Closing Address — First Star Route Trial
Washington, D.C., 1882.

by Robert G. Ingersoll
(1882)

From The Works of Robert G. Ingersoll (Dresden Edition, 1900–1902), Volume 10.
Source: https://thegreatagnostic.com/works/first-star-route-trial/
Public domain. CC0 / Public Domain Mark 1.0.

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• The most characteristic feature of the Star-route trial,
    which has been the central point of interest in our city for
    the past three months, was the marvelously powerful speech
    of Colonel Robert G. Ingersoll before the jury and the judge
    last week.
    People who knew this gifted gentleman only superficially,
    had supposed that he was merely superficial as a lawyer.
    While acknowledging his remarkable ability as an orator and
    his vast accomplishments as a speaker, they doubted the
    depth of his power. They heard him, and the doubt ceased. It
    can be said of Ingersoll, as was written of Castelar, that
    his eloquent utterances are as the finely-fashioned
    ornamental designs upon the Damascus blade—the blade cuts
    as keenly and the embellishments beautify without retarding
    its power.
    The following is Colonel Ingersoll's speech. Its swift
    incisiveness, keen and comprehensive logic and apt
    deductions from proper premises are only equaled by the
    grand manner of its delivery, and under the circumstances
    incidental to the case and the routes to be traversed, by
    its expedition of action and brevity.—Washington, D. C.,
    The Capital, Sept. 16th, 1882.

MAY it please the Court and gentlemen of the jury: Let us understand
each other at the very threshold. For one I am as much opposed to
official dishonesty as any man in this world. The taxes in this country
are paid by labor and by industry, and they should be collected and
disbursed by integrity. The man that is untrue to his official oath,
the man that is untrue to the position the people have honored him with,
ought to be punished. I have not one word to say in defence of any man
who I believe has robbed the Treasury of the United States. I want it
understood in the first place that we are not defending; that we are
not excusing; that we are not endeavoring to palliate in the slightest
degree dishonesty in any Government official. I will go still further:
I will not defend any citizen who has committed what I believe to be a
fraud upon the Treasury of this Government. Let us understand each other
at the commencement.

You have been told that we are a demoralized people; that the tide of
dishonesty is rising ready to sweep from one shore of our country to the
other. You have been appealed to to find innocent men guilty in order
that that tide may be successfully resisted. You have been told—and I
have heard the story a thousand times—that this country was demoralized
by what the gentlemen are pleased to call the war, and that owing to the
demoralization of the war it is necessary to make an example of somebody
that the country may take finally the road to honesty. We were in a
war lasting four years, but I take this occasion to deny that that war
demoralized the people of the United States. Whoever fights for the
right, or whoever fights for what he believes to be right, does not
demoralize himself. He ennobles himself. The war through which we passed
did not demoralize the people. It was not a demoralization; it was
a reformation. It was a period of moral enthusiasm, during which the
people of the United States became a thousand times grander and nobler
than they had ever been before. The effect of that war has been good,
and only good. We were not demoralized by it. When we broke the shackles
from four millions of men, women and children it did not demoralize us.
When we changed the hut of the slave into the castle of the freeman it
did not demoralize us. When we put the protecting arm of the law
about that hut and the flag of this nation above it, it was not very
demoralizing. When we stopped stealing babes the country did not
suddenly become corrupted. That war was the noblest affirmation of
humanity in the history of this world. We are a greater people, we are a
grander people, than we were before that war. That war repealed statutes
that had been made by robbery and theft. It made this country the home
of man. We were not demoralized.

There is another thing you have been told in order that you might find
somebody guilty. You have been told that our country is distinguished
among the nations of the world only for corruption. That is what you
have been told. I care not who said it first. It makes no difference to
me that it was quoted from a Republican Senator. I deny it. This country
is not distinguished for corruption. No true patriot believes it. This
country is distinguished for something else. The credit of the United
States is perfect. Its bonds are the highest in the world. Its promise
is absolute pure gold. Is that the result of being distinguished for
corruption? I have heard that nonsense, that intellectual rot all
my life, that the people used to be honest, but at present they are
exceedingly bad. It is the capital stock of every prosecuting lawyer;
but in it there is not one word of truth. Is this country distinguished
only for its corruption throughout Europe? No. It is respected by every
prince and by every king; it is loved by every peasant. Is it because we
have such a reputation for corruption that a million people from foreign
lands sought homes under our flag last year? Is corruption all we are
distinguished for? Is it because we are a nation of rascals that the
word America sheds light in every hut and in every tenement in Europe?
Is it because we are distinguished for corruption that that one word,
America, is the dawn of a career to every poor man in the Old World? I
always supposed that we were distinguished for free schools, for free
speech, for just laws; not for corruption. A country covered with
schoolhouses, where the children of the poor are put upon an exact
equality with those of the rich, is not distinguished for corruption.
And yet in the name of this universal corruption you are appealed to to
become also corrupt. This nation is substantially a hundred years old,
and to-day the assessed property of the United States is valued at
$50,000,000,000. Is that the result of corruption, or is it the
result of labor, of integrity and of virtue? I deny that my country is
distinguished for corruption. I assert that it rises above the other
nations distinguished for humanity as high as Chimborazo above the
plains. Never will I put a stain upon the forehead of my country in
order that I may win some case, and in order that I may consign some
honest man to the penitentiary. I stand here to deny that this is a
corrupt country. Let me say that the only tribute that I ever heard paid
to corruption was indirectly paid by Mr. Merrick himself. He told you
that official corruption destroyed the French Empire, and upon the ruins
of that empire arose the French Republic. He makes official corruption
the father of French liberty. If it works that way I hope they will
have it in every monarchy on the globe. Napoleon stole something besides
money; he stole liberty, and the French people finally got to that
condition of mind where they preferred to be trampled on by Germany
rather than to have their liberty devoured by Napoleon. From that
splendid sentiment sprang the French Republic. This country is the land
not of slavery, but of liberty, not of unpaid toil, but of successful
industry. There is not a poor man to-day in all Europe or a poor boy who
does not think about America. I recollect one time in Ireland that I
met with a little fellow about ten years old with a couple of rags for
pantaloons and a string for a suspender. I said, "My little man, what
are you going to do when you grow up?" "Going to America." It is the
dream of every peasant in Germany. He will go to America; not because
it is the land of corruption, but because it is the land of plenty, the
land of free schools, the land where humanity is respected.

There is another thing about this country. We have a king here, and that
king is the law. That king is the legally expressed will of a majority,
and that law is your sovereign and mine. You have no right to violate
one law to carry out another. We all stand equal before that law, and
the law must be upheld as an entirety, and in no other way. If in this
case you believe these defendants beyond a doubt to be guilty, it
is your duty to find them so, and you must find them so in order to
preserve your own respect. I do not agree with this prosecution in the
idea that the perpetuity of the Republic depends upon this verdict.
Decide as badly as you please, as horribly as you can, the Republic
will stand. The Republic will stand in spite of this verdict, and the
Republic will stand until people lose confidence in verdicts—until they
lose confidence in legal redress. When the time comes that we have no
confidence in courts and no confidence in juries, then the great temple
will lean to its fall, and not until then. As long as we can get redress
in the courts, as long as the laws shall be honestly administered,
as long as honesty and intelligence sit upon the bench, as long as
intelligence sits in the chairs of jurors, this country will stand, the
law will be enforced and the law will be respected. But so far as my
clients are concerned, everything they have, everything they love,
everything for which they hope, home, friends, wife, children, and that
priceless something called reputation, without which a man is simply
living clay, everything they have is at stake, and everything depends
upon your verdict. I want you to understand that everything depends
upon your decision, and yet my clients with their world at stake, home,
everything, everything, ask only at your hands the mercy of an honest
verdict according to the evidence and according to the law. That is all
we ask, and that we expect. By an honest verdict I mean a verdict in
accordance with the testimony and in accordance with the law, a verdict
that is a true and honest transcript of each juror's mind, a verdict
that is the honest result of this evidence. Whoever takes into
consideration the desire, or the supposed desire, of the outside public
is bribed. Whoever finds a verdict to please power, whoever violates
his conscience that he may be in accord, or in supposed accord, with
an administration or with the Government, is bribed. Whoever finds a
verdict that he may increase his own reputation is bribed. Whoever finds
a verdict for fear he will lose his reputation is bribed. Whoever bends
to the public judgment, whoever bows before the public press, is bribed.

Fear, prejudice, malice, and the love of approbation bribe a thousand
men where gold bribes one. An honest verdict is the result not of fear,
but of courage; not of prejudice, but of candor; not of malice, but of
kindness. Above all, it is the result of a love of justice. Allow me to
say right here that I believe every solitary man on this jury wishes to
give a verdict exactly in accordance with this testimony and exactly in
accordance with the law. Every man on this jury wishes to preserve his
own manhood. Every man on this jury wishes to give an honest verdict.
There are no words sufficiently base to describe a man who will
knowingly give a dishonest verdict. I believe every man upon this jury
to be absolutely honest in this case. The mind of every juror, like
the needle to the pole, should be governed simply by the evidence. That
needle is not disturbed by wind or wave, and the mind of the honest
juror never should be disturbed by clamor, nor by prejudice, nor by
suspicion. Your minds should not be affected by the fume, by the froth,
by the fiction, or by the fury of this prosecution. You should pay
attention simply to the evidence, and to use the language of one of my
clients, you should be governed by the frozen facts. That is all you
have any right to think of and all you have any right to examine.

Having now said thus much about the duties of jurors, let me say one
word about the duties of lawyers. I believe it is the duty of a lawyer,
no matter whether prosecuting or defending, to make the testimony as
clear as he can. If there is anything contradictory it is his business
if he possibly can to make it clear. If there is any question of law
about which there is a doubt, it is his right and it is his duty to
give to the court the result of his study and of his thoughts, for the
purpose of enlightening the court upon that particular branch of law.
No matter if he may believe the court understands it, if there is the
slightest fear that the court does not or has forgotten it, it is his
duty to bring the attention of the court to that law. It is not his duty
to abuse anybody. It is not my duty to abuse anybody. There is no logic
in abuse; not the slightest; and when a lawyer, under the pretext of
explaining the evidence to the jury, calls a defendant a thief and a
robber, he steps beyond the line of duty and, in my judgment, beyond the
line of his privilege. What light does that throw upon the case? In his
effort to explain the law to the court what cloud does it remove from
the intellectual horizon of his honor for the attorney to call the
defendant a robber, a thief, or a pickpocket? I shall in this case give
you what I believe to be the facts. I shall call your attention to the
testimony. I shall endeavor to throw what light I am capable of throwing
upon this entire question. I shall not deal in personalities. They are
beneath me. I shall not deal in epithets. Nobody worth convincing can be
convinced in that way. Now, let us see what the law is, and let us see
what our facts are. In the beginning of this dusty branch I shall ask
the pardon of every juror in advance for going over these facts once
again. You see they strike every man in a peculiar way. No two minds are
exactly alike. No pair of eyes distinguish exactly the same object
or the same peculiarities of the objects. This is an indictment under
section 5440 of the Revised Statutes, and there must not only be a
conspiracy to defraud, but there must be an overt act done in pursuance
of that conspiracy for the purpose of effecting the object of it. Now,
then, how must these overt acts be stated in this indictment? Is the
overt act a part of the crime, and must it, be described with the same
particularity that you describe the offence? Which of the overt acts set
out in this indictment is the overt act depended upon, together with
the act of conspiring, to make this offence? I hold, may it please your
Honor, that every overt act set out in the indictment must be proved
exactly as it is alleged, no matter whether the description was
necessary to be put in the indictment or not. No matter how foolish, how
unnecessary the description, it must be substantiated, and it must be
proven precisely as it is charged. No matter whether the particular
thing described is of importance or not, no matter how infinitely
unnecessary it was to speak of it, still, if it is a matter of
description, it must be proven precisely as it is charged. Upon that
subject I wish to call the attention of the Court to some authorities,
and it will take me but a few moments. I will call the attention of the
Court first to the case of the State against Noble, 15 Maine, 476. Here
a man was indicted for fraudulently and willfully taking from the river
and converting to his own use certain logs. These logs were described as
marked "W" with a cross, and "H" with another cross, and with a girdle.
Now, it seems that a part of this mark was not found, according to the
testimony upon the logs taken:

"The description of these logs in the indictment is the only way the
logs could be distinguished and could not be rejected as surplusage. It
has been settled that if a man be indicted for stealing a black horse,
and the evidence be that he stole a white one, he cannot be convicted.
The description of a log by the mark is more essential than that of
a horse by its color. If it was not necessary to describe the log so
particularly by the mark, yet so having stated it, there can be no
conviction without proof of it."

Now, the court, in deciding this, says:

"It may be regarded as a general rule, both in criminal prosecutions
and in civil actions, that an unnecessary averment may be rejected where
enough remains to show that an offence has been committed, or that a
cause of action exists. In Ricketts vs. Solway, 2 Barn., & Aid., 360,
Abbott, C. J., says: 'There is one exception, however, to this rule,
which is, where the allegation contains matter of description. Then, if
the proof given be different from the statement, the variance is fatal.'
As an illustration of this exception, Starkie puts the case of a man
charged with stealing a black horse. The allegation of color is
unnecessary, yet as it is descriptive of that, which is the
subject-matter of the charge, it cannot be rejected as surplusage, and
the man convicted of stealing a white horse. The color is not essential
to the offence of larceny, but it is made material to fix the identity
of that, which the accused is charged with stealing."

3 Stark., 1531. "In the case before us the subject-matter is a pine
log marked in a particular manner described. The marks determine the
identity, and are, therefore, matter purely of description. It would not
be easy to adduce a stronger case of this character. It' might have been
sufficient to have stated that the defendant took a log merely, in the
words of the statute. But under the charge of taking a pine log we are
quite clear that the defendant could not be convicted of taking an oak
or a birch log. The offence would be the same; but the charge to which
the party was called to answer, and which it was incumbent on him to
meet, is for taking a log of an entirely different description. The kind
of timber and the artificial marks by which it was distinguished are
descriptive parts of the subject-matter of the charge which cannot be
disregarded, although they may have been unnecessarily introduced. The
log proved to have been taken was a different one from that charged in
the indictment; and the defendant could be legally called upon to answer
only for taking the log there described. In our judgment, therefore,
the jury were erroneously instructed that the marks might be rejected as
surplusage; and the exceptions are accordingly sustained."

I also cite the case of the State against Clark, 3 Foster, New
Hampshire, 429:

"Indictment for fraudulently altering the assignment of a mortgage. The
indictment set forth the mortgage, and also the assignment, as it was
alleged to have been originally made from Miles Burnham to Noah Clark,
the respondent; and alleged that the assignment was signed, sealed,
delivered, witnessed by two witnesses, and duly and legally recorded at
length, in the registry of deeds of Rockingham county, on the 18th of
September, 1844. It then alleged that this assignment was fraudulently
altered on the 28th of June, 1844, by inserting the letter 'S' in two
places, between the words 'Noah' and 'Clark,' so that the assignment
originally made to Noah Clark, after the alteration appeared as if it
were made to Noah S. Clark.

"On trial the records of deeds were produced, and there was found a
record of the assignment purporting to be made to Noah S. Clark, the
record bearing date September 18, 1844, but there was no record of any
assignment to Noah Clark. The respondent's counsel objected that this
evidence did not support the allegations of the indictment. The forgery
was alleged to have been committed on the 28th of June, 1844, and the
court admitted evidence that Miles Burnham, who executed the assignment,
being applied to about the 30th of July, 1846, for a loan of money upon
a mortgage of the same property, declined to make the loan unless he was
satisfied there was no mortgage of conveyance of the land by Noah
Clark, and the person who drew the assignment searched the records with
Burnham, and found no such deed on record. This evidence was objected
to, but was understood to be introductory to other material and
pertinent evidence, and was therefore admitted; but no such other
evidence, to which it was introductory, was offered.

"The jury found a verdict of guilty, which the defendant moved to set
aside."

Upon that the court says:

"We are not able to look upon this statement that the deed was duly
recorded as well as witnessed and acknowledged according to the statute,
in any other light than as part of the description of the deed and
conveyance which the defendant was charged with altering. We are,
therefore, of opinion that the evidence upon this point did not sustain
the indictment."

Now, if the statement that the mortgage was recorded was such a material
part of the description that a failure to prove the record as charged
was fatal, so, I say, in these overt acts, if they charge that a thing
was done or a paper filed on a certain day and it turns out not to
be so, that is a fatal variance, and under that description in the
indictment the charge cannot be substantiated. I refer to the case
against Northumberland, 46 New Hampshire, 158, and also to the King
against Wennard, 6 Carrington & Paine, 586.

Clark vs. Commonwealth, 16 B., Monroe, 213:

"The doctrine seems to have been well settled in England and this
country, that in criminal cases, although words merely formal in
their character may be treated as surplusage and rejected as such, a
descriptive averment in an indictment must be proved as laid, and
no allegation, whether it be necessary or unnecessary, more or less
particular, which is descriptive of the identity of what is legally
essential to the charge in the indictment, can be rejected as
surplusage."

And in this case I cite Dorsett's case, 5th Roger's Record, 77:

"On an indictment for coining there was an alleged possession of a die
made of iron and steel, when, in fact, it was made of zinc and antimony.
The variance was deemed fatal."

And yet it was not necessary to state of what the die was made. If the
indictment had simply said he had in his possession this die, it would
have been enough, but the pleader went on and described it, saying it
was made of iron and steel. It turned out upon the trial that it was
made of zinc and antimony, and the variance was held to be fatal. So I
cite the court to Wharton's American Crim. Law, 3rd edition, page 291,
and to Roscoe on Criminal Evidence, 151. Now I cite the case of the
United States against Foye, 1st Curtis's Circuit Court Reports, 368,
and I do not think it will be easy to find a case going any further than
this. It goes to the end of the road:

"A letter containing money deposited in the mail for the purpose of
ascertaining whether its contents were stolen on a particular route and
actually sent on a post-route, is a letter intended to be sent by post
within the meaning of the post-office act."

This I understand was a decoy letter.

"The description of the termini between which the letter was intended to
be sent by post cannot be rejected as surplusage, but must be proved as
laid."

Upon that the court says:

"But a far more difficult question arises under the other part of
the objection. The indictment alleges, not only that this letter was
intended to be conveyed by post, but describes where it was to be
conveyed; it fixes the termini as Georgetown and Ipswich. The allegation
is, in substance, that the letter was intended to be conveyed by post
from Georgetown to Ipswich. The question is, whether the words from
Georgetown to Ipswich can be treated as surplusage. It was necessary to
allege that the letter was intended to be conveyed by post. The
words from Georgetown to Ipswich are descriptive of this intent. They
describe, more particularly, that intent which it was necessary to
allege. In United States vs. Howard, 3 Sumner, 15, Mr. Justice Story
lays down the following rule, which we consider to be correct: 'No
allegation, whether it be necessary or unnecessary, whether it be more
or less particular, which is descriptive of the identity of that which
is legally essential to the charge in the indictment, can ever be
rejected as surplusage.' Apply that rule to this case. It is legally
essential to the charge to allege some intent to have the letter
conveyed somewhere by post. Suppose the indictment had alleged an intent
to have it conveyed between two places where no post-office existed, and
over a post-route where no postroad was established by law. Inasmuch
as the court must take notice of the laws establishing post-offices
and post-roads, the indictment would then have been bad; because
this necessary allegation would, on its face, have been false. Words,
therefore, which describe the termini and the route, and thus show what
in particular was intended, do identify the intent, and show it to be
such an intent as was capable, in point of law, of existing.

"And we are obliged to conclude that they cannot be treated as
surplusage, and must be proved, substantially, as laid. We are of
opinion, therefore, that there was a variance between the indictment and
the proof; and that, for this cause, a new trial should be granted."

So I refer to the State vs. Langley, 34th New Hampshire, 530.

The Court. I think, Colonel Ingersoll, there is no doubt about this
doctrine.

Mr. Ingersoll. I do not want any doubt about it.

The Court. There cannot be.

Mr. Ingersoll. Well, I will just read this because I do not want any
doubt about it in anybody's mind.

The Court. I have no doubt about it.

Mr. Ingersoll. Very well:

"If a recovery is to be had, it must be secundum allegata et probata;
and the rule is one of entire inflexibility in respect to all such
descriptive averments of material matters. The cases upon this point,
many of which are collected in the case of State vs. Copp, 15 N. H.,
2F5, are quite uniform."

Now, if the Court please, I not only read this with regard to the
overt acts, but with regard to the description of the crime itself—the
conspiracy. I will then refer to State against Copp, 15th New Hampshire.
I will also refer to the case of Rex against Whelpley, 4th Carrington &
Payne, 132; to 3d Starkie on Evidence, sections 1542 to 1544, inclusive;
also to the United States against Denee and others, 3d Wood, page 48,
and a case under this exact section, 5440:

"It seems clear that the statute upon which this indictment is based
is not intended to relieve the pleader from any supposed necessity
of setting out the means agreed upon to carry out the conspiracy by
requiring him to aver some overt act done in pursuance of the conspiracy
and make such act a necessary ingredient of the offence." The court
then refers to the Commonwealth against Shed, 7th Cushing, 514, and
continues—in that case it was different:

"That difficulty does not exist here, for the overt act is part of the
offence, and must be proved as laid in the indictment."

So I find that the court passed upon this very question, and I wish to
call the attention of the Court again to one line on page 961 of the
record in this case:

"But in all cases the principle is simply this: That where the act which
was done in pursuance of the conspiracy is described in the indictment
it must be described with accuracy and completeness, and if there is a
variance in the proof it is fatal to the prosecution."

When I come to that part as to the necessity of describing offences
then I will cite the Court to some other authorities in connection with
these.

Now, then, we have got it established, gentlemen of the jury. There is
no longer any doubt about that law, and the Court will so instruct you,
that wherever they set out in the indictment that we did a certain thing
in pursuance of the conspiracy, they must prove that thing precisely as
charged, no matter whether the description was necessary or unnecessary.
They must prove precisely as they state. They wrote the indictment, and
they wrote it knowing they must prove it, and if they wrote it badly it
is not the business of this jury to help them out of that dilemma.

Now, as I say, we come to the dust and ashes of this case, the overt
acts, and I take up these routes precisely in the order in which they
were proved by the prosecution. First. I take up route 34149. Now, let
us see where we are. The first charge is that we filed false and altered
petitions by Peck, Miner, Vaile, and Rerdell. When did we file them?
The indictment charges that we filed them on the 10th day of July, 1879.
When did the evidence show they were filed? On the 3d day of
April, 1878. That is a fatal variance, and that is the end eternal,
everlasting, of that overt act. Without taking into consideration the
fact that every petition was true and genuine, the petitions were not
sent by the persons as charged. It was presented by Senator Saunders,
and that is the absolute end of that overt act, and you have no right to
take it into consideration any more than if nothing had been said upon
the subject.

Second. That on the 10th of July a false oath was placed upon the
records. Now, that is an overt act, and you know as well as I do that
the description of that must be perfect. If they say it is of one date
and the evidence shows that it is of another, it is of no use. It is
gone. They say, then, that a false oath was filed. When? On the 10th
day of July. Suppose the oath to have been false. When was it filed?
The evidence says April 3, 1879. That is the end of the false oath,
no matter whether that oath is good or bad. No matter whether they
committed perjury or wrote it with perfect and absolute honesty, it is
utterly and entirely worthless as an overt act.

Third. An order for expedition July 10, 1879, alleged to have been made
by Brady. As a matter of fact the order was signed by French. There is a
misdescription. No matter if Brady told him to sign it, it was not as a
matter of fact signed by Brady—it was signed by French. They described
it as an order signed by Brady. It is an order signed by French, and
the misdescription of variance is absolutely fatal, and you have no more
right to consider it than you have the decree of some empire long since
vanished from the earth. Now, this is all the evidence on this route.
That is all of it with the exception of who received the money, and I
will come to that after awhile. That is route 34149.

According to their statement in the indictment, holding them by that,
there is not the slightest testimony. We can consider that route out.
We have only eighteen now to look after. That is the end of that. It
has not a solitary prop; upon the roof of that route not a shingle is
left—not one.

Let us take the next route, 38135. What do we do in that according
to the indictment? And now, gentlemen, recollect, they wrote this
indictment. You would think we did, but we didn't. They wrote it,
and they are bound by it. But if I had been employed on behalf of the
defendants to write it I should have written it just in that way.

First. Sending and filing a false oath. When did we send it; when did we
file it? On the 26th day of June. That is what the indictment says. What
does the evidence say? April 18, 1879. Now, that is the end of that.
It was a true oath, but that does not make any difference. That oath is
gone. That has been sworn out of the case, and dated out of the case.
What is the next?

Second. Filing false petitions. When did we file them? The 26th day of
June, 1879. The last petition was filed the 8th of May, 1879, and it
does not make one particle of difference whether these dates were before
or after the conspiracy as set forth, but as a matter of fact, every one
of the petitions was true. That charge is gone, A fatal variance. What
is the next fraudulent order? That of June 20. There was never
the slightest evidence introduced to show that it was a fraudulent
order—not the slightest. And what is the next charge? Fraudulently
filing a subcontract. And right here I stop to ask the Court, of course
not expecting an answer now, but in the charge to the jury, is it
possible to defraud the Government of the United States by filing a
subcontract?

Now, gentlemen, I want you to think of it. How would you go to work
to defraud the Government by filing a subcontract? If the subcontract
provides for a greater amount of pay than the Government is giving the
original contractor, the Government will not pay it; it will only pay up
to the amount that it agreed to pay the contractor. It is like A giving
an order on B to pay C what A owes B. He need not pay him any more. That
is all. And if the ingenuity of malice can think of a way by which the
Government could be defrauded by the filing of a subcontract I will
abandon the case. It is an impossible, absurd charge, something that
never happened and never will happen. Well, that is the end of this
route with one exception. This is the Agate route. This is the route
where thirty dollars it is claimed has been taken from the Government.
It is that route. You remember the productiveness of that post-office.
They established an office and nobody found it out except the fellow
that was postmaster, and in his lonely grandeur I think he remained
about eighteen months and never sold a stamp. That is all that is left
in that route, that order putting Agate upon the route and taking it
off, and then giving one month's extra pay. That is all—another child
washed—38135—that is all there is to that route; no evidence except
epithets, no testimony except abuse. If anything is left under that it
is simply "robber, thief, pickpocket." That is all.

Now we come to another route, and I again beg pardon for calling
attention to these little things. The Government has forced us to do
it. It is like a lawsuit among neighbors. Each is so anxious to beat the
other they begin to charge for things that they never dreamed of at the
time they were delivered. They will charge for neighborly acts, time
lost in attending the funeral of members of each other's family before
they get through the lawsuit. So the Government started out in this
case, and not finding a great point had to put in little ones, and we
have to answer the kind of points they make.

41119. Overt acts. First. Filing a false oath. When did we file it? The
25th day of June, the indictment says. Who filed it? Peck and Miner.
Well, when was it filed or when was it transmitted? According to their
story, June 23, 1879. This oath is marked 8 C, and an effort was made
to prove by a man by the name of Blois that it was a forgery. That
was objected to, first, that it was not charged to be forged in the
indictment; and second, that a notary public had already sworn that
it was genuine, and that he could not be impeached in that way, and
thereupon that oath was withdrawn, and you will never hear of it any
more. I do not know whether it is true or not. That is found on record,
page 1469. Now, recollect that oath was withdrawn. That is the end of
it.

Second. Filing false petitions. When were they filed? July 8, 1879, and
it turned out that that charge was true, with two exceptions: First,
that they were not filed at that time; and, second, that all the
petitions were true. That is the only harm about that charge.

Third. A fraudulent order made by Brady, July 8th. Now let us see what
the fraud consists in. The fraud is claimed to be in expediting to
thirty-three hours when the petition only called for forty-eight. You
remember the charge expediting to thirty-three hours, when the petition
only called for forty-eight. Now, let us see. It is claimed that to
grant more than the petitions ask is a crime; certainly it must be
admitted that to grant less is equally a crime. The only evidence now
of fraud in this is that he was asked to expedite the forty-eight
hours, but he expedited to thirty-three. That is to say, he violated the
petitions, and if that is good doctrine, then the petitions must settle
whether expedition is to be granted or not. If that is good doctrine
there is no appeal from the petition. I do not believe that doctrine,
gentlemen. I believe it is the business of the Post-Office Department
to grant all the facilities to the people of the United States that the
people need. He must get his information from the people, and from the
representatives of the people; and while he is not bound to give
all they ask, if he does give what the people want, and what their
representatives indorse, you cannot twist or torture it into a crime.
That is what I insist. Now, the only charge is here, and while they ask
for forty-eight hours he gave thirty-three. That is the only crime. Did
he pay too much for it? There is no evidence of it. Before I get through
I will show you that there is no evidence that he ever paid a dollar too
much for any service whatever.

Now, then, if the doctrine contended for by the Government is correct,
then a petition is the standard of duty and the warrant of action, and
if they gain upon this route they lose upon every other route. Let us
examine. There are three charges. First, false petitions. They were all
true. Second, false oaths. They offered to prove it, and then withdrew
it. Third, that while the petitions called for forty-eight hours he
granted thirty-three, and before you can find that that was fraudulent
you must understand the precise connections that this mail made with all
others, and it was incumbent upon them to prove, not an inference, but a
fact, that there was not only reason, but reason in money—sound reason
for expediting it instead of forty-eight to thirty-three. That is the
end of that route. There is not a jury on earth, let it be summoned by
prejudice and presided over by ignorance, that would find a verdict of
guilty upon the testimony in that route. It is impossible. Another child
gone.

44155. Let us see what we get there, and I have not got to my client
yet. First, filing false petitions, by Peck, Miner, Vaile and Rerdell.
When? On the 27th of June, 1879. Were they false? Let us see. Mr. Bliss,
speaking of these petitions contained in a jacket held in his hand,
dated the 29th of June, 1879, record, page 687, said: "We do not attack
the genuineness of these petitions." That is the end of that. So much
for that.

Second. A fraudulent order increasing service, and yet all the petitions
are admitted to be genuine, and the order was in accordance with the
petitions on the route. Before the order was fraudulent because it was
not in accordance with the petitions, and in this route it is a fraud
because it is in accordance with the petitions. Now, just take it.
Here is the route. Every petition is genuine, the oath is true, not
a petition attacked, the order in accordance therewith, and the only
evidence that the order is a fraud is that it was in accordance with
genuine petitions recommended by the people and by the representatives
of the people. That is all.

Let me tell you another thing. Expedition had been granted on the route
long before, and this was simply an increase of trips, and no charge was
made that the order granting the expedition ever was a fraud.

Third. Another fraudulent order by Brady, of April 17, 1880, and it
turns out that this order was in fact made by French. That was the only
evidence that it was fraudulent, but the mere fact that French made it
takes it out of this case, and you have no more right to consider
it than you would an order made in the Treasury Department. The only
objection to this order now is what? That it was in violation of the
petitions. How? That it took off one or two of the trips. That was the
fraud of the order of April 17, 1880. The fraud consisted in taking off
two or three trips that had been put on.

Now, let us see. The next fraudulent order was July 16, 1880. What was
that for? For putting the service back precisely as it was. Now, I want
you, gentlemen, to understand that, every one of you. Here is a charge
in the indictment of a fraudulent order that took off, say, two trips
from the service. That is a fraud they say. Then the next order put
those two trips back, and that they say is another fraud. It would have
been very hard to have made an order in that case to have satisfied the
Government; it was an order to decrease it; it was an order to put it
back where it was; that is, it was a fraud, consequently it was a fraud
to do anything about it. That is all there is in that case.

Let us boil it down. False petitions. That is the charge. The evidence
is that the petitions are all true. A false oath is the charge. The
evidence is that the oath is true. A fraudulent order decreasing the
service, another fraudulent order increasing the service, that is,
leaving it just where he found it. In other words, according to this
indictment, Brady committed a fraud in reducing the trips, and another
fraud by putting the trips back. I think it was only one trip that he
reduced. Now, that is all there is in that case. People may talk about
it one day or one year. That is all there is, and that is nothing.

38145. Fraudulently filing what? A subcontract with J. L. Sanderson. I
say you cannot fraudulently file a subcontract against the Government.
It is an impossibility. Besides all that, Mr. Sanderson filed his own
subcontract. There is no evidence that anybody else did file it or
present it for filing. It was not our contract; it was Sanderson's
subcontract. How comes that in his indictment? Let me tell you. In the
first indictment they had Sanderson; and when they copied that first
indictment, with certain variations to make this, they forgot this
part and put in the fraudulent filing of Sanderson's contract. It never
should have been in this case. It has not the slightest relationship.
The real charge of fraud in this route is that a retrospective order was
made, and this order bore date February 26, 1881, and was retrospective
in this: that it was to take effect from the 15th of January, 1881; but
understand me, this was Sanderson's route. He received that money, and
it has nothing to do with us. Still I will answer it. That retrospective
order gave pay from the 15th of January, 1881. Now, it seems that before
the order of February 26, an order had been made by telegraph, dated
15th of January, 1881, to Sanderson, and this telegraphic order was for
daily service on eighty-nine miles. The jacket order of February 26,
1881, was for daily service on the whole route from January 15, 1881.
If that order had been carried out he would have received pay for
daily service on the whole route, instead of for daily service on the
eighty-nine miles to which he was entitled. It turned out that the order
of February 26, 1881, was signed by Postmaster-General Maynard. The only
possible charge is that Sanderson received pay for a daily service on
the whole route from January 15, 1881, to February 26, 1881, instead of
eighty-nine miles. But we find in the table of payments introduced by
the Government, that for that quarter a deduction was made of three
thousand four hundred and twenty-two dollars and nineteen cents, showing
that the department could only have paid for the daily service on the
eighty-nine miles, and that is exactly what the daily service would come
to on the balance of the route. That ends that route. We had nothing to
do with it anyway. It was Sanderson. He filed his own contract, he
got his own orders, he collected his own money and settled with the
department. We have nothing to do with it and we will bid it farewell.

The next is No. 38156. First, filing false oath June 12, 1879. The oath
was filed May 6, 1879.. That is the end of that. I do not care whether
it is true or false, that is, so far as this verdict is concerned. I
care whether it is true or false, so far as my clients are concerned,
but so far as this verdict is concerned, it makes no difference. There
is a fatal variance. Second, it is alleged that Brady made a fraudulent
order June 12, 1879. The order of June 12, 1879, was made by French.
There is another fatal variance. You have no right to take it into
consideration. French is not one of the parties here. Third, sending a
subcontract of Dorsey and filing it. As I told you before, you cannot by
any possibility thus defraud the Government; not even if you set up
nights to think about it. There is no proof that the subcontract was a
fraud. Let us have some sense. It is an absolute impossibility to commit
this offence, and therefore we will talk no more about it. Fourth, the
fraudulent order of Brady increasing the distance four miles. This was
done on the 20th of December, 1880. That is the only real charge in this
route. I turn to the record and find from the evidence, on page 943,
that the distance was from five to six miles, according to the
Government's own proof. Beside all that, the order of which they
complain is not in the record. It was never proved by the Government and
never offered by the Government, so far as I can find. That is the end
of that route. The only charge in it is that they increased the distance
four miles, and the evidence of the Government is that it was from five
to six.

The next is 46132. Overt acts: Filing a false oath by everybody June 24,
1879. The evidence shows it was filed April 11, 1879. That is the end
of that. No matter whether it is true or false, it is gone. Second, the
fraudulent filing of a subcontract. Well, I have shown you that that
cannot be fraudulent. The subcontract of Vaile shows that Vaile was
to receive one hundred per cent. It was executed April 1, 1878, in
consequence, as my friend General Henkle explained, of a conspiracy made
on the 23d of May following. The service commenced July 1, 1878. There
could have been no fraud in it. It was filed as a matter of fact May 24,
1879, and not June 4. Even if it had been a fraud, which is an
impossibility, the description is wrong and the variance is fatal. There
is no evidence that any order was fraudulent. Every one in this case is
supported by petitions, and every petition is admitted to be honest, or
proved to be honest and genuine. There is no proof at all, and not the
slightest attempt on the part of the Government to prove that there was
any fraud on this route. So much for that.

No. 46247. Let us see just where we are. First, filing false and forged
petitions. When? July 26, 1879. By whom? By Peck, Dorsey, and Rerdell.
Now, after they had solemnly written that in the indictment, and after
it had been solemnly found to be a fact by the grand jury, the attorneys
for the Government come into court and admit during the trial that all
the petitions upon this route were genuine; every one. It was admitted,
I say, that every petition was genuine. Read from page 1008 of the
record and there you will find what the Court said about these very
petitions:

"I shall take the responsibility of dispensing with the reading of
petitions when there is no point made with regard to them."

The petitions were so good, they were so honest, they were so genuine,
they were so sensible, that the curiosity of the Court was aroused
to find what on earth they were being read for on the part of the
prosecution. You remember it. Every one genuine, honor bright, from the
first line to the last. In reply to the Court at that time Mr. Bliss
said:

"There is no point made as to the increase of trips. These—" Meaning
the petitions—"relate to the increase of trips. There is no point made
there."

It is thus admitted that every petition was genuine. Second, a
fraudulent order increasing one trip. This order was never proved by the
Government. It was not even offered by the Government, so that the
route stands in this way: First, a charge of false petitions; second,
an admission that the petitions were all genuine; third, a charge that
a fraudulent order was made; fourth, no proof that the order was made.
That is all there is to that. And that is the end of it.

No. 38134. First, sending false and fraudulent petitions, and filing
the same. When? July 8,1879. On page 1031 of the record I find the
following:

"Mr. Bliss. The petitions under your Honor's ruling I am not going to
offer."

Why? Because they were all genuine. The court had mildly suggested
the impropriety of the Government proving its case by reading honest
petitions. Consequently, when it came to this, the next route, he said:

"The petitions under your Honor's ruling I am not going to offer."

Why? Because they are all honest, and under a charge in the indictment
that they are all fraudulent he did not see the propriety of reading
them. That is what he meant. This remark was made because the Government
admitted these petitions to be honest. When were these petitions filed?
The indictment says July 8. The evidence says May 6. So that if every
petition had been a forgery you could not take them into consideration
on this route. It is charged that Miner & Co. signed and placed in
Brady's office a false oath on July 8. On record, page 1032, it appears
that it was filed May 8, 1879, and not as described in the indictment.
The pleader has the privilege of describing it right or describing it
wrong. If he describes it right it can go in evidence. If he describes
it wrong it cannot go in evidence, and they have no right to complain if
you throw out evidence that they make it impossible for you to receive.
It has been charged with regard to this affidavit that Dorsey was not at
that time contractor, and therefore had no right to make the affidavit.
The affidavit was made April 21, 1879, and the regulation that such
affidavits must be made by the contractors was made July 1, 1879. That
is a sufficient answer. The next charge is a fraudulent order made by
Brady, July 8. The petitions were all admitted to be genuine. There was
no evidence that the order was not asked for by the petitions. There
was no evidence that the order in and of itself was fraudulent; not the
slightest. There is nothing like taking these things up as we go and
seeing what the Government has established. I know that you want to know
exactly what has been done in this case and you want to find a verdict
in accordance with the evidence.

Route 38140. Overt acts: First, making, sending, and filing false
petitions. When were they made and sent? The 23d day of May, 1879. There
were some petitions filed May 10, 1879, and there was a letter of the
same date. They are misdescribed. They are all genuine but they are out
of the case as far as this is concerned. I will tell you after awhile
where they are applicable in this case. A letter of Belford, of April
29, 1879, and a letter of Senator Chaffee, of April 24, 1879, we have,
while the indictment charges that they were all filed May 23, 1879.
There is an absolute and a fatal variance. All these petitions, however,
are admitted to be genuine and honest. See record, pages 1001-1003. The
charge in the indictment is that they were forged, false, and altered.
The admission in open court, by the representatives of the Government,
is, that they were genuine and honest. There is the difference between
an indictment and testimony. There is the difference between public
rumor and fact. There is the difference between the press and the
evidence. The next is that a false oath was filed by John W. Dorsey on
the 23d of May, 1879. When was that oath filed? April 30, 1879. A fatal
variance. Yet the man who wrote the indictment had the affidavit before
him. Why did he not put in the true date? I will tell you after awhile.
Did he know it was not true when he put it in the indictment? He did,
undoubtedly.

Third. Fraudulent order of May 23; reducing the time from nineteen and
three-quarter hours to twelve hours. As a matter of fact, no order was
made on the 23d of May upon this route. It is charged in the indictment
that it was made on the 23d of May. The evidence shows that it was on
the 9th of May. There is a fatal variance, and that order cannot be
considered by this jury as to this branch of the case. Here is an order
of which they complain. They charge that it was made on the 23d day of
May, the same day the conspiracy was entered into. As a matter of fact,
it was made on the 9th of May. On this description it goes out, and it
goes out on a still higher principle: That an order could not have been
made on the 9th of May in pursuance of a conspiracy made on the 23d of
that month. But I am speaking now simply as to the description of this
offence.

Fourth. A subcontract was fraudulently filed. I have shown you it is
impossible to fraudulently file a contract; utterly impossible. All the
agreements imaginable between the contractor and subcontractor cannot
even tend to defraud the Government of a solitary dollar. I make a
bid and the contract is awarded to me at so much. The mail has to be
carried. The Government pays, say five thousand dollars a year, it
makes no difference to the Government who carries the mail under that
contract, so long as it is carried. It is utterly impossible to defraud
the Government by contracting with A, B, C, or D. That is the end of
that route. The order itself is misdescribed, and that is all there is
in it. When the order is gone everything is gone.

No. 38113. Overt acts: Fraudulently filing a subcontract. We do not need
to talk about that any more. Second, Brady fraudulently made an order
for increase of trips. The evidence is that an increase was asked for by
a great many officers, a great many representatives, and by hundreds
of citizens, and that the increase was insisted upon not only by the
officers who were upon the ground, but by General Sherman himself. I do
not know how it is with you, but with me General Sherman's opinion
would have great weight. He is a man capable of controlling hundreds of
thousands of men in the field—a man with the genius, with the
talent, with the courage, and with the intrepidity to win the greatest
victories, and to carry on the greatest possible military operations.
I would have nearly as much confidence in his opinion as I would in the
guess of this prosecution. In my judgment, I would think as much of his
opinion given freely as I would of the opinion of a lawyer who was paid
for giving it. General Sherman has been spoken of slightingly in
this case; but he will be remembered a long time after this case is
forgotten, after all engaged in it are forgotten, and even after this
indictment shall have passed from the memory of man.

No. 38152. Overt acts: Fraudulent orders of August 3, 1880,
discontinuing the service and allowing a month's extra pay for the
service discontinued. That is all. May it please your Honor, in this
route the only point is, had the Postmaster General the right to
discontinue the service? And if he did discontinue it, was he under any
obligation to allow a month's extra pay? It is the only question. I call
your Honor's attention to the case of the United States against Reeside,
8 Wallace, 38; Fullenwider against the United States, 9 Court of Claims,
403; and Garfielde against the United States, 3 Otto, 242. In those
cases it is decided not only that the Postmaster-General has the right
to allow this month's extra pay, but he must do it. That is in full
settlement of all the damages that the contractor may have sustained.
The Court can see the very foundation of that law. For illustration, I
bid upon a route of one thousand miles. I am supposed to get ready to
carry the mail. Five hundred miles are taken from that route. The law
steps in and says that for that damage I shall have one month's extra
pay on the portion of the route discontinued. It makes no difference
whether I have made any preparation or not. The law gives me that and no
more. If I should go into the Supreme Court and say that my preparations
had cost me fifty thousand dollars, and the month's extra pay was
only five thousand dollars, I have no redress for the other forty-five
thousand dollars. That is all that is charged in this instance. And
if the Second Assistant Postmaster-General or any one else had done
differently he would have acted contrary to law. He is indicted for
doing in this case exactly what is in accordance with the law. Let us
get to the next route. That is all there is in this.

No. 38015. Overt acts: Sending a false oath. When? May 21. The evidence
shows that on May 14 it was sent, on May 15 it was filed. A fatal
variance, no matter whether it is true or false. That oath is gone. That
is the end of it.

What else? They did not show that the oath was false. First, it is
misdescribed in the indictment as to the date it is filed; second, the
evidence shows that it is honest and genuine, which is also fatal. That
is the end of this route, as far as the indictment is concerned. Second,
that Dorsey made and Rerdell filed false petitions. There is no proof
that any of the petitions were false, no proof that any were forged, and
no proof that John W. Dorsey or M. C. Rerdell had anything to do with
that route one way or the other. All the petitions on record, page
1160, are admitted to be genuine except one. One petition asking for a
ten-hour schedule was attacked and only one. But this petition was filed
May 14, 1879, and that is out so far as the indictment is concerned.

The Court. What is the date of the indictment?

Mr. Ingersoll. The 23d day of May. The indictment says that this was
filed July 10, 1879; the evidence says May 14, 1879. A fatal variance.
It is not the same one they were talking about. They did not find the
petition they described. It is their misfortune. Now, here is only one
petition attacked. Who attacked it? Mr. Shaw. See page 1159. They were
going to show that that was a forgery, and they were going to show it by
Shaw. That was the only one they attacked. What does Shaw say?

"I signed a petition for increase of service and expedition upon
that route, but I did not read the petition. If I had, I should have
discovered a ten-hour schedule."

He would not have discovered it if it had not been there, would he? That
shows it was there.

"I would not have recommended a ten-hour schedule on a seventy-mile
route."

He was the man that was going to prove that ten hours was not there. But
it shows that he was not able to do it, because he first swore that he
never read it, and second, that he would not have signed it if he had.
Good by, Mr. Shaw. That is all there is as to that matter. The Court
will understand I am going now upon what is in the indictment, and not
what has been thrown in from the outside.

The Court. I understand that.

Mr. Ingersoll. I am going according to the strict letter of this
indictment. I am holding these gentlemen to the law. That is what the
law is for. You cannot come into this court and throw seven or eight
cords of paper at a man and say, "You are guilty." They have managed
this case after that fashion, but I propose to bring them back to the
law.

Route 35051. First. Signing, sending and filing false petitions. When?
August 2, 1879. There is no evidence of any petitions being filed on
that day—none whatever. The only thing near it is a letter of Frederick
Billings, on record, page 1217. This letter was dated July 31, 1879.
Under the charge of signing, sending and filing false petitions, the
only evidence is that a man by the name of Billings wrote a letter, and
there is not the slightest testimony to show that a solitary word in
that letter was false—not one. Nothing to connect it with Mr. Billings;
no evidence that he ever spoke to him on the subject; no evidence that
Billings knew who was carrying the mail; no evidence that he ever knew
or did a thing except to write that letter, and he was interested, I
believe, in the Northern Pacific railroad. Now, that is everything there
is there; that is all there is in that case. Nobody has tried to show
that the letter of Billings was not true.

What else? A fraudulent order of August, 1879. Who made it? The
indictment says Brady made it. The evidence says it was signed by
French, and it was in accordance with Billings' letter. Is there any
fraud now in that route? Let us be honest. False petitions: Not one
filed. False oath: Not one attacked. Simply a letter that we did not
write, and that there is no evidence that we ever asked to have written.
That is the end of that. But they cannot even get the letter in,
gentlemen. They did not describe it right.

The next route is 40104. Overfacts: First. Fraudulently filing a
subcontract. That you cannot do. When did we file it? July. 23, 1879,
the indictment says. What does the evidence say? May 8, 1879. First,
we could not commit the offence; secondly, you could not prove it under
this description.

Second. Filing a false oath. When did we file it? July 23. That is what
the indictment says. What does the evidence say? November 26, 1878.
A fatal variance. See record, page 1305. That is the end of that. The
indictment is for something. You have got to follow it, and it certainly
is not as hard work to write an offence against a man as it is to prove
it. If they cannot write an offence, you certainly ought not to find the
man guilty. Besides all that, that oath was not even impeached, it was
not ever attacked. There was not a word said upon the subject except in
the indictment. It was charged to be false, and not one word of evidence
was offered to this jury to show that it was false.

Third. An alleged fraudulent order of increase by Brady, July 23, 1879.
Brady never signed any such order. It was signed by French. That is the
end of it, no matter whether it was good or bad, honest or dishonest.
That is the end of it, and yet there is not a particle of evidence to
show that it was dishonest, but you must hold them to their own case as
they have written it, and not as they wish it was now.

Fourth. A fraudulent order of April 10, 1880, allowing one month's
extra pay on the service reduced. This order was not even proved by the
Government. As a matter of fact, it was not offered by the Government;
and if it had been offered, and if it had been proved, it would have
only established the fact that Mr. Brady acted in accordance with law.

Now, we come to some more. 44160. First, filing false petitions. When
did we file them? July 16, 1880. The proof is that they were filed long
before that time The proof is that Peck, Dorsey and Rerdell had nothing
to do with this route after the 1st of April, 1879, and the petition
claimed to be signed by Utah people and claimed to be fraudulent in the
petition marked 19 Q. It was filed on the 7th day of May, 1879.

That is a fatal variance. This indictment charges it was filed July 16,
1880. The petition cannot be considered.

There is another petition marked 20 Q, claimed to have been written by
Miner, upon which the name of Hall is said to have been forged. It has
no file mark whatever, and consequently cannot be the petition referred
to in the indictment. That was filed. That, however, has been explained
by General Henkle fully. This petition was identified by McBean, and was
signed by him, and he recognized the signatures of many of the citizens
of Canyon City. Mr. Merrick admitted that the petition, 19 Q, was
never acted upon. As a matter of fact, orders had been made before the
petition was received, which shows conclusively that they were not acted
upon. The petition marked 20 Q, to which Hall's name was, as is claimed,
forged, was never filed, and was consequently never acted upon. This
charge stands as follows: Two petitions, one being filed May 17, 1879—a
fatal variance—and the other not filed—another fatal variance. These
petitions are both described as having been filed July 16, 1880. The
variance is absolutely fatal, and these petitions cannot be considered.
Besides, the order was made before the petition 19 Q was filed.

Second. The fraudulent order by Brady for increase of trips, July 16,
1880. The only objection to this route is that the expedition was
made before service was put on. This was in the power of the
Postmaster-General. It has been done many times, and is still being done
by the Postoffice Department, and the fact that it was done in this case
does not even tend to show that any fraud was committed or intended.
That is all there is in that case. The petitions were never acted
upon. One was never filed, and the other is not described, or rather is
misdescribed.

Route 48150. Overt Acts: A fraudulent order by Brady reducing service to
three trips a week, and allowing a month's pay on service dispensed with
July 26, 1880. This point, gentlemen, I have already argued.

Whenever the Post-Office Department dispenses with any service it is
bound to give one month's extra pay any time after the contract has been
made and any time after the bid has been accepted. It is bound to give
the month's extra pay on the service dispensed with, and this question,
as you heard me say a little while ago, has been decided by the Supreme
Court in Garfield's case. This route was operated by Sanderson. He was
the subcontractor, and, according to the subcontract filed and presented
here in evidence, he received every cent of the pay. We could have had
no interest in perpetrating any fraud upon that route. Why? Because
another man, J. L. Sanderson, received every dollar, and we not one
cent.

Another fraudulent order of increase, August 24, from Powderhorn to
Barnum, seven miles. No fraud was shown, but the order in fact, was
made for the benefit of Sanderson and not for the benefit of any of the
defendants in this case. In other words, it was made for the benefit
of the people, it was made because they wished to reach another
post-office.

Another charge is that the subcontract made by Sanderson was filed
September 18, 1878. Recollect the charge is about filing this
subcontract. The fact is it was filed in 1878 to take effect from July
1, 1878. See record, page 1406. On this very route the subcontract took
effect the 1st of July, 1878, with Sanderson, and from that moment until
now he has received every dollar. This route, as a matter of fact, is
out of the scheme. Sanderson carried the mail from the 1st of July,
1878, until the end of that contract, the last day of June, 1882. So
much for that route. It is gone. Nobody can get it back, either, in this
scheme.

Route 40113. Overt Acts: Filing of a false oath. When? June 3, 1879.
When was it filed? May 7, 1879. That oath is gone. Was it false? They
did not attack it. They never impeached it. Good.

Second. False petitions filed. When? June 3, 1879. All the petitions
were filed prior to May 10, 1879. They are gone. One was filed May 23,
but none was filed as alleged on June 3. They are gone. A magnificently
written instrument. A fatal variance as to every petition. And yet not a
solitary petition was attacked. Every petition was genuine and honest.

Third. A fraudulent order by Brady for increase and expedition. This
order was asked for by the petitions. No fraud was established. See
record, page 1503 on this route; also page 2159.

Fourth. They also charge that Brady made a fraudulent order on the 4th
of January, 1881. But the Government never proved that order, never
offered any order of that date. That is the end of that order.

Fifth. A fraudulent order of February 11, 1881. This was not offered by
the Government, and no evidence was offered as to the existence of the
order, neither the jacket, nor the order, nor the petitions, so far as
I can find. That is the end of that. Every overt act so far, except
some of the orders, wrong. The overt acts charged were filing fraudulent
petitions. When? May 23, 1879. These are the petitions said to have been
gotten up by Wilcox. Mr. Wilcox was a Government witness and he swore
that every petition was honest, that every name was genuine, and that in
order to get the names he did not circulate a falsehood, he circulated
only the truth. To use his own language, "I did only straightforward,
honest work." That is all there is on that.

44140 is the number of this route, and this evidence is on record, page
1568, and in regard to getting up these petitions you will recollect the
language used by the Court. His Honor said in effect clearly, "Every man
carrying the mail has the right to take care of his business. He has the
right to get up petitions. He has the right to call the attention of the
people to what he supposes to be their needs in that regard. He has
the right to do it; and the fact that he does it is not the slightest
evidence that he has conspired with any human being." Deny me the
right to attend to my own affairs? If I have taken the route from
the Government, and contract to carry the mail, tell me that I cannot
suggest to my fellow-citizens that they ought to have a daily mail
instead of a weekly? Tell me that I have not the right to talk it on the
corners, in every postoffice for which I start, and that if I do I am
liable to be pursued and convicted of an infamous offence? Every man has
the right to attend to his own affairs, and he has the right to get all
the people he can to help him. He has no right to go around lying about
it, but he has the right to call their attention to the facts the same
as you would have the right to get a road by your house; just exactly
the same as you would have the right to get a school-house built in
your district, no matter if you were to have the contract for making the
brick. You have a right to say what you please in favor of education,
no matter if you are an architect and expect to be employed to build the
schoolhouse, and any other doctrine is infinitely absurd.

There is another charge: That a false oath was filed on the 24th of May.
The affidavit was made by Mr. Peck, and I believe it has been admitted
that Mr. Peck never did anything wrong. Then there is alleged to be a
fraudulent order for increase, signed June 26, and they never introduced
the slightest evidence tending to show that there was fraud in the
order. It was made in accordance with the petitions. It was made in
accordance with what we believed to be the policy of the Post-Office
Department. And allow me to say to your Honor that I think that the
general policy of the Post-Office Department, as disclosed in the
documents that have been presented in the reports made to Congress that
have become a part of this case, I think even from that evidence I have
the right to draw an inference as to what the policy of the department
was.

The Court. I have no doubt in the world as to the views of the
Post-Office Department in regard to that subject. The Court refused to
receive evidence on that subject in defence, for the simple reason that
the Court was of opinion that no Second Assistant Postmaster-General
had the authority to establish any policy for this Government or for any
branch of this Government. The policy of the Government is to be found
in its laws, and the Court was unwilling to allow a Second Assistant
Postmaster-General to set up his policy in his defence against a charge
in this court. He had no right to have a policy.

Mr. Ingersoll. We never set up the policy of the Second Assistant. We
never asked to be allowed to prove the policy of the Second Assistant.
We never imagined it, nor dreamed of it, nor heard of it until this
moment. What we wanted to show was the policy, not of the Second
Assistant, but of the Postmaster-General. But I am not speaking now upon
that branch.

The Court. The Postmaster-General by law is the head of the department
of course. But several assistants were given him by law, and he had the
authority to apportion out the business of the department amongst those
several assistants. The particular business of the department pertaining
to the increase of service and expedition of routes belonged under this
apportionment to the Second Assistant Postmaster-General. His acts,
therefore, are to be looked to.

Mr. Ingersoll. I do not claim, if the Court please, that his policy had
anything to do with it. I simply claim that from the orders that have
been introduced, not of the Second Assistant, from the books that have
been introduced, showing the views of the Postmaster-General, not of
the Second Assistant. I also admit that if the Postmaster-General had
ordered by direct order the Second Assistant Postmaster-General to
expedite every one of these routes, even then there could have been such
a thing as a conspiracy to expedite them too greatly, and to receive
money from every man for whom they were expedited. I understand that.
But in the absence of any proof that it is so, all I have ever insisted
was that the general policy of the head of the department might be
followed by any subordinate officer without laying himself open to the
charge that he had been purchased. That is all.

Now, gentlemen, all these things had been asked. They had been earnestly
solicited by hundreds of Congressmen, by Senators, by Judges, by
Governors, by Cabinet officers and by hundreds and hundreds of citizens.

Now, let me recapitulate all the overt acts—and I have gone over
them all now excepting one, and I will come to that presently. In the
indictment there are twelve charges as to filing false petitions.
There are ten charges as to false oaths. There are seven charges as to
fraudulently filing subcontracts; and the evidence is that the ten oaths
are substantially true; that it is impossible to fraudulently file
a subcontract; and as to the petitions, that every one is absolutely
genuine and honest with the exception of three. They prove that the
words "schedule, thirteen hours," were inserted; that is, they tried to
prove that by Mr. Blois, who is an expert on handwriting, as has been
demonstrated to you. One with thirteen hours inserted in it, and the
very next paragraph in that same petition begs for faster time. I have
not the slightest idea that that ever was inserted by anybody. I believe
it was in there when it was signed. And why? There would have teen,
there could have been, there can be, no earthly reason for inserting
those words. You cannot imagine a reason for it.

Now, that is thirteen hours. Then there is another one they say had some
names of persons living in Utah, and we say that that is not described
properly; not only that, but that it was never acted upon, and in my
judgment that whole thing is a mistake and not a crime, because there
were plenty of petitions without that. There was no need of it. All the
other petitions have either been proved, or have been admitted to be
absolutely genuine.

Now, I have gone over every overt act except payments, and when it was
said here in court, or when the objection was made to these being proved
as overt acts, the Court will remember that again and again and again,
the prosecution denied that they were offered as overt acts.

The Court. I never understood them as being offered as overt acts.

Mr. Ingersoll. At that time the Court made just the remark that your
Honor has made now. He said: "But what are the payments?" Now, I will
take up the payments, and we will see whether there are any overt acts
in the payments, gentlemen.

Now, let me call your attention to that magnificent rule that has been
laid down by the Court. When you describe an offence you are held by
the description. When it is said that I made a false claim against
the Government in a conspiracy case, for instance, that I conspired to
defraud the Government, that I presented a false claim, it may be that
the laxity or lenity of pleading might go the extent of saying that
the pleader need not state the amount of that false claim, but if the
pleader does state the amount of that false claim he is bound by that
statement. Now, that is my doctrine.

The Court. What I understood in regard to the evidence of the payments
is this: The charge was a conspiracy to defraud and the averment was
that the fraud had been completed, and this evidence of payments was to
show that the fraud had been carried out.

Mr. Ingersoll. That is all. Now, let us see if this can be tortured into
an overt act. I now come to the presentation of false claims charged
to have been presented and collected by these defendants. It is a short
business. On the route from Kearney to Kent the charge is that Peck
and Vaile presented false claims on the third quarter of 1879 for five
hundred and fifty dollars and seventy-two cents. The entire pay for that
quarter, three trips and expedition, was seven hundred and ninety-five
dollars and seventy-eight cents. And there is no charge that the
increase of trips was fraudulent. Only the expedition was attacked. The
three trips, according to the old schedule price, came to seven hundred
and thirty-five dollars and eighty-one cents, all of which was honestly
carried, honestly earned. Now, deducting from the pay seven hundred and
ninety-five dollars and seventy-eight cents, the amount of the three
trips on the old schedule honestly performed, seven hundred and
thirty-five dollars and eighteen cents, if the expedition was
fraudulent, we have a fraudulent claim of sixty dollars and sixteen
cents. And yet the Government charges that we made a claim of five
hundred and fifty dollars and seventy-two cents. Not one cent is allowed
for carrying the two additional trips without expedition.

There is another trouble about this. It is charged that Peck and Vaile
presented this claim for their benefit. The record, page 386, shows that
Peck did not present this claim; that it was presented by H. M. Vaile;
that H. M. Vaile received the warrant for the full amount; that he
held a subcontract at that time for every dollar. This is another fatal
variance, and the evidence of Vaile is that every dollar belonged to
him; that not a dollar of that money was ever paid to any other one of
the defendants; that he paid all the expenses; that he paid the debts,
and that there never went a solitary cent to any Government official. So
much for that payment.

The next charge is that on route 41119, from Toquerville to Adairville,
Peck presented a false claim for the third quarter of 1879 for two
thousand four hundred and sixty dollars and fourteen cents. The pay for
that quarter was three thousand six hundred and twenty-eight dollars
and fourteen cents for seven trips and expedition. The pay for the three
trips on the old schedule was eight hundred and seventy-six dollars,
a difference of two thousand seven hundred and fifty-two dollars and
fourteen cents. And yet the Government charges that the false claim
presented was two thousand four hundred and sixty dollars and fourteen
cents. If they give the figures they must give them correctly. If I am
charged with presenting a claim against the Government for two thousand
four hundred and sixty dollars, that is not substantiated by showing
that I presented a claim for two thousand seven hundred dollars. If you
give the figures you must stand by the figures, and you are bound by
them. You cannot charge one thing and prove something else. This is a
fatal variance.

In addition to this fact, we find the deductions for failures in that
very quarter amounted to five hundred and forty dollars and forty-two
cents, and this deducted from the other amount leaves two thousand, two
hundred and eleven dollars and seventy-two cents. So that in both
cases the variance is absolutely fatal. I am showing you these things,
gentlemen, so that you may see that there is in this case no evidence to
fit the charges in this indictment.

44140, Eugene City to Bridge Creek. It is charged that Peck and Dorsey
presented a false account for the third quarter of 1879 for four
thousand seven hundred and eighty-three dollars and ninety-nine cents.
The pay for three trips with expedition was four thousand, six hundred
and eighty-nine dollars and twenty-two cents; the pay for one trip on
the old schedule was six hundred and seventeen dollars, a difference
of four thousand and seventy-two dollars and twenty-two cents. The
Government says the difference was four thousand seven hundred and
eighty-three dollars and ninety-nine cents, an absolutely fatal
variance.

Now, as a matter of fact, there were deductions in that quarter of one
thousand nine hundred and thirty-two dollars and eighty-three cents,
and this is deducted from the entire pay, leaving only as a claim three
thousand seven hundred and sixty-six dollars and thirty-nine cents.
And yet the Government charges that we presented a false claim for four
thousand seven hundred and eighty-three dollars and forty-nine cents. It
will not do. It is a fatal variance. But when we take into consideration
that there is no claim that the increase of trips was fraudulent,
only the expedition, and that by the old schedule one trip came to six
hundred and seventeen dollars, that three trips came to one thousand
eight hundred and fifty-one dollars, and that added to deductions
would make three thousand seven hundred and seventy-three dollars and
eighty-three cents, to be deducted from four thousand six hundred and
eighty-nine dollars and twenty-two cents, it would leave as a fraudulent
claim, even if their claim was true, nine hundred and fifteen dollars
and thirty-nine cents.

Now, the next is 44155, The Dalles to Baker City. The false claim was
eight thousand eight hundred and ninety-six dollars, by Peck. The pay
per quarter was sixteen thousand six hundred and sixty-six dollars and
nine cents. The pay for three trips and expedition was seven thousand
seven hundred and seventy dollars—a difference of eight thousand
eight hundred and ninety-six dollars and nine cents. But there were
deductions, ninety-nine dollars and thirty-four cents, leaving eight
thousand seven hundred and ninety-six dollars and seventy-five cents.
But by making this claim the Government concedes that the expedition was
legal, and another trouble is that the payment on this route was made
to Vaile, not to Peck or Miner. It was made to Vaile, who was the
subcontractor for the full amount, and this is another fatal variance.

Now, route 46132, Julian to Colton. The charge is that Peck and Vaile
presented a fraudulent claim for the third quarter of 1879, for one
thousand six hundred and fifty seven dollars and seventy-one cents.
The pay for three trips and expedition is one thousand nine hundred and
fifty-four dollars and seventy-one cents. For three trips on the old
schedule it was eight hundred and ninety-one dollars, a difference of
one thousand and sixty-three dollars and seventy-three cents. A fatal
variance. Besides it was not Peck and Vaile. Vaile was the subcontractor
at full rates on this route. He presented the claim. He received
the entire pay. Another variance. Route 44160, Canyon City to Camp
McDermitt. The charge is that Peck and Vaile presented a false account
for the fourth quarter of 1879, for eleven thousand eight hundred and
nineteen dollars and sixty-six cents. It is charged in the indictment
that this was paid in pursuance of the order set out in the indictment,
and we find on page sixty-four that the order was dated July 16, 1880.
That was the order. No such payment was made in pursuance of that order
for the reason that an order was made nearly a year afterwards, and
the order of July 16, 1880, as set out in the indictment, was not
retrospective, a fatal mistake in their indictment. As a matter of fact,
the pay for the fourth quarter of 1879 was five thousand three hundred
and seventy-five dollars. There were deductions to the amount of three
hundred and fifty-two dollars and seventy-two cents and the balance was
five thousand and twenty-two dollars and twenty-eight cents, instead of
eleven thousand eight hundred and nineteen dollars and sixty-six cents.
And this was paid to Vaile, who was a subcontractor at full rates, and
the variance in the case is absurd and fatal.

Route 46247, Redding to Alturas. The charge is that Peck and Dorsey
filed a fraudulent account for the third quarter of 1879 for seven
thousand four hundred and eighty-five dollars and six cents. This was in
pursuance of the order set out in the indictment, and the only order set
out in the indictment is dated February 11, 1881. That is another fatal
variance.

The next route is 35051, Bismarck to Miles City. The charge is that
Miner and Vaile presented a false account for the fourth quarter of
1879, for fourteen thousand one hundred. The pay for the quarter for six
trips was seventeen thousand five hundred dollars. For three trips
under the old order the pay was eight thousand seven hundred and fifty
dollars, leaving eight thousand seven hundred and fifty dollars as the
outside sum that could have been fraudulent, and yet the Government
charges fourteen thousand one hundred dollars, an absolutely fatal
variance. Besides that, there were deductions in that very quarter of
four thousand five hundred and three dollars. This amount deducted from
eight thousand seven hundred and fifty dollars leaves four thousand two
hundred and fifty-six dollars and eleven cents as the greatest amount
that could by any possibility have been fraudulent.

Three routes are lumped together next in the indictment, 38134, 38135,
38140, 38134, Pueblo to Rosita; 38135, Pueblo to Greenhorn; and 38,140,
Trinidad to Madison.

The charge here is on page eighty-one of the indictment that Miner
presented a fraudulent account for the fourth quarter of 1879 on routes
amounting to two thousand seven hundred and seventy-six dollars and
forty-seven cents.

The greatest possible difference that could be made on route 38135 is
seven hundred and sixty-seven dollars and twenty cents. The greatest
difference that could be made on route 38134 is one thousand nine
hundred and forty dollars.

The greatest difference that could be made on route 38140 is six hundred
and eighty-nine dollars and fifty-one cents. These three differences
added together do not make what is charged in the indictment, three
thousand seven hundred and seventy-six dollars and forty-seven cents,
but as a matter of fact they amount to three thousand three hundred and
ninety-six dollars and seventy-one cents. This cannot be the fraudulent
claim described in the indictment.

But I find that on the first route there was a reduction of twelve
dollars and sixty cents, on the second route of one hundred and
fifty-four dollars and thirty-eight cents, and on the third of
thirty-eight dollars and two cents, and these deductions added together
make two hundred and five dollars and ninety cents, and deducted from
the three thousand three hundred and ninety-six dollars and seventy-one
cents leaves three thousand one hundred and ninety dollars and
eighty-one cents. And yet the Government charges that the fraudulent
claim was two thousand seven hundred and seventy-six dollars and
forty-seven cents. It is impossible that the amount of the claim said
to be fraudulent by the Government can be correct; but, as a matter of
fact, according to the evidence, there was no fraud upon any claim in
that route.

The next is route 38150, Saguache to Lake City. The charge is that Miner
presented a false account for two thousand two hundred and two dollars
and seventy-seven cents, and that he did this in pursuance of the order
set out in the indictment, and the only order set out is dated August
24, 1880. That is an absolutely fatal variance. As a matter of fact,
Sanderson was a subcontractor on this route from July 1, 1878, at
full rates, and he carried the mail from July 1, 1878. The route was
expedited on his oath and for his benefit. No point was made during
the trial that the oath was not true. And the pay was calculated upon
Sanderson's oath, and the money paid to him. The only claim is that
there was an error in the order of four thousand five hundred and
sixty-eight dollars per year, and it is admitted that the mistake was
afterwards corrected and the money refunded. You remember it, gentlemen.
Mr. Turner, in making up the account showing how much the expedition
would come to—and you understand the way in which they make up that
expedition—made a mistake and added to the expedition and the then
schedule the amount of the then schedule, four thousand and odd dollars.
He made the mistake and it was honestly made. No man would dishonestly
do it because it was so easy of detection, and that was his only fault,
gentlemen. The only crime he ever committed in this case was to make
that mistake. That mistake was afterwards discovered, and the money was
paid back by Mr. Sanderson; and, yet, that man has been indicted, has
been taken from his home charged with a crime. He has been pursued as
though he were a wild beast. He made one mistake. They could not prove
the slightest thing against him. There was no evidence touching him.
There was only one way for them, and that was to dismiss him with an
insult. You remember the case. Not one thing against that man—not one
single thing. He stands as clear of any charge in this indictment as any
one upon this jury. He is an honest man. It is admitted now there was no
conspiracy on this route either. It is Sanderson's route, not ours. Not
only that, but the Government says that it was not one of the routes
with which Vaile had anything to do, or in which Vaile had any possible
interest. The failure here is fatal to the indictment, and I shall
endeavor to show that it is fatal to the entire case.

The next route is 35105, Vermillion to Sioux Falls. It is charged that
Vaile and Dorsey presented a false account for the third quarter of
1879, for eight hundred and eighty-one dollars and fourteen cents.
The pay for six trips and expedition was one thousand and eighty-five
dollars and fifty-eight cents. The pay for two trips on the old schedule
was two hundred and four dollars and forty-four cents, showing a balance
for once, as stated in the indictment—it being the only time—of eight
hundred and eighty-one dollars and fourteen cents.

Parties are entitled to pay for the extra trips, and the number of
men and horses has nothing to do with the value of an extra trip.
You understand that. If I agree to carry the mail once a week for five
thousand dollars a quarter, and you wanted me to carry it twice a week,
then I get ten thousand dollars a quarter, no matter if I do it with the
same horses and the same men. That is not the Government's business.
You all understand that, do you not? Every time you increase a trip you
increase the pay to the exact extent of that trip, no matter whether it
takes more horses or not. If I agree to carry the mail once a month for
five thousand dollars a year, and you want me to carry it once a week
I am entitled to twenty thousand dollars, no matter if I do it with
all the same men and same horses. It is nobody's business. But, if the
Government wants the mail carried faster, then I am entitled to pay
according to the men and animals required at a more rapid rate. You all
understand that. But as a matter of fact, upon this route, Vaile was
the subcontractor at full rates, was so recognized by the Government and
received every dollar himself, and, consequently, the charge that it
was paid to John W. Dorsey is not true, and is a fatal variance. The
Government proved it was paid to Vaile.

Next we have two routes, 38145, Ojo Caliente to Parrot City, and
38156, Silverton to Parrot City. These routes are put together in the
indictment. It is charged that a false account was presented of six
thousand and four dollars and seventeen cents, and that this was done in
pursuance of an order set out in the indictment. The order set out is on
page forty-seven. It is in relation to route 38145. The order was made
not in relation to the other route. No order as to the other route was
made. This was made February 26, 1881, consequently the claim presented
for the third quarter of 1879 could not by any possibility have been in
pursuance of that order. That order was made in 1881. The payment for
the third quarter of 1879 could not by any possibility have been made in
pursuance of that order. The evidence shows that it was paid before, and
consequently there is a fatal variance.

Routes 40104, Mineral Park to Pioche, and 40113, Wilcox to Clifton—two
routes put together. The charge is a fraudulent presentation for the
third quarter of 1879, of seven thousand and sixty-four dollars and
seventy-two cents. The pay on the first route was ten thousand five
hundred and three dollars and sixty-two cents, on the second route
three thousand five hundred and twenty-eight dollars. No proof has been
offered that the expedition was fraudulent. Not a witness was called on
route 40113. Not a solitary petition was objected to, the truth of no
oath was called in question, the honesty of no order was attacked, and
how can you say that the claim was fraudulent? No order attacked, no
oath questioned, no petition impeached. The only evidence upon these two
routes was something read in regard to productiveness and the size of
the mail, and that is all.

Route 38113, Rawlins to White River. The charge is that John W. Dorsey
and Rerdell presented a false account for the third quarter of 1879 for
two thousand nine hundred and seventy-five dollars. The order set out
in the indictment was made March 8, 1881, consequently the variance is
absolutely fatal, and there is no allegation in the indictment that the
expedition was fraudulent.

Now I have gone through every route with the payments. As to the general
allegation of the amount of money fraudulently claimed and received, the
allegation in the indictment is that J. W. Dorsey received, by virtue of
these fraudulent orders, made in pursuance of the conspiracy, brought
to perfection by these overt acts, for the year ending the 30th day
of June, 1880, one hundred and twenty-four thousand five hundred and
ninety-one dollars. Good. The evidence shows that there was paid on
the seven Dorsey routes in all sixty-two thousand eight hundred and
thirty-one dollars and forty-six cents. That is fatal as to that.

But we will go further. One of these routes was turned over to Vaile by
Dorsey, route 35015, and the amount paid to Vaile was two thousand eight
hundred and thirty-seven dollars and sixteen cents. So that the amount
paid on the Dorsey routes, instead of being one hundred and twenty-four
thousand five hundred and ninety-one dollars, was in truth and in fact
fifty-eight thousand nine hundred and ninety-four dollars and thirty
cents.

Now, the charge is that this was all received by John W. Dorsey, whereas
the evidence shows that John W. Dorsey received three warrants, two for
eighty-seven dollars each, both of which were recouped, and one warrant
for three hundred and ninety-two dollars, and that is every cent he
ever received, according to the evidence in this case. There is what
you might call a discrepancy. The indictment says he got one hundred and
twenty-four thousand five hundred and ninety-one dollars. The evidence
shows that he got three hundred and ninety-two dollars and not another
copper. I shall insist that that is a variance. If it is not a variance,
I will take my oath it is a difference.

The second claim is that John R. Miner received upon the routes awarded
to him, and claimed to be his in the indictment, ninety-three thousand
and sixty-seven dollars for the fiscal year ending June 30, 1880. The
evidence is that as a matter of fact on all these routes the money was
paid to assignees and subcontractors, and that John R. Miner as a fact,
received not one cent from the Government.

The third charge is that Peck received for the same fiscal year one
hundred and eight-seven thousand four hundred and thirty-eight
dollars. The evidence shows that he received nothing. There is another
difference. Thus it will be seen that every link in the chain in this
indictment is either a mistake or a falsehood. Every other one is a
mistake and then every other one is a falsehood, and this indictment was
made by adding mistakes to falsehoods, and what the indictment weaves
the evidence reveals.

Now, why were these dates put in this indictment, gentlemen? We have now
gone over every overt act charged in this indictment. The result is that
not one of the charges set forth has really been sustained. Hereafter I
will notice some things that have been proved outside of the indictment.
Nearly every petition and letter is admitted to have been honest
and genuine. Those that have been attacked were misdescribed in the
indictment and the evidence has shown that they were substantially true.
There is a fatal variance between the allegation and the proof so far
as these charges in the indictment are concerned, and they are left
absolutely without a prop. The dates attached to the overt acts are
false. There is only one of the routes in which the petitions are
properly described, and that is route 44140, where the petitions are
alleged to have been and were filed on the 23d of May, and every one was
proved to have been genuine and honest. The dates in the indictment were
false. Now, why? Let me tell you, gentlemen. They had to deceive the
grand jury. It would not do to tell the grand jury these men conspired
on the 23d of May, and in pursuance to that conspiracy filed some
affidavits on the third day preceding. They had first to deceive the
grand jury and put in false dates for the filing of petitions, for the
filing of subcontracts and for the drawing of money. What else did they
want these false dates for? To deceive the Circuit Court, or rather
the Supreme Court—to deceive his Honor, because if the date of these
petitions, the date of these oaths, had been set forth in the indictment
it would have been bad. The Court would have instantly said, you cannot
prove a conspiracy on the 23d of May by showing acts in April previous.
So these false dates were put in, in the first place, to fool the grand
jury, and in the next place to keep this Court in the dark. It was
necessary to have a good charge on paper, and why? Did they expect to
win this case on that indictment? No; but they could keep it in court
long enough to allow them to attack and malign the character of these
defendants; they could keep it in court long enough to vent their
venom and spleen upon good and honest men, and justify in part the
commencement of this prosecution.

This forenoon I tried to strip the green leaves off the tree of this
indictment. Now I propose to attack the principal limbs and trunk. What
is the scheme of this indictment? I insist that the law is precisely the
same as to the scheme of the conspiracy in its description that it is
as to the description of an overt act. Now, what is the scheme of this
indictment? That is to say, the scheme of this conspiracy? We want to
know what we are doing. It is the great bulwark of human liberty that
the charge against a man must be in writing, and must be truthfully
described.

First. For the defendants, with the exception of the officers Brady
and Turner, to write, and procure the writing of, fraudulent letters,
communications, and applications. Now, let us be honest. Is there the
slightest evidence that a fraudulent letter was ever written? Is there
the slightest evidence that a fraudulent communication was ever sent to
the department? Not the slightest evidence.

Second. To attach to said petitions and applications forged names. Is
there any evidence of that except in one case, and the evidence in that
case is that the order was made before the petition was received and
that the petition was never acted upon. More than that, is there any
evidence as to who forged any names to any petitions? Not the slightest.
Which of these defendants are you going to find guilty upon that
petition when there is not the slightest evidence as to who wrote it?
What next? To have these petitions signed by fictitious names or with
the names of persons not residing upon the routes. Is there any evidence
of that kind? Is there any evidence that the signatures of real persons
were attached, and the real persons did not live upon the routes? I
leave it to you, gentlemen.

Fourth. To make and procure false oaths, declarations, and statements.
Those I shall examine.

Fifth. For William H. Turner falsely to indorse on the back of these
jackets false brief statements of the contents of genuine petitions. You
know what has become of that charge, gentlemen.

This indictment against Turner has been changed into a certificate of
good moral character. That is the end of the indictment, so far as he is
concerned, and I am glad of it. He is a man who fought to keep the
flag of my country in the air, and who lay upon the field of Gettysburg
sixteen days with the lead of the enemy in his body, and I am glad to
have the evidence show that he was not only a patriot, but an honest man
with a spotless reputation. I do not think that, in order to be a great
man, you have got to be as cold as an icicle. I do not think that if you
wish to be like God (if there is one) it is necessary to be heartless.
That is not my judgment. When I find that a man is honest I am glad of
it. When I find that a patriot has been sustained my heart throbs in
unison with his. What is the next? That Brady, for the benefit, gain,
and profit of all the defendants—and I emphasize the word all because
upon that I am going to cite to the court a little law—made fraudulent
orders; that is, for the benefit of Turner, Brady, and everybody else.
Eighth. That he caused these fraudulent orders to be certified to the
Auditor of the Treasury for the Post-Office Department. Ninth. That
Brady refused to enter fines against these contractors when they failed
to perform their service; that he fraudulently refused to impose these
fines. What is the evidence? The evidence is that the whole amount of
fines imposed by Brady was one hundred and twenty-six thousand eight
hundred and sixty-five dollars and eighty cents. That evidence is
given in support of the charge that he refused to impose them, yet the
imposition amounts to one hundred and twenty-six thousand dollars.
How much of that vast sum did he relieve the contractors from upon the
evidence? Twenty-three thousand dollars, leaving standing of fines
that were paid, one hundred and three thousand six hundred and seventy
dollars and twelve cents. That evidence is offered to show that he
conspired not to impose the fines. One hundred and twenty-six thousand
dollars imposed in fines, and only twenty-three thousand dollars
remitted. Yet the charge was, and an argument has been made upon it
before this jury, that the contractors agreed that he was to have fifty
per cent, of all fines that he took off. Think of a man making that
contract with aman having power to impose the fines. "Now, all you will
take off I will give you fifty per cent. of." There is an old story that
a friend of a man who was bitten by a dog said to him, "If you will take
some bread and sop it in the blood and give it to the dog it will cure
the bite." "Yes," he says; "but, my God, suppose the other dogs should
hear of it?" Think of putting yourself in the power of a man who has
the right to fine you. And yet that is a part of the logic of this
prosecution. The next charge is of fraudulently cutting off service and
then fraudulently starting it and allowing a month's extra pay. That
happened, I believe, in two cases—thirty dollars in one case and
something more in the other.

The Court. Thirty-nine dollars.

Mr. Ingersoll. Then the case is nine dollars better than I thought.
Twelfth. By the defendants fraudulently filing, subcontracts. That I
have already shown is an impossible offence. All these things were done
for the purpose of deceiving the Postmaster-General. Now, the Court
has already intimated that we have no right to say that the
Postmaster-General would be a good witness to show whether he was
deceived or not, and that it may be that his eyes were sealed so tightly
that he has not got them open yet. But whether they can prove it by him
or by somebody else they have got to prove it in order to make out this
case.

That is the scheme of this indictment. It makes no difference whether
the Postmaster-General has found out that he was deceived or not. The
jury have got to find it out before they find a verdict against the
defendants. It is possible that the Postmaster-General thinks he was not
deceived or that he was; I do not know what his opinion is and do not
care. They have got to prove it by somebody. I do not say they can prove
it by him. I do not know. This is the scheme, and what I insist is that
this scheme must be substantiated and must be proved precisely as it has
been laid without the variation of a hair. You must prove it as you
have charged it, and you must charge it as you prove it. It is simply a
double statement. I wish to submit some authorities to the Court upon
this question: Must the exact scheme be proved? First, I will refer the
court to the tenth edition of Starkie, page 627.   *

"It is a most general rule that no allegation which is descriptive of
the identity of that which is legally essential to the claim or charge
can ever be rejected.   * As an absolute and natural identity of
the claim or charge alleged with that proved consists in the agreement
between them in all particulars, so their legal identity consists in
their agreement in all the particulars legally essential to support the
charge or claim, and the identity of those particulars depends wholly
upon the proof of the allegation and circumstances by which they are
ascertained, limited and described."

No matter whether the description was necessary or unnecessary:

"To reject any allegation descriptive of that which is essential to a
charge or a claim would obviously tend to mislead the adversary.   *
It seems, indeed, to be a universal rule that a plaintiff or prosecutor
shall in no case be allowed to transgress those limits which in point
of description, limitation, and extent he has prescribed for himself; he
selects his own terms in order to express the nature and extent of his
charge or claim, he cannot therefore justly complain that he is limited
by them.   * As no allegation therefore which is descriptive of any
fact or matter which is legally essential to the claim or charge can
be rejected altogether, inasmuch as the variance destroys the legal
identity of the claim or charge alleged with that which is proved, upon
the same principle no allegation can be proved partially in respect to
the extent or magnitude where the precise extent or magnitude is in its
nature descriptive of the charge or claim."

Nothing can be plainer than that. I refer also to Starkie on Evidence,
7th American edition, vol. 1, page 442. There he says:

"In the next place it is clear that no averment of any matter essential
to the claim or charge can ever be rejected, and this position extends
to all allegations which operate by way of description or limitation of
that which is material."

I also cite Russell on Crimes, 9th American edition, vol. 3, page 305,
and Roscoe's Criminal Evidence, 7th edition, page 86.

I now call the attention of the Court to the case of Rex vs. Pollman and
others, 2 Campbell, 239. I may say before reading this decision that,
in my judgment, so far as the scheme of this indictment is concerned, it
should end this case:

"This was an indictment against the defendants which charged that they
unlawfully and corruptly did meet, combine, conspire, consult, consent
and agree among themselves and together, with divers other evil-disposed
persons, to the jurors unknown, unlawfully and corruptly to procure,
obtain, receive, have and take, namely, to the use of them, the said F.
P., J. K. and S. H., and of certain other persons to the jurors likewise
unknown, large sums of money, namely, the sum of two thousand pounds,
as a compensation and reward for an appointment to be made by the lord's
commissioners of the treasury of our lord the king of some person to a
certain office, touching and concerning His Majesty's customs, to wit,
the office of a coast waiter in the port of London, through the corrupt
means and procurement of them, the said F. P., J. K. and S. H., and of
certain other persons to the jurors unknown, the said office then and
there being an office of public trust, touching the landing and shipping
coastwise of divers goods liable to certain duties of custom."

The indictment went on and stated various overt acts in furtherance of
the conspiracy.

"There were several other counts which all laid the conspiracy in the
same way."

Now I come to the part of the case which, in my judgment, affects this:

"It appears that the defendants Pollman, Keylock and Harvey had entered
into a negotiation with one Hesse to procure him the office mentioned in
the indictment for the sum of two thousand pounds, which they had
agreed to share among themselves in certain stipulated proportions; but
although this money was lodged at the banking house of Steyks, Snaith &
Co, in which the defendant Watson was a partner, and he knew it was to
be paid to Pollman and Keylock upon Hesse's appointment, there was no
evidence to show that he knew that Sarah Harvey was to have a part of
it, or that she was at all implicated in the transaction."

He was a co-conspirator, and he knew that the money was to be deposited
at this place.

He knew that, but he did not know that Sarah Harvey was to have a part
of it.

"Lord Ellenborough threw out a doubt whether as to Watson the indictment
was supported by the evidence."

The evidence being that Watson did not know that it was to be divided in
the precise way stated in the indictment. Manifestly, they need not have
stated in the indictment how it was to be divided; but having stated it,
the question is: Are they bound by the statement? Let us see:

"The attorney-general contended that the words in italics coming under
a videlicet might be entirely rejected. The sense would be complete
without them. The indictment would then run that the defendants
conspired together to obtain a large sum of money as a consideration
and reward for appointment to be made by the lord's commissioners of the
treasury. This was the corpus delicti. The use to which the money might
be applied was wholly immaterial. The offence of conspiring together
would be complete however the money might be disposed of."

True.

"There was no occasion to state this, and the averment might be treated
as surplusage. Suppose the manner in which the money was to be disposed
of had been unknown. Would it have been impossible to convict those
engaged in the conspiracy? But, without rejecting the words, the
variance was immaterial. The charge in the indictment had been
substantially made out as laid.

"Dallas and Walton, of counsel for Watson, denied that the words could
be rejected, though laid under a videlicet, as they were material, and
they were not repugnant to anything that went before. The application
of the money might be of the very essence of the offence. Suppose it had
been obtained for the use of the lords of the treasury, who would make
the appointment: would not this be a much greater crime than if the
money had been obtained for the benefit of a public charity?"

I think that reasoning is bad. I think the crime is exactly the same.

"But if the words were rejected then the variance was more palpable. In
that case, there being no mention of any persons to whose use the money
was obtained, the necessary presumption was that it was obtained to the
use of the defendants themselves."

That is good sense.

"The evidence shows, however, that Watson was to have no part of it,
and that he was utterly ignorant of the manner in which it was to be
distributed.

"Lord Ellenborough. There can be no doubt that the indictment might have
been so drawn as to include Watson in the conspiracy. Even if the manner
the money to be applied was unknown, this might have been stated on the
face of the indictment, and then no evidence of its application would
have been required. The question is, whether the conspiracy as actually
laid be proved by the evidence?"

That is the question: Have they made out a case according to the
scheme of the indictment? Has the conspiracy as laid been proved by the
evidence?

"I think that as to Watson it is not. He is charged with conspiring to
procure this appointment through the medium of Mrs. Harvey, of whose
existence for aught that appears he was utterly ignorant. When a
conspiracy is charged it must be charged truly."

He did not know that Mrs. Harvey was to have a portion of the money, and
yet she was a member of the conspiracy. The evidence showed that she was
to have a portion of it, and Lord Ellenborough says that they did not
prove the charge as laid, and that it cannot include Watson.

"Garrow submitted that it was unnecessary to prove that each of the
defendants knew how the money was to be disposed of, and that it was
enough to show that the destination of the money was as stated in the
indictment. A fact of which all those engaged in the conspiracy must be
taken to be cognizant. Watson by engaging with the other conspirators
to gain the same end, had adopted the means by which the end was to be
accomplished."

That is what the attorney for the Government says. Lord Ellenborough
replies:

"You must prove that all the defendants were cognizant of the object of
the conspiracy and the mode stated in the indictment by which it was
to be carried into effect. A contrary doctrine would be extremely
dangerous. The defendant Watson must be acquitted."

Now let us apply that case to this. In the first place, they must not
only prove this indictment according to the scheme, but they must prove
that every defendant understood that scheme, knew the scheme, how it was
to be accomplished and what was done with the money.

The Court. In that case Watson was acquitted. What was done with the
others?

Mr. Ingersoll. They, of course, were found guilty, because they were
guilty, as the indictment charged. They knew the exact scheme set forth
in the indictment. They were guilty exactly as the indictment said. They
divided the money exactly as the indictment charged they divided
the money, and they were cognizant of every fact set forth in the
indictment. But Watson, although a co-conspirator, did not know what was
to be done with the money, and consequently was to be discharged. Why?
Because they did not prove the conspiracy as to him as charged. They
need not have set forth in the indictment what was to be done with the
money, but they did set it forth, and then they had to prove it. They
need not have said that every man knew what was done with the money,
but they did say that every man knew, and they failed to prove it, and
when they failed to prove it as to Watson he was discharged.

Now, gentlemen of the jury, what I insist upon and what I shall ask the
Court to instruct you is that the Government, no matter how guilty the
defendant may be, no matter if he has robbed this Government of hundreds
of millions, is to be tried by this indictment, is to be guilty of this
charge as written in this indictment and nowhere else; and he has got
to understand it. They say he understood it, and they have got to prove
that he understood it.

Now, upon that same subject they say that the money was to be divided
between all these parties—between Rerdell, Turner and everybody. I
think it was Mr. Bliss who said there was no evidence that Rerdell ever
had any of the money. Certainly they do not think that Turner obtained
any of the money. Is there any evidence of it? Not the slightest. Is
there evidence that there ever was any division, any evidence that
there was ever any money divided upon a solitary route mentioned in this
indictment? Not one particle. If you say there is evidence, when was the
division made?

The Court. The question is not what was done. The question is with what
view the conspiracy was entered into.

Mr. Ingersoll. Certainly.

The Court. 'The object of the conspiracy may have failed, and this money
might not have been divided as they intended, but still the conspiracy
would be here.

Mr. Ingersoll. Good, perfectly. But if they set forth in this indictment
that the money was divided, that statement is not worth a last year's
dead leaf unless they prove it. That is all I insist upon. You cannot
find anybody guilty of charges in an indictment unless you prove them.
Unless you prove them they amount to no more than charges written in
water, than characters engraved on fog or written on clouds. You have
got to prove them.

Now, upon this same point I say that if the scheme has not been
established by the evidence, the case fails, no matter what the proof.
The offence must not only be proved as charged, but it must be charged
as proved, doubling the statement for the sake of doubling the idea of
accuracy. That is in Archibald's Criminal Pleadings, American edition,
page 36. The same thing is held in First Chitty's Criminal Law, 213. I
also refer to the case of King against Walker, 3d Campbell, 264; King
vs. Robinson, 1st Hope's Nisi Prius Reports, 595. I have the books here,
but I will not take up the time of this Court in reading them.

Now, if I am right, that is the language of that indictment. The overt
acts with the leaves are gone; the scheme with the branch and trunk are
gone. They prove no such scheme, they prove no such division.

I will now proceed to examine the alleged evidence against my
clients, Stephen W. and John W. Dorsey, and I want to say right in the
commencement that suspicion is not evidence. You charge that a couple of
persons conspired. That they met about nine o'clock on the shadowy side
of the street.

A suspicious circumstance. Why did they not get under the lamp? They
were seen together once more, and the moment a man came up they walked
off. Guilty. They ran. And out of these idiotic suspicions that never
would have entered the mind, except for the reason that the persons were
charged, hundreds of people begin to say, "There is something in it.
They met four or five times. One of them wrote a letter to the other,
and so help me God it was not dated." Another suspicious circumstance.
"There was a heading on the paper. It was not the number of his
office." So they work it up, and ignorance begins to stare, and wonder
to open its mouth, and finally prejudice finds a verdict.

Suspicion, gentlemen, is not evidence. You want to go at this with this
idea. Whatever a man does, the presumption is it is an honest act until
the contrary is shown. These men wrote letters. They had a right to do
it. They met. They had a right to meet. They entered into contracts.
They had a right to do it, no matter whether they were dated or not
dated. One of the greatest judges of England said if you let out of
the greatest man's brains all the suspicions, all the rumors, all the
mistakes, and all the nonsense, the amount of pure knowledge left would
be extremely small. If you take out of this case all the suspicions,
all the guesses, all the rumors, all the epithets, all the arrogant
declarations, the amount of real evidence would be surprisingly small.

Now, I want to try this case that way. I do not want to try it by
prejudice. Prejudice is born of ignorance and malice. One of the
greatest men of this country said prejudice is the spider of the mind.
It weaves its web over every window and over every crevice where light
can enter, and then disputes the existence of the light that it has
excluded. That is prejudice. Prejudice will give the lie to all the
other senses. It will swear the northern star out of the sky of truth.
You must avoid it. It is the womb of injustice, and a man who cannot
rise above prejudice is not a civilized man; he is simply a barbarian.
I do not want this case tried on prejudice. Prejudice will shut its eyes
against the light. I want you to try it without that.

And right here, although it is a subject about which most courts are a
little tender, the question arises as to the jury being judges of the
law and fact. One of the attorneys for the Government, Mr. Merrick, told
us that at one time he insisted that the jury was the judge of the law,
and made this remarkable declaration:

"But even at the time I spoke the words to the jury I did not believe
them to be indicative of safe and true principles of law."

Was he candid then? Is he candid now? I do not know. But his doctrine
appears to be this: "When I am afraid of the court I insist on the jury
judging the law. When I am afraid of the jury I turn the law over to the
court. But in this case, having confidence in both judge and jury, it is
wholly immaterial to me how the question is decided."

Now, if it please the Court, I believe the law to be simply this: I
believe the jury to be absolute judges of the facts, and yet if on the
facts they find a man guilty whom the court thinks is not guilty, the
court will grant a new trial. The court has the power to set aside a
verdict because the jury find contrary to the evidence. The court cannot
do it, however, when the jury finds a verdict of not guilty. I do not
believe that the jury have a right to disregard the law from the court
unless a juryman upon his oath can say that he believes, he knows, or
is satisfied that is not the law; and he must be honest in that, and he
must not be acting upon caprice. He must be absolutely honest. He must
be in that condition of mind that to follow the law pointed out by the
court would trample upon his conscience, and that he has not the right
to do. That is all the distance I go.

The history of the world will show that some of the grandest advances
made in law have been made by juries who would not allow their
consciences to be trampled into the earth by tyrannical judges. I am not
saying that for this case.

I am simply saying that as a fact. There was a time in this country when
they used to try a man who helped another to gain his liberty, and
there was now and then a man on the jury who had sense enough, and heart
enough, and conscience enough to say, "I will die before I carry out
that kind of law." They did not carry it out either, and finally the law
became so contemptible, so execrable, that everybody despised it. All
I ask this jury to do is just to be governed by the evidence and by the
law as the Court will give it to them, honestly and fairly.

Now, I am coming to the evidence against John W. Dorsey. I am traveling
through this case now we have started it. As you have heard very little
about it, gentlemen, and there is nothing in the world like speaking on
a fresh subject. I feel-an interest in John W. Dorsey. He is my client.
I believe him to be an absolutely honest man. He is willing to take the
effect of all his acts. He is no sneak, no skulk. He will take it as it
is. Let us see what he has done.

The first witness is Mr. Boone. Mr. Boone swears that John W. Dorsey was
one of the original partners. Well, that is so. It is claimed that the
conspiracy was entered into before there was any bidding. Well, Boone
does not uphold that view. Now, if Boone and Miner and John W. Dorsey
and Peck had an arrangement with Brady whereby they were to bid and then
have expedition and increase, I want to ask you why did Boone write
to all the postmasters to find out about the roads and the cost of
provender, and the kind of weather they had in the winter in order to
ascertain what bid to make? If he had had an arrangement with the Second
Assistant Postmaster-General to expedite the route he would have simply
made up his mind to bid lower than anybody else, and he would not have
cared a cent what kind of roads they had there, or what kind of weather
they had in the winter, or how much horse provender cost, and yet he
sent out thousands of circulars to find out these facts. For what? To
make bids. What for? According to the Government these were routes on
which they had already conspired for expedition and increase without the
slightest reference to the horses and men, and of course, if that theory
is true, Boone is one of the conspirators. But I will come to that
hereafter.

More routes, according to Boone's testimony, were awarded than they
anticipated. They got, I think, one hundred and twenty-six. They had no
money to stock the routes. They got more than they expected. Well, that
was not a crime. Boone left in August, 1878, and Mr. Merrick takes the
ground that Boone had done the work, manipulated all the machinery, and
yet could not be trusted with the secret. Boone had gathered all the
information, he had done the entire business, and yet the secret up to
that time had been successfully kept from him. Do you believe that?

Now, Vaile came, and another partnership was formed, and the second
partnership remained in force, I think, till the 1st of April, 1879, or
the last day of March, and then the routes were divided. Now, then,
John W. Dorsey is charged with conspiracy as to these routes, and these
routes were afterwards assigned to S. W. Dorsey to secure advances and
indorsements that were made.

Now, of the routes mentioned in the indictment, John W. Dorsey was
interested in seven at the time of the division. From Vermillion to
Sioux Falls, from White River to Rawlins, from Garland to Parrott City,
from Ouray to Los Pinos, from Silverton to Parrott City, from Mineral
Park to Pioche, and from Tres Alamos to Clifton. How much money did
he get on all these routes? I have already shown you. He received
two warrants for eighty-seven dollars and they recouped them both. He
received another warrant for three hundred and ninety-two dollars and
succeeded in keeping it. That is all the money he got in these seven
routes. Now, the testimony of Mr. Vaile shows, if it shows anything,
that after April, 1879, he took those routes and kept them and never
paid a dollar to any official in the world, and he also swears that no
matter how much he got, it made no difference as to the routes that had
been given to John W. Dorsey and Peck. It could not in any way affect
their amount, and that no person in the world except themselves had any
interest in them.

Now, it is charged that false affidavits were made by John W. Dorsey,
and that the making of these false affidavits was the result of
conspiracy. Let us see. It has been shown by the evidence, and I have
already shown it, and conclusively shown it, that the affidavit was
substantially correct, so far as the proportion was concerned.

Now, let me explain what I mean by proportion. For instance, I am
getting five thousand dollars a year on a route, and it takes five men
and ten horses. That is an aggregate of fifteen. Now, suppose I simply
expedite it a certain number of miles an hour, and say it will take
fifteen men and thirty horses. That makes an aggregate of forty-five,
does it not? Then the Government gives me three times as much for the
expedited service as for the then service. Now, suppose I am getting a
thousand dollars, and it only takes one man and one horse, and I make an
affidavit that it takes one hundred men and one hundred horses, and if
it is expedited it will take two hundred men and two hundred horses, how
much more do I get? I get just double, and the result of the affidavit
is exactly the same as though I said the one man and one horse that it
then took, and it would require two men and two horses. If you keep
the proportion you cannot by any possibility commit a fraud against the
Government. Now we understand that. Now let us see. When you make an
affidavit, what do you do? When you make an affidavit of how many horses
it will take, you take into consideration the length of the term, three
or four years. You take into consideration the life of a horse. You
take into consideration the roads and the weather. You take into
consideration every risk, and find it is only a matter of judgment, only
a matter of opinion, and the fact that men differ as to their judgment
upon those points accounts for the fact that they make different
affidavits. If everybody made the same calculation as to food, as to
weather, as to roads, as to disease, everybody would make substantially
the same bid, but on the same route they differ thousands of dollars a
year, because they differ in judgment as to the number of horses it will
require and as to the number of men.

And then there is another thing. Some men will make a horse do twice as
much as others. Some men are hard and fierce and merciless. Some men
are like they ask you to be in this case—icicles. Some men resemble
the gods so far that they will make a horse do five times the work they
should, and other men are merciful to the dumb beast. So they differ
in judgment. One man says he can go twenty-five miles every day, and
another man says he can only go fifteen. One man says stations ought to
be built twenty-five miles apart; another says they should be built
ten miles apart. They differ, and for that reason, gentlemen, the bids
differ, and for that reason the affidavits differ.

I shall not speak of all these affidavits, but I shall speak of the ones
that have been attacked. Mr. Merrick called Mr Dorsey a perjurer because
he made two affidavits on route 38145. Now, no such charge is made
in the indictment, but I will answer it. Now, then, as to the two
indictments—The Court. Two affidavits.

Mr. Ingersoll. Two affidavits. Well, there ought to have been two
indictments to cover both cases. Now, this is on route 38145, Garland
to Parrott City. Now, there were two affidavits made on 38145, as is
set forth in the evidence, but it is not in the indictment. The first
affidavit was sworn to March 11, 1879, in Vermont, and filed April 16,
1879. Neither could come in under this conspiracy anyway. The second was
made in Washington, April 26, 1879, and filed the same day, which is a
suspicious circumstance. The letter dated April 23, 1879, according to
the prosecution, purports to transmit an affidavit made on the 26.
There is no evidence that the affidavit dated the 26 was inclosed in
the letter dated the 23. The affidavit set forth the number of men and
animals required to run the route on a schedule of fifty hours, three
trips a week. There is no evidence as to the character of the paper
transmitted, if any was transmitted, nor in fact, is there any evidence
that any paper was transmitted with that letter.

Now, on page 804 of the record, Mr. Bliss submitted two papers to Mr.
McSweeney, a witness, saying, "I show you two papers pinned together."
Who pinned them? I do not know. "One dated April 26, 1879, and the
other dated April 24, 1879." The paper dated April 26 is indorsed in
the handwriting of William H. Turner. The indorsement on the paper dated
April 24 is in the handwriting of Byron C. Coon. This fact shows that
the papers that were read by Mr. Bliss as one paper and marked 17
E, were treated by the department as two separate papers received on
separate dates, and so marked and so filed, and they were marked at the
time they were identified as numbers 17 and 18. Now, the only question
is whether the last affidavit was made for the purpose of committing a
fraud upon the Government and whether the change in the figures in
the last affidavit were intended to or could in any way defraud the
Government of the United States.

Now, let us see what it is. Mr. Merrick charges that the second oath was
willful perjury. In order to show that this was an honest transaction,
and that Mr. Dorsey should be praised instead of blamed, I will call
your intention now to the exact state of facts. Now, if I do not make
out from this that it was a praiseworthy action instead of perjury, a
good, honest action, I will abandon the case. In the first affidavit
Dorsey swore that it would require three men and seven animals as the
schedule then was, and that for the proposed schedule it would take
eleven men and twenty-six animals. Now, three men and seven animals make
ten, and eleven men and twenty-six animals make thirty-seven. So that by
the first affidavit he swore that it would take three and seven-tenths
more animals to carry the mail on the expedited schedule than on the
schedule as it then was, did he not? Three men and seven animals as
against eleven men and twenty-six animals it would take three and
seven-tenths more animals, consequently you would get for that three and
seven-tenths more pay. Now, let us understand that. That is an increase
in the ratio of ten to thirty-seven, and if his pay had been calculated
on that first affidavit it would have been thirteen thousand four
hundred and thirty-three dollars and four cents. But it was not
calculated on that. He made another affidavit. Now, the second affidavit
said that it would take twenty men and animals instead of ten, as it
then was, and for the expedition fifty-four men and animals. Now, the
ratio between twenty and fifty-four was two and seven-tenths instead of
three and seven-tenths, so that under that second affidavit, which they
say was willful and corrupt perjury, he would only get eight thousand
four hundred and fifty-seven dollars, and the change of that affidavit,
if the amount had been calculated on the first instead of the second,
would have cost him for the three years yet remaining of his term
fourteen thousand nine hundred and twenty-five dollars and sixty cents,
and that change saved, exactly as if they had made the calculation on
the other affidavit, about fifteen thousand dollars, and yet they tell
me that that was willful and corrupt perjury. There has nothing been
shown in the case more perfectly honorable. Nothing shown calculated
to put John W. Dorsey in a fairer, in a grander light, than this very
affidavit that is charged to have been willful perjury. Do you see?
He made the first affidavit, and in it he made a mistake against the
Government of fourteen thousand nine hundred and twenty-five dollars,
and, then, like an honest man, he corrected it, and for that honest
correction he is held up as a perjured scoundrel. It will not do, my
friends.

But, as a matter of fact, not one of these affidavits is set out in the
indictment, not one charged in the indictment. They are wandering tramps
that were picked up as they went along with this case, and have no
business here.

In route 38152 he made no affidavit. In route 38113 there is no charge
in the indictment that he made any affidavit. In the route 38156
the affidavit was not false. It was charged and was not successfully
impeached. In route 40104 the affidavit was never disputed and it was
never attacked. In route 40113 the affidavit was not attacked, not a
solitary witness was examined. In route 35105 no affidavit was made by
Dorsey. In route 38134 there are two more affidavits.

Now let us see. Here is some more fraud. Put it down, 38134—two
affidavits—a great fraud. The first affidavit said three men and twelve
animals. That made fifteen; that for the expedition it would take seven
men and thirty-eight animals. That made forty-five. In other words the
proportion was fifteen to forty-five, just three times as much. Three
times fifteen make forty-five. Then he made a second affidavit, filed
with a purpose to defraud the Government. Let us see. In the second
affidavit he said that it took two men and six animals. That makes
eight. That on the expedition it would take six men and eighteen
animals. That makes twenty-four. The proportion was eight to
twenty-four. Three times eight make twenty-four; and three times fifteen
make forty-five. So that the amount was raised exactly the same to
a cent, under the second affidavit that it was under the first, and
consequently could not have been made for the purpose of defrauding
anybody. Impossible. The proportion of course is the material thing in
every affidavit, and it is only by that proportion that you can tell
whether they are trying to defraud this Government or not. Suppose that
second affidavit had changed the proportion so that he was not to get
just the amount of money, then you might say it was a fraud. But it did
not change the proportion.

On route 38156 another affidavit is filed and not successfully
impeached. I went over that. I have got through with that. That is all
there is to it. That is all, that is everything—everything—everything.
There is no evidence tending to show that John W. Dorsey ever spoke
to Thomas J. Brady. There is no evidence to show that he ever saw him.
There is no evidence to show that he was ever seen in his company; no
evidence to show that he ever saw Turner; that he ever heard of Turner;
that he ever spoke to Turner; that he ever received a letter from
Turner; that he ever wrote anything to him; no evidence as a matter of
fact that he ever exchanged a word with these men; no evidence that he
ever saw Harvey M. Vaile; that he ever spoke to him. Certainly there is
no evidence that he ever conspired with him. No evidence that he ever
made an agreement with Thomas J. Brady or with Mr. Turner or with any
officer—no agreement of any sort, kind, character, or description at
any place, upon any subject, or for any purpose, not the slightest;
no evidence that he conspired with anybody; no evidence that he ever
received from the United States a solitary dollar, with the exception of
three hundred and ninety-two dollars—not the slightest.

There is no evidence that he ever wrote a false communication to the
department—nothing of it. There is no evidence that he ever wrote a
petition; no evidence that he ever forged one; no evidence that he ever
signed anybody's name to one; no evidence that he did anything of the
kind or that he ever changed one; no evidence that he ever put a man's
name to it that did not live on the route; no evidence that he ever
put in a fictitious name; no evidence that he helped to deceive the
Postmaster-General—not the slightest. If there is I want somebody just
to put their finger upon the evidence. There is no evidence that he ever
made false statements at any time. There is no evidence that he ever
paid, as I say, a dollar to any official, and no evidence that he ever
promised to pay it. All the evidence is that he got three hundred and
ninety-two dollars. He made the affidavits in accordance with what
he believed to be the truth. The evidence shows that when he made the
affidavits on those routes he had no personal interest, that he received
not a dollar for making them. He made them because he supposed the
contractor or subcontractor had to make them. He made them because he
believed them to be true. He was guided by the little experience he had
himself and by the statements made to him by others; and in all this
evidence there is not a word, not a line, not a letter tending to
show he did a dishonest act, and the jury will bear me out that in
the affidavits attacked he was substantially right, while in the first
instance he was too high; in others he was too low. But there is no
evidence that he deliberately swore to what he believed to be untrue.
The proportion sworn to by him has always been substantially correct.
In other words, gentlemen, the testimony shows that John W. Dorsey is an
honest man, and there is no jury, there never was, there never will be,
that will find a man like that guilty upon evidence like this. It never
happened; it never will happen.

Now, I come to my other client, Stephen W. Dorsey, and I feel an
interest in him. He is my friend. I like him. He is a good man. He has
good sense. He is not simply a politician, he is a statesman; and I want
you to understand that he never did an act in this case that he did not
thoroughly understand as well as any lawyer in this prosecution ever
will understand; or as well as any lawyer of the defence ever will
understand. He knew exactly his liabilities. He knew exactly his
responsibility. He knew exactly what he did and he knew he did only what
was right. In the opening of this case Mr. McSweeney made a statement.
He told you the exact connection of Dorsey with this matter. He not
only told you that, but he told you that Dorsey had lost money on these
routes, and that he had never been repaid the money he had advanced, and
in that connection he said that he had turned the routes over to James
W. Bosler, and the department knew of James W. Bosler because they
introduced testimony here that the warrants were paid to James W.
Bosler. Mr. McSweeney stated that Bosler controlled the business, and
now we are asked by the prosecution, "Why did you not bring James W.
Bosler on the stand and show that you had lost money?" I return the
compliment and say to them, why did you not bring James W. Bosler on the
stand and show that it was not true that we had lost money, as he kept
the books? I ask them that. Why did they not bring James W. Bosler?

Mr. Merrick. If your Honor please, there is no evidence whatever as to
whether S. W. Dorsey lost money on those routes, and the statement of
counsel made in the opening, I respectfully submit, cannot be used as
evidence by the counsel in the case.

The Court. Of course it is impossible for me to say after so long a time
spent in receiving evidence what evidence has been given on a disputed
question. I cannot say from recollection what evidence has been given
on this subject, but I understand the remarks now made are not made upon
evidence in the case, but in reply to remarks made in the opening in the
case.

Mr. Ingersoll. Partially so.

Mr. Merrick. The opening by their counsel.

The Court. By their counsel.

Mr. Merrick. By their counsel, Mr. McSweeney.

Mr. Ingersoll. Let me just state it, and the Court will understand it
perfectly. Mr. McSweeney, in his opening, said that these routes had
been turned over to James W. Bosler; that he received the money and paid
it out, and that S. W. Dorsey on these very routes had not made money,
but lost money. Very well. But that statement was simply a statement. It
was never proved afterwards. The Government said to us, "Why did you not
bring James W. Bosler to prove that?"

The Court. Where did they say that?

Mr. Ingersoll. They said it in their speeches. Mr. Merrick said it.

Mr. Merrick. Not to prove as to the money.

Mr. Ingersoll. Ay, "Why did you not bring James W. Bosler?"

Mr. Merrick. Yes, but not as to proof of money; but as to other
questions in reference to the distribution of routes and the loaning of
money by Dorsey, and by Bosler to Dorsey, and Dorsey's transfer of
the routes to Bosler as security for the loan as appeared in Vaile's
testimony.

The Court. I shall not interfere.

Mr. Merrick. I shall not attempt to arrest the course of counsel
unless there is ground for it, and I ask the Court that, there being
no evidence of this fact, that the counsel shall not—Mr. Ingersoll.
[Interposing.] I am going to show there is some evidence.

The Court. I understand it is a remark in reply to an observation of
your own.

Mr. Ingersoll. That is principally it. Now, they introduced the
warrants that had been drawn by the contractors and subcontractors from
the Post-Office Department; they proved that these warrants had been
paid to James W. Bosler, and that one after the other, hundreds had been
assigned to James W. Bosler. Now, then, I say, they say to us, "Why do
you not bring in James W. Bosler and prove your innocence?" I say why
did you not bring in James W. Bosler and prove our guilt? We opened the
door. We told you the name of the witness. We told you that he had taken
the routes; that he kept the books; that he disbursed the money, and
that we had lost money. Instead of robbing the Government the Government
has robbed us; and they say, "Why did you not bring Bosler?" and I say
to them, why did you not bring him? They know him, and they know he is a
reputable man.

Now, there is another point. I ask you all to remember what was said in
the opening, and I understand that a defence is bound by its opening,
bound by what it says to the jury. The question is, Has any fact been
substantiated in this case that contradicts a statement made in the
opening?

The Court. The defence has no right to avail itself of—Mr. Ingersoll.
[Interposing.] Of what it says.

The Court. Of what it says in its opening unless it is followed by
evidence.

Mr. Ingersoll. Certainly not, but it has a right to show that no
evidence has been introduced by the Government that touches that opening
statement. It has the right to do that, surely.

Now, then, Mr. Boone was the witness for the Government—a smart man.
He swore who were interested in the bidding. He told and he positively
swore that Dorsey was not interested in these routes. He gave the names
of the persons interested, and he swore positively that he was not.
Dorsey then, I say, had not the slightest interest. He loaned money,
he went security, he assisted in getting sureties on bonds, and you
recollect the trouble that they have made about some bonds. Has there
any evidence been introduced to show that there was a bad bond? Has any
evidence been introduced to show that the name of an insolvent man was
put upon any bond as security? Has there been any evidence to show
that any action was ever commenced on any of these bonds; any evidence
tending to show that every bond was not absolutely good? As a matter
of fact, the Government waived all of that. In offering the contract on
route 35015, Mr. Merrick made this remark:

"It is offered for the purpose of showing the contract made. The
contract itself is not an overt act. That is all right. There is nothing
criminal about that."

Good!

Nothing criminal about any contract, gentlemen. You will all admit they
had to make the bids, and if they were the lowest bidders it was the
duty of the Government to accept the bids and afterwards to make the
contracts in accordance with them. There was nothing wrong in that. That
is Dorsey's first step. His first step really was an act of kindness.
What was the second step? He was unable to advance any more money. Mr.
Peck, Mr. Miner, Mr. Dorsey, and Mr. Boone were unable to advance
the money, so Mr. Boone went out and Mr. Vaile came in, and the new
partnership agreed to refund this money that had been advanced; that
is, the money advanced by the other parties. What one gets another to
advance is really advanced by him as long as he is liable for it. Mr.
Vaile, a man of large experience and means, was taken in Boone's place.
Is there anything suspicious up to this time? That is the only test of
this whole question. Is it natural? If it is natural there is no chance
for suspicion. After Mr. Vaile came in, a written contract was made
on August 16, 1878. There is no conspiracy up to that time. Not the
slightest evidence of it; no arrangement with any officers up to that
time. Now, under the August contract, Mr. Vaile took the entire business
in charge, and he ran it, as I understand, until the first day of April,
1879. No officer had any interest in it then. There was no conspiracy
then. Vaile received all the money and paid it out. Here we stand on the
first day of April, 1879. Now, what is the history up to this time? That
John W. Dorsey, Peck, Miner, and Boone were bidders; that certain routes
had been awarded, they had not the money to stock the routes, and that
S. W. Dorsey advanced some money and went security; that afterwards
Boone went out and Vaile came in, and the contract was made by virtue
of which Vaile became the treasurer and knew everybody, and ran the
business to the first day of April, 1879. He swears positively that he
made no arrangement and that he paid no money. It is also in evidence
that in December, 1878, Stephen W. Dorsey and Vaile met for the first
time, and met in the German-American Bank for the purpose of settling
the claim upon which Dorsey was security, and replacing the notes upon
which Dorsey was, by notes of Vaile, Miner & Co. Afterwards these notes
were paid by Vaile and the security of Dorsey released. Now, in April,
1879, a division is made. The contract of August, 1878, was done away
with and a division 'of the routes was made, seventy per cent, being
taken by Vaile and Miner and thirty per cent, by John W. Dorsey and
Peck. In April, 1879, the parties divided instead of coming together.
They do not conspire. They separate. They do not unite. They go asunder.
From that moment they agree to have nothing in common. Each man takes
his own, and each man attends to his own and does not help anybody else
except when they insist that a contractor or subcontractor shall make
the affidavit. They made affidavits on the routes on which they were
contractors. That is all there is to it up to that time. Then these
routes were assigned to Dorsey for the purpose of securing him.

Now, I go to the overt acts charged against Stephen W. Dorsey. Do
you know I am delighted to get right to that page of my notes. I am
delighted that I now have the opportunity to answer and to answer
forever all the infamous things that have been charged against this man.
Here we are, before this jury, a jury of his fellow-citizens, a jury
that has the courage to do right. I have finally the chance of telling
here before men who know whether I am speaking the truth or not, what
has been charged against Stephen W. Dorsey and what has been proved
against him. Let us examine the overt acts charged. On route 38135 it
is charged that Miner, Rerdell and S. W. Dorsey transmitted a false
affidavit. The evidence is that the affidavit was made by Miner, not
by Dorsey, transmitted by Miner, not by Dorsey, and that it was not
transmitted as charged in the indictment, but transmitted on the 18th
day of April, 1879. There is no evidence that Dorsey even heard of that
affidavit, that he ever made it, that he ever transmitted it, that
he ever saw it, that he ever knew of its existence. That is the first
charge. There is not one particle of evidence to show that he ever knew
there was such a paper. Upon that written lie, upon that mistake
these infamous charges affecting the character of this man have been
circulated over the United States.

What is the next? That he with others filed false petitions. I am
telling you now all the charges; every one of them. What is the
evidence? Oh, it is splendid to get to the facts. The evidence is that
every petition is shown to have been genuine. There is no evidence that
he ever filed one or sent one, or asked to have one sent on that route;
and every petition is genuine and no charge made except as to one. In
one they said the words "quicker time" were inserted; but the very next
paragraph asked for quicker time, and nobody pretended that had been
inserted. Besides that, it was charged in the indictment to have been
filed on the 26th day of June. As a matter of fact, it was filed on the
8th day of May. It was never filed by Stephen W. Dorsey; it was never
gotten up by Stephen W. Dorsey. There is no evidence that he ever knew
of it or heard of it. Third, that he fraudulently filed a subcontract.
Two mistakes and an impossible offence. That ends that route. That is
everything on earth in it. I defy any man to make anything more out of
it than I have. I have told every word.

The next route is No. 41119. It is charged that Stephen W. Dorsey with
others transmitted a false oath. The evidence is that the oath was made
by Peck, and it was transmitted by Peck and not by Stephen W. Dorsey.
What else? That it is true. There are three mistakes in that charge.
They say Dorsey made it. Peck made it They say Dorsey transmitted it.
Peck transmitted it. They say it was false. The evidence shows it true.
Thai is all there is to that route. It is the only charge on that route.
No petitions were claimed to be false.

Now we come to route 38145. Let us see if we can do any better on
that. The first charge is, that Stephen W. Dorsey fraudulently filed a
subcontract. The subcontract was made with Sanderson, Sanderson got his
own contract filed. This charge was copied from the old indictment. It
is a mistake and that is all there is to it. These are the charges that
have carried sorrow to many hearts. These are the charges that have
darkened homes. These are the charges that have filled nights with grief
and horror; every one of them a lie.

The next route is 38156. The first charge is that he transmitted a
false oath. The oath was made by John W. Dorsey, and is true. The second
charge is of fraudulently filing a subcontract, an impossible offence.
That is everything on that route. Absolutely untrue.

Now we come to the next, No. 46217. The charge is filing base petitions.
The evidence is that every petition was genuine. Every one. Mr. Bliss
said—"We make no point about increase of trips on this route."

Every petition was for increase of trips. You will see that on record,
page 1008. That is the only charge on that route, gentlemen. Utterly
false!

Come now to route 38140. Charge: Filing false and forged petitions.
Evidence: All the petitions genuine. Second charge: Transmitting a false
oath and making it. Evidence: Oath made by John W. Dorsey, and true.
That is all there is to that route. If they can rake up any more I want
to see it. I have been through this record.

Route 38113. Charge: Fraudulently filing a subcontract. That is all. You
cannot fraudulently file a subcontract.

Route 40113. Charge: Filing false and forged petitions. Evidence:
Every petition admitted by the Government to be genuine. Good. Second:
transmitting a false oath. Evidence: Oath made by John W. Dorsey, and
the Government introduced no witness to show that it was false. See how
these charges fall. See how they bite the ground. That is all.

I have told you every one in this indictment; every one. You will hardly
believe it. Now let me give you the recapitulation. S. W. Dorsey is
charged on eight routes with having transmitted four false oaths.

The evidence is he never made one nor transmitted one, and that the
four oaths were all true. On five routes he is charged with having filed
false petitions. The evidence is that all the petitions were genuine.
None of the petitions charged in the indictment to have been transmitted
by him were transmitted by him. He is charged with filing fraudulent
subcontracts, and the evidence is that the subcontracts were genuine,
and besides that, as I have said a dozen times, it is utterly impossible
to fraudulently file a subcontract. Not a single, solitary charge in
this indictment against Stephen W. Dorsey has been substantiated. Not
one. He has been called a robber, he has been called a thief, but the
evidence shows he is an honest man. Not one single thing alleged in
that indictment has been substantiated against him, and I defy any human
being to point to the evidence that does it. Now think of it. All this
charge has been made against that man upon that evidence; no other
evidence; not another line so far as the indictment is concerned.
What is outside of the indictment? That he wrote two letters, taking
possession of routes that had been turned over to him as security, which
he had a right to do. What else? That he got up some petitions, or had
them gotten up, in the State of Oregon. The man who got them up was
brought here as a witness. I believe his name was Wilcox. He swore that
everything he did was honest, and that every name to every petition was
genuine. Now let us see. Another point has been made upon S. W. Dorsey.
I want to read it to you. This is from the argument of Mr. Merrick:

"Peck, John W. Dorsey and Miner, or some other one of Stephen W.
Dorsey's friends. Who was making up this conspiracy? Who was gathering
around him arms and hands to reach into the public Treasury for his
benefit, while his own were apparently unoccupied with pelf? S. W.
Dorsey. 'My brother and brother-in-law will go in, and Miner, or if not
Miner, then one of my other friends.'"

This is quoted.

"One-of S. W. Dorsey's other facile friends. That was in 1877,
gentlemen, the morning of this day of fraud and criminality. In that
room where Boone and S. W. Dorsey sat arose the sun, and there was
marked his course. There was fashioned the duration and the business of
that criminal day."

Now, let us see what the evidence is. The object of that speech is to
convince you that Dorsey said to Boone. "I will either put in Miner or
one of my friends." Do you know that there is not money enough in the
Treasury of the United States, there is not gold and silver enough in
the veins of this earth to tempt me to misstate evidence when a man is
on trial for his liberty or his life. Let us see what the evidence is:

"Q. Who else besides his brother-in-law and brother?—A. I could not say
positively whether Mr. Miner's name was mentioned. He either mentioned
his name or a friend of his from Sandusky, Ohio."

Now, I submit to you, gentlemen, what does that mean? Mr. Boone, in
effect, says, "He told me either it was Miner or a friend of his from
Sandusky. That is, he either described Miner by his name or he described
him as a friend of his from Sandusky." Then there was objection made,
and after that comes another question:

"Q. Was anything said of Mr. Miner's coming to Washington?—A. I could
not say whether his name was mentioned or a friend of his; a personal
friend."

What does that mean? Boone cannot remember Whether he called him Miner
or called him a friend of his from Sandusky. What else?

"A. There was to be nobody that I understood outside of the parties I
spoke of.

"Q. You and John W. Dorsey and Peck?—A. And Mr. Miner."

"Q. Or one of his friends?—A. Or Mr. Dorsey's friend. The arrangement
made was not made until they came here. It was only to prepare the
necessary blanks and papers pending their coming because the time was
getting short, and it was necessary to get the information to bid upon.
Nothing was said about any interest at all until after they came here,
and then there was a partnership entered into."

Now, I ask you, gentlemen of the jury, what is the meaning of that
testimony. The meaning is simply this: Boone could not remember whether
he mentioned Miner's name or called him a friend of his from Sandusky,
yet the object has been to make you believe that the testimony was
that S. W. Dorsey said, "I will either have Miner or I will get another
friend of mine." Dorsey had no interest in it, not the interest of one
cent, not the interest of one dollar, directly, indirectly, or any other
way. He had no interest in having a friend of his. All that Mr. Boone
said is that Mr. Dorsey either called this man Miner or described him as
a friend from Sandusky, Ohio. The evidence is that Mr. Miner did come,
and the evidence is that the arrangement was made. What else is there
outside in this case against Stephen W. Dorsey? I ask you to put your
hand upon it. I ask anybody to point it out. What other suspicious
circumstance is there? I want you to understand that all the suspicious
circumstances in the world are good for nothing. All the evidence on
earth tending to show a thing does not show it. Anything that only tends
that way never gets there; never.

You cannot infer a conspiracy. Unless you have the facts proved, you
cannot infer the fact and then infer the conspiracy. There has not
been—I want to say it again—there has not been a solitary fraudulent
act proven against Stephen W. Dorsey. They have not done it and they
cannot do it. All I ask of you, gentlemen, is to find a verdict in
accordance with this testimony.

May it please the Court, it appears from the evidence in this case, I
think the evidence of Mr. James, that Stephen W. Dorsey at one time,
about sixteen or seventeen months ago, made a statement in writing of
his connection with all these routes. That statement he gave to the
Attorney-General and the Postmaster-General. There is no evidence of
what was in that statement. The only evidence is that such a statement
was made, embracing his connection with these routes.

The Court. You offered to prove that.

Mr. Ingersoll. Oh, no. The reason it was established was I wanted to
show whether that statement was made before or after Mr. Rerdell made a
statement. The fact simply appears that he made a statement.

The Court. You offered to prove the fact.

Mr. Ingersoll. I do not remember offering to prove it. I proved it.

The Court. If it was not proven—Mr. Ingersoll. [Interposing.] I did
prove it as a fact.

The Court. That he made a statement.

Mr. Ingersoll. Yes, sir. Right here it is [taking up the record].

The Court. Oh, well, you cannot base any remarks upon that.

Mr. Ingersoll. Let me read what the evidence says:

"Q. Was this statement of Rerdell's made to you after you had received
the statements of S. W. Dorsey as to his connection with all these
entire routes or with this entire business?

"The Witness. To what statement do you refer?

"Mr. Ingersoll. To the statement that was made in writing and given to
you and the attorney-general by ex-Senator S. W. Dorsey?

"A. It must have been after that.

"Q. You mean Rerdell's statement was after that?—A. Yes, sir.

"Q. Did you ever see that statement made by Senator Dorsey?—A. It was
referred to the attorney-general.

"Q. Did you ever see it?—A. Certainly.

"Q. Do you know where it now is?—A. I do not."

I am not going to say a word about what was in that statement, but the
Court will see that that has a direct bearing upon their action with
regard to Rerdell's statement whether it was made before or after, which
I will endeavor to show, and the only point that I wanted to make upon
that statement now, was that the Government has not endeavored to prove
that anything in that statement was inconsistent with the evidence in
this case. I am not going to say what the statement was; simply that he
made a statement, and it follows as naturally as night follows morning,
and morning follows night, that if that statement had been incorrect it
would have been brought forward. That is all.

The Court. For anything the Court knows it might have been a confession.
We do not know anything about it.

Mr. Ingersoll. If it had been a confession it would have been here. That
is the point I make. If there had been in that anything inconsistent
with the testimony it would have been here.

The Court. Probably it would.

Mr. Ingersoll. Yes, sir; that is my point.

The Court. When a man is charged with crime no man has a right to say
that because he did not deny it that is evidence of his guilt.

Mr. Ingersoll. No, sir; and no man has a right to say that because he
did deny it is evidence of his innocence.

The Court. It is not evidence either way.

Mr. Ingersoll. It is not evidence either way, and if I am charged with
a crime and I make a written statement to the Government of my entire
connection with that thing, and they go on and examine it for one year
and finally finish the trial without showing that that statement was
incorrect, it is a moral demonstration that my statement agreed with the
testimony.

The Court. On the principle, I suppose, of an account rendered and no
objection made?

Mr. Ingersoll. Good. That is a good idea.

The Court. I do not see anything in that.

Mr. Ingersoll. I see a great deal in it, and it is a question whether
the jury can see anything in it.

The Court. It is a question whether the Court too——

Mr. Ingersoll. [Interposing.] Very well.

The Court. [Continuing.] Whether the Court is going to allow an argument
to be based upon a mere vacuum—wind, nothing.

Mr. Ingersoll. That would seem to be stealing the foundation of this
case. [Laughter, and cries of "Silence" from the bailiffs.] We will
consider the argument made to the Court, and not to the jury.

The next question, then, is what is the corpus delicti; that is, in
a case of conspiracy? I do not believe the combination to be the corpus
delicti—the mere association. It may be the corpus, but it is not the
delicti, and under the law there must not only be a conspiracy, as I
understand it, but also an overt act done by one of the conspirators to
accomplish the object of the conspiracy. So that the conspiracy with the
fraudulent purpose and the overt act constitute the corpus delicti. Now,
I read from Best on Presumptions, page 279:

"The corpus delicti, the body of an offence, is the fact of its actually
having been committed."

The dead body in a murder case is not the corpus delicti. It is the
corpse and nothing more. It must be followed by evidence that murder was
committed.

"The corpus delicti is the body, substance or foundation of the
offence. It is the substantial and fundamental fact of its having been
committed."

1 Haggard, 105, opinion by Lord Stowell.

I now refer you to Peoples vs. Powell, 63, N. Y., page 92. It seems
that the defendants in this case were commissioners of charities of the
county of Kings, and they were indicted for conspiring together to buy
supplies contrary to law and without duly advertising. Their defence
was that they were not aware that such a law existed; that they were
ignorant of the law. The court below thought that made no difference.
The court above said before they could be guilty of this crime there
must be the intention to commit the crime, and this language is used:

"The agreement must have been entered into with an evil purpose,
as distinguished from a purpose simply to do the act prohibited in
ignorance of the prohibition. This is implied in the meaning of the word
conspiracy. Mere concert is not conspiracy."

So combination is not conspiracy; partnership is not conspiracy; neither
is it the corpus delicti of conspiracy. There must be the evil intent;
there must be the wicked conspiracy not only, but there must be one at
least overt act done in pursuance of it before the corpus delicti can be
established.

"The actual criminal intention belongs to the definition of the offence
and must be shown to justify a conviction for conspiracy. The offence
originally consisted in a combination to convict an innocent person by
perversion of the law. It has since been greatly extended, but I am of
opinion that proof that the defendants agreed to do an act prohibited
by statute, followed by overt acts in furtherance of the agreed purpose,
did not conclusively establish that they were guilty of the crime of
conspiracy."

It would be hard to find a stronger case, in my judgment, than that.
Although they agreed to violate a statute—they agreed to buy supplies
without complying with the statute by advertising—they claimed they
were in ignorance of it, and the question was whether they were guilty
of conspiracy, having no intent to do an illegal act, and the court of
appeals decided that that verdict could not stand.

The Court. Because the court below had instructed the jury that whether
what they did was done in ignorance or with knowledge it made no
difference.

Mr. Ingersoll. Certainly; it made no difference. Everybody is supposed
to know the law.

Now, the next point is, and great weight has been put upon it,
gentlemen, that concurrence of action establishes conspiracy; that if
one does a part and another another part and finally the culmination
comes, that is absolute evidence, or in other words, an inference.
Admitting, now, that they were perfectly honest, if any of these parties
made a bid, that bid had to be accepted by the Government. They had to
act together. The department and the man had to act together to have the
bid accepted. The department and the man had to act together to make the
contract. The department and the man had to act together to get the pay,
and no matter how perfectly honest the transaction was they had to act
together from the first step to the payment of the last dollar.

Now, in a business where they do have to act together, where one
necessarily does one thing, and the other necessarily does another, the
fact that that happens does not even tend to prove that there is any
fraud. Upon this concurrence of action I refer to the case of Metcalfe
against O'Connor and wife, in Little's Select Cases, 497. One of the
men confessed that a large party went to the house where there was a
disturbance and where they tried to take by force a boy from the custody
of a man and woman. Now, the fact that these men did go the house, the
fact that they were there at the time this happened, and the fact that
one of the conspirators or one of the trespassers had confessed that he
went there and that the other went with him for that purpose, the
court decides that you cannot infer the purpose of these men from the
statement of the other; neither can you infer it from the fact that
they were there. You must find out for what purpose they were there
by ascertaining what they did and when they were there, and that
concurrence in actions shows nothing.

The Court. Did you not say that the decision there was that the
conspiracy might be inferred from the combination to do the act?

Mr. Ingersoll. I will just read it and then there will be no guessing
about it:

"This is a writ of error prosecuted by the defendants to a judgment
for the plaintiffs in an action of trespass for an assault and battery
alleged to have been committed upon the plaintiff Ann, the wife of the
other plaintiff.

"We are of the opinion that the circuit court erred in refusing to
instruct the jury, at the instance of the defendants, to find for all
of them, except the defendant Metcalfe. He is the only one of the
defendants proven to have touched the defendant Ann, and against the
other defendants there is no evidence conducing in the slightest degree
to prove them guilty of committing any assault or battery upon her, or
of any intention to do so.

"It is true that it was proved that the other defendants confessed that
they were at the house of Connor when the assault and battery charged
is alleged to have been committed, and it was also proved that Metcalfe
confessed that he and the other defendants had gone there for the
purpose of taking from Connor by force an idiot boy whom he had in his
custody. But the circumstances of the other defendants being at Connor's
house, there is no evidence they were there for any unlawful purpose;
nor can it of itself be sufficient to render them responsible for
any act done by Metcalfe in which they did not participate; and the
confessions of Metcalfe are certainly not legitimate evidence against
the others to prove the unlawful purpose with which they went to
Connor's, and thereby to charge them with the consequences of his act."

Now, to all appearances, they went there together; to all appearances,
they went there for the one purpose, and Metcalfe, the man who really
did the mischief, confessed that they all went there for the one
purpose, but the court held that that was not sufficient.

"Where several agree or conspire to commit a trespass, or for any other
unlawful purpose, they will, no doubt, all be liable for the act of
any one of them done in execution of the unlawful purpose; and when
the agreement or conspiracy is first proved by other evidence, the
confession of one of them will be admissible evidence against the
others. But it is well settled that the confessions of one person cannot
be admitted against the others to prove that they had conspired with him
for an unlawful purpose."

Now, the next evidence that I wish to allude to, gentlemen, is the
evidence of Mr. Walsh, and I will only say a few words, because it has
been examined and it has been ground to powder. Everything in this world
is true in proportion that it agrees with human experience; and you can
safely say that everything is false or the probability is that it is
false in proportion that it is not in accordance with human experience.
Other things being equal, we act substantially alike.

Now, when anything really happens everything else that ever happened
will fit it. You take a spar crystal, I do not care how far north you
get it, and another spar crystal, no matter how far south you get it,
and put them together and they will exactly fit each other—exactly. The
slope is precisely the same. And it is so with facts. Every fact in this
world will fit every other fact—just exactly. Not a hair's difference.
But a lie will not fit anything but another lie made for the
purpose—never. It never did. And finally, there has to come a place
where this lie, or the lie made for the sake of it, has to join some
truth, and there is a bad joint always. And that is the only way to
examine testimony. Is it natural? Does it accord with what we know? Does
it accord with our experience?

Now, take the testimony of Mr. Walsh, and I find some improbabilities in
it. Just let me read you a few:

1. Bankers and brokers do not, as a rule, loan money without taking at
least a note. That is my experience. And the poorer this broker is,
the less money he has, the more security he wants. He not only wants an
indorser but he would like to have a mortgage on your life, liberty, and
pursuit of happiness. That is the first improbability.

2. Bankers and brokers do not, as a rule, take notes that bear no
interest, or in which the interest is not stated. People who live
on interest find it always to their interest to have the interest
mentioned—always. I never got a cent of a banker that I did not pay
interest, and generally in advance.

3. Bankers and brokers do not, as a rule, take notes payable on demand,
because such notes are not negotiable.

4. It is hardly probable that when a banker and broker holds the note
of another for twelve thousand dollars—the note being unpaid—he would
loan thirteen thousand five hundred dollars more, taking another note on
demand in which the rate of interest was not stated.

5. It is still more improbable that the same banker and broker, with
a note for twelve thousand dollars and one for thirteen thousand five
hundred dollars, being unpaid, would loan five thousand four hundred
dollars more without taking any note or asking any security.

6. When such banker and broker called upon his debtor for a settlement,
and exhibited the two notes, and thereupon his debtor took the two notes
and put them in his pocket, it is highly improbable that the banker and
broker would submit to such treatment.

7. It is improbable that such banker and broker would afterwards
commence suit to recover the money, without mentioning to his attorney,
in fact, that the notes had been taken away from him.

8. It is also improbable that the banker and broker would commence
another suit for the same subject-matter and still keep the fact
that the notes had been taken from him by violence, a secret from his
attorney.

9. If Mr. Brady took the notes by force, it is improbable that he
would immediately put himself in the power of the man he had robbed, by
stating to him that he, Brady, was in the habit of taking bribes.

10. It is impossible that Mr. Brady could, in fact, have done this,
which amounted to saying this: "I have taken twenty-five thousand five
hundred dollars from you; of course, you are my enemy; of course, you
will endeavor to be revenged, and I now point out the way in which you
can have your revenge. I am Second Assistant Postmaster-General; I award
contracts, increases, and expedition, and upon these I receive twenty
per cent, as a bribe. I am a bribe-taker; I am a thief; make the most
of it. I give you these tacts in order that I may put a weapon in your
hands with which you can obtain your revenge."

There are also other improbabilities connected with this testimony.

If Mr. Brady was receiving twenty per cent, of all increases and
expeditions, amounting to hundreds of thousands of dollars per annum, it
is not easy to see why he would be borrowing money from Mr. Walsh.

Now, if that story is true, boil it down and it is this, because if he
got this twenty per cent, from everybody he had oceans of money—boil it
all down and it is this: A rich man borrows without necessity and a poor
banker loans without security. These twin improbabilities would breed
suspicion in credulity itself. No man ever believed that story, no
man ever will. There is something wrong about it somewhere, unnatural,
improbable, and it is for you to say, gentlemen, whether it is true
or not, not for me. What is the effect of that testimony? So far as my
clients are concerned it is admitted, I believe, by the prosecution—it
was so stated, I believe, by his Honor from the bench—that it could
not by any possibility affect any defendant except Mr. Brady, and the
question now is, can it even affect him? I call the attention of the
Court to 40th N. Y., page 228. I give the page from which I read:

"To make such admissions or declarations competent evidence, it must
stand as a fact in the cause, admitted or proved, that the assignor or
assignees were in a conspiracy to defraud the creditors. If that fact
exist, then the acts and declarations of either, made in execution of
the common purpose, and in aid of its fulfillment, are competent against
either of them. The principle of its admissibility assumes that fact."

That the conspiracy has been established.

"In case of conspiracy, where the combination is proved, the acts and
declarations of the conspirators are not received as evidence of that
fact, but to show what was done, the means employed, the particular
design in respect to the parties to be affected or wronged, and
generally those details which, assuming the combination and the illegal
purpose, unfold its extent, scope, and influence either upon the public
or the individuals who suffer from the wrong, or show the execution of
the illegal design. But when the issue is simply and only, was there
a conspiracy to defraud, these declarations do not become evidence to
establish it."

"So far then, as the admission of the evidence in this case, of
declarations, subsequent to the assignment, is sought to be sustained as
evidence of the common fraud, on the ground of conspiracy, the argument
wholly fails. A conspiracy cannot be proved against three by evidence
that one admitted it, nor against assignees by proof that the assignor
admitted it; it is a fact that must be proved by evidence, the
competency of which does not depend upon an assumption that it exists."

So to the same point is the case of Cowles against Coe, 21st
Connecticut, 220. I will read that portion of the syllabus that conveys
the idea:

"To prove the alleged conspiracy between the defendant and G., the
plaintiff offered the deposition of R., stating declarations made by G.
to R., while G. was engaged in purchasing goods of him, on credit, and
relative to G.'s responsibility and means of obtaining money through the
defendant's aid; these declarations were objected to, not on the ground
that the conspiracy had not been sufficiently proved, but because the
defendant was not present when they were made; it was held that they
were admissible, within the rule regarding declarations made by a
conspirator in furtherance of the common object."

Now, let us see what the court says about it:

"The remaining question is, whether the declarations of Gale to Edmund
Curtiss and William Ives were properly received. These declarations were
not offered as in any way tending to prove the combination claimed. The
motion shows that they were offered and received after the plaintiff's
evidence on that subject had been introduced. Had they been admitted for
that purpose, or if, under the circumstances, they could have had any
influence with the jury on that point, we should feel bound to advise a
new trial on this account."

All that I have said in respect to Walsh applies to what is known
or what is called the confession of Rerdell. It was admitted by the
prosecution that not one word said by him could bind any other defendant
in the case. But, gentlemen, is there enough even to bind him? Did
he confess that he was guilty of the conspiracy set forth in this
indictment? And I want to make one other point. In this case there
must be not only a conspiracy, but an overt act, and no man can confess
himself into it without confessing that he was a conspirator, and
that he knew that an overt act was to be done; because it takes that
conspiracy and the overt act to 'make the offence. What overt act did
Rerdell confess that he was guilty of—what overt act charged in this
indictment? One. Filing a subcontract; and by no earthly method, by no
earthly reasoning can you come to the conclusion that that could carry
it into conspiracy. He must have confessed that he was guilty according
to the scheme, according to the indictment set forth, and in no other
way. That indictment says that the money was to be divided, that it
was for the mutual benefit of certain persons. Unless that has been
substantiated this case falls. According to the case of the King against
Pomall the scheme of the indictment must be established, otherwise the
case goes. In that case they charged it was one way, and they proved it
was that way, and one of the defendants did not understand it that way
and he was acquitted. Now, suppose they had not proved the scheme as
they charged it, then all would have been acquitted, and unless the jury
believe beyond a reasonable doubt, from the evidence that the scheme
set forth in the indictment here was the scheme, then they must find
everybody not guilty. There is no other way.

What is the next argument? The next argument is extravagance. What
is extravagance? If I pay more for a thing than it is worth that is
extravagance. If I buy a thing that I do not want, that is extravagance,
and if I do this knowing it to be wrong, if I do this understanding that
I am to have a part of the price, that is bribery, that is corruption,
that is rascality. Nobody disputes that. How do you know that a thing
is extravagant unless you know the price of it? For instance, an army
officer is charged with extravagance in buying corn upon the plains at
five dollars a bushel. How do you prove it is extravagance? You must
prove that he could have obtained it for less or that there was a
cheaper substitute that he should have obtained. How are you going to
prove that too much was paid for carrying the mail upon these routes?
Only by showing that it could have been carried for less. What witness
was before this jury fixing the price? How are we to establish the fact
that it was extravagance? We must show that it could have been obtained
for less money. What witness came here and swore that he would carry it
for less? And would it be fair to have the entire case decided upon one
route when it is in evidence that my clients had thirty per cent, of one
hundred and twenty-six routes? Would it be fair to decide the question
whether they had made or lost money on one route? Your experience tells
you that upon one route they might make a large sum of money and upon
several other routes lose largely. A man who has bid for one hundred
routes takes into view the average and says "upon some I shall lose
and upon others I shall make." How are you to find that this was
extravagance unless you know what it could have been done for? They may
say that they subcontracted some of the routes for much less. Yes; but
what did they do with the rest of them? I might take a contract to build
a dozen houses in this city, and on the first house make ten thousand
dollars clear, and on the balance I might lose twenty-five thousand
dollars. You have a right to take these things and to average them. When
a man takes a contract he takes into consideration the chances that he
must run in that new and wild country. It takes work to carry this mail.
You ought to be there sometimes in the winter when the wind comes down
with an unbroken sweep of three or four thousand miles, and then tell me
what you think it is worth to carry the mail. All these things must be
taken into consideration. Another thing: You must remember that every
one of these routes was established by Congress. Congress first said,
"Here shall be a route; here the mail shall be carried." It was the
business then, I believe, of the First Assistant Postmaster-General to
name the offices, and the Second Assistant to put on the service. Take
that into consideration. Every one of these routes was established by
Congress. Take another thing into consideration: That the increase of
service and expedition was asked for, petitioned for, begged for, and
urged by the members of both houses of Congress, and according to that
book, which I believe is in evidence, a majority of both houses
of Congress asked, recommended, and urged increase of service and
expedition upon some of the nineteen routes in this indictment.

The Court. What evidence do you refer to?

Mr. Ingersoll. I refer to the Star Route investigation in Congress.

The Court. That record is not in evidence.

Mr. Ingersoll. I thought that was in evidence.

The Court. No, sir.

Mr. Ingersoll. It was used as if it was in evidence. I saw people
reading from it, and supposed it was in evidence.

The Court. It is not in evidence.

Mr. Ingersoll. Well, we will leave that out. Now, upon these nineteen
routes—this is in evidence—increase and expedition of service were
recommended by such Senators as Booth, Farley, Slater, Grover, Chaffee,
Chilcott, Saunders, and by the present Secretary of the Interior, Henry
M. Teller, and by such members of Congress as Whiteaker, Page, Luttrell,
Pacheco, Berry, Belford, Bingham, chairman of the postoffice committee,
by Stevens of Arizona, a delegate, and by Maginnis of Montana, and
Kidder of Dakota, by Generals Sherman, Terry, Miles, Hatch and Wilcox
In addition to these, recommendations were made and read by judges of
courts, by district attorneys, by governors of Territories, by governors
of States, and by members of State Legislatures, by colonels, by majors,
by captains, and by hundreds and hundreds of good, reputable, honest
citizens. They were the ones to decide as a matter of fact whether this
increase was or was not necessary.

I believe in carrying the mails. I believe in the diffusion of
intelligence. I believe the men in Colorado or Wyoming, or any other
Territory, that are engaged in digging gold or silver from the earth, or
any other pursuits, have just as much right, in the language of Henry
M. Teller, to their mail as any gentleman has to his in the city of New
York. We are a nation that believes in intelligence.

We believe in daily mail. That is about the only blessing we get from
the General Government, excepting the privilege of paying taxes. Free
mail, substantially free, is a blessing.

Now, there is another argument which has been used: Productiveness; but
that has been so perfectly answered that I allude to it only for one
purpose. How would the attorneys for the Government in this case like to
have their fees settled upon that basis? Productiveness. Is it possible
that this Government cannot afford to carry the mail? Is it possible
that the pioneer can get beyond the Government? Is is possible that we
are not willing to carry letters and papers to the men that make new
Territories and new States and put new stars upon our flag? I have heard
all I wish on the subject of productiveness.

Now, gentlemen, that is all the evidence there is in this case, that I
have heard. What kind of evidence must we have in a conspiracy case? You
have been told during this trial that it is very hard to get evidence in
a conspiracy case, and therefore you must be economical enough to put up
with a little. They tell you that this is a very peculiar offence,
and people are very secret about it. Well, they are secret about most
offences. Very few people steal in public. Very few commit offences who
expect to be discovered. I know of no difference between this offence
and any other. You have got to prove it. No matter how hard it is
to prove you must prove it. It is harder to convict a man without
testimony, or should be, than to produce testimony to prove it if he is
guilty. All these crimes, of course, are committed in secret. That is
always the way. But you must prove them. There is no pretence here that
there is any direct evidence, any evidence of a meeting, any evidence of
agreement, any evidence of an understanding. It is all circumstantial. I
lay down these two propositions:

"The hypothesis of guilt must flow naturally from the facts proved, and
be consistent, not with some of the facts, not with a majority of the
facts, but with every fact."

Let me read that again:

"_The hypothesis of guilt must flow naturally from the facts proved,
and must be consistent with them; not some of them, not the majority of
them, but all of them_."

The second proposition is:

"The evidence must be such as to exclude every single reasonable
hypothesis except that of the guilt of the defendant. In other words,
all the facts proved must be consistent with and point to the guilt of
the defendants not only, but every fact must be inconsistent with their
innocence."

That is the law, and has been since man spoke Anglo-Saxon. Let me read
you that last proposition again. I like to read it:

"The evidence must be such as to exclude every reasonable hypothesis
except that of the guilt of the defendants. In other words, all the
facts proved must be consistent with and point to the guilt of the
defendants not only, but they must be inconsistent, and every fact must
be inconsistent with their innocence."

Now, just apply that law to the case of John W. Dorsey. Apply that law
to the case of Stephen W. Dorsey. Let me read further. I read now from 1
Bishop's Criminal Procedure, paragraph 1077.

"It matters not how clearly the circumstances point to guilt, still, if
they are reasonably explainable on a theory which excludes guilt, they
cannot satisfy the jury beyond reasonable doubt that the defendants are
guilty, and hence they will be insufficient."

Just apply that to the case of Stephen W. Dorsey and John W. Dorsey.
I would be willing that this jury should render a verdict with that
changed. Change it. You are to find guilty if you have the slightest
doubt of innocence. Even under that rule you could not find a verdict of
guilty against John W. or Stephen W. Dorsey. If the rule were that you
are to find guilty if you have a doubt as to innocence you could not
do it; how much less when the rule is that you must have no doubt as to
their guilt. The proposition is preposterous and I will not insult your
intelligence by arguing it any further.

Now, then, there is another thing I want to keep before you. When a man
has a little suspicion in his mind he tortures everything; he tortures
the most innocent actions into the evidence of crime. Suspicion is a
kind of intellectual dye that colors every thought that comes in contact
with it. I remember I once had a conversation with Surgeon-General
Hammond, in which he went on to state that he thought many people were
confined in asylums, charged with insanity, who were perfectly sane. I
asked him how he accounted for it. Said he, "Physicians are sent for
to examine the man, and they are told before they get to him that he
is crazy; therefore, the moment they look upon him they are hunting for
insane acts and not sane acts; they are looking not to see how naturally
he acts, but how unnaturally he acts." They are poisoned with the
suspicion that he is insane, and if he coughs twice, or if he gets up
and walks about uneasily—his mind is a little unsettled; something
wrong! If he suddenly gets angry—sure thing! When a man believes
himself to be or knows himself to be sane, and is charged with insanity,
the very warmth, the very heat of his denial will convince thousands of
people that he is insane. He suddenly finds himself insecure, and the
very insecurity that he feels makes him act strangely. He finds in a
moment that explanation only complicates. He finds that his denial is
worthless; that his friends are suspicious, and that under pretence of
his own good he is to be seized and incarcerated. Many a man as sane
as you or I has under such circumstances gone to madness. It is a hard
thing to explain. The more you talk about it the more outsiders having
a suspicion are convinced that you are insane. It is much the same way
when a man is charged with crime. It is heralded through all the papers,
"this man is a robber and a thief." Why do they put it in the papers?
Put anything good in a paper about Mr. Smith, and Mr. Smith is the only
man who will buy it. Put in something bad about Mr. Smith and they will
have to run the press nights to supply his neighbors with copies. The
bad sells. The good does not. Then you must remember another thing: That
these papers are large; some of them several hundred columns, for all I
know—sixty or a hundred. Just imagine the pains it would take and
the money it would cost to get facts enough to fill a paper like that.
Economy will not permit of it. They publish what they imagine they can
sell. As a rule, people would rather heaf-something bad than something
good. It is a splendid certificate to our race that rascality is still
considered news. If they only put in honest actions as news it would be
a certificate that honesty was rare; but as long as they publish the bad
as news it is a certificate that the majority of mankind is still good.

Now, to be charged with a crime and to be suddenly deserted by your
friends, and to know that you are absolutely innocent, is almost enough
to drive the sanest man mad. I want you to think what these defendants
have suffered in these long months. If the men who started this
prosecution, if the men who originally poisoned the press of the
country, feel that they have been rewarded simply because innocent
men have suffered agony, let them so feel. I do not envy them their
feelings.

There is another thing, gentlemen: The prosecution have endeavored to
terrorize this jury. The effort has been deliberately made to terrorize
you and every one of you. It was plainly intimated by Mr. Ker that this
jury had been touched, and that if you failed to convict, you would be
suspected of having been bribed. That was an effort to terrorize
you, and the foundation of that argument was a belief in your moral
cowardice. No man would have made it to you unless he believed at heart
you were cowards. What does that argument mean? I cannot say whether you
will be suspected or not; but, in my opinion, a juror in the discharge
of his duty has no right to think of any consequence personal to
himself. That is the beauty of doing right. You need not think of
anything else. The future will take care of itself. I do not agree with
the suggestion that it is better that you should be applauded for a
crime than blamed for a virtue. Suppose you should gain the applause of
the whole United States by giving a false verdict; how would the echo
of that applause strike your heart? I do not believe that it is wiser
to preserve the appearance of being honest than to be honest with the
appearance against you. I would rather be absolutely honest, and have
everybody in the world think I was dishonest, than to be dishonest and
have the whole world believe in my honesty. You see you have got to stay
with yourself all the time. You have to be your own company, and to be
compelled to know that your company is dishonest, that your company is
infamous, is not pleasant. I would rather know I was honest and have
the whole world put upon the forehead of my reputation the brand of
rascality.

You were also told that the people generally have anticipated your
verdict.

That is simply an effort to terrorize you, so that you will say, "If the
people think that way, of course we must think that way. No matter about
the evidence. No matter if we have sworn to do justice. We will all try
and be popular." You were told in effect that the people were expecting
a conviction, and the only inference is that you ought not to disappoint
the public, and that it is your duty to piece and patch the testimony
and violate your oath, rather than to disappoint the general
expectation. Mr. Merrick told you you were trying these defendants,
but that the people of the whole country were trying you. What was the
object of that statement? Simply to terrorize this jury. What was the
basis of that statement? Why, that not one of you have got the pluck to
do right. It was not a compliment, gentlemen. It was intended for one,
no doubt, but when you see where it was born, it becomes an insult. I
do not believe you are going to care what the people say, or whether the
people expect a verdict of guilty, or not. You have been told that they
do. I might with equal propriety tell you that they do not. I might with
equal propriety say there is not a man in this court-house who expects a
verdict of guilty. With equal propriety I might say, and will say, that
there is not a man on this jury who expects there will be a verdict of
guilty. But what has that to do with us?

Try this case according to the evidence; and if you know that every man,
woman, and child in the United States want an acquittal, and you are
satisfied of the guilt of the defendants, it is your duty to find them
guilty.

If I were on the jury I would, in the language of the greatest man that
ever trod this earth—

  Strip myself to death, as to a bed
  That longing have been sick for, before I would give a false verdict.

Again, Mr. Merrick said, after having stated in effect that a majority
of the people were convinced of the guilt of the defendants, that the
majority of the men of the United States do not often think wrong. What
was the object? To terrorize you. That is all. This verdict is to be
carried by universal suffrage; you are to let the men who are not on
oath decide for the men who are; to let the men who have not heard the
testimony give the verdict of the men who have heard the testimony. What
else? Again the same gentleman said:

"There is to be a verdict, a verdict of the people for or against us."
What is the object? To frighten you. Let the people have their verdict;
you must have yours. If your verdict is founded on the evidence it will
be upheld by every honest man in the world who knows the evidence. You
need certainly to place very little value upon the opinion of those who
do not know the evidence. Mr. Merrick also suggested—I will hardly put
it that way—he was brave enough to hope that you have not been bribed.
Brave enough to hope that! All this, gentlemen, is done simply for the
purpose of terrorizing you. I tell you to find a verdict according to
the evidence, no matter whom it hits, no matter whom it destroys, no
matter whom it kills. Save your own consciences alive. Your verdict
must rest on the evidence that has been introduced, and all else must
be thrown aside, disregarded, like forgotten dreams. All that you have
read, all the press has printed, must find no lodgment in your brains.
You must regard them no more than you would the noises of animals made
in sleep. You must stand by the testimony. You must stand by the law
that the Court gives you. That is all we ask. These articles in the
newspapers were not printed in the hope that justice might be done. They
were printed in the hope that you may be influenced to disregard the
evidence, in the hope that finally slander might be justified by your
verdict. Gentlemen, you ought to remember that in this case you are
absolutely supreme. You have nothing to do with the supposed desires
of any men, or the supposed desires of any department, or the supposed
desires of any Government, or the supposed desires of any President, or
the supposed desires of the public. You have nothing to do with those
things. You have to do only with the evidence. Here all power is
powerless except your own. Position is naught. If the defendants are
guilty, and the evidence convinces you that they are, your verdict
must be in accordance with the evidence. You have no right to take into
consideration the consequences. When you are asked to find a verdict
contrary to the evidence, when you are asked to piece out the testimony
with your suspicions, then you are bound to take into consideration all
the consequences. When appeals are made to your prejudice and to your
fears, then the consequences should rise like mountains before you. Then
you should think of the lives you are asked to wreck, of the homes your
verdict would darken, of the hearts it would desolate, of the cheeks it
would wet with tears, and of the reputations it would blast and blacken,
of the wives it would worse than widow, and of the children it would
more than orphan. When you are asked to find a false verdict think of
these consesequences. When you are asked to please the public think
of these consequences. When you are asked to please the press think
of these consequences. When you are asked to act from fear, hatred,
prejudice, malice, or cowardice think then of these consequences. But
whenever you do right, consequences are nothing to you, because you are
not responsible for them. Whoever does right clothes himself in a suit
of armor that the arrows of consequences can never penetrate. When you
do wrong you are responsible for all the consequences, to the last sigh
and the last tear. If you do right nature is responsible. If you do
wrong you are responsible.

You were told, too, by Mr. Merrick that you should have no sympathy;
that you should be like icicles; that you should be godlike. A cool
conception of deity! In that connection this heartless language, as it
appears to me, was used:

"Man when he undertakes to judge his brother-man undertakes to perform
the highest duty given to humanity."

Good!

He should perform that duty without fear, without prejudice, without
hatred, and without malice. He should perform that duty honestly,
grandly, nobly.

I read on:

"Inclosed within the jury-box or on the bench he is separated from the
great mass of mankind—"

Then you should not pay any attention to the opinion of the public. If
you are separated you should not be dominated by the press. If you are
separated you should not be disturbed by the desires of anybody. But he
continues:
    "and sentiments of brotherhood die away."

About that time you would be nice men:

"Standing above humanity and nearest God he looks down upon his fellow,
and judges them without any reference to the sorrow his judgment may
bring."

That is not my doctrine. The higher you get in the scale of being,
the grander, the nobler, and the tenderer you will become. Kindness is
always an evidence of greatness. Malice is the property of small souls.
Whoever allows the feeling of brotherhood to die in his heart becomes a
wild beast. You know it and so do I:
    "Not the king's crown, nor the deputed sword,
    The marshal's truncheon, nor the judge's robe,
    Become them with one-half so good a grace as mercy does."

And yet the only mercy we ask in this case, gentlemen, is the mercy of
an honest verdict. That is all.

I appeal to you for my clients, because the evidence shows that they are
honest men. I appeal to you for my client, Stephen W. Dorsey, because
the evidence shows that he is a man, a man with an intellectual horizon
and a mental sky, a man of genius, generous, and honest. And yet this
prosecution, this Government, these attorneys representing the majesty
of the Republic, representing the only real Republic that ever existed,
have asked you, gentlemen of the jury, not only to violate the law of
the land, they have asked you to violate the law of nature. They have
maligned mercy. They have laughed at mercy. They have trampled upon the
holiest human ties, and they have even made light of the fact that a
wife in this trial has sat by her husband's side. Think of it.

There is a painting in the Louvre, a painting of desolation, of despair
and love. It represents the night of the crucifixion. The world is
represented in shadow. The stars are dead, and yet in the darkness is
seen a kneeling form. It is Mary Magdalene with loving lips and hands
pressed against the bleeding feet of Christ. The skies were never dark
enough nor starless enough; the storm was never fierce enough nor wild
enough, the quick bolts of heaven were never lurid enough, and arrows
of slander never flew thick enough to drive a noble woman from her
husband's side. And so it is in all of human speech, the _holiest word
is wife_.

And now, gentlemen, I have examined this testimony, I have examined
every charge in the indictment against my clients not only, but every
charge made outside of the indictment. I have shown you that the
indictment is one thing and the evidence another. I have shown you that
not one single charge has been substantiated against John W. Dorsey.
I have demonstrated to you that not one solitary charge has been
established against Stephen W. Dorsey—not one. I believe that I have
shown to you that there is no foundation for a verdict of guilty against
any defendant in this case.

I have spoken now, gentlemen, the last words that will be spoken in
public for my clients, the last words that will be spoken in public
for any of these defendants, the last words that will be heard in
their favor until I hear from the lips of this foreman two eloquent
words—Not Guilty. And now thanking the Court for many acts of
personal kindness, and you, gentlemen of the jury, for your almost
infinite patience, I leave my clients with all they have and with all
they love and with all who love them in your hands.
