JOHN R. MINER.

Now, he said to Mr. Boone, "I have got to have another man come in; we

haven't got the money to run these routes; I have got to get somebody

with us; if you will go out, I will agree that John W. Dorsey will

assign to you his two-thirds interest in all the routes in Kansas,

Nebraska, Texas, Louisiana, and Arkansas. I will agree that John W.

Dorsey, although he has a two-thirds interest in all these routes, shall

assign them to you, A. E. Boone, and they shall thereupon become your

property." That agreement was made on the 7th of August, 1878; and then,

as I read you before, on the 12th day of September, Miner made that

promise good, and John W. Dorsey did assign to Boone his two-thirds

interest in all the routes that Miner said he would. Then Boone was out

of it. He had no more to do with Miner, Peck & Co., and no more to do

with John W. Dorsey; he went his road and they went theirs. He went out

in consideration that John W. Dorsey would give him (Boone) two-thirds

of all the routes that he before that time had one-third in. Then Miner

took in Mr. Vaile, because he had the money to go on with the business.

Page 1562, still talking about Mr. Boone. There is another very

suspicious circumstance that was brought up by the prosecution. These

bids were put in in different names, and that was looked at as a very

suspicious circumstance. What does Boone say about that? He says

that the object in bidding in separate names was not to defraud the

Government, but was to have the service divided up and not to bid

against each other. That was reasonable. The arrangement was simply

to keep from injuring themselves; it was not made to defraud the

Government, but it was made so that they might not by accident injure

each other. It was a common thing for members of a firm to bid in that

way, and it is a common thing for persons to organize themselves for the

purpose of bidding and running contracts, and when they thus bid they

always bid in their individual names. The fact that we bid in our

individual names was taken as a circumstance going to show that we had

conspired to defraud the Government, and a witness they bring forward to

prove that fact swears that it has been the custom for all firms to bid

in their individual names. Away goes that suspicion. The coat-tail of

that point horizontalizes in the dim distance.

Page 1563. The point was made, gentlemen, that we bid on long routes

with slow time, knowing--understand, knowing--that the service would be

increased and that the time would be shortened. The only word I object

to there is the word "knowing." That we bid on long routes with slow

time thinking that the service would be increased and the time shortened

was undoubtedly true. That we bid expecting that the service might be

increased and the time shortened is undoubtedly true. That when we

bid we took into consideration the probability of the service being

increased and the time shortened is undoubtedly true. The only

difference is the difference between thinking and knowing; between

taking into account probabilities and making the bid because we had

made a bargain with the Second Assistant Postmaster-General. That is the

difference. Let us see what Boone says about it. I read from page 1563:

On all service of three times a week and under there is a chance for

improvement in getting it up to six or seven times a week.

Everybody who has ordinary common sense knows that! If I bid on service

for once a week there is a great deal better chance for getting an

increase of trips than if there were seven when I started. Everybody

knows that. There is about six times as good a chance.

All contractors consider that--That chance--in their bids, and bid

lower on one, two, and three times a week service than on a daily

service--Why?--because the chances are the route will be increased.

Boone swears on the same page that he always did that himself; that

he always had done it. Yet that is lugged in here as evidence of a

conspiracy.

There is a great deal better chance for expedition when a route is let

at two or three miles an hour, than when it is let at six or seven.

Of course there is. The slower it is let the better chance of getting it

expedited. The faster it is let the less chance of getting it expedited.

There is no need of bringing a man here to show that. You know that. If

you thought there was more money in expedition and increase than on the

original schedule, you would, as I insist, bid on such routes as the

advertisement showed the time was to be slow and the service infrequent

upon. Now, gentlemen, to take advantage of such a perfectly apparent

thing as that will not do. You have heard a good deal about star routes,

gentlemen. Every one of you by this time ought to make a pretty good

guess.

Postmaster-General; every one of you. If you do not know all about this

subject, you never will.

The Foreman (Mr. Crane). We ought to be good lawyers, too.

Mr. Ingersoll. You also ought to be good lawyers, at least on this

subject! I do not know that you have all the testimony in your minds, as

there have been so many misstatements made, but if you ever are to

know anything on this subject you know something now; and if you, Mr.

Foreman, or you Mr Renshaw, were to-morrow to go to work to bid on some

star routes you would bid on the longest routes, on the slowest time,

and with the most infrequent trips. You would do that. Then would you

say, "That is evidence that we have conspired"? Has a man got to be so

stupid that he will not take advantage of a perfectly plain thing in

order to escape the charge of conspiracy? If you were to put your money

in land in the Western country you would not go where the country was

settled up, and give one hundred dollars an acre for land. You would go

where you could get laud for two, or three, or four, or five dollars

an acre, and say, "There is a chance for land to rise." That is not

conspiracy. So if you were going to bid on mail service you would bid

where the time is slow, or the route long, and the service once a week.

Then you would say that the country might grow, that railroads might be

built and that they might get the service up to seven trips a week; and

that instead of going on two miles an hour may be they would want to

make it seven miles an hour. That is the service to make money on. Is

it a crime to make money? Is it a crime to make a good bargain with the

Government? I suppose these gentlemen of the prosecution made the best

bargain they could with the Government themselves. Is it a crime? I

say no. Is a man to be regarded as a conspirator because some outsider

thinks he got too good a bargain? That will not do. Boone says he always

did that. Of course he did. He says another thing. These gentlemen say

that we did not go above three trips, and that is another evidence of

fraud. They say we did not bid on any route with more than three trips

a week. Mr. Boone tells you, on page 1565, that the department never

advertised for four trips a week. That is the reason I think they did

not bid on any of these. He also swears that they never advertised for

five trips. That is a good reason for our not taking any routes with

five trips, is it not? There were not any advertised. The Government did

not offer to let us have any. That is a good reason for not taking any

of them. The Government had not any of that kind. After you get beyond

three trips Boone swears that the next number is six or seven; never

four, never five. Don't you see? And yet it is a very suspicious

circumstance that we did not bid on any four-trip routes, or any

five-trip routes; that we stopped at three. Why did we stop at three?

Because if we had not stopped at three we would have had to go to six.

Why did we not go to six? Because at six trips a week we would have

been obliged to put up too much money, and to put up too many certified

checks. It required too many men to go on the bonds. That is the reason.

Gentlemen, if there had been a conspiracy it would have been just about

as well for us to bid on six or seven trips to get the expedition of

time. If there had been a conspiracy to make money, and it had been

understood by the Second Assistant Postmaster-General, he could have

just as well given us routes with seven trips a week, and put the

service up to seven, eight, nine, or ten miles an hour, and he could

have done that in the thickly-populated parts of the country; if it had

been the result of a conspiracy.

Let me read more from what Mr. Boone says on page 1565:

The proposals that I destroyed were upon routes of at least six times

per week.

How did he come to destroy them? Another suspicious circumstance against

Dorsey! Boone said when he went into the business he just took the

bidding-book and commenced at A, and was going right straight through to

X, Y, and Z, and make a bid, I believe, on every route that was in the

book. I think that is his testimony. Boone says:

I was going on without instructions. I was going on without authority

from anybody, working on the bids.

He thinks it was the same day that Miner got here, or the day

afterwards, and he--I suppose meaning Dorsey--came up to the room and

saw what the witness was doing. He was making up bids for every route

in the advertisement, going right along with big and little, when Dorsey

said there was a mistake. No proposals were to be made for over three

times a week or for routes under fifty miles. When Miner came into the

room witness asked what was the reason of that. I say upon this point

that Stephen W. Dorsey never said a word about it, and that Boone is

mistaken. But he says he asked Miner the reason. What did Miner say?

Did he say to him, "It is because we have got a conspiracy? We have

got it fixed with the Second Assistant Postmaster-General"? No. He said

this, he said for fear of failure in getting bonds; that they could not

get the bonds for all the service and could not get certified checks for

all the service. Boone was going clear through the book from preface to

finis. They could not get bonds for all the service and could not get

certified checks for all the service. You remember that for all the

service over five thousand dollars they had to put up five per cent., I

think, in certified checks. Now, there was an immense volume, of three

or four thousand routes and he was going to put in a bid on every one

of them. That is what Boone was going to do. He did not understand the

conspiracy at that time. Miner explained to him, "We cannot get the

certified checks. We cannot get the bondsmen." He did not tell him,

"Good Lord, my friend, you don't understand the terms of the conspiracy.

We are taking no such service as that. We are taking none over three

times a week, because, don't you see, we want the chance for increase.

We want the lowest. If we can find any service where the horses agree to

stand still, that is the service to take. You must look over the terms

of the conspiracy and have some sense about it."

Boone says he was starting in, taking the advertisements, going right

through the territory, all over that country, and bidding on every

route, not missing one. He never saw Stephen W. Dorsey do any work

on the bids. The proposals sent down to the postmasters in Arkansas,

including those to Clendenning, he (Boone) fixed himself and sealed

them. Gentlemen, there is no evidence that Mr. Dorsey, as I understand

it, ever saw one of those papers, but simply the form that was written

out by Boone that was sent to Clendenning with instructions what to do

with the proposals. That I understand to be the evidence. They proved by

Boone that Dorsey never saw them; never wrote them; never ordered them

to be written; never ordered a blank to be left unfilled. And

yet, gentlemen, he was the man whom they say had brooded over this

conspiracy; the man that gave to it life and form. He is the man that

used Boone and John W. Dorsey and Peck and Miner as instrumentalities

and tools.

What more? Did Boone take those bonds up to Dorsey and show them to him?

He says that he did not open them; that he did not show them to Dorsey.

That is what Mr. Boone swears. Surely Mr. Boone is an honorable man,

stamped with the seal of the Department of Justice. He did not even show

them to Dorsey. Dorsey never saw anything except the form after Boone

had made it out. I showed you that form on yesterday, I think, marked 16

X. That is the only thing that Dorsey saw. He did not know what blanks

were left in the bonds, or whether any were left. He never gave any

orders about them, and never saw them. Yet the prosecution want you to

hold him responsible as a conspirator for those bonds.

What more, gentlemen? Those bonds were never used. Nobody was ever

defrauded. Not a proposal was put in the Post-Office Department. They

never came to life. Dead! No contract, says Mr. Boone, was ever awarded

on those proposals, even the proposals sent back, unless it was a

contract to him, Boone. That is what he swears. And yet Dorsey is to be

held responsible.

Let us hurry along, gentlemen. See how Dorsey came to do this. How did

that arch-conspirator, as they claim him to be, happen to write that

letter to Clendenning? On page 1567 Boone says that he suggested to

Dorsey that he had better send a note with the proposals to Clendenning.

Boone suggested it. He was not a conspirator, but he suggested it.

Dorsey was the conspirator, but never dreamed of it. How fortunate for a

conspirator to have an innocent man think of the means of carrying out

a conspiracy; never thinking of crime, but having it all suggested by

perfect innocence and then crime taking advantage of it. That is the

position! He suggested that Dorsey would better send a note with the

proposals to Clendenning. I will read from page 1568:

Q. Was there not danger that he would be declared a failing contractor?

Was it at that time the practice of the department if a man, for

instance, had fifty contracts and failed on one to declare him a failing

contractor on all?--A. No, sir; but they would declare him a failing

contractor on that one route and suspend his pay until he paid up the

loss to the Government--just my case now, exactly.

Q. That was one of the reasons that you had. Now, you were informed at

that time that they had not the money to carry this on.

When, as a matter of fact, did you go out of the concern?--A. The 8th

day of August, 1878.

Q. Was S. W. Dorsey then in Washington?--A. No, sir; he was not. He had

been gone ten or twelve days.

Now, then, we come to August 7, 1878, the time that Mr. Boone went out.

He did it for the purpose of saving a failure on the routes in the names

of Miner, Peck, Dorsey, and himself. That is what he went out for, and

that is his only reason. On page 1570 Mr. Boone swears that so far as he

knows neither John W. Dorsey, John R. Miner, John M. Peck, nor

Stephen W. Dorsey had any arrangement with the Second Assistant

Postmaster-General to increase the service; none whatever.

Boone went out on the 7th day of August, 1878. S. W. Dorsey was in New

Mexico. He did not return here until about the time Congress assembled

in December. Boone swears that he then learned from S. W. Dorsey that

he, Dorsey, did not know that Boone was out of the concern; did not

know that he had left on the 7th day of August, 1878. Now, gentlemen, if

Stephen W. Dorsey was the main conspirator, if he was doing this entire

business, is it possible that A. E. Boone went out on the 7th day of

August, that John W. Dorsey assigned his interest in all the routes

mentioned in the agreement, and John R. Miner took in Vaile, and the

service was put on those routes by the money furnished by Vaile, that

all that was done and yet Stephen W. Dorsey never heard of it and did

not even know that Boone was out, did not even know that Vaile was in?

Besides that, gentlemen, as I told you, Dorsey was not here. He was in

New Mexico. He was in utter ignorance of this entire business, and yet

they claim that he was the directing spirit.

Mr. Boone further testifies, on page 1571, that Brady showed him a

telegram from the postmistress at The Dalles, saying that the service

was down. When I read that I thought may be that was where Moore got his

hint to swear that he telegraphed to find out what was done with that

service. Boone further swears that Brady said that it must be put on;

that he said it could not be put on at the contract price, and that

Brady told him, "I advise you to telegraph and put it on at any price,"

and that unless all the service was on by the 15th day of August he

would declare the contractor a failing contractor on every route the

service was down upon. That is what Brady told him. Stephen W. Dorsey

was not here. According to the testimony of Moore he knew when he went

away that the service in Oregon was not put on, but he abandoned it, and

paid no attention to it. He happened to meet Miner at Saint Louis, and

told him, I believe, "There are my notes for eight thousand five hundred

dollars. That is all I will do. I am through! I have already advanced

thirteen or fourteen thousand dollars. I will not advance another

dollar." Why did not Miner tell him, "If you are not going on with this

conspiracy I am going home"? Why didn't Miner tell him then, "What did

you get up a conspiracy like this for, just to abandon it"? Why did

not Miner say to him, "This is your child. I became a criminal at your

suggestion. I entered into this conspiracy because you urged me to, and

now after we have got the routes, you are going to abandon it"? Why did

he not say to him, "Dorsey, if you are not going on with this conspiracy

I am going back to Sandusky"? Did Dorsey at Saint Louis treat it as his

bantling? or did he say to Miner, "This is all I will do"? Did he mean

for himself? No. "All I will do for you."

Certainly he would not have made the threat to Miner that he would not

do anything more for himself. He then said to Miner, "I am through!"

Miner knew at that time that Stephen W. Dorsey had not the interest of

one solitary dollar except the money he had advanced. Stephen W. Dorsey,

according to the testimony of this prosecution, knew when he left this

city that the routes were not in operation in Eastern Oregon. He went

away knowing that J. W. Dorsey and John R. Miner and John M. Peck were

in danger of being declared failing contractors. Yet he never even

called on Brady to see about it. He never asked to have the time

extended a minute. He never took the least interest in the business. He

started for New Mexico, and went by way of Oberlin, Ohio. He happened

to meet Miner in Saint Louis, and for Miner's sake, for Peck's sake, for

John W. Dorsey's sake, and not for his own sake, he gave them some notes

to the extent of eight thousand five hundred dollars that they could

have discounted, and said to Miner then and there. "That is the last

dollar. That is the last cent." What more did he do? He abandoned the

whole business. He went to New Mexico. He never wrote about it; he never

spoke about it; he never received a dispatch concerning it until the

following December, when he came back to Washington, and then for the

first time found that Boone had gone out and that Vaile had come in.

What more? Although he was interested to the extent of thirteen or

fourteen thousand dollars, he did not know until he came back in

December that his security had been rendered worthless. He found that

out then for the first time. That is a fine model of a conspirator.

Reading again from Boone's testimony, on page 1371:

Fully a month and a half of the time had been taken up by the

Congressional investigation, and we--That is to say, Miner, Peck, Boone,

and the rest--did not know what to do with the service. We dared not to

move. We expected that the contracts would be taken from us.

Do you tell me that under such circumstances, if Stephen W. Dorsey had

conceived this thing, he would have gone off and left it? Do you tell

me, with the entire business trembling in the balance, without the money

to put the service on, at the mercy of Thomas J. Brady, that if Stephen

W. Dorsey had gotten up that conspiracy, and also put in thirteen or

fourteen thousand dollars, he would have gone away and left it, and told

Miner and the others, "I will have no more to do with it," and leave it

so effectually and so perfectly that he did not even know that Boone

had gone out and Vaile had come in until the following December, when he

came here to take his seat in the Senate?

On page 1580, again quoting from Mr. Boone:

The fact--Here is something that rises like the Rock of Gibraltar. It

is one of those indications of truth that rascality never had ingenuity

enough to invent:

The fact that Dorsey refused to advance any more money on account of

this business was taken into consideration by me when I made up my mind

to go out.

Do you want any better testimony than that, that Dorsey did refuse to

advance any more money?

Don't you see how everything fits together when you get at the facts?

How naturally they all blend and harmonize when you get at the facts.

Now, here is some more from Mr. Boone:

If I had not gone out the service would have undoubtedly failed, unless

they got the money to put it on. When Mr. Dorsey declined to furnish any

more money or to indorse any more notes, there was nothing else to do

but for me to go out and let somebody else come in who had the money.

That is a witness for the Government, and yet at the time that happened

they say there was a great conspiracy; that the Second Assistant

Postmaster-General was in it; that a Senator of the United States was

in it; and that these other men were simply tools. It will not do,

gentlemen. If that had been the case Stephen W. Dorsey would have

remained here. He would have gone to Mr. Brady and said, "I must have

time," and Mr. Brady would have given him all the time he desired,

because, according to this prosecution, it was their partnership

business. Brady had ten times as great an interest as Stephen W. Dorsey.

According to the testimony of Mr. Rerdell, Brady had an interest of

thirty-three and one-third per cent., and according to the testimony of

Rerdell and Boone, Dorsey only had an interest of seven-eighths of one

per cent.

That means, as I understand it, according to their testimony,

thirty-three and one-third per cent, of the gross expedition; not

profits, but of the gross expedition. That is what they swear. When

he gave on a route an expedition of, say, six thousand dollars,

two thousand dollars would go to Brady each year. In other words,

thirty-three and one-third per cent, of the money paid for expedition

went to Brady.

Mr. Walsh testified and gave the exact figures, and called the amount,

if the Court will recollect, sixty thousand dollars, and twenty per

cent, he said of that is twelve thousand dollars. That had to run, he

says, for three years, and that made thirty-six thousand dollars. That

is the testimony in this case, gentlemen. If you should have a row of

men as long as the row of kings that Banquo saw, stretching out "to

the crack of doom," and they should swear to it, I should still die an

unbeliever; but that is their testimony. Dorsey ran away and left his

conspiracy and Brady would not attend to his own business. Now, I read

again from Boone:

With regard to the preparation of circulars, the sending of them to

postmasters, the printing of proposals, the printing of bonds and

subcontracts, there was nothing done differently from what I had always

done before.

Recollect that. He is a Government witness. Dorsey in a conspiracy got

Boone to help him, and in helping him Boone did nothing different from

what he had always done before. There is not much left of this case,

gentlemen, but I will keep going on just the same. Mr. Boone swears that

he followed the regular custom and practice of doing business.

Then, there is another suspicious circumstance. At the bottom of the

contracts published by the Government, for the purpose of informing

contractors as to how the bonds or contracts are to be signed,

and exactly what is to be done by each person, there are a lot of

instructions.

Mr. Carpenter. On the proposals.

Mr. Ingersoll. On the proposals. When they got up the proposals of their

own, they, understanding the business, left off all those directions

that the Government put upon its forms. Why? Those directions were put

there for the benefit of men who did not understand the business. These

men did understand the business, and consequently it was nonsense for

them if they had to have the printing done, to put on the bottom of

the contracts two or three paragraphs of directions to themselves. They

understood exactly how to do it without the directions.

Who left them off? Stephen W. Dorsey? No. John W. Dorsey? No. He had

nothing to do with it. Miner? No. He had nothing to do with it. Who left

them off? Boone says he did. Was he instructed to do it? No. Did it take

a conspiracy to leave them off? No. He left them off for two reasons,

and good ones, too. One was to save the expense of printing. That was

a good reason. There was no conspiracy needed for that. The other was,

that knowing how to perfect the proposals, and understanding all

those instructions, there was no need of having them printed for their

benefit.

Next, on page 1582. What instructions as a matter of fact did Mr. Boone

receive from Mr. Dorsey, if he received any? The question arises, upon

what subject? In reference to what particular point? Boone says on this

page that he received no instructions from Dorsey in reference to the

business except in regard to the subcontract blanks.

That is the one subject on which he received any instructions from S. W.

Dorsey. I have shown you that those instructions were in the interests

of honesty and fair dealing. Those were the only instructions he

received. On every other subject there is not a word. Why? Here Boone

gives the reason. "I did not require any." Why? Because he understood

the business himself. What else? "I was to go ahead and do whatever was

necessary to be done." He did it without consulting anybody. He did it

in his own way. He did it as he thought best for all concerned. Now,

gentlemen, there will be an effort made to convince you that Stephen W.

Dorsey did everything during all that period. If you are told that, when

you are told it remember what I tell you now: that Mr. Boone swears that

he did it himself; that he attended to the entire business, and that he

was instructed by Dorsey in no particular except as to that one blank,

and that I have clearly demonstrated was in the interests of honesty

and in the interests of the subcontractor, so that the subcontract might

agree with or be similar to the contract made with the Government. That

is all.

Now we come to another point. You must recollect that Mr. Boone got out

the circulars. Mr. Boone sent to all the postmasters to know about the

roads and the price of grain and the price of labor, about the snow in

winter and the rain in the spring. He got all that up. He went through

the bidding-book originally and made the bids. He it was who prepared

most of these proposals. He did all the work until Miner came. S.

W. Dorsey did not do any of it. Boone never saw him working upon or

touching the proposals. What S. W. Dorsey did he did at Boone's request.

What he did he did at Miner's request. What he did he did simply because

he was a friend. Boone attended to it all. Now, what does Boone say

on page 1584? He swears that so far as he knew there never was any

conspiracy on the part of these defendants with him, with each other,

or anybody else, in reference to these routes, or any route bid for and

awarded to them during that time. There was no conspiracy to defraud the

Government in any way. That is what the Government witness swears to--a

man brought here to stain the reputation of Stephen W. Dorsey. That

is what a Government witness swears; swearing, too, under pressure;

swearing, too, under circumstances where the Post-Office Department

could strip him of everything he had on earth; swearing under

circumstances where if he did not please the Government they could

pursue him as they have pursued us. Perhaps I had better read what he

says. I read from page 1583 of my examination:

Now, then, so far as you know, Mr. Boone, was there any conspiracy on

the part of any of these defendants with you, or with anybody else, to

your knowledge, in respect of these routes mentioned in the indictment

or of any routes bid for and awarded to them during that time--any

conspiracy to defraud the Government in any way?

And he answered:

No, sir.

That was a Government witness, acquainted with all the transactions

during that time. He was swearing under the shadow of power, with the

sword hanging over his head, and yet he swears he never knew or heard of

any such thing.

Let us go on. On page 1589 he swears that Mr. Dorsey told him to fix the

blanks and make them up and to write what he wanted done in Arkansas,

and that while he, Boone, was engaged in so doing he said to Dorsey,

"Had you not better write a note so that I can attach it to the

blanks?" And Dorsey did so. Dorsey told him to fill up what he wanted in

Arkansas, and what was necessary to be executed there, and he did so.

Boone indicated exactly what he wanted put in. I showed you the

Clendenning bonds yesterday and showed you just what Boone did. He

filled up the blanks that he wanted to have filled down there.

Of course, the blanks that were already filled in he did not want

interfered with. That is what he says. There is another part of his

testimony. I want to call the attention of the gentlemen to it. "I hand

you," said they, "32 X." Mr. Bliss did the handing. What was that? That

was the Chico letter. What did they want to introduce that for? To show

that S. W. Dorsey was interested personally in these routes in 1878.

That was a magnificent piece of testimony for them to show that Dorsey

in 1878 was writing to Rerdell to watch the advertisement of these

routes. So they introduced that letter. Mr. Boone looked at it. He was

a Government witness. The noose was around his neck and the other end

of the rope was in the hands of Mr. Bliss. What did Mr. Boone say? "Mr.

Dorsey never wrote that letter." Then said Mr. Bliss to him, "That is

not Mr. Dorsey's writing?" And Mr. Boone said "No, sir." And at the same

time threw the forged scrap away contemptuously. What else? On April 3,

1878, Mr. Dorsey was here.

Mr. Merrick. Was Mr Dorsey here at that time?

Witness. He was here, sir; and I was in communication with him on that

very day.

That is the evidence of a Government witness; a man who was depended

upon to show that not only my client, but that Mr. Miner entered into a

conspiracy in the fall of 1877 to defraud this Government. I want you

to remember one thing which I was about to forget. Mr. Ker, I believe,

spoke six or seven days and I do not remember of his having mentioned

the Chico letter. He acted as if it had a contagious disease. He was

followed by Mr. Bliss in another week, but he did not mention the Chico

letter; at least I have never happened to read it in his speech. Both

of them are as dumb as oysters after a clap of thunder. Not a word. They

did not, either of them, have the courage to refer to it. They did

not have the nerve to ask you to believe it. I tell you one thing,

gentlemen, I would either admit that it was a forgery, or I would swear

that it was genuine. I would do something with it. I would not allow

that paper, blown by the wind, to scare me from the highway of the

argument! I would do one thing or the other. I would either admit that

Mr. Rerdell forged it, or I would insist that it was the handwriting of

Stephen W. Dorsey. Why was it left where it was, gentlemen? They could

not get anybody to swear that it was Dorsey's handwriting. That is all.

Now we will take the next step. They had so much confidence in that

witness that they concluded they would prove the pencil memorandum

by him. They had such a clutch on him. So they stuck that up to

him. Recollecting the position he was in, recollecting the danger,

recollecting all that might probably follow speaking the truth, here is

what he says:

Everything above "profit and loss" in that memorandum favors the

handwriting of S. W. Dorsey.

What else?

And everything below favors the handwriting of M. C. Rerdell.

Fit conclusion for a Government witness, brought here to show that

Stephen W. Dorsey was the arch-conspirator. And they ended the witness;

dismissed him from the stand, after he had shown that Dorsey did not

conspire; after he had shown that he himself fixed the subcontracts,

with the exception of only one; after he had shown that he himself

filled out the blanks to send to Clendenning; after he had shown that he

did everything without being advised by S. W. Dorsey, and then he swore

that their principal witness was a forger. Then they dismissed him.

That was the end of the Government witness who was to brand the word

"conspirator" upon the forehead of Stephen W. Dorsey's reputation. But

instead of putting "conspirator" there, he put the word "forger" upon

the principal witness for the Government. Magnificent exchange! Now,

gentlemen, you know as well as I do that Mr. Boone knew all that was

happening during that entire time. You know as well as I do that he did

not swear anything for the defence that he could help swearing.

What else? Mr. Bliss, on page 303, says that:

Parties conspiring make an informal verbal agreement.

When did we make that agreement? When does the testimony show that we

made an informal verbal agreement? Who were present at the time? Where

were we? Do you recollect the number of the house? Do you recollect the

day of the month? Has any one of you ever had in his mind which side of

the street that was on? What town was it in? Could you locate it if you

had a good map? I do not care whether it is informal or formal. Did

we make one? In order to make a verbal agreement you have to use some

words. Is there any evidence as to the words we used? Not a word that I

have heard, not a word.

What else? He says that this is necessarily secret and intended to be

secret. The first thing done was that Dorsey told it to Moore. Then,

for fear it would get out, J. W. Dorsey told it to Pennell and to thirty

fellows around the camp-fire out in Dakota. And there was a suspicion in

Brady's mind that somebody might hear of it, and so he told Rerdell. He

says, "Get the books copied; this is a secret thing." Then Dorsey wrote

it to Bosler, and he was so awfully afraid that it would get out that

he kept a copy of the letter. You see, Mr. Bliss says the object was

to keep it secret. Then Miner and Vaile told it to Rerdell for fear

he would not believe it when Brady told him. They were bound the thing

should not get out. Yes, sir. And then Rerdell, just bursting with the

importance of keeping that secret, told it to Perkins and Taylor; went

away out there for that purpose. And then Moore, he gave it away to

Major and McBean for the purpose of keeping it secret. Then Miner told

Moore. From whom did they keep it secret? Nobody in God's world but

Boone. He is the only fellow that nobody told. Boone went through it

all, saw all the plan and heard all the whispering, and he is the only

man in the country, I think, that did not suspect it. And on the 7th day

of August he left the concern because there was not a conspiracy, and

admits to you that if he had had even a suspicion of it he would have

staid--staid or died.

Now, was there ever a conspiracy published so widely, that one end of

the country kept so secret from the other? Was there ever a conspiracy

like that, the news of which ran through the West like wild-fire, while

the fellows at the East never heard of it? Everybody knew it out on the

plains. All you had to do was to subpoena a fellow that wanted to come

to Washington, and he would remember it. And yet that is the evidence

that the prosecution desires you to believe. I do not believe it. I do

not think I ever shall. But then they promised so much at the beginning,

and they have done so little in many respects.

Something had to be said, and so Mr. Bliss, on page 265, in a little

burst of confidence to the jury, says:

At least one United States Senator was the paid agent of these

defendants.

Who was the Senator?

Mr. Bliss. Did I say that, sir?

Mr. Ingersoll. Look at page 265 and see whether you did.

Mr. Bliss. Read all that I said there.

Mr. Ingersoll. I will do that.

But we shall show to you that at least one United States Senator, urging

such increase, was the paid agent of these defendants.

Mr. Bliss. I then went on and said we should show it if you put him on

the stand.

Mr. Ingersoll. Yes, if we furnished you the evidence.

Mr. Bliss. No, sir; that is not what I said.

Mr. Ingersoll. Why didn't you produce the Senator?

Mr. Bliss. Why didn't you put him on the stand?

Mr. Ingersoll. How did I know what Senator you meant?

Mr. Bliss. Did you have two?

Mr. Ingersoll. No, sir; and we did not have the one. If you could have

proved it, it was your duty, as the attorney of the United States, to do

it, and if you did not do it, you did not do your duty in this case.

Mr. Bliss. Whose name is expressed in the memorandum?

Mr. Ingersoll. Why did you not say that to the jury? You dared not do

it. That is like what was said here the other day before this jury, and

taken out of the record. We will come to it. These are the gentlemen who

did not wish to stain the names of citizens. These are the gentlemen who

did not wish to bring anybody into this case that had not been indicted.

And yet Mr. Bliss, in his opening, said that he would show you at least

one Senator who was the paid agent of these defendants; and now, having

failed to do it, he stands here before you and asks whose name was on

the pencil memorandum, meaning that J. H. Mitchell was the paid agent of

these defendants.

Ah, gentlemen, I would not, for the sake of convicting any man on this

earth, stain the reputation of another in a place and in a way where

that other could not defend himself. I would not do it. I do not think

there is any crime beyond that. It is as bad to stab the reputation as

it is to stab the flesh; it is as bad to kill the honor of the man as to

put a dagger into his heart.

There are so many things in these papers that I would never get through,

if I commented upon them all, if I talked forty years. I now refer to

page 4509. I have to change from one of these lawyers to the other. Now,

on this subject of subcontracts, showing how we are endeavoring to cheat

and defraud the Government, Mr. Ker says, at page 4509:

Acting upon Stephen W. Dorsey's advice he put in this clause giving

the subcontractors sixty-five per cent, of the increase. I want you

to remember the sixty-five per cent., because I will show you some

subcontracts with that amount in, but I do not want you to think for one

moment that the subcontractors ever got a dollar out of it.

Gentlemen, the evidence is that the subcontractors were paid the amount

mentioned in their subcontracts. I believe all of them are on file in

this case, and on all that were filed in the department the money was

paid directly to the subcontractor. And yet Mr. Ker tells you that he

does not want you to think for a moment that the subcontractors ever

got one dollar out of it. Is it possible, gentlemen, that there is any

necessity for resorting to such statements? Can you conceive of any

reason for doing it, except that they are actually mistaken, except

for the fact that they know they have not the evidence to convict these

defendants?

We are not begging of you. We are not upon our knees before you. But we

do want to be tried according to the evidence and according to the law.

We do not want your mind, nor yours, nor yours [addressing different

jurors] poisoned with a misstatement. We want to be tried, and we want

the verdict rendered by you when every fact is as luminous in your mind

as the sun at mid-day. We want every fact to stand out like stars in a

perfect night, without a cloud of doubt between you and the fact. That

is the kind of a verdict we want. We want a verdict that comes from

a clear head and a brave heart. We do not want a verdict simply from

sympathy. We want a verdict according to the evidence and according to

the law. And when the verdict is given we want every one of you to say,

"That is my verdict; I found it upon the evidence and upon the law;

dig beneath it and you will not find used as the corner-stone a

misstatement, or a mistake, or a falsehood; it stands upon the rock of

fact, upon the foundation of absolute truth."

Do you know that if I were prosecuting a man, trying to take from

him his liberty, trying to take from him his home, trying to rob his

fireside and make it desolate, and if I should succeed and afterwards

know that I had made a misstatement of the evidence to the jury, I could

not sleep until I had done what was in my power to release that man; and

after he was released, or even if he were not released, I would go to

him when he was wearing the prison garb, and I would get down on

my knees and beg him to forgive me. I would rather be sent to the

penitentiary myself, I would rather wear the stripes of eternal

degradation, than to send another man there by a misstatement or a

mistake that I had made. That is my feeling. I may be wrong.

It may be that I am guilty, according to Colonel Bliss, of sneering at

everything that people hold sacred. But I do not sneer at justice. I

believe that over all, justice sits the eternal queen, holding in her

hand the scales in which are weighed the deeds of men. I believe that

it is my duty to make the world a little better, because I have lived in

it. I believe in helping my fellow-men. I do no not sneer at charity; I

do not sneer at justice, and I do not sneer at liberty. And why did he

make that remark to you, gentlemen? Is it possible that for a moment

he dreamed that he might prejudice your minds against the case of my

client, because, I, his attorney, am not what is called a believer?

Is it possible that he has so mean an opinion of a Christian that a

Christian would violate his oath when upon the jury, simply to get

even with a lawyer who happened to be an infidel? Is that his idea of

Christianity? It is not mine; it is not mine. I stand before you to-day,

gentlemen, as a man having the rights you have, and no more; and I

am willing to work and toil and suffer to give you every right that

I enjoy. And I know that not one of you will allow himself to be

prejudiced against my client because you and I happen to disagree upon

subjects about which none of us know anything for certain. I do not

believe you will. And yet, that remark was made, gentlemen--I will not

say that it was made, but may be it was--hoping that it would lodge the

seed of prejudice in your minds, hoping that it might bring to life that

little adder of hatred that sleeps unknown to us in nearly all of our

bosoms. I have too much confidence in you, too much confidence in human

nature to believe that can affect my client.

Now, gentlemen, there is no pretence, there is no evidence that every

subcontractor did not get the per cent, mentioned in his subcontract,

except one, and that was Mr. French, on the route from Kearney to Kent;

and the evidence there is that Miner settled with him, I believe, and

gave him a certain amount of money in lieu of expedition. That is the

solitary exception.

Now, gentlemen, I come to a most interesting part of this discussion,

and I hope we will live through it. In the first place, what is a

conspiracy? Well, in this case, they must establish that it was an

agreement entered into between the persons mentioned in this indictment,

or two of them, to defraud the Government. How? By the means pointed

out and described in the indictment. While it may not be absolutely

necessary to describe the means, I hold that if they do describe them,

tell how the conspiracy was to be accomplished, they are bound by their

description; they must prove such a conspiracy as they describe. If

a man is indicted for stealing a horse and the color of the horse

is given, it will not do to prove a horse of another color. If they

describe the offence they are bound by the description.

Now, this is a conspiracy entered into, as they claim, by the persons

mentioned in the indictment, to do a certain thing. What is the object

of the conspiracy? To defraud the Government. And, gentlemen, I believe

the Court will instruct you that the conspiring is the crime. The object

of the conspiracy is to defraud the United States. What are the means?

According to this indictment false petitions, false oaths, false

letters, false orders. What I insist on is that the means cannot take

the place of the object; that the means cannot take the place of the

conspiracy described. When you describe a conspiracy by certain means

to defraud the Government, and set out the means so that the Second

Assistant Postmaster-General is a necessity, then you cannot turn and

shift your ground, and say that it was not the conspiracy set out in

the indictment, but that it was a conspiracy to do some of the things

recited as means in the indictment; you cannot say that it was not a

conspiracy entered into with the Second Assistant Postmaster-General,

but was a conspiracy entered into with some others to make a false

petition or a false affidavit. The ostrich of this prosecution will not

be allowed to hide its head under the leaf of an affidavit. They

must prove, in my judgment, the conspiracy that they describe in the

indictment, and none other.

Now, what else? You must be prepared, gentlemen, when you make up a

verdict, if you say that there was a conspiracy, to say when it was

entered into and who entered into it. And I suppose when you retire, the

first question for you to decide will be: Was there a conspiracy? Has

any conspiracy been established beyond a reasonable doubt? If you say

yes, then the next question for you to decide is, who conspired? Who

were the members of that conspiracy?

After you do that there is one other thing you have to do: You have

to find that one of the conspirators, for the purpose of carrying the

conspiracy into effect, did something; that is called an overt act.

You have to find, that at least one of them did something to effect the

object of that conspiracy. You must remember, gentlemen, that the overt

act must come after the conspiracy. In other words, you cannot commit an

overt act and make a conspiracy to fit it; you must have the conspiracy

first, and then do an overt act for the purpose of accomplishing the

object of that conspiracy. The conspiracy must come first, and the overt

act afterwards. You all understand that now.

Now, this indictment is so framed that the earliest time within the life

of the statute of limitations for an overt act is the 23d day of May,

1879. Why? The indictment charges that as the day, the conspiracy was

entered into. Any overt act in consequence of that conspiracy must have

been done after the 23d of May, 1879. Now, get that in your heads, level

and square. The conspiracy, according to this, is not back of the 23d

of May, 1879, and any overt act done, in order to be considered an overt

act, must be done after the date of that conspiracy. If they prove

any act done before that time, it shows that it was not an overt act

belonging to the conspiracy mentioned in the indictment. If it is an

overt act at all, it is an overt act of another conspiracy entered into

before the date mentioned in this indictment, and consequently will

not do for an overt act in this case. Now, I want you all to understand

that.

I forget how many overt acts are charged in this indictment; some sixty

or seventy, I think. And understand me, now, gentlemen, no matter what

date they fix to an overt act in the indictment, no matter whether there

is any date to it or not in the indictment, if it turns out to have been

done before the time fixed for the conspiracy it is dead as an

overt act: it is good for nothing. The overt act is the fruit of the

conspiracy; the conspiracy is not the result of the overt act. Now let

me make a statement to you, so that you will understand it.

Every petition, every letter, every affidavit, upon which orders for

expedition were based, was filed before the 23d of May, 1879, except on

two routes--Toquerville to Adair-ville and Eugene City to Bridge Creek.

If that is true, then not a solitary petition filed in this case can

be considered as an overt act; and a conspiracy without an overt act is

nothing; it simply exists in the imagination; it is an agreement made

of words and air, and never was vitalized with an act done by one of the

conspirators for the purpose of giving it effect. Recollect that every

petition, every affidavit, every letter filed, was filed before the 23d

day of May, with the two exceptions I have mentioned. That is the date

when the conspiracy came into being. And consequently an overt act must

be after that time.

Now,'when they came to write this indictment, why did they not tell the

truth in it? I do not mean that in an offensive sense, because a man has

the right to write in that indictment what he wants to. That is a matter

of pleading. But why did they not tell the facts? Why did they put in

the indictment that a certain petition was filed on the 26th day of

June, when they had the petition before them and knew that it was filed

in April, 1879? Why did they put in that indictment that a certain

affidavit was filed on the 26th or 27th of May, I think it was, when

they knew that it was filed in April or March? Why? Because if they had

put that in the indictment the indictment would have been quashed, so

far as their overt acts were concerned. The Court would have said, "I

cannot allow you to put on paper that a man entered into a conspiracy on

the 23d of May, and then did an act to carry that conspiracy into effect

in April before that time. I cannot allow you to do that, because that

is infinitely absurd, and pleadings have to be reasonable on their

face." But you see they stated that this was done after the conspiracy.

They had to do it or they would be gone. I believe there is no dispute

about this law that if they describe the overt act--and they must

describe it, because it is a part of the offence--that is, the offence

is not complete without it--they must prove it exactly as they describe

it.

If they describe it with infinite minuteness, they must prove it with

infinite minuteness. If they set out that an affidavit was written on

bark, they must produce a bark affidavit. If they were foolish enough to

say it was written in red ink they must produce it in red ink. If they

allege that an oath was sworn to twice before two notaries public they

must produce an oath sworn to twice. They are bound to prove exactly

what they charge, and if they were too particular about it that is their

fault, not ours.

I say that all these, with the exception of the two routes I have named,

were filed too early to play any important part in this case. Now, I

will come to those routes. Remember, that every overt act must be after

the conspiracy. There are two exceptions, and those two exceptions

include petitions and affidavits. And there is a splendid kind

of justice in the way this thing is coming out, so far as that is

concerned.

The petitions filed on the Toquerville route and on Bridge Creek route,

I believe, are genuine; I believe the Government admits that they are

honest; and they were not attacked except upon one point, and that was

that a daily mail did not mean seven times a week. The point made by the

Government was that a daily mail meant six trips a week--that is, where

you have them every day. We took the ground that daily mail meant a mail

every day, and that in the Western country, as here, they have seven

days in a week.

We contended that you cannot have a daily mail without having seven

trips a week. I think that was the only point made against these

petitions--that they were for a daily mail, and that somebody put in a

figure 7.

No petition for increase of service alone was ever attacked by the

Government in this case, except 25 L, on The Dalles route, and 20 H and

29 H, on the Canyon City route. 25 L was filed April 23, 1879. That was

one month before the conspiracy had life. Consequently that is mustered

out of this case as an overt act.

23 L was filed June 27, 1879, and is in time, provided it had been

a dishonest petition. And it is the only petition filed on the date

alleged in the indictment, and it was not attacked. It was signed by the

business men of Baker City, and is set out, I believe, on page 1617.

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