Subcontractor.
That is the second affidavit. The first was withdrawn. That is, they
had permission to withdraw it, and in the second affidavit is the
interlineation "seven times a week," isn't it? That is simply an
interlineation, because there had been an omission to state the service
that was then being performed or that was to be performed.
Mr. Crane (foreman of the jury). That has puzzled me a good deal, to
understand the motive of those two affidavits.
Mr. Ingersoll. There certainly could not be any motive for putting in
seven or three times a week, for this is simply to make it agree with
the truth. If I give a note to a man for five hundred dollars and should
happen to write in the word "hundred" and not the word "five," and then
should take it back and write in the word "five" above it, that is not a
sign of fraud.
Will somebody give me number 18 K; I just happened to see something
there which may be worth something, or may not.
Now, gentlemen, here is a petition marked 2 A, that Rerdell swears that
the words "schedule thirteen hours" were written in by Miner. In one of
these papers I happened to see the word "schedule." Just notice the word
"schedule" on this paper [exhibiting to the jury,] and then have the
kindness to look at the word "schedule" in this other one [exhibiting
to the jury,] and see whether you think one man wrote them both. Rerdell
says he wrote the word "schedule" in that one [indicating,] and that
Miner wrote the word "schedule" in this other one [indicating.]
Now, gentlemen, there is another charge against John W. Dorsey, on
route 38145, and upon that route he made two affidavits. In the first
affidavit he swore it would require three men and seven animals on the
schedule as it then was, and that makes ten; that with the proposed
schedule it would take eleven men and twenty-six animals, making
thirty-seven. Now, if it took ten on the schedule as it then was,
and thirty-seven on the proposed schedule, then the Government, which
accepted that affidavit, would have to pay him three times and
seven-tenths as much, which is the relation between ten and
thirty-seven. The proportion then is three and seven-tenths. On the
first affidavit his pay would have been twelve thousand nine hundred and
thirty-five dollars and fifty-two cents a year.
Now I come to the second affidavit, which said that for the schedule
as it then stood ijt would take twenty men and animals. On the proposed
schedule he said it would take twelve men and forty-two animals, making
fifty-four. Now, the ratio of the second affidavit was as twenty is
to fifty-four. The ratio in the first affidavit was as ten is to
thirty-seven, so that under the second affidavit, which they say was
willful and corrupt perjury, he got eight thousand four hundred and
fifty-seven dollars a year instead of twelve thousand nine hundred and
thirty-five dollars and fifty-two cents. There were three years for the
contract to run, and a little over. Under the first affidavit he would
have received thirteen thousand nine hundred and ninety-two dollars and
seventy-five cents during the contract term more than he took under the
second. An affidavit was put in there that he thought was erroneous. He
withdrew that affidavit and put in a second one. If he had allowed the
first to remain and they had calculated the amount on the first he would
have received thirteen thousand nine hundred and ninety-two dollars and
seventy-five cents more than he did under the second affidavit. But he
withdrew the first and put in the second, and took from the Treasury
thirteen thousand nine hundred and ninety-two dollars and seventy-five
cents less, and they charge that as a fraud, as an evidence of
conspiracy and perjury. Now, that is all there is against John W.
Dorsey.
On page 4090 John W. Dorsey swears that General Miles wanted to know how
far apart he (Dorsey) was building the stations on the Tongue River and
Bismarck route. Let us turn to page 4090. You know they were trying to
prove that when John W. Dorsey went out there and built the ranches
that he was going to build them about fifteen or seventeen miles apart,
because it was claimed that they knew there was to be increase and
expedition. You remember that. Now, when John W. Dorsey came upon the
stand he swore that when they went out there they started to build
those stations, I believe, somewhere in the neighborhood of thirty or
thirty-five miles apart, as they could get water. Then he swore that
when he went himself over, I think, to Miles City, where General Miles
was, that General Miles asked him how far he was building his stations
apart. John W. Dorsey told him. Then General Miles gave him his advice.
Now, I want to read this to you. I asked him this question:
Q. When you got to Fort Keogh did you go to see General Miles?--A. Yes,
sir.
Q. Did you have any conversation with him in regard to this route, with
regard to the needs of the country for mail service; and, if so, what
was it? A. I told him all about the business generally. He seemed to
understand it pretty well. He wanted to know how far apart we were
building stations. I told him. He wanted to know how often the mails
would run, and I told him it would be weekly service, I thought. "We
have been pent up here two or three years," he says, "with mails from
eighteen to twenty days apart, reaching us by the way of Ogden and
Bozeman." And he says, "We can get it in seven or eight days over this
line." And now I would like to say that he did not say that he knew
there would be an increase, but he said he should like to have it
increased to three trips a week, or daily, and fifty hours' time. I told
him there was no use to try to get it at all; that it could not be done
at present; that nobody knew the distance through that country; that we
expected to have it measured; that it was claimed by everybody that it
was a good deal more than two hundred and fifty and probably over three
hundred miles, and nobody would undertake to carry it. Said I, "If
you extend it the contractor can throw up his contract and you will be
without any mail." He said, "We are going to ask for what we want, but
we will take what they will give us."
"Your stations are too far apart; you can't run any fast time with your
stations so far apart; you want more stations, and nearer together." The
result was that when I went back I met Mr. Pennell, who had built the
stations thirty to thirty-five miles apart, and going back we put in
intermediate stations. We only carried out lumber enough from Bismarck
to build eight or nine stations, for the windows, &c.; we did not think
of building any more at that time. Mr. Pennell says the order was to
build the stations seventeen to twenty miles apart in going out. That
is no such thing. There was not a station built going out closer than
thirty to thirty-five miles.
Q. What, if anything, did General Miles say that convinced you that you
ought to build stations nearer together?
Then he testifies that on account of what he said he did this, and that
he had no instructions from Washington.
That is the testimony. Mr. Bliss endeavored to frighten the witness by
stating in his presence that he (Bliss) did not believe General Miles
would swear to any such thing, judging, of course, from the conversation
that he (Mr. Bliss) had had with General Miles. Notwithstanding that
threat, John W. Dorsey, confident that he was telling the truth, knowing
that he was telling the truth, told his story, and the Government never
brought General Miles to contradict him.
Now, the next thing about John W. Dorsey is the conversation that he had
with some men in July or August out on the road, that I have spoken to
you about before. Nothing could be more perfectly improbable. It may be
that he did tell some man that he was a brother of Senator Dorsey, and,
perhaps, he did say that if he got into a tight place or hard up for
money he could borrow money from his brother. I do not know what he may
have said on that subject. But, gentlemen, there is not a man on this
jury, not one of you, who has the slightest suspicion that John W.
Dorsey at that time told those men substantially that his brother was in
a conspiracy with the Second Assistant Postmaster-General, and that
he, John W. Dorsey, was also a conspirator. There is not one of you who
believes that, not one, and you never will. Why not? Because it is
so utterly and infinitely unreasonable and absurd. Now, that is the
evidence against John W. Dorsey. My attention is called to one other
point in his case, and so I will call your attention to it.
Mr. Bliss, gentlemen, on page 243, in speaking of the two affidavits on
the Pueblo and Rosita route, says:
We find this extraordinary condition of things. On route 38134, from
Pueblo to Rosita, which, I think, is the same route upon which the
obliging Mr. John W. Dorsey, as I have just stated to you, was allowed
to make the affidavit instead of Mr. Miner.
Now, he goes on to describe these two affidavits, and then he says:
Those two affidavits were before Mr. Brady, made by John W. Dorsey on
the same day, and yet Mr. Brady chose to pick out one or the other of
them and say, "I believe that as the absolutely conclusive statement of
the number of men and animals that are now in use upon that route,
and upon that affidavit I will make my order taking from the Treasury
thousands of dollars of money." You will see that the first affidavit
made the number two men and six animals, making eight as the number of
stock and carriers then in use; but the other one called for three
men and twelve animals, making fifteen as the number then in use, and,
therefore, according as he accepted one or the other, by the rule of
three, to which I called your attention just now, there would be twice
the amount of money allowed from the Treasury under the one affidavit
that there would be under the other.
Just think of that, gentlemen. The number of men and animals then in use
has nothing to do with the number of men and animals stated in the other
affidavit; those amounts bear no relation to each other. The number of
men and animals in use in the first affidavit, and the number that would
be necessary on the next schedule, do bear a relation to each other. The
number of men and animals on the second affidavit on the then schedule
bears relation to the proposed number on the proposed schedule, and
not to the number on the other affidavit. And yet Mr. Bliss stood right
before you, with those two affidavits that would take the same amount
of money out of the Treasury, to a fraction, precisely the same--not the
difference of the billionth part of a farthing--and stated to you that
one would take twice as much money from the Treasury as the other. You
will think that he is as defective in mathematics as in law. I say to
you now that the amount that would be taken out of the Treasury on those
two affidavits is precisely the same.
I did not think that anybody could excel Mr. Ker in mathematics, but Mr.
Bliss bears off the palm. He bean, off the palm even in misstatement,
and bears off the palm in mistake. The two affidavits would call for the
same amount of money precisely, and yet Mr. Bliss stands up before you
and says there is twice as much on one as the other. Now, what is that
for? That is to prejudice you: that is all.
Gentlemen, you saw John W. Dorsey; you heard his testimony; you know
whether he is a man to be believed. It is for you to judge whether he is
honest or dishonest, and I leave his testimony with you. It was direct;
it was to the point; and his manner on the stand was absolutely and
perfectly honest.
Now, there is another point made. You know you have to think of these
things as you can, and step on them and then go on. Another point is
made, and it was urged by Mr. Bliss day after day. And what is that?
That Mr. Brady took the affidavits of all these men as absolutely true;
that he allowed them to fix the limit of the money they would take out
of the Treasury; that he allowed interested men to make the affidavits,
and then he took the affidavits as absolutely true; that he allowed the
contractors themselves to fix the sum they would seize. Now let us see
what that is. Mr. Brady swears that he regarded the affidavit as the
honest opinion of the man who made it, but not as necessarily true;
that he had a standard of his own. Your views upon all such
questions, gentlemen, will depend upon which side of human nature you
stand--whether you are a believer in total depravity, or whether you
think there is a little virtue left in human nature. If you stand on
the side of suspicion, if you allow the snake of prejudice to forever
whisper in your ear, why, your idea will be that every man is a rascal;
and whenever he does a decent action you will say, "This action is a
little velvet in the paw for the purpose of covering the claw of some
devilment that he has in store." If you judge from that side you can
torture any act, no matter what it is, into evidence of guilt. But you
may judge from the other side and say that men, as a rule, are decent;
that they would rather do a kind act than a mean thing; that they would
rather tell the truth than tell a lie. I tell you to-day that there is
an immensity of good in human nature. There are hundreds and thousands
and millions of men to-day who are honest, who would not for anything
stain the whiteness of their souls with a lie. They are laboring-men, it
may be, working by the day for a dollar or a dollar and a half, and only
taking enough of it to keep life and strength in their bodies and giving
the rest to wife and child. And there are battles as grand as were ever
won by a celebrated general, and just as bravely fought, with poverty
day after day; and the man who fights the battles gains the victory and
goes down to the grave with his manhood untarnished. You know it, and so
do I. And yet you are all the time told to suspect everything, no matter
what it is. There is a flower there; ah, but there is a snake under it!
Always making that remark; accounting for every decent looking action by
a base motive. That is not my view of human nature.
Now, Mr. Brady says that he had a standard of his own; that he let these
men make their statements, and he took their statements as being what
they believed to be the truth. And why not? Suppose I say to a man,
"What will you take for that horse?" And the man says, "That horse is
worth a hundred dollars." Suppose he goes and swears to it; that would
not make any difference in the price I would give for the horse, not a
bit. You see I am not buying an affidavit, I am buying a horse. So, when
Brady says to the contractor, "What will you carry the mail at six miles
an hour for?" and the man says "Twenty-five thousand dollars," and he
swears to it, Brady is not buying the affidavit; it is the service. If
he does not believe the service is worth that much, he says, "I can't do
it," and that is all. But they say "No; that is not what Brady did."
Now, as a matter of fact, there are nineteen routes in this indictment,
and I believe eighteen of them were expedited. I have made a calculation
for the purpose of showing that the amount to be paid was a matter of
bargain; that it was a matter talked over between the parties; that
it was the result of agreement, and that Mr. Brady did not take the
affidavit as the actual amount, and that they were not bound to take the
amount that he actually said. Now, I have deducted what was allowed
from what could have been allowed on the affidavits, and I find that
the price did not depend upon the affidavits. I find that there was
a difference between the amount called for by the affidavits and the
amount granted of over three hundred thousand dollars. And yet these
gentlemen say to you that Brady allowed the men who made the affidavits
absolutely to fix the amount. Gentlemen, that will not do. It was
a matter of agreement, a matter of bargain, the same as any other
agreement or any other bargain.
Now, gentlemen, suppose they had had a conspiracy and said, "We want to
get all the money we can out of the Treasury." They would have agreed
upon a per cent.; they would have had all those affidavits showing
substantially the same per cent., wouldn't they? Because they would have
wanted harmony in it. They would have said, "It won't do for you to make
an affidavit on that route with one thousand two hundred per cent., on
this route with five hundred, on that route with two hundred and twenty
per cent., and on the other route with three hundred and forty per cent.
That won't do; that is nonsense; we are in a conspiracy and we want all
these things to agree and harmonize." And the result would have
been that they would have had about the same per cent, in all those
affidavits. And yet those affidavits vary in per cent, all the way from
two hundred and twenty to one thousand two hundred. They say, "Result of
conspiracy." I do not look at it in that way.
It is also claimed that the persons who sold out--that is to say, John
M. Peck and John W. Dorsey--agreed to make the necessary papers that the
other parties required. That being so, why should not affidavits have
been made in blank? Now, I ask you if the other parties were willing to
swear to anything that these men would write, why were they made that
way? Why not avoid the suspicious circumstance of blanks and put the
amount in at first, knowing that the men would not hesitate to swear? Of
what use was it, gentlemen, to have an affidavit suspiciously made, to
have blanks suspiciously left, when the men were willing to swear to
any numbers they would put in? Why did not the parties who made the
affidavits write in the amounts? Does not that very fact, that blanks
were left, show that they were to take the judgment of the men who were
to do the swearing? Why would they leave blanks? Why did they not fill
them up at the time and have them sworn to?
Why were they not continuously written? That is another point, if this
was a conspiracy. Guilt is always conscious that it is guilty. Guilt is
always suspecting detection. Guilt is infinitely suspicious. Guilt would
make all the papers as nearly right as possible. Guilt would look out
for erasures. Guilt would abhor blots. Guilt would have avoided
having blanks filled in with different colored inks. Guilt would
want everything fitting everything else, nothing to excite suspicion.
Innocence is negligent. The man with honest intentions is the one that
does not care. But the guilty man does not travel in the snow. He wants
no tracks left.
Now, another thing: The fact that no effort was made to have the
affidavits in the same handwriting, no effort to have the blanks
apparently filled at the same time, that they were interlined, that
there were erasures--all those things tend to show that the parties
were honest in what they did. It was just as easy to have one without an
erasure as with it; ii was just as easy to have one continuously written
as to have the blanks filled up; just as easy to have one without any
interlineations as with it. And yet these parties, knowing that they
were conspirators (according to these gentlemen), Mr. Brady occupying
a high and responsible position, were so careless of their reputations,
that they did not even endeavor to make the papers passable upon their
face.
Another thing: These very routes were investigated by Congress in
1878--this very business. If the parties at that time had been conscious
of guilt, why were any suspicious papers left on file? Why were not
others substituted that had no suspicious interlineations, no suspicious
erasures, no suspicious blanks that had been filed? Why were these very
affidavits at that time reported to Congress?
The first investigation was in 1878, and on account of that
investigation the contractors for about a month and a half were left.
Then there was another investigation in 1880.
Mr. Merrick. Is there any evidence that they were all reported to
Congress?
Mr. Ingersoll. I think so; I think that is here in the record. I
understand the evidence to be that it was all reported to Congress.
Mr. Merrick. The investigation of 1880 was general, and not as to these
particular routes.
Mr. Ingersoll. In 1878 there was a special investigation growing out
of these Clendenning bonds and out of the Peck bids, and out of the
connection that they said Stephen W. Dorsey had with this business. That
is what it grew out of. Now, in the light of that investigation, let us
take it for granted for one moment that according to their statement the
parties had conspired. If anything on earth would make them afraid about
papers I think it would have been that investigation; and yet no effort
was made to conceal one, not the slightest.
Then we will go another step. General Brady was Second Assistant
Postmaster-General. All these papers were absolutely in his power. He
could have called for them at any time. Every suspicious paper could
have been destroyed or an unsuspicious one substituted for it.
Now, I want to know if it is conceivable that General Brady, under these
charges, when the new administration came in, under the threat of the
Government, would voluntarily leave those papers upon the files if they
had been dishonest and he knew it?
Take another step. So far as we have learned from the prosecution I
believe there is one paper claimed by them to have been lost. They do
claim that there was a second affidavit on the Bismarck and Tongue River
route. One is gone and one remains. Which remains? The affidavit for
one hundred and fifty men and one hundred and fifty horses. It seems to
me absolutely capable of demonstration that we did not take the one that
is gone. Had we been going to take anything we would have taken the one
for one hundred and fifty men and one hundred and fifty horses, and
left the other. But the other, about which nobody ever did complain, was
taken, and the one upon which they build their great argument of fraud
upon that route was left. And then it turned out that General Brady only
allowed forty per cent, of that affidavit.
Now, this prosecution was not begun in a moment. It was talked about for
weeks and months, I might almost say for years. Talk, talk, talk in
the papers everywhere. These men were not suddenly charged with this
offence. They understood it; they knew it. I think I have been engaged
in this suit, or suits growing out of this business, for two years. It
was a matter of slow growth. Mr. Brady retired, I believe, some time in
April, 1881, knowing at that time that these charges had been made and
that the charges were being pressed. Mr. Dorsey knew it at the same
time. All these defendants knew it. Now they say that at that time we
were in conspiracy with Mr. Brady, and they say that at that time we
were in conspiracy with Mr. Turner. We had the papers in our power.
Now, if Mr. Dorsey was wicked enough to conspire, if Mr. Brady was
villainous enough to conspire, I ask you whether they would have left
behind the evidence of their conspiracy? Why were the papers left?
Because General Brady never dreamed that one of them was dishonest.
Why did not Vaile and Miner, John W. Dorsey and Peck and Stephen W.
Dorsey ask for the papers? Because they believed every one to be honest,
and they had no use for them. They were willing that the Government
should make out of them what it could. I ask again, is it conceivable
that John R. Miner, if he knew there was on the files of the department
a petition that he had changed, that he had erased, that he had
interlined or forged, is it conceivable, if he had been wicked enough
to enter into the conspiracy, that he would have been foolish enough to
leave the paper there? Would he not have gone to Brady and said to him,
"I conspired; you know it; I changed the petition, and I want it; I
erased a word in a petition, I want it; I signed a name to a petition, I
want it"? And Brady would have said, "Yes, and you ought to have called
for it long ago; you can have it." If S. W. Dorsey had interlined an
affidavit or had filled a blank, if S. W. Dorsey had made an erasure
or an interlineation, he, of course, must have known it, and if he
conspired with Brady he must have known it, and he must have gone to
General Brady and said, "I want that affidavit on such a route; we can
write another, and I want that; I want that petition;" and it would have
been given. You cannot conceive of such infinite stupidity as to say
that those people knew that those papers were dishonest, and that they
still left them on file as weapons for their enemies. You cannot do it.
So much, gentlemen, for the affidavits, and so much for the papers.
Now, there is another question, and I have no doubt that you have asked
it yourselves. It has been asked a great many times by the prosecution.
That question is this: Why did Dorsey retain Rerdell in his employ after
the 20th of June, 1881? These gentleman tell you that it is evidence of
guilt that he did it. I will tell you why he did it. At that time the
public mind was almost infinitely excited on this question. At that time
the public was ready to believe anything. It had its mouth wide open,
like a young robin, ready for worms or shingle-nails--it made no
difference--anything that dropped in. Every newspaper was charging that
these defendants were guilty, that Stephen W. Dorsey was a conspirator,
that millions had been taken from the Treasury, and there were nearly as
many mistakes in the press then as in the speech of Mr. Bliss now. But
I can excuse that, because it was before the evidence. Now, what was Mr.
Dorsey to do in the then state of the public mind? That man, no matter
how bad he was, how base he was, had the power to have him indicted.
That man could have gone before the grand jury and had Mr. Dorsey or any
other public man indicted in the then state of excitement and feeling of
the public. What was the result of his going even to James and MacVeagh?
I believe Mr. Turner says that on account of the statement of this man
Rerdell, he (Turner) was turned out of his office. That is the effect.
What became of McGrew? What became of Lilley? What became of Lake? What
became of twenty or thirty other officials upon whose reputation this
man had breathed the poison of slander? Stephen W. Dorsey at that time
knew that that man in the then state of public excitement was powerful
for mischief. That man made the affidavit of June, 1881, at the request
of James W. Bosler, as he himself says, and swore that he went to the
Government simply to find out the Government's secrets; swore that he
was still upon the side of Stephen W. Dorsey; took back what he had
said, and swore that it was a lie. The question then was what to do with
him? Stephen W. Dorsey made up his mind not to do anything more, just to
let him alone, just let him stay as he was. That was the wise course.
It was the course that any wise man, in my judgment, would have pursued
under the circumstances. What else could he do? Let him alone. Let him
alone. He did not at that time expect that he would ever be indicted. He
shrank from an indictment, as every sensitive man does, because when you
have indicted a man you have put a stain upon him that even the verdict
of not guilty does not altogether remove. He did not want that stain.
He was a man of power; he was a man of position, a man of social and
political standing, a man wielding as much influence as any other one
man in the United States. He did not wish to be indicted. He did not
wish his reputation to be soiled and stained. And so he allowed that man
to stay where he was. He may have made a mistake, but whether mistake or
not, that is what he did.
There is another question. Why did we fail to produce our books and
papers? I will tell you. The notice to produce them was given to us
on the 13th day of February. We had noticed curious motions. Two days
afterwards, Mr. Rerdell went on the stand. What did they want the books
and papers for? For Mr. Rerdell to look at. Why did he want to look at
the books and papers? To stake out his testimony. He hated to depend
upon his memory. We took the responsibility of letting the witness
swear to the contents of the books and papers, and let them call that
secondary evidence. We took that responsibility rather than to furnish
the books and papers to be looked at by that man in order that he might
make no mistakes in his testimony. What happened afterwards justified
our course. If we had shown to him the books and papers, and checks,
and stubs, do you think he would have made any mistake about that seven
thousand five hundred dollar check? Would he have said that he went
with Dorsey, and that Dorsey drew the money, and that he looked over
his shoulder, and that then he and Dorsey walked down to the Post-Office
Department, if he had known that that check was drawn to his order? If
he had known before he swore, that he indorsed that check, he would have
said he went down and got the money himself; he would not have said that
Dorsey did. He would have made no mistakes there. He would not have
been driven into the corner of saying "stub" or "stubs," "checkbook"
or "check-books," "amount" or "amounts." No, sir. And that one thing
justified absolutely the wisdom of our course.
Then the Court decided that, having failed to produce our books on
notice and allowed the other side to introduce secondary evidence of
their contents, we would not be allowed then to produce them. I insisted
that we had the right then to produce them, and the Court decided that
we had not. We took the responsibility of refusing, and we took that
responsibility because we made up our minds that we would not allow
that man to look over the books, checks, and stubs for the purpose of
manufacturing his testimony.
The Court. Where did you offer to produce the books?
Mr. Merrick. Where did you offer the production of the books? That is
just what I was about to ask.
Mr. Carpenter. The Court said we could not.
Mr. Merrick. Where did you make the offer?
The Court. I want to know.
Mr. Carpenter. Mr. Ingersoll did not say he made the offer.
Mr. Merrick. I think he did.
The Court. I think he did.
Mr. Carpenter. Just read it, Mr. Stenographer. He says nothing of the
kind.