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.