MAY it please the Court and gentlemen of the jury: Perhaps some of you, may be all of you, will remember that I made one of the opening speeches of this case, and that in that opening speech I endeavored to give you the scheme or plan of the indictment. I told you, I believe, at that time, that all these defendants were indicted for having conspired together to defraud the United States. In that indictment they were kind enough to tell us how we agreed to accomplish that object; that we went into partnership with the Second Assistant Postmaster-General, he being one of these defendants, and that we then and there agreed to get up false petitions, to have them signed by persons who were not interested in the mail service, to sign fictitious names to these petitions, those names representing no actual, real, living persons; that we also agreed to have false and fraudulent letters written to the department urging this service; that in addition to all that we were to make and file false and fraudulent affidavits, in which we were to swear falsely as to the number of men and horses to be employed, and the number of men and horses then necessary; that in addition to that we were to file fraudulent subcontracts; that the Second Assistant Postmaster-General was to make false and corrupt orders, and that all these things were to be done to deceive, mislead, and blindfold the Postmaster-General. They also set out that these orders so corruptly made were to be corruptly certified to the Auditor of the Treasury for the Post-Office Department in order that we might draw our pay. That is what is known as the general scheme or plan of this indictment. You have heard the testimony, and remember some of it. Of course you do not remember it all. Probably no man ever lived who could do such a thing. You have heard the testimony discussed, I believe, for about twenty days, so that I take it for granted you know something about it, or at least have an idea that you do. The story that we told you in the first place, and that we now tell you, is about this:
In 1877 Mr. Peck, Mr. Miner, and John W. Dorsey made up their minds to make bids and to go into the mail business. I want you to remember that there is not one word in this indictment about any false bid ever having been made. Remember that. There is nothing in this indictment about a false bond having been given; not a thing. There is nothing in this indictment charging that any of the original contracts were false. I want you to remember that. There is no evidence that any person signing any one of those contracts as security was not perfectly solvent. There is no evidence, not one syllable, that any proposal was fraudulent, or that any bid was fraudulent. How is it possible for a bid to be fraudulent? I will tell you. If you make a bid, and make a contract or enter into an agreement at the same time with some of the Post-Office officials so that your bid will be accepted when it is not the lowest, there is a fraud, and there is a fraudulent bid. There is one other way, and that is to put in a bid to carry the mail at so many thousand dollars, and then have below that straw bidders, men not responsible, and when the time comes to accept the bid of those gentlemen they refuse to carry it out, and then the law is that it shall be given to the next highest, and he refuses, and the next, and he refuses, and the next highest, and he refuses, and so on until it comes to the highest bidder. There are such combinations and have been, I have no doubt, for many years in the Post-Office Department. That is called straw bidding, and it is fraudulent bidding. There is no such charge as that in this case. Every bid that was made was made in good faith, and every bid that was accepted was followed by a good and sufficient contract entered into by the party making the bid, and so that is the end of that.
Now, in 1877, I say these men entered into an agreement among themselves that they would bid on certain routes, and Mr. Peck, or Mr. Miner, or John W. Dorsey—they may have it as they choose—somebody, wrote a letter to Stephen W. Dorsey and in that letter told what they were going to do and requested him to get some man to obtain information in regard to these routes. You know that testimony. Stephen W. Dorsey was then in the United States Senate. He sent for Mr. Boone and he showed him that letter. In consequence of that Mr. Boone sent out his circulars to the postmasters all over the country, or all over the portion as to which they were to bid, and asked them about the roads, about the price of oats and corn, about the price of labor, and about the winters; in other words, all the questions necessary for an intelligent man, after having received intelligent answers, to make up his mind as to the amount for which he could carry that mail. Mr. Boone, you remember, says that he was to have at that time a certain share. There is a conflict of testimony there. Mr. Dorsey says that he told Boone that when John W. Dorsey came here they could arrange that, and he had no doubt that they would be willing to give him a share; but that he did not give it to him. The circulars were sent out and the information in some instances, and I do not know but all, came back. Then they agreed upon the amounts they were to bid. I believe Mr. Miner came here in December, and John W. Dorsey, I think, in January, and in February the bids were made. All the amounts were put in the bidding-book issued by the Government, by Mr. Miner and Mr. Boone; all with two exceptions, and those amounts had been placed there by them, but under the advice of Stephen W. Dorsey those amounts were lowered. I remember one was upon the Tongue River route, the other route I have forgotten. Mr. Miner, Mr. Peck, and John W. Dorsey were together. Afterwards a partnership was formed between John W. Dorsey and A. E. Boone. Stephen W. Dorsey advanced some money. There is nothing criminal about that. It is often foolish to advance money, but it is not a crime. It is often foolish to indorse for another, and many a man has been convinced of that, but it is not a crime. He advanced until, I believe, he was responsible for some fourteen or fifteen thousand dollars, and thereupon he declined to advance any more. He saw Mr. Miner in Saint Louis, and said to Mr. Miner, "This is the last I am going to advance." I think he gave him some notes that he hypothecated or discounted at the German-American National Bank. He wanted security, and thereupon they gave him Post-Office drafts for the purpose of securing his debt. He would advance no more money and went away to New Mexico. Mr. Miner had a power of attorney from John W. Dorsey who was absent, and a power of attorney from John M. Peck who was absent. I believe on the 7th of August, or about that time, Mr. Boone went out. Why? They had not the money at the time to put on the service. Why? A great many more bids had been accepted than they had anticipated, and instead of getting twenty or thirty routes they got, I believe, one hundred and thirty-four routes. The consequence was they did not have the money to stock the routes. There was another difficulty.
There was an investigation by Congress, and that delayed them a month or two, and the consequence was that when the 1st of July came, the day upon which the service should have been put on, it was not only not put on, but they had not the means to do it. Then what happened? Then it was that Mr. Miner took in Mr. Vaile, and an agreement was made which bears date the 16th day of August, 1878. It was not finally signed by all the parties, I believe, until some time in September or October. Under that contract, which you have all heard read, Mr. Vaile was given an interest in this business. More than that; subcontracts were given to Mr. Vaile, and under the subcontract law which was passed on the 17th day of May, 1878, I believe, Vaile could file his subcontract in the Post-Office Department, and that rendered all Post-Office drafts or orders that had been given absolutely worthless. That was done. The subcontracts were given to Vaile under the powers of attorney that Miner held from Peck and John W. Dorsey, and of course he could act for himself. That was the situation. Stephen W. Dorsey was not here. When he returned he found that everything had been disposed of except his liability, and that he would have to pay the notes. His security was gone, and the subcontracts were filed. At that time he and Mr. Vaile had a quarrel. That is our story. In the meantime John W. Dorsey was on the Tongue River route. I believe he visited Washington in November and left word that he would like to sell out all his interests in these routes, and I believe fixed the price. Some time in November or December Mr. Vaile made up his mind to take the routes, and afterwards changed his mind. Stephen W. Dorsey was then in the Senate. On the 4th of March, 1879, his term expired. I believe on that very day, or about that day, he wrote a letter to Brady calling his attention to these subcontracts that had been filed for the protection of Vaile and denouncing them. That was the first thing he did. Then a few days afterwards the parties met. In a little while afterwards they made a division of this entire business. You know how the division was made. Stephen W. Dorsey fell heir to about thirty of these routes, I think. In addition he had to pay ten thousand dollars to his brother and ten thousand dollars to Peck. Mr. Vaile, I think, took forty per cent, and Mr. Miner thirty per cent. Mr. Vaile and Mr. Miner went into partnership and Stephen W. Dorsey took his routes, and that ended it. Mr. Peck was out and John W. Dorsey was out. That is our story. When they divided those routes, in order to vest the property of those routes in the persons to whom they fell, it was necessary to execute subcontracts and give PostOffice drafts and things of that character. All those necessary papers they then and there agreed to make. Up to this point there is not one act established by the evidence not entirely consistent with perfect innocence; not an act. That is our story. After these routes fell to us we did what we had the right to do and what we could to make the routes of value. As business men we had the right to do it, and we did only what we had the right to do.
The next question that arises, and which of course is at the very threshold of this case, is, did these parties conspire? That is the great question. In my judgment you should settle that the first thing when you go to the jury-room. After having heard the case as it will be presented by the Government, and after having heard the charge of the Court, the first thing for you to decide is, was there a conspiracy? How is a conspiracy proved? Precisely as everything else is proved. You prove that men conspire precisely as you prove them guilty of larceny or murder or any other crime or misdemeanor. It has been suggested to you that as conspiracy is very hard to prove you should not require much evidence; that you should take into consideration the hardships of the Government in proving a crime which in its nature is secret. Nearly all crimes are secret. Very few men steal publicly, with a band of music and with a torch in each hand. They generally need their hands for other purposes, if they are in that business. All crime loves darkness. We all know that. One of the troubles about proving that a man has committed a crime is that he tries to keep it as secret as possible. He does not carry a placard on his breast or on his back stating what he is about to do. The consequence is that it is nearly always difficult to prove men guilty as stated in the indictment. But that does not relieve the prosecution. That burden is taken by the Government, and they must prove men guilty of conspiracy precisely as they prove anything else. Is circumstantial evidence sufficient? Certainly, certainly. Circumstantial evidence will prove anything, provided the circumstances are right, and provided further that all the circumstances are right. A chain of circumstances is no stronger than the weakest circumstance, as a chain of iron is no stronger than the weakest link. Where you establish or attempt to establish a fact by circumstances, each circumstance must be proved not only beyond a reasonable doubt, but each circumstance must be wholly inconsistent with the innocence of the defendants. Now, let me call your attention to what I claim to be the law upon the subject, and I will call the attention of the Court to it at the same time. I will take this as a kind of test:
The hypothesis of guilt must flow naturally from the facts proved and must be consistent with them; not with some of them, not with the majority of them, but with all of them.
In other words if they establish one hundred circumstances and ninety-nine point to guilt and one circumstance thoroughly established is inconsistent with guilt or perfectly consistent with innocence, that is the end of the case.
It is as if you were building an arch. Every stone that you put into the arch must fit with every other and must make that segment of the circle. If one stone does not fit, the arch is not complete. So with circumstantial evidence. Every circumstance must fit every other. Every solitary circumstance must be of the exact shape to fit its neighbor, and when they are all together the arch must be absolutely complete. Otherwise you must find the defendants not guilty. The next sentence is:
The evidence must be such as to exclude every reasonable hypothesis except that of guilt. In other words, all the facts proved must be consistent with and point to the guilt of the defendants not only, but they must be inconsistent, and every fact proved must be inconsistent, with their innocence.
Now, what does that mean? It means that every fact that is absolutely established in this case, must point to the guilt of the defendants. It means that if there is one established fact that is inconsistent with their guilt, that fact becomes instantly an impenetrable shield that no honest verdict can pierce. That is what it means. That being so—and the Court in my judgment will instruct you that that is the law—let us talk a little about what has been established.
In the first place, nearly all that has been established, or I will not say established, but nearly all that has been said, for the purpose of showing that our motives were corrupt, and that we actually conspired, rests upon evidence of what we call conversations. Some witness had a conversation with somebody, three years ago, four years ago, or five years ago. The unsafest and the most unsatisfactory evidence in this world is evidence of conversation. Words leave no trace. They leave no scar in the air, no footsteps. Memory writes upon the secret tablet of the brain words that no human eye can see. No man can look into the brain of another and tell whether he is giving a true transcript of what is there. It is absolutely impossible for you to tell whether it is memory or imagination. No one can do it. Another thing: Probably there is not a man in the world whose memory makes an absolutely perfect record. The moment it is written it begins to fade, and as the days pass it grows dim, and as the years go by, no matter how deeply it may have been engraven, it is covered by the moss of forgetfulness. And yet you are asked to take from men their liberty, to take from citizens their reputation, to tear down roof-trees, on testimony about conversation that happened years and years ago, as to which the party testifying had not the slightest interest. As a rule, memory is the child of attention—memory is the child of interest. Take the avaricious man. He sets down a debt in his brain, and he graves it as deep as graving upon stone. A man must have interest. His attention must be aroused. Tell me that a man can remember a conversation of four or five years ago in which he had no interest. We have been in this trial I don't know how many years. I have seen you, gentlemen, gradually growing gray. You have, during this trial, heard argument after argument as to what some witness said, as to some line embodied in this library. [Indicating record.] You have heard the counsel for the prosecution say one thing, the counsel for the defence another, and often his Honor, holding the impartial scales of memory, differs from us both, and then we have turned to the record and found that all were mistaken. That has happened again and again, and yet when that witness was testifying every attorney for the defence was watching him, and every attorney for the prosecution was looking at him. How hard it would be for you, Mr. Juror, or for any one of you to tell what a witness has said in this case. Yet men are brought here who had a casual conversation with one of the defendants five years ago about a matter in which no one of the witnesses was interested to the extent of one cent, and pretend to give that conversation entire. For ray part, were I upon the jury, I would pay no more attention to such evidence than I would to the idle wind. Such men are not giving a true transcript of their brains. It is the result of imagination. They wish to say something. They recollect they had a conversation upon a certain subject, and then they fill it out to suit the prosecution.
Now, I am told another thing; that after getting through with conversations they then gave us notice that we must produce our books, our papers, our letters, our stubs, and our checks; that we must produce everything in which we have any interest, and hand them all over to this prosecution. They say they only want what pertains to the mail business, but who is to judge of that? They want to look at them to see if they do pertain to the mail business. They won't take our word. We must produce them all. It may be that with such a net they might bring in something that would be calculated to get somebody in trouble about something, no matter whether this business or not. They might find out something that would annoy somebody. They gave us a notice wide enough and broad enough to cover everything we had or were likely to have. What did they want with those things? May be one of their witnesses wanted to see them. May be he wanted to stake out his testimony. May be he did not entirely rely upon his memory and wanted to find whether he should swear as to check-books or a check-book, and whether he should swear as to one stub or as to many. May be he wanted to look them all over so that he could fortify the story he was going to tell. We did not give them the books. We would not do it. We took the consequences. But what did we offer? That is the only way to find out our motive. I believe that on page 3776 there is something upon that subject. I will read what I said:
Now, gentlemen, with regard to the books. As there has been a good deal said on that subject I make this proposition: Mr. Dorsey has books extending over a period of twenty years, or somewhere in that neighborhood. He has had accounts with a great many people on a great many subjects. He does not wish to bring those books into court, or to have those accounts gone over by this prosecution, not for reasons in this case, but for reasons entirely outside of the case. If the gentlemen on the other side will agree, or if the Court will appoint any two men or any three men, we will present to those men all our books, every one that we ever had in the world, and allow them to go over every solitary item and report to this court every item pertaining to John W. Dorsey & Co., Miner, Peck & Co., or Vaile, Miner & Co., with regard to every dollar connected, directly or indirectly, with this entire business from November or December, 1877, to the present moment, and report to this Court exactly every item just as it is. I make that proposition.
That proposition was refused. What else did I do? I offered to bring into court every check, including the time they said we drew money to pay Brady. I offered to bring in every check on every bank in which we had one dollar deposited; every one. That was not admitted. And why? Because the Court distinctly said that it rests upon the oath of the defendant at last; he may have had money in banks that we know nothing about. To which I replied at the time that if we stated here in open court the name of every bank in which we did business, and there is any other bank knowing that we did do business with it, we will hear from it. So that we offered, gentlemen, in this case, every check on every bank but one. I did not know at that time that we had ever had an account with the German-American Savings Bank; I did not find that out until afterwards. But you will remember that Mr. Merrick held in his hand the account of Dorsey with that bank; and Mr. Keyser, who, I believe, had charge of that bank, was here, and if there had been anything upon those books, certainly the Government would have shown it.
More than that; that bank went into the hands of a receiver, I think, eight months before any of these checks are said to have been given for money which was afterwards given to Brady. Now, they insist, that because we failed to bring the books into court, therefore the law presumes that the absolute evidence of our guilt is in those books. I believe they claim that as the law. If my memory serves me rightly, Colonel Bliss so claimed in his speech. In other words, that when they give us notice to produce a book, and we do not produce it, there is a presumption against us. That is not the law, gentlemen. When they give us notice to produce a book or letter and we do not produce it, what can they do? They can prove the contents of the book or letter. In other words, if we fail to produce what is called the best evidence, then the Government can introduce secondary evidence. They can prove the contents by the memory of some witness, by some copy, no matter how; and that is the only possible consequence flowing from a refusal to produce the book or letter.
And yet, in this case, gentlemen, Mr. Bliss wishes you to give a verdict based upon two things: first, upon what we failed to prove; secondly, on what the Court would not let them prove. He tells you that they offered to prove so and so, but the Court would not let them; he wants you to take that into consideration; and secondly, that there were certain things that we did not prove; and that those two make up a case. That is their idea. Now, let us see if I am right about the law.
The first case to which I will call the attention of the Court is a very small one, but the principle is clear. It is the case of Lawson and another, assignees of Shiffner, vs. Sherwood, and it is found in 2 English Common-Law Reports; 1 Starkie, 314.
The Court. Colonel Ingersoll, you cannot argue that question to the jury; you cannot cite an authority and discuss it to the jury.
Mr. Ingersoll. Then I will discuss it with the Court; it is immaterial to me which way I turn when I am talking. I insist that the jury must at last decide the law in this case. I will read another case to the Court, found in 9 Maryland, Spring Garden Mutual Insurance Company, vs. Evans.
The Court decides in this case that the only consequence of their refusal to produce the papers, they not denying that they had them, was to allow the opposite party to prove their contents. That is all; that it could not be patched out with a presumption.
The Court. But if afterwards they should attempt to contradict the secondary evidence the Court would not have allowed them to do it.
Mr. Ingersoll. It does not say so.
The Court. That is the law.
Mr. Ingersoll. Suppose, after the other side had proved the contents, there was an offer of the actual original papers. I can find plenty of authority that they must be received.
The Court. I have never seen such authority, but I have seen a great many to the contrary.
Mr. Ingersoll. I have never seen an authority to the contrary that was very well reasoned. But, then, I will not argue about that, for that is not a point in this case.
The Court. If you have the papers, and have received notice to produce them, you are bound to produce them. If you do not produce them secondary evidence is admissible to prove their contents. But after the secondary evidence has been received, the Court will not allow you then, after having first failed to produce the papers upon notice, to resort to the primary evidence which you ought to have produced upon the notice, for the purpose of contradicting the secondary evidence that was given.
Mr. Ingersoll. Now, let me give the Court a case in point: In this very case that we are now trying, Mr. Rerdell in his statement to MacVeagh said there was a check for seven thousand dollars; that the money was drawn upon that check; that he and Dorsey went together to the Post-Office Department and that Dorsey went into Brady's room; that that money was drawn by Dorsey. That was his statement to MacVeagh and James.
The Court. It was not his statement here.
Mr. Ingersoll. Yes, that was his statement here, as I will show hereafter. But let me state my point. He was coming upon the stand. The check, instead of being for seven thousand dollars, was for seven thousand five hundred dollars; instead of being drawn to the order of Dorsey or to bearer, it was drawn to the order of Rerdell himself; instead of being drawn at the bank by Dorsey, it was drawn by Rerdell in person and had his indorsement upon the back of it. We were asked to produce that. I preferred not to do it until I heard the testimony of Mr. Rerdell. Why? Because I wanted to put that little piece of dynamite under his testimony and see where the fragments went, and I did. That is my answer to that.
Now, I find another case in the first volume of Curtis's Circuit Court Reports, where it is said, on page 402, that—By the common law a notice to produce a paper—The Court. [Interposing.] Before we part from what you were saying, I wish to say that I do not think that the other side gave you notice to produce the checks; that is my memory.
Mr. Ingersoll. Yes. Let me state my memory to the Court: I do not remember exactly every one of these four thousand pages of testimony; there are three or four that I may be a little dim about; but I do remember that a notice was given to us to produce everything in the universe, nearly, and that the Court held that the scope was a little too broad. I have forgotten the page, but I will tell you where it comes in: It was where Mr. Rerdell swore about the stub-book. I find the notice, may it please your Honor, on page 2255, and it was dated the 13th of February. This is the notice, and it gave the same notice to all the defendants:
You are hereby notified to produce forthwith in court, in the above entitled cause, all letters and communications, including all telegrams, of every kind and description, purporting to come from any one of said defendants and addressed to you or delivered to you, and all memoranda in which reference is made to any contract or contracts of any one of said defendants with the United States or with the Postmaster-General for carrying the mail under the letting of 1878 on any route in the United States, or in any way referring to any contract or contracts for so carrying the mail, in which J. W. Bosler or any one of said defendants had any interest, or in any way referring to any act, contract, or proceeding thereunder, or to any payment, draft, warrant, check, or bill, or note, or to any possible loss or profit in connection with such contract or contracts, or to the management or execution thereof, or referring to any possible gain or profit to be derived by any of said defendants from contracts for carrying the mail of the United States, or to any payments under such contract, or to the distribution of the proceeds made or to be made of said payment, or to the management of any enterprise or enterprises in connection with the transportation of the mail, or to gains, profits, or losses accruing or likely to accrue from such enterprises, or to the financial means for carrying on the same; and also to produce any and all books containing any entry or entries in regard to any of the subjects, matters, checks, drafts, or payments relating or having reference to the subjects, &c., hereinbefore referred to; and also any letter-book or letter-books containing letter-press copies of letters referring to the said subject or subjects.
I believe just about that time, or a little after, another notice was given.
Mr. Merrick. If the counsel will allow me, my impression is that that notice was deemed by the Court to be too broad.
The Court. It was.
Mr. Ingersoll. Then another notice was given that specified all these things.
Curtis says in this case that—By the common law, a notice to produce a paper, merely enables the party to give parol evidence of its contents, if it be not produced. Its non-production has no other legal consequence.
I find too, that in the Maryland case they make a reference to Cooper vs. Gibson, 3 Camp., 303. I also have another case, to which I will call the attention of the Court, United States vs. Chaffee, 18 Wallace, 516. I have not the book here, but I can state what it is. My recollection of the case is this: That an action was brought against some distillers; that by law distillers have to keep certain books in which certain entries by law have to be made. Notice was served upon the defendants to produce those books. They refused so to do; and the question was whether any presumption arose against the defendants on account of that refusal.
The Court. I agree with you entirely that far in your law, that the mere fact of the failure to produce books or papers has no effect at all against the party declining to produce them. But it is a different question altogether, after secondary evidence has been given, in consequence of such refusal, to supply the place of the primary evidence. If the books and papers have an existence, and the party who has received the notice has refused to produce them, and the other party has given secondary evidence of the contents of such books and papers, that secondary evidence will have to stand, under those circumstances, as the proof in the case.
Mr. Ingersoll. That is not the point. Of course that will stand for what it is worth. I was arguing this point: Can the jury hatch and putty and plaster the secondary evidence with a presumption born of the failure to produce the books and papers?
The Court. What I mean is just this: If you should fail to produce the primary evidence, and then the secondary evidence of the contents is not contradicted——
Mr. Ingersoll. [Interposing.] It may not be contradicted, because it happens to be inherently improbable.
Mr. Merrick. The Government claims the law to be as your Honor has intimated, and we have formulated it in one of our prayers. But that abstract proposition is hardly applicable in the present case, for the Government claims the application of another and plainer proposition: That wherever a defendant himself takes the stand and has in his possession a certain paper which, when called upon on cross-examination to produce, he refuses, then a presumption unquestionably arises of such potency that it is difficult to resist.
Mr. Ingersoll. There is no difference, so far as the law is concerned, whether the defendant, as a defendant, fails to produce the books and papers, or whether, in his capacity as a witness, he fails to produce the books and papers. The law, it seems to me, is exactly the same.
Now, in this case of the United States vs. Chaffee et al. (18 Wall., 544), Justice Field denounces that you should presume against the party because he fails to produce books and papers known to be in his possession. And why? I suppose a party can not be presumed out of his liberty; he cannot be presumed into the penitentiary; and you cannot make a prison out of a presumption any more than you can make a gibbet out of a suspicion.
And again, the court instructed the jury that the law presumed that the defendants kept the accounts usual and necessary for the correct understanding of their large business and an accurate accounting between the partners, and that the books were in existence and accessible to the defendants unless the contrary were shown.
That same thing has been claimed here.
The Court. No.
Mr. Ingersoll. We have heard it very often that this was a large business.
The Court. You have not heard anything of that kind from the Court.
Mr. Ingersoll. I am not saying that. I said "claimed"; if I had referred to your Honor I should have said "decided." Here is another instruction of the court:
If you believe the books were kept which contained the facts necessary to show the real amount of whiskey in the hands of the defendants in October, 1865, and the amount which they had sold during the next ten months, or that the defendants, or either of them, could by their own oath resolve all doubts on this point; if you believe this, then the circumstances of this case seem to come fully within this most necessary and beneficent rule.,
He applied the word "beneficent" to a rule that put a man in the penitentiary on a presumption.
The Court. He was conservative.
Mr. Ingersoll. He ought to read some work on the use and abuse of words. Now, Judge Field says further:
The purport of all this was to tell the jury that although the defendants must be proved guilty beyond a reasonable doubt, yet if the Government had made out a prima facie case against them, not one free from all doubt, but one which disclosed circumstances requiring explanation, and the defendants did not explain, the perplexing question of their guilt need not disturb the minds of the jurors.
That is this case exactly: that is the exact claim of Colonel Bliss in this case. Gentlemen, you have only to take into consideration, he says, what we offered to prove and what the Court would not allow us, and what the defendants failed to prove. "Why didn't they call Bosler?"
Now, gentlemen, we claim the law to be this: That while notice is given us to produce books and papers and we fail to do it, the only legal consequence is that the Government may then prove the contents of such books and papers, and that their proof of the contents must be passed upon by you.
The next thing to which I call your attention is the crime laid at our door, that we exercised the right of petition. It is regarded as a very suspicious circumstance that petitions were circulated, signed, and sent to the office of the Second Assistant Postmaster-General. Why did these people petition? Let me tell you. If you will look in every contract in this case you will find certain provisions relative to carrying the mail. Among others you will find this: That no contractor has any right to carry any newspaper or any letter faster than the schedule time; that he has no right to carry any commercial news, or to carry any man who has any commercial news about his person, faster than the schedule time. No mail can be carried by anybody except the United States, and if a community wants more mail it has no right to establish an express that will carry the mail faster, because the United States has the monopoly. Now, if you want more mail, what are you to do? You cannot start one yourself; the Government will not allow it. What have you to do? You have to petition the Government to carry the mail faster or to carry it more frequently; and the reason you have to ask the Government to do this is because the Government will not permit you to do it; consequently you have only one resort. What is that? Petition. And in this very case I believe his Honor used this language:
Every man carrying the mail has the right to take care of his business. He has the right to get up petitions. He has the right to call the attention of the people to what he supposes to be their needs in that regard. He has the right to do it, and the fact that he does it is not the slightest evidence that he has conspired with any human being.
Now, if the man carrying the mail has the right to call the attention of the people to their needs, have not the people the right to do all that themselves? If the man carrying the mail has the right to get up a petition, surely the people have the right; and if the people have the right, surely the man has that right. That is the only way we can find out in this country what the people want—that is, to hear from them. They have the right to tell what they want.
But these gentlemen say, "Anybody will sign a petition." Well, if that is true, there is no great necessity for forging one. Very few people will steal what they can get for the asking. If a bank or a man offers you all the money you want, you would hardly go and forge a check to get it. I will come to that in a few moments.
Now, gentlemen, according to this evidence, you have got to determine, as I said in the outset, Was there a conspiracy? The second question you have to determine is, When? In every crime in the world you have got to prove the four W's—Who, When, What, Where? Who conspired? When? What about? Where? Now I want to ask you a few questions, and I want you to keep this evidence in mind. Was there a conspiracy when Dorsey received the letter from Peck or Miner? Had the egg of this crime then been laid? Had it been hatched at that time? Is there any evidence of it? The object then was to make some bids. It is not necessary to conspire to make bids. You cannot conspire to make fraudulent bids unless you enter into an agreement that the lowest bid is not to be accepted, or agree upon some machinery by which the lowest bid is not received, or put in a bid with fraudulent and worthless security. Will the Government say that there was a conspiracy at the time Peck or Miner wrote to S. W. Dorsey? What evidence have you that there was? None. What evidence have you that there was not? The evidence of Miner and the evidence of S. W. Dorsey. What else? Boone had not been seen at that time. John W. Dorsey was not here. Peck was not here. Peck or Miner had written the letter. Was there any conspiracy then? Is there any evidence of it? Is there enough to make a respectable suspicion even in the mind of jealousy? Does it amount even to a "Trifle light as air."
Was it when Dorsey sent for Boone? Boone says no. He ought to know. S. W. Dorsey says no. John W. Dorsey was not here. Miner had not arrived. The only suspicious thing up to that point is that Dorsey lived "in his house;" that he received this letter "in his house," and that Boone visited him "in his house." That is all. Now, if there is a particle of evidence, I want the attorney for the Government who closes this case to point it out, and to be fair. Was it when Miner got here in December, 1877? Miner says no. Boone says no. Stephen W. Dorsey says no. John W. Dorsey was not yet here. All the direct evidence says no. All the indirect evidence says nothing. Now, let us keep our old text in view. I want to ask you if there is a thing in all the evidence not consistent with innocence? Was it not consistent with innocence that Peck and Miner and John W. Dorsey should agree to bid? Was it not consistent with innocence that John W. Dorsey met Peck at Oberlin, and that he met Miner in Sandusky? Was not that consistent with innocence? Was it not consistent with innocence for Peck to write S. W. Dorsey a letter? Was it not consistent with innocence for Dorsey to open it and read it and then send for Boone and give it to him? Boone in the meantime proceeded to get information so that they could bid intelligently. Was that consistent with innocence? Perfectly. More than that, it was inconsistent with guilt. What next? May be this conspiracy was gotten up about the 16th of January, when John W. Dorsey came here. Dorsey says no; Boone says no; Miner says no; and S. W. Dorsey says no. That is the direct evidence. Where is the indirect evidence? There is none. Ah, but they say, don't you remember those Clendenning bonds? Yes. Is there anything in the indictment about them? No. Was any contract granted upon those bonds or proposals? No. Was the Government ever defrauded out of a cent by them? No. Is there any charge in this case relative to them? No. Everybody says no. John W. Dorsey entered into a partnership with A. E. Boone after he came here. Is that consistent with innocence? Yes. No doubt many of the jury have been in partnership with people. There is nothing wrong about that. He also entered into partnership with Miner and Peck. There were two firms, John W. Dorsey & Co., which meant A. E. Boone and John W. Dorsey, and Miner, Peck & Co., which meant Miner, Peck and John W. Dorsey. Is there anything criminal in that? No. They had a right to bid. They had a right to form an association, a partnership. There was nothing more suspicious in that than there would have been in evidence of their eating and sleeping. Now, then, was this conspiracy entered into on August 7, 1878, when Boone went out? Boone says no, and with charming frankness he says if there had been a conspiracy he would have staid. He said, "If I had even suspected one, I never would have gone out. If I had dreamed that they had a good thing, I should have staid in." He swears that at that time there was not any. Miner swears to it and S. W. Dorsey swears to it. Everybody swears to it except the counsel for the prosecution. Rerdell swears to it. That is the only suspicious thing about it. Now, at that time, August 7, when Boone went out, S. W. Dorsey was not here and John W. Dorsey was not here. Who was? Miner. What was the trouble? Brady told him, "I want you to put on that service. If you don't I will declare you a failing contractor." A little while before that Miner had met Dorsey in Saint Louis, and Dorsey had said, "This is the last money I will furnish. No matter whether I conspired or not, I am through. This magnificent conspiracy, silver-plated and gold-lined, I give up. There are millions in it, but I want no more. I am through." So Mr. Miner, using his power of attorney from John W. Dorsey and Peck, took in Mr. Vaile.
I believe that Mr. Rerdell swears that the reason they took in Vaile was that they wanted a man close to Brady. According to the Government they had already conspired with Brady. They could not get much closer than that, could they? Miner was a co-conspirator, and yet they wanted somebody to introduce him to Brady. John W. Dorsey and S. W. Dorsey were in the same position. They were conspirators. The bargain was all made, signed, sealed, and delivered, and yet they went around hunting somebody that was close to Brady. Brady said, "I will declare you all failing contractors. I can't help it, though I have conspired with you. I give up all my millions. This service has got to be put on. The only way to stop it is for you to seek for a man that is close to me. You are not close enough." Now, absurdity may go further than that, but I doubt it. You must recollect that that contract was signed as of the 16th of August. You remember its terms. At that time not a cent had been paid to S. W. Dorsey. His Post-Office drafts had been cut out by the subcontracts. Afterwards he had a quarrel with Vaile. We will call it December, 1878.
Was the conspiracy flagrant then? Let us have some good judgment about this, gentlemen. You are to decide this question the same as you decide others, except that you are to take into consideration the gravity of the consequences flowing from the verdict. You must decide it with your faculties all about you, with your intellectual eyes wide open, without a bit of prejudice in your minds, and without a bit of fear. You must decide it like men. You must judge men as you know them. Was there a conspiracy between these defendants in December, 1878, when S. W. Dorsey came back here and found out the security for his money was gone, and when he had the quarrel with Mr Vaile? Is there the slightest scintilla of testimony to show that Mr. Vaile came into this business through any improper motive? I challenge the prosecution to point to one line of testimony that any reasonable man can believe even tending to show that Mr. Vaile was actuated by an improper motive. I defy them to show a line tending to prove that John R. Miner was actuated by an improper motive when he asked Vaile to assist him in this business. I defy them to show that Brady was actuated by an improper motive when he told them, "You must put on that service or I will declare you all failing contractors." Was there a conspiracy then? I ask you, Mr. Foreman, and I ask each of you, Was there a conspiracy at that time? Have the prosecution introduced one particle of testimony to show that there was? In March was there a conspiracy? Will you call dividing, a conspiracy? Will you call going apart, coming together? If you will, then there must have been a conspiracy in March. A conspiracy to do what? A conspiracy to separate; a conspiracy to have nothing in common from that day forward. Mr. Vaile entered into a conspiracy then that he would have no more business relations with S. W. Dorsey. He swears that at that time nothing on earth would have tempted him to go on. That is what they call being in a conspiring frame of mind. Not another step would he go. In March they separated, and each one went his way. It was finally fixed up, and finally settled in May. John W. Dorsey was out with his ten thousand dollars, and Peck was out with his ten thousand dollars. S. W. Dorsey, for the first time became the owner of thirty routes, or something more, and Miner and Vaile of the balance, I think about ninety-six. According to that contract of August 16, John W. Dorsey only had a third interest in the routes he had with Boone, and not another cent. There was a division. If there was a conspiracy of such a magnitude, why should Boone go out of it? Why should John W. Dorsey sell out for ten thousand dollars? Why should John W. Dorsey offer Boone one-third of it? Why was Mr. A. W. Moore offered one-quarter of it?—a gentleman who could be employed for one hundred and fifty dollars a month? I ask you these questions, gentlemen. I ask you to answer them all in your own minds. Recollect, on the 16th of August there was a conspiracy involving hundreds of thousands of dollars. In that conspiracy was the Second Assistant Postmaster-General. They had the Post-Office Department by the throat. They had the Postmaster-General blindfolded. Yet Miner went to Vaile and said, "Now, just furnish a little money to put on these routes and you may have forty percent, of this conspiracy." He was giving him hundreds of thousands of dollars. Is that the way people talk that conspire together? Would not Miner have gone to Brady and said, "Look here, what is the use of acting like a fool? What do you want me to give forty per cent, of this thing to Vaile for? I had better give twenty per cent, more to you. That would allow me to keep twenty per cent, more too, and then there will be one less to keep the secret." He never thought of that.
I want you to think of these things, gentlemen, all of you, and see how they will strike your mind. What did they want of Boone? S. W. Dorsey they say was the prime mover. He hatched this conspiracy. Miner, his own brother, Peck, and everybody else were simply his instruments, his tools. What did he want Boone for? He had a magnificent conspiracy from which millions were to come. He told Boone, "I will give you a third of it." What for? He told Moore, "I will give you one-quarter." Seven-twelfths gone already. T. J. B. thirty-three and one-third per cent. That is about all. Then sixty-five per cent, more to the subcontractors. I want you to think about these things, gentlemen. If they had such a conspiracy what did they want of Mr. Moore?
Mr. Ingersoll. [Resuming.] Gentlemen, was it natural for S. W. Dorsey to get the money back that he had advanced, or some security for it? Was that natural? When a man seeks to have a debt secured is that a suspicious circumstance? That is all he did. He was out several thousand dollars. He wanted to secure that debt and he took another debt of twenty thousand dollars upon him as a burden. If this had been a conspiracy he could have furnished this money that he had to pay to others to put the service on the route. I leave it to each one of you if that action to secure that debt was not perfectly natural. I will ask you another question. If he was the originator of the conspiracy would he have taken thirty per cent, burdened with a debt of twenty thousand dollars? The way to find out whether there is sense in anything or not is to ask yourself questions. Put yourself in that place; you, the master of the situation; you, the author of the entire scheme. Would you take one-third of what you yourself had produced, and that third burdened with twenty thousand dollars worth of debt, and then make your debt out of the proceeds? I want every one of you to ask yourself the question, because you have got to decide this case with your brains and with your intelligence; not somebody else, but you, yourself. We want your verdict; we want your individual opinion; not somebody else's. There is the safety of the jury trial. We are to have the opinions of twelve men, and those opinions agreeing. Where twelve honest men agree, if they are also independent men, the rule is that the verdict is right. The opinion of an honest man is always valuable, if he is only honest, and if it is his opinion, it is valuable. It is valuable if he does not go to some mental second-hand store and buy cheap opinions from somebody else, or take cheap opinions. In this case I ask the individual opinion of each one of you. I want each one of you to pass upon this evidence; I want each one of you to say whether if Dorsey had been the author and finisher of this conspiracy he would have taken thirty per cent., burdened with twenty thousand dollars of debt to others and fifteen thousand dollars of debt to himself? If you can answer that question in the affirmative you can do anything. After that nothing can be impossible to you, except a reasonable verdict. You cannot answer it that way. Why should he have cared so much about fifteen or sixteen thousand dollars with a conspiracy worth hundreds of thousands of dollars? Why run the risk of making the whole conspiracy public? Why run the risk of his detection and its destruction? You cannot answer it. Perhaps the prosecution can answer it. I hope they will try.
Mr. Ker, on page 4493, makes a very important admission.
After they (meaning the defendants) had these contracts, there was a combination, an agreement between all these people, that they were to do certain things in order to get at the public Treasury and get more money.
What does that mean? That means that this conspiracy was entered into after the defendants obtained the contracts, so that Mr. Ker fixes the birth of this conspiracy after these contracts had been awarded to the defendants. That being so, all the bids, proposals, Clendenning letter, Haycock letter, proposals in blank, and bidders' names left out fade away.
The Chico letter I will come to after awhile. I will not be as afraid of it as were the counsel for the prosecution. I will not, like the Levite, pass on by the other side of the Chico letter. I will not treat it as if it were a leper, as if it had a contagious disease. When I get to it I will speak about it. All these things, then, under that admission, go for naught, and have nothing to do with the case, and consequently nobody need argue with regard to them any more, although incidentally I may allude to them again. There is no doubt, recollect, after this admission. There is no clause in the indictment saying that we endeavored to defraud this Government by bids, by proposals, by bonds, or by contracts. Not a word. That is all out; in my judgment it never should have been in the case at all. What is the next thing we did? It is alleged that the moment Dorsey got these contracts he laid the foundation to defraud the Government by a new form of subcontract. Let me answer that fully, and let that put an end to it from this time on. Until May 17, 1878, the Post-Office Department did not recognize subcontractors. After these contracts came into the possession of these defendants Congress passed a law recognizing subcontractors. Consequently the contracts of the subcontractors that were to be recognized by the Government had to be somewhere near the same form as the contracts with the original contractors. The moment the contract of the subcontractor was to be recognized by the Government then it was necessary and proper to put a clause in that subcontract for expedition and a clause in that subcontract for increase of service. Why? So that the Government should know, if the route was expedited, what percentage the subcontractor was entitled to. Instead of that clause in the subcontract being evidence that Mr. Dorsey was endeavoring to swindle the Government, the evidence is exactly the other way. It was put there for the purpose of protecting the subcontractor, so that if expedition was put upon the route the Government would know what per cent, of the expedition to pay the subcontractor. If that clause had not been in that subcontract the Government could not have told how much money to pay the subcontractor, and as a consequence the subcontract would have been worthless as security for the subcontractor. And yet a clause put in for the protection of the subcontractor is referred to in your presence as evidence that the man who suggested it was a thief and a robber. What more? They say to these witnesses, "Did you ever see such a clause as that in a subcontract before?" No. Why? The Government never recognized a subcontractor before that time, and consequently there was no necessity for such a clause. Think how they have endeavored to torture every circumstance, no matter how honest, no matter how innocent, no matter how sensible; how they have endeavored to twist it and turn it against these defendants. Gentlemen, whenever you start out on the ground that a man is guilty, everything looks like it. If you hate a neighbor and anything happens to your lot you say he did it. If your horse is poisoned he is the man who did it. If your fence is torn down he is the fellow. You will go to work and get all the little circumstances that have nothing to do with the matter braided and woven into one string. Everything will be accounted for as coming from that enemy, and as something he has done.
They say another thing: That we defrauded the Government by filing subcontracts. You cannot do it. When this case is being closed I want somebody to explain to the jury how it is possible for a man to defraud this Government by filing a subcontract. I do not claim to have much ingenuity. I claim that I have not enough to decide that question or to answer it. I can lay down the proposition that it is an absolute, infinite, eternal impossibility to fraudulently file a subcontract as against the Government. It cannot he done. Oh, but they say, the subcontractor did not take the oath. There is no law that he should take an oath and there never was. There may be at some time, but there is not now. The law that everybody engaged in carrying the mail and every salaried officer of the department shall take an oath was passed before the law of the 17th of May, 1879, allowing a subcontractor to file his subcontract. Before that time the Government had nothing to do with the subcontractor. If he actually carried the mail; if he actually took possession of the mail, he had to take the oath of the carrier. But I defy these gentlemen to find in the law any oath for a subcontractor. There never was such an oath. If there is one, find it. The law that every salaried officer and every carrier of the mail shall take the oath was passed years and years and years before the law was passed allowing subcontracts to be filed. What of it? Suppose a man who is a subcontractor carries the mail and does not take any oath. That is as good as to take the oath and not carry the mail. What possible evidence is it of fraud? Suppose it should turn out that the carrier did not take the oath, but carried the mail honestly. What of it? Is it any evidence of fraud? If a man tells the truth without being sworn, is that evidence that he is a dishonest man? If a man carries the mail properly and in accordance with law without being sworn to do so, it seems to me that is evidence that he is an honest fellow, and you don't need to swear him. So when a subcontractor takes a subcontract and carries the mail according to law it does not make any difference whether he swears to do so or not. Is there any evidence in this case that the subcontractors stole any letters on account of not having taken the oath? When they answer, let them point to the law that the subcontractor is to take an oath. There is no such law and never was.
Now, according to this admission of Mr. Ker, the conspiracy commenced after they got the contract. Very well. I need not talk about anything back of that. I do not know whether the admission is binding upon the Government or not. I believe the Court holds that the Government is not bound by the admission of any agent, and that the Government only authorizes an agent to admit facts. May be he is mistaken. The Government only authorizes an agent to admit the law. At any rate Mr. Ker did the very best he knew how, and he says this conspiracy commenced when they got the contracts, and so we need not go back of that unless the Government is now willing to say that Mr. Ker has made a mistake. I lay down the proposition, gentlemen, that you need not go back of the division of these routes. Then you must go forward. What was done after that? Recollect the exact position of Senator Dorsey and the exact position of these other people.
The next claim is, although there was no conspiracy until after they got the contracts, that Senator Dorsey was interested in these contracts while he was a Senator of the United States. If they could establish that fact it would not tend to establish a conspiracy. There is nothing in this indictment about it. I admit that if he were a Senator, and at the same time interested in mail contracts, he might be tried and his robes of office stripped from him, and that he could be rendered infamous. But that is not what he is being tried for. They say he was in the Senate, and he was anxious to keep it secret. Mr. Ker says he was so anxious to keep it secret that he sent all these communications out West in Senate envelopes, so they would think a Senator had something to do with it. Then it turned out that all the envelopes were in blank; just plain white envelopes, with nothing on them, and away went that theory. If he were in the Senate and engaged in these routes also, and wished to keep it a profound secret, because if known it would blast his reputation forever, do you think he would have had all these circulars sent out in Senate envelopes and on Senate paper? If he did allow that to be done, it is absolutely conclusive evidence that he was not interested. Suppose I was trying to keep it an absolute, profound, eternal, everlasting secret that I had anything to do with a certain matter, would I write letters about it? Would I use paper that had my name, the number of my office, and the character of my business printed upon it? Would I? To ask that question is to answer it. Another thing: They claim that he was in the Senate and infinitely anxious to keep it a secret, and yet he found Mr. Moore, a perfect stranger, and said to him in effect: "Yes, Mr. Moore; I don't know you, but I want you to know me. I ama rascal. I am a member of the Senate, but I am engaged in mail routes. I hope you will not tell anybody, because it would destroy me. I have great confidence in you, because I don't know you." That is the only way he could have had confidence in Moore. He would have to have it the first time he saw him or it never would have come. To this perfect stranger he said, "Here, I am in the Senate, but I am interested in these routes. I am in a conspiracy. I want you to go out and attend to this business. I want you to do all these things, and the reason I tell you is because I am a Senator and I want it kept a profound secret. That is the reason I tell you." That is what these gentlemen call probable. That is their idea of reasonableness and of what is natural. That may be true in a world where water always runs up hill. It can never be true in this world. It is not in accordance with your experience. Not a man here has any experience in accordance with that testimony or that doctrine; not one. You never will have unless you become insane. If this trial lasts much longer you may have that experience. It is a wonder to me it has not happened already.
There is another queer circumstance connected with this case. While Dorsey told it all to Moore he kept it a profound secret from Boone. Boone, you know, was in at the first. Boone got up all this information. Boone was interested in these bids, and yet he never told Boone. He had known Boone, you see, for several weeks. He told Moore the first day, the first minute. He wished to relieve his stuffed bosom of that secret. Moore was the first empty thing he found, and he poured it into him. It is astonishing to me that he succeeded in keeping that secret from Boone, but he did. He even kept it from Rerdell.
Rerdell never heard of it—a gentleman who picks up every scrap, who listens at the key-hole of an opportunity for the fragment of a sound. He never heard it. John W. Dorsey did not even know anything about it. Nobody but Moore. Now, I ask you, gentlemen, is there any sense in that story? I ask you. I ask you, also, if the testimony of Stephen W. Dorsey with regard to that transaction is not absolutely consistent with itself? Did he not in every one of those transactions act like a reasonable, sensible, good man? Oh, but they say it is not natural for a man to help his brother; certainly it is not natural for a man to help his brother-in-law, and nobody but a hardened scoundrel would help a friend, and Dorsey is not that kind of a man. Occasionally in a case an accident will happen, and from an unexpected quarter a side-light will be thrown upon the character of a man, sometimes for good, and sometimes for evil. Sometimes a little circumstance will come out that will cover a man with infamy, something that nobody expected to prove, and that leaps out of the dark. Then, again, sometimes by a similar accident a man will be covered with glory. In this case there was a little fact that came to the surface about Stephen W. Dorsey that made me proud that I was defending him. Oh, he is not the man to help his brother; he is not the man to help his brother-in-law; he is not the man to help a friend; and yet, when Torrey was upon the stand, he was asked if he was working for Dorsey, and he said no, and was asked if Dorsey paid him at a certain time, or if he owed him, and he said no. He was asked why, and he replied, "Because only a little while before, when I was not working for him, and my boy was dead, he gave me a thousand dollars to put him beneath the sod." That is the kind of a man Stephen W. Dorsey is. I like such people. A man capable of doing that is capable of helping his brother, of helping his brother-in-law, and of helping his friend. A man capable of doing that is capable of any great and splendid action. Is there any other man connected with this trial that ever did a more generous, nay, a more loving and lovely thing? How such a man can excite the hatred of the prosecution is more than I can understand.
Now, we have got to the division, and the question arises, was there a division? Let us see. On page 5009 Mr. Bliss admits that Vaile, immediately upon Dorsey's coming out of the Senate, came here for the purpose of settling up this business; that he made up his mind to have no more to do with Dorsey. Then Mr. Bliss makes this important admission, and I do not want any attorney for the Government to deny it.
He admits that in May there was a final division, and that that division was to take effect as from the 1st day of April, and that after that each party took the routes allotted to him, and they became the uncontrolled property of that person, no other person having the right to interfere. There is your admission, just as broad as it can be made. Mr. Bliss, after having made that admission, which virtually gives up the Government's case, then threw a sheet-anchor to the windward and said, "But when they divided they made a bargain with each other that they would make the necessary papers." What for? To carry out the division. That is all. Now, the only corner-stone for this conspiracy, the only pebble left in the entire foundation is the agreement to make the necessary papers after the division. That is all that is left. The rest has been dissolved or dug up and carted away by this admission. Let us see what that agreement was. Mr. Bliss turned to the evidence of John W. Dorsey, on page 4105:
Q. At the time you sold out, was there any understanding about your making papers?—A. That was a part of the agreement. I was to sign all the necessary papers to carry on the business.
When he sold out he agreed to sign all the necessary papers. It is like this: Mr. Bliss says on such a day, for instance, they divided. Suppose, instead of being routes it was all land. They divided the land and then they agreed to make the deeds. That was the conspiracy; not in the land; not in the agreement about the land; not in the bargain, but in the execution of the papers in consequence of the bargain. That was the conspiracy. They agreed to make all the necessary papers. That was the agreement. Then the Court asked John W. Dorsey a question.
Q. You agreed to sign what?—A. All the necessary papers to carry on the business.
That is what he agreed to do. What else? What were those papers? First, they were to sign all the subcontracts that were necessary, all the Post-Office drafts necessary, and they were to sign letters like this:
The Post-Office Department, in regard to this route, will hereafter send all communications to the undersigned.
In other words, the object was to let the person who fell heir to a given route in the division control that route. That was all. The man who was the contractor agreed that he would sign all the necessary papers. For what purpose? To allow each man who got a route to be the owner of it and control it and draw the money. That is all. And yet it is considered rascality.
Let me call your attention to another piece of evidence on this subject. On page 5016, Mr. Bliss is talking about all these papers and these letters that were written and apparently signed by Peck, but really signed by Miner, saying, "I want you to send all communications in reference to such a route to post-office box No. so and so, John M. Peck," sometimes with an M. under it and sometimes without. He did that in consideration of the agreement at the time he got the routes that had been originally allotted to Peck. Mr. Bliss brought here a vast number of these papers, and then he continued, on page 5017:
All those, gentlemen, are orders, dated after the division, many of them coming away down into 1881, and all of them relating to routes with which Peck had no connection, because he severed his connection with all the routes prior to the 1st of April, or as of the 1st of April, 1879. John W. Dorsey tells you that he signed papers right along—Of course he did. He agreed to—and I have here a series of them. Many of them are orders not in blank. There are among the papers, orders signed in blank, but these are dated, and they are witnessed not always by the same person as indicating that they got together and signed a lot of orders at the time of the division. There is every indication that the dates are correct. The witnesses are different at different times.
The Court. These same orders would have been made if the division had been perfectly honest.
That is what I say. That is what we all say, gentlemen.
If the transaction then had been perfectly honest the papers would have been precisely as they are. From the papers being precisely as they are, do they tend to show that the transaction was dishonest, when it is admitted by everybody and decided by the Court, that if the transaction had been perfectly honest the papers would have been just as they are? Recollect my text. Every fact when you are proving a circumstantial case has to point to the guilt of the defendants, and their guilt has to be found from all the facts in the case beyond a reasonable doubt. If there is one fact inconsistent with their guilt, the case is gone.
There is another little admission to which I call your attention. Nothing delights me so much as to have the prosecution in a moment of forgetfulness, or we will say on purpose, admit a fact. Mr. Bliss said, on page 5018:
You will bear in mind that the division took place some eight months previous to that.
That was January 1, 1880,
However that may be, these papers are all papers which on their faces might be innocent and fair and proper. They are papers which, under ordinary circumstances, might be executed to enable others than the contractor to draw the pay and to be tiled with the department, though it appears, I think, by the evidence in this case that no draft could be filed except shortly prior to the quarter as to which it applied. As to these papers all that we have to say is this: they are papers on their face apparently innocent, papers calculated to go through in the ordinary practice as though there was nothing wrong about them. At the same time the evidence shows that they were papers executed by these several parties at the time of or in pursuance of the agreement of the division.
I do not want anything better. That settles the papers. They were made at the time they agreed to make them. It was the only way in which they could give the party who got the route absolute control of the route.
Now, gentlemen, apart from these papers, I believe they have three witnesses, at least they are called witnesses, in this case. The first witness that I will call your attention to, and who figures about as early as anybody, is A. W. Moore. I want to ask you a few questions about his testimony. I want you to understand exactly what he swears to and the circumstances. Let us see.