{
  "schema": "tga.work.v1",
  "identifier": "dresden:vol-10:first-star-route-trial",
  "slug": "first-star-route-trial",
  "title": "Closing Address — First Star Route Trial",
  "subtitle": "Washington, D.C., 1882.",
  "excerpt": "Ingersoll's closing jury address in the first Star Route postal-fraud trial — for three months the central news story in Washington, D.C., and the most famous legal argument of his career.",
  "year": 1882,
  "volume": 10,
  "category": "Legal",
  "author": {
    "name": "Robert G. Ingersoll",
    "wikidata": "Q360326",
    "viaf": "44331023"
  },
  "isPartOf": {
    "title": "The Works of Robert G. Ingersoll",
    "edition": "Dresden Edition",
    "publisher": "C. P. Farrell",
    "year": 1900
  },
  "license": "https://creativecommons.org/publicdomain/mark/1.0/",
  "url": "https://thegreatagnostic.com/works/first-star-route-trial/",
  "wordCount": 37281,
  "body": "• The most characteristic feature of the Star-route trial,\n    which has been the central point of interest in our city for\n    the past three months, was the marvelously powerful speech\n    of Colonel Robert G. Ingersoll before the jury and the judge\n    last week.\n    People who knew this gifted gentleman only superficially,\n    had supposed that he was merely superficial as a lawyer.\n    While acknowledging his remarkable ability as an orator and\n    his vast accomplishments as a speaker, they doubted the\n    depth of his power. They heard him, and the doubt ceased. It\n    can be said of Ingersoll, as was written of Castelar, that\n    his eloquent utterances are as the finely-fashioned\n    ornamental designs upon the Damascus blade—the blade cuts\n    as keenly and the embellishments beautify without retarding\n    its power.\n    The following is Colonel Ingersoll's speech. Its swift\n    incisiveness, keen and comprehensive logic and apt\n    deductions from proper premises are only equaled by the\n    grand manner of its delivery, and under the circumstances\n    incidental to the case and the routes to be traversed, by\n    its expedition of action and brevity.—Washington, D. C.,\n    The Capital, Sept. 16th, 1882.\n\nMAY it please the Court and gentlemen of the jury: Let us understand\neach other at the very threshold. For one I am as much opposed to\nofficial dishonesty as any man in this world. The taxes in this country\nare paid by labor and by industry, and they should be collected and\ndisbursed by integrity. The man that is untrue to his official oath,\nthe man that is untrue to the position the people have honored him with,\nought to be punished. I have not one word to say in defence of any man\nwho I believe has robbed the Treasury of the United States. I want it\nunderstood in the first place that we are not defending; that we are\nnot excusing; that we are not endeavoring to palliate in the slightest\ndegree dishonesty in any Government official. I will go still further:\nI will not defend any citizen who has committed what I believe to be a\nfraud upon the Treasury of this Government. Let us understand each other\nat the commencement.\n\nYou have been told that we are a demoralized people; that the tide of\ndishonesty is rising ready to sweep from one shore of our country to the\nother. You have been appealed to to find innocent men guilty in order\nthat that tide may be successfully resisted. You have been told—and I\nhave heard the story a thousand times—that this country was demoralized\nby what the gentlemen are pleased to call the war, and that owing to the\ndemoralization of the war it is necessary to make an example of somebody\nthat the country may take finally the road to honesty. We were in a\nwar lasting four years, but I take this occasion to deny that that war\ndemoralized the people of the United States. Whoever fights for the\nright, or whoever fights for what he believes to be right, does not\ndemoralize himself. He ennobles himself. The war through which we passed\ndid not demoralize the people. It was not a demoralization; it was\na reformation. It was a period of moral enthusiasm, during which the\npeople of the United States became a thousand times grander and nobler\nthan they had ever been before. The effect of that war has been good,\nand only good. We were not demoralized by it. When we broke the shackles\nfrom four millions of men, women and children it did not demoralize us.\nWhen we changed the hut of the slave into the castle of the freeman it\ndid not demoralize us. When we put the protecting arm of the law\nabout that hut and the flag of this nation above it, it was not very\ndemoralizing. When we stopped stealing babes the country did not\nsuddenly become corrupted. That war was the noblest affirmation of\nhumanity in the history of this world. We are a greater people, we are a\ngrander people, than we were before that war. That war repealed statutes\nthat had been made by robbery and theft. It made this country the home\nof man. We were not demoralized.\n\nThere is another thing you have been told in order that you might find\nsomebody guilty. You have been told that our country is distinguished\namong the nations of the world only for corruption. That is what you\nhave been told. I care not who said it first. It makes no difference to\nme that it was quoted from a Republican Senator. I deny it. This country\nis not distinguished for corruption. No true patriot believes it. This\ncountry is distinguished for something else. The credit of the United\nStates is perfect. Its bonds are the highest in the world. Its promise\nis absolute pure gold. Is that the result of being distinguished for\ncorruption? I have heard that nonsense, that intellectual rot all\nmy life, that the people used to be honest, but at present they are\nexceedingly bad. It is the capital stock of every prosecuting lawyer;\nbut in it there is not one word of truth. Is this country distinguished\nonly for its corruption throughout Europe? No. It is respected by every\nprince and by every king; it is loved by every peasant. Is it because we\nhave such a reputation for corruption that a million people from foreign\nlands sought homes under our flag last year? Is corruption all we are\ndistinguished for? Is it because we are a nation of rascals that the\nword America sheds light in every hut and in every tenement in Europe?\nIs it because we are distinguished for corruption that that one word,\nAmerica, is the dawn of a career to every poor man in the Old World? I\nalways supposed that we were distinguished for free schools, for free\nspeech, for just laws; not for corruption. A country covered with\nschoolhouses, where the children of the poor are put upon an exact\nequality with those of the rich, is not distinguished for corruption.\nAnd yet in the name of this universal corruption you are appealed to to\nbecome also corrupt. This nation is substantially a hundred years old,\nand to-day the assessed property of the United States is valued at\n$50,000,000,000. Is that the result of corruption, or is it the\nresult of labor, of integrity and of virtue? I deny that my country is\ndistinguished for corruption. I assert that it rises above the other\nnations distinguished for humanity as high as Chimborazo above the\nplains. Never will I put a stain upon the forehead of my country in\norder that I may win some case, and in order that I may consign some\nhonest man to the penitentiary. I stand here to deny that this is a\ncorrupt country. Let me say that the only tribute that I ever heard paid\nto corruption was indirectly paid by Mr. Merrick himself. He told you\nthat official corruption destroyed the French Empire, and upon the ruins\nof that empire arose the French Republic. He makes official corruption\nthe father of French liberty. If it works that way I hope they will\nhave it in every monarchy on the globe. Napoleon stole something besides\nmoney; he stole liberty, and the French people finally got to that\ncondition of mind where they preferred to be trampled on by Germany\nrather than to have their liberty devoured by Napoleon. From that\nsplendid sentiment sprang the French Republic. This country is the land\nnot of slavery, but of liberty, not of unpaid toil, but of successful\nindustry. There is not a poor man to-day in all Europe or a poor boy who\ndoes not think about America. I recollect one time in Ireland that I\nmet with a little fellow about ten years old with a couple of rags for\npantaloons and a string for a suspender. I said, \"My little man, what\nare you going to do when you grow up?\" \"Going to America.\" It is the\ndream of every peasant in Germany. He will go to America; not because\nit is the land of corruption, but because it is the land of plenty, the\nland of free schools, the land where humanity is respected.\n\nThere is another thing about this country. We have a king here, and that\nking is the law. That king is the legally expressed will of a majority,\nand that law is your sovereign and mine. You have no right to violate\none law to carry out another. We all stand equal before that law, and\nthe law must be upheld as an entirety, and in no other way. If in this\ncase you believe these defendants beyond a doubt to be guilty, it\nis your duty to find them so, and you must find them so in order to\npreserve your own respect. I do not agree with this prosecution in the\nidea that the perpetuity of the Republic depends upon this verdict.\nDecide as badly as you please, as horribly as you can, the Republic\nwill stand. The Republic will stand in spite of this verdict, and the\nRepublic will stand until people lose confidence in verdicts—until they\nlose confidence in legal redress. When the time comes that we have no\nconfidence in courts and no confidence in juries, then the great temple\nwill lean to its fall, and not until then. As long as we can get redress\nin the courts, as long as the laws shall be honestly administered,\nas long as honesty and intelligence sit upon the bench, as long as\nintelligence sits in the chairs of jurors, this country will stand, the\nlaw will be enforced and the law will be respected. But so far as my\nclients are concerned, everything they have, everything they love,\neverything for which they hope, home, friends, wife, children, and that\npriceless something called reputation, without which a man is simply\nliving clay, everything they have is at stake, and everything depends\nupon your verdict. I want you to understand that everything depends\nupon your decision, and yet my clients with their world at stake, home,\neverything, everything, ask only at your hands the mercy of an honest\nverdict according to the evidence and according to the law. That is all\nwe ask, and that we expect. By an honest verdict I mean a verdict in\naccordance with the testimony and in accordance with the law, a verdict\nthat is a true and honest transcript of each juror's mind, a verdict\nthat is the honest result of this evidence. Whoever takes into\nconsideration the desire, or the supposed desire, of the outside public\nis bribed. Whoever finds a verdict to please power, whoever violates\nhis conscience that he may be in accord, or in supposed accord, with\nan administration or with the Government, is bribed. Whoever finds a\nverdict that he may increase his own reputation is bribed. Whoever finds\na verdict for fear he will lose his reputation is bribed. Whoever bends\nto the public judgment, whoever bows before the public press, is bribed.\n\nFear, prejudice, malice, and the love of approbation bribe a thousand\nmen where gold bribes one. An honest verdict is the result not of fear,\nbut of courage; not of prejudice, but of candor; not of malice, but of\nkindness. Above all, it is the result of a love of justice. Allow me to\nsay right here that I believe every solitary man on this jury wishes to\ngive a verdict exactly in accordance with this testimony and exactly in\naccordance with the law. Every man on this jury wishes to preserve his\nown manhood. Every man on this jury wishes to give an honest verdict.\nThere are no words sufficiently base to describe a man who will\nknowingly give a dishonest verdict. I believe every man upon this jury\nto be absolutely honest in this case. The mind of every juror, like\nthe needle to the pole, should be governed simply by the evidence. That\nneedle is not disturbed by wind or wave, and the mind of the honest\njuror never should be disturbed by clamor, nor by prejudice, nor by\nsuspicion. Your minds should not be affected by the fume, by the froth,\nby the fiction, or by the fury of this prosecution. You should pay\nattention simply to the evidence, and to use the language of one of my\nclients, you should be governed by the frozen facts. That is all you\nhave any right to think of and all you have any right to examine.\n\nHaving now said thus much about the duties of jurors, let me say one\nword about the duties of lawyers. I believe it is the duty of a lawyer,\nno matter whether prosecuting or defending, to make the testimony as\nclear as he can. If there is anything contradictory it is his business\nif he possibly can to make it clear. If there is any question of law\nabout which there is a doubt, it is his right and it is his duty to\ngive to the court the result of his study and of his thoughts, for the\npurpose of enlightening the court upon that particular branch of law.\nNo matter if he may believe the court understands it, if there is the\nslightest fear that the court does not or has forgotten it, it is his\nduty to bring the attention of the court to that law. It is not his duty\nto abuse anybody. It is not my duty to abuse anybody. There is no logic\nin abuse; not the slightest; and when a lawyer, under the pretext of\nexplaining the evidence to the jury, calls a defendant a thief and a\nrobber, he steps beyond the line of duty and, in my judgment, beyond the\nline of his privilege. What light does that throw upon the case? In his\neffort to explain the law to the court what cloud does it remove from\nthe intellectual horizon of his honor for the attorney to call the\ndefendant a robber, a thief, or a pickpocket? I shall in this case give\nyou what I believe to be the facts. I shall call your attention to the\ntestimony. I shall endeavor to throw what light I am capable of throwing\nupon this entire question. I shall not deal in personalities. They are\nbeneath me. I shall not deal in epithets. Nobody worth convincing can be\nconvinced in that way. Now, let us see what the law is, and let us see\nwhat our facts are. In the beginning of this dusty branch I shall ask\nthe pardon of every juror in advance for going over these facts once\nagain. You see they strike every man in a peculiar way. No two minds are\nexactly alike. No pair of eyes distinguish exactly the same object\nor the same peculiarities of the objects. This is an indictment under\nsection 5440 of the Revised Statutes, and there must not only be a\nconspiracy to defraud, but there must be an overt act done in pursuance\nof that conspiracy for the purpose of effecting the object of it. Now,\nthen, how must these overt acts be stated in this indictment? Is the\novert act a part of the crime, and must it, be described with the same\nparticularity that you describe the offence? Which of the overt acts set\nout in this indictment is the overt act depended upon, together with\nthe act of conspiring, to make this offence? I hold, may it please your\nHonor, that every overt act set out in the indictment must be proved\nexactly as it is alleged, no matter whether the description was\nnecessary to be put in the indictment or not. No matter how foolish, how\nunnecessary the description, it must be substantiated, and it must be\nproven precisely as it is charged. No matter whether the particular\nthing described is of importance or not, no matter how infinitely\nunnecessary it was to speak of it, still, if it is a matter of\ndescription, it must be proven precisely as it is charged. Upon that\nsubject I wish to call the attention of the Court to some authorities,\nand it will take me but a few moments. I will call the attention of the\nCourt first to the case of the State against Noble, 15 Maine, 476. Here\na man was indicted for fraudulently and willfully taking from the river\nand converting to his own use certain logs. These logs were described as\nmarked \"W\" with a cross, and \"H\" with another cross, and with a girdle.\nNow, it seems that a part of this mark was not found, according to the\ntestimony upon the logs taken:\n\n\"The description of these logs in the indictment is the only way the\nlogs could be distinguished and could not be rejected as surplusage. It\nhas been settled that if a man be indicted for stealing a black horse,\nand the evidence be that he stole a white one, he cannot be convicted.\nThe description of a log by the mark is more essential than that of\na horse by its color. If it was not necessary to describe the log so\nparticularly by the mark, yet so having stated it, there can be no\nconviction without proof of it.\"\n\nNow, the court, in deciding this, says:\n\n\"It may be regarded as a general rule, both in criminal prosecutions\nand in civil actions, that an unnecessary averment may be rejected where\nenough remains to show that an offence has been committed, or that a\ncause of action exists. In Ricketts vs. Solway, 2 Barn., & Aid., 360,\nAbbott, C. J., says: 'There is one exception, however, to this rule,\nwhich is, where the allegation contains matter of description. Then, if\nthe proof given be different from the statement, the variance is fatal.'\nAs an illustration of this exception, Starkie puts the case of a man\ncharged with stealing a black horse. The allegation of color is\nunnecessary, yet as it is descriptive of that, which is the\nsubject-matter of the charge, it cannot be rejected as surplusage, and\nthe man convicted of stealing a white horse. The color is not essential\nto the offence of larceny, but it is made material to fix the identity\nof that, which the accused is charged with stealing.\"\n\n3 Stark., 1531. \"In the case before us the subject-matter is a pine\nlog marked in a particular manner described. The marks determine the\nidentity, and are, therefore, matter purely of description. It would not\nbe easy to adduce a stronger case of this character. It' might have been\nsufficient to have stated that the defendant took a log merely, in the\nwords of the statute. But under the charge of taking a pine log we are\nquite clear that the defendant could not be convicted of taking an oak\nor a birch log. The offence would be the same; but the charge to which\nthe party was called to answer, and which it was incumbent on him to\nmeet, is for taking a log of an entirely different description. The kind\nof timber and the artificial marks by which it was distinguished are\ndescriptive parts of the subject-matter of the charge which cannot be\ndisregarded, although they may have been unnecessarily introduced. The\nlog proved to have been taken was a different one from that charged in\nthe indictment; and the defendant could be legally called upon to answer\nonly for taking the log there described. In our judgment, therefore,\nthe jury were erroneously instructed that the marks might be rejected as\nsurplusage; and the exceptions are accordingly sustained.\"\n\nI also cite the case of the State against Clark, 3 Foster, New\nHampshire, 429:\n\n\"Indictment for fraudulently altering the assignment of a mortgage. The\nindictment set forth the mortgage, and also the assignment, as it was\nalleged to have been originally made from Miles Burnham to Noah Clark,\nthe respondent; and alleged that the assignment was signed, sealed,\ndelivered, witnessed by two witnesses, and duly and legally recorded at\nlength, in the registry of deeds of Rockingham county, on the 18th of\nSeptember, 1844. It then alleged that this assignment was fraudulently\naltered on the 28th of June, 1844, by inserting the letter 'S' in two\nplaces, between the words 'Noah' and 'Clark,' so that the assignment\noriginally made to Noah Clark, after the alteration appeared as if it\nwere made to Noah S. Clark.\n\n\"On trial the records of deeds were produced, and there was found a\nrecord of the assignment purporting to be made to Noah S. Clark, the\nrecord bearing date September 18, 1844, but there was no record of any\nassignment to Noah Clark. The respondent's counsel objected that this\nevidence did not support the allegations of the indictment. The forgery\nwas alleged to have been committed on the 28th of June, 1844, and the\ncourt admitted evidence that Miles Burnham, who executed the assignment,\nbeing applied to about the 30th of July, 1846, for a loan of money upon\na mortgage of the same property, declined to make the loan unless he was\nsatisfied there was no mortgage of conveyance of the land by Noah\nClark, and the person who drew the assignment searched the records with\nBurnham, and found no such deed on record. This evidence was objected\nto, but was understood to be introductory to other material and\npertinent evidence, and was therefore admitted; but no such other\nevidence, to which it was introductory, was offered.\n\n\"The jury found a verdict of guilty, which the defendant moved to set\naside.\"\n\nUpon that the court says:\n\n\"We are not able to look upon this statement that the deed was duly\nrecorded as well as witnessed and acknowledged according to the statute,\nin any other light than as part of the description of the deed and\nconveyance which the defendant was charged with altering. We are,\ntherefore, of opinion that the evidence upon this point did not sustain\nthe indictment.\"\n\nNow, if the statement that the mortgage was recorded was such a material\npart of the description that a failure to prove the record as charged\nwas fatal, so, I say, in these overt acts, if they charge that a thing\nwas done or a paper filed on a certain day and it turns out not to\nbe so, that is a fatal variance, and under that description in the\nindictment the charge cannot be substantiated. I refer to the case\nagainst Northumberland, 46 New Hampshire, 158, and also to the King\nagainst Wennard, 6 Carrington & Paine, 586.\n\nClark vs. Commonwealth, 16 B., Monroe, 213:\n\n\"The doctrine seems to have been well settled in England and this\ncountry, that in criminal cases, although words merely formal in\ntheir character may be treated as surplusage and rejected as such, a\ndescriptive averment in an indictment must be proved as laid, and\nno allegation, whether it be necessary or unnecessary, more or less\nparticular, which is descriptive of the identity of what is legally\nessential to the charge in the indictment, can be rejected as\nsurplusage.\"\n\nAnd in this case I cite Dorsett's case, 5th Roger's Record, 77:\n\n\"On an indictment for coining there was an alleged possession of a die\nmade of iron and steel, when, in fact, it was made of zinc and antimony.\nThe variance was deemed fatal.\"\n\nAnd yet it was not necessary to state of what the die was made. If the\nindictment had simply said he had in his possession this die, it would\nhave been enough, but the pleader went on and described it, saying it\nwas made of iron and steel. It turned out upon the trial that it was\nmade of zinc and antimony, and the variance was held to be fatal. So I\ncite the court to Wharton's American Crim. Law, 3rd edition, page 291,\nand to Roscoe on Criminal Evidence, 151. Now I cite the case of the\nUnited States against Foye, 1st Curtis's Circuit Court Reports, 368,\nand I do not think it will be easy to find a case going any further than\nthis. It goes to the end of the road:\n\n\"A letter containing money deposited in the mail for the purpose of\nascertaining whether its contents were stolen on a particular route and\nactually sent on a post-route, is a letter intended to be sent by post\nwithin the meaning of the post-office act.\"\n\nThis I understand was a decoy letter.\n\n\"The description of the termini between which the letter was intended to\nbe sent by post cannot be rejected as surplusage, but must be proved as\nlaid.\"\n\nUpon that the court says:\n\n\"But a far more difficult question arises under the other part of\nthe objection. The indictment alleges, not only that this letter was\nintended to be conveyed by post, but describes where it was to be\nconveyed; it fixes the termini as Georgetown and Ipswich. The allegation\nis, in substance, that the letter was intended to be conveyed by post\nfrom Georgetown to Ipswich. The question is, whether the words from\nGeorgetown to Ipswich can be treated as surplusage. It was necessary to\nallege that the letter was intended to be conveyed by post. The\nwords from Georgetown to Ipswich are descriptive of this intent. They\ndescribe, more particularly, that intent which it was necessary to\nallege. In United States vs. Howard, 3 Sumner, 15, Mr. Justice Story\nlays down the following rule, which we consider to be correct: 'No\nallegation, whether it be necessary or unnecessary, whether it be more\nor less particular, which is descriptive of the identity of that which\nis legally essential to the charge in the indictment, can ever be\nrejected as surplusage.' Apply that rule to this case. It is legally\nessential to the charge to allege some intent to have the letter\nconveyed somewhere by post. Suppose the indictment had alleged an intent\nto have it conveyed between two places where no post-office existed, and\nover a post-route where no postroad was established by law. Inasmuch\nas the court must take notice of the laws establishing post-offices\nand post-roads, the indictment would then have been bad; because\nthis necessary allegation would, on its face, have been false. Words,\ntherefore, which describe the termini and the route, and thus show what\nin particular was intended, do identify the intent, and show it to be\nsuch an intent as was capable, in point of law, of existing.\n\n\"And we are obliged to conclude that they cannot be treated as\nsurplusage, and must be proved, substantially, as laid. We are of\nopinion, therefore, that there was a variance between the indictment and\nthe proof; and that, for this cause, a new trial should be granted.\"\n\nSo I refer to the State vs. Langley, 34th New Hampshire, 530.\n\nThe Court. I think, Colonel Ingersoll, there is no doubt about this\ndoctrine.\n\nMr. Ingersoll. I do not want any doubt about it.\n\nThe Court. There cannot be.\n\nMr. Ingersoll. Well, I will just read this because I do not want any\ndoubt about it in anybody's mind.\n\nThe Court. I have no doubt about it.\n\nMr. Ingersoll. Very well:\n\n\"If a recovery is to be had, it must be secundum allegata et probata;\nand the rule is one of entire inflexibility in respect to all such\ndescriptive averments of material matters. The cases upon this point,\nmany of which are collected in the case of State vs. Copp, 15 N. H.,\n2F5, are quite uniform.\"\n\nNow, if the Court please, I not only read this with regard to the\novert acts, but with regard to the description of the crime itself—the\nconspiracy. I will then refer to State against Copp, 15th New Hampshire.\nI will also refer to the case of Rex against Whelpley, 4th Carrington &\nPayne, 132; to 3d Starkie on Evidence, sections 1542 to 1544, inclusive;\nalso to the United States against Denee and others, 3d Wood, page 48,\nand a case under this exact section, 5440:\n\n\"It seems clear that the statute upon which this indictment is based\nis not intended to relieve the pleader from any supposed necessity\nof setting out the means agreed upon to carry out the conspiracy by\nrequiring him to aver some overt act done in pursuance of the conspiracy\nand make such act a necessary ingredient of the offence.\" The court\nthen refers to the Commonwealth against Shed, 7th Cushing, 514, and\ncontinues—in that case it was different:\n\n\"That difficulty does not exist here, for the overt act is part of the\noffence, and must be proved as laid in the indictment.\"\n\nSo I find that the court passed upon this very question, and I wish to\ncall the attention of the Court again to one line on page 961 of the\nrecord in this case:\n\n\"But in all cases the principle is simply this: That where the act which\nwas done in pursuance of the conspiracy is described in the indictment\nit must be described with accuracy and completeness, and if there is a\nvariance in the proof it is fatal to the prosecution.\"\n\nWhen I come to that part as to the necessity of describing offences\nthen I will cite the Court to some other authorities in connection with\nthese.\n\nNow, then, we have got it established, gentlemen of the jury. There is\nno longer any doubt about that law, and the Court will so instruct you,\nthat wherever they set out in the indictment that we did a certain thing\nin pursuance of the conspiracy, they must prove that thing precisely as\ncharged, no matter whether the description was necessary or unnecessary.\nThey must prove precisely as they state. They wrote the indictment, and\nthey wrote it knowing they must prove it, and if they wrote it badly it\nis not the business of this jury to help them out of that dilemma.\n\nNow, as I say, we come to the dust and ashes of this case, the overt\nacts, and I take up these routes precisely in the order in which they\nwere proved by the prosecution. First. I take up route 34149. Now, let\nus see where we are. The first charge is that we filed false and altered\npetitions by Peck, Miner, Vaile, and Rerdell. When did we file them?\nThe indictment charges that we filed them on the 10th day of July, 1879.\nWhen did the evidence show they were filed? On the 3d day of\nApril, 1878. That is a fatal variance, and that is the end eternal,\neverlasting, of that overt act. Without taking into consideration the\nfact that every petition was true and genuine, the petitions were not\nsent by the persons as charged. It was presented by Senator Saunders,\nand that is the absolute end of that overt act, and you have no right to\ntake it into consideration any more than if nothing had been said upon\nthe subject.\n\nSecond. That on the 10th of July a false oath was placed upon the\nrecords. Now, that is an overt act, and you know as well as I do that\nthe description of that must be perfect. If they say it is of one date\nand the evidence shows that it is of another, it is of no use. It is\ngone. They say, then, that a false oath was filed. When? On the 10th\nday of July. Suppose the oath to have been false. When was it filed?\nThe evidence says April 3, 1879. That is the end of the false oath,\nno matter whether that oath is good or bad. No matter whether they\ncommitted perjury or wrote it with perfect and absolute honesty, it is\nutterly and entirely worthless as an overt act.\n\nThird. An order for expedition July 10, 1879, alleged to have been made\nby Brady. As a matter of fact the order was signed by French. There is a\nmisdescription. No matter if Brady told him to sign it, it was not as a\nmatter of fact signed by Brady—it was signed by French. They described\nit as an order signed by Brady. It is an order signed by French, and\nthe misdescription of variance is absolutely fatal, and you have no more\nright to consider it than you have the decree of some empire long since\nvanished from the earth. Now, this is all the evidence on this route.\nThat is all of it with the exception of who received the money, and I\nwill come to that after awhile. That is route 34149.\n\nAccording to their statement in the indictment, holding them by that,\nthere is not the slightest testimony. We can consider that route out.\nWe have only eighteen now to look after. That is the end of that. It\nhas not a solitary prop; upon the roof of that route not a shingle is\nleft—not one.\n\nLet us take the next route, 38135. What do we do in that according\nto the indictment? And now, gentlemen, recollect, they wrote this\nindictment. You would think we did, but we didn't. They wrote it,\nand they are bound by it. But if I had been employed on behalf of the\ndefendants to write it I should have written it just in that way.\n\nFirst. Sending and filing a false oath. When did we send it; when did we\nfile it? On the 26th day of June. That is what the indictment says. What\ndoes the evidence say? April 18, 1879. Now, that is the end of that.\nIt was a true oath, but that does not make any difference. That oath is\ngone. That has been sworn out of the case, and dated out of the case.\nWhat is the next?\n\nSecond. Filing false petitions. When did we file them? The 26th day of\nJune, 1879. The last petition was filed the 8th of May, 1879, and it\ndoes not make one particle of difference whether these dates were before\nor after the conspiracy as set forth, but as a matter of fact, every one\nof the petitions was true. That charge is gone, A fatal variance. What\nis the next fraudulent order? That of June 20. There was never\nthe slightest evidence introduced to show that it was a fraudulent\norder—not the slightest. And what is the next charge? Fraudulently\nfiling a subcontract. And right here I stop to ask the Court, of course\nnot expecting an answer now, but in the charge to the jury, is it\npossible to defraud the Government of the United States by filing a\nsubcontract?\n\nNow, gentlemen, I want you to think of it. How would you go to work\nto defraud the Government by filing a subcontract? If the subcontract\nprovides for a greater amount of pay than the Government is giving the\noriginal contractor, the Government will not pay it; it will only pay up\nto the amount that it agreed to pay the contractor. It is like A giving\nan order on B to pay C what A owes B. He need not pay him any more. That\nis all. And if the ingenuity of malice can think of a way by which the\nGovernment could be defrauded by the filing of a subcontract I will\nabandon the case. It is an impossible, absurd charge, something that\nnever happened and never will happen. Well, that is the end of this\nroute with one exception. This is the Agate route. This is the route\nwhere thirty dollars it is claimed has been taken from the Government.\nIt is that route. You remember the productiveness of that post-office.\nThey established an office and nobody found it out except the fellow\nthat was postmaster, and in his lonely grandeur I think he remained\nabout eighteen months and never sold a stamp. That is all that is left\nin that route, that order putting Agate upon the route and taking it\noff, and then giving one month's extra pay. That is all—another child\nwashed—38135—that is all there is to that route; no evidence except\nepithets, no testimony except abuse. If anything is left under that it\nis simply \"robber, thief, pickpocket.\" That is all.\n\nNow we come to another route, and I again beg pardon for calling\nattention to these little things. The Government has forced us to do\nit. It is like a lawsuit among neighbors. Each is so anxious to beat the\nother they begin to charge for things that they never dreamed of at the\ntime they were delivered. They will charge for neighborly acts, time\nlost in attending the funeral of members of each other's family before\nthey get through the lawsuit. So the Government started out in this\ncase, and not finding a great point had to put in little ones, and we\nhave to answer the kind of points they make.\n\n41119. Overt acts. First. Filing a false oath. When did we file it? The\n25th day of June, the indictment says. Who filed it? Peck and Miner.\nWell, when was it filed or when was it transmitted? According to their\nstory, June 23, 1879. This oath is marked 8 C, and an effort was made\nto prove by a man by the name of Blois that it was a forgery. That\nwas objected to, first, that it was not charged to be forged in the\nindictment; and second, that a notary public had already sworn that\nit was genuine, and that he could not be impeached in that way, and\nthereupon that oath was withdrawn, and you will never hear of it any\nmore. I do not know whether it is true or not. That is found on record,\npage 1469. Now, recollect that oath was withdrawn. That is the end of\nit.\n\nSecond. Filing false petitions. When were they filed? July 8, 1879, and\nit turned out that that charge was true, with two exceptions: First,\nthat they were not filed at that time; and, second, that all the\npetitions were true. That is the only harm about that charge.\n\nThird. A fraudulent order made by Brady, July 8th. Now let us see what\nthe fraud consists in. The fraud is claimed to be in expediting to\nthirty-three hours when the petition only called for forty-eight. You\nremember the charge expediting to thirty-three hours, when the petition\nonly called for forty-eight. Now, let us see. It is claimed that to\ngrant more than the petitions ask is a crime; certainly it must be\nadmitted that to grant less is equally a crime. The only evidence now\nof fraud in this is that he was asked to expedite the forty-eight\nhours, but he expedited to thirty-three. That is to say, he violated the\npetitions, and if that is good doctrine, then the petitions must settle\nwhether expedition is to be granted or not. If that is good doctrine\nthere is no appeal from the petition. I do not believe that doctrine,\ngentlemen. I believe it is the business of the Post-Office Department\nto grant all the facilities to the people of the United States that the\npeople need. He must get his information from the people, and from the\nrepresentatives of the people; and while he is not bound to give\nall they ask, if he does give what the people want, and what their\nrepresentatives indorse, you cannot twist or torture it into a crime.\nThat is what I insist. Now, the only charge is here, and while they ask\nfor forty-eight hours he gave thirty-three. That is the only crime. Did\nhe pay too much for it? There is no evidence of it. Before I get through\nI will show you that there is no evidence that he ever paid a dollar too\nmuch for any service whatever.\n\nNow, then, if the doctrine contended for by the Government is correct,\nthen a petition is the standard of duty and the warrant of action, and\nif they gain upon this route they lose upon every other route. Let us\nexamine. There are three charges. First, false petitions. They were all\ntrue. Second, false oaths. They offered to prove it, and then withdrew\nit. Third, that while the petitions called for forty-eight hours he\ngranted thirty-three, and before you can find that that was fraudulent\nyou must understand the precise connections that this mail made with all\nothers, and it was incumbent upon them to prove, not an inference, but a\nfact, that there was not only reason, but reason in money—sound reason\nfor expediting it instead of forty-eight to thirty-three. That is the\nend of that route. There is not a jury on earth, let it be summoned by\nprejudice and presided over by ignorance, that would find a verdict of\nguilty upon the testimony in that route. It is impossible. Another child\ngone.\n\n44155. Let us see what we get there, and I have not got to my client\nyet. First, filing false petitions, by Peck, Miner, Vaile and Rerdell.\nWhen? On the 27th of June, 1879. Were they false? Let us see. Mr. Bliss,\nspeaking of these petitions contained in a jacket held in his hand,\ndated the 29th of June, 1879, record, page 687, said: \"We do not attack\nthe genuineness of these petitions.\" That is the end of that. So much\nfor that.\n\nSecond. A fraudulent order increasing service, and yet all the petitions\nare admitted to be genuine, and the order was in accordance with the\npetitions on the route. Before the order was fraudulent because it was\nnot in accordance with the petitions, and in this route it is a fraud\nbecause it is in accordance with the petitions. Now, just take it.\nHere is the route. Every petition is genuine, the oath is true, not\na petition attacked, the order in accordance therewith, and the only\nevidence that the order is a fraud is that it was in accordance with\ngenuine petitions recommended by the people and by the representatives\nof the people. That is all.\n\nLet me tell you another thing. Expedition had been granted on the route\nlong before, and this was simply an increase of trips, and no charge was\nmade that the order granting the expedition ever was a fraud.\n\nThird. Another fraudulent order by Brady, of April 17, 1880, and it\nturns out that this order was in fact made by French. That was the only\nevidence that it was fraudulent, but the mere fact that French made it\ntakes it out of this case, and you have no more right to consider\nit than you would an order made in the Treasury Department. The only\nobjection to this order now is what? That it was in violation of the\npetitions. How? That it took off one or two of the trips. That was the\nfraud of the order of April 17, 1880. The fraud consisted in taking off\ntwo or three trips that had been put on.\n\nNow, let us see. The next fraudulent order was July 16, 1880. What was\nthat for? For putting the service back precisely as it was. Now, I want\nyou, gentlemen, to understand that, every one of you. Here is a charge\nin the indictment of a fraudulent order that took off, say, two trips\nfrom the service. That is a fraud they say. Then the next order put\nthose two trips back, and that they say is another fraud. It would have\nbeen very hard to have made an order in that case to have satisfied the\nGovernment; it was an order to decrease it; it was an order to put it\nback where it was; that is, it was a fraud, consequently it was a fraud\nto do anything about it. That is all there is in that case.\n\nLet us boil it down. False petitions. That is the charge. The evidence\nis that the petitions are all true. A false oath is the charge. The\nevidence is that the oath is true. A fraudulent order decreasing the\nservice, another fraudulent order increasing the service, that is,\nleaving it just where he found it. In other words, according to this\nindictment, Brady committed a fraud in reducing the trips, and another\nfraud by putting the trips back. I think it was only one trip that he\nreduced. Now, that is all there is in that case. People may talk about\nit one day or one year. That is all there is, and that is nothing.\n\n38145. Fraudulently filing what? A subcontract with J. L. Sanderson. I\nsay you cannot fraudulently file a subcontract against the Government.\nIt is an impossibility. Besides all that, Mr. Sanderson filed his own\nsubcontract. There is no evidence that anybody else did file it or\npresent it for filing. It was not our contract; it was Sanderson's\nsubcontract. How comes that in his indictment? Let me tell you. In the\nfirst indictment they had Sanderson; and when they copied that first\nindictment, with certain variations to make this, they forgot this\npart and put in the fraudulent filing of Sanderson's contract. It never\nshould have been in this case. It has not the slightest relationship.\nThe real charge of fraud in this route is that a retrospective order was\nmade, and this order bore date February 26, 1881, and was retrospective\nin this: that it was to take effect from the 15th of January, 1881; but\nunderstand me, this was Sanderson's route. He received that money, and\nit has nothing to do with us. Still I will answer it. That retrospective\norder gave pay from the 15th of January, 1881. Now, it seems that before\nthe order of February 26, an order had been made by telegraph, dated\n15th of January, 1881, to Sanderson, and this telegraphic order was for\ndaily service on eighty-nine miles. The jacket order of February 26,\n1881, was for daily service on the whole route from January 15, 1881.\nIf that order had been carried out he would have received pay for\ndaily service on the whole route, instead of for daily service on the\neighty-nine miles to which he was entitled. It turned out that the order\nof February 26, 1881, was signed by Postmaster-General Maynard. The only\npossible charge is that Sanderson received pay for a daily service on\nthe whole route from January 15, 1881, to February 26, 1881, instead of\neighty-nine miles. But we find in the table of payments introduced by\nthe Government, that for that quarter a deduction was made of three\nthousand four hundred and twenty-two dollars and nineteen cents, showing\nthat the department could only have paid for the daily service on the\neighty-nine miles, and that is exactly what the daily service would come\nto on the balance of the route. That ends that route. We had nothing to\ndo with it anyway. It was Sanderson. He filed his own contract, he\ngot his own orders, he collected his own money and settled with the\ndepartment. We have nothing to do with it and we will bid it farewell.\n\nThe next is No. 38156. First, filing false oath June 12, 1879. The oath\nwas filed May 6, 1879.. That is the end of that. I do not care whether\nit is true or false, that is, so far as this verdict is concerned. I\ncare whether it is true or false, so far as my clients are concerned,\nbut so far as this verdict is concerned, it makes no difference. There\nis a fatal variance. Second, it is alleged that Brady made a fraudulent\norder June 12, 1879. The order of June 12, 1879, was made by French.\nThere is another fatal variance. You have no right to take it into\nconsideration. French is not one of the parties here. Third, sending a\nsubcontract of Dorsey and filing it. As I told you before, you cannot by\nany possibility thus defraud the Government; not even if you set up\nnights to think about it. There is no proof that the subcontract was a\nfraud. Let us have some sense. It is an absolute impossibility to commit\nthis offence, and therefore we will talk no more about it. Fourth, the\nfraudulent order of Brady increasing the distance four miles. This was\ndone on the 20th of December, 1880. That is the only real charge in this\nroute. I turn to the record and find from the evidence, on page 943,\nthat the distance was from five to six miles, according to the\nGovernment's own proof. Beside all that, the order of which they\ncomplain is not in the record. It was never proved by the Government and\nnever offered by the Government, so far as I can find. That is the end\nof that route. The only charge in it is that they increased the distance\nfour miles, and the evidence of the Government is that it was from five\nto six.\n\nThe next is 46132. Overt acts: Filing a false oath by everybody June 24,\n1879. The evidence shows it was filed April 11, 1879. That is the end\nof that. No matter whether it is true or false, it is gone. Second, the\nfraudulent filing of a subcontract. Well, I have shown you that that\ncannot be fraudulent. The subcontract of Vaile shows that Vaile was\nto receive one hundred per cent. It was executed April 1, 1878, in\nconsequence, as my friend General Henkle explained, of a conspiracy made\non the 23d of May following. The service commenced July 1, 1878. There\ncould have been no fraud in it. It was filed as a matter of fact May 24,\n1879, and not June 4. Even if it had been a fraud, which is an\nimpossibility, the description is wrong and the variance is fatal. There\nis no evidence that any order was fraudulent. Every one in this case is\nsupported by petitions, and every petition is admitted to be honest, or\nproved to be honest and genuine. There is no proof at all, and not the\nslightest attempt on the part of the Government to prove that there was\nany fraud on this route. So much for that.\n\nNo. 46247. Let us see just where we are. First, filing false and forged\npetitions. When? July 26, 1879. By whom? By Peck, Dorsey, and Rerdell.\nNow, after they had solemnly written that in the indictment, and after\nit had been solemnly found to be a fact by the grand jury, the attorneys\nfor the Government come into court and admit during the trial that all\nthe petitions upon this route were genuine; every one. It was admitted,\nI say, that every petition was genuine. Read from page 1008 of the\nrecord and there you will find what the Court said about these very\npetitions:\n\n\"I shall take the responsibility of dispensing with the reading of\npetitions when there is no point made with regard to them.\"\n\nThe petitions were so good, they were so honest, they were so genuine,\nthey were so sensible, that the curiosity of the Court was aroused\nto find what on earth they were being read for on the part of the\nprosecution. You remember it. Every one genuine, honor bright, from the\nfirst line to the last. In reply to the Court at that time Mr. Bliss\nsaid:\n\n\"There is no point made as to the increase of trips. These—\" Meaning\nthe petitions—\"relate to the increase of trips. There is no point made\nthere.\"\n\nIt is thus admitted that every petition was genuine. Second, a\nfraudulent order increasing one trip. This order was never proved by the\nGovernment. It was not even offered by the Government, so that the\nroute stands in this way: First, a charge of false petitions; second,\nan admission that the petitions were all genuine; third, a charge that\na fraudulent order was made; fourth, no proof that the order was made.\nThat is all there is to that. And that is the end of it.\n\nNo. 38134. First, sending false and fraudulent petitions, and filing\nthe same. When? July 8,1879. On page 1031 of the record I find the\nfollowing:\n\n\"Mr. Bliss. The petitions under your Honor's ruling I am not going to\noffer.\"\n\nWhy? Because they were all genuine. The court had mildly suggested\nthe impropriety of the Government proving its case by reading honest\npetitions. Consequently, when it came to this, the next route, he said:\n\n\"The petitions under your Honor's ruling I am not going to offer.\"\n\nWhy? Because they are all honest, and under a charge in the indictment\nthat they are all fraudulent he did not see the propriety of reading\nthem. That is what he meant. This remark was made because the Government\nadmitted these petitions to be honest. When were these petitions filed?\nThe indictment says July 8. The evidence says May 6. So that if every\npetition had been a forgery you could not take them into consideration\non this route. It is charged that Miner & Co. signed and placed in\nBrady's office a false oath on July 8. On record, page 1032, it appears\nthat it was filed May 8, 1879, and not as described in the indictment.\nThe pleader has the privilege of describing it right or describing it\nwrong. If he describes it right it can go in evidence. If he describes\nit wrong it cannot go in evidence, and they have no right to complain if\nyou throw out evidence that they make it impossible for you to receive.\nIt has been charged with regard to this affidavit that Dorsey was not at\nthat time contractor, and therefore had no right to make the affidavit.\nThe affidavit was made April 21, 1879, and the regulation that such\naffidavits must be made by the contractors was made July 1, 1879. That\nis a sufficient answer. The next charge is a fraudulent order made by\nBrady, July 8. The petitions were all admitted to be genuine. There was\nno evidence that the order was not asked for by the petitions. There\nwas no evidence that the order in and of itself was fraudulent; not the\nslightest. There is nothing like taking these things up as we go and\nseeing what the Government has established. I know that you want to know\nexactly what has been done in this case and you want to find a verdict\nin accordance with the evidence.\n\nRoute 38140. Overt acts: First, making, sending, and filing false\npetitions. When were they made and sent? The 23d day of May, 1879. There\nwere some petitions filed May 10, 1879, and there was a letter of the\nsame date. They are misdescribed. They are all genuine but they are out\nof the case as far as this is concerned. I will tell you after awhile\nwhere they are applicable in this case. A letter of Belford, of April\n29, 1879, and a letter of Senator Chaffee, of April 24, 1879, we have,\nwhile the indictment charges that they were all filed May 23, 1879.\nThere is an absolute and a fatal variance. All these petitions, however,\nare admitted to be genuine and honest. See record, pages 1001-1003. The\ncharge in the indictment is that they were forged, false, and altered.\nThe admission in open court, by the representatives of the Government,\nis, that they were genuine and honest. There is the difference between\nan indictment and testimony. There is the difference between public\nrumor and fact. There is the difference between the press and the\nevidence. The next is that a false oath was filed by John W. Dorsey on\nthe 23d of May, 1879. When was that oath filed? April 30, 1879. A fatal\nvariance. Yet the man who wrote the indictment had the affidavit before\nhim. Why did he not put in the true date? I will tell you after awhile.\nDid he know it was not true when he put it in the indictment? He did,\nundoubtedly.\n\nThird. Fraudulent order of May 23; reducing the time from nineteen and\nthree-quarter hours to twelve hours. As a matter of fact, no order was\nmade on the 23d of May upon this route. It is charged in the indictment\nthat it was made on the 23d of May. The evidence shows that it was on\nthe 9th of May. There is a fatal variance, and that order cannot be\nconsidered by this jury as to this branch of the case. Here is an order\nof which they complain. They charge that it was made on the 23d day of\nMay, the same day the conspiracy was entered into. As a matter of fact,\nit was made on the 9th of May. On this description it goes out, and it\ngoes out on a still higher principle: That an order could not have been\nmade on the 9th of May in pursuance of a conspiracy made on the 23d of\nthat month. But I am speaking now simply as to the description of this\noffence.\n\nFourth. A subcontract was fraudulently filed. I have shown you it is\nimpossible to fraudulently file a contract; utterly impossible. All the\nagreements imaginable between the contractor and subcontractor cannot\neven tend to defraud the Government of a solitary dollar. I make a\nbid and the contract is awarded to me at so much. The mail has to be\ncarried. The Government pays, say five thousand dollars a year, it\nmakes no difference to the Government who carries the mail under that\ncontract, so long as it is carried. It is utterly impossible to defraud\nthe Government by contracting with A, B, C, or D. That is the end of\nthat route. The order itself is misdescribed, and that is all there is\nin it. When the order is gone everything is gone.\n\nNo. 38113. Overt acts: Fraudulently filing a subcontract. We do not need\nto talk about that any more. Second, Brady fraudulently made an order\nfor increase of trips. The evidence is that an increase was asked for by\na great many officers, a great many representatives, and by hundreds\nof citizens, and that the increase was insisted upon not only by the\nofficers who were upon the ground, but by General Sherman himself. I do\nnot know how it is with you, but with me General Sherman's opinion\nwould have great weight. He is a man capable of controlling hundreds of\nthousands of men in the field—a man with the genius, with the\ntalent, with the courage, and with the intrepidity to win the greatest\nvictories, and to carry on the greatest possible military operations.\nI would have nearly as much confidence in his opinion as I would in the\nguess of this prosecution. In my judgment, I would think as much of his\nopinion given freely as I would of the opinion of a lawyer who was paid\nfor giving it. General Sherman has been spoken of slightingly in\nthis case; but he will be remembered a long time after this case is\nforgotten, after all engaged in it are forgotten, and even after this\nindictment shall have passed from the memory of man.\n\nNo. 38152. Overt acts: Fraudulent orders of August 3, 1880,\ndiscontinuing the service and allowing a month's extra pay for the\nservice discontinued. That is all. May it please your Honor, in this\nroute the only point is, had the Postmaster General the right to\ndiscontinue the service? And if he did discontinue it, was he under any\nobligation to allow a month's extra pay? It is the only question. I call\nyour Honor's attention to the case of the United States against Reeside,\n8 Wallace, 38; Fullenwider against the United States, 9 Court of Claims,\n403; and Garfielde against the United States, 3 Otto, 242. In those\ncases it is decided not only that the Postmaster-General has the right\nto allow this month's extra pay, but he must do it. That is in full\nsettlement of all the damages that the contractor may have sustained.\nThe Court can see the very foundation of that law. For illustration, I\nbid upon a route of one thousand miles. I am supposed to get ready to\ncarry the mail. Five hundred miles are taken from that route. The law\nsteps in and says that for that damage I shall have one month's extra\npay on the portion of the route discontinued. It makes no difference\nwhether I have made any preparation or not. The law gives me that and no\nmore. If I should go into the Supreme Court and say that my preparations\nhad cost me fifty thousand dollars, and the month's extra pay was\nonly five thousand dollars, I have no redress for the other forty-five\nthousand dollars. That is all that is charged in this instance. And\nif the Second Assistant Postmaster-General or any one else had done\ndifferently he would have acted contrary to law. He is indicted for\ndoing in this case exactly what is in accordance with the law. Let us\nget to the next route. That is all there is in this.\n\nNo. 38015. Overt acts: Sending a false oath. When? May 21. The evidence\nshows that on May 14 it was sent, on May 15 it was filed. A fatal\nvariance, no matter whether it is true or false. That oath is gone. That\nis the end of it.\n\nWhat else? They did not show that the oath was false. First, it is\nmisdescribed in the indictment as to the date it is filed; second, the\nevidence shows that it is honest and genuine, which is also fatal. That\nis the end of this route, as far as the indictment is concerned. Second,\nthat Dorsey made and Rerdell filed false petitions. There is no proof\nthat any of the petitions were false, no proof that any were forged, and\nno proof that John W. Dorsey or M. C. Rerdell had anything to do with\nthat route one way or the other. All the petitions on record, page\n1160, are admitted to be genuine except one. One petition asking for a\nten-hour schedule was attacked and only one. But this petition was filed\nMay 14, 1879, and that is out so far as the indictment is concerned.\n\nThe Court. What is the date of the indictment?\n\nMr. Ingersoll. The 23d day of May. The indictment says that this was\nfiled July 10, 1879; the evidence says May 14, 1879. A fatal variance.\nIt is not the same one they were talking about. They did not find the\npetition they described. It is their misfortune. Now, here is only one\npetition attacked. Who attacked it? Mr. Shaw. See page 1159. They were\ngoing to show that that was a forgery, and they were going to show it by\nShaw. That was the only one they attacked. What does Shaw say?\n\n\"I signed a petition for increase of service and expedition upon\nthat route, but I did not read the petition. If I had, I should have\ndiscovered a ten-hour schedule.\"\n\nHe would not have discovered it if it had not been there, would he? That\nshows it was there.\n\n\"I would not have recommended a ten-hour schedule on a seventy-mile\nroute.\"\n\nHe was the man that was going to prove that ten hours was not there. But\nit shows that he was not able to do it, because he first swore that he\nnever read it, and second, that he would not have signed it if he had.\nGood by, Mr. Shaw. That is all there is as to that matter. The Court\nwill understand I am going now upon what is in the indictment, and not\nwhat has been thrown in from the outside.\n\nThe Court. I understand that.\n\nMr. Ingersoll. I am going according to the strict letter of this\nindictment. I am holding these gentlemen to the law. That is what the\nlaw is for. You cannot come into this court and throw seven or eight\ncords of paper at a man and say, \"You are guilty.\" They have managed\nthis case after that fashion, but I propose to bring them back to the\nlaw.\n\nRoute 35051. First. Signing, sending and filing false petitions. When?\nAugust 2, 1879. There is no evidence of any petitions being filed on\nthat day—none whatever. The only thing near it is a letter of Frederick\nBillings, on record, page 1217. This letter was dated July 31, 1879.\nUnder the charge of signing, sending and filing false petitions, the\nonly evidence is that a man by the name of Billings wrote a letter, and\nthere is not the slightest testimony to show that a solitary word in\nthat letter was false—not one. Nothing to connect it with Mr. Billings;\nno evidence that he ever spoke to him on the subject; no evidence that\nBillings knew who was carrying the mail; no evidence that he ever knew\nor did a thing except to write that letter, and he was interested, I\nbelieve, in the Northern Pacific railroad. Now, that is everything there\nis there; that is all there is in that case. Nobody has tried to show\nthat the letter of Billings was not true.\n\nWhat else? A fraudulent order of August, 1879. Who made it? The\nindictment says Brady made it. The evidence says it was signed by\nFrench, and it was in accordance with Billings' letter. Is there any\nfraud now in that route? Let us be honest. False petitions: Not one\nfiled. False oath: Not one attacked. Simply a letter that we did not\nwrite, and that there is no evidence that we ever asked to have written.\nThat is the end of that. But they cannot even get the letter in,\ngentlemen. They did not describe it right.\n\nThe next route is 40104. Overfacts: First. Fraudulently filing a\nsubcontract. That you cannot do. When did we file it? July. 23, 1879,\nthe indictment says. What does the evidence say? May 8, 1879. First,\nwe could not commit the offence; secondly, you could not prove it under\nthis description.\n\nSecond. Filing a false oath. When did we file it? July 23. That is what\nthe indictment says. What does the evidence say? November 26, 1878.\nA fatal variance. See record, page 1305. That is the end of that. The\nindictment is for something. You have got to follow it, and it certainly\nis not as hard work to write an offence against a man as it is to prove\nit. If they cannot write an offence, you certainly ought not to find the\nman guilty. Besides all that, that oath was not even impeached, it was\nnot ever attacked. There was not a word said upon the subject except in\nthe indictment. It was charged to be false, and not one word of evidence\nwas offered to this jury to show that it was false.\n\nThird. An alleged fraudulent order of increase by Brady, July 23, 1879.\nBrady never signed any such order. It was signed by French. That is the\nend of it, no matter whether it was good or bad, honest or dishonest.\nThat is the end of it, and yet there is not a particle of evidence to\nshow that it was dishonest, but you must hold them to their own case as\nthey have written it, and not as they wish it was now.\n\nFourth. A fraudulent order of April 10, 1880, allowing one month's\nextra pay on the service reduced. This order was not even proved by the\nGovernment. As a matter of fact, it was not offered by the Government;\nand if it had been offered, and if it had been proved, it would have\nonly established the fact that Mr. Brady acted in accordance with law.\n\nNow, we come to some more. 44160. First, filing false petitions. When\ndid we file them? July 16, 1880. The proof is that they were filed long\nbefore that time The proof is that Peck, Dorsey and Rerdell had nothing\nto do with this route after the 1st of April, 1879, and the petition\nclaimed to be signed by Utah people and claimed to be fraudulent in the\npetition marked 19 Q. It was filed on the 7th day of May, 1879.\n\nThat is a fatal variance. This indictment charges it was filed July 16,\n1880. The petition cannot be considered.\n\nThere is another petition marked 20 Q, claimed to have been written by\nMiner, upon which the name of Hall is said to have been forged. It has\nno file mark whatever, and consequently cannot be the petition referred\nto in the indictment. That was filed. That, however, has been explained\nby General Henkle fully. This petition was identified by McBean, and was\nsigned by him, and he recognized the signatures of many of the citizens\nof Canyon City. Mr. Merrick admitted that the petition, 19 Q, was\nnever acted upon. As a matter of fact, orders had been made before the\npetition was received, which shows conclusively that they were not acted\nupon. The petition marked 20 Q, to which Hall's name was, as is claimed,\nforged, was never filed, and was consequently never acted upon. This\ncharge stands as follows: Two petitions, one being filed May 17, 1879—a\nfatal variance—and the other not filed—another fatal variance. These\npetitions are both described as having been filed July 16, 1880. The\nvariance is absolutely fatal, and these petitions cannot be considered.\nBesides, the order was made before the petition 19 Q was filed.\n\nSecond. The fraudulent order by Brady for increase of trips, July 16,\n1880. The only objection to this route is that the expedition was\nmade before service was put on. This was in the power of the\nPostmaster-General. It has been done many times, and is still being done\nby the Postoffice Department, and the fact that it was done in this case\ndoes not even tend to show that any fraud was committed or intended.\nThat is all there is in that case. The petitions were never acted\nupon. One was never filed, and the other is not described, or rather is\nmisdescribed.\n\nRoute 48150. Overt Acts: A fraudulent order by Brady reducing service to\nthree trips a week, and allowing a month's pay on service dispensed with\nJuly 26, 1880. This point, gentlemen, I have already argued.\n\nWhenever the Post-Office Department dispenses with any service it is\nbound to give one month's extra pay any time after the contract has been\nmade and any time after the bid has been accepted. It is bound to give\nthe month's extra pay on the service dispensed with, and this question,\nas you heard me say a little while ago, has been decided by the Supreme\nCourt in Garfield's case. This route was operated by Sanderson. He was\nthe subcontractor, and, according to the subcontract filed and presented\nhere in evidence, he received every cent of the pay. We could have had\nno interest in perpetrating any fraud upon that route. Why? Because\nanother man, J. L. Sanderson, received every dollar, and we not one\ncent.\n\nAnother fraudulent order of increase, August 24, from Powderhorn to\nBarnum, seven miles. No fraud was shown, but the order in fact, was\nmade for the benefit of Sanderson and not for the benefit of any of the\ndefendants in this case. In other words, it was made for the benefit\nof the people, it was made because they wished to reach another\npost-office.\n\nAnother charge is that the subcontract made by Sanderson was filed\nSeptember 18, 1878. Recollect the charge is about filing this\nsubcontract. The fact is it was filed in 1878 to take effect from July\n1, 1878. See record, page 1406. On this very route the subcontract took\neffect the 1st of July, 1878, with Sanderson, and from that moment until\nnow he has received every dollar. This route, as a matter of fact, is\nout of the scheme. Sanderson carried the mail from the 1st of July,\n1878, until the end of that contract, the last day of June, 1882. So\nmuch for that route. It is gone. Nobody can get it back, either, in this\nscheme.\n\nRoute 40113. Overt Acts: Filing of a false oath. When? June 3, 1879.\nWhen was it filed? May 7, 1879. That oath is gone. Was it false? They\ndid not attack it. They never impeached it. Good.\n\nSecond. False petitions filed. When? June 3, 1879. All the petitions\nwere filed prior to May 10, 1879. They are gone. One was filed May 23,\nbut none was filed as alleged on June 3. They are gone. A magnificently\nwritten instrument. A fatal variance as to every petition. And yet not a\nsolitary petition was attacked. Every petition was genuine and honest.\n\nThird. A fraudulent order by Brady for increase and expedition. This\norder was asked for by the petitions. No fraud was established. See\nrecord, page 1503 on this route; also page 2159.\n\nFourth. They also charge that Brady made a fraudulent order on the 4th\nof January, 1881. But the Government never proved that order, never\noffered any order of that date. That is the end of that order.\n\nFifth. A fraudulent order of February 11, 1881. This was not offered by\nthe Government, and no evidence was offered as to the existence of the\norder, neither the jacket, nor the order, nor the petitions, so far as\nI can find. That is the end of that. Every overt act so far, except\nsome of the orders, wrong. The overt acts charged were filing fraudulent\npetitions. When? May 23, 1879. These are the petitions said to have been\ngotten up by Wilcox. Mr. Wilcox was a Government witness and he swore\nthat every petition was honest, that every name was genuine, and that in\norder to get the names he did not circulate a falsehood, he circulated\nonly the truth. To use his own language, \"I did only straightforward,\nhonest work.\" That is all there is on that.\n\n44140 is the number of this route, and this evidence is on record, page\n1568, and in regard to getting up these petitions you will recollect the\nlanguage used by the Court. His Honor said in effect clearly, \"Every man\ncarrying the mail has the right to take care of his business. He has the\nright to get up petitions. He has the right to call the attention of the\npeople to what he supposes to be their needs in that regard. He has\nthe right to do it; and the fact that he does it is not the slightest\nevidence that he has conspired with any human being.\" Deny me the\nright to attend to my own affairs? If I have taken the route from\nthe Government, and contract to carry the mail, tell me that I cannot\nsuggest to my fellow-citizens that they ought to have a daily mail\ninstead of a weekly? Tell me that I have not the right to talk it on the\ncorners, in every postoffice for which I start, and that if I do I am\nliable to be pursued and convicted of an infamous offence? Every man has\nthe right to attend to his own affairs, and he has the right to get all\nthe people he can to help him. He has no right to go around lying about\nit, but he has the right to call their attention to the facts the same\nas you would have the right to get a road by your house; just exactly\nthe same as you would have the right to get a school-house built in\nyour district, no matter if you were to have the contract for making the\nbrick. You have a right to say what you please in favor of education,\nno matter if you are an architect and expect to be employed to build the\nschoolhouse, and any other doctrine is infinitely absurd.\n\nThere is another charge: That a false oath was filed on the 24th of May.\nThe affidavit was made by Mr. Peck, and I believe it has been admitted\nthat Mr. Peck never did anything wrong. Then there is alleged to be a\nfraudulent order for increase, signed June 26, and they never introduced\nthe slightest evidence tending to show that there was fraud in the\norder. It was made in accordance with the petitions. It was made in\naccordance with what we believed to be the policy of the Post-Office\nDepartment. And allow me to say to your Honor that I think that the\ngeneral policy of the Post-Office Department, as disclosed in the\ndocuments that have been presented in the reports made to Congress that\nhave become a part of this case, I think even from that evidence I have\nthe right to draw an inference as to what the policy of the department\nwas.\n\nThe Court. I have no doubt in the world as to the views of the\nPost-Office Department in regard to that subject. The Court refused to\nreceive evidence on that subject in defence, for the simple reason that\nthe Court was of opinion that no Second Assistant Postmaster-General\nhad the authority to establish any policy for this Government or for any\nbranch of this Government. The policy of the Government is to be found\nin its laws, and the Court was unwilling to allow a Second Assistant\nPostmaster-General to set up his policy in his defence against a charge\nin this court. He had no right to have a policy.\n\nMr. Ingersoll. We never set up the policy of the Second Assistant. We\nnever asked to be allowed to prove the policy of the Second Assistant.\nWe never imagined it, nor dreamed of it, nor heard of it until this\nmoment. What we wanted to show was the policy, not of the Second\nAssistant, but of the Postmaster-General. But I am not speaking now upon\nthat branch.\n\nThe Court. The Postmaster-General by law is the head of the department\nof course. But several assistants were given him by law, and he had the\nauthority to apportion out the business of the department amongst those\nseveral assistants. The particular business of the department pertaining\nto the increase of service and expedition of routes belonged under this\napportionment to the Second Assistant Postmaster-General. His acts,\ntherefore, are to be looked to.\n\nMr. Ingersoll. I do not claim, if the Court please, that his policy had\nanything to do with it. I simply claim that from the orders that have\nbeen introduced, not of the Second Assistant, from the books that have\nbeen introduced, showing the views of the Postmaster-General, not of\nthe Second Assistant. I also admit that if the Postmaster-General had\nordered by direct order the Second Assistant Postmaster-General to\nexpedite every one of these routes, even then there could have been such\na thing as a conspiracy to expedite them too greatly, and to receive\nmoney from every man for whom they were expedited. I understand that.\nBut in the absence of any proof that it is so, all I have ever insisted\nwas that the general policy of the head of the department might be\nfollowed by any subordinate officer without laying himself open to the\ncharge that he had been purchased. That is all.\n\nNow, gentlemen, all these things had been asked. They had been earnestly\nsolicited by hundreds of Congressmen, by Senators, by Judges, by\nGovernors, by Cabinet officers and by hundreds and hundreds of citizens.\n\nNow, let me recapitulate all the overt acts—and I have gone over\nthem all now excepting one, and I will come to that presently. In the\nindictment there are twelve charges as to filing false petitions.\nThere are ten charges as to false oaths. There are seven charges as to\nfraudulently filing subcontracts; and the evidence is that the ten oaths\nare substantially true; that it is impossible to fraudulently file\na subcontract; and as to the petitions, that every one is absolutely\ngenuine and honest with the exception of three. They prove that the\nwords \"schedule, thirteen hours,\" were inserted; that is, they tried to\nprove that by Mr. Blois, who is an expert on handwriting, as has been\ndemonstrated to you. One with thirteen hours inserted in it, and the\nvery next paragraph in that same petition begs for faster time. I have\nnot the slightest idea that that ever was inserted by anybody. I believe\nit was in there when it was signed. And why? There would have teen,\nthere could have been, there can be, no earthly reason for inserting\nthose words. You cannot imagine a reason for it.\n\nNow, that is thirteen hours. Then there is another one they say had some\nnames of persons living in Utah, and we say that that is not described\nproperly; not only that, but that it was never acted upon, and in my\njudgment that whole thing is a mistake and not a crime, because there\nwere plenty of petitions without that. There was no need of it. All the\nother petitions have either been proved, or have been admitted to be\nabsolutely genuine.\n\nNow, I have gone over every overt act except payments, and when it was\nsaid here in court, or when the objection was made to these being proved\nas overt acts, the Court will remember that again and again and again,\nthe prosecution denied that they were offered as overt acts.\n\nThe Court. I never understood them as being offered as overt acts.\n\nMr. Ingersoll. At that time the Court made just the remark that your\nHonor has made now. He said: \"But what are the payments?\" Now, I will\ntake up the payments, and we will see whether there are any overt acts\nin the payments, gentlemen.\n\nNow, let me call your attention to that magnificent rule that has been\nlaid down by the Court. When you describe an offence you are held by\nthe description. When it is said that I made a false claim against\nthe Government in a conspiracy case, for instance, that I conspired to\ndefraud the Government, that I presented a false claim, it may be that\nthe laxity or lenity of pleading might go the extent of saying that\nthe pleader need not state the amount of that false claim, but if the\npleader does state the amount of that false claim he is bound by that\nstatement. Now, that is my doctrine.\n\nThe Court. What I understood in regard to the evidence of the payments\nis this: The charge was a conspiracy to defraud and the averment was\nthat the fraud had been completed, and this evidence of payments was to\nshow that the fraud had been carried out.\n\nMr. Ingersoll. That is all. Now, let us see if this can be tortured into\nan overt act. I now come to the presentation of false claims charged\nto have been presented and collected by these defendants. It is a short\nbusiness. On the route from Kearney to Kent the charge is that Peck\nand Vaile presented false claims on the third quarter of 1879 for five\nhundred and fifty dollars and seventy-two cents. The entire pay for that\nquarter, three trips and expedition, was seven hundred and ninety-five\ndollars and seventy-eight cents. And there is no charge that the\nincrease of trips was fraudulent. Only the expedition was attacked. The\nthree trips, according to the old schedule price, came to seven hundred\nand thirty-five dollars and eighty-one cents, all of which was honestly\ncarried, honestly earned. Now, deducting from the pay seven hundred and\nninety-five dollars and seventy-eight cents, the amount of the three\ntrips on the old schedule honestly performed, seven hundred and\nthirty-five dollars and eighteen cents, if the expedition was\nfraudulent, we have a fraudulent claim of sixty dollars and sixteen\ncents. And yet the Government charges that we made a claim of five\nhundred and fifty dollars and seventy-two cents. Not one cent is allowed\nfor carrying the two additional trips without expedition.\n\nThere is another trouble about this. It is charged that Peck and Vaile\npresented this claim for their benefit. The record, page 386, shows that\nPeck did not present this claim; that it was presented by H. M. Vaile;\nthat H. M. Vaile received the warrant for the full amount; that he\nheld a subcontract at that time for every dollar. This is another fatal\nvariance, and the evidence of Vaile is that every dollar belonged to\nhim; that not a dollar of that money was ever paid to any other one of\nthe defendants; that he paid all the expenses; that he paid the debts,\nand that there never went a solitary cent to any Government official. So\nmuch for that payment.\n\nThe next charge is that on route 41119, from Toquerville to Adairville,\nPeck presented a false claim for the third quarter of 1879 for two\nthousand four hundred and sixty dollars and fourteen cents. The pay for\nthat quarter was three thousand six hundred and twenty-eight dollars\nand fourteen cents for seven trips and expedition. The pay for the three\ntrips on the old schedule was eight hundred and seventy-six dollars,\na difference of two thousand seven hundred and fifty-two dollars and\nfourteen cents. And yet the Government charges that the false claim\npresented was two thousand four hundred and sixty dollars and fourteen\ncents. If they give the figures they must give them correctly. If I am\ncharged with presenting a claim against the Government for two thousand\nfour hundred and sixty dollars, that is not substantiated by showing\nthat I presented a claim for two thousand seven hundred dollars. If you\ngive the figures you must stand by the figures, and you are bound by\nthem. You cannot charge one thing and prove something else. This is a\nfatal variance.\n\nIn addition to this fact, we find the deductions for failures in that\nvery quarter amounted to five hundred and forty dollars and forty-two\ncents, and this deducted from the other amount leaves two thousand, two\nhundred and eleven dollars and seventy-two cents. So that in both\ncases the variance is absolutely fatal. I am showing you these things,\ngentlemen, so that you may see that there is in this case no evidence to\nfit the charges in this indictment.\n\n44140, Eugene City to Bridge Creek. It is charged that Peck and Dorsey\npresented a false account for the third quarter of 1879 for four\nthousand seven hundred and eighty-three dollars and ninety-nine cents.\nThe pay for three trips with expedition was four thousand, six hundred\nand eighty-nine dollars and twenty-two cents; the pay for one trip on\nthe old schedule was six hundred and seventeen dollars, a difference\nof four thousand and seventy-two dollars and twenty-two cents. The\nGovernment says the difference was four thousand seven hundred and\neighty-three dollars and ninety-nine cents, an absolutely fatal\nvariance.\n\nNow, as a matter of fact, there were deductions in that quarter of one\nthousand nine hundred and thirty-two dollars and eighty-three cents,\nand this is deducted from the entire pay, leaving only as a claim three\nthousand seven hundred and sixty-six dollars and thirty-nine cents.\nAnd yet the Government charges that we presented a false claim for four\nthousand seven hundred and eighty-three dollars and forty-nine cents. It\nwill not do. It is a fatal variance. But when we take into consideration\nthat there is no claim that the increase of trips was fraudulent,\nonly the expedition, and that by the old schedule one trip came to six\nhundred and seventeen dollars, that three trips came to one thousand\neight hundred and fifty-one dollars, and that added to deductions\nwould make three thousand seven hundred and seventy-three dollars and\neighty-three cents, to be deducted from four thousand six hundred and\neighty-nine dollars and twenty-two cents, it would leave as a fraudulent\nclaim, even if their claim was true, nine hundred and fifteen dollars\nand thirty-nine cents.\n\nNow, the next is 44155, The Dalles to Baker City. The false claim was\neight thousand eight hundred and ninety-six dollars, by Peck. The pay\nper quarter was sixteen thousand six hundred and sixty-six dollars and\nnine cents. The pay for three trips and expedition was seven thousand\nseven hundred and seventy dollars—a difference of eight thousand\neight hundred and ninety-six dollars and nine cents. But there were\ndeductions, ninety-nine dollars and thirty-four cents, leaving eight\nthousand seven hundred and ninety-six dollars and seventy-five cents.\nBut by making this claim the Government concedes that the expedition was\nlegal, and another trouble is that the payment on this route was made\nto Vaile, not to Peck or Miner. It was made to Vaile, who was the\nsubcontractor for the full amount, and this is another fatal variance.\n\nNow, route 46132, Julian to Colton. The charge is that Peck and Vaile\npresented a fraudulent claim for the third quarter of 1879, for one\nthousand six hundred and fifty seven dollars and seventy-one cents.\nThe pay for three trips and expedition is one thousand nine hundred and\nfifty-four dollars and seventy-one cents. For three trips on the old\nschedule it was eight hundred and ninety-one dollars, a difference of\none thousand and sixty-three dollars and seventy-three cents. A fatal\nvariance. Besides it was not Peck and Vaile. Vaile was the subcontractor\nat full rates on this route. He presented the claim. He received\nthe entire pay. Another variance. Route 44160, Canyon City to Camp\nMcDermitt. The charge is that Peck and Vaile presented a false account\nfor the fourth quarter of 1879, for eleven thousand eight hundred and\nnineteen dollars and sixty-six cents. It is charged in the indictment\nthat this was paid in pursuance of the order set out in the indictment,\nand we find on page sixty-four that the order was dated July 16, 1880.\nThat was the order. No such payment was made in pursuance of that order\nfor the reason that an order was made nearly a year afterwards, and\nthe order of July 16, 1880, as set out in the indictment, was not\nretrospective, a fatal mistake in their indictment. As a matter of fact,\nthe pay for the fourth quarter of 1879 was five thousand three hundred\nand seventy-five dollars. There were deductions to the amount of three\nhundred and fifty-two dollars and seventy-two cents and the balance was\nfive thousand and twenty-two dollars and twenty-eight cents, instead of\neleven thousand eight hundred and nineteen dollars and sixty-six cents.\nAnd this was paid to Vaile, who was a subcontractor at full rates, and\nthe variance in the case is absurd and fatal.\n\nRoute 46247, Redding to Alturas. The charge is that Peck and Dorsey\nfiled a fraudulent account for the third quarter of 1879 for seven\nthousand four hundred and eighty-five dollars and six cents. This was in\npursuance of the order set out in the indictment, and the only order set\nout in the indictment is dated February 11, 1881. That is another fatal\nvariance.\n\nThe next route is 35051, Bismarck to Miles City. The charge is that\nMiner and Vaile presented a false account for the fourth quarter of\n1879, for fourteen thousand one hundred. The pay for the quarter for six\ntrips was seventeen thousand five hundred dollars. For three trips\nunder the old order the pay was eight thousand seven hundred and fifty\ndollars, leaving eight thousand seven hundred and fifty dollars as the\noutside sum that could have been fraudulent, and yet the Government\ncharges fourteen thousand one hundred dollars, an absolutely fatal\nvariance. Besides that, there were deductions in that very quarter of\nfour thousand five hundred and three dollars. This amount deducted from\neight thousand seven hundred and fifty dollars leaves four thousand two\nhundred and fifty-six dollars and eleven cents as the greatest amount\nthat could by any possibility have been fraudulent.\n\nThree routes are lumped together next in the indictment, 38134, 38135,\n38140, 38134, Pueblo to Rosita; 38135, Pueblo to Greenhorn; and 38,140,\nTrinidad to Madison.\n\nThe charge here is on page eighty-one of the indictment that Miner\npresented a fraudulent account for the fourth quarter of 1879 on routes\namounting to two thousand seven hundred and seventy-six dollars and\nforty-seven cents.\n\nThe greatest possible difference that could be made on route 38135 is\nseven hundred and sixty-seven dollars and twenty cents. The greatest\ndifference that could be made on route 38134 is one thousand nine\nhundred and forty dollars.\n\nThe greatest difference that could be made on route 38140 is six hundred\nand eighty-nine dollars and fifty-one cents. These three differences\nadded together do not make what is charged in the indictment, three\nthousand seven hundred and seventy-six dollars and forty-seven cents,\nbut as a matter of fact they amount to three thousand three hundred and\nninety-six dollars and seventy-one cents. This cannot be the fraudulent\nclaim described in the indictment.\n\nBut I find that on the first route there was a reduction of twelve\ndollars and sixty cents, on the second route of one hundred and\nfifty-four dollars and thirty-eight cents, and on the third of\nthirty-eight dollars and two cents, and these deductions added together\nmake two hundred and five dollars and ninety cents, and deducted from\nthe three thousand three hundred and ninety-six dollars and seventy-one\ncents leaves three thousand one hundred and ninety dollars and\neighty-one cents. And yet the Government charges that the fraudulent\nclaim was two thousand seven hundred and seventy-six dollars and\nforty-seven cents. It is impossible that the amount of the claim said\nto be fraudulent by the Government can be correct; but, as a matter of\nfact, according to the evidence, there was no fraud upon any claim in\nthat route.\n\nThe next is route 38150, Saguache to Lake City. The charge is that Miner\npresented a false account for two thousand two hundred and two dollars\nand seventy-seven cents, and that he did this in pursuance of the order\nset out in the indictment, and the only order set out is dated August\n24, 1880. That is an absolutely fatal variance. As a matter of fact,\nSanderson was a subcontractor on this route from July 1, 1878, at\nfull rates, and he carried the mail from July 1, 1878. The route was\nexpedited on his oath and for his benefit. No point was made during\nthe trial that the oath was not true. And the pay was calculated upon\nSanderson's oath, and the money paid to him. The only claim is that\nthere was an error in the order of four thousand five hundred and\nsixty-eight dollars per year, and it is admitted that the mistake was\nafterwards corrected and the money refunded. You remember it, gentlemen.\nMr. Turner, in making up the account showing how much the expedition\nwould come to—and you understand the way in which they make up that\nexpedition—made a mistake and added to the expedition and the then\nschedule the amount of the then schedule, four thousand and odd dollars.\nHe made the mistake and it was honestly made. No man would dishonestly\ndo it because it was so easy of detection, and that was his only fault,\ngentlemen. The only crime he ever committed in this case was to make\nthat mistake. That mistake was afterwards discovered, and the money was\npaid back by Mr. Sanderson; and, yet, that man has been indicted, has\nbeen taken from his home charged with a crime. He has been pursued as\nthough he were a wild beast. He made one mistake. They could not prove\nthe slightest thing against him. There was no evidence touching him.\nThere was only one way for them, and that was to dismiss him with an\ninsult. You remember the case. Not one thing against that man—not one\nsingle thing. He stands as clear of any charge in this indictment as any\none upon this jury. He is an honest man. It is admitted now there was no\nconspiracy on this route either. It is Sanderson's route, not ours. Not\nonly that, but the Government says that it was not one of the routes\nwith which Vaile had anything to do, or in which Vaile had any possible\ninterest. The failure here is fatal to the indictment, and I shall\nendeavor to show that it is fatal to the entire case.\n\nThe next route is 35105, Vermillion to Sioux Falls. It is charged that\nVaile and Dorsey presented a false account for the third quarter of\n1879, for eight hundred and eighty-one dollars and fourteen cents.\nThe pay for six trips and expedition was one thousand and eighty-five\ndollars and fifty-eight cents. The pay for two trips on the old schedule\nwas two hundred and four dollars and forty-four cents, showing a balance\nfor once, as stated in the indictment—it being the only time—of eight\nhundred and eighty-one dollars and fourteen cents.\n\nParties are entitled to pay for the extra trips, and the number of\nmen and horses has nothing to do with the value of an extra trip.\nYou understand that. If I agree to carry the mail once a week for five\nthousand dollars a quarter, and you wanted me to carry it twice a week,\nthen I get ten thousand dollars a quarter, no matter if I do it with the\nsame horses and the same men. That is not the Government's business.\nYou all understand that, do you not? Every time you increase a trip you\nincrease the pay to the exact extent of that trip, no matter whether it\ntakes more horses or not. If I agree to carry the mail once a month for\nfive thousand dollars a year, and you want me to carry it once a week\nI am entitled to twenty thousand dollars, no matter if I do it with\nall the same men and same horses. It is nobody's business. But, if the\nGovernment wants the mail carried faster, then I am entitled to pay\naccording to the men and animals required at a more rapid rate. You all\nunderstand that. But as a matter of fact, upon this route, Vaile was\nthe subcontractor at full rates, was so recognized by the Government and\nreceived every dollar himself, and, consequently, the charge that it\nwas paid to John W. Dorsey is not true, and is a fatal variance. The\nGovernment proved it was paid to Vaile.\n\nNext we have two routes, 38145, Ojo Caliente to Parrot City, and\n38156, Silverton to Parrot City. These routes are put together in the\nindictment. It is charged that a false account was presented of six\nthousand and four dollars and seventeen cents, and that this was done in\npursuance of an order set out in the indictment. The order set out is on\npage forty-seven. It is in relation to route 38145. The order was made\nnot in relation to the other route. No order as to the other route was\nmade. This was made February 26, 1881, consequently the claim presented\nfor the third quarter of 1879 could not by any possibility have been in\npursuance of that order. That order was made in 1881. The payment for\nthe third quarter of 1879 could not by any possibility have been made in\npursuance of that order. The evidence shows that it was paid before, and\nconsequently there is a fatal variance.\n\nRoutes 40104, Mineral Park to Pioche, and 40113, Wilcox to Clifton—two\nroutes put together. The charge is a fraudulent presentation for the\nthird quarter of 1879, of seven thousand and sixty-four dollars and\nseventy-two cents. The pay on the first route was ten thousand five\nhundred and three dollars and sixty-two cents, on the second route\nthree thousand five hundred and twenty-eight dollars. No proof has been\noffered that the expedition was fraudulent. Not a witness was called on\nroute 40113. Not a solitary petition was objected to, the truth of no\noath was called in question, the honesty of no order was attacked, and\nhow can you say that the claim was fraudulent? No order attacked, no\noath questioned, no petition impeached. The only evidence upon these two\nroutes was something read in regard to productiveness and the size of\nthe mail, and that is all.\n\nRoute 38113, Rawlins to White River. The charge is that John W. Dorsey\nand Rerdell presented a false account for the third quarter of 1879 for\ntwo thousand nine hundred and seventy-five dollars. The order set out\nin the indictment was made March 8, 1881, consequently the variance is\nabsolutely fatal, and there is no allegation in the indictment that the\nexpedition was fraudulent.\n\nNow I have gone through every route with the payments. As to the general\nallegation of the amount of money fraudulently claimed and received, the\nallegation in the indictment is that J. W. Dorsey received, by virtue of\nthese fraudulent orders, made in pursuance of the conspiracy, brought\nto perfection by these overt acts, for the year ending the 30th day\nof June, 1880, one hundred and twenty-four thousand five hundred and\nninety-one dollars. Good. The evidence shows that there was paid on\nthe seven Dorsey routes in all sixty-two thousand eight hundred and\nthirty-one dollars and forty-six cents. That is fatal as to that.\n\nBut we will go further. One of these routes was turned over to Vaile by\nDorsey, route 35015, and the amount paid to Vaile was two thousand eight\nhundred and thirty-seven dollars and sixteen cents. So that the amount\npaid on the Dorsey routes, instead of being one hundred and twenty-four\nthousand five hundred and ninety-one dollars, was in truth and in fact\nfifty-eight thousand nine hundred and ninety-four dollars and thirty\ncents.\n\nNow, the charge is that this was all received by John W. Dorsey, whereas\nthe evidence shows that John W. Dorsey received three warrants, two for\neighty-seven dollars each, both of which were recouped, and one warrant\nfor three hundred and ninety-two dollars, and that is every cent he\never received, according to the evidence in this case. There is what\nyou might call a discrepancy. The indictment says he got one hundred and\ntwenty-four thousand five hundred and ninety-one dollars. The evidence\nshows that he got three hundred and ninety-two dollars and not another\ncopper. I shall insist that that is a variance. If it is not a variance,\nI will take my oath it is a difference.\n\nThe second claim is that John R. Miner received upon the routes awarded\nto him, and claimed to be his in the indictment, ninety-three thousand\nand sixty-seven dollars for the fiscal year ending June 30, 1880. The\nevidence is that as a matter of fact on all these routes the money was\npaid to assignees and subcontractors, and that John R. Miner as a fact,\nreceived not one cent from the Government.\n\nThe third charge is that Peck received for the same fiscal year one\nhundred and eight-seven thousand four hundred and thirty-eight\ndollars. The evidence shows that he received nothing. There is another\ndifference. Thus it will be seen that every link in the chain in this\nindictment is either a mistake or a falsehood. Every other one is a\nmistake and then every other one is a falsehood, and this indictment was\nmade by adding mistakes to falsehoods, and what the indictment weaves\nthe evidence reveals.\n\nNow, why were these dates put in this indictment, gentlemen? We have now\ngone over every overt act charged in this indictment. The result is that\nnot one of the charges set forth has really been sustained. Hereafter I\nwill notice some things that have been proved outside of the indictment.\nNearly every petition and letter is admitted to have been honest\nand genuine. Those that have been attacked were misdescribed in the\nindictment and the evidence has shown that they were substantially true.\nThere is a fatal variance between the allegation and the proof so far\nas these charges in the indictment are concerned, and they are left\nabsolutely without a prop. The dates attached to the overt acts are\nfalse. There is only one of the routes in which the petitions are\nproperly described, and that is route 44140, where the petitions are\nalleged to have been and were filed on the 23d of May, and every one was\nproved to have been genuine and honest. The dates in the indictment were\nfalse. Now, why? Let me tell you, gentlemen. They had to deceive the\ngrand jury. It would not do to tell the grand jury these men conspired\non the 23d of May, and in pursuance to that conspiracy filed some\naffidavits on the third day preceding. They had first to deceive the\ngrand jury and put in false dates for the filing of petitions, for the\nfiling of subcontracts and for the drawing of money. What else did they\nwant these false dates for? To deceive the Circuit Court, or rather\nthe Supreme Court—to deceive his Honor, because if the date of these\npetitions, the date of these oaths, had been set forth in the indictment\nit would have been bad. The Court would have instantly said, you cannot\nprove a conspiracy on the 23d of May by showing acts in April previous.\nSo these false dates were put in, in the first place, to fool the grand\njury, and in the next place to keep this Court in the dark. It was\nnecessary to have a good charge on paper, and why? Did they expect to\nwin this case on that indictment? No; but they could keep it in court\nlong enough to allow them to attack and malign the character of these\ndefendants; they could keep it in court long enough to vent their\nvenom and spleen upon good and honest men, and justify in part the\ncommencement of this prosecution.\n\nThis forenoon I tried to strip the green leaves off the tree of this\nindictment. Now I propose to attack the principal limbs and trunk. What\nis the scheme of this indictment? I insist that the law is precisely the\nsame as to the scheme of the conspiracy in its description that it is\nas to the description of an overt act. Now, what is the scheme of this\nindictment? That is to say, the scheme of this conspiracy? We want to\nknow what we are doing. It is the great bulwark of human liberty that\nthe charge against a man must be in writing, and must be truthfully\ndescribed.\n\nFirst. For the defendants, with the exception of the officers Brady\nand Turner, to write, and procure the writing of, fraudulent letters,\ncommunications, and applications. Now, let us be honest. Is there the\nslightest evidence that a fraudulent letter was ever written? Is there\nthe slightest evidence that a fraudulent communication was ever sent to\nthe department? Not the slightest evidence.\n\nSecond. To attach to said petitions and applications forged names. Is\nthere any evidence of that except in one case, and the evidence in that\ncase is that the order was made before the petition was received and\nthat the petition was never acted upon. More than that, is there any\nevidence as to who forged any names to any petitions? Not the slightest.\nWhich of these defendants are you going to find guilty upon that\npetition when there is not the slightest evidence as to who wrote it?\nWhat next? To have these petitions signed by fictitious names or with\nthe names of persons not residing upon the routes. Is there any evidence\nof that kind? Is there any evidence that the signatures of real persons\nwere attached, and the real persons did not live upon the routes? I\nleave it to you, gentlemen.\n\nFourth. To make and procure false oaths, declarations, and statements.\nThose I shall examine.\n\nFifth. For William H. Turner falsely to indorse on the back of these\njackets false brief statements of the contents of genuine petitions. You\nknow what has become of that charge, gentlemen.\n\nThis indictment against Turner has been changed into a certificate of\ngood moral character. That is the end of the indictment, so far as he is\nconcerned, and I am glad of it. He is a man who fought to keep the\nflag of my country in the air, and who lay upon the field of Gettysburg\nsixteen days with the lead of the enemy in his body, and I am glad to\nhave the evidence show that he was not only a patriot, but an honest man\nwith a spotless reputation. I do not think that, in order to be a great\nman, you have got to be as cold as an icicle. I do not think that if you\nwish to be like God (if there is one) it is necessary to be heartless.\nThat is not my judgment. When I find that a man is honest I am glad of\nit. When I find that a patriot has been sustained my heart throbs in\nunison with his. What is the next? That Brady, for the benefit, gain,\nand profit of all the defendants—and I emphasize the word all because\nupon that I am going to cite to the court a little law—made fraudulent\norders; that is, for the benefit of Turner, Brady, and everybody else.\nEighth. That he caused these fraudulent orders to be certified to the\nAuditor of the Treasury for the Post-Office Department. Ninth. That\nBrady refused to enter fines against these contractors when they failed\nto perform their service; that he fraudulently refused to impose these\nfines. What is the evidence? The evidence is that the whole amount of\nfines imposed by Brady was one hundred and twenty-six thousand eight\nhundred and sixty-five dollars and eighty cents. That evidence is\ngiven in support of the charge that he refused to impose them, yet the\nimposition amounts to one hundred and twenty-six thousand dollars.\nHow much of that vast sum did he relieve the contractors from upon the\nevidence? Twenty-three thousand dollars, leaving standing of fines\nthat were paid, one hundred and three thousand six hundred and seventy\ndollars and twelve cents. That evidence is offered to show that he\nconspired not to impose the fines. One hundred and twenty-six thousand\ndollars imposed in fines, and only twenty-three thousand dollars\nremitted. Yet the charge was, and an argument has been made upon it\nbefore this jury, that the contractors agreed that he was to have fifty\nper cent, of all fines that he took off. Think of a man making that\ncontract with aman having power to impose the fines. \"Now, all you will\ntake off I will give you fifty per cent. of.\" There is an old story that\na friend of a man who was bitten by a dog said to him, \"If you will take\nsome bread and sop it in the blood and give it to the dog it will cure\nthe bite.\" \"Yes,\" he says; \"but, my God, suppose the other dogs should\nhear of it?\" Think of putting yourself in the power of a man who has\nthe right to fine you. And yet that is a part of the logic of this\nprosecution. The next charge is of fraudulently cutting off service and\nthen fraudulently starting it and allowing a month's extra pay. That\nhappened, I believe, in two cases—thirty dollars in one case and\nsomething more in the other.\n\nThe Court. Thirty-nine dollars.\n\nMr. Ingersoll. Then the case is nine dollars better than I thought.\nTwelfth. By the defendants fraudulently filing, subcontracts. That I\nhave already shown is an impossible offence. All these things were done\nfor the purpose of deceiving the Postmaster-General. Now, the Court\nhas already intimated that we have no right to say that the\nPostmaster-General would be a good witness to show whether he was\ndeceived or not, and that it may be that his eyes were sealed so tightly\nthat he has not got them open yet. But whether they can prove it by him\nor by somebody else they have got to prove it in order to make out this\ncase.\n\nThat is the scheme of this indictment. It makes no difference whether\nthe Postmaster-General has found out that he was deceived or not. The\njury have got to find it out before they find a verdict against the\ndefendants. It is possible that the Postmaster-General thinks he was not\ndeceived or that he was; I do not know what his opinion is and do not\ncare. They have got to prove it by somebody. I do not say they can prove\nit by him. I do not know. This is the scheme, and what I insist is that\nthis scheme must be substantiated and must be proved precisely as it has\nbeen laid without the variation of a hair. You must prove it as you\nhave charged it, and you must charge it as you prove it. It is simply a\ndouble statement. I wish to submit some authorities to the Court upon\nthis question: Must the exact scheme be proved? First, I will refer the\ncourt to the tenth edition of Starkie, page 627.   *\n\n\"It is a most general rule that no allegation which is descriptive of\nthe identity of that which is legally essential to the claim or charge\ncan ever be rejected.   * As an absolute and natural identity of\nthe claim or charge alleged with that proved consists in the agreement\nbetween them in all particulars, so their legal identity consists in\ntheir agreement in all the particulars legally essential to support the\ncharge or claim, and the identity of those particulars depends wholly\nupon the proof of the allegation and circumstances by which they are\nascertained, limited and described.\"\n\nNo matter whether the description was necessary or unnecessary:\n\n\"To reject any allegation descriptive of that which is essential to a\ncharge or a claim would obviously tend to mislead the adversary.   *\nIt seems, indeed, to be a universal rule that a plaintiff or prosecutor\nshall in no case be allowed to transgress those limits which in point\nof description, limitation, and extent he has prescribed for himself; he\nselects his own terms in order to express the nature and extent of his\ncharge or claim, he cannot therefore justly complain that he is limited\nby them.   * As no allegation therefore which is descriptive of any\nfact or matter which is legally essential to the claim or charge can\nbe rejected altogether, inasmuch as the variance destroys the legal\nidentity of the claim or charge alleged with that which is proved, upon\nthe same principle no allegation can be proved partially in respect to\nthe extent or magnitude where the precise extent or magnitude is in its\nnature descriptive of the charge or claim.\"\n\nNothing can be plainer than that. I refer also to Starkie on Evidence,\n7th American edition, vol. 1, page 442. There he says:\n\n\"In the next place it is clear that no averment of any matter essential\nto the claim or charge can ever be rejected, and this position extends\nto all allegations which operate by way of description or limitation of\nthat which is material.\"\n\nI also cite Russell on Crimes, 9th American edition, vol. 3, page 305,\nand Roscoe's Criminal Evidence, 7th edition, page 86.\n\nI now call the attention of the Court to the case of Rex vs. Pollman and\nothers, 2 Campbell, 239. I may say before reading this decision that,\nin my judgment, so far as the scheme of this indictment is concerned, it\nshould end this case:\n\n\"This was an indictment against the defendants which charged that they\nunlawfully and corruptly did meet, combine, conspire, consult, consent\nand agree among themselves and together, with divers other evil-disposed\npersons, to the jurors unknown, unlawfully and corruptly to procure,\nobtain, receive, have and take, namely, to the use of them, the said F.\nP., J. K. and S. H., and of certain other persons to the jurors likewise\nunknown, large sums of money, namely, the sum of two thousand pounds,\nas a compensation and reward for an appointment to be made by the lord's\ncommissioners of the treasury of our lord the king of some person to a\ncertain office, touching and concerning His Majesty's customs, to wit,\nthe office of a coast waiter in the port of London, through the corrupt\nmeans and procurement of them, the said F. P., J. K. and S. H., and of\ncertain other persons to the jurors unknown, the said office then and\nthere being an office of public trust, touching the landing and shipping\ncoastwise of divers goods liable to certain duties of custom.\"\n\nThe indictment went on and stated various overt acts in furtherance of\nthe conspiracy.\n\n\"There were several other counts which all laid the conspiracy in the\nsame way.\"\n\nNow I come to the part of the case which, in my judgment, affects this:\n\n\"It appears that the defendants Pollman, Keylock and Harvey had entered\ninto a negotiation with one Hesse to procure him the office mentioned in\nthe indictment for the sum of two thousand pounds, which they had\nagreed to share among themselves in certain stipulated proportions; but\nalthough this money was lodged at the banking house of Steyks, Snaith &\nCo, in which the defendant Watson was a partner, and he knew it was to\nbe paid to Pollman and Keylock upon Hesse's appointment, there was no\nevidence to show that he knew that Sarah Harvey was to have a part of\nit, or that she was at all implicated in the transaction.\"\n\nHe was a co-conspirator, and he knew that the money was to be deposited\nat this place.\n\nHe knew that, but he did not know that Sarah Harvey was to have a part\nof it.\n\n\"Lord Ellenborough threw out a doubt whether as to Watson the indictment\nwas supported by the evidence.\"\n\nThe evidence being that Watson did not know that it was to be divided in\nthe precise way stated in the indictment. Manifestly, they need not have\nstated in the indictment how it was to be divided; but having stated it,\nthe question is: Are they bound by the statement? Let us see:\n\n\"The attorney-general contended that the words in italics coming under\na videlicet might be entirely rejected. The sense would be complete\nwithout them. The indictment would then run that the defendants\nconspired together to obtain a large sum of money as a consideration\nand reward for appointment to be made by the lord's commissioners of the\ntreasury. This was the corpus delicti. The use to which the money might\nbe applied was wholly immaterial. The offence of conspiring together\nwould be complete however the money might be disposed of.\"\n\nTrue.\n\n\"There was no occasion to state this, and the averment might be treated\nas surplusage. Suppose the manner in which the money was to be disposed\nof had been unknown. Would it have been impossible to convict those\nengaged in the conspiracy? But, without rejecting the words, the\nvariance was immaterial. The charge in the indictment had been\nsubstantially made out as laid.\n\n\"Dallas and Walton, of counsel for Watson, denied that the words could\nbe rejected, though laid under a videlicet, as they were material, and\nthey were not repugnant to anything that went before. The application\nof the money might be of the very essence of the offence. Suppose it had\nbeen obtained for the use of the lords of the treasury, who would make\nthe appointment: would not this be a much greater crime than if the\nmoney had been obtained for the benefit of a public charity?\"\n\nI think that reasoning is bad. I think the crime is exactly the same.\n\n\"But if the words were rejected then the variance was more palpable. In\nthat case, there being no mention of any persons to whose use the money\nwas obtained, the necessary presumption was that it was obtained to the\nuse of the defendants themselves.\"\n\nThat is good sense.\n\n\"The evidence shows, however, that Watson was to have no part of it,\nand that he was utterly ignorant of the manner in which it was to be\ndistributed.\n\n\"Lord Ellenborough. There can be no doubt that the indictment might have\nbeen so drawn as to include Watson in the conspiracy. Even if the manner\nthe money to be applied was unknown, this might have been stated on the\nface of the indictment, and then no evidence of its application would\nhave been required. The question is, whether the conspiracy as actually\nlaid be proved by the evidence?\"\n\nThat is the question: Have they made out a case according to the\nscheme of the indictment? Has the conspiracy as laid been proved by the\nevidence?\n\n\"I think that as to Watson it is not. He is charged with conspiring to\nprocure this appointment through the medium of Mrs. Harvey, of whose\nexistence for aught that appears he was utterly ignorant. When a\nconspiracy is charged it must be charged truly.\"\n\nHe did not know that Mrs. Harvey was to have a portion of the money, and\nyet she was a member of the conspiracy. The evidence showed that she was\nto have a portion of it, and Lord Ellenborough says that they did not\nprove the charge as laid, and that it cannot include Watson.\n\n\"Garrow submitted that it was unnecessary to prove that each of the\ndefendants knew how the money was to be disposed of, and that it was\nenough to show that the destination of the money was as stated in the\nindictment. A fact of which all those engaged in the conspiracy must be\ntaken to be cognizant. Watson by engaging with the other conspirators\nto gain the same end, had adopted the means by which the end was to be\naccomplished.\"\n\nThat is what the attorney for the Government says. Lord Ellenborough\nreplies:\n\n\"You must prove that all the defendants were cognizant of the object of\nthe conspiracy and the mode stated in the indictment by which it was\nto be carried into effect. A contrary doctrine would be extremely\ndangerous. The defendant Watson must be acquitted.\"\n\nNow let us apply that case to this. In the first place, they must not\nonly prove this indictment according to the scheme, but they must prove\nthat every defendant understood that scheme, knew the scheme, how it was\nto be accomplished and what was done with the money.\n\nThe Court. In that case Watson was acquitted. What was done with the\nothers?\n\nMr. Ingersoll. They, of course, were found guilty, because they were\nguilty, as the indictment charged. They knew the exact scheme set forth\nin the indictment. They were guilty exactly as the indictment said. They\ndivided the money exactly as the indictment charged they divided\nthe money, and they were cognizant of every fact set forth in the\nindictment. But Watson, although a co-conspirator, did not know what was\nto be done with the money, and consequently was to be discharged. Why?\nBecause they did not prove the conspiracy as to him as charged. They\nneed not have set forth in the indictment what was to be done with the\nmoney, but they did set it forth, and then they had to prove it. They\nneed not have said that every man knew what was done with the money,\nbut they did say that every man knew, and they failed to prove it, and\nwhen they failed to prove it as to Watson he was discharged.\n\nNow, gentlemen of the jury, what I insist upon and what I shall ask the\nCourt to instruct you is that the Government, no matter how guilty the\ndefendant may be, no matter if he has robbed this Government of hundreds\nof millions, is to be tried by this indictment, is to be guilty of this\ncharge as written in this indictment and nowhere else; and he has got\nto understand it. They say he understood it, and they have got to prove\nthat he understood it.\n\nNow, upon that same subject they say that the money was to be divided\nbetween all these parties—between Rerdell, Turner and everybody. I\nthink it was Mr. Bliss who said there was no evidence that Rerdell ever\nhad any of the money. Certainly they do not think that Turner obtained\nany of the money. Is there any evidence of it? Not the slightest. Is\nthere evidence that there ever was any division, any evidence that\nthere was ever any money divided upon a solitary route mentioned in this\nindictment? Not one particle. If you say there is evidence, when was the\ndivision made?\n\nThe Court. The question is not what was done. The question is with what\nview the conspiracy was entered into.\n\nMr. Ingersoll. Certainly.\n\nThe Court. 'The object of the conspiracy may have failed, and this money\nmight not have been divided as they intended, but still the conspiracy\nwould be here.\n\nMr. Ingersoll. Good, perfectly. But if they set forth in this indictment\nthat the money was divided, that statement is not worth a last year's\ndead leaf unless they prove it. That is all I insist upon. You cannot\nfind anybody guilty of charges in an indictment unless you prove them.\nUnless you prove them they amount to no more than charges written in\nwater, than characters engraved on fog or written on clouds. You have\ngot to prove them.\n\nNow, upon this same point I say that if the scheme has not been\nestablished by the evidence, the case fails, no matter what the proof.\nThe offence must not only be proved as charged, but it must be charged\nas proved, doubling the statement for the sake of doubling the idea of\naccuracy. That is in Archibald's Criminal Pleadings, American edition,\npage 36. The same thing is held in First Chitty's Criminal Law, 213. I\nalso refer to the case of King against Walker, 3d Campbell, 264; King\nvs. Robinson, 1st Hope's Nisi Prius Reports, 595. I have the books here,\nbut I will not take up the time of this Court in reading them.\n\nNow, if I am right, that is the language of that indictment. The overt\nacts with the leaves are gone; the scheme with the branch and trunk are\ngone. They prove no such scheme, they prove no such division.\n\nI will now proceed to examine the alleged evidence against my\nclients, Stephen W. and John W. Dorsey, and I want to say right in the\ncommencement that suspicion is not evidence. You charge that a couple of\npersons conspired. That they met about nine o'clock on the shadowy side\nof the street.\n\nA suspicious circumstance. Why did they not get under the lamp? They\nwere seen together once more, and the moment a man came up they walked\noff. Guilty. They ran. And out of these idiotic suspicions that never\nwould have entered the mind, except for the reason that the persons were\ncharged, hundreds of people begin to say, \"There is something in it.\nThey met four or five times. One of them wrote a letter to the other,\nand so help me God it was not dated.\" Another suspicious circumstance.\n\"There was a heading on the paper. It was not the number of his\noffice.\" So they work it up, and ignorance begins to stare, and wonder\nto open its mouth, and finally prejudice finds a verdict.\n\nSuspicion, gentlemen, is not evidence. You want to go at this with this\nidea. Whatever a man does, the presumption is it is an honest act until\nthe contrary is shown. These men wrote letters. They had a right to do\nit. They met. They had a right to meet. They entered into contracts.\nThey had a right to do it, no matter whether they were dated or not\ndated. One of the greatest judges of England said if you let out of\nthe greatest man's brains all the suspicions, all the rumors, all the\nmistakes, and all the nonsense, the amount of pure knowledge left would\nbe extremely small. If you take out of this case all the suspicions,\nall the guesses, all the rumors, all the epithets, all the arrogant\ndeclarations, the amount of real evidence would be surprisingly small.\n\nNow, I want to try this case that way. I do not want to try it by\nprejudice. Prejudice is born of ignorance and malice. One of the\ngreatest men of this country said prejudice is the spider of the mind.\nIt weaves its web over every window and over every crevice where light\ncan enter, and then disputes the existence of the light that it has\nexcluded. That is prejudice. Prejudice will give the lie to all the\nother senses. It will swear the northern star out of the sky of truth.\nYou must avoid it. It is the womb of injustice, and a man who cannot\nrise above prejudice is not a civilized man; he is simply a barbarian.\nI do not want this case tried on prejudice. Prejudice will shut its eyes\nagainst the light. I want you to try it without that.\n\nAnd right here, although it is a subject about which most courts are a\nlittle tender, the question arises as to the jury being judges of the\nlaw and fact. One of the attorneys for the Government, Mr. Merrick, told\nus that at one time he insisted that the jury was the judge of the law,\nand made this remarkable declaration:\n\n\"But even at the time I spoke the words to the jury I did not believe\nthem to be indicative of safe and true principles of law.\"\n\nWas he candid then? Is he candid now? I do not know. But his doctrine\nappears to be this: \"When I am afraid of the court I insist on the jury\njudging the law. When I am afraid of the jury I turn the law over to the\ncourt. But in this case, having confidence in both judge and jury, it is\nwholly immaterial to me how the question is decided.\"\n\nNow, if it please the Court, I believe the law to be simply this: I\nbelieve the jury to be absolute judges of the facts, and yet if on the\nfacts they find a man guilty whom the court thinks is not guilty, the\ncourt will grant a new trial. The court has the power to set aside a\nverdict because the jury find contrary to the evidence. The court cannot\ndo it, however, when the jury finds a verdict of not guilty. I do not\nbelieve that the jury have a right to disregard the law from the court\nunless a juryman upon his oath can say that he believes, he knows, or\nis satisfied that is not the law; and he must be honest in that, and he\nmust not be acting upon caprice. He must be absolutely honest. He must\nbe in that condition of mind that to follow the law pointed out by the\ncourt would trample upon his conscience, and that he has not the right\nto do. That is all the distance I go.\n\nThe history of the world will show that some of the grandest advances\nmade in law have been made by juries who would not allow their\nconsciences to be trampled into the earth by tyrannical judges. I am not\nsaying that for this case.\n\nI am simply saying that as a fact. There was a time in this country when\nthey used to try a man who helped another to gain his liberty, and\nthere was now and then a man on the jury who had sense enough, and heart\nenough, and conscience enough to say, \"I will die before I carry out\nthat kind of law.\" They did not carry it out either, and finally the law\nbecame so contemptible, so execrable, that everybody despised it. All\nI ask this jury to do is just to be governed by the evidence and by the\nlaw as the Court will give it to them, honestly and fairly.\n\nNow, I am coming to the evidence against John W. Dorsey. I am traveling\nthrough this case now we have started it. As you have heard very little\nabout it, gentlemen, and there is nothing in the world like speaking on\na fresh subject. I feel-an interest in John W. Dorsey. He is my client.\nI believe him to be an absolutely honest man. He is willing to take the\neffect of all his acts. He is no sneak, no skulk. He will take it as it\nis. Let us see what he has done.\n\nThe first witness is Mr. Boone. Mr. Boone swears that John W. Dorsey was\none of the original partners. Well, that is so. It is claimed that the\nconspiracy was entered into before there was any bidding. Well, Boone\ndoes not uphold that view. Now, if Boone and Miner and John W. Dorsey\nand Peck had an arrangement with Brady whereby they were to bid and then\nhave expedition and increase, I want to ask you why did Boone write\nto all the postmasters to find out about the roads and the cost of\nprovender, and the kind of weather they had in the winter in order to\nascertain what bid to make? If he had had an arrangement with the Second\nAssistant Postmaster-General to expedite the route he would have simply\nmade up his mind to bid lower than anybody else, and he would not have\ncared a cent what kind of roads they had there, or what kind of weather\nthey had in the winter, or how much horse provender cost, and yet he\nsent out thousands of circulars to find out these facts. For what? To\nmake bids. What for? According to the Government these were routes on\nwhich they had already conspired for expedition and increase without the\nslightest reference to the horses and men, and of course, if that theory\nis true, Boone is one of the conspirators. But I will come to that\nhereafter.\n\nMore routes, according to Boone's testimony, were awarded than they\nanticipated. They got, I think, one hundred and twenty-six. They had no\nmoney to stock the routes. They got more than they expected. Well, that\nwas not a crime. Boone left in August, 1878, and Mr. Merrick takes the\nground that Boone had done the work, manipulated all the machinery, and\nyet could not be trusted with the secret. Boone had gathered all the\ninformation, he had done the entire business, and yet the secret up to\nthat time had been successfully kept from him. Do you believe that?\n\nNow, Vaile came, and another partnership was formed, and the second\npartnership remained in force, I think, till the 1st of April, 1879, or\nthe last day of March, and then the routes were divided. Now, then,\nJohn W. Dorsey is charged with conspiracy as to these routes, and these\nroutes were afterwards assigned to S. W. Dorsey to secure advances and\nindorsements that were made.\n\nNow, of the routes mentioned in the indictment, John W. Dorsey was\ninterested in seven at the time of the division. From Vermillion to\nSioux Falls, from White River to Rawlins, from Garland to Parrott City,\nfrom Ouray to Los Pinos, from Silverton to Parrott City, from Mineral\nPark to Pioche, and from Tres Alamos to Clifton. How much money did\nhe get on all these routes? I have already shown you. He received\ntwo warrants for eighty-seven dollars and they recouped them both. He\nreceived another warrant for three hundred and ninety-two dollars and\nsucceeded in keeping it. That is all the money he got in these seven\nroutes. Now, the testimony of Mr. Vaile shows, if it shows anything,\nthat after April, 1879, he took those routes and kept them and never\npaid a dollar to any official in the world, and he also swears that no\nmatter how much he got, it made no difference as to the routes that had\nbeen given to John W. Dorsey and Peck. It could not in any way affect\ntheir amount, and that no person in the world except themselves had any\ninterest in them.\n\nNow, it is charged that false affidavits were made by John W. Dorsey,\nand that the making of these false affidavits was the result of\nconspiracy. Let us see. It has been shown by the evidence, and I have\nalready shown it, and conclusively shown it, that the affidavit was\nsubstantially correct, so far as the proportion was concerned.\n\nNow, let me explain what I mean by proportion. For instance, I am\ngetting five thousand dollars a year on a route, and it takes five men\nand ten horses. That is an aggregate of fifteen. Now, suppose I simply\nexpedite it a certain number of miles an hour, and say it will take\nfifteen men and thirty horses. That makes an aggregate of forty-five,\ndoes it not? Then the Government gives me three times as much for the\nexpedited service as for the then service. Now, suppose I am getting a\nthousand dollars, and it only takes one man and one horse, and I make an\naffidavit that it takes one hundred men and one hundred horses, and if\nit is expedited it will take two hundred men and two hundred horses, how\nmuch more do I get? I get just double, and the result of the affidavit\nis exactly the same as though I said the one man and one horse that it\nthen took, and it would require two men and two horses. If you keep\nthe proportion you cannot by any possibility commit a fraud against the\nGovernment. Now we understand that. Now let us see. When you make an\naffidavit, what do you do? When you make an affidavit of how many horses\nit will take, you take into consideration the length of the term, three\nor four years. You take into consideration the life of a horse. You\ntake into consideration the roads and the weather. You take into\nconsideration every risk, and find it is only a matter of judgment, only\na matter of opinion, and the fact that men differ as to their judgment\nupon those points accounts for the fact that they make different\naffidavits. If everybody made the same calculation as to food, as to\nweather, as to roads, as to disease, everybody would make substantially\nthe same bid, but on the same route they differ thousands of dollars a\nyear, because they differ in judgment as to the number of horses it will\nrequire and as to the number of men.\n\nAnd then there is another thing. Some men will make a horse do twice as\nmuch as others. Some men are hard and fierce and merciless. Some men\nare like they ask you to be in this case—icicles. Some men resemble\nthe gods so far that they will make a horse do five times the work they\nshould, and other men are merciful to the dumb beast. So they differ\nin judgment. One man says he can go twenty-five miles every day, and\nanother man says he can only go fifteen. One man says stations ought to\nbe built twenty-five miles apart; another says they should be built\nten miles apart. They differ, and for that reason, gentlemen, the bids\ndiffer, and for that reason the affidavits differ.\n\nI shall not speak of all these affidavits, but I shall speak of the ones\nthat have been attacked. Mr. Merrick called Mr Dorsey a perjurer because\nhe made two affidavits on route 38145. Now, no such charge is made\nin the indictment, but I will answer it. Now, then, as to the two\nindictments—The Court. Two affidavits.\n\nMr. Ingersoll. Two affidavits. Well, there ought to have been two\nindictments to cover both cases. Now, this is on route 38145, Garland\nto Parrott City. Now, there were two affidavits made on 38145, as is\nset forth in the evidence, but it is not in the indictment. The first\naffidavit was sworn to March 11, 1879, in Vermont, and filed April 16,\n1879. Neither could come in under this conspiracy anyway. The second was\nmade in Washington, April 26, 1879, and filed the same day, which is a\nsuspicious circumstance. The letter dated April 23, 1879, according to\nthe prosecution, purports to transmit an affidavit made on the 26.\nThere is no evidence that the affidavit dated the 26 was inclosed in\nthe letter dated the 23. The affidavit set forth the number of men and\nanimals required to run the route on a schedule of fifty hours, three\ntrips a week. There is no evidence as to the character of the paper\ntransmitted, if any was transmitted, nor in fact, is there any evidence\nthat any paper was transmitted with that letter.\n\nNow, on page 804 of the record, Mr. Bliss submitted two papers to Mr.\nMcSweeney, a witness, saying, \"I show you two papers pinned together.\"\nWho pinned them? I do not know. \"One dated April 26, 1879, and the\nother dated April 24, 1879.\" The paper dated April 26 is indorsed in\nthe handwriting of William H. Turner. The indorsement on the paper dated\nApril 24 is in the handwriting of Byron C. Coon. This fact shows that\nthe papers that were read by Mr. Bliss as one paper and marked 17\nE, were treated by the department as two separate papers received on\nseparate dates, and so marked and so filed, and they were marked at the\ntime they were identified as numbers 17 and 18. Now, the only question\nis whether the last affidavit was made for the purpose of committing a\nfraud upon the Government and whether the change in the figures in\nthe last affidavit were intended to or could in any way defraud the\nGovernment of the United States.\n\nNow, let us see what it is. Mr. Merrick charges that the second oath was\nwillful perjury. In order to show that this was an honest transaction,\nand that Mr. Dorsey should be praised instead of blamed, I will call\nyour intention now to the exact state of facts. Now, if I do not make\nout from this that it was a praiseworthy action instead of perjury, a\ngood, honest action, I will abandon the case. In the first affidavit\nDorsey swore that it would require three men and seven animals as the\nschedule then was, and that for the proposed schedule it would take\neleven men and twenty-six animals. Now, three men and seven animals make\nten, and eleven men and twenty-six animals make thirty-seven. So that by\nthe first affidavit he swore that it would take three and seven-tenths\nmore animals to carry the mail on the expedited schedule than on the\nschedule as it then was, did he not? Three men and seven animals as\nagainst eleven men and twenty-six animals it would take three and\nseven-tenths more animals, consequently you would get for that three and\nseven-tenths more pay. Now, let us understand that. That is an increase\nin the ratio of ten to thirty-seven, and if his pay had been calculated\non that first affidavit it would have been thirteen thousand four\nhundred and thirty-three dollars and four cents. But it was not\ncalculated on that. He made another affidavit. Now, the second affidavit\nsaid that it would take twenty men and animals instead of ten, as it\nthen was, and for the expedition fifty-four men and animals. Now, the\nratio between twenty and fifty-four was two and seven-tenths instead of\nthree and seven-tenths, so that under that second affidavit, which they\nsay was willful and corrupt perjury, he would only get eight thousand\nfour hundred and fifty-seven dollars, and the change of that affidavit,\nif the amount had been calculated on the first instead of the second,\nwould have cost him for the three years yet remaining of his term\nfourteen thousand nine hundred and twenty-five dollars and sixty cents,\nand that change saved, exactly as if they had made the calculation on\nthe other affidavit, about fifteen thousand dollars, and yet they tell\nme that that was willful and corrupt perjury. There has nothing been\nshown in the case more perfectly honorable. Nothing shown calculated\nto put John W. Dorsey in a fairer, in a grander light, than this very\naffidavit that is charged to have been willful perjury. Do you see?\nHe made the first affidavit, and in it he made a mistake against the\nGovernment of fourteen thousand nine hundred and twenty-five dollars,\nand, then, like an honest man, he corrected it, and for that honest\ncorrection he is held up as a perjured scoundrel. It will not do, my\nfriends.\n\nBut, as a matter of fact, not one of these affidavits is set out in the\nindictment, not one charged in the indictment. They are wandering tramps\nthat were picked up as they went along with this case, and have no\nbusiness here.\n\nIn route 38152 he made no affidavit. In route 38113 there is no charge\nin the indictment that he made any affidavit. In the route 38156\nthe affidavit was not false. It was charged and was not successfully\nimpeached. In route 40104 the affidavit was never disputed and it was\nnever attacked. In route 40113 the affidavit was not attacked, not a\nsolitary witness was examined. In route 35105 no affidavit was made by\nDorsey. In route 38134 there are two more affidavits.\n\nNow let us see. Here is some more fraud. Put it down, 38134—two\naffidavits—a great fraud. The first affidavit said three men and twelve\nanimals. That made fifteen; that for the expedition it would take seven\nmen and thirty-eight animals. That made forty-five. In other words the\nproportion was fifteen to forty-five, just three times as much. Three\ntimes fifteen make forty-five. Then he made a second affidavit, filed\nwith a purpose to defraud the Government. Let us see. In the second\naffidavit he said that it took two men and six animals. That makes\neight. That on the expedition it would take six men and eighteen\nanimals. That makes twenty-four. The proportion was eight to\ntwenty-four. Three times eight make twenty-four; and three times fifteen\nmake forty-five. So that the amount was raised exactly the same to\na cent, under the second affidavit that it was under the first, and\nconsequently could not have been made for the purpose of defrauding\nanybody. Impossible. The proportion of course is the material thing in\nevery affidavit, and it is only by that proportion that you can tell\nwhether they are trying to defraud this Government or not. Suppose that\nsecond affidavit had changed the proportion so that he was not to get\njust the amount of money, then you might say it was a fraud. But it did\nnot change the proportion.\n\nOn route 38156 another affidavit is filed and not successfully\nimpeached. I went over that. I have got through with that. That is all\nthere is to it. That is all, that is everything—everything—everything.\nThere is no evidence tending to show that John W. Dorsey ever spoke\nto Thomas J. Brady. There is no evidence to show that he ever saw him.\nThere is no evidence to show that he was ever seen in his company; no\nevidence to show that he ever saw Turner; that he ever heard of Turner;\nthat he ever spoke to Turner; that he ever received a letter from\nTurner; that he ever wrote anything to him; no evidence as a matter of\nfact that he ever exchanged a word with these men; no evidence that he\never saw Harvey M. Vaile; that he ever spoke to him. Certainly there is\nno evidence that he ever conspired with him. No evidence that he ever\nmade an agreement with Thomas J. Brady or with Mr. Turner or with any\nofficer—no agreement of any sort, kind, character, or description at\nany place, upon any subject, or for any purpose, not the slightest;\nno evidence that he conspired with anybody; no evidence that he ever\nreceived from the United States a solitary dollar, with the exception of\nthree hundred and ninety-two dollars—not the slightest.\n\nThere is no evidence that he ever wrote a false communication to the\ndepartment—nothing of it. There is no evidence that he ever wrote a\npetition; no evidence that he ever forged one; no evidence that he ever\nsigned anybody's name to one; no evidence that he did anything of the\nkind or that he ever changed one; no evidence that he ever put a man's\nname to it that did not live on the route; no evidence that he ever\nput in a fictitious name; no evidence that he helped to deceive the\nPostmaster-General—not the slightest. If there is I want somebody just\nto put their finger upon the evidence. There is no evidence that he ever\nmade false statements at any time. There is no evidence that he ever\npaid, as I say, a dollar to any official, and no evidence that he ever\npromised to pay it. All the evidence is that he got three hundred and\nninety-two dollars. He made the affidavits in accordance with what\nhe believed to be the truth. The evidence shows that when he made the\naffidavits on those routes he had no personal interest, that he received\nnot a dollar for making them. He made them because he supposed the\ncontractor or subcontractor had to make them. He made them because he\nbelieved them to be true. He was guided by the little experience he had\nhimself and by the statements made to him by others; and in all this\nevidence there is not a word, not a line, not a letter tending to\nshow he did a dishonest act, and the jury will bear me out that in\nthe affidavits attacked he was substantially right, while in the first\ninstance he was too high; in others he was too low. But there is no\nevidence that he deliberately swore to what he believed to be untrue.\nThe proportion sworn to by him has always been substantially correct.\nIn other words, gentlemen, the testimony shows that John W. Dorsey is an\nhonest man, and there is no jury, there never was, there never will be,\nthat will find a man like that guilty upon evidence like this. It never\nhappened; it never will happen.\n\nNow, I come to my other client, Stephen W. Dorsey, and I feel an\ninterest in him. He is my friend. I like him. He is a good man. He has\ngood sense. He is not simply a politician, he is a statesman; and I want\nyou to understand that he never did an act in this case that he did not\nthoroughly understand as well as any lawyer in this prosecution ever\nwill understand; or as well as any lawyer of the defence ever will\nunderstand. He knew exactly his liabilities. He knew exactly his\nresponsibility. He knew exactly what he did and he knew he did only what\nwas right. In the opening of this case Mr. McSweeney made a statement.\nHe told you the exact connection of Dorsey with this matter. He not\nonly told you that, but he told you that Dorsey had lost money on these\nroutes, and that he had never been repaid the money he had advanced, and\nin that connection he said that he had turned the routes over to James\nW. Bosler, and the department knew of James W. Bosler because they\nintroduced testimony here that the warrants were paid to James W.\nBosler. Mr. McSweeney stated that Bosler controlled the business, and\nnow we are asked by the prosecution, \"Why did you not bring James W.\nBosler on the stand and show that you had lost money?\" I return the\ncompliment and say to them, why did you not bring James W. Bosler on the\nstand and show that it was not true that we had lost money, as he kept\nthe books? I ask them that. Why did they not bring James W. Bosler?\n\nMr. Merrick. If your Honor please, there is no evidence whatever as to\nwhether S. W. Dorsey lost money on those routes, and the statement of\ncounsel made in the opening, I respectfully submit, cannot be used as\nevidence by the counsel in the case.\n\nThe Court. Of course it is impossible for me to say after so long a time\nspent in receiving evidence what evidence has been given on a disputed\nquestion. I cannot say from recollection what evidence has been given\non this subject, but I understand the remarks now made are not made upon\nevidence in the case, but in reply to remarks made in the opening in the\ncase.\n\nMr. Ingersoll. Partially so.\n\nMr. Merrick. The opening by their counsel.\n\nThe Court. By their counsel.\n\nMr. Merrick. By their counsel, Mr. McSweeney.\n\nMr. Ingersoll. Let me just state it, and the Court will understand it\nperfectly. Mr. McSweeney, in his opening, said that these routes had\nbeen turned over to James W. Bosler; that he received the money and paid\nit out, and that S. W. Dorsey on these very routes had not made money,\nbut lost money. Very well. But that statement was simply a statement. It\nwas never proved afterwards. The Government said to us, \"Why did you not\nbring James W. Bosler to prove that?\"\n\nThe Court. Where did they say that?\n\nMr. Ingersoll. They said it in their speeches. Mr. Merrick said it.\n\nMr. Merrick. Not to prove as to the money.\n\nMr. Ingersoll. Ay, \"Why did you not bring James W. Bosler?\"\n\nMr. Merrick. Yes, but not as to proof of money; but as to other\nquestions in reference to the distribution of routes and the loaning of\nmoney by Dorsey, and by Bosler to Dorsey, and Dorsey's transfer of\nthe routes to Bosler as security for the loan as appeared in Vaile's\ntestimony.\n\nThe Court. I shall not interfere.\n\nMr. Merrick. I shall not attempt to arrest the course of counsel\nunless there is ground for it, and I ask the Court that, there being\nno evidence of this fact, that the counsel shall not—Mr. Ingersoll.\n[Interposing.] I am going to show there is some evidence.\n\nThe Court. I understand it is a remark in reply to an observation of\nyour own.\n\nMr. Ingersoll. That is principally it. Now, they introduced the\nwarrants that had been drawn by the contractors and subcontractors from\nthe Post-Office Department; they proved that these warrants had been\npaid to James W. Bosler, and that one after the other, hundreds had been\nassigned to James W. Bosler. Now, then, I say, they say to us, \"Why do\nyou not bring in James W. Bosler and prove your innocence?\" I say why\ndid you not bring in James W. Bosler and prove our guilt? We opened the\ndoor. We told you the name of the witness. We told you that he had taken\nthe routes; that he kept the books; that he disbursed the money, and\nthat we had lost money. Instead of robbing the Government the Government\nhas robbed us; and they say, \"Why did you not bring Bosler?\" and I say\nto them, why did you not bring him? They know him, and they know he is a\nreputable man.\n\nNow, there is another point. I ask you all to remember what was said in\nthe opening, and I understand that a defence is bound by its opening,\nbound by what it says to the jury. The question is, Has any fact been\nsubstantiated in this case that contradicts a statement made in the\nopening?\n\nThe Court. The defence has no right to avail itself of—Mr. Ingersoll.\n[Interposing.] Of what it says.\n\nThe Court. Of what it says in its opening unless it is followed by\nevidence.\n\nMr. Ingersoll. Certainly not, but it has a right to show that no\nevidence has been introduced by the Government that touches that opening\nstatement. It has the right to do that, surely.\n\nNow, then, Mr. Boone was the witness for the Government—a smart man.\nHe swore who were interested in the bidding. He told and he positively\nswore that Dorsey was not interested in these routes. He gave the names\nof the persons interested, and he swore positively that he was not.\nDorsey then, I say, had not the slightest interest. He loaned money,\nhe went security, he assisted in getting sureties on bonds, and you\nrecollect the trouble that they have made about some bonds. Has there\nany evidence been introduced to show that there was a bad bond? Has any\nevidence been introduced to show that the name of an insolvent man was\nput upon any bond as security? Has there been any evidence to show\nthat any action was ever commenced on any of these bonds; any evidence\ntending to show that every bond was not absolutely good? As a matter\nof fact, the Government waived all of that. In offering the contract on\nroute 35015, Mr. Merrick made this remark:\n\n\"It is offered for the purpose of showing the contract made. The\ncontract itself is not an overt act. That is all right. There is nothing\ncriminal about that.\"\n\nGood!\n\nNothing criminal about any contract, gentlemen. You will all admit they\nhad to make the bids, and if they were the lowest bidders it was the\nduty of the Government to accept the bids and afterwards to make the\ncontracts in accordance with them. There was nothing wrong in that. That\nis Dorsey's first step. His first step really was an act of kindness.\nWhat was the second step? He was unable to advance any more money. Mr.\nPeck, Mr. Miner, Mr. Dorsey, and Mr. Boone were unable to advance\nthe money, so Mr. Boone went out and Mr. Vaile came in, and the new\npartnership agreed to refund this money that had been advanced; that\nis, the money advanced by the other parties. What one gets another to\nadvance is really advanced by him as long as he is liable for it. Mr.\nVaile, a man of large experience and means, was taken in Boone's place.\nIs there anything suspicious up to this time? That is the only test of\nthis whole question. Is it natural? If it is natural there is no chance\nfor suspicion. After Mr. Vaile came in, a written contract was made\non August 16, 1878. There is no conspiracy up to that time. Not the\nslightest evidence of it; no arrangement with any officers up to that\ntime. Now, under the August contract, Mr. Vaile took the entire business\nin charge, and he ran it, as I understand, until the first day of April,\n1879. No officer had any interest in it then. There was no conspiracy\nthen. Vaile received all the money and paid it out. Here we stand on the\nfirst day of April, 1879. Now, what is the history up to this time? That\nJohn W. Dorsey, Peck, Miner, and Boone were bidders; that certain routes\nhad been awarded, they had not the money to stock the routes, and that\nS. W. Dorsey advanced some money and went security; that afterwards\nBoone went out and Vaile came in, and the contract was made by virtue\nof which Vaile became the treasurer and knew everybody, and ran the\nbusiness to the first day of April, 1879. He swears positively that he\nmade no arrangement and that he paid no money. It is also in evidence\nthat in December, 1878, Stephen W. Dorsey and Vaile met for the first\ntime, and met in the German-American Bank for the purpose of settling\nthe claim upon which Dorsey was security, and replacing the notes upon\nwhich Dorsey was, by notes of Vaile, Miner & Co. Afterwards these notes\nwere paid by Vaile and the security of Dorsey released. Now, in April,\n1879, a division is made. The contract of August, 1878, was done away\nwith and a division 'of the routes was made, seventy per cent, being\ntaken by Vaile and Miner and thirty per cent, by John W. Dorsey and\nPeck. In April, 1879, the parties divided instead of coming together.\nThey do not conspire. They separate. They do not unite. They go asunder.\nFrom that moment they agree to have nothing in common. Each man takes\nhis own, and each man attends to his own and does not help anybody else\nexcept when they insist that a contractor or subcontractor shall make\nthe affidavit. They made affidavits on the routes on which they were\ncontractors. That is all there is to it up to that time. Then these\nroutes were assigned to Dorsey for the purpose of securing him.\n\nNow, I go to the overt acts charged against Stephen W. Dorsey. Do\nyou know I am delighted to get right to that page of my notes. I am\ndelighted that I now have the opportunity to answer and to answer\nforever all the infamous things that have been charged against this man.\nHere we are, before this jury, a jury of his fellow-citizens, a jury\nthat has the courage to do right. I have finally the chance of telling\nhere before men who know whether I am speaking the truth or not, what\nhas been charged against Stephen W. Dorsey and what has been proved\nagainst him. Let us examine the overt acts charged. On route 38135 it\nis charged that Miner, Rerdell and S. W. Dorsey transmitted a false\naffidavit. The evidence is that the affidavit was made by Miner, not\nby Dorsey, transmitted by Miner, not by Dorsey, and that it was not\ntransmitted as charged in the indictment, but transmitted on the 18th\nday of April, 1879. There is no evidence that Dorsey even heard of that\naffidavit, that he ever made it, that he ever transmitted it, that\nhe ever saw it, that he ever knew of its existence. That is the first\ncharge. There is not one particle of evidence to show that he ever knew\nthere was such a paper. Upon that written lie, upon that mistake\nthese infamous charges affecting the character of this man have been\ncirculated over the United States.\n\nWhat is the next? That he with others filed false petitions. I am\ntelling you now all the charges; every one of them. What is the\nevidence? Oh, it is splendid to get to the facts. The evidence is that\nevery petition is shown to have been genuine. There is no evidence that\nhe ever filed one or sent one, or asked to have one sent on that route;\nand every petition is genuine and no charge made except as to one. In\none they said the words \"quicker time\" were inserted; but the very next\nparagraph asked for quicker time, and nobody pretended that had been\ninserted. Besides that, it was charged in the indictment to have been\nfiled on the 26th day of June. As a matter of fact, it was filed on the\n8th day of May. It was never filed by Stephen W. Dorsey; it was never\ngotten up by Stephen W. Dorsey. There is no evidence that he ever knew\nof it or heard of it. Third, that he fraudulently filed a subcontract.\nTwo mistakes and an impossible offence. That ends that route. That is\neverything on earth in it. I defy any man to make anything more out of\nit than I have. I have told every word.\n\nThe next route is No. 41119. It is charged that Stephen W. Dorsey with\nothers transmitted a false oath. The evidence is that the oath was made\nby Peck, and it was transmitted by Peck and not by Stephen W. Dorsey.\nWhat else? That it is true. There are three mistakes in that charge.\nThey say Dorsey made it. Peck made it They say Dorsey transmitted it.\nPeck transmitted it. They say it was false. The evidence shows it true.\nThai is all there is to that route. It is the only charge on that route.\nNo petitions were claimed to be false.\n\nNow we come to route 38145. Let us see if we can do any better on\nthat. The first charge is, that Stephen W. Dorsey fraudulently filed a\nsubcontract. The subcontract was made with Sanderson, Sanderson got his\nown contract filed. This charge was copied from the old indictment. It\nis a mistake and that is all there is to it. These are the charges that\nhave carried sorrow to many hearts. These are the charges that have\ndarkened homes. These are the charges that have filled nights with grief\nand horror; every one of them a lie.\n\nThe next route is 38156. The first charge is that he transmitted a\nfalse oath. The oath was made by John W. Dorsey, and is true. The second\ncharge is of fraudulently filing a subcontract, an impossible offence.\nThat is everything on that route. Absolutely untrue.\n\nNow we come to the next, No. 46217. The charge is filing base petitions.\nThe evidence is that every petition was genuine. Every one. Mr. Bliss\nsaid—\"We make no point about increase of trips on this route.\"\n\nEvery petition was for increase of trips. You will see that on record,\npage 1008. That is the only charge on that route, gentlemen. Utterly\nfalse!\n\nCome now to route 38140. Charge: Filing false and forged petitions.\nEvidence: All the petitions genuine. Second charge: Transmitting a false\noath and making it. Evidence: Oath made by John W. Dorsey, and true.\nThat is all there is to that route. If they can rake up any more I want\nto see it. I have been through this record.\n\nRoute 38113. Charge: Fraudulently filing a subcontract. That is all. You\ncannot fraudulently file a subcontract.\n\nRoute 40113. Charge: Filing false and forged petitions. Evidence:\nEvery petition admitted by the Government to be genuine. Good. Second:\ntransmitting a false oath. Evidence: Oath made by John W. Dorsey, and\nthe Government introduced no witness to show that it was false. See how\nthese charges fall. See how they bite the ground. That is all.\n\nI have told you every one in this indictment; every one. You will hardly\nbelieve it. Now let me give you the recapitulation. S. W. Dorsey is\ncharged on eight routes with having transmitted four false oaths.\n\nThe evidence is he never made one nor transmitted one, and that the\nfour oaths were all true. On five routes he is charged with having filed\nfalse petitions. The evidence is that all the petitions were genuine.\nNone of the petitions charged in the indictment to have been transmitted\nby him were transmitted by him. He is charged with filing fraudulent\nsubcontracts, and the evidence is that the subcontracts were genuine,\nand besides that, as I have said a dozen times, it is utterly impossible\nto fraudulently file a subcontract. Not a single, solitary charge in\nthis indictment against Stephen W. Dorsey has been substantiated. Not\none. He has been called a robber, he has been called a thief, but the\nevidence shows he is an honest man. Not one single thing alleged in\nthat indictment has been substantiated against him, and I defy any human\nbeing to point to the evidence that does it. Now think of it. All this\ncharge has been made against that man upon that evidence; no other\nevidence; not another line so far as the indictment is concerned.\nWhat is outside of the indictment? That he wrote two letters, taking\npossession of routes that had been turned over to him as security, which\nhe had a right to do. What else? That he got up some petitions, or had\nthem gotten up, in the State of Oregon. The man who got them up was\nbrought here as a witness. I believe his name was Wilcox. He swore that\neverything he did was honest, and that every name to every petition was\ngenuine. Now let us see. Another point has been made upon S. W. Dorsey.\nI want to read it to you. This is from the argument of Mr. Merrick:\n\n\"Peck, John W. Dorsey and Miner, or some other one of Stephen W.\nDorsey's friends. Who was making up this conspiracy? Who was gathering\naround him arms and hands to reach into the public Treasury for his\nbenefit, while his own were apparently unoccupied with pelf? S. W.\nDorsey. 'My brother and brother-in-law will go in, and Miner, or if not\nMiner, then one of my other friends.'\"\n\nThis is quoted.\n\n\"One-of S. W. Dorsey's other facile friends. That was in 1877,\ngentlemen, the morning of this day of fraud and criminality. In that\nroom where Boone and S. W. Dorsey sat arose the sun, and there was\nmarked his course. There was fashioned the duration and the business of\nthat criminal day.\"\n\nNow, let us see what the evidence is. The object of that speech is to\nconvince you that Dorsey said to Boone. \"I will either put in Miner or\none of my friends.\" Do you know that there is not money enough in the\nTreasury of the United States, there is not gold and silver enough in\nthe veins of this earth to tempt me to misstate evidence when a man is\non trial for his liberty or his life. Let us see what the evidence is:\n\n\"Q. Who else besides his brother-in-law and brother?—A. I could not say\npositively whether Mr. Miner's name was mentioned. He either mentioned\nhis name or a friend of his from Sandusky, Ohio.\"\n\nNow, I submit to you, gentlemen, what does that mean? Mr. Boone, in\neffect, says, \"He told me either it was Miner or a friend of his from\nSandusky. That is, he either described Miner by his name or he described\nhim as a friend of his from Sandusky.\" Then there was objection made,\nand after that comes another question:\n\n\"Q. Was anything said of Mr. Miner's coming to Washington?—A. I could\nnot say whether his name was mentioned or a friend of his; a personal\nfriend.\"\n\nWhat does that mean? Boone cannot remember Whether he called him Miner\nor called him a friend of his from Sandusky. What else?\n\n\"A. There was to be nobody that I understood outside of the parties I\nspoke of.\n\n\"Q. You and John W. Dorsey and Peck?—A. And Mr. Miner.\"\n\n\"Q. Or one of his friends?—A. Or Mr. Dorsey's friend. The arrangement\nmade was not made until they came here. It was only to prepare the\nnecessary blanks and papers pending their coming because the time was\ngetting short, and it was necessary to get the information to bid upon.\nNothing was said about any interest at all until after they came here,\nand then there was a partnership entered into.\"\n\nNow, I ask you, gentlemen of the jury, what is the meaning of that\ntestimony. The meaning is simply this: Boone could not remember whether\nhe mentioned Miner's name or called him a friend of his from Sandusky,\nyet the object has been to make you believe that the testimony was\nthat S. W. Dorsey said, \"I will either have Miner or I will get another\nfriend of mine.\" Dorsey had no interest in it, not the interest of one\ncent, not the interest of one dollar, directly, indirectly, or any other\nway. He had no interest in having a friend of his. All that Mr. Boone\nsaid is that Mr. Dorsey either called this man Miner or described him as\na friend from Sandusky, Ohio. The evidence is that Mr. Miner did come,\nand the evidence is that the arrangement was made. What else is there\noutside in this case against Stephen W. Dorsey? I ask you to put your\nhand upon it. I ask anybody to point it out. What other suspicious\ncircumstance is there? I want you to understand that all the suspicious\ncircumstances in the world are good for nothing. All the evidence on\nearth tending to show a thing does not show it. Anything that only tends\nthat way never gets there; never.\n\nYou cannot infer a conspiracy. Unless you have the facts proved, you\ncannot infer the fact and then infer the conspiracy. There has not\nbeen—I want to say it again—there has not been a solitary fraudulent\nact proven against Stephen W. Dorsey. They have not done it and they\ncannot do it. All I ask of you, gentlemen, is to find a verdict in\naccordance with this testimony.\n\nMay it please the Court, it appears from the evidence in this case, I\nthink the evidence of Mr. James, that Stephen W. Dorsey at one time,\nabout sixteen or seventeen months ago, made a statement in writing of\nhis connection with all these routes. That statement he gave to the\nAttorney-General and the Postmaster-General. There is no evidence of\nwhat was in that statement. The only evidence is that such a statement\nwas made, embracing his connection with these routes.\n\nThe Court. You offered to prove that.\n\nMr. Ingersoll. Oh, no. The reason it was established was I wanted to\nshow whether that statement was made before or after Mr. Rerdell made a\nstatement. The fact simply appears that he made a statement.\n\nThe Court. You offered to prove the fact.\n\nMr. Ingersoll. I do not remember offering to prove it. I proved it.\n\nThe Court. If it was not proven—Mr. Ingersoll. [Interposing.] I did\nprove it as a fact.\n\nThe Court. That he made a statement.\n\nMr. Ingersoll. Yes, sir. Right here it is [taking up the record].\n\nThe Court. Oh, well, you cannot base any remarks upon that.\n\nMr. Ingersoll. Let me read what the evidence says:\n\n\"Q. Was this statement of Rerdell's made to you after you had received\nthe statements of S. W. Dorsey as to his connection with all these\nentire routes or with this entire business?\n\n\"The Witness. To what statement do you refer?\n\n\"Mr. Ingersoll. To the statement that was made in writing and given to\nyou and the attorney-general by ex-Senator S. W. Dorsey?\n\n\"A. It must have been after that.\n\n\"Q. You mean Rerdell's statement was after that?—A. Yes, sir.\n\n\"Q. Did you ever see that statement made by Senator Dorsey?—A. It was\nreferred to the attorney-general.\n\n\"Q. Did you ever see it?—A. Certainly.\n\n\"Q. Do you know where it now is?—A. I do not.\"\n\nI am not going to say a word about what was in that statement, but the\nCourt will see that that has a direct bearing upon their action with\nregard to Rerdell's statement whether it was made before or after, which\nI will endeavor to show, and the only point that I wanted to make upon\nthat statement now, was that the Government has not endeavored to prove\nthat anything in that statement was inconsistent with the evidence in\nthis case. I am not going to say what the statement was; simply that he\nmade a statement, and it follows as naturally as night follows morning,\nand morning follows night, that if that statement had been incorrect it\nwould have been brought forward. That is all.\n\nThe Court. For anything the Court knows it might have been a confession.\nWe do not know anything about it.\n\nMr. Ingersoll. If it had been a confession it would have been here. That\nis the point I make. If there had been in that anything inconsistent\nwith the testimony it would have been here.\n\nThe Court. Probably it would.\n\nMr. Ingersoll. Yes, sir; that is my point.\n\nThe Court. When a man is charged with crime no man has a right to say\nthat because he did not deny it that is evidence of his guilt.\n\nMr. Ingersoll. No, sir; and no man has a right to say that because he\ndid deny it is evidence of his innocence.\n\nThe Court. It is not evidence either way.\n\nMr. Ingersoll. It is not evidence either way, and if I am charged with\na crime and I make a written statement to the Government of my entire\nconnection with that thing, and they go on and examine it for one year\nand finally finish the trial without showing that that statement was\nincorrect, it is a moral demonstration that my statement agreed with the\ntestimony.\n\nThe Court. On the principle, I suppose, of an account rendered and no\nobjection made?\n\nMr. Ingersoll. Good. That is a good idea.\n\nThe Court. I do not see anything in that.\n\nMr. Ingersoll. I see a great deal in it, and it is a question whether\nthe jury can see anything in it.\n\nThe Court. It is a question whether the Court too——\n\nMr. Ingersoll. [Interposing.] Very well.\n\nThe Court. [Continuing.] Whether the Court is going to allow an argument\nto be based upon a mere vacuum—wind, nothing.\n\nMr. Ingersoll. That would seem to be stealing the foundation of this\ncase. [Laughter, and cries of \"Silence\" from the bailiffs.] We will\nconsider the argument made to the Court, and not to the jury.\n\nThe next question, then, is what is the corpus delicti; that is, in\na case of conspiracy? I do not believe the combination to be the corpus\ndelicti—the mere association. It may be the corpus, but it is not the\ndelicti, and under the law there must not only be a conspiracy, as I\nunderstand it, but also an overt act done by one of the conspirators to\naccomplish the object of the conspiracy. So that the conspiracy with the\nfraudulent purpose and the overt act constitute the corpus delicti. Now,\nI read from Best on Presumptions, page 279:\n\n\"The corpus delicti, the body of an offence, is the fact of its actually\nhaving been committed.\"\n\nThe dead body in a murder case is not the corpus delicti. It is the\ncorpse and nothing more. It must be followed by evidence that murder was\ncommitted.\n\n\"The corpus delicti is the body, substance or foundation of the\noffence. It is the substantial and fundamental fact of its having been\ncommitted.\"\n\n1 Haggard, 105, opinion by Lord Stowell.\n\nI now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems\nthat the defendants in this case were commissioners of charities of the\ncounty of Kings, and they were indicted for conspiring together to buy\nsupplies contrary to law and without duly advertising. Their defence\nwas that they were not aware that such a law existed; that they were\nignorant of the law. The court below thought that made no difference.\nThe court above said before they could be guilty of this crime there\nmust be the intention to commit the crime, and this language is used:\n\n\"The agreement must have been entered into with an evil purpose,\nas distinguished from a purpose simply to do the act prohibited in\nignorance of the prohibition. This is implied in the meaning of the word\nconspiracy. Mere concert is not conspiracy.\"\n\nSo combination is not conspiracy; partnership is not conspiracy; neither\nis it the corpus delicti of conspiracy. There must be the evil intent;\nthere must be the wicked conspiracy not only, but there must be one at\nleast overt act done in pursuance of it before the corpus delicti can be\nestablished.\n\n\"The actual criminal intention belongs to the definition of the offence\nand must be shown to justify a conviction for conspiracy. The offence\noriginally consisted in a combination to convict an innocent person by\nperversion of the law. It has since been greatly extended, but I am of\nopinion that proof that the defendants agreed to do an act prohibited\nby statute, followed by overt acts in furtherance of the agreed purpose,\ndid not conclusively establish that they were guilty of the crime of\nconspiracy.\"\n\nIt would be hard to find a stronger case, in my judgment, than that.\nAlthough they agreed to violate a statute—they agreed to buy supplies\nwithout complying with the statute by advertising—they claimed they\nwere in ignorance of it, and the question was whether they were guilty\nof conspiracy, having no intent to do an illegal act, and the court of\nappeals decided that that verdict could not stand.\n\nThe Court. Because the court below had instructed the jury that whether\nwhat they did was done in ignorance or with knowledge it made no\ndifference.\n\nMr. Ingersoll. Certainly; it made no difference. Everybody is supposed\nto know the law.\n\nNow, the next point is, and great weight has been put upon it,\ngentlemen, that concurrence of action establishes conspiracy; that if\none does a part and another another part and finally the culmination\ncomes, that is absolute evidence, or in other words, an inference.\nAdmitting, now, that they were perfectly honest, if any of these parties\nmade a bid, that bid had to be accepted by the Government. They had to\nact together. The department and the man had to act together to have the\nbid accepted. The department and the man had to act together to make the\ncontract. The department and the man had to act together to get the pay,\nand no matter how perfectly honest the transaction was they had to act\ntogether from the first step to the payment of the last dollar.\n\nNow, in a business where they do have to act together, where one\nnecessarily does one thing, and the other necessarily does another, the\nfact that that happens does not even tend to prove that there is any\nfraud. Upon this concurrence of action I refer to the case of Metcalfe\nagainst O'Connor and wife, in Little's Select Cases, 497. One of the\nmen confessed that a large party went to the house where there was a\ndisturbance and where they tried to take by force a boy from the custody\nof a man and woman. Now, the fact that these men did go the house, the\nfact that they were there at the time this happened, and the fact that\none of the conspirators or one of the trespassers had confessed that he\nwent there and that the other went with him for that purpose, the\ncourt decides that you cannot infer the purpose of these men from the\nstatement of the other; neither can you infer it from the fact that\nthey were there. You must find out for what purpose they were there\nby ascertaining what they did and when they were there, and that\nconcurrence in actions shows nothing.\n\nThe Court. Did you not say that the decision there was that the\nconspiracy might be inferred from the combination to do the act?\n\nMr. Ingersoll. I will just read it and then there will be no guessing\nabout it:\n\n\"This is a writ of error prosecuted by the defendants to a judgment\nfor the plaintiffs in an action of trespass for an assault and battery\nalleged to have been committed upon the plaintiff Ann, the wife of the\nother plaintiff.\n\n\"We are of the opinion that the circuit court erred in refusing to\ninstruct the jury, at the instance of the defendants, to find for all\nof them, except the defendant Metcalfe. He is the only one of the\ndefendants proven to have touched the defendant Ann, and against the\nother defendants there is no evidence conducing in the slightest degree\nto prove them guilty of committing any assault or battery upon her, or\nof any intention to do so.\n\n\"It is true that it was proved that the other defendants confessed that\nthey were at the house of Connor when the assault and battery charged\nis alleged to have been committed, and it was also proved that Metcalfe\nconfessed that he and the other defendants had gone there for the\npurpose of taking from Connor by force an idiot boy whom he had in his\ncustody. But the circumstances of the other defendants being at Connor's\nhouse, there is no evidence they were there for any unlawful purpose;\nnor can it of itself be sufficient to render them responsible for\nany act done by Metcalfe in which they did not participate; and the\nconfessions of Metcalfe are certainly not legitimate evidence against\nthe others to prove the unlawful purpose with which they went to\nConnor's, and thereby to charge them with the consequences of his act.\"\n\nNow, to all appearances, they went there together; to all appearances,\nthey went there for the one purpose, and Metcalfe, the man who really\ndid the mischief, confessed that they all went there for the one\npurpose, but the court held that that was not sufficient.\n\n\"Where several agree or conspire to commit a trespass, or for any other\nunlawful purpose, they will, no doubt, all be liable for the act of\nany one of them done in execution of the unlawful purpose; and when\nthe agreement or conspiracy is first proved by other evidence, the\nconfession of one of them will be admissible evidence against the\nothers. But it is well settled that the confessions of one person cannot\nbe admitted against the others to prove that they had conspired with him\nfor an unlawful purpose.\"\n\nNow, the next evidence that I wish to allude to, gentlemen, is the\nevidence of Mr. Walsh, and I will only say a few words, because it has\nbeen examined and it has been ground to powder. Everything in this world\nis true in proportion that it agrees with human experience; and you can\nsafely say that everything is false or the probability is that it is\nfalse in proportion that it is not in accordance with human experience.\nOther things being equal, we act substantially alike.\n\nNow, when anything really happens everything else that ever happened\nwill fit it. You take a spar crystal, I do not care how far north you\nget it, and another spar crystal, no matter how far south you get it,\nand put them together and they will exactly fit each other—exactly. The\nslope is precisely the same. And it is so with facts. Every fact in this\nworld will fit every other fact—just exactly. Not a hair's difference.\nBut a lie will not fit anything but another lie made for the\npurpose—never. It never did. And finally, there has to come a place\nwhere this lie, or the lie made for the sake of it, has to join some\ntruth, and there is a bad joint always. And that is the only way to\nexamine testimony. Is it natural? Does it accord with what we know? Does\nit accord with our experience?\n\nNow, take the testimony of Mr. Walsh, and I find some improbabilities in\nit. Just let me read you a few:\n\n1. Bankers and brokers do not, as a rule, loan money without taking at\nleast a note. That is my experience. And the poorer this broker is,\nthe less money he has, the more security he wants. He not only wants an\nindorser but he would like to have a mortgage on your life, liberty, and\npursuit of happiness. That is the first improbability.\n\n2. Bankers and brokers do not, as a rule, take notes that bear no\ninterest, or in which the interest is not stated. People who live\non interest find it always to their interest to have the interest\nmentioned—always. I never got a cent of a banker that I did not pay\ninterest, and generally in advance.\n\n3. Bankers and brokers do not, as a rule, take notes payable on demand,\nbecause such notes are not negotiable.\n\n4. It is hardly probable that when a banker and broker holds the note\nof another for twelve thousand dollars—the note being unpaid—he would\nloan thirteen thousand five hundred dollars more, taking another note on\ndemand in which the rate of interest was not stated.\n\n5. It is still more improbable that the same banker and broker, with\na note for twelve thousand dollars and one for thirteen thousand five\nhundred dollars, being unpaid, would loan five thousand four hundred\ndollars more without taking any note or asking any security.\n\n6. When such banker and broker called upon his debtor for a settlement,\nand exhibited the two notes, and thereupon his debtor took the two notes\nand put them in his pocket, it is highly improbable that the banker and\nbroker would submit to such treatment.\n\n7. It is improbable that such banker and broker would afterwards\ncommence suit to recover the money, without mentioning to his attorney,\nin fact, that the notes had been taken away from him.\n\n8. It is also improbable that the banker and broker would commence\nanother suit for the same subject-matter and still keep the fact\nthat the notes had been taken from him by violence, a secret from his\nattorney.\n\n9. If Mr. Brady took the notes by force, it is improbable that he\nwould immediately put himself in the power of the man he had robbed, by\nstating to him that he, Brady, was in the habit of taking bribes.\n\n10. It is impossible that Mr. Brady could, in fact, have done this,\nwhich amounted to saying this: \"I have taken twenty-five thousand five\nhundred dollars from you; of course, you are my enemy; of course, you\nwill endeavor to be revenged, and I now point out the way in which you\ncan have your revenge. I am Second Assistant Postmaster-General; I award\ncontracts, increases, and expedition, and upon these I receive twenty\nper cent, as a bribe. I am a bribe-taker; I am a thief; make the most\nof it. I give you these tacts in order that I may put a weapon in your\nhands with which you can obtain your revenge.\"\n\nThere are also other improbabilities connected with this testimony.\n\nIf Mr. Brady was receiving twenty per cent, of all increases and\nexpeditions, amounting to hundreds of thousands of dollars per annum, it\nis not easy to see why he would be borrowing money from Mr. Walsh.\n\nNow, if that story is true, boil it down and it is this, because if he\ngot this twenty per cent, from everybody he had oceans of money—boil it\nall down and it is this: A rich man borrows without necessity and a poor\nbanker loans without security. These twin improbabilities would breed\nsuspicion in credulity itself. No man ever believed that story, no\nman ever will. There is something wrong about it somewhere, unnatural,\nimprobable, and it is for you to say, gentlemen, whether it is true\nor not, not for me. What is the effect of that testimony? So far as my\nclients are concerned it is admitted, I believe, by the prosecution—it\nwas so stated, I believe, by his Honor from the bench—that it could\nnot by any possibility affect any defendant except Mr. Brady, and the\nquestion now is, can it even affect him? I call the attention of the\nCourt to 40th N. Y., page 228. I give the page from which I read:\n\n\"To make such admissions or declarations competent evidence, it must\nstand as a fact in the cause, admitted or proved, that the assignor or\nassignees were in a conspiracy to defraud the creditors. If that fact\nexist, then the acts and declarations of either, made in execution of\nthe common purpose, and in aid of its fulfillment, are competent against\neither of them. The principle of its admissibility assumes that fact.\"\n\nThat the conspiracy has been established.\n\n\"In case of conspiracy, where the combination is proved, the acts and\ndeclarations of the conspirators are not received as evidence of that\nfact, but to show what was done, the means employed, the particular\ndesign in respect to the parties to be affected or wronged, and\ngenerally those details which, assuming the combination and the illegal\npurpose, unfold its extent, scope, and influence either upon the public\nor the individuals who suffer from the wrong, or show the execution of\nthe illegal design. But when the issue is simply and only, was there\na conspiracy to defraud, these declarations do not become evidence to\nestablish it.\"\n\n\"So far then, as the admission of the evidence in this case, of\ndeclarations, subsequent to the assignment, is sought to be sustained as\nevidence of the common fraud, on the ground of conspiracy, the argument\nwholly fails. A conspiracy cannot be proved against three by evidence\nthat one admitted it, nor against assignees by proof that the assignor\nadmitted it; it is a fact that must be proved by evidence, the\ncompetency of which does not depend upon an assumption that it exists.\"\n\nSo to the same point is the case of Cowles against Coe, 21st\nConnecticut, 220. I will read that portion of the syllabus that conveys\nthe idea:\n\n\"To prove the alleged conspiracy between the defendant and G., the\nplaintiff offered the deposition of R., stating declarations made by G.\nto R., while G. was engaged in purchasing goods of him, on credit, and\nrelative to G.'s responsibility and means of obtaining money through the\ndefendant's aid; these declarations were objected to, not on the ground\nthat the conspiracy had not been sufficiently proved, but because the\ndefendant was not present when they were made; it was held that they\nwere admissible, within the rule regarding declarations made by a\nconspirator in furtherance of the common object.\"\n\nNow, let us see what the court says about it:\n\n\"The remaining question is, whether the declarations of Gale to Edmund\nCurtiss and William Ives were properly received. These declarations were\nnot offered as in any way tending to prove the combination claimed. The\nmotion shows that they were offered and received after the plaintiff's\nevidence on that subject had been introduced. Had they been admitted for\nthat purpose, or if, under the circumstances, they could have had any\ninfluence with the jury on that point, we should feel bound to advise a\nnew trial on this account.\"\n\nAll that I have said in respect to Walsh applies to what is known\nor what is called the confession of Rerdell. It was admitted by the\nprosecution that not one word said by him could bind any other defendant\nin the case. But, gentlemen, is there enough even to bind him? Did\nhe confess that he was guilty of the conspiracy set forth in this\nindictment? And I want to make one other point. In this case there\nmust be not only a conspiracy, but an overt act, and no man can confess\nhimself into it without confessing that he was a conspirator, and\nthat he knew that an overt act was to be done; because it takes that\nconspiracy and the overt act to 'make the offence. What overt act did\nRerdell confess that he was guilty of—what overt act charged in this\nindictment? One. Filing a subcontract; and by no earthly method, by no\nearthly reasoning can you come to the conclusion that that could carry\nit into conspiracy. He must have confessed that he was guilty according\nto the scheme, according to the indictment set forth, and in no other\nway. That indictment says that the money was to be divided, that it\nwas for the mutual benefit of certain persons. Unless that has been\nsubstantiated this case falls. According to the case of the King against\nPomall the scheme of the indictment must be established, otherwise the\ncase goes. In that case they charged it was one way, and they proved it\nwas that way, and one of the defendants did not understand it that way\nand he was acquitted. Now, suppose they had not proved the scheme as\nthey charged it, then all would have been acquitted, and unless the jury\nbelieve beyond a reasonable doubt, from the evidence that the scheme\nset forth in the indictment here was the scheme, then they must find\neverybody not guilty. There is no other way.\n\nWhat is the next argument? The next argument is extravagance. What\nis extravagance? If I pay more for a thing than it is worth that is\nextravagance. If I buy a thing that I do not want, that is extravagance,\nand if I do this knowing it to be wrong, if I do this understanding that\nI am to have a part of the price, that is bribery, that is corruption,\nthat is rascality. Nobody disputes that. How do you know that a thing\nis extravagant unless you know the price of it? For instance, an army\nofficer is charged with extravagance in buying corn upon the plains at\nfive dollars a bushel. How do you prove it is extravagance? You must\nprove that he could have obtained it for less or that there was a\ncheaper substitute that he should have obtained. How are you going to\nprove that too much was paid for carrying the mail upon these routes?\nOnly by showing that it could have been carried for less. What witness\nwas before this jury fixing the price? How are we to establish the fact\nthat it was extravagance? We must show that it could have been obtained\nfor less money. What witness came here and swore that he would carry it\nfor less? And would it be fair to have the entire case decided upon one\nroute when it is in evidence that my clients had thirty per cent, of one\nhundred and twenty-six routes? Would it be fair to decide the question\nwhether they had made or lost money on one route? Your experience tells\nyou that upon one route they might make a large sum of money and upon\nseveral other routes lose largely. A man who has bid for one hundred\nroutes takes into view the average and says \"upon some I shall lose\nand upon others I shall make.\" How are you to find that this was\nextravagance unless you know what it could have been done for? They may\nsay that they subcontracted some of the routes for much less. Yes; but\nwhat did they do with the rest of them? I might take a contract to build\na dozen houses in this city, and on the first house make ten thousand\ndollars clear, and on the balance I might lose twenty-five thousand\ndollars. You have a right to take these things and to average them. When\na man takes a contract he takes into consideration the chances that he\nmust run in that new and wild country. It takes work to carry this mail.\nYou ought to be there sometimes in the winter when the wind comes down\nwith an unbroken sweep of three or four thousand miles, and then tell me\nwhat you think it is worth to carry the mail. All these things must be\ntaken into consideration. Another thing: You must remember that every\none of these routes was established by Congress. Congress first said,\n\"Here shall be a route; here the mail shall be carried.\" It was the\nbusiness then, I believe, of the First Assistant Postmaster-General to\nname the offices, and the Second Assistant to put on the service. Take\nthat into consideration. Every one of these routes was established by\nCongress. Take another thing into consideration: That the increase of\nservice and expedition was asked for, petitioned for, begged for, and\nurged by the members of both houses of Congress, and according to that\nbook, which I believe is in evidence, a majority of both houses\nof Congress asked, recommended, and urged increase of service and\nexpedition upon some of the nineteen routes in this indictment.\n\nThe Court. What evidence do you refer to?\n\nMr. Ingersoll. I refer to the Star Route investigation in Congress.\n\nThe Court. That record is not in evidence.\n\nMr. Ingersoll. I thought that was in evidence.\n\nThe Court. No, sir.\n\nMr. Ingersoll. It was used as if it was in evidence. I saw people\nreading from it, and supposed it was in evidence.\n\nThe Court. It is not in evidence.\n\nMr. Ingersoll. Well, we will leave that out. Now, upon these nineteen\nroutes—this is in evidence—increase and expedition of service were\nrecommended by such Senators as Booth, Farley, Slater, Grover, Chaffee,\nChilcott, Saunders, and by the present Secretary of the Interior, Henry\nM. Teller, and by such members of Congress as Whiteaker, Page, Luttrell,\nPacheco, Berry, Belford, Bingham, chairman of the postoffice committee,\nby Stevens of Arizona, a delegate, and by Maginnis of Montana, and\nKidder of Dakota, by Generals Sherman, Terry, Miles, Hatch and Wilcox\nIn addition to these, recommendations were made and read by judges of\ncourts, by district attorneys, by governors of Territories, by governors\nof States, and by members of State Legislatures, by colonels, by majors,\nby captains, and by hundreds and hundreds of good, reputable, honest\ncitizens. They were the ones to decide as a matter of fact whether this\nincrease was or was not necessary.\n\nI believe in carrying the mails. I believe in the diffusion of\nintelligence. I believe the men in Colorado or Wyoming, or any other\nTerritory, that are engaged in digging gold or silver from the earth, or\nany other pursuits, have just as much right, in the language of Henry\nM. Teller, to their mail as any gentleman has to his in the city of New\nYork. We are a nation that believes in intelligence.\n\nWe believe in daily mail. That is about the only blessing we get from\nthe General Government, excepting the privilege of paying taxes. Free\nmail, substantially free, is a blessing.\n\nNow, there is another argument which has been used: Productiveness; but\nthat has been so perfectly answered that I allude to it only for one\npurpose. How would the attorneys for the Government in this case like to\nhave their fees settled upon that basis? Productiveness. Is it possible\nthat this Government cannot afford to carry the mail? Is it possible\nthat the pioneer can get beyond the Government? Is is possible that we\nare not willing to carry letters and papers to the men that make new\nTerritories and new States and put new stars upon our flag? I have heard\nall I wish on the subject of productiveness.\n\nNow, gentlemen, that is all the evidence there is in this case, that I\nhave heard. What kind of evidence must we have in a conspiracy case? You\nhave been told during this trial that it is very hard to get evidence in\na conspiracy case, and therefore you must be economical enough to put up\nwith a little. They tell you that this is a very peculiar offence,\nand people are very secret about it. Well, they are secret about most\noffences. Very few people steal in public. Very few commit offences who\nexpect to be discovered. I know of no difference between this offence\nand any other. You have got to prove it. No matter how hard it is\nto prove you must prove it. It is harder to convict a man without\ntestimony, or should be, than to produce testimony to prove it if he is\nguilty. All these crimes, of course, are committed in secret. That is\nalways the way. But you must prove them. There is no pretence here that\nthere is any direct evidence, any evidence of a meeting, any evidence of\nagreement, any evidence of an understanding. It is all circumstantial. I\nlay down these two propositions:\n\n\"The hypothesis of guilt must flow naturally from the facts proved, and\nbe consistent, not with some of the facts, not with a majority of the\nfacts, but with every fact.\"\n\nLet me read that again:\n\n\"_The hypothesis of guilt must flow naturally from the facts proved,\nand must be consistent with them; not some of them, not the majority of\nthem, but all of them_.\"\n\nThe second proposition is:\n\n\"The evidence must be such as to exclude every single reasonable\nhypothesis except that of the guilt of the defendant. In other words,\nall the facts proved must be consistent with and point to the guilt of\nthe defendants not only, but every fact must be inconsistent with their\ninnocence.\"\n\nThat is the law, and has been since man spoke Anglo-Saxon. Let me read\nyou that last proposition again. I like to read it:\n\n\"The evidence must be such as to exclude every reasonable hypothesis\nexcept that of the guilt of the defendants. In other words, all the\nfacts proved must be consistent with and point to the guilt of the\ndefendants not only, but they must be inconsistent, and every fact must\nbe inconsistent with their innocence.\"\n\nNow, just apply that law to the case of John W. Dorsey. Apply that law\nto the case of Stephen W. Dorsey. Let me read further. I read now from 1\nBishop's Criminal Procedure, paragraph 1077.\n\n\"It matters not how clearly the circumstances point to guilt, still, if\nthey are reasonably explainable on a theory which excludes guilt, they\ncannot satisfy the jury beyond reasonable doubt that the defendants are\nguilty, and hence they will be insufficient.\"\n\nJust apply that to the case of Stephen W. Dorsey and John W. Dorsey.\nI would be willing that this jury should render a verdict with that\nchanged. Change it. You are to find guilty if you have the slightest\ndoubt of innocence. Even under that rule you could not find a verdict of\nguilty against John W. or Stephen W. Dorsey. If the rule were that you\nare to find guilty if you have a doubt as to innocence you could not\ndo it; how much less when the rule is that you must have no doubt as to\ntheir guilt. The proposition is preposterous and I will not insult your\nintelligence by arguing it any further.\n\nNow, then, there is another thing I want to keep before you. When a man\nhas a little suspicion in his mind he tortures everything; he tortures\nthe most innocent actions into the evidence of crime. Suspicion is a\nkind of intellectual dye that colors every thought that comes in contact\nwith it. I remember I once had a conversation with Surgeon-General\nHammond, in which he went on to state that he thought many people were\nconfined in asylums, charged with insanity, who were perfectly sane. I\nasked him how he accounted for it. Said he, \"Physicians are sent for\nto examine the man, and they are told before they get to him that he\nis crazy; therefore, the moment they look upon him they are hunting for\ninsane acts and not sane acts; they are looking not to see how naturally\nhe acts, but how unnaturally he acts.\" They are poisoned with the\nsuspicion that he is insane, and if he coughs twice, or if he gets up\nand walks about uneasily—his mind is a little unsettled; something\nwrong! If he suddenly gets angry—sure thing! When a man believes\nhimself to be or knows himself to be sane, and is charged with insanity,\nthe very warmth, the very heat of his denial will convince thousands of\npeople that he is insane. He suddenly finds himself insecure, and the\nvery insecurity that he feels makes him act strangely. He finds in a\nmoment that explanation only complicates. He finds that his denial is\nworthless; that his friends are suspicious, and that under pretence of\nhis own good he is to be seized and incarcerated. Many a man as sane\nas you or I has under such circumstances gone to madness. It is a hard\nthing to explain. The more you talk about it the more outsiders having\na suspicion are convinced that you are insane. It is much the same way\nwhen a man is charged with crime. It is heralded through all the papers,\n\"this man is a robber and a thief.\" Why do they put it in the papers?\nPut anything good in a paper about Mr. Smith, and Mr. Smith is the only\nman who will buy it. Put in something bad about Mr. Smith and they will\nhave to run the press nights to supply his neighbors with copies. The\nbad sells. The good does not. Then you must remember another thing: That\nthese papers are large; some of them several hundred columns, for all I\nknow—sixty or a hundred. Just imagine the pains it would take and\nthe money it would cost to get facts enough to fill a paper like that.\nEconomy will not permit of it. They publish what they imagine they can\nsell. As a rule, people would rather heaf-something bad than something\ngood. It is a splendid certificate to our race that rascality is still\nconsidered news. If they only put in honest actions as news it would be\na certificate that honesty was rare; but as long as they publish the bad\nas news it is a certificate that the majority of mankind is still good.\n\nNow, to be charged with a crime and to be suddenly deserted by your\nfriends, and to know that you are absolutely innocent, is almost enough\nto drive the sanest man mad. I want you to think what these defendants\nhave suffered in these long months. If the men who started this\nprosecution, if the men who originally poisoned the press of the\ncountry, feel that they have been rewarded simply because innocent\nmen have suffered agony, let them so feel. I do not envy them their\nfeelings.\n\nThere is another thing, gentlemen: The prosecution have endeavored to\nterrorize this jury. The effort has been deliberately made to terrorize\nyou and every one of you. It was plainly intimated by Mr. Ker that this\njury had been touched, and that if you failed to convict, you would be\nsuspected of having been bribed. That was an effort to terrorize\nyou, and the foundation of that argument was a belief in your moral\ncowardice. No man would have made it to you unless he believed at heart\nyou were cowards. What does that argument mean? I cannot say whether you\nwill be suspected or not; but, in my opinion, a juror in the discharge\nof his duty has no right to think of any consequence personal to\nhimself. That is the beauty of doing right. You need not think of\nanything else. The future will take care of itself. I do not agree with\nthe suggestion that it is better that you should be applauded for a\ncrime than blamed for a virtue. Suppose you should gain the applause of\nthe whole United States by giving a false verdict; how would the echo\nof that applause strike your heart? I do not believe that it is wiser\nto preserve the appearance of being honest than to be honest with the\nappearance against you. I would rather be absolutely honest, and have\neverybody in the world think I was dishonest, than to be dishonest and\nhave the whole world believe in my honesty. You see you have got to stay\nwith yourself all the time. You have to be your own company, and to be\ncompelled to know that your company is dishonest, that your company is\ninfamous, is not pleasant. I would rather know I was honest and have\nthe whole world put upon the forehead of my reputation the brand of\nrascality.\n\nYou were also told that the people generally have anticipated your\nverdict.\n\nThat is simply an effort to terrorize you, so that you will say, \"If the\npeople think that way, of course we must think that way. No matter about\nthe evidence. No matter if we have sworn to do justice. We will all try\nand be popular.\" You were told in effect that the people were expecting\na conviction, and the only inference is that you ought not to disappoint\nthe public, and that it is your duty to piece and patch the testimony\nand violate your oath, rather than to disappoint the general\nexpectation. Mr. Merrick told you you were trying these defendants,\nbut that the people of the whole country were trying you. What was the\nobject of that statement? Simply to terrorize this jury. What was the\nbasis of that statement? Why, that not one of you have got the pluck to\ndo right. It was not a compliment, gentlemen. It was intended for one,\nno doubt, but when you see where it was born, it becomes an insult. I\ndo not believe you are going to care what the people say, or whether the\npeople expect a verdict of guilty, or not. You have been told that they\ndo. I might with equal propriety tell you that they do not. I might with\nequal propriety say there is not a man in this court-house who expects a\nverdict of guilty. With equal propriety I might say, and will say, that\nthere is not a man on this jury who expects there will be a verdict of\nguilty. But what has that to do with us?\n\nTry this case according to the evidence; and if you know that every man,\nwoman, and child in the United States want an acquittal, and you are\nsatisfied of the guilt of the defendants, it is your duty to find them\nguilty.\n\nIf I were on the jury I would, in the language of the greatest man that\never trod this earth—\n\n  Strip myself to death, as to a bed\n  That longing have been sick for, before I would give a false verdict.\n\nAgain, Mr. Merrick said, after having stated in effect that a majority\nof the people were convinced of the guilt of the defendants, that the\nmajority of the men of the United States do not often think wrong. What\nwas the object? To terrorize you. That is all. This verdict is to be\ncarried by universal suffrage; you are to let the men who are not on\noath decide for the men who are; to let the men who have not heard the\ntestimony give the verdict of the men who have heard the testimony. What\nelse? Again the same gentleman said:\n\n\"There is to be a verdict, a verdict of the people for or against us.\"\nWhat is the object? To frighten you. Let the people have their verdict;\nyou must have yours. If your verdict is founded on the evidence it will\nbe upheld by every honest man in the world who knows the evidence. You\nneed certainly to place very little value upon the opinion of those who\ndo not know the evidence. Mr. Merrick also suggested—I will hardly put\nit that way—he was brave enough to hope that you have not been bribed.\nBrave enough to hope that! All this, gentlemen, is done simply for the\npurpose of terrorizing you. I tell you to find a verdict according to\nthe evidence, no matter whom it hits, no matter whom it destroys, no\nmatter whom it kills. Save your own consciences alive. Your verdict\nmust rest on the evidence that has been introduced, and all else must\nbe thrown aside, disregarded, like forgotten dreams. All that you have\nread, all the press has printed, must find no lodgment in your brains.\nYou must regard them no more than you would the noises of animals made\nin sleep. You must stand by the testimony. You must stand by the law\nthat the Court gives you. That is all we ask. These articles in the\nnewspapers were not printed in the hope that justice might be done. They\nwere printed in the hope that you may be influenced to disregard the\nevidence, in the hope that finally slander might be justified by your\nverdict. Gentlemen, you ought to remember that in this case you are\nabsolutely supreme. You have nothing to do with the supposed desires\nof any men, or the supposed desires of any department, or the supposed\ndesires of any Government, or the supposed desires of any President, or\nthe supposed desires of the public. You have nothing to do with those\nthings. You have to do only with the evidence. Here all power is\npowerless except your own. Position is naught. If the defendants are\nguilty, and the evidence convinces you that they are, your verdict\nmust be in accordance with the evidence. You have no right to take into\nconsideration the consequences. When you are asked to find a verdict\ncontrary to the evidence, when you are asked to piece out the testimony\nwith your suspicions, then you are bound to take into consideration all\nthe consequences. When appeals are made to your prejudice and to your\nfears, then the consequences should rise like mountains before you. Then\nyou should think of the lives you are asked to wreck, of the homes your\nverdict would darken, of the hearts it would desolate, of the cheeks it\nwould wet with tears, and of the reputations it would blast and blacken,\nof the wives it would worse than widow, and of the children it would\nmore than orphan. When you are asked to find a false verdict think of\nthese consesequences. When you are asked to please the public think\nof these consequences. When you are asked to please the press think\nof these consequences. When you are asked to act from fear, hatred,\nprejudice, malice, or cowardice think then of these consequences. But\nwhenever you do right, consequences are nothing to you, because you are\nnot responsible for them. Whoever does right clothes himself in a suit\nof armor that the arrows of consequences can never penetrate. When you\ndo wrong you are responsible for all the consequences, to the last sigh\nand the last tear. If you do right nature is responsible. If you do\nwrong you are responsible.\n\nYou were told, too, by Mr. Merrick that you should have no sympathy;\nthat you should be like icicles; that you should be godlike. A cool\nconception of deity! In that connection this heartless language, as it\nappears to me, was used:\n\n\"Man when he undertakes to judge his brother-man undertakes to perform\nthe highest duty given to humanity.\"\n\nGood!\n\nHe should perform that duty without fear, without prejudice, without\nhatred, and without malice. He should perform that duty honestly,\ngrandly, nobly.\n\nI read on:\n\n\"Inclosed within the jury-box or on the bench he is separated from the\ngreat mass of mankind—\"\n\nThen you should not pay any attention to the opinion of the public. If\nyou are separated you should not be dominated by the press. If you are\nseparated you should not be disturbed by the desires of anybody. But he\ncontinues:\n    \"and sentiments of brotherhood die away.\"\n\nAbout that time you would be nice men:\n\n\"Standing above humanity and nearest God he looks down upon his fellow,\nand judges them without any reference to the sorrow his judgment may\nbring.\"\n\nThat is not my doctrine. The higher you get in the scale of being,\nthe grander, the nobler, and the tenderer you will become. Kindness is\nalways an evidence of greatness. Malice is the property of small souls.\nWhoever allows the feeling of brotherhood to die in his heart becomes a\nwild beast. You know it and so do I:\n    \"Not the king's crown, nor the deputed sword,\n    The marshal's truncheon, nor the judge's robe,\n    Become them with one-half so good a grace as mercy does.\"\n\nAnd yet the only mercy we ask in this case, gentlemen, is the mercy of\nan honest verdict. That is all.\n\nI appeal to you for my clients, because the evidence shows that they are\nhonest men. I appeal to you for my client, Stephen W. Dorsey, because\nthe evidence shows that he is a man, a man with an intellectual horizon\nand a mental sky, a man of genius, generous, and honest. And yet this\nprosecution, this Government, these attorneys representing the majesty\nof the Republic, representing the only real Republic that ever existed,\nhave asked you, gentlemen of the jury, not only to violate the law of\nthe land, they have asked you to violate the law of nature. They have\nmaligned mercy. They have laughed at mercy. They have trampled upon the\nholiest human ties, and they have even made light of the fact that a\nwife in this trial has sat by her husband's side. Think of it.\n\nThere is a painting in the Louvre, a painting of desolation, of despair\nand love. It represents the night of the crucifixion. The world is\nrepresented in shadow. The stars are dead, and yet in the darkness is\nseen a kneeling form. It is Mary Magdalene with loving lips and hands\npressed against the bleeding feet of Christ. The skies were never dark\nenough nor starless enough; the storm was never fierce enough nor wild\nenough, the quick bolts of heaven were never lurid enough, and arrows\nof slander never flew thick enough to drive a noble woman from her\nhusband's side. And so it is in all of human speech, the _holiest word\nis wife_.\n\nAnd now, gentlemen, I have examined this testimony, I have examined\nevery charge in the indictment against my clients not only, but every\ncharge made outside of the indictment. I have shown you that the\nindictment is one thing and the evidence another. I have shown you that\nnot one single charge has been substantiated against John W. Dorsey.\nI have demonstrated to you that not one solitary charge has been\nestablished against Stephen W. Dorsey—not one. I believe that I have\nshown to you that there is no foundation for a verdict of guilty against\nany defendant in this case.\n\nI have spoken now, gentlemen, the last words that will be spoken in\npublic for my clients, the last words that will be spoken in public\nfor any of these defendants, the last words that will be heard in\ntheir favor until I hear from the lips of this foreman two eloquent\nwords—Not Guilty. And now thanking the Court for many acts of\npersonal kindness, and you, gentlemen of the jury, for your almost\ninfinite patience, I leave my clients with all they have and with all\nthey love and with all who love them in your hands.\n"
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