey that night after the arrangement was concluded, says that
he--Dorsey--told me to be careful of Elkins, because Elkins was
representing Roots & Kerens, large contractors, * * * the largest in the
department, at that time, in the Southwest.
And yet that evidence has been alluded to as having in it the touch and
taint of crime, because S. W. Dorsey said to Boone to say nothing to
Elkins. Who was Elkins? He, at that time, as appears from the evidence,
was the attorney of Roots & Kerens; and who were they? Among the
largest, if not the largest contractors in the department; that is, the
largest in the Southwest.
Mr. Boone stated that the letter of Peck to S. W. Dorsey requested
him to get some man who knew the business to look after the bids or
proposals. Now, I want to ask you, gentlemen, and I want you to answer
it like sensible men, if Stephen W. Dorsey got up a conspiracy himself,
why was it that Peck wrote to him asking him to get some competent man
to collect the information about the bids--that is, about the country,
about the routes, about the cost of living, about wages, the condition
of the roads, and the topography of the country?
If it was hatched in the brain of Stephen W. Dorsey, how is it possible,
gentlemen, that a letter was written to him by Peck asking him to get a
competent man to gather that information? Mr. Boone swears that he had
such a letter. Mr. Boone swears that Dorsey showed the letter to him.
Mr. Boone swears that, in consequence of that letter, he went to work
to gather this information. Did Mr. Dorsey do anything about gathering
information? Nothing. Did he give any advice? None. Did he ask any
questions? Not one. Did he interfere with Mr. Boone in the business?
Never.
You know that was a very suspicious circumstance. I believe there was
a direction given that letters be sent to James H. Kepuer. That was
another suspicious circumstance. Mr. Boone swears that he was also in
the mail business; that he did not want the letters to go some place;
that he had to give at the department an address; that thereupon he
chose the name of James H. Kepner, his step-son, so that all the mail
in regard to this particular business would go in one box, and not be
mingled with the mail in reference to his individual business or the
business represented by the firm to which he belonged. What more does
he swear? That neither Dorsey nor any one of these defendants ever
suggested that name, or ever suggested that any such change be made;
that it was made only as a matter of convenience; that it was not
intended to and could not in any way defraud the Government.
Now, Mr. Boone has cleared up a little of this. He has cleared up the
letter; he has cleared up the charge of secrecy; he has cleared up the
charge that we had the letters addressed to James H. Kepner & Co.; he
has shown that everything done so far was perfectly natural, perfectly
innocent, and in accordance with the habits of men engaged in that
business.
Now I come to the next thing (page 1550). The next great circumstance in
this case, the great suspicious circumstance, was that the amount of the
bid was left blank in the proposals. The moment they saw those blanks
in the bids they knew then that the Government was to be defrauded, and
they brought Mr. Boone here for the purpose of showing that that was
done to lay the foundation for a fraud. What does Boone swear? He swears
that he always left that part of the proposal blank; always had done so;
had been engaged in the mail business for years, and never filled that
blank up in his life, in which the amount of the bid should be inserted.
It was not left blank to defraud the Government, but to prevent the
postmasters and sureties, or any other persons, finding out the amount
of the bid. Away goes that suspicious circumstance.
After the bids had been properly executed and came back into the hands
of the contractors, from the time the figures were put into those
routes, what does he say they did?
We slept with them until we could get them to the department.
He says they never allowed anybody to see them after the amount of the
bid had been inserted; that they would not allow anybody to see
the amount of the bids; that it was left out, however, only for
self-protection, and for no other reason. That is the Government's own
witness. He is the man they brought to show that this blank in the bid
was a suspicious circumstance. He is the man they brought here to show
that because Stephen W. Dorsey had told him to say nothing to Elkins,
that injunction of secrecy was evidence of a conspiracy.
At page 1552, Mr. Boone, in speaking of these same things, says that
however they were made, whether the name of the bidder or the route was
put in, or whatever he did--that is, Boone--he did not do it for the
purpose of defrauding the Government. They say to him, "Don't you know
that you left out not only the amount of the bid, but the name of the
bidder?" He says, "Whatever I did, whether I left out the amount of
the bid or the name of the bidder, I did not do it for the purpose of
defrauding the Government; I had no such idea, no idea of defrauding the
Government by leaving any blank or any blanks." He did the work. Stephen
W. Dorsey left no blank; A. E. Boone left every blank; and yet they
brought him forward to prove that that was the result of a conspiracy;
and after he comes upon the stand he swears, "I left those blanks
myself; I always left them in proposals exactly in that way; and whether
I left out the amount of the bid or the name of the bidder, I did not
do it to defraud the Government; I did it simply to protect myself, as I
had the right to do." So much for that. That is gone.
So, speaking of these other proposals (the Clendenning proposals) what
does Mr. Boone say--the witness for the Government, the very man who got
up those proposals, the man who wrote them, the man who wrapped them up,
and sealed them? What does he say? "Those proposals were not gotten up
for the purpose of defrauding the Government; I did not send them to
Clendenning for that purpose." That is the end of that. No conspiracy
there.
The object, don't you see, gentlemen, was to show by Boone that he
acted under the direction of Dorsey; that Dorsey was responsible for
everything that Boone did; and that although Boone was guilty of no
crime in leaving the bid blank, still if he did it by authority of
Dorsey, Dorsey had an ulterior motive of which Boone was ignorant. Let
us see.
At page 1554, Mr. Boone swears that Dorsey never told him at any time or
any place that he wanted any blanks left. And yet they were endeavoring
by that witness to saddle that upon S. W. Dorsey. But that witness
swears that Dorsey never even told him that he wanted any blanks left in
any paper, proposal, bid, or bond. He says that Dorsey never at any time
or place told him (Boone) that he (Dorsey) wanted any blanks left, or
any proposals of any particular form printed, to the end that a fraud
might be perpetrated upon the Government--not a word.
And, gentlemen, I am now in that space of time where they say this
conspiracy was born. At page 1567, before Miner got here, Mr. Boone
swears that Dorsey told him that he would advance money for the other
defendants, and Mr. Boone swears that after he got here he never asked
Dorsey for a dollar except through Miner; that Dorsey never gave a
dollar except through Miner.
What more? This is the witness that is going to establish the guilt of
Stephen W. Dorsey. Stephen W. Dorsey never told Boone at any time that
he had any interest whatever in those mail routes. Boone never heard of
it. Dorsey never told him to print a proposal with a blank; never told
him to leave a blank after it was printed; never told him to do anything
for the purpose of defrauding the Government in any way at any
time. This is extremely good reading, gentlemen, when you take into
consideration that this is the witness of the Government, their main
prop until the paragon of virtue made his appearance upon the stand.
Page 1558. Another great point: That in preparing the subcontracts,
Dorsey having it in his mind to conspire against the Government, or
really having conspired, according to their story, wanted a provision in
a subcontract for increase and expedition.
Why, it strikes me, gentlemen, that that is evidence of honesty rather
than dishonesty. If these subcontracts were to hold good during the
contract term, and if in the contract given to the contractor by the
Government there was a clause for increase and expedition, why should
not the subcontract provide for the same contingencies that the contract
provided for with the Government? That looks honest, doesn't it?
It was advertising the subcontractor that the moment he signed his
subcontract the trips were liable to be increased and the time was
liable to be shortened, and that if the time was shortened or the trips
increased the pay was to be correspondingly increased. But I will go on
with the testimony.
Page 1558: In preparing the subcontract Mr. Dorsey instructed Boone to
provide for an expedition clause. That was a suspicious circumstance.
What for? To conform to the expedition clause in the contract with the
Government. If making it like the Government contract is evidence of
conspiracy, the fact that the Government contracts have that clause is
evidence that the Government conspired with somebody. It is just as
good one way as the other. The Government made a contract with the
contractor, the contractor made one with the subcontractor, and
the contractor so far forgot his duties, so far forgot his moral
obligations, that he made it just the same as his contract with the
Government. Gentlemen, is there any depth of depravity below that?
Absolutely copying the contract that the Government was going to make
with him, and treating the subcontractor, so far as the contract was
concerned, as the Government had treated him, he (Boone) prepared a
clause which he thought filled the bill, and which he still thinks, I
believe, would have been better to use than the other. When he showed
that to Stephen W. Dorsey, Dorsey suggested another form. It was the
same thing exactly, but in different words. There was the testimony I
have read to you, and now here is what Mr. Bliss states about it at page
4865:
But Stephen W. Dorsey, away back there, knew sufficient about expedition
to appreciate the importance of keeping for the contractors thirty-five
per cent, and giving to the men who were performing the service only
sixty-five per cent.
Why not? Is that a crime? Suppose I agreed to carry the mail four years
for $10,000 a year and I subcontract with another man. Have I not the
right to get it carried as cheaply as I can? I just ask you that as
a business proposition. Or has every mail to treat this Government as
though it was in its dotage? Must you do business with the Government as
though you were contracting with an infant or an idiot? Must you look
at both sides of the contract? That is the question. The Government, for
instance, advertises for so much granite, and I put in a bid which is
accepted; at the same time I know that I could furnish that granite for
twenty-five per cent. less. Is it my duty under such circumstances to go
and notify the Government that I have cheated it, and that I would like
to have it put the contract down? There may be heights of morality that
would see the propriety of such action, but it is not for every-day wear
and tear. Very few people have it; it scarcely ever comes into play in
trading horses. Must we treat the Government as though it were imbecile?
I say it was a simple business transaction. The Government advertises
for proposals to carry the mail; I make my bid for $10,000, and we will
say that my bid is accepted. Now, I admit that I could carry it for
$5,000 and make money.
Am I criminal if I go on and perform the contract as I agreed and
draw the money? Or suppose the people along the route do not want it
expedited and increased, and so I talk to them about it; I go to Mr.
Brown and say, "Mr. Brown, you are living in this smart, thriving town,
and you need a daily mail." I go to the next village and I say, "Why,
gentlemen, you will never have a town here until you have a daily mail;
I am the fellow now carrying the mail." And I keep talking about it,
you know, and finally get a fellow to get up a petition, or I write one
myself, and send it around, and say to them, "Gentlemen, what you want
is more mail, faster mail; the mail is the pioneer of civilization,
gentlemen; have a daily mail, and along the line at once towns and
villages and cities will spring up, and all the hillsides will be
covered with farms, and school-houses will be here, and wealth will be
universal." Any crime about that. Every railroad has been built just
that way. Every park has been laid out in every city by just such means.
Nearly every street that has been improved has been improved in that
way, by men who had some interest in the property, by men who were to
be benefited by it themselves, and who ought to be benefited. Should the
men that get the public attention in that direction be benefited, or
the men who do nothing? I say that the men who give attention to the
business have a right to be benefited by it. And yet here is the crime,
gentlemen. And then we only gave these fellows sixty-five per cent, and
took thirty-five ourselves, because we were bound to the Government
to fulfill the contract, as was explained to you so admirably, so
perfectly, by Judge Wilson. The contract was to run for four years, and
I believe in a certain contingency for six months thereafter. We had
to carry out the contract, whether the subcontractor carried out his
contract with us or not.
Now, this is what Mr. Bliss says:
So, after a large mass of subcontracts had been struck from the press,
which gave to the subcontractors all the increase--There never was a
subcontract that gave to the subcontractors all the increase; there is
no evidence that there ever was such a subcontract, he--That is, Stephen
W. Dorsey--directed them to be put back on the press.
I should think he would. If he found any subcontracts were printed that
gave to the subcontractor all the increase, I do not wonder that he had
them destroyed.
Here you get, we will say, a contract for ten thousand dollars for one
trip, with the agreement that if there are two trips the compensation
shall be twenty thousand dollars. Thereupon you make a contract with a
subcontractor, and you agree in that subcontract that he shall have all
the increase. Of course, you want that made over again; of course, you
would not make that kind of a subcontract.
He directed them to be put back on the press, and this provision giving
the subcontractor his money struck out and this other clause put in.
Gentlemen, that is an entire and absolute mistake. There is no such
evidence, there never was in this case, and I take it there never will
be. The evidence was--and you remember it; and you remember it; and
you remember it; and you [addressing different jurors]--that Stephen
W. Dorsey allowed to the subcontractor sixty-five per cent, of the
expedition, and that same subcontractor provided what he should have for
one trip, and what he should have for two trips; that is to say, what
he should have for increase; and it provided at the same time for
sixty-five per cent, on expedition. Mr. Boone swears it; others swear
it. Not only that, but it is printed in the record again and again and
again. Why did Stephen W. Dorsey do that? I can tell you why: He did
not. Why did Stephen W. Dorsey do that, if it was not because his
fertile imagination had already conceived the plan of defrauding the
United States, and he was making an arrangement by which that fraud
could be consummated? How would that help him consummate a fraud?
Suppose he struck out all the per cent, to the subcontractors; suppose
he had not had any subcontract printed; suppose the subcontract
was printed, and printed on purpose to deceive and defraud the
subcontractors; how does that show that he was trying to defraud the
United States? Why, if it proves anything it proves the other, that he
had not entered into a conspiracy by which he could get the money from
the United States, but had endeavored to get it from the subcontractors.
If it proves anything it proves that. But the reason it does not prove
anything is because the statement is not correct.
Now, just see how a conspiracy can be built of that material. A man that
can do that can make a cover for Barnum's Circus with one postage-stamp;
he can make a suit of clothes out of a rabbit-skin; he can make a grain
of mustard seed cover the whole air without growing.
That is given as an evidence that Dorsey had conspired. There is not
a thing on the earth that he could have done that would not prove
conspiracy just as well as that--just exactly--no other act. Humph! That
is the way they build a conspiracy.
Why not take another step? Why not have a little bit of ordinary good
hard sense? On the 17th day of May, I believe, 1878, the act was passed
allowing the subcontractor to put his subcontract on file. Now, that
contract ought to provide for all the contingencies of the service, so
that if the trips were increased the Government would know how much to
pay that subcontractor; so that if the time was expedited the Government
would know how much to pay the subcontractor. The subcontract ought to
have been made in that way, and it would be perfectly proper to make it
in that way.
I once went to see a friend of mine who had the erysipelas and who was a
little crazy. I sat down by his bedside, and he said, "Ingersoll, I have
made a discovery; I just tell you I am going to be a millionaire." Said
I, "What is it?" He says, "I have found out that if four persons take
hold of hands after they have had a hole made in the ground and put a
piece of stove-pipe in it, and then run around it as hard as they can
from left to right, a ball of butter will come out of the pipe." Now,
I think that is about as reasonable as the way conspiracies are made,
according to Mr. Bliss.
Now, we come to Mr. Boone (page 1560). He says that the action he had
taken was upon his own responsibility, and that at no time had any
papers been gotten up with any view of defrauding the Government. That
was good.
I am like the Democrat who said, after hearing the returns from Berks
County, "That sounds good." Then, here is a question asked him:
Q. I understood you to say that the contract was made between you and
somebody, fixing your interest in all this business?--A. Yes, sir.
Q. Do you recollect about the date of that?--A. I think it is on the day
John W. Dorsey got here in Washington.
On page 1561 he swears that at the time Boone made that contract with
John W. Dorsey he and Dorsey had not conspired to defraud the Government
in any way, nor did they ever do so after that contract was made. When
was that contract made? It was made on the 15th day of January, 1878.
Who made it? John W. Dorsey of the one part, and Albert E. Boone of the
other. And they tell exactly what that contract was for. Here is the
contract, on page 1561, and this shows that the statement of Stephen W.
Dorsey, that the matter was deferred until John W Dorsey should come, is
absolutely correct:
That the parties to this agreement shall share in all the profits,
gains, and losses as follows: John W. Dorsey shall have two-thirds and
Albert E. Boone, share one-third.
Now, gentlemen, there was the original partnership agreement. Let us see
if that was ever dissolved.
The next contract was made on the 12th of September, 1878.
Now, therefore, in consideration of one dollar in hand paid, the receipt
whereof is hereby acknowledged, I hereby, sell, assign, and transfer
to Albert E. Boone all my said two-thirds interest in the routes in the
name of said Boone in the States of Texas, Louisiana Arkansas, Kansas,
and Nebraska, and in the name of said Dorsey in the States of Texas,
Louisiana, and Arkansas.
The reason he did that was because Mr. Miner had made a contract with
Boone to that effect; and probably I had better read that now so that
you will have it exactly and know what we are doing. I read from page
1569;
Washington, D. C, August 7, 1878.
Whereas A. E. Boone has this day, for the purpose of saving a failure
in the routes in the name of John R. Miner, John M. Peck, and John
W. Dorsey--"For the purpose of saving a failure," recollect. Although
Stephen W. Dorsey, according to the prosecution, was a conspirator, and
although John W. Dorsey was another, and Peck was another, yet on the
7th day of August, 1878, "for the purpose of saving a failure," they
made this: assigned to John R. Miner his one-third interest in the
routes in their names, now, therefore, I, John R. Miner, agree that John
W. Dorsey shall assign his interest in routes in the name of A. E. Boone
in Kansas and Nebraska, Texas and Louisiana, and Arkansas; in the name
of John W. Dorsey, in Texas, Louisiana, and Kansas. The latter clause
not guaranteed.