All the allegations as to false petitions for increase of service--and
by that I mean additional trips--are shown to have been genuine, honest,
true petitions.
There are but two affidavits, one correctly described. Both were made
by Peck. Mr. Bliss admits that Peck had nothing to do with any of these
routes after April 1, 1879, and both of them were made by Peck, and were
sworn to before that date.
The affidavit on the Toquerville route was filed by M. C. Rerdell, who
swears that he was not in any conspiracy to defraud the United States;
that he was not in a conspiracy with Vaile and Miner and John W. Dorsey,
nor with anybody else. It was filed by the subcontractor of record, M.
C. Rerdell, and it is the same route on which Mr. Rerdell, by virtue
of his subcontract, appropriated about five thousand dollars of money
belonging to other people.
The other exception is on the Bridge Creek route, and, strange as it may
appear, that was also filed by Mr. Rerdell.
And, strange as it may appear, it has not been successfully impeached
as to the men and horses necessary under the existing and proposed
schedule. The overt act is not proved, because the oath is not proved
to be false, and because Peck and Rerdell, according to Mr. Bliss's
admission and according to Rerdell's oath, were not in the conspiracy,
and the overt act has to be done by one of the conspirators, of course.
The Court. I understood--I do not know whether I have been under a
delusion all this time or not--that the indictment charged that these
affidavits and false petitions were the means by which the conspiracy
was to be carried into execution; that they were not the overt acts. If
they had been set out as overt acts in the indictment, the Court would
have seen that they antedated the time, and if an objection had been
made to them the Court would not have received them as overt acts.
The reason why they have been admitted and regarded as in the case all
along, to my mind, was that they were acts tending to prove, so far as
they tended to prove anything, the nature of the combination between
these parties anterior to the 23d of May.
Mr. Ingersoll. Before the conspiracy.
The Court. Before the conspiracy. So that whatever character belonged
to that association anterior to that time, if it was continued on after
that time, carried out with overt acts done subsequently to that
time, they were properly received as evidence going to establish the
conspiracy--not as overt acts, but as means to show the character of the
combination amongst the parties anterior to that date.
Mr. Ingersoll. That saves me a great deal of argument. Now, I
understand, gentlemen, that the Court will instruct you that you cannot
take any petition, any letter, any oath, any paper of any kind that was
filed or written or used prior to the 23d of May, 1879, as an overt act;
that all that that evidence is for is to show you the relation sustained
by the parties before that time.
The Court. Yes; you are right.
Mr. Ingersoll. Now, that saves a great deal of trouble.
There are on the Toquerville and Adairville route, and on the Eugene
City and Bridge Creek route, petitions filed after the 23d of May, 1879,
set out in indictment as overt acts. I shall insist, if the Court
will allow me, that if there is no evidence that those petitions were
dishonest, no evidence going to show that they were not genuine, those
petitions cannot be used as overt acts for the reason that they are
charged in the indictment as false and fraudulent petitions. So,
gentlemen, I take that ground, that as to the petitions filed after the
23d day of May on the only two routes left for these gentlemen to
find overt acts upon (Eugene City to Bridge Creek, and Toquerville to
Adairville), if those petitions have not been proved to be false they
cannot be regarded as overt acts for the reason that they were described
in the indictment itself as false and fraudulent petitions. It is
perfectly clear, is it not?
What else have we left? A couple of affidavits. Who made them? Mr. Peck.
When? Before the 1st day of April, 1879, and Mr. Bliss admits that from
that time on he never had anything to do with this business. Mr. Rerdell
filed them, and Mr. Rerdell swears that he was never in any conspiracy;
and Mr. Bliss admits that Peck, after the 1st of April, had nothing to
do with this business. That substantially knocks the bottom out of that
dish.
Now, they attacked the affidavit on the Bridge Creek route, but they did
not succeed in showing that it was not an honest affidavit.
Now, gentlemen, after what the Court has decided I want to call your
attention to another thing.
Do not forget what the Court has decided--that all these things are not
overt acts, but that they simply show the relations of the parties.
Now, if you go and find Vaile and Miner getting up petitions on their
routes, and you also find Dorsey getting up petitions on his routes,
then they claim that that is the result of an agreement between them.
That is not the law. Neither is there in that the scintilla of common
sense. If I find you plowing in your field and your neighbor plowing
in his field, I have no right to draw the conclusion that you have
conspired to plow or to help each other. But if I find your neighbor and
you plowing in your field, and I afterwards find you and your neighbor
plowing in his field, I have the right to conclude that you have swapped
work and that you have something in common. If I find you plowing in
your field and your neighbor walking behind you sowing grain or dropping
corn, and then I find you in the fall shucking out the corn together,
and I find your neighbor taking half of it to his barn and you taking
half of it to your barn, I make up my mind that you have had some
dealings on the corn question.
Now, we find that on May 5, 1879, these parties absolutely divided,
and after that, when Vaile and Miner got up a petition on their route,
Dorsey did not help them; and when Dorsey got up one on his, Vaile and
Miner did not help him. That shows what the relations of the parties
were. Does that show that they were then in a conspiracy? Does it show
that they had any conspiracy before that time? They had separated their
interest; they had ceased to act together; one did nothing for the
other. If there had been a conspiracy before that time that conspiracy
died on the 5th of May, 1879; and if it did, then there is no
possibility of any conviction in this case, no matter what the evidence
is--not the slightest.
Now, I want you to understand that ground exactly. I am not begging
the question. I am not afraid to meet every point, every paper, every
scratch, in this case. But I want you to understand it. All those things
were allowed for the purpose of showing the relations of the parties,
the relations that the defendants sustained to each other; and the
evidence is that they sustained no relations to each other after 1879;
that each went his own road to attend to his own business in his own
way. That is the evidence.
Now comes the next point. What are the overt acts in the indictment?
Really they are the orders made by Mr. Brady, unless you take this poor
little affidavit made by Peck and filed by Rerdell.
Then comes the next point. You cannot treat anything as an overt act
unless it was made by one of the conspirators. Is there any evidence in
this case that Mr. Brady ever conspired with anybody? Not the slightest.
And unless he conspired with us, any other made by him cannot be regarded
as an overt act in this case. I think everybody will admit that. Unless
Brady conspired with us, and we with him, any order of his cannot be
regarded as an overt act.
I ask you, gentlemen, what evidence is there in this case that Mr. Brady
ever conspired with any of these defendants? I will answer that question
before I get through, and I think I will answer it to your entire
satisfaction.
I will go a step further in this case, and I may go a little further
than the Court will go. I say that when they state in that indictment
that an order is made for the benefit of Miner, Vaile, and Dorsey,
and the evidence is that it was made for the benefit only of Vaile and
Miner, that is a fatal variance, and it cannot be treated as an overt
act for any conspiracy. And when the indictment charges that an order
was made for the benefit of S. W. Dorsey, and Vaile, and Miner, and it
turns out that it was made for the sole benefit of S. W. Dorsey, I claim
that that is a fatal variance.
Gentlemen, I was going through all these overt acts and all these
terrible false claims. But the decision of the Court has utterly and
entirely relieved me from that duty. So I will turn my attention to
another person.
The next defendant to whom I may call your attention is Mr. John W.
Dorsey. It is claimed that John W. Dorsey was one of the original
conspirators; that he helped to hatch and plot this terrible design.
Let us see what interest John W. Dorsey had. You have heard me read the
agreement he made, have you not, with Miner? Now, let me read to you
the agreement that he made on the 16th day of August, 1878. Now, we will
find out what interest John W. Dorsey had in all this conspiracy. On the
16th of August, 1878, there was no reason for telling any lie about
it. They could not get on the routes in August, 1878; they had not the
money, and so they took in Vaile. At that time, gentlemen, there was no
reason for their writing anything in this paper that was not true, not
the slightest. And I take it for granted that most people tell the truth
when there is no possible object in telling anything else, if their
memory is good:
4th. The profits accruing from the business shall be divided as follows:
From routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M.
Vaile, one-third.
To John R. Miner, one-sixth; to John M. Peck, one-sixth; and to John W.
Dorsey, one-third.
From routes in Montana, Wyoming, Colorado, New Mexico, Arizona, Utah,
Idaho, Washington, Oregon, Nevada, and California, to H. M. Vaile,
one-third; to John R. Miner, one-third; to John M. Peck, one-third.
[Page 4014.]
And to John W. Dorsey nothing. The entire interest of John W. Dorsey in
the whole business was one-third of the profits on routes in the Indian
Territory, Kansas, Nebraska, and Dakota. This was signed by H. M. Vaile,
John R. Miner, John M. Peck, and John W. Dorsey, and I believe these are
all admitted to be the genuine signatures of the parties.
The only routes mentioned in this indictment in which John W. Dorsey on
the 16th day of August, 1878, had any interest whatever were: Kearney to
Kent in Nebraska, Vermillion to Sioux Falls in Dakota, and Bismarck
to Tongue River in Dakota. Remember that, gentlemen. That is very
important. The evidence is that he sold out his interest in the
following December, made a bargain for ten thousand dollars, and the
evidence is that he received the money, and the evidence is that after
that he never had any interest in the profits, no matter how much was
made. And yet these gentlemen say that he was part and parcel of a
conspiracy formed on the 23d of May, 1879. Long before that time he had
sold out every dollar's interest he had, and had no more interest in it
than though he had never existed. He got his ten thousand dollars; that
was all. Now let us see what he did when the routes were divided.
Mr. Merrick. When did you say he sold out and got the money?
Mr. Ingersoll. The bargain was made in December, and his brother wrote
to him at first that Vaile would not give it to him, and then that he
would. Don't you recollect the two letters you asked Dorsey so much
about?
It had been agreed to once, and then after S. W. Dorsey came out of the
Senate John W. Dorsey was paid ten thousand dollars, and Miner swears
that the division was absolute, perfect, and complete; and that nothing
was signed by one for the other after the 5th of May, 1879.
Mr. Bliss. Miner does not say when. He swore that he, signed no papers
after the 5th of May, 1879.
Mr. Ingersoll. He says that he signed no papers for the other side, and
that the other side signed none for Vaile and Miner.
Mr. Davidge. You are talking of two different things.
Mr. Ingersoll. I will show you after awhile that you are wrong, as I
always do. I never made a mistake on you yet.
The only routes mentioned in this indictment in which John W. Dorsey
on the 16th day of August, 1878, had any interest whatever were from
Kearney to Kent, in Nebraska; Vermillion to Sioux Falls, in Dakota; and
Bismarck to Tongue River, in Dakota. And I will say right here that
if at any time I do injustice to Mr. Bliss or anybody else, if it is
pointed out I will take it back cheerfully, and if it is not pointed
out, and they show that I did it, I will get up and admit it and say
that I was mistaken.
Mr. Bliss. You will have a great deal to admit.
Mr. Ingersoll. Very well, I will do it, for I have the courage of
conviction, and I have the courage to say that I am mistaken when I am.
Now, the evidence is that John W. Dorsey sold out his interest for ten
thousand dollars, and that he received the money, and that after that he
had no interest in the profits when the three routes were divided, and
the only three were the ones I have mentioned.
On the first route, from Vermillion to Sioux Falls, John W. Dorsey was
the subcontractor and he gave Mr. Vaile the entire pay for all increases
and all expeditions. John W. Dorsey had the right to subcontract, and
Mr. Vaile had the right to make the contract. The statement on page 726
shows simply that John W. Dorsey never drew a dollar upon that route.
That is one route fairly and squarely disposed of. Understand, I cast
no imputation upon Mr. Vaile for having the contract and for getting the
money. When I come to it I will show you that he had a right to.
The next route is from Kearney to Kent. John W. Dorsey had an interest
in that route, according to the agreement of August 16th, of one-third.
You will see from page 726 of the record that the first quarter John M.
Peck got the money, two hundred and forty-five dollars and six cents.
John W. Dorsey was entitled to one-third of that, if it was profit.
The next quarter was paid on the 22d of January, 1879--that is, for
the fourth quarter of 1878, and that was paid to H. M. Vaile. And never
another solitary cent was paid to anybody in such a way that John W.
Dorsey was entitled to any part or portion of it. That gets that route
out of trouble, so far as John W. Dorsey was concerned, no matter what
the increase may have been after that, no matter what the expedition
was, no matter whether French carried it for nothing, no matter what
happened to Cedarville or that city of Fitzalon; it was no interest to
John W. Dorsey, no matter whether the road ran direct from Fitzalon to
Cedarville or not. He was entitled to one-third of the profits on one
payment to Peck, and that payment was two hundred and forty-five dollars
and six cents; whether he ever got it I do not know.
Let us see how he came out on the next route, from Bismarck to Tongue
River. He went out there to build stations. I will come to that in a
little while. Now, I call attention to page 727. The third quarter from
July 1 to September 30, 1878, was paid November 8, 1878, to H. M.
Vaile. Never a solitary dollar on the route was paid to John W. Dorsey,
according to this record, if you can rely on these books.
That is the state of the case on these three routes. And yet it is
solemnly averred in the indictment that all the orders on these routes
were made for the joint benefit of John W. Dorsey and others. Now,
before another payment was made the division of the routes had been
completed, and John W. Dorsey sold out his interest in these routes and
all others for ten thousand dollars. So that he never received a
dollar upon the Bismarck route and the Vermillion route except as it is
included in the gross sum of ten thousand dollars which he received for
his entire interest, and that entire interest is described perfectly in
the contract of August 16, 1878. Now, it John W. Dorsey had no interest
in any route except as stated in the contract, of course nothing was
done upon any other route for his benefit; nothing was done in which he,
by any possibility, had the slightest pecuniary interest. How were the
petitions filed for his benefit? How were the affidavits made for his
benefit? How were the orders made for his benefit? He had no interest;
he had parted with it, and had nothing more to do with it than the
attorneys for the prosecution in this case.
It is claimed by Mr. Bliss that when John W. Dorsey sold out he agreed
to make the necessary papers for the routes, and he tried to impress
upon your minds the idea that the bargain was that John W. Dorsey knew
that for ten thousand dollars he had to commit perjury and forgery and
several other cheerful crimes, from time to time, as he might be called
upon by the gentlemen who had been his co-conspirators.
J. W. Dorsey frankly and cheerfully swore that he agreed to make the
necessary papers. He did not swear that he agreed to commit any frauds,
perjuries, or forgeries. Nothing of the kind. He agreed to execute, of
course, the necessary legal papers--the papers that, as contractor, were
necessary for him to make to vest title of the route in the person to
whom he had sold--just the necessary papers that would allow the man who
had paid him for the route to draw the money from the Government if he
performed the service.
Now, what were the papers? I say right here, gentlemen, that under the
law as it was then, under the law as it is now, it is impossible for
a contractor to assign his contract so as to be relieved from
responsibility to the Government; the Government will not permit it. The
Government will permit him to make a subcontract, and that is what John
W. Dorsey did; that is one of the things he agreed to do. In order to
make that subcontract absolutely certain; in order to put it beyond his
power to do anything with it, that subcontract was made for the entire
pay, for the entire increase and expedition. And what more? In order
to make that absolutely perfect, so they would not have a loop-hole
anywhere, he signed blank drafts upon the Post-Office Department for the
entire pay of every quarter during the contract term. And then, if they
were fined--and nobody knew how much they would be fined--they had the
right to fill up that order for the amount due them from the Post-Office
Department after deducting fines.
He sold out in March, 1879. The regulation or order making it necessary
for the contractor to make an oath as to additional stock and men was
not in existence, was not a binding law or regulation, until the 1st
day of July, 1879. When he sold out in March, unless he were gifted
with prophecy, he would not know what the regulation of the 1st of July
following would be.
Now, there were two affidavits made by John W. Dorsey on route 38134,
Pueblo to Rosita. Around those affidavits Mr. Bliss hovered and Mr.
Ker remained. John W. Dorsey testifies that he received one of those
affidavits in the morning and swore to it, and that it was filled up
when he swore to it. Mr. Bliss and Mr. Ker, I believe, both say that it
was not filled up.
Mr. Bliss. Where does Mr. Dorsey say that it was filled up when he swore
to it?
Mr. Ingersoll. I have not the page here, but I will give it to you. He
swore that a dozen times, that he never swore to any blank affidavits.
Mr. Bliss. I undertake to say that it cannot be found in his evidence.
The Court. He testified that he received them both by mail, and that the
second one was contained in a letter which said that there was an error
in the first, and the second was sent for the purpose of correcting that
error.
Mr. Ingersoll. There could not have been any error in the first unless
it had been filled up. You cannot make an error in blank. On page 4838,
Mr. Rerdell swore that he left this city on the 17th or 18th of
April for the West, and then he adds, "I think on the 18th." Then the
Government brought the hotel-keepers from Sydney, Nebraska, and from
Denver, and from some other place, nearly as many witnesses as you
had about the paper pulp. And they proved that Rerdell was beyond the
Missouri River on the 21 st of April.
Now see what Mr. Bliss says on page 4914:
And yet, gentlemen, it is beyond dispute that as early as the 15th of
April, 1879, Mr. Rerdell had left this city and gone West.
Why did he have it stated on the 15th, gentlemen? I will tell you. Oh,
I tell you the human mind is a queer thing when it gets to working. John
W. Dorsey was in Middlebury, Vermont; if a letter had been sent from
here on the 15th, it certainly would have got up there before the
21st. So they wanted Rerdell out of this town as early as possible, so
that it would make it highly improbable that it would take a letter from
that time to the 21st to get to Middlebury. Now, the evidence is that he
left here, he thinks, on the 18th. When did the letter get up there? I
think the 20th or 21st.
Mr. Davidge. There was a Sunday intervened.
Mr. Ingersoll. They say, gentlemen, that there is no evidence that the
blanks were filled, and yet John W. Dorsey swears that he received a
letter stating that the first affidavit was erroneous, and the second
one was sent to him to correct it. How would you correct one affidavit
in blank by another affidavit in blank? How did he ever get those
affidavits? I will tell you. We will have that little matter settled.
Here is what Rerdell swears on page 2232:
Q. When did you return from that visit?--A. I returned about the 5th of
May.
Q. State whether or not after you returned, you found blank affidavits
among the papers connected with the business?--A. Yes, sir.
Q. How many did you find?--A. Well, there were several blank affidavits
of John W. Dorsey's and several of John M. Peck's. I don't know how many
there were.
Q. Were they blank affidavits?--A. Well, sir, they were blank affidavits
similar to that one I sent, leaving out the number of men and animals in
each case.
Q. Did they purport to have been sworn to?--A. Yes, sir.
Q. Were those affidavits among the papers when you left here to go
West?--A. Some of them were. I think those of Peck's were here, probably
four or five, or half a dozen, and I had made out, before I left here,
a lot of them and sent them to John W. Dorsey. In the mean time, when I
returned here, John W. Dorsey was here.
Mr. Rerdell swears that just before he went away he sent the affidavits
to John W. Dorsey, and the only question between them is, were they in
blank, or were they filled. John W. Dorsey swears that they were filled,
because when he received the second he received a letter stating that
there was an error in the first, and that error had been corrected in
the second. The last nail in the coffin of that doctrine.
Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of
the jury, before finishing what I am about to say in regard to the
two affidavits of John W. Dorsey I will now call your attention to a
statement made by Mr. Bliss, on page 304, in his opening speech to you:
Mr. Dorsey, while Senator, was, I think, chairman of the Committee on
Post-Offices, and chairman of the subcommittee in charge of all the
appropriations. That brought him, of course, directly in connection with
the Post-Office Department and its officials, and gave him, as we all
understand, necessarily, from the nature of the case, the possession of
some exceptional power over officials of the department--greater power
than a Senator would have when occupying som'-other position.
That statement was made to you, gentlemen, for the purpose of making you
believe that while Senator Dorsey was a member of the Senate he was also
chairman of the PostOffice Committee, and of the subcommittee having
power over the appropriations, and that he not only took advantage of
being a Senator, but by virtue of being chairman of that committee had
exceptional power over the officials of the Post-Office Department.
He was trying to convince you that, finding himself chairman of that
committee, finding himself with this power, he thereupon entered into a
conspiracy.
What evidence did the Government offer upon that point? Nothing. Did
Mr. Bliss at that time suppose that Mr. Dorsey was chairman of that
committee? The records were all here. The Government had plenty of
agents to ascertain what the fact was; and yet, without knowing the
facts, Mr. Bliss stated to this jury that he believed that; that Dorsey
was chairman of the Post-Office Committee and of the sub-committee;
wanting to poison your minds with the idea that Mr. Dorsey had taken
advantage of having held that position. Now, the only evidence upon
that point I find on page 3992, and that is the evidence of Mr. Dorsey
himself. He is asked, Were you a member of the Post-Office Committee in
1877? No. In 1878? No. Or chairman of the subcommittee? Here is what he
says, that he had not been on that Post-Office Committee "for nearly
two years" prior to July 1, 1878. And yet an attorney representing the
United States, representing the greatness and honor, the grandeur and
the glory of fifty millions of people, for the purpose of poisoning your
minds, there made that statement without knowing anything about it or
without caring anything about it. I thought I would clear that point up
the first thing this morning.
Now we will go on with the affidavits. You know these terrible
affidavits that were sworn to in Vermont. It was stated that the first
affidavit was wrong and that the second affidavit was substituted for
the first. Now, if the second affidavit took more money out of the
Treasury than the first affidavit you might say that there was a
sinister motive, a dishonest motive in withdrawing the first and
substituting the second, unless it appeared clearly that the second was
true. But suppose it turns out that the substitution did not take an
extra dollar from the United States? Then what motive do you say they
had in doing it? Was it a motive to steal something, or was it a motive
simply to be correct? What other motive could there have been?
Now, let us see. The first affidavit said three men and twelve animals;
for the expedition, seven men and thirty-eight animals; and the
proportion was exactly three hundred per cent--that is, three times as
much. Now, then, they put in another affidavit. The second affidavit
says two men and six animals. That makes eight. And on the expedited
schedule six men and eighteen animals, which makes twenty-four; and
three times eight are twenty-four; exactly the same. Three times fifteen
are forty-five, and three times eight are twenty-four, and the amount of
money drawn under the second affidavit is precisely the same that would
have been drawn under the first affidavit.
Now, do you pretend to tell me that they took the trouble to withdraw
the first affidavit and put in the second affidavit because they were
trying to defraud somebody? On the contrary, they took that trouble
because there was a mistake made in the first affidavit and they wanted
to correct it, not for the purpose of getting more money, but for the
purpose of getting a correct affidavit.
Mr. Crane (foreman of the jury). Was not that first affidavit
interlined?
Mr. Ingersoll. No, sir.
If there had been any fraud about it, would they not have withdrawn the
paper? They had a right to withdraw it. Yet they left the paper there;
they left it there as a witness. Why? Because it did not prove anything
against them; it only proved they desired to be correct.
My recollection is there were erasures in both affidavits. Let us
find them. Before I get through I will endeavor to show you that
every erasure and interlineation is an evidence of honesty instead
of dishonesty. What are the numbers of these affidavits? [Examining the
papers.] They are number 4 C and 5 C. Route 38134. I will read them.
Hon. Thomas J. Brady,
Second Assistant Postmaster-General:
Sir: The number of men and animals necessary to carry the mail on route
38134 on the present schedule is three men and twelve animals. The
number necessary on a schedule of ten hours, seven times a week, is
seven men and thirty-eight animals.
Respectfully,