Closing Address — Second Star Route Trial
Washington, D.C., 1883.

by Robert G. Ingersoll
(1883)

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

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MAY it please the Court and gentlemen of the jury: Perhaps some of you,
may be all of you, will remember that I made one of the opening speeches
of this case, and that in that opening speech I endeavored to give you
the scheme or plan of the indictment. I told you, I believe, at that
time, that all these defendants were indicted for having conspired
together to defraud the United States. In that indictment they were kind
enough to tell us how we agreed to accomplish that object; that we went
into partnership with the Second Assistant Postmaster-General, he being
one of these defendants, and that we then and there agreed to get up
false petitions, to have them signed by persons who were not interested
in the mail service, to sign fictitious names to these petitions, those
names representing no actual, real, living persons; that we also agreed
to have false and fraudulent letters written to the department urging
this service; that in addition to all that we were to make and file
false and fraudulent affidavits, in which we were to swear falsely as to
the number of men and horses to be employed, and the number of men
and horses then necessary; that in addition to that we were to file
fraudulent subcontracts; that the Second Assistant Postmaster-General
was to make false and corrupt orders, and that all these things were to
be done to deceive, mislead, and blindfold the Postmaster-General. They
also set out that these orders so corruptly made were to be corruptly
certified to the Auditor of the Treasury for the Post-Office Department
in order that we might draw our pay. That is what is known as the
general scheme or plan of this indictment. You have heard the testimony,
and remember some of it. Of course you do not remember it all. Probably
no man ever lived who could do such a thing. You have heard the
testimony discussed, I believe, for about twenty days, so that I take it
for granted you know something about it, or at least have an idea that
you do. The story that we told you in the first place, and that we now
tell you, is about this:

In 1877 Mr. Peck, Mr. Miner, and John W. Dorsey made up their minds to
make bids and to go into the mail business. I want you to remember that
there is not one word in this indictment about any false bid ever having
been made. Remember that. There is nothing in this indictment about
a false bond having been given; not a thing. There is nothing in this
indictment charging that any of the original contracts were false. I
want you to remember that. There is no evidence that any person signing
any one of those contracts as security was not perfectly solvent. There
is no evidence, not one syllable, that any proposal was fraudulent,
or that any bid was fraudulent. How is it possible for a bid to be
fraudulent? I will tell you. If you make a bid, and make a contract or
enter into an agreement at the same time with some of the Post-Office
officials so that your bid will be accepted when it is not the lowest,
there is a fraud, and there is a fraudulent bid. There is one other
way, and that is to put in a bid to carry the mail at so many thousand
dollars, and then have below that straw bidders, men not responsible,
and when the time comes to accept the bid of those gentlemen they refuse
to carry it out, and then the law is that it shall be given to the next
highest, and he refuses, and the next, and he refuses, and the next
highest, and he refuses, and so on until it comes to the highest bidder.
There are such combinations and have been, I have no doubt, for many
years in the Post-Office Department. That is called straw bidding, and
it is fraudulent bidding. There is no such charge as that in this case.
Every bid that was made was made in good faith, and every bid that was
accepted was followed by a good and sufficient contract entered into by
the party making the bid, and so that is the end of that.

Now, in 1877, I say these men entered into an agreement among themselves
that they would bid on certain routes, and Mr. Peck, or Mr. Miner,
or John W. Dorsey—they may have it as they choose—somebody, wrote a
letter to Stephen W. Dorsey and in that letter told what they were going
to do and requested him to get some man to obtain information in regard
to these routes. You know that testimony. Stephen W. Dorsey was then in
the United States Senate. He sent for Mr. Boone and he showed him that
letter. In consequence of that Mr. Boone sent out his circulars to the
postmasters all over the country, or all over the portion as to which
they were to bid, and asked them about the roads, about the price of
oats and corn, about the price of labor, and about the winters; in other
words, all the questions necessary for an intelligent man, after having
received intelligent answers, to make up his mind as to the amount for
which he could carry that mail. Mr. Boone, you remember, says that
he was to have at that time a certain share. There is a conflict of
testimony there. Mr. Dorsey says that he told Boone that when John W.
Dorsey came here they could arrange that, and he had no doubt that they
would be willing to give him a share; but that he did not give it to
him. The circulars were sent out and the information in some instances,
and I do not know but all, came back. Then they agreed upon the amounts
they were to bid. I believe Mr. Miner came here in December, and John W.
Dorsey, I think, in January, and in February the bids were made. All the
amounts were put in the bidding-book issued by the Government, by Mr.
Miner and Mr. Boone; all with two exceptions, and those amounts had been
placed there by them, but under the advice of Stephen W. Dorsey those
amounts were lowered. I remember one was upon the Tongue River route,
the other route I have forgotten. Mr. Miner, Mr. Peck, and John W.
Dorsey were together. Afterwards a partnership was formed between John
W. Dorsey and A. E. Boone. Stephen W. Dorsey advanced some money. There
is nothing criminal about that. It is often foolish to advance money,
but it is not a crime. It is often foolish to indorse for another,
and many a man has been convinced of that, but it is not a crime. He
advanced until, I believe, he was responsible for some fourteen or
fifteen thousand dollars, and thereupon he declined to advance any more.
He saw Mr. Miner in Saint Louis, and said to Mr. Miner, "This is the
last I am going to advance." I think he gave him some notes that he
hypothecated or discounted at the German-American National Bank. He
wanted security, and thereupon they gave him Post-Office drafts for the
purpose of securing his debt. He would advance no more money and went
away to New Mexico. Mr. Miner had a power of attorney from John W.
Dorsey who was absent, and a power of attorney from John M. Peck who was
absent. I believe on the 7th of August, or about that time, Mr. Boone
went out. Why? They had not the money at the time to put on the service.
Why? A great many more bids had been accepted than they had anticipated,
and instead of getting twenty or thirty routes they got, I believe, one
hundred and thirty-four routes. The consequence was they did not have
the money to stock the routes. There was another difficulty.

There was an investigation by Congress, and that delayed them a month
or two, and the consequence was that when the 1st of July came, the day
upon which the service should have been put on, it was not only not put
on, but they had not the means to do it. Then what happened? Then it was
that Mr. Miner took in Mr. Vaile, and an agreement was made which bears
date the 16th day of August, 1878. It was not finally signed by all the
parties, I believe, until some time in September or October. Under that
contract, which you have all heard read, Mr. Vaile was given an interest
in this business. More than that; subcontracts were given to Mr. Vaile,
and under the subcontract law which was passed on the 17th day of May,
1878, I believe, Vaile could file his subcontract in the Post-Office
Department, and that rendered all Post-Office drafts or orders that had
been given absolutely worthless. That was done. The subcontracts were
given to Vaile under the powers of attorney that Miner held from Peck
and John W. Dorsey, and of course he could act for himself. That was
the situation. Stephen W. Dorsey was not here. When he returned he found
that everything had been disposed of except his liability, and that he
would have to pay the notes. His security was gone, and the subcontracts
were filed. At that time he and Mr. Vaile had a quarrel. That is our
story. In the meantime John W. Dorsey was on the Tongue River route. I
believe he visited Washington in November and left word that he would
like to sell out all his interests in these routes, and I believe fixed
the price. Some time in November or December Mr. Vaile made up his mind
to take the routes, and afterwards changed his mind. Stephen W. Dorsey
was then in the Senate. On the 4th of March, 1879, his term expired. I
believe on that very day, or about that day, he wrote a letter to Brady
calling his attention to these subcontracts that had been filed for the
protection of Vaile and denouncing them. That was the first thing he
did. Then a few days afterwards the parties met. In a little while
afterwards they made a division of this entire business. You know how
the division was made. Stephen W. Dorsey fell heir to about thirty of
these routes, I think. In addition he had to pay ten thousand dollars to
his brother and ten thousand dollars to Peck. Mr. Vaile, I think, took
forty per cent, and Mr. Miner thirty per cent. Mr. Vaile and Mr. Miner
went into partnership and Stephen W. Dorsey took his routes, and that
ended it. Mr. Peck was out and John W. Dorsey was out. That is our
story. When they divided those routes, in order to vest the property
of those routes in the persons to whom they fell, it was necessary
to execute subcontracts and give PostOffice drafts and things of that
character. All those necessary papers they then and there agreed to
make. Up to this point there is not one act established by the evidence
not entirely consistent with perfect innocence; not an act. That is our
story. After these routes fell to us we did what we had the right to do
and what we could to make the routes of value. As business men we had
the right to do it, and we did only what we had the right to do.

The next question that arises, and which of course is at the very
threshold of this case, is, did these parties conspire? That is the
great question. In my judgment you should settle that the first thing
when you go to the jury-room. After having heard the case as it will be
presented by the Government, and after having heard the charge of the
Court, the first thing for you to decide is, was there a conspiracy?
How is a conspiracy proved? Precisely as everything else is proved. You
prove that men conspire precisely as you prove them guilty of larceny or
murder or any other crime or misdemeanor. It has been suggested to you
that as conspiracy is very hard to prove you should not require much
evidence; that you should take into consideration the hardships of the
Government in proving a crime which in its nature is secret. Nearly all
crimes are secret. Very few men steal publicly, with a band of music
and with a torch in each hand. They generally need their hands for other
purposes, if they are in that business. All crime loves darkness. We all
know that. One of the troubles about proving that a man has committed
a crime is that he tries to keep it as secret as possible. He does not
carry a placard on his breast or on his back stating what he is about to
do. The consequence is that it is nearly always difficult to prove
men guilty as stated in the indictment. But that does not relieve the
prosecution. That burden is taken by the Government, and they must
prove men guilty of conspiracy precisely as they prove anything else. Is
circumstantial evidence sufficient? Certainly, certainly. Circumstantial
evidence will prove anything, provided the circumstances are right,
and provided further that all the circumstances are right. A chain of
circumstances is no stronger than the weakest circumstance, as a chain
of iron is no stronger than the weakest link. Where you establish or
attempt to establish a fact by circumstances, each circumstance must be
proved not only beyond a reasonable doubt, but each circumstance must
be wholly inconsistent with the innocence of the defendants. Now, let me
call your attention to what I claim to be the law upon the subject, and
I will call the attention of the Court to it at the same time. I will
take this as a kind of test:

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

In other words if they establish one hundred circumstances and
ninety-nine point to guilt and one circumstance thoroughly established
is inconsistent with guilt or perfectly consistent with innocence, that
is the end of the case.

It is as if you were building an arch. Every stone that you put into the
arch must fit with every other and must make that segment of the
circle. If one stone does not fit, the arch is not complete. So with
circumstantial evidence. Every circumstance must fit every other. Every
solitary circumstance must be of the exact shape to fit its neighbor,
and when they are all together the arch must be absolutely complete.
Otherwise you must find the defendants not guilty. The next sentence is:

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

Now, what does that mean? It means that every fact that is absolutely
established in this case, must point to the guilt of the defendants. It
means that if there is one established fact that is inconsistent with
their guilt, that fact becomes instantly an impenetrable shield that no
honest verdict can pierce. That is what it means. That being so—and the
Court in my judgment will instruct you that that is the law—let us talk
a little about what has been established.

In the first place, nearly all that has been established, or I will not
say established, but nearly all that has been said, for the purpose of
showing that our motives were corrupt, and that we actually conspired,
rests upon evidence of what we call conversations. Some witness had a
conversation with somebody, three years ago, four years ago, or five
years ago. The unsafest and the most unsatisfactory evidence in this
world is evidence of conversation. Words leave no trace. They leave no
scar in the air, no footsteps. Memory writes upon the secret tablet
of the brain words that no human eye can see. No man can look into the
brain of another and tell whether he is giving a true transcript of
what is there. It is absolutely impossible for you to tell whether it is
memory or imagination. No one can do it. Another thing: Probably there
is not a man in the world whose memory makes an absolutely perfect
record. The moment it is written it begins to fade, and as the days pass
it grows dim, and as the years go by, no matter how deeply it may have
been engraven, it is covered by the moss of forgetfulness. And yet you
are asked to take from men their liberty, to take from citizens their
reputation, to tear down roof-trees, on testimony about conversation
that happened years and years ago, as to which the party testifying
had not the slightest interest. As a rule, memory is the child of
attention—memory is the child of interest. Take the avaricious man. He
sets down a debt in his brain, and he graves it as deep as graving upon
stone. A man must have interest. His attention must be aroused. Tell
me that a man can remember a conversation of four or five years ago in
which he had no interest. We have been in this trial I don't know how
many years. I have seen you, gentlemen, gradually growing gray. You
have, during this trial, heard argument after argument as to what some
witness said, as to some line embodied in this library. [Indicating
record.] You have heard the counsel for the prosecution say one thing,
the counsel for the defence another, and often his Honor, holding the
impartial scales of memory, differs from us both, and then we have
turned to the record and found that all were mistaken. That has happened
again and again, and yet when that witness was testifying every attorney
for the defence was watching him, and every attorney for the prosecution
was looking at him. How hard it would be for you, Mr. Juror, or for any
one of you to tell what a witness has said in this case. Yet men are
brought here who had a casual conversation with one of the defendants
five years ago about a matter in which no one of the witnesses
was interested to the extent of one cent, and pretend to give that
conversation entire. For ray part, were I upon the jury, I would pay no
more attention to such evidence than I would to the idle wind. Such men
are not giving a true transcript of their brains. It is the result
of imagination. They wish to say something. They recollect they had a
conversation upon a certain subject, and then they fill it out to suit
the prosecution.

Now, I am told another thing; that after getting through with
conversations they then gave us notice that we must produce our books,
our papers, our letters, our stubs, and our checks; that we must produce
everything in which we have any interest, and hand them all over to this
prosecution. They say they only want what pertains to the mail business,
but who is to judge of that? They want to look at them to see if they do
pertain to the mail business. They won't take our word. We must produce
them all. It may be that with such a net they might bring in something
that would be calculated to get somebody in trouble about something, no
matter whether this business or not. They might find out something that
would annoy somebody. They gave us a notice wide enough and broad enough
to cover everything we had or were likely to have. What did they want
with those things? May be one of their witnesses wanted to see them. May
be he wanted to stake out his testimony. May be he did not entirely
rely upon his memory and wanted to find whether he should swear as to
check-books or a check-book, and whether he should swear as to one stub
or as to many. May be he wanted to look them all over so that he could
fortify the story he was going to tell. We did not give them the books.
We would not do it. We took the consequences. But what did we offer?
That is the only way to find out our motive. I believe that on page 3776
there is something upon that subject. I will read what I said:

Now, gentlemen, with regard to the books. As there has been a good
deal said on that subject I make this proposition: Mr. Dorsey has
books extending over a period of twenty years, or somewhere in that
neighborhood. He has had accounts with a great many people on a great
many subjects. He does not wish to bring those books into court, or to
have those accounts gone over by this prosecution, not for reasons
in this case, but for reasons entirely outside of the case. If the
gentlemen on the other side will agree, or if the Court will appoint any
two men or any three men, we will present to those men all our books,
every one that we ever had in the world, and allow them to go over every
solitary item and report to this court every item pertaining to John W.
Dorsey & Co., Miner, Peck & Co., or Vaile, Miner & Co., with regard
to every dollar connected, directly or indirectly, with this entire
business from November or December, 1877, to the present moment, and
report to this Court exactly every item just as it is. I make that
proposition.

That proposition was refused. What else did I do? I offered to bring
into court every check, including the time they said we drew money to
pay Brady. I offered to bring in every check on every bank in which we
had one dollar deposited; every one. That was not admitted. And why?
Because the Court distinctly said that it rests upon the oath of the
defendant at last; he may have had money in banks that we know nothing
about. To which I replied at the time that if we stated here in open
court the name of every bank in which we did business, and there is any
other bank knowing that we did do business with it, we will hear from
it. So that we offered, gentlemen, in this case, every check on every
bank but one. I did not know at that time that we had ever had an
account with the German-American Savings Bank; I did not find that out
until afterwards. But you will remember that Mr. Merrick held in his
hand the account of Dorsey with that bank; and Mr. Keyser, who, I
believe, had charge of that bank, was here, and if there had been
anything upon those books, certainly the Government would have shown it.

More than that; that bank went into the hands of a receiver, I think,
eight months before any of these checks are said to have been given
for money which was afterwards given to Brady. Now, they insist, that
because we failed to bring the books into court, therefore the law
presumes that the absolute evidence of our guilt is in those books.
I believe they claim that as the law. If my memory serves me rightly,
Colonel Bliss so claimed in his speech. In other words, that when they
give us notice to produce a book, and we do not produce it, there is a
presumption against us. That is not the law, gentlemen. When they give
us notice to produce a book or letter and we do not produce it, what
can they do? They can prove the contents of the book or letter. In other
words, if we fail to produce what is called the best evidence, then the
Government can introduce secondary evidence. They can prove the contents
by the memory of some witness, by some copy, no matter how; and that is
the only possible consequence flowing from a refusal to produce the book
or letter.

And yet, in this case, gentlemen, Mr. Bliss wishes you to give a verdict
based upon two things: first, upon what we failed to prove; secondly, on
what the Court would not let them prove. He tells you that they offered
to prove so and so, but the Court would not let them; he wants you to
take that into consideration; and secondly, that there were certain
things that we did not prove; and that those two make up a case. That is
their idea. Now, let us see if I am right about the law.

The first case to which I will call the attention of the Court is a
very small one, but the principle is clear. It is the case of Lawson
and another, assignees of Shiffner, vs. Sherwood, and it is found in 2
English Common-Law Reports; 1 Starkie, 314.

The Court. Colonel Ingersoll, you cannot argue that question to the
jury; you cannot cite an authority and discuss it to the jury.

Mr. Ingersoll. Then I will discuss it with the Court; it is immaterial
to me which way I turn when I am talking. I insist that the jury must at
last decide the law in this case. I will read another case to the Court,
found in 9 Maryland, Spring Garden Mutual Insurance Company, vs. Evans.

The Court decides in this case that the only consequence of their
refusal to produce the papers, they not denying that they had them, was
to allow the opposite party to prove their contents. That is all; that
it could not be patched out with a presumption.

The Court. But if afterwards they should attempt to contradict the
secondary evidence the Court would not have allowed them to do it.

Mr. Ingersoll. It does not say so.

The Court. That is the law.

Mr. Ingersoll. Suppose, after the other side had proved the contents,
there was an offer of the actual original papers. I can find plenty of
authority that they must be received.

The Court. I have never seen such authority, but I have seen a great
many to the contrary.

Mr. Ingersoll. I have never seen an authority to the contrary that was
very well reasoned. But, then, I will not argue about that, for that is
not a point in this case.

The Court. If you have the papers, and have received notice to produce
them, you are bound to produce them. If you do not produce them
secondary evidence is admissible to prove their contents. But after the
secondary evidence has been received, the Court will not allow you then,
after having first failed to produce the papers upon notice, to resort
to the primary evidence which you ought to have produced upon the
notice, for the purpose of contradicting the secondary evidence that was
given.

Mr. Ingersoll. Now, let me give the Court a case in point: In this very
case that we are now trying, Mr. Rerdell in his statement to MacVeagh
said there was a check for seven thousand dollars; that the money
was drawn upon that check; that he and Dorsey went together to the
Post-Office Department and that Dorsey went into Brady's room; that that
money was drawn by Dorsey. That was his statement to MacVeagh and James.

The Court. It was not his statement here.

Mr. Ingersoll. Yes, that was his statement here, as I will show
hereafter. But let me state my point. He was coming upon the stand.
The check, instead of being for seven thousand dollars, was for seven
thousand five hundred dollars; instead of being drawn to the order
of Dorsey or to bearer, it was drawn to the order of Rerdell himself;
instead of being drawn at the bank by Dorsey, it was drawn by Rerdell
in person and had his indorsement upon the back of it. We were asked to
produce that. I preferred not to do it until I heard the testimony of
Mr. Rerdell. Why? Because I wanted to put that little piece of dynamite
under his testimony and see where the fragments went, and I did. That is
my answer to that.

Now, I find another case in the first volume of Curtis's Circuit Court
Reports, where it is said, on page 402, that—By the common law a notice
to produce a paper—The Court. [Interposing.] Before we part from what
you were saying, I wish to say that I do not think that the other side
gave you notice to produce the checks; that is my memory.

Mr. Ingersoll. Yes. Let me state my memory to the Court: I do not
remember exactly every one of these four thousand pages of testimony;
there are three or four that I may be a little dim about; but I do
remember that a notice was given to us to produce everything in the
universe, nearly, and that the Court held that the scope was a little
too broad. I have forgotten the page, but I will tell you where it
comes in: It was where Mr. Rerdell swore about the stub-book. I find
the notice, may it please your Honor, on page 2255, and it was dated the
13th of February. This is the notice, and it gave the same notice to all
the defendants:

You are hereby notified to produce forthwith in court, in the above
entitled cause, all letters and communications, including all telegrams,
of every kind and description, purporting to come from any one of said
defendants and addressed to you or delivered to you, and all memoranda
in which reference is made to any contract or contracts of any one of
said defendants with the United States or with the Postmaster-General
for carrying the mail under the letting of 1878 on any route in the
United States, or in any way referring to any contract or contracts
for so carrying the mail, in which J. W. Bosler or any one of said
defendants had any interest, or in any way referring to any act,
contract, or proceeding thereunder, or to any payment, draft, warrant,
check, or bill, or note, or to any possible loss or profit in connection
with such contract or contracts, or to the management or execution
thereof, or referring to any possible gain or profit to be derived
by any of said defendants from contracts for carrying the mail of
the United States, or to any payments under such contract, or to the
distribution of the proceeds made or to be made of said payment, or to
the management of any enterprise or enterprises in connection with the
transportation of the mail, or to gains, profits, or losses accruing or
likely to accrue from such enterprises, or to the financial means for
carrying on the same; and also to produce any and all books containing
any entry or entries in regard to any of the subjects, matters, checks,
drafts, or payments relating or having reference to the subjects, &c.,
hereinbefore referred to; and also any letter-book or letter-books
containing letter-press copies of letters referring to the said subject
or subjects.

I believe just about that time, or a little after, another notice was
given.

Mr. Merrick. If the counsel will allow me, my impression is that that
notice was deemed by the Court to be too broad.

The Court. It was.

Mr. Ingersoll. Then another notice was given that specified all these
things.

Curtis says in this case that—By the common law, a notice to produce a
paper, merely enables the party to give parol evidence of its
contents, if it be not produced. Its non-production has no other legal
consequence.

I find too, that in the Maryland case they make a reference to Cooper
vs. Gibson, 3 Camp., 303. I also have another case, to which I will call
the attention of the Court, United States vs. Chaffee, 18 Wallace, 516.
I have not the book here, but I can state what it is. My recollection
of the case is this: That an action was brought against some distillers;
that by law distillers have to keep certain books in which certain
entries by law have to be made. Notice was served upon the defendants to
produce those books. They refused so to do; and the question was whether
any presumption arose against the defendants on account of that refusal.

The Court. I agree with you entirely that far in your law, that the
mere fact of the failure to produce books or papers has no effect at
all against the party declining to produce them. But it is a different
question altogether, after secondary evidence has been given, in
consequence of such refusal, to supply the place of the primary
evidence. If the books and papers have an existence, and the party who
has received the notice has refused to produce them, and the other party
has given secondary evidence of the contents of such books and papers,
that secondary evidence will have to stand, under those circumstances,
as the proof in the case.

Mr. Ingersoll. That is not the point. Of course that will stand for what
it is worth. I was arguing this point: Can the jury hatch and putty and
plaster the secondary evidence with a presumption born of the failure to
produce the books and papers?

The Court. What I mean is just this: If you should fail to produce the
primary evidence, and then the secondary evidence of the contents is not
contradicted——

Mr. Ingersoll. [Interposing.] It may not be contradicted, because it
happens to be inherently improbable.

Mr. Merrick. The Government claims the law to be as your Honor has
intimated, and we have formulated it in one of our prayers. But that
abstract proposition is hardly applicable in the present case, for the
Government claims the application of another and plainer proposition:
That wherever a defendant himself takes the stand and has in his
possession a certain paper which, when called upon on cross-examination
to produce, he refuses, then a presumption unquestionably arises of such
potency that it is difficult to resist.

Mr. Ingersoll. There is no difference, so far as the law is concerned,
whether the defendant, as a defendant, fails to produce the books and
papers, or whether, in his capacity as a witness, he fails to produce
the books and papers. The law, it seems to me, is exactly the same.

Now, in this case of the United States vs. Chaffee et al. (18 Wall.,
544), Justice Field denounces that you should presume against the
party because he fails to produce books and papers known to be in his
possession. And why? I suppose a party can not be presumed out of his
liberty; he cannot be presumed into the penitentiary; and you cannot
make a prison out of a presumption any more than you can make a gibbet
out of a suspicion.

And again, the court instructed the jury that the law presumed that
the defendants kept the accounts usual and necessary for the correct
understanding of their large business and an accurate accounting between
the partners, and that the books were in existence and accessible to the
defendants unless the contrary were shown.

That same thing has been claimed here.

The Court. No.

Mr. Ingersoll. We have heard it very often that this was a large
business.

The Court. You have not heard anything of that kind from the Court.

Mr. Ingersoll. I am not saying that. I said "claimed"; if I had referred
to your Honor I should have said "decided." Here is another instruction
of the court:

If you believe the books were kept which contained the facts necessary
to show the real amount of whiskey in the hands of the defendants in
October, 1865, and the amount which they had sold during the next ten
months, or that the defendants, or either of them, could by their own
oath resolve all doubts on this point; if you believe this, then the
circumstances of this case seem to come fully within this most necessary
and beneficent rule.,

He applied the word "beneficent" to a rule that put a man in the
penitentiary on a presumption.

The Court. He was conservative.

Mr. Ingersoll. He ought to read some work on the use and abuse of words.
Now, Judge Field says further:

The purport of all this was to tell the jury that although the
defendants must be proved guilty beyond a reasonable doubt, yet if the
Government had made out a prima facie case against them, not one
free from all doubt, but one which disclosed circumstances requiring
explanation, and the defendants did not explain, the perplexing question
of their guilt need not disturb the minds of the jurors.

That is this case exactly: that is the exact claim of Colonel Bliss in
this case. Gentlemen, you have only to take into consideration, he says,
what we offered to prove and what the Court would not allow us, and what
the defendants failed to prove. "Why didn't they call Bosler?"

Now, gentlemen, we claim the law to be this: That while notice is given
us to produce books and papers and we fail to do it, the only legal
consequence is that the Government may then prove the contents of such
books and papers, and that their proof of the contents must be passed
upon by you.

The next thing to which I call your attention is the crime laid at our
door, that we exercised the right of petition. It is regarded as a very
suspicious circumstance that petitions were circulated, signed, and sent
to the office of the Second Assistant Postmaster-General. Why did these
people petition? Let me tell you. If you will look in every contract
in this case you will find certain provisions relative to carrying the
mail. Among others you will find this: That no contractor has any right
to carry any newspaper or any letter faster than the schedule time; that
he has no right to carry any commercial news, or to carry any man who
has any commercial news about his person, faster than the schedule time.
No mail can be carried by anybody except the United States, and if a
community wants more mail it has no right to establish an express that
will carry the mail faster, because the United States has the monopoly.
Now, if you want more mail, what are you to do? You cannot start one
yourself; the Government will not allow it. What have you to do? You
have to petition the Government to carry the mail faster or to carry
it more frequently; and the reason you have to ask the Government to
do this is because the Government will not permit you to do it;
consequently you have only one resort. What is that? Petition. And in
this very case I believe his Honor used this language:

Every man carrying the mail has the right to take care of his business.
He has the right to get up petitions. He has the right to call the
attention of the people to what he supposes to be their needs in that
regard. He has the right to do it, and the fact that he does it is not
the slightest evidence that he has conspired with any human being.

Now, if the man carrying the mail has the right to call the attention of
the people to their needs, have not the people the right to do all
that themselves? If the man carrying the mail has the right to get up a
petition, surely the people have the right; and if the people have the
right, surely the man has that right. That is the only way we can find
out in this country what the people want—that is, to hear from them.
They have the right to tell what they want.

But these gentlemen say, "Anybody will sign a petition." Well, if that
is true, there is no great necessity for forging one. Very few people
will steal what they can get for the asking. If a bank or a man offers
you all the money you want, you would hardly go and forge a check to get
it. I will come to that in a few moments.

Now, gentlemen, according to this evidence, you have got to determine,
as I said in the outset, Was there a conspiracy? The second question you
have to determine is, When? In every crime in the world you have got to
prove the four W's—Who, When, What, Where? Who conspired? When? What
about? Where? Now I want to ask you a few questions, and I want you to
keep this evidence in mind. Was there a conspiracy when Dorsey received
the letter from Peck or Miner? Had the egg of this crime then been
laid? Had it been hatched at that time? Is there any evidence of it? The
object then was to make some bids. It is not necessary to conspire to
make bids. You cannot conspire to make fraudulent bids unless you enter
into an agreement that the lowest bid is not to be accepted, or agree
upon some machinery by which the lowest bid is not received, or put in a
bid with fraudulent and worthless security. Will the Government say that
there was a conspiracy at the time Peck or Miner wrote to S. W. Dorsey?
What evidence have you that there was? None. What evidence have you that
there was not? The evidence of Miner and the evidence of S. W. Dorsey.
What else? Boone had not been seen at that time. John W. Dorsey was not
here. Peck was not here. Peck or Miner had written the letter. Was there
any conspiracy then? Is there any evidence of it? Is there enough to
make a respectable suspicion even in the mind of jealousy? Does it
amount even to a "Trifle light as air."

Was it when Dorsey sent for Boone? Boone says no. He ought to know. S.
W. Dorsey says no. John W. Dorsey was not here. Miner had not arrived.
The only suspicious thing up to that point is that Dorsey lived "in
his house;" that he received this letter "in his house," and that Boone
visited him "in his house." That is all. Now, if there is a particle of
evidence, I want the attorney for the Government who closes this case
to point it out, and to be fair. Was it when Miner got here in December,
1877? Miner says no. Boone says no. Stephen W. Dorsey says no. John
W. Dorsey was not yet here. All the direct evidence says no. All the
indirect evidence says nothing. Now, let us keep our old text in view.
I want to ask you if there is a thing in all the evidence not consistent
with innocence? Was it not consistent with innocence that Peck and
Miner and John W. Dorsey should agree to bid? Was it not consistent with
innocence that John W. Dorsey met Peck at Oberlin, and that he met
Miner in Sandusky? Was not that consistent with innocence? Was it not
consistent with innocence for Peck to write S. W. Dorsey a letter? Was
it not consistent with innocence for Dorsey to open it and read it and
then send for Boone and give it to him? Boone in the meantime proceeded
to get information so that they could bid intelligently. Was
that consistent with innocence? Perfectly. More than that, it was
inconsistent with guilt. What next? May be this conspiracy was gotten
up about the 16th of January, when John W. Dorsey came here. Dorsey says
no; Boone says no; Miner says no; and S. W. Dorsey says no. That is the
direct evidence. Where is the indirect evidence? There is none. Ah,
but they say, don't you remember those Clendenning bonds? Yes. Is there
anything in the indictment about them? No. Was any contract granted upon
those bonds or proposals? No. Was the Government ever defrauded out of a
cent by them? No. Is there any charge in this case relative to them? No.
Everybody says no. John W. Dorsey entered into a partnership with A.
E. Boone after he came here. Is that consistent with innocence? Yes. No
doubt many of the jury have been in partnership with people. There is
nothing wrong about that. He also entered into partnership with Miner
and Peck. There were two firms, John W. Dorsey & Co., which meant A. E.
Boone and John W. Dorsey, and Miner, Peck & Co., which meant Miner, Peck
and John W. Dorsey. Is there anything criminal in that? No. They had a
right to bid. They had a right to form an association, a partnership.
There was nothing more suspicious in that than there would have been in
evidence of their eating and sleeping. Now, then, was this conspiracy
entered into on August 7, 1878, when Boone went out? Boone says no, and
with charming frankness he says if there had been a conspiracy he would
have staid. He said, "If I had even suspected one, I never would have
gone out. If I had dreamed that they had a good thing, I should have
staid in." He swears that at that time there was not any. Miner swears
to it and S. W. Dorsey swears to it. Everybody swears to it except the
counsel for the prosecution. Rerdell swears to it. That is the only
suspicious thing about it. Now, at that time, August 7, when Boone went
out, S. W. Dorsey was not here and John W. Dorsey was not here. Who was?
Miner. What was the trouble? Brady told him, "I want you to put on that
service. If you don't I will declare you a failing contractor." A little
while before that Miner had met Dorsey in Saint Louis, and Dorsey
had said, "This is the last money I will furnish. No matter whether
I conspired or not, I am through. This magnificent conspiracy,
silver-plated and gold-lined, I give up. There are millions in it, but
I want no more. I am through." So Mr. Miner, using his power of attorney
from John W. Dorsey and Peck, took in Mr. Vaile.

I believe that Mr. Rerdell swears that the reason they took in Vaile was
that they wanted a man close to Brady. According to the Government they
had already conspired with Brady. They could not get much closer than
that, could they? Miner was a co-conspirator, and yet they wanted
somebody to introduce him to Brady. John W. Dorsey and S. W. Dorsey were
in the same position. They were conspirators. The bargain was all made,
signed, sealed, and delivered, and yet they went around hunting somebody
that was close to Brady. Brady said, "I will declare you all failing
contractors. I can't help it, though I have conspired with you. I give
up all my millions. This service has got to be put on. The only way to
stop it is for you to seek for a man that is close to me. You are not
close enough." Now, absurdity may go further than that, but I doubt
it. You must recollect that that contract was signed as of the 16th of
August. You remember its terms. At that time not a cent had been paid
to S. W. Dorsey. His Post-Office drafts had been cut out by the
subcontracts. Afterwards he had a quarrel with Vaile. We will call it
December, 1878.

Was the conspiracy flagrant then? Let us have some good judgment about
this, gentlemen. You are to decide this question the same as you decide
others, except that you are to take into consideration the gravity of
the consequences flowing from the verdict. You must decide it with your
faculties all about you, with your intellectual eyes wide open, without
a bit of prejudice in your minds, and without a bit of fear. You must
decide it like men. You must judge men as you know them. Was there a
conspiracy between these defendants in December, 1878, when S. W. Dorsey
came back here and found out the security for his money was gone, and
when he had the quarrel with Mr Vaile? Is there the slightest scintilla
of testimony to show that Mr. Vaile came into this business through any
improper motive? I challenge the prosecution to point to one line of
testimony that any reasonable man can believe even tending to show that
Mr. Vaile was actuated by an improper motive. I defy them to show a line
tending to prove that John R. Miner was actuated by an improper motive
when he asked Vaile to assist him in this business. I defy them to show
that Brady was actuated by an improper motive when he told them, "You
must put on that service or I will declare you all failing contractors."
Was there a conspiracy then? I ask you, Mr. Foreman, and I ask each
of you, Was there a conspiracy at that time? Have the prosecution
introduced one particle of testimony to show that there was? In March
was there a conspiracy? Will you call dividing, a conspiracy? Will you
call going apart, coming together? If you will, then there must have
been a conspiracy in March. A conspiracy to do what? A conspiracy to
separate; a conspiracy to have nothing in common from that day forward.
Mr. Vaile entered into a conspiracy then that he would have no more
business relations with S. W. Dorsey. He swears that at that time
nothing on earth would have tempted him to go on. That is what they call
being in a conspiring frame of mind. Not another step would he go. In
March they separated, and each one went his way. It was finally fixed
up, and finally settled in May. John W. Dorsey was out with his ten
thousand dollars, and Peck was out with his ten thousand dollars. S.
W. Dorsey, for the first time became the owner of thirty routes, or
something more, and Miner and Vaile of the balance, I think about
ninety-six. According to that contract of August 16, John W. Dorsey only
had a third interest in the routes he had with Boone, and not another
cent. There was a division. If there was a conspiracy of such a
magnitude, why should Boone go out of it? Why should John W. Dorsey
sell out for ten thousand dollars? Why should John W. Dorsey offer Boone
one-third of it? Why was Mr. A. W. Moore offered one-quarter of it?—a
gentleman who could be employed for one hundred and fifty dollars a
month? I ask you these questions, gentlemen. I ask you to answer them
all in your own minds. Recollect, on the 16th of August there was
a conspiracy involving hundreds of thousands of dollars. In that
conspiracy was the Second Assistant Postmaster-General. They had the
Post-Office Department by the throat. They had the Postmaster-General
blindfolded. Yet Miner went to Vaile and said, "Now, just furnish a
little money to put on these routes and you may have forty percent, of
this conspiracy." He was giving him hundreds of thousands of dollars.
Is that the way people talk that conspire together? Would not Miner have
gone to Brady and said, "Look here, what is the use of acting like a
fool? What do you want me to give forty per cent, of this thing to Vaile
for? I had better give twenty per cent, more to you. That would allow me
to keep twenty per cent, more too, and then there will be one less to
keep the secret." He never thought of that.

I want you to think of these things, gentlemen, all of you, and see how
they will strike your mind. What did they want of Boone? S. W. Dorsey
they say was the prime mover. He hatched this conspiracy. Miner, his
own brother, Peck, and everybody else were simply his instruments, his
tools. What did he want Boone for? He had a magnificent conspiracy from
which millions were to come. He told Boone, "I will give you a third
of it." What for? He told Moore, "I will give you one-quarter."
Seven-twelfths gone already. T. J. B. thirty-three and one-third
per cent. That is about all. Then sixty-five per cent, more to the
subcontractors. I want you to think about these things, gentlemen. If
they had such a conspiracy what did they want of Mr. Moore?

Mr. Ingersoll. [Resuming.] Gentlemen, was it natural for S. W. Dorsey
to get the money back that he had advanced, or some security for it?
Was that natural? When a man seeks to have a debt secured is that a
suspicious circumstance? That is all he did. He was out several thousand
dollars. He wanted to secure that debt and he took another debt of
twenty thousand dollars upon him as a burden. If this had been a
conspiracy he could have furnished this money that he had to pay to
others to put the service on the route. I leave it to each one of you
if that action to secure that debt was not perfectly natural. I will ask
you another question. If he was the originator of the conspiracy would
he have taken thirty per cent, burdened with a debt of twenty thousand
dollars? The way to find out whether there is sense in anything or
not is to ask yourself questions. Put yourself in that place; you, the
master of the situation; you, the author of the entire scheme. Would
you take one-third of what you yourself had produced, and that third
burdened with twenty thousand dollars worth of debt, and then make your
debt out of the proceeds? I want every one of you to ask yourself the
question, because you have got to decide this case with your brains and
with your intelligence; not somebody else, but you, yourself. We want
your verdict; we want your individual opinion; not somebody else's.
There is the safety of the jury trial. We are to have the opinions of
twelve men, and those opinions agreeing. Where twelve honest men agree,
if they are also independent men, the rule is that the verdict is right.
The opinion of an honest man is always valuable, if he is only honest,
and if it is his opinion, it is valuable. It is valuable if he does not
go to some mental second-hand store and buy cheap opinions from somebody
else, or take cheap opinions. In this case I ask the individual opinion
of each one of you. I want each one of you to pass upon this evidence;
I want each one of you to say whether if Dorsey had been the author
and finisher of this conspiracy he would have taken thirty per cent.,
burdened with twenty thousand dollars of debt to others and fifteen
thousand dollars of debt to himself? If you can answer that question
in the affirmative you can do anything. After that nothing can be
impossible to you, except a reasonable verdict. You cannot answer it
that way. Why should he have cared so much about fifteen or sixteen
thousand dollars with a conspiracy worth hundreds of thousands of
dollars? Why run the risk of making the whole conspiracy public? Why
run the risk of his detection and its destruction? You cannot answer it.
Perhaps the prosecution can answer it. I hope they will try.

Mr. Ker, on page 4493, makes a very important admission.

After they (meaning the defendants) had these contracts, there was a
combination, an agreement between all these people, that they were to
do certain things in order to get at the public Treasury and get more
money.

What does that mean? That means that this conspiracy was entered into
after the defendants obtained the contracts, so that Mr. Ker fixes the
birth of this conspiracy after these contracts had been awarded to the
defendants. That being so, all the bids, proposals, Clendenning letter,
Haycock letter, proposals in blank, and bidders' names left out fade
away.

The Chico letter I will come to after awhile. I will not be as afraid of
it as were the counsel for the prosecution. I will not, like the Levite,
pass on by the other side of the Chico letter. I will not treat it as if
it were a leper, as if it had a contagious disease. When I get to it I
will speak about it. All these things, then, under that admission,
go for naught, and have nothing to do with the case, and consequently
nobody need argue with regard to them any more, although incidentally
I may allude to them again. There is no doubt, recollect, after
this admission. There is no clause in the indictment saying that we
endeavored to defraud this Government by bids, by proposals, by bonds,
or by contracts. Not a word. That is all out; in my judgment it never
should have been in the case at all. What is the next thing we did?
It is alleged that the moment Dorsey got these contracts he laid the
foundation to defraud the Government by a new form of subcontract. Let
me answer that fully, and let that put an end to it from this time
on. Until May 17, 1878, the Post-Office Department did not recognize
subcontractors. After these contracts came into the possession of
these defendants Congress passed a law recognizing subcontractors.
Consequently the contracts of the subcontractors that were to be
recognized by the Government had to be somewhere near the same form as
the contracts with the original contractors. The moment the contract
of the subcontractor was to be recognized by the Government then it was
necessary and proper to put a clause in that subcontract for expedition
and a clause in that subcontract for increase of service. Why? So that
the Government should know, if the route was expedited, what percentage
the subcontractor was entitled to. Instead of that clause in the
subcontract being evidence that Mr. Dorsey was endeavoring to swindle
the Government, the evidence is exactly the other way. It was put there
for the purpose of protecting the subcontractor, so that if expedition
was put upon the route the Government would know what per cent, of the
expedition to pay the subcontractor. If that clause had not been in that
subcontract the Government could not have told how much money to pay
the subcontractor, and as a consequence the subcontract would have been
worthless as security for the subcontractor. And yet a clause put in for
the protection of the subcontractor is referred to in your presence as
evidence that the man who suggested it was a thief and a robber. What
more? They say to these witnesses, "Did you ever see such a clause as
that in a subcontract before?" No. Why? The Government never recognized
a subcontractor before that time, and consequently there was no
necessity for such a clause. Think how they have endeavored to torture
every circumstance, no matter how honest, no matter how innocent, no
matter how sensible; how they have endeavored to twist it and turn
it against these defendants. Gentlemen, whenever you start out on the
ground that a man is guilty, everything looks like it. If you hate a
neighbor and anything happens to your lot you say he did it. If your
horse is poisoned he is the man who did it. If your fence is torn
down he is the fellow. You will go to work and get all the little
circumstances that have nothing to do with the matter braided and woven
into one string. Everything will be accounted for as coming from that
enemy, and as something he has done.

They say another thing: That we defrauded the Government by filing
subcontracts. You cannot do it. When this case is being closed I want
somebody to explain to the jury how it is possible for a man to defraud
this Government by filing a subcontract. I do not claim to have much
ingenuity. I claim that I have not enough to decide that question or
to answer it. I can lay down the proposition that it is an absolute,
infinite, eternal impossibility to fraudulently file a subcontract
as against the Government. It cannot he done. Oh, but they say, the
subcontractor did not take the oath. There is no law that he should take
an oath and there never was. There may be at some time, but there is
not now. The law that everybody engaged in carrying the mail and every
salaried officer of the department shall take an oath was passed before
the law of the 17th of May, 1879, allowing a subcontractor to file his
subcontract. Before that time the Government had nothing to do with
the subcontractor. If he actually carried the mail; if he actually took
possession of the mail, he had to take the oath of the carrier. But I
defy these gentlemen to find in the law any oath for a subcontractor.
There never was such an oath. If there is one, find it. The law that
every salaried officer and every carrier of the mail shall take the oath
was passed years and years and years before the law was passed
allowing subcontracts to be filed. What of it? Suppose a man who is a
subcontractor carries the mail and does not take any oath. That is as
good as to take the oath and not carry the mail. What possible evidence
is it of fraud? Suppose it should turn out that the carrier did not take
the oath, but carried the mail honestly. What of it? Is it any evidence
of fraud? If a man tells the truth without being sworn, is that evidence
that he is a dishonest man? If a man carries the mail properly and in
accordance with law without being sworn to do so, it seems to me that is
evidence that he is an honest fellow, and you don't need to swear
him. So when a subcontractor takes a subcontract and carries the mail
according to law it does not make any difference whether he swears to
do so or not. Is there any evidence in this case that the subcontractors
stole any letters on account of not having taken the oath? When they
answer, let them point to the law that the subcontractor is to take an
oath. There is no such law and never was.

Now, according to this admission of Mr. Ker, the conspiracy commenced
after they got the contract. Very well. I need not talk about anything
back of that. I do not know whether the admission is binding upon the
Government or not. I believe the Court holds that the Government is
not bound by the admission of any agent, and that the Government
only authorizes an agent to admit facts. May be he is mistaken. The
Government only authorizes an agent to admit the law. At any rate Mr.
Ker did the very best he knew how, and he says this conspiracy commenced
when they got the contracts, and so we need not go back of that unless
the Government is now willing to say that Mr. Ker has made a mistake.
I lay down the proposition, gentlemen, that you need not go back of the
division of these routes. Then you must go forward. What was done after
that? Recollect the exact position of Senator Dorsey and the exact
position of these other people.

The next claim is, although there was no conspiracy until after they
got the contracts, that Senator Dorsey was interested in these contracts
while he was a Senator of the United States. If they could establish
that fact it would not tend to establish a conspiracy. There is nothing
in this indictment about it. I admit that if he were a Senator, and at
the same time interested in mail contracts, he might be tried and
his robes of office stripped from him, and that he could be rendered
infamous. But that is not what he is being tried for. They say he was in
the Senate, and he was anxious to keep it secret. Mr. Ker says he was so
anxious to keep it secret that he sent all these communications out West
in Senate envelopes, so they would think a Senator had something to do
with it. Then it turned out that all the envelopes were in blank; just
plain white envelopes, with nothing on them, and away went that theory.
If he were in the Senate and engaged in these routes also, and wished
to keep it a profound secret, because if known it would blast his
reputation forever, do you think he would have had all these circulars
sent out in Senate envelopes and on Senate paper? If he did allow
that to be done, it is absolutely conclusive evidence that he was not
interested. Suppose I was trying to keep it an absolute, profound,
eternal, everlasting secret that I had anything to do with a certain
matter, would I write letters about it? Would I use paper that had my
name, the number of my office, and the character of my business printed
upon it? Would I? To ask that question is to answer it. Another thing:
They claim that he was in the Senate and infinitely anxious to keep it a
secret, and yet he found Mr. Moore, a perfect stranger, and said to him
in effect: "Yes, Mr. Moore; I don't know you, but I want you to know
me. I ama rascal. I am a member of the Senate, but I am engaged in mail
routes. I hope you will not tell anybody, because it would destroy me.
I have great confidence in you, because I don't know you." That is the
only way he could have had confidence in Moore. He would have to have it
the first time he saw him or it never would have come. To this perfect
stranger he said, "Here, I am in the Senate, but I am interested in
these routes. I am in a conspiracy. I want you to go out and attend to
this business. I want you to do all these things, and the reason I tell
you is because I am a Senator and I want it kept a profound secret. That
is the reason I tell you." That is what these gentlemen call probable.
That is their idea of reasonableness and of what is natural. That may be
true in a world where water always runs up hill. It can never be true in
this world. It is not in accordance with your experience. Not a man here
has any experience in accordance with that testimony or that doctrine;
not one. You never will have unless you become insane. If this trial
lasts much longer you may have that experience. It is a wonder to me it
has not happened already.

There is another queer circumstance connected with this case. While
Dorsey told it all to Moore he kept it a profound secret from Boone.
Boone, you know, was in at the first. Boone got up all this information.
Boone was interested in these bids, and yet he never told Boone. He had
known Boone, you see, for several weeks. He told Moore the first day,
the first minute. He wished to relieve his stuffed bosom of that secret.
Moore was the first empty thing he found, and he poured it into him.
It is astonishing to me that he succeeded in keeping that secret from
Boone, but he did. He even kept it from Rerdell.

Rerdell never heard of it—a gentleman who picks up every scrap, who
listens at the key-hole of an opportunity for the fragment of a sound.
He never heard it. John W. Dorsey did not even know anything about it.
Nobody but Moore. Now, I ask you, gentlemen, is there any sense in that
story? I ask you. I ask you, also, if the testimony of Stephen W.
Dorsey with regard to that transaction is not absolutely consistent
with itself? Did he not in every one of those transactions act like a
reasonable, sensible, good man? Oh, but they say it is not natural for
a man to help his brother; certainly it is not natural for a man to help
his brother-in-law, and nobody but a hardened scoundrel would help a
friend, and Dorsey is not that kind of a man. Occasionally in a case an
accident will happen, and from an unexpected quarter a side-light will
be thrown upon the character of a man, sometimes for good, and sometimes
for evil. Sometimes a little circumstance will come out that will cover
a man with infamy, something that nobody expected to prove, and that
leaps out of the dark. Then, again, sometimes by a similar accident a
man will be covered with glory. In this case there was a little fact
that came to the surface about Stephen W. Dorsey that made me proud that
I was defending him. Oh, he is not the man to help his brother; he is
not the man to help his brother-in-law; he is not the man to help a
friend; and yet, when Torrey was upon the stand, he was asked if he was
working for Dorsey, and he said no, and was asked if Dorsey paid him at
a certain time, or if he owed him, and he said no. He was asked why, and
he replied, "Because only a little while before, when I was not working
for him, and my boy was dead, he gave me a thousand dollars to put him
beneath the sod." That is the kind of a man Stephen W. Dorsey is. I
like such people. A man capable of doing that is capable of helping his
brother, of helping his brother-in-law, and of helping his friend. A man
capable of doing that is capable of any great and splendid action.
Is there any other man connected with this trial that ever did a more
generous, nay, a more loving and lovely thing? How such a man can excite
the hatred of the prosecution is more than I can understand.

Now, we have got to the division, and the question arises, was there
a division? Let us see. On page 5009 Mr. Bliss admits that Vaile,
immediately upon Dorsey's coming out of the Senate, came here for the
purpose of settling up this business; that he made up his mind to
have no more to do with Dorsey. Then Mr. Bliss makes this important
admission, and I do not want any attorney for the Government to deny it.

He admits that in May there was a final division, and that that division
was to take effect as from the 1st day of April, and that after
that each party took the routes allotted to him, and they became the
uncontrolled property of that person, no other person having the right
to interfere. There is your admission, just as broad as it can be made.
Mr. Bliss, after having made that admission, which virtually gives up
the Government's case, then threw a sheet-anchor to the windward and
said, "But when they divided they made a bargain with each other that
they would make the necessary papers." What for? To carry out the
division. That is all. Now, the only corner-stone for this conspiracy,
the only pebble left in the entire foundation is the agreement to make
the necessary papers after the division. That is all that is left. The
rest has been dissolved or dug up and carted away by this admission. Let
us see what that agreement was. Mr. Bliss turned to the evidence of John
W. Dorsey, on page 4105:

Q. At the time you sold out, was there any understanding about your
making papers?—A. That was a part of the agreement. I was to sign all
the necessary papers to carry on the business.

When he sold out he agreed to sign all the necessary papers. It is like
this: Mr. Bliss says on such a day, for instance, they divided. Suppose,
instead of being routes it was all land. They divided the land and then
they agreed to make the deeds. That was the conspiracy; not in the land;
not in the agreement about the land; not in the bargain, but in the
execution of the papers in consequence of the bargain. That was the
conspiracy. They agreed to make all the necessary papers. That was the
agreement. Then the Court asked John W. Dorsey a question.

Q. You agreed to sign what?—A. All the necessary papers to carry on the
business.

That is what he agreed to do. What else? What were those papers? First,
they were to sign all the subcontracts that were necessary, all the
Post-Office drafts necessary, and they were to sign letters like this:

The Post-Office Department, in regard to this route, will hereafter send
all communications to the undersigned.

In other words, the object was to let the person who fell heir to a
given route in the division control that route. That was all. The man
who was the contractor agreed that he would sign all the necessary
papers. For what purpose? To allow each man who got a route to be the
owner of it and control it and draw the money. That is all. And yet it
is considered rascality.

Let me call your attention to another piece of evidence on this subject.
On page 5016, Mr. Bliss is talking about all these papers and these
letters that were written and apparently signed by Peck, but really
signed by Miner, saying, "I want you to send all communications in
reference to such a route to post-office box No. so and so, John M.
Peck," sometimes with an M. under it and sometimes without. He did that
in consideration of the agreement at the time he got the routes that had
been originally allotted to Peck. Mr. Bliss brought here a vast number
of these papers, and then he continued, on page 5017:

All those, gentlemen, are orders, dated after the division, many of
them coming away down into 1881, and all of them relating to routes with
which Peck had no connection, because he severed his connection with all
the routes prior to the 1st of April, or as of the 1st of April, 1879.
John W. Dorsey tells you that he signed papers right along—Of course
he did. He agreed to—and I have here a series of them. Many of them are
orders not in blank. There are among the papers, orders signed in blank,
but these are dated, and they are witnessed not always by the same
person as indicating that they got together and signed a lot of orders
at the time of the division. There is every indication that the dates
are correct. The witnesses are different at different times.

The Court. These same orders would have been made if the division had
been perfectly honest.

That is what I say. That is what we all say, gentlemen.

If the transaction then had been perfectly honest the papers would have
been precisely as they are. From the papers being precisely as they
are, do they tend to show that the transaction was dishonest, when it is
admitted by everybody and decided by the Court, that if the transaction
had been perfectly honest the papers would have been just as they are?
Recollect my text. Every fact when you are proving a circumstantial case
has to point to the guilt of the defendants, and their guilt has to be
found from all the facts in the case beyond a reasonable doubt. If there
is one fact inconsistent with their guilt, the case is gone.

There is another little admission to which I call your attention.
Nothing delights me so much as to have the prosecution in a moment of
forgetfulness, or we will say on purpose, admit a fact. Mr. Bliss said,
on page 5018:

You will bear in mind that the division took place some eight months
previous to that.

That was January 1, 1880,

However that may be, these papers are all papers which on their faces
might be innocent and fair and proper. They are papers which, under
ordinary circumstances, might be executed to enable others than the
contractor to draw the pay and to be tiled with the department, though
it appears, I think, by the evidence in this case that no draft could be
filed except shortly prior to the quarter as to which it applied. As to
these papers all that we have to say is this: they are papers on
their face apparently innocent, papers calculated to go through in the
ordinary practice as though there was nothing wrong about them. At the
same time the evidence shows that they were papers executed by these
several parties at the time of or in pursuance of the agreement of the
division.

I do not want anything better. That settles the papers. They were made
at the time they agreed to make them. It was the only way in which they
could give the party who got the route absolute control of the route.

Now, gentlemen, apart from these papers, I believe they have three
witnesses, at least they are called witnesses, in this case. The first
witness that I will call your attention to, and who figures about as
early as anybody, is A. W. Moore. I want to ask you a few questions
about his testimony. I want you to understand exactly what he swears to
and the circumstances. Let us see.

He swears first that he had a conversation with Miner, in which he told
Miner that he would work for him for one hundred and fifty dollars a
month and expenses, with permission to put on some of his own service, I
think, in Oregon and California, and that Mr. Miner accepted his terms,
and employed him as the agent of Miner, Peck & Co. Recollect that,
Miner, Peck & Co. Second, that Miner told him to report at Dorsey's
house to get instructions. Miner at that time was staying at Dorsey's
house. I do not know whether it was to get instructions from Dorsey or
from the house, or from Miner. I take it, from Miner. No matter. Mr.
Moore then swears that he reported to Dorsey and Dorsey asked him his
opinion about the service. Moore had never been there and did not know
one of the routes, but Dorsey was anxious for his opinion. How did he
know any more about the service than Dorsey? There is no evidence that
Moore knew the price. There is no evidence that he knew the amount the
Government was to pay on a single route. He was a stranger. Then he had
another conversation with Dorsey in which Dorsey told him that they had
bid on the long routes with slow time, because that was the way to make
money. Not satisfied with that, Mr. Dorsey showed him the subcontracts
with the blanks and with the changes, and then he explained to him the
descending scale, and he explained to him the percentage of expedition.
He said Dorsey told him forty per cent, of the expedition. Boone swears
it was sixty-five per cent. There is a little difference; not much.
Moore swears that he himself was to have twenty-five per cent, of the
stealings. Let us see how that is. Boone swears that the subcontractor
was to have sixty-five per cent. Rerdell swears that Brady was to have
thirty-three and one-third per cent. That leaves one and two-third per
cent, for the contractor. Do you see? The subcontractor got sixty-five
dollars out of one hundred dollars, and then Brady got thirty-three
dollars and thirty-three and one-third cents. That makes ninety-eight
dollars and thirty-three and one-third cents, leaving the contractor one
dollar and sixty-six and two-third cents. That was all he got. Did you
ever know of anybody on earth doing business at a smaller per cent, and
paying for the trouble? Now, Mr. Moore comes in with his statement.
He says the subcontractor got forty per cent, and then he himself got
twenty-five per cent. That makes sixty-five. Then, according to Rerdell,
Brady was to have thirty-three and one-third per cent. That makes
ninety-eight and one-third. There is the most wonderful coincidence in
this whole trial. Rerdell and Boone and Moore agree exactly that the
contractor gave up ninety-eight and one-third per cent, to others and
took one and two-thirds himself. Did you ever know as much humanity in
a conspiracy as that? Did you ever know such a streak of benevolence
to strike anybody? It reminds me of a case of disinterested benevolence
that happened in Southern Illinois. A young man there went to a lawyer
and said to him, "I want to get a divorce, I was married at a time when
I was drunk, and when I sobered up I didn't like the marriage. I want a
divorce." The lawyer asked, "What do you want of a divorce?" "Well,"
he said, "do you know the widow Thompson?" "Yes." "She has been a widow
there for about forty years. Do you know her boy? He is the biggest
thief in this county. He went over the Ohio River the other day and
stole a set of harness and a mule." "What has that to do with this
divorce case?" "Well," he said, "I want to get a divorce and I want to
marry that widow." "What for?" "I want to get control of that boy and
see if I can't break him from stealing. I have got some humanity in me."
Here are S. W. Dorsey, his brother, his brother-in-law, Miner and Vaile
starting a charity conspiracy, and out of every hundred dollars that
they steal they offer ninety-eight dollars and thirty-three cents upon
the altar of disinterested friendship. You are asked to believe that.
You will not do it.

Mr. Moore also swears that he received some money by a check, but he
does not know whether the check was payable to him or payable to Miner,
and he got a power of attorney signed by Miner from John W. Dorsey and
John M. Peck, and then he started, S. W. Dorsey assuring him in the
meantime that he could tell the people out there that the service would
be increased and expedited in a few days. Mr. Moore is a peculiar man.
He says that that suited him exactly. He was willing to steal what
little he could; he was willing to steal for one hundred and fifty
dollars a month if he couldn't get any more, or he was willing to steal
for a part of the stealing. If he could not get that he would take an
ordinary salary. I should think he was a good man from what he says. You
heard him. They were wonderfully anxious to prove by Moore that Dorsey
was the head and front of this whole business. That was the object, and
so he swore as to the instructions. He said he was instructed to get up
petitions so that they could be torn off and the names pasted on other
petitions. He swore he carried out those instructions. He swore that
Major agreed to do it, and I think a man by the name of McBeau was going
to do it. Yet, gentlemen, there never was such a petition gotten up.
Major swore here that he never heard of it; that he never dreamed of it,
and never agreed to it; that it was a lie; that it was never suggested
to him. Moore went out West and came back as far as Denver, and at
Denver met John R. Miner, and then came here and saw Dorsey. What did he
do with Dorsey? He swears that he went to Stephen W. Dorsey and settled
with him, and that Dorsey settled in a very generous and magnanimous
way, and did not want to look at his account, and did not want to look
at the book; had no anxiety or curiosity about the items. He just said,
"How much is it?" It happened to be even dollars—two hundred and fifty
dollars. When a man goes out West and has hotel bills and all that sort
of thing, when he comes to render his expense account it is always even
dollars. Moore said two hundred and fifty dollars. Dorsey gave it to
him; never looked at the book at all. Moore swears that he made that
settlement with Stephen W. Dorsey on the 11th day of July, 1878. Dorsey
was then in the Senate.

Look at page 1417. You see that Moore had been smart; that is what
people call smart. You know it is never smart to tell a lie. Very few
men have the brains to tell a good lie. It is an awfully awkward thing
to deal with after you? have told it. You see it will not fit anything
else except another lie that you make, and you have to start a factory
in a short time to make lies enough to support that poor little bantling
that you left on the door-step of your honesty. A man that is going to
tell a lie should be ingenious and he should have an excellent memory.
That man swore that he settled with Dorsey to the 11th day of July, 1878;
swore it for the purpose of convincing you that Dorsey employed him;
that Dorsey gave him instructions; that Dorsey was the head and front of
the conspiracy. I then handed him a little paper, and asked him, "Do you
know anything about that? Did you ever sign that?" And here it is:

Not July 11. That is the day he got the money of Dorsey.

July 24, 1878.

Received of Miner, Peck & Co., one hundred and sixty-six dollars,
balance of salary and expenses in full to July 11, 1878.

A. W. Moore

To when? To July 24? No, sir; he settled with Dorsey to July 11, 1878.
The gentlemen had forgotten that he gave that. If he had only had a
little more brains he would have avoided the two hundred and fifty
dollars, that even amount, and he would have said, "Dorsey did look
over my books, and we had a little dispute about some items, and we just
jumped at two hundred and fifty dollars." But he swears that was the
actual settlement, and then we bring in his receipt in writing,
dated the 24th of July, 1878, saying that he received one hundred and
sixty-six dollars that day, and that it was in full of his salary and
expenses, not up to that date, but up to the nth of July, 1878. If his
testimony is true, he stole that one hundred and sixty-six dollars. If
his testimony is true, he settled with Dorsey in full for two hundred
and fifty dollars, and then he was mean enough to go and get one hundred
and sixty-six dollars more for the same time. No, gentlemen, he was all
right enough about it then; he told the falsehood here.

Now, what does Dorsey swear? Dorsey swears that he received an order
from Miner to give this man two hundred and fifty dollars. Miner swears
that if Dorsey paid him anything it was on his, Miner's, request. That
is a v perfectly natural proceeding for Mr. Miner to request Dorsey to
pay this man two hundred and fifty dollars. The man came to Dorsey's
house. Dorsey gave him two hundred and fifty dollars upon Miner's order.
He was trusting John R. Miner for the money, and it was none of his
business whether Miner owed it or not, and consequently he did not
look at his book. Now, every fact is consistent with the truth of Mr.
Dorsey's testimony; the fact is consistent with the truth of Miner's
testimony; and the receipt of this man given to Miner on the 24th of
July, 1878, demonstrates that he did not tell the truth, under oath, in
this court before you.

That is the end of Mr. Moore; that is the end of him. You never need
bother about him again as long as you live.

Why, they say, "Why didn't you impeach him?" He impeached himself. "Why
didn't you call so-and-so?" Because we had that receipt; that is why.
No need of killing a man that is dead. You need not give poison to a
corpse. When a thing is buried, let it go. When a man commits suicide,
you need not murder him. When he destroys his own testimony, let it
alone; it will not hurt you.

I am not afraid of the testimony of Mr. Moore. If these gentlemen can
galvanize it into the appearance of life, I should be very happy to see
them do it. Everything that he swore upon this stand that in any way
touched the defendants is shown not to be true.

Why should Dorsey have told him in 1878 to get up fraudulent petitions?
Even Rerdell does not swear that in 1879 Dorsey instructed him to get
up fraudulent petitions, and certainly he would go to the limit of the
truth. After he made his story out of a piece of true cloth there would
be very few scraps left. He would certainly go clear to the line. And
yet, even he does not swear that when he went West to make contracts, to
get up petitions, he was instructed by Mr. Dorsey to get up a fraudulent
petition—not once. And yet Moore swears that in 1878, when Dorsey was
in the Senate, he told him to get up these fraudulent petitions. It will
not do.

Mr. Major swears that what he says about it is not true; Mr. McBean
swears that what he says about it is not true; and then we have Moore's
own receipt showing that it is not true.

On page 4757 Mr. Bliss says—Moore stands before you, therefore, so
far as all this testimony is concerned, wholly and absolutely
uncontradicted.

His testimony was that he was employed by Dorsey; his testimony was that
he was settled with by Dorsey, and the testimony of the receipt that he
signed is that he settled with Miner and not with Dorsey; the testimony
of Miner is that he was settled with by Miner, and not with by Dorsey;
the testimony of Dorsey is that he never had any conversation with him
in the world except at the time he paid him the two hundred and fifty
dollars. They say Rerdell was present at the conversation. Why did they
not prove it by Rerdell after Dorsey had sworn to the contrary? And
yet Mr. Bliss tells you that he is not contradicted—"utterly
uncontradicted."

Mr. Ker, it seems, has an opinion of this same witness, I believe. He
says, on page 4511:

He says he started out and went to work, as these records show, and made
the subcontracts according to his instructions, and got up the petitions
according to his instructions.

He swears he did not get up a petition at all, not one; he swears that
he had not time. And yet these gentlemen say that he got up petitions
according to his instructions, and he swears he did not. He swears he
told Major to, and that Major signified his willingness to do it. Major
swears that that is a falsehood. He swears the same with reference to
McBean, and McBean swears that it is a falsehood. Now Mr. Ker goes on:

He fixed them up and changed the language a little in some, and in some
he did not take the trouble to change, but he fixed them all so that
there was a space between the writing and the names, so that they could
be cut off and pasted on other papers.

He expressly denies that he ever fixed a petition in the world.

Mr. Ker. What page?

Mr. Ingersoll. You ask the page! Talk to the jury seven days! I say that
this man never fixed up a petition, and he never says that he fixed up
a petition. Where is the page on which he says it? He was willing to
do it, but he had not the time. I will show you that language. There is
what they say about this man. Then he says he got a note from Miner, and
went to Denver and met Miner. That is right. Then Miner offered him a
quarter interest in the routes in this vast conspiracy.

Let us find what Moore thinks of himself. We find that on page 1398. He
is a good man, worthy of this case, according to the eternal fitness of
things. I come to this quicker than I thought I would. It is page 1396:

Q. Did you get up any?—A. No, sir; I didn't have the time.

There it is. Now, of course, Mr. Ker forgot. I call your attention to
this to show how little weight such evidence is entitled to in reference
to a conversation five years ago, when Mr. Ker could not remember this
with the book before him.

Mr. Ker. I asked you for the page on which Mr. McBean's testimony
appears.

Mr. Ingersoll. Mr. Moore is the witness. Mr. Moore swears that he never
got up such a petition. Mr. Ker says he did. He and Mr. Ker will have to
settle their own difficulty.

On last Friday, in reply, I think, to a question of Mr. Ker, I stated
that I thought McBean swore that Mr. Moore did not make any arrangement
with him to get up false petitions. In that I was mistaken. Mr. Moore
swore that he made an arrangement with McBean to get up petitions. He
did not quite swear that McBean agreed to get up false and fraudulent
petitions. He just came to the edge of it and did not quite swear to it.
Afterwards McBean was recalled by the Government and the Government did
not ask McBean whether he had ever agreed to get up any petitions or
whether he had ever made any such arrangement with Moore. They did not
ask him and we did not ask him. I do not know why they did not ask him.
They probably know.

I also stated that Moore swore that he got his instructions about these
petitions from Dorsey. The evidence is that he got his instructions
not from Dorsey but from Miner; that Miner so instructed him, and that
thereupon he made the bargain to get up such petitions with a man by the
name of Major on the Redding and Alturas route. I make this correction
because I do not want you or any one else to think that I wish any
misstatement made in our favor. We do not need it and consequently there
is no need of making it. You will remember that after Moore swore that
he made a bargain with Major to get up false petitions, Major swore that
it was untrue. You will also remember that Judge Carpenter called
for the petitions that were gotten up upon the routes that Moore had
something to do with, and I think he showed you on one route eleven or
twelve petitions. Mr. Major swears that every petition was honest, that
the statements in each petition were true, and that the signatures were
genuine. All those petitions were shown to you. So that the result of
the Moore testimony is this: Moore swears that Miner told him to get
up such petitions. He then swears that he made that bargain with Major.
Major says it is not true. Moore almost swears that he made the same
bargain with McBean. McBean says nothing on the subject. Then we bring
here the petitions upon those very routes, and especially upon the
Redding and Alturas route, and we find no such petitions as are
described by Moore. That is enough in regard to Mr. Moore upon that one
point.

There is one little piece of testimony to which I failed to call your
attention on Friday, and to which I will call your attention now. Moore
was the friend of Boone. Boone recommended him to Miner. It was through
Boone that Moore was employed. Now, I ask you if it is not wonderful
that Moore never told Boone that there was a conspiracy on foot? Is it
not wonderful that Moore did not tell Boone, his friend, the man to whom
he was indebted for the employment, "There is a conspiracy in this case.
Senator Dorsey as good as told me so. I know all about it."

The fact is he never said one word, and the reason we know it, is that
Boone swears that when he went out on the 7th or 8th of August he never
even suspected it. I cannot, it seems to me, make this point too plain.
Boone had been known by Dorsey for a long time. They were very good
friends. Dorsey had enough confidence in him to select him as the man
to get the necessary information after he had been requested so to do
in the letter. Boone was the man who attended to this business more than
anybody else. Boone was interested with John W. Dorsey. Boone had every
reason to find out exactly what was happening. He was at Dorsey's house,
where Miner was. He talked with Miner day after day. He helped get
up the bids. He did a great deal of mechanical work. He had the
subcontracts printed. Yet during all that time Dorsey never let fall a
chance expression that gave Boone even the dimmest dawn of a hint that
there was a conspiracy. Nobody told Boone. Moore, his friend, never
spoke of it.

Now, there is one other point with regard to Mr. Moore. Mr. Moore
swears, on page 1371, that Miner offered him a fourth interest in these
routes. That was the conversation in which he said Mr. Miner told him
they were good affidavit men. According to Moore's testimony he then
knew there was a conspiracy, and he understood that he was part and
parcel of it. Let me ask you right here, is it probable that Moore
would have been offered a quarter interest at that time if a conspiracy
existed, and if they had their plans laid to make hundreds of thousands
of dollars, and if the profits had depended upon the affidavits alone?
I ask you, as sensible, reasonable men, if he would have been offered a
quarter interest under those circumstances? Now conies in what I believe
to be the falsehood. Mr. Moore says that the interest was offered to
him by Miner, but Miner said it would have to be ratified by Stephen
W. Dorsey. That is brought in for the purpose of having some evidence
against Dorsey. You must recollect, gentlemen, that this evidence was
all purchased. This evidence was all bargained for in the open shamble.
You must recollect that there are upon the records of this court some
seven or ten indictments against A. E. Boone. You must remember that
Moore was Boone's friend. You must remember that Moore was a part of the
consideration that Boone was giving to the Government for immunity.

Mr. Merrick. Is there any proof of that?

Mr. Ingersoll. I think there is. Mr. Moore swears as to the number of
indictments against Boone. He was his friend. The jury have a right to
infer what motive prompts a witness. Moore wished to swear enough, so
that Mr. Boone would not be troubled. In my judgment, Mr. Boone,
being under indictment, gave evidence in this case in order that
the Government would take its clutch from his throat. He swore under
pressure. That is the system, gentlemen, that is dangerous in any
country. Whenever a Government advertises for witnesses; whenever a
Government says to a guilty man, or to a man who is indicted, "All we
ask of you is to help us convict somebody else;" whenever they advertise
for a villain, they get him. That is the result of what they call the
informer system—an infamous system. A court of justice, where justice
is done between man and man, is the holiest place on earth. The informer
system turns it into a den, into a cavern, into a dungeon, where crawl
the slimy monsters of perjury and treachery. That is the informer
system. It makes a court a den of wild beasts. What else does it do?
Under its brood and hatch come spies; spies to watch witnesses, spies to
watch counsel, spies to follow jurymen, so that a juror cannot leave his
house without the shadow of the spy falling upon his door-step. That is
not the proper attitude of a Government. The business of a Government
is to protect its citizens, not to spread nets. The business of a
Government is to throw its shield of power in front of the rights of
every citizen. I hold in utter, infinite, and absolute contempt any
Government that calls for informers and spies. Every trial should be in
the free air. All the work should be done openly. These sinister motions
in the dark, the crawling of these abnormal and slimy things, I abhor.

Now, to come back to Moore. Upon my word I think he was trying to help
his friend. After Mr. Miner had offered him a quarter interest, then
he came back to Washington. He arrived here, according to his evidence,
about the 11th day of July, I think. He went immediately to see Stephen
W. Dorsey. Recollect that. That was the time Dorsey settled with him
without looking at his books. After he settled with him and gave him
two hundred and fifty dollars he asked him to telegraph to see if the
service had been put on The Dalles and Baker City route. He waited here
until he received an answer, and after that he talked with Dorsey not
only about that matter, but in that conversation Dorsey said, according
to Moore, that it took a good deal of money to keep up their influence
in the department. When I asked him when that conversation was, he
said two or three days after the first conversation. According to the
evidence in this case Stephen W. Dorsey left this city on the 12th of
July. This man Moore arrived on the nth, and he says two or three days
after his arrival Dorsey said it took money to keep up their influence
here. When he swears that Dorsey told him that, Dorsey was in the city
of Oberlin, Ohio. Recollect these things. Whoever tells stories of this
character should have a most excellent memory.

Now, there is another thing. When did Miner get back? He got back by the
24th of July, because on the 24th of July he settled with Moore, and I
believe then Moore went West again. Now, remember there was a contract
made, as Moore swears. He has not got it. Nobody sees it. He says there
was a contract made by which he had a fourth interest in something.
He got back here I believe some time in November, and on the 20th of
November he and Miner settled. I will now look on page 1430 for that
settlement. I want you to see how everything was situated at that time.

I find on page 1430 that Mr. Miner settled for everybody with Mr. A. W.
Moore. Remember the situation. Moore knew there was a conspiracy. All
the service was on. You see, this was November 20, 1880. Vaile was
in. They had a man who was close to Brady. Everything was running in
magnificent style. Mr. Moore understood that there was a conspiracy.
What more did he understand? That he had the claw of his avarice in the
flesh of a United States Senator and in the flesh of a Second Assistant
Postmaster-General. Hundreds of thousands of dollars were to be made.
He came back here and settled up and sold out his interest for how much?
Six hundred and eighty-two dollars. Do you believe that? Credulity would
not believe it. Nobody believes it, that is if the rest of the story is
true. Why did he settle with him for so little? He said Mr. Miner told
him he hadn't a dollar. He did not reply to him, "When this conspiracy
is completed you will have plenty. I can wait." No. Miner said he hadn't
anything and so Moore settled for six hundred and eighty-two dollars.
Then I asked him, "You had a contract with Dorsey, did you?" "Yes;
verbally." "Did you ever say anything to Dorsey about it?" "No." "Did
you ever claim anything from Dorsey?" "No." "Did you ever write to
him?" "No." "Did you ever say anything to anybody that you had any
claim against Dorsey?" "No." You saw Mr. Moore, gentlemen, here upon the
stand. Do you think he is the kind of man who would let such a chance
slip? It is for you to judge. In my judgment that is the eternal end of
Moore's testimony. We can call him buried. We can put the sod over his
grave. We can raise a stone to the memory of A. W. Moore. Let him rest
in peace, or to use the initials only, let him R. I. P. That is the end
of him. If the Government wishes to dig up the corpse hereafter let them
dig.

Mr. Ker. I would like—

Mr. Ingersoll. [Interposing.] I don't want to hear from you.

The Court. You do not know what he is going to say.

Mr. Ingersoll. He may be intending to make a motion that the jury be
instructed to find a verdict of not guilty.

Mr. Ker. As Mr. Merrick will have to answer, he simply wants to know the
page.

Mr. Ingersoll. If Mr. Merrick wants to know the page he shall have the
page, or anybody that wishes to answer. If counsel had simply asked me
for the page, without getting up in such a solemn manner, I would have
told him.

On page 1406, Mr. Moore says that he went to Dorsey and got the money,
and that then Dorsey requested him to telegraph to The Dalles, and that
he did not see Dorsey after he got the answer to his dispatch, I think,
for two or three days. He reached Washington, he says, about the 11th.
On page 1372, he speaks of telegraphing to The Dalles by instructions
from Dorsey.

Now, gentlemen, I am going to call your attention for a little while
to another witness, Mr. Rerdell. And in the commencement, I need not
refresh your minds with regard to the part he has played. I need not, in
the first instance, tell you about his affidavit of June, 1881, nor his
affidavit of July 13, 1882, nor his pencil memorandum, nor his Chico
letter, nor his offer to pack the jury on behalf of the Government, nor
the signals he had agreed upon, nor the reports he made from day to day,
nor the affidavit of September that he made for the Government, nor of
November nor of February. All these things you remember and remember
perfectly. I will speak of them as I reach them, but I want you to keep
in your minds who he is.

I need not call any names. Epithets would glance from his reputation
like bird-shot from the turret of a monitor. The worst thing I can say
about him is to call him Mr. Rerdell. All epithets become meaningless in
comparison. The worst thing I can say after that would have the taint of
flattery in it. You will remember when Enobarbus was speaking to
Agrippa about Caesar, he says, "Would you praise Caesar, say Caesar. Go
no further." And I can say, "If you wish to abuse this witness, say Mr.
Rerdell. Go no further." That is as far as I shall go.

You will remember that Mr. Rerdell was in the employ of Stephen W.
Dorsey, and had been for several years. He does not pretend that he was
ever badly used; he does not say before you that Mr. Dorsey ever did to
him an unkind act, ever said an unkind word. In all the record of the
years that he was with him he finds no page blotted with an unjust
act, not one. He has no complaint to make. Under those circumstances
he voluntarily goes to see a man by the name of Clayton, I think an
ex-Senator from Arkansas, known to him at that time to be an enemy of
Stephen W. Dorsey, an enemy of his employer, an enemy of his friend—his
friend, whose bread this witness had eaten for years, whose roof had
protected him, who had trusted and treated him like a human being. Yet
he goes to this man Clayton, and he says, in substance, "I want to
sell out my friend to the Government." He was not actuated exactly by
patriotism, although he says he was. The promptings of virtue may have
started him, but after he got started he said to himself, "I do not see
that it hurts virtue to be rewarded." So he said, "I want some pay for
this; I want a steamboat route reinstated; I want the Jennings claim
allowed. Of course I am disinterested in what I am doing, but I might
as well have something, if it is going." "What else do you want?" The
disinterested patriot suggested that he would like to have a clerkship
for his father-in-law. "Anything else?" If you will read his letter of
July 5, 1882, which I will read to you before I get through, you will
see that he says, "If I had remained with the Government I have every
reason to believe I would have had a good position by this time." So he
must have demanded a clerkship for himself—good, honest man. At that
time he did not know, but swore it afterwards and swore it here upon the
stand, that Dorsey had never done anything wrong; and yet he was willing
to sell him to the Government, believing that he had never done anything
wrong. So he went and saw the Postmaster-General. The Postmaster-General
did not appear to take any great interest in the matter. He turned him
over to the Attorney-General. He showed the Postmaster-General what he
had, and read him, I believe, or showed him some memoranda. Then he went
and saw the Attorney-General. The Postmaster-General did not seem to
give him encouragement. Then when he went to see MacVeagh he took with
him a letter-book—I do not know but more than one—but we will say a
letter-book. Now, what was in that letter-book? And, gentlemen, the
only way to find whether a man tells the truth is to take all the
circumstances into consideration. What did he want to do? What was his
object? And what were the means at his command? For instance, it is said
that a man left his house with the intention of murdering another, and
that he had on his table a loaded revolver, and also had on his table a
small walking-stick, and he took with him the walking-stick. You would
say he did not intend to commit the murder; that if he had so intended
he would have taken the deadly weapon. In other words, you must believe
that men, acting for the accomplishment of a certain object, use the
natural means within their power.

Now, what did he have in that letter-book? He swears now that in that
letter-book there was a copy of a letter from Stephen W. Dorsey to James
W. Bosler; that the original letter was written by Stephen W. Dorsey.
That press-copy, of course, would show that the original letter was in
the handwriting of S. W. Dorsey. What does he swear was in that letter?
He swears that Dorsey made a proposition to Bosler to go into the
business; told him the profits, and told him that he had to give
thirty-three and one-third per cent, to T. J. B.; that he had already
paid him, I think, twenty thousand dollars, and had more to pay him.
According to the testimony of Mr. Rerdell, that was in the letter-book
that he took to Mr. MacVeagh. Now, recollect that. Why did he not show
it? He had forgotten it. He showed him what he had. Recollect now, that
he had a tabular statement. I think the letter showed so much money to
T. J. B., and the tabular statement thirty-three and one-third per cent,
to T. J. B. He had that tabular statement, and that was in Dorsey's
handwriting. He says he had it. Well, after that, the Attorney-General
must have told him, "That is not enough; I want some more." "Well," he
says, "I can let you have some more." "What more can you let us have?"
Well, then he told him about the red books; I do not know that he said
they were red, but he told him about the books and that those books were
in New York, and he would go over there and get them; that he was
going to steal them; he says he went over to get them, and afterwards
admitted, I believe that lie was stealing them.

Now, we must remember the position Rerdell was in. He had been to
Clayton, to the Postmaster-General in company with Mr. Woodward, and to
the Attorney-General in company with Mr. Woodward, and yet there was
not enough. Well, it was all he had. What more could he do? He suddenly
found himself caught in his own trap. He had furnished enough to trouble
him, but not enough to convict Dorsey, and not enough to be promised
immunity. Now, what had he to do? He did exactly as he did with Mr.
Woodward in September, when he made that affidavit, and when Woodward
said it was not enough; he said, "Very well, I will make another," the
same as he did when he made the affidavit of seventy pages in November
and found it was a little weak. He made another, and he would have made
them right along. He had a factory running night and day. Now, he tells
you that while he was talking with MacVeagh, just towards the last of
the conversation, the idea flashed into his brain that he might save
Dorsey too. Don't you remember that testimony? And as quick as he
thought of that, he agreed to go to New York and steal the books. The
very last thing that MacVeagh said to him, according to MacVeagh's
testimony, and I believe according to his own, was to be sure and get
the books; that they were all important. So he went, as he claims. Now,
did it occur to him that he would save Dorsey in that way? Did he think
of saving Dorsey by going and getting these books? That was the last
thing, and he was going to get the books to be used as evidence against
Dorsey.

In a few days he says he started for New York, and the question arises,
why did Rerdell go to New York at all? Why did he want to see that the
books were in New York? Why did he pretend that he had any more evidence
unless he had it? You see you have got to get at the philosophy of
this man; you have got to find what actuated him; and although in many
respects he is abnormal, unnatural, monstrous, and morally deformed,
still it may be that we can find the philosophy upon which he acted. Why
did he say he was going to New York? Because the Attorney-General
told him—he must have told him—that the evidence he then had was not
sufficient. Rerdell could not break down right there and say, "That is
all I have got." That would give up the fight; that would tell him
that he had endeavored to sell out his friend and nobody would buy the
evidence; that would tell him that he had tried this and had failed;
that he had simply succeeded in showing his own treachery without
involving his friend. He could not stop there. You must recollect the
evidence he had, and the evidence he wanted.

Let us see what he had. Mr. Bliss says, "Why did he say the books were
in New York? Why did he not say they were in Washington?" That would
not have given him time, gentlemen. He would have been told, "Go and get
them." Then he could not have produced them. Consequently he put them in
the possession of somebody else, so that if he failed to get them, then
he could say that the other man destroyed them or had hid them; he could
have said, "I have done my best; they did exist, but they have been
destroyed, or they have been hidden, or they have been put out of the
way." He wanted time, and knowing that no such books existed, he could
not say, "I have them in Washington," because then he could give no
excuse for their non-production. He must state it in such a way that he
could reasonably fail; that is to say, that he could give a reason for
his failure. He could not say, "I have them in my house," because
he would have been told to go and get them. So he put them in the
possession of another man, so that, failing to get them, as fail he
must, he could give a reasonable excuse for the failure.

Why did he go to New York? I will tell you what my philosophy is: He
found that the Government did not wish to purchase the evidence that he
had. He found that, in the judgment of the expert of the Department of
Justice, it was not sufficient. The next thing was to retrace his steps.
He did not want to jump off of one boat into the sea and find no other
boat to rescue him. He said: "I have been too hasty; I will go to New
York." Why? To find out whether Dorsey had heard of this or not. That
is what he went there for. The inferior man always imagines that the
superior knows what he is doing, and knows what he has done. He found
that he was about to fail with the Government, and then the important
question to him was: Has Dorsey found this out? Can I go back to
Dorsey? Or must I go on and be cast away by him and be refused by the
Government?

Now let me call another thing to your minds. I will come to it again,
but it forces itself upon me at this place, and it seems to me it ought
to be absolutely conclusive.

He swears that on the day after he went to MacVeagh with that
letter-book, in looking it over he found the press-copy of the original
letter that Dorsey wrote to Bosler on the 13th of July, 1879. says that
the next day he found that copy in that copy-book. Why did he not steal
the book? Conscientious scruples, gentlemen! You see he was going to New
York to steal another. Why not steal one that he already had possession
of? And how much better that book would have been than the other that he
was going to get. This was a copy of a letter in Dorsey's handwriting,
in which he admitted that he had paid twenty thousand dollars to T. J.
B., and was going to pay him some more, while that book in New York was
not in Dorsey's handwriting—admitting, for the sake of the argument,
that there was a book—but was in the handwriting of Donnelly
or Rerdell. See? And right there he had the evidence, absolutely
conclusive, in the handwriting of S. W. Dorsey himself, and he did not
even keep it, he did not even steal it, but he gave it back and went
to New York to steal a book that Dorsey did not write. He threw away
primary evidence to get secondary evidence. He threw away that which
would have convicted Dorsey beyond a doubt, which would have made him
a welcome recruit to the Government. He threw that away and went to New
York to get another, a line of which Dorsey never wrote; and then he
would have to establish, after he got that book, that "William Smith"
stood for Thomas J. Brady; he would have to prove after they got
that book that "John Smith" or "Samuel Jones" stood for Turner. Now,
gentlemen, do you believe that that man, with his ideas of honor, with
the kind of a conscience he has in his bosom, with the copy of a letter
in Dorsey's handwriting in his possession admitting that Dorsey gave
twenty thousand dollars to T. J. B., would give that up and then go to
the city of New York to steal a book not in Dorsey's handwriting, and
that did not prove that Dorsey had ever paid a cent to Thomas J. Brady,
in which there was one charge to "William Smith," and that would have to
be eked out by the testimony of Rerdell himself, when he had right
there in his own grasp and clutch the press-copy of the original letter
written by Dorsey himself? Do you believe it? There is not a man on
that jury believes it; there is not a lawyer prosecuting this case who
believes it.

What else did he have? He had a letter that he himself, as he claims,
wrote to Bosler on the 22d of May, 1880, after he, Rerdell, had been
summoned to appear before a committee of Congress. He had, he says,
those three sheets.

What else did he have the morning after he was talking with MacVeagh? He
had the tabular statement in the handwriting of Stephen W. Dorsey, and
over the Brady column, "T. J. B., thirty-three and one-third per cent."

What more did that man have? He had the balance-sheets made out, as he
swears, by Donnelly, of those books. Were the balance-sheets just as
good as the books?

Now, just think what he had, according to his own testimony: A copy of
the original letter, written by Dorsey to Bosler, in which he admitted
his guilt; a copy of the tabular statement, written by Dorsey, in which
he put down thirty-three and one-third per cent, to T. J. B. What more?
Copy of the letter that he had written to Bosler on the 22d of May,
1880. He had all that, and he must have had this memorandum, though I
will show you that he had not, and I think I will show you when he made
it. And yet he was going to New York to get some more evidence. He
was going to steal another book in New York that would simply create a
suspicion, while he gave up a book that was absolute certainty. That is
the theory. But they say, "Oh, he did not do that quite." What did
he do? He went and had that copied. He swears that he had copied
that letter of May 13, 1879, that Dorsey wrote to Bosler, in which he
admitted that he gave twenty thousand dollars to Brady. Now, a copy
would not show in whose handwriting the press-copy was, would it? That
is a very important point. Who copied it? I think he said Miss Nettie
L. White copied it. We never hear of Miss Nettie L. White again, though.
These gentlemen admit that you are not to believe Mr. Rerdell on any
point that is not corroborated, and when he swears that Miss Nettie L.
White copied the letter you are not bound to believe there was such a
letter unless they bring Miss White or account for her absence. They
did not bring her. That is an extremely important point in their case,
infinitely more important than whether the red books ever existed. Did
Dorsey write a letter to Bosler in which he admitted his guilt? This man
says that he had complete and perfect evidence of it in his own hand;
that he gave that up; that he had that copied by Miss White. And they
did not bring Miss White. Certainly he had no scruples about tearing it
out. He says he tore out his letter to Bosler of the 22d of May, 1880.
He had no scruples about that. He did not refuse to keep the book
because it touched his honor, because in a day or two he was going to
steal another not half as good as that one, not one-tenth part as good.
Just think. He gave up evidence that was absolute and complete, and went
to steal evidence that was secondary and of the poorest character. You
do not believe it. He would have kept that book if he had kept any. If
he was going to steal any evidence, and had the best, he would have kept
it. The trouble was that there was no such letter in that book. There
was his letter of May 22, 1880; no doubt about that; and that man tore
it out, and then he made up one in his own mind, and had it of that
date; that is all.

So he went to New York, and he swears that he went right up to the
Albemarle Hotel; that it was early in the morning; that Dorsey was not
then up; and that he had a conversation with Dorsey, in which Dorsey
charged him with having had something to do with the Government, with
having gone over to the Government. Dorsey had heard that there was
something going on about that time, and I suppose he asked Mr. Rerdell
about it. Rerdell denied it; said there was no truth in it; that nothing
of the kind, character, or sort had ever happened.

Now let us just see whether I can demonstrate to you that Rerdell, in
the conversation he had with Dorsey at the Albemarle Hotel, denied that
he had gone over to the Government, or that he had done anything that
was not perfectly honest, straightforward, and upright. I refer to it
now, although I may come to it again.

And, gentlemen, I am sorry for you; I pity every one of you, that you
have to hear all that has to be said in this case. But you must put
yourselves, for the moment, in our places. You must remember that these
defendants have borne this agony, have been roofed and surrounded
with disorder for two years. You must remember that the agents of the
Government have pursued them, they have watched over them and spied them
night and day. You must remember that they have been slandered for
years in the public press, although the tone of the public press is now
changing, and changing in such a marked degree that one of the
attorneys here for the prosecution claimed that we had bought up the
correspondents. When you take into consideration what my clients have
suffered, the position they are now in, fighting this great and powerful
Government, I know you will excuse us for inflicting upon you every
thought and every argument that we think may be for our defence.

I am doing for my clients what I would do for you, or any of you, if you
were defendants, and I am doing for them what I would want them to do
for me were I a defendant and they my counsel.

Now I am going to demonstrate this. When Mr. Rerdell got to Jersey City
he telegraphed back, according to the evidence of Mr. Dorsey:

Up to this moment I have been faithful to every trust.

I believe Rerdell swears that he did not send that. He had a
memorandum-book which he took out of his pocket. I think a leaf was torn
from it, and he ran his pencil through this line on the page on which
he had taken a copy of this dispatch, "Up to this moment I have been
faithful to every trust," and says he did not send it. Why did he put
his pencil through that? Because that line would not agree with the
testimony he had given upon the stand. "Up to this moment I have been
faithful to every trust" was in that dispatch. I want to ask you if you
believe that Rerdell could have sent that dispatch to a man to whom he
had admitted that very morning that he had gone over to the Government?
Do you believe it? How perfectly natural it would have been for him to
send a dispatch from Jersey City that harmonized and accorded with his
denial of that morning.

Just look at that [handing the paper to the foreman of the jury.]
Just read it. I want the jury to look at it. He rubbed it out of his
memorandum-book. When? At the time? No, sir; when he found that he
wanted something to harmonize with his evidence here. Even he had not
the brazen effrontery to swear that he had told Dorsey that very morning
that he (Rerdell) had gone over to the Government, and then that very
afternoon to telegraph him—Up to this moment I have been faithful to
every trust.

Why, in comparison with that cheek brass is a liquid. What is the next
sentence?

The affidavit story is a lie.

Why did he leave that in? Because technically that was true. He had not
then made an affidavit, and there is nothing so pleases a man who has
made up his mind to tell a lie as to have mixed with the mortar of that
lie one hair of truth. It is delightful to smell the perfume of a fact
in the hell-broth of his perjury. Just look at that. These two things
show that he had not admitted to Dorsey that he had told the Government
anything against Dorsey. He wanted Dorsey to understand that he,
Rerdell, had not communicated with the Government. Now, if you admit his
evidence to be true, at the time he sent that dispatch he had the stolen
book under his arm, and you, gentlemen of the jury, are asked to believe
a man who would do that thing. I would not. I would not convict the
meanest, lowest wretch that ever crawled between heaven and earth upon
such testimony. Never. Neither can you do it. A verdict must rest upon
a fact. The fact must rest upon the testimony of a witness. That witness
must be, or seem to be, an honest man. And unless a verdict is based
upon the bed-rock of honesty, it is infinitely rotten, and the jury that
will give a verdict not based upon honesty is corrupt.

Mr Crane (foreman of the jury.) I notice that this dispatch seems to
have been written with different pencils at different times.

Mr Ingersoll—Up to this moment I have been faithful to every trust—Is
written very dimly.

The affidavit story is a lie, but confidence between us is gone—Is in
still a different hand.

I resign my position and will turn everything over to any one you
designate—Is still another hand. Three hands, three pencils, in the one
memorandum. These papers have been manufactured, and when the Government
said, "This is not enough," another paragraph has been added.

How hard it is to perpetrate a piece of rascality and do it well. There
are an infinite number of things in this universe, and everything that
is in it is related to everything else; and when you get a falsehood in
it that does not belong to the family, it has not the family likeness;
and when anybody sees it who is acquainted with the family, he says,
"That is an adopted young one."

Mr. Rerdell now says, I believe, that he did not send that line, "Up to
this moment," &c. Dorsey swears that he did. Rerdell then produces this
book and this paper which I have shown to you.

Now, let us follow Mr. Rerdell from the Albemarle Hotel.

I will show that he crosses himself on almost every fact that he
endeavors to swear to. He swears that he went to Dorsey's; that from
Dorsey's he went immediately to Tor-rey's office; that he then went and
got lunch and then went to Jersey City. He also swears that he got his
breakfast before he went to Dorsey's. In the next examination he swears
that he got his breakfast after he went to Dorsey's, and after he got
the book he went to Jersey City, first walking up and down Broadway for
about an hour. He had forgotten about the lunch. There is nothing in
it but a mass of contradiction. He swears that he went down to Torrey's
office. Why did he not make it earlier, as soon as he got off the boat?
Because he did not have any key to the office. It would not do to swear
that he broke into the office and that nobody ever heard of it, and so
he had to put the time after the office would naturally be open. Well,
now we have got him as far as the office. He swears that he went in
there and saw Mr. Torrey. After chatting a little with Torrey, and
telling him the object of his visit, Torrey took him into the next room
and took these books from a shelf or desk, or something of that kind,
and handed them both to him, and he looked them over at his leisure,
while Mr. Torrey went back to his business. He finally took the journal
and left the ledger. Why did he leave the ledger? I will tell you after
a while. Every lie, as well as every truth, has its philosophy. He took
the journal and came along out with it under his arm, not wrapped up,
not concealed. Then he had another chat with Torrey about the weather
or something, and then he went on. Why did he swear that he had a
conversation with Torrey in that office? I will tell you. When he was
giving that testimony, Torrey was in mid-ocean, between New York and
Liverpool. I guess Mr. Rerdell had heard that the man was away. He
thought he would be absolutely and perfectly safe, and so he said he
had a conversation with Torrey. The moment he repeated that conversation
with Torrey, I said, "Where is Torrey?" We telegraphed to New York and
we found that Torrey had left for the old country. We sent a cablegram
to Queenstown and we intercepted him. I think he staid a day in the old
country, and took the next ship and came back, arriving here in time
to swear that Rerdell never visited that office, that he never had that
conversation with him, and that he never got that book from that office;
more than that, that that book never was in that office. Who are you
going to believe, Torrey or Rerdell?

Another man was there on that very day, Mr. Mullins. He never had any
recollection of seeing Rerdell until he saw him here. All the books were
kept in the safe except the books that Torrey had in his desk. No
such books were in the safe and no such books were in Torrey's desk.
Gentlemen, no such books existed, and I will demonstrate it to you
before I get through. No doubt the man had some little expense-books of
his own. He has widened them, he has lengthened them, he has thickened
them, he has colored them. He has refreshed other people. When the
Government tells a man, "You have got an office, haven't you?" "Yes."
"Well, we want you to remember this." Then he is refreshed on the
subject. The words the Government speaks are rain and dew and sunlight
upon the dry grass of his memory and it springs up green. He says he has
been refreshed. Before I get through I will show you that these things
were proved only by gentlemen who had been refreshed.

Now, why did Rerdell say he took the journal and left the ledger? I will
tell you. There is more in the shirt theory than you would think. He had
a shirt in a paper, folded up just once over the bosom. Unexpectedly
lie met Mr. James on the train. He was very much surprised to meet him,
because James swears he was very much surprised to meet Rerdell. James
knew that he had gone over to New York to get those books, and he asked
him, "Did you get the books?" Rerdell had that beggarly little package.
He could not call that "books," because it was not large enough, and so
he had to say he had a book. That was the reason he said journal and not
ledger. He had too small a package for "books," and consequently he
told James he had the "book," and he is sticking to it; only one book.
Another reason: He said to James, and it was very smart of him, "I don't
want to show you what I have got in this package, because there is a
fellow looking," and so the shirt, in unconscious innocence, reposed
unseen. Who was the fellow who was looking? Chase Andrews. You recollect
him. He came into the depot at Jersey City at the time Rerdell was
writing this virtuous dispatch, this certificate of his honor and of
his faithfulness. He shook hands with Rerdell. Rerdell said he had a
carpet-sack, but it was not big enough to get one of these books in. He
wanted the jury to think it was a pretty big book. He hated to lose a
chance of adding to the size of the book, and so he swore that it was
too big to put in the carpet-sack. If he had only had sense enough to
put it in the carpet-sack, and let it alone, we never could have proven
anything about it by Chase Andrews. Andrews would not have sworn that he
looked through the carpet-sack. But Rerdell in his anxiety to have
that book a big book said he could not get it into the carpet-sack, and
consequently must have held it in his hand. Chase Andrews saw him in the
depot at Jersey City, and rode in the next seat in the Pullman car
from Jersey City to Washington, and Rerdell had no book. Who will you
believe, Chase Andrews or Mr. Rerdell?

Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of the
jury.

It is also claimed by the prosecution that on the evening of the day on
which Rerdell was in New York and sent the telegram from Jersey City.
Dorsey wrote a letter to Rerdell in which he begged him for the sake
of his family, for the sake of his children, and everything to go no
further. I believe it is claimed that after Mr. Rerdell got back here
to Washington he showed that letter to his brother. It struck me as
extremely wonderful that he did not show his brother the book; that was
such an important thing, it being the thing that he went after, being
something that was to decide his fate with the Government. There was
nothing about that. Let me say right here: Suppose his story is true
that he told Dorsey that he had been to the Government. Would Dorsey
write to that man a letter begging him for God's sake not to go further?
Would he not rather have sent some man to see him? He knew at that time
that he was utterly dishonest, having received that very afternoon,
according to Rerdell's testimony, a telegram from Rerdell, in which
Rerdell admitted that he had told a falsehood. Would he then have put
himself upon paper? Would he have put himself in the power of that same
man? I ask you, because you know there is about as much human nature in
one person as in another, on the average, and the only way you can
tell what another man will do is by thinking "What would I do under the
circumstances?"

I am going to demonstrate to you now with just one point that there were
no such books. When Rerdell came to make the affidavit of June 20, 1881,
Dorsey knew that Rerdell had talked with MacVeagh, James, and Clayton.
He also knew that Rerdell, according to his statement, had promised to
go to New York and get the red book. Rerdell swears in the affidavit of
June, 1881, that he promised MacVeagh to go to New York and get those
books. Dorsey knew at that time whether such books existed or not. If he
knew they did exist then he knew that Rerdell went after them. Why did
not Dorsey ask Rerdell at the time he made that affidavit, "Did you
get a book in New York?" Admitting, for the sake of the argument, that
Rerdell's story is true that the books were there and that Dorsey knew
it, would not Dorsey have asked him, when he was making the affidavit of
June 20, 1881, "Did you get a book in New York? What did you do with it,
if you did?" Rerdell swears that Dorsey did not mention that subject;
that it was not talked of between them. Why? Because both knew that no
such books existed. That is the reason he did not ask him if he got it.
He knew that he did not get it. Why? Because the book was not there to
be obtained. Can you explain that on any other hypothesis? Dorsey knew
at this time, according to the testimony of Rerdell, that Rerdell
was dishonest; knew that Rerdell had tried to sell him out to the
Government; knew that Rerdell had promised MacVeagh he would go to New
York and get those books; knew that Rerdell had been to New York; knew
that Rerdell had gotten back, and yet did not ask him, "Did you get a
book?" Would he not naturally have said, "I want that book that you got
in New York. I want it now." It also appears in evidence that on the
very day that Rerdell was in New York and says he was in Torrey's
office, Torrey in the afternoon went to the Albemarle Hotel to do some
writing for Mr. Dorsey. Is it conceivable that Torrey would not in that
conversation have told Dorsey, "Your clerk, Rerdell, came to the office
to-day and I gave him the mail book or one of those books"? Not a word.
That affidavit was made in June, 1881, and was the affidavit in which
Rerdell disclosed what he had done with the Government, and that he
had agreed to get that very book, and yet Dorsey did not take interest
enough in the matter to ask him if he got a book.

Mr. Merrick. Is there any evidence of the conversation between Torrey
and Dorsey?

Mr. Ingersoll. No. The evidence is that Torrey went there that evening.
You claim that that was the topic of conversation, and that Dorsey sent
dispatches to Rerdell that night and wrote a letter to Rerdell. So, I
say, under the circumstances, and with the excitement then prevailing,
it is inconceivable that Torrey should not have said, "Your man Rerdell
has been at my office to-day, and got one of the books."

I say it is inconceivable that he did not tell him, and therefore Dorsey
must have known it had it been a fact, and had it been a fact when
Rerdell made the affidavit of 1881, Dorsey would have said, "I want that
book. I want the book you stole from my office." He did not even mention
it. It was not the subject of conversation. Yet, in that same affidavit,
he said that he agreed to go and get it, and in that same affidavit he
said that no such book ever existed. He swore to that affidavit from
friendship. You see, gentlemen, about how much friendship that man is
capable of. He swore for friendship that no such book existed; he now
swears that it did. What is that for? You want to consider these things.
Nobody asked about that book. The matter drifted along. The summer wore
away. Autumn touched the woods with gold. Nobody ever mentioned the
book. Winter came. That book was in a little carpet-sack hanging in a
woodshed. A magnificent place to secrete property. The snows descended;
the winds howled around that woodshed. The carpet-sack hung there with
the book in it. Nobody touched it. I think the next year, may be that
summer, he wrote or telegraphed to Mrs. Cushman to get the book. It
suddenly occurred to him that a woodshed was not a safe place for it.
She got a book. She looked into it enough to find out it was about the
mail business. She put it away; finally that book was brought from its
hiding-place on the 13th of July, 1882, when Rerdell says he handed it
over to Dorsey, and there is not one syllable of evidence going to show
that it was ever spoken of from the time he visited New York until he
brought it to Dorsey, as he claimed, at Willard's Hotel. What made him
give it to him? Dorsey was mad. Dorsey threatened that he would have
Rerdell arrested for perjury, because Rerdell had sworn that he, Dorsey,
was innocent. That is enough to excite the wrath of an ordinary man.
Dorsey was then on trial. The first trial was then going on. We were
right in the midst of it. The year before that Rerdell had solemnly
taken his oath that Dorsey was an innocent man, and here Dorsey was in a
court insisting that he was innocent. Yet he threatened to have Rerdell
then and there punished for perjury because he had sworn that he was
innocent. That frightened Rerdell. I think it was calculated to frighten
any man.

Why did Dorsey allow Rerdell to keep that book? There is only one
possible explanation: The book never existed. That is all. Torrey would
have told about it if it had been taken from his office, because I
believe the evidence shows that that affidavit was shortly afterwards
published. Nobody seemed to have taken any interest in that book. All
interest faded away. Now, Mr. Rerdell made that affidavit on the 20th
of June, 1881. I believe, on page 2468, Rerdell swears that when he
made the affidavit of June 20, 1881, he had the copies of the original
journal and ledger at Dorsey's office. Afterwards he swears he had not.
He swears that he then gave them to Dorsey. Afterwards he says they were
sent to New York the year before. I will come to that after awhile. Now,
let us see what the position of affairs was on June 20, 1881. At this
time Rerdell had furnished the Government all the information he had,
except the book. Then they had said to him substantially, "The evidence
is insufficient. We want more." Rerdell agreed to furnish them the
books, and went to New York to get the books.

Now, he had Dorsey absolutely in his power, according to his account.
What did he do? He had, according to his testimony, the copy of the
letter Dorsey had written to Bosler on the 13th of May, 1879, the copy
having been made by Miss Nettie L. White. He had the tabular statement
in Dorsey's own handwriting, showing thirty-three and one-third per
cent, to T. J. B. He had the letter that he himself wrote to Bosler on
the 22d of May, 1880. He had the red book. According to his statement,
on that day he had Dorsey in his power. All he had to do was to take the
next step and secure absolute safety for himself and crush his employer.
What did he do? He then said, "I went to the Government and played the
detective." He retreated. He voluntarily put himself in a position a
thousand times as perilous as he had been in before. He put himself in a
place where he had to swear that what he told the Government was a lie,
and that he was simply endeavoring to find out the Government's case and
was acting as a detective. You must recollect that Rerdell is a man
who does nothing for money. He will make an affidavit for unadulterated
friendship. He will make it also from fright. He will make it also, he
says, in the interest of truth. At that time he made an affidavit, as he
says, for friendship, and it is for the jury to determine how much a man
like Rerdell—because you know what he is just as well as I do—would
do for friendship. You have seen him here day after day. You saw him
sitting right at the door when Mr. Ker and Mr. Bliss were demonstrating
to you that he was a guilty wretch, and you saw his face beaming with
pleasure. He was absolutely delighted. Yet when Mr. Wilson stood here
and endeavored to show that the man was not as bad as he said he was,
endeavored to show that his plea of guilty was absolutely false, he
slunk away, covered with the shame of innocence. He did not want to hear
that. He wanted it understood that he was guilty, and that it was the
proudest moment of his life. Now, it is for you to determine how much
such a man would do for friendship. It is for you to determine how you
can take advantage of his finer nature. He had Dorsey in his power,
according to his story, but instead of carrying out his original
design he turned against the Government. Why did he do that? Because of
patriotism? No. Why? He did it for his own benefit, gentlemen. He never
acted from any other motive. Why did he not stay with the Government?
Because they would not give him his price for his evidence. Why would
they not give him his price for his evidence? Because his evidence was
not worth it. If he had had the copy of the letter from Dorsey to Bosler
they would have given him his price. They would have followed him
all over the United States to have given him his price. There was the
absolute evidence against Dorsey. There was the evidence against the man
whom Mr. MacVeagh wished to drag down. Why did they not buy it? Because
the man did not have it. Why did he desert the Government? Because the
Government would not give him his price. Again I ask why would not the
Government give him his price? Because he had not the goods; he had not
the evidence. Then what did he do? He sneaked back and asked protection
of the man he had endeavored to betray. That is what he did. He again
asked Dorsey to stand by him. Dorsey did not need this man. This man
needed him, and he instantly deserted the Government and went back to
Dorsey. For the sake of saving Dorsey? No. For the purpose of saving
himself.

He had not the evidence. Yet, according to this testimony of his, he did
what I told you. What else did he have? He had the route-book. What was
the route-book, gentlemen? From the evidence it appears that this man
kept a route-book, and that in it he had the name of each route, the
number of the route, where it started from, and where it went to,
the name of the contractor, the amount per year, the name of the
subcontractor, the amount per year, and then a column showing whether
it had been increased, and, if so, how much, and whether it had been
expedited, and, if so, how much. He had that book. He says he was
subpoenaed to appear before the Congressional committee. What book would
that committee want? They would want the book that showed the original
contracts, the subcontracts, the description of the routes, how much the
Government paid to the contractor, and how much the contractor paid to
the subcontractor. That was the book they wanted, and that was the book
to hide if any hiding was to be done. That was the book to have copied.
That was the book in which figures should have been changed, if in any.
And yet he never said one word about that route-book. He had it in his
possession. Why should he not expect the committee of Congress to call
for that book? He did not tell you. He did not have that book copied,
and yet that was the book that had in it every particle of information
that the Congressional committee wanted. Not a word on that subject.

It appears, too, in the evidence, that Mr. Rerdell had in his possession
certain notes that passed between him and Mr. Steele about the red
books. Why were not those notes produced in evidence? Mr. Steele
was here on the subpoena of the Government. Why were not those notes
produced in evidence? Not a word about that. Is it possible that those
notes were about the route-book? Why were they not produced? Rerdell
went before that Congressional committee. He did not take any
route-book. What did he take? He said that he had these books made up to
take. Did they contain the accounts of the subcontractors? No. Donnelly
swears there were not more than twelve accounts in the book. What was
the use of taking that book, or those books, before the committee?
Another thing: He says that he went immediately and got those books
copied. Would he try to palm off the copies as originals? Would not the
committee ask him the very first thing, "In whose handwriting are these
books?" He could not say, "They are in mine," because then he would be
caught. He would have to say, "They are in Mr. Donnelly's handwriting."
The next question would be, "Where is Mr. Donnelly?" And the answer
would be, "Here in town." The committee would send for him and would
ask, "Mr. Donnelly, did you write in those books?" "Yes." "Did you make
the entries at the time they purport to have been made?" "No, sir; I
copied them from another set of books that Mr. Rerdell gave to me."
He would either say that or swear to a lie. Then they would say, "Mr.
Rerdell, we want the original books," and then he would be caught. You
cannot imagine a more shallow device. More than that, the books would
not have any information that the committee wanted, nothing about these
contracts, and nothing about the amount paid the subcontractors. If the
committee wanted anything they wanted to show that the Government
was paying a large price and the contractors were paying to the
subcontractors a small price. Rerdell says that when he was subpoenaed
to bring his books he never thought of the route-book. He thought of
the red books, and yet the route-book was the only book that had any
information that the committee wanted. How was he to palm that off? Is
it possible to think of a reason having in it less probability, less
weight, less human nature than the reason he gives for having those
books copied? There is another question. If Rerdell expected to palm
off the copies as the originals, why did he keep the originals? For
instance. I have a book here that I don't want Congress to see, and so I
have it copied.

I am going to swear that that copy is the original; otherwise the device
is good for nothing. Why keep the original and run the perpetual danger
of discovery? Why not burn the original? Why keep the evidence of my own
guilt, liable to be found at any moment by accident, by a servant, by
a stranger? That is not human nature, gentlemen. Then there is another
question: If he were going to have a book copied and then swear that the
copy was the original, he would have copied it himself. If a man intends
to swear to a lie the first thing he does is not to take somebody into
the secret. Why should he have put himself in the power of Donnelly? He
was the man to be the witness before the committee, and if his device
worked he intended to swear before the committee that the copies were
the originals; and yet, by going to Donnelly to have the work done, he
manufactured a witness that would always stand ready to prove that he,
Rerdell, had sworn to a falsehood. What men work in that way? When a man
makes up his mind to swear to a lie does he take pains to go to one of
his neighbors and say, "I am going to swear to a lie to-morrow and I
want to give you the evidence of it. I am going to swear that a copy
is an original. I want you to make the copy so that I can swear to it."
Would not the neighbor then say, "I will be a witness against you in
that case. You had better copy it yourself." Just see what he did. He
took pains to have a witness so that if he swore falsely he could be
contradicted and convicted. Why did he not copy the books himself? After
he got the originals copied why did he not burn up the originals so that
nobody could ever find them in his possession?

Let us take another step. Finally, he got before the committee. When he
got before the committee what did he swear? He swore that he kept some
expense-books showing how he stood with the contractors. I think that
was the truth. I think that is what he did keep. He did not tell the
committee about the route-book. Not a word. That was the only book that
he concealed in his testimony. He said he kept some expense-books and
those were all that he kept. He did not tell about the route-book. That
is the only book that he failed to mention. Consequently, it seems to
me, that was the only book he did not want to show. Why? Because he
thought at that time they were going to make a great outcry about
what was paid to the subcontractor and to the contractor and he had no
advices from anybody, except from whom? Except from Mr. Bosler. What did
Bosler tell him? Bosler told him, "I see no reason why you should not
exhibit your books and papers." Now, according to Rerdell's testimony,
on the 13th of May the year before, Dorsey had written a letter to
Bosler informing him that he had given twenty thousand dollars to T. J.
B. Bosler knew, if the testimony of Rerdell is true, that that letter
had been written, and Bosler had that information. He knew if the letter
had been copied, too, because every letter that one receives gives
evidence whether it has been copied or not. And yet, knowing of that
letter, he wrote to Rerdell or telegraphed him that he saw no reason
why he should not show all his books and papers. Nobody believes that.
Nobody ever will believe it! The earth may revolve in its orbit for
millions of years, and generations may come and go, countless as the
leaves of all the forests, and there never will be found a man of
average intelligence to believe that story. Just think of it. Bosler,
according to the testimony of Rerdell, had gone into partnership with
Dorsey knowing there was a conspiracy, knowing Dorsey was paying
to Brady thirty-three and one-third per cent, of the profits, and
thereupon the clerk who attended to the business writes or telegraphs to
him, and says he has been subpoenaed to appear before the Congressional
committee with the books and papers, and Mr. Bosler knowing of
the existence of the conspiracy, and knowing that Brady is getting
thirty-three and one-third per cent, writes or telegraphs back that he
sees no reason why all the books and papers should not be presented to
the committee. Gentlemen, that is impossible; it never happened and it
never will.

Ah, but they say these books did exist. Why? Because Mr. Donnelly copied
them. Let us see whether he did or not. There is nothing like examining
these questions. Mr. Rerdell says that in his interview with Brady,
Brady suggested to him that he had better have them copied. This, I
believe, was on the 21st of May, 1880. Now he swears that in accordance
with that view or suggestion that he received from Brady he had the
books copied by Donnelly. When did he have it done? He had it done after
the 21st day of May, 1880. On page 2638 Donnelly swears that he copied
these books in the latter part of April or the forepart of May. On page
2636, where he was asked if he had anything to do with copying a book of
accounts for Rerdell, he says that he had; and on being asked what kind
of books they were, says they were a small set of books. Donnelly swears
that they related to the mail business, and seemed to be the books of
a firm. At that time nobody was interested in the matter except S. W.
Dorsey. How did they appear to be the books of a firm? Donnelly swears,
on page 2640, "there were not more than a dozen accounts in the book."
Let us see if these were the mail books. He says there was an account
against S. W. Dorsey; that is one. An account against John W. Dorsey;
that is two. Against Donnelly himself; that is three. M. C. Rerdell;
that is four. Interest account; five. A mail account; six. An expense
account; seven. A profit and loss account, eight; and an account with
William Smith, nine. That is all he gives. But he says they were not
to exceed a dozen. On page 2644 Gibbs says there was an account against
Colonel Steele and Mrs. Steele. I take it they would be in one account.
That makes ten. Then there was an account against Jennings, making
eleven; and an account against Perkins, making twelve. Let us see if we
can go a little further. Mr. Rerdell swears to a cash account; that is
thirteen. Also an account against J. H. Mitchell; that is fourteen; and
one against Belford, making fifteen. You can deduct your Jones and your
Smith and have one more account in the book then than Donnelly swears
was in it. He swears they were not to exceed a dozen. That was the book
with all this mail business. We will follow it up a little. Rerdell says
he opened the books according to the memorandum, and swears consequently
that there was a cash account and an account with J. H. Mitchell. J. B.
Belford, I believe, he afterwards mentioned. Now, according to Gibb's
testimony there was an account with Perkins. Understand I say that the
only book he had, if he had any, was a private book in which he kept
his own expense accounts and his own matters, and it was not a book with
which Stephen W. Dorsey had any connection. I say that the William
Smith and Samuel Jones account he has added for the purpose of having
something to sell to the Government. That is my claim. I say they were
his private books. There was an account with Perkins. You have heard all
the testimony, gentlemen. You know all the contracts in this case. You
know all the subcontracts. There is not a single solitary account in
this book with any subcontractor mentioned in any of these subcontracts
except Perkins and possibly Jennings. Who was Perkins? Perkins was a
subcontractor on the route from Rawlins to White River. That is the
route that Rerdell had an interest in himself.

Rerdell made the subcontract with Perkins himself, and consequently he
had an account with Perkins in his own private book, and had not any
account with the rest of the subcontractors. We also find, according to
Gibbs, that there was an account against Jennings. Who was Jennings?

That brings us to the Jennings's claim. That is the claim that he told
Mr. Woodward about, when he wanted to sell out in the first place, and
that is the claim that he told Mac-Veagh and the Postmaster-General
about. Strangely enough and wonderfully enough we find that claim in
this very book. That shows whether this was a private book or whether it
was a book kept for the accounts of Dorsey.

Now, by looking at the Post-Office reports I find that nine hundred and
ninety-four dollars was paid to Rerdell for Jennings on the 14th day of
April, 1880, and the question I ask is did he keep two sets of books
at that time? He produced in court a book of his own, kept at that
time with the Jennings account in it. The book that was copied had the
Perkins account, and why? Because it was a special account in which
Rerdell was interested. They have failed to prove that there was in
that other book any account in which Dorsey was necessarily interested,
except the account kept with Rerdell showing Rerdell's transactions with
Dorsey.

We now come to the testimony of Mr. Gibbs. Mr. Gibbs says his wife
copied a journal between Christmas, 1879, and the 1st of March, 1880.
Rerdell says that she copied the journal and ledger both. The witness,
Gibbs, gives the color of the book. He says it was not red; it was
either brown or black. Mr. Gibbs remembers nothing about the Smith
account, whether it was large or whether it was small. He finally swears
that he does not really recollect anything about it, except that Rerdell
brought the book there and said he wanted to get a copy made to send
to Dorsey in New York, and that he returned the book and the copy to
Rerdell. He swears that he remembers as names in this book Smith, Jones,
and S. W. Dorsey, and M. C. Rerdell. Those were all he could think of.
He does not remember the name of John H. Mitchell. On page 2646, he says
he believes that Rerdell came to him and asked him during the trial
if he recollected the name of William Smith, and he swears that when
Rerdell asked him if he recollected the name of William Smith, he
distinctly told him that he did not. Then he asked him if he recollected
the name of Jones, and he swears that he told Rerdell when he asked him
that question that he did not. I read from page 2646:

I tried not to remember anything of this.

How can a man try not to remember? What mental muscle is it that he
contracts when he tries not to remember? That is a metaphysical question
that interested me greatly when the man was testifying, for he said he
tried not to remember. Why did he try not to remember?

I didn't want to be called into court if I could possibly help it, and
for quite a long time did not mention the fact that I knew anything
of the books. But when I was called into court, I thought of all the
circumstances connected with the time that I copied the books; and a
few days ago, or a week or so ago, in going home one night, and thinking
this thing over in my mind, and thinking of everything I could think of,
my mind reverted to a conversation I had had at the time, laughing and
looking over the books.

It was not only one book, then.

And I wrote a great many letters, and read a great many names—They must
have been in the letter-books—and was laughing about the peculiarity of
the names, and even made the remark, "There is even Smith and Jones in
it."

What a wonderful circumstance! In copying the books and making an index
of the three letter-books he found Smith and Jones. The difficulty would
have been not to find Smith or Jones.

That is the evidence of that man. When Rerdell first went to him, he
told Rerdell distinctly, "I remember no name of Smith; I remember no
name of Jones." And then he waited until Rerdell went on the stand and
swore that he copied those books, and that the names of Smith and Jones
were in them, and then his memory was refreshed, and he came here and
swore that the names of Smith and Jones were there. All of a sudden it
came to him, like a flash, and he subsequently had the conversation with
his wife. Gentlemen, you may believe it; I do not; not a word of it.
He is mistaken. He has mistaken imagination for memory; he has mistaken
what Mr. Rerdell told him now for something he thinks happened long ago.
He took the letter-books, too. May be there is where he found some of
his strange names.

Rerdell says, in swearing to the letter which he says was written by
Dorsey to Bosler on the 13th of May, 1879, that he (S. W. Dorsey) took
that book, all his own books that were not used for the mail business,
and boxed them up. When? In 1879. Mr. Kellogg swears that after they
were boxed up they were sent to New York. When? In 1879. And yet Rerdell
swears that between Christmas and New Year's, 1879, those books were at
the house of Mr. Gibbs to be indexed. It will not do. And Rerdell swears
that he had the letter-book containing the letter of May 13, here in
1881, when he went to MacVeagh, and yet, according to his own testimony,
that book was sent to New York in 1879. And he swears that the three
letter-books—and I will call your attention to them after a while—that
he had here, commenced on the 15th of May, and ended, I think, in April
or May, 1882. He swears that the letter written by Dorsey to Bosler
was written on the 13th of May, 1879, and then he swears that the first
letter in the three letter-books was dated the 15th of May, two days
afterward. So he had not the book here. I knew he did not have it,
because if he had had such a book with such a letter, he never would
have gone to New York to steal a book; he would have stolen that one.

Torrey took charge of the books January 27, 1880, and he kept them until
the 1st of May, 1880, in the Boreel Building, and then at that time
moved to 145 Broadway, and kept them there until the last of April,
1882.

Now, gentlemen, I will come to those red books again in a moment. Here
is a little piece of evidence about the books. You know it was the
hardest thing in the world to find out how many books this man had, how
many times they were copied, who copied them, and what he did with the
copies; and he got us all mixed up—counsel for the prosecution, the
Court, counsel for the defence—none of us could understand it. "How
many books did you have? What did you do with them?" "Well, I took
them to New York. No, I did not; I had some of them here." Finally
I manufactured out of my imagination a carpet-sack for him. I said,
"Didn't you take these books over to New York in a carpet-sack?" He said
"Yes," he did. He jumped at that carpet-sack like a trout at a fly. Let
me call your attention to some other evidence, on page 2637, near the
bottom. Donnelly is testifying:

Q. Was it an exact copy of the book?—A. It was not.

Q. In what did it differ from the book you were keeping?—There were
some items left out.

Q. What accounts did you leave out?—A. I left the William Smith account
out.

Q. What did you do with that amount in order to balance the books?

Now, I want you to pay particular attention to this answer.

A. My recollection is that I carried it to profit and loss.

Q. On the books or on the balance sheet?—A. On both.

Now, remember, these were the books made out to fool the committee. I
suppose there are some book-keepers on this jury. I suppose Mr. Greene
knows something about book-keeping, and Mr. Evans, and Mr. Crane, and
Mr. Gill. I do not know but you all do. And you know that when you carry
an amount to profit and loss you do not throw the name away; you keep
the name. If you have charged against Robert G. Ingersoll five thousand
dollars, which you never expect to get, and you want to charge it to
profit and loss, you make the charge and you put my name against that.
You put profit and loss against Robert G. Ingersoll's debt. Everybody
that ever kept a book knows that. If you carry an amount to profit and
loss you rewrite the name of the person who owes the debt. So that when
he says, "My recollection is that I carried it to profit and loss,"
there would be a name twice in the book instead of once. If it was
simply in the book once it would be, "William Smith, debtor, eighteen
thousand dollars." But if you carry that to profit and loss you must
credit profit and loss by this William Smith amount, and consequently
get the name in the book twice instead of once. And that is what they
call covering it up. They were so afraid that somebody would see an
account against William Smith in one part of the book that they opened
another account in the profit and loss business and put it in again.
That would be twice. Now, let us go on a little:

Q. Were there any other accounts transferred in the same way?—A. I
rather think there were, but I am not certain.

Q. Did you make the books balance on your copy?—A. Yes, sir.

Q. How long were you working on that copy?—A. I was working on it two
evenings and all of one night.

Now, recollect, in the copy that he made, he carried the account of
William Smith—and may be Jones, he does not remember—to profit and
loss.

Now, let us take the next step. Let us go to page 2269. This is as good
as a play. Donnelly swears that when he made the first copy he carried
the William Smith account and some other to profit and loss. Rerdell
swears that acting upon the hint of General Brady he got a man to
do—what? To make another copy and leave out the items that had
heretofore been charged to profit and loss. Donnelly swears that he
balanced the books, and he is the only man that ever did balance the
books, according to the testimony. After Rerdell had been subpoenaed to
appear before the Congressional committee, he got another man, whom he
swears he put to work on the books, designating the entries to be left
out by drawing a pencil mark through them; that he told him to make up
a new set of books, leaving out those entries, but to leave the books so
that they would balance, taking the entries that were stricken out, and
also the same amount that had been carried to profit and loss, and leave
them entirely out. Rerdell swears that prior to that time these accounts
had been carried to profit and loss, and that he struck out the credits
to Dorsey.

Then the evidence as it stands is this: Rerdell swears that Mrs. Gibbs
copied the journal and ledger. Gibbs does not swear it, but Rerdell
does. That made four books. Then he got Donnelly to make another set of
books with the William Smith and Dorsey accounts carried to profit and
loss.

That is six books. After he had been subpoenaed by the committee he got
another man to make a new set of books and leave out the William Smith
and Dorsey accounts and the profit and loss account, and that makes
eight books. And there we are, so far as that is concerned.

Now, gentlemen, I have come to one other view of this case. I hope
that you will not forget—because I do not want to speak of it all the
time—that this man Rerdell swears that he had the original letter-press
copy of that letter which he says Dorsey wrote to Bosler. Do not forget
that. He says he had that before he went to New York to steal the red
books; do not forget that. And that he gave that testimony away; do not
forget that. That he says he had it copied by Miss White, and they do
not introduce Miss White to show that she copied it; do not forget that.
Do not forget, too, that he had when he was there the tabular statement
in the handwriting of S. W. Dorsey.

Mr. Ingersoll. [Resuming.] Gentlemen, on page 2286 Mr. Rerdell gives
the contents of a letter which he says Dorsey wrote to him the night he,
Rerdell, left New York, and when he says he had the book with him. He
swears, you remember, that afterwards Dorsey tore the letter up. Let me
read you the letter as he says it was written:

The letter started out by stating that he did not believe the report
that had been brought to him in reference to myself, and that he also
believed the affidavit story to be a lie. He plead in the letter for the
sake of his wife and children and himself, and his social and business
relations, and the friendship that had long existed between us not to do
anything for his injury; for God's sake to reconsider everything that I
had done and take no steps further until he could see me. It was in that
strain, simply begging me not to do anything further until he could see
me.

Now, let us analyze that letter, keeping in our minds what Rerdell has
sworn. Rerdell has sworn that when he went to the Albermarle Hotel he
told Dorsey what he had done; that he had had the conversations with
MacVeagh and James. Let me call your attention to the dispatch from
Jersey City. First, Dorsey wrote to Rerdell that he did not believe the
report that had been brought to him; that had been brought to him. He
could not have used that word "brought" if Rerdell had been the bringer.
If Rerdell had made the report to him in person he could not have
written to Rerdell, "I do not believe the report that has been brought
to me." The use of the word "brought" shows that somebody else told him;
not the person to whom he wrote. "The report." What report? There is
only one answer. The report that Rerdell had been in consultation with
the Government. He writes to Rerdell, "I don't believe that report
that has been brought to me," and yet when he wrote it, if Rerdell's
testimony is true, he knew that Rerdell had given him that very report
and he knew that Rerdell would know that he, Rerdell, had told Dorsey
that very thing. Second, that he, Dorsey'', believed the affidavit story
to be a lie. There is again in this horizon of falsehood one little
cloud of truth. Rerdell had not made an affidavit. He had told James,
MacVeagh, Woodward, and Clayton what you know, but he had not made
any affidavit, and when he was charged, if he was, with having made an
affidavit, it delighted him to have one little speck of truth, just one
thing that he could honestly deny. That was the one thing. He had not
yet made an affidavit. Third, Dorsey plead with him in the letter for
the sake of his wife, his children, himself, his social and business
relations, and the friendship that had long existed between them, not to
do what? Not to do anything further. According to Rerdell, he told him
in the letter he did not believe he had done anything. Rerdell swears
that he wrote to him in the letter that he did not believe the report;
that is, that he had yet done anything, and then wound up the letter by
begging him, for God's sake, not to do anything further. How came he
to use the word "further"? "Don't take any further steps. I know that
you have not taken any step at all, but do not, I pray you, take any
further steps." That letter will not hang together. Dorsey swears he
never wrote it. Finally, the letter comes down to this: "I don't believe
the report. I do not believe you have done anything. But, for God's
sake, do not do anything more." It is like the old Scotch verdict when a
man was tried for larceny. The jury found him not guilty, but stated at
the end of the verdict, "We hope the defendant will never do so again."
The first part of this letter shows that Dorsey did not believe that he
had done anything. The last part of it shows that he did believe he had
done something and that he must not go further. No one can tell why
he introduced the word "further" into this letter upon any other
hypothesis. Now, I read to you, from page 2287, what Rerdell says
happened at the Albermarle Hotel:

He charged me with holding interviews with Mr. James, the
Postmaster-General, and the Attorney-General, and asked me what I meant
by it. I told him my action was in his behalf; that I had been keeping
up with the newspapers, and knowing the facts in regard to this mail
business, what I had done was done in his behalf.

That is, he did not deny that he had these conversations, did not deny
the report, did not deny that he had met the Attorney-General and the
Postmaster-General, but said:

My action was in your behalf.

And then, according to Rerdell, after that Dorsey wrote him a letter, in
which he said, "I do not believe the report," although Rerdell had made
the report to him himself. May be that is the reason he did not believe
it.

Now, let me read to you the conversation on his return from New York and
see how it agrees with the letter. It is on page 2288:

Mr. Dorsey immediately brought up the conversation that we had had over
in New York, and what I had done by going to Mr. Mac-Veagh, and asked me
if I intended to ruin him. I said no, I did not; it was not my intention
to ruin him; it was my intention to help him out of what I thought to be
a bad difficulty.

Q. What did he say?—A. He then asked me if I had done anything further
since I had left him.

Yet in the letter that he wrote him from the Albermarle Hotel he said
that he did not believe the report and did not believe that he had done
anything against him. The first thing he asked him when he got here was,
"Have you done anything further against me?"

I said no, I had not; I had not been near Mr. MacVeagh. He then says,
"Well, how shall we get out of this?" I says. "Mr. Dorsey, I will do
anything that I can except to commit perjury."

A very natural remark for Mr. Rerdell to make. He would do anything
but that. That testimony shows that Dorsey never wrote the letter which
Rerdell says he did write from New York. That testimony shows that they
did not have the conversation in New York that Rerdell says they had.
That testimony shows that they did have exactly the conversation which
Mr. Dorsey swears they had.

Now, I come, gentlemen, to the affidavit of June 20,1881. I would like
the letter of July 5, 1882, which is on page 3733.

You understand this affidavit was made in consequence of the
conversation, as he says, that he had with Dorsey after Dorsey came
back from New York, in which he said he would do anything except commit
perjury, and when Dorsey told him, "Damn it, what does that amount to
when a friend is involved? I would not hesitate a moment." Consequently
he swears that he made up his mind for the sake of friendship to swear
to a lie for Mr. Dorsey. That is what he says now. On the 5th of July,
1882, while we were in the midst of the other trial, and when Mr.
Rerdell, as he says, contemplated going over to the Government, and when
he would not put evidence in our hands against himself, he wrote this
letter:

July 5, 1882.

Senator: What I am going to say here may surprise you, while, judging
from certain circumstances that to me are easily to be seen, you may not
be taken by surprise.

To commence with this, it will be necessary to go back about a year
to the time when, looking forward to the inevitable result of the
star-route matters—I started to put myself in accord with the
Government. At that time I had no thought of being included in any
prosecution or indictment, supposing that as an agent I could not be
held criminally responsible. Had I for one moment thought it possible
nothing could have changed my mind, even anxious as I was to benefit
you. The consequence was, I listened to Bosler and did what I will
ever regret. First, because of the unenviable notoriety given me in
consequence of doing what he persuaded me to do.

Who persuaded him? Mr. Bosler. He writes that on the 5th of July, 1882,
when, as he said, he had made up his mind to go over to the Government,
and when he would not willingly put a club in our hands with which to
dash out his brains.

Second, because, let this case go as it may, I am still left under a
cloud—That is a pitiable statement. That man under a cloud!—both with
your friends and acquaintances, and the public generally.

Here comes, gentlemen, the blossom and flower of this paragraph:

And that, too, almost penniless.

Then the letter goes on:

These are stern facts, and cannot be ignored, while had I continued
acting with the Government my reputation would have been clear, and no
doubt been appointed to a good position.

The Government must have promised the gentleman an office when he went,
in June, 1881, to Woodward and to Clayton and to the Attorney-General
and to the Postmaster-General. According to this letter, among
other things he was to have an office, the steamboat route was to be
reinstated, the Jennings' claim was to be allowed, his father-in law was
to get a clerkship, and according to this letter he also was to have a
position. That is civil service reform! What does he say?

At least I have every reason to believe such would have been the result.

He would have had an office, he has every reason to believe. Why? They
must have promised it to him.

This now brings us to the present time. I have an opportunity to redeem
myself, and think it best to do so, as by so doing I can be entirely
relieved of the indictment.

The Government then must have promised him in 1882 that the indictment
should be dismissed as against him. Is it possible that he would tell a
lie, gentlemen? Is it possible the prosecution will say that he lied on
the 13th of July, 1882, but in 1883, having met with a change of heart,
he told the truth? No.

In taking this step let me say this: It is the result of much thought
and also of preparation.

I think so. The preparation of several papers.

I have realized the fact that all you and Bosler desired was to use me,
and when no longer needed I could go to the devil.

Well, I think that is where he has gone.

Therefore I have concluded to be used no longer, and propose to look out
for myself.

To-day I am putting things in order, so as to commence right tomorrow.
I regret this on your family's account, but I too have a family, and owe
it to them to put myself right.

You see, gentlemen, he wanted to leave an unspotted reputation to his
children.

I deem it as being due to you that I should give you notice of my
intention. Very truly,

M. C. Rerdell

Now, gentlemen, he comes on the stand and swears that he made this
affidavit, not being overpersuaded by Bosler, but because Dorsey with
tears and groans besought him to make it. Yet on the 5th of July, 1882,
he says he made it because he was overpersuaded by Bosler, and he says,
too, "Had I remained with the Government my reputation would have
been clear, and I have every reason to believe I would have had a good
position." He says, "I have another opportunity to be entirely relieved
from the indictment." These gentlemen say he never was promised
immunity. That simply shows you cannot believe Mr. Rerdell when he is
not under oath, and what he has sworn to here shows you cannot believe
him when he is under oath.

Now I come to the affidavit. I will not spend a great deal of time upon
it. Mr. Rerdell, with extreme ease, without the slightest hesitation,
went through that entire affidavit, picking out with all the facility
imaginable, every paragraph written by Dorsey and every paragraph
written by himself. I was astonished at his exhibition of memory. I
finally asked to look at the copy of the paper he had, and when I got
that in my hand I found that every word that he swore was written by
Dorsey had been underscored with a blue pencil. That accounted for the
facility with which he testified. I found afterwards that that paper had
been given him by Mr. Woodward and that he had gone through and marked
such portions as Mr. Dorsey wrote, according to his testimony, or had
marked those that he wrote, leaving the others unmarked, so that at a
glance he could tell which way to swear. Before I get through with the
papers in this case there is another thing to which I want to call
your attention. All the papers as to which witnesses were called on the
subject of handwriting are marked. I will show you that every one has a
little secret mark upon it, so that the man who swore might know which
way to swear simply by looking at the signature and at no other part.
There has been a great deal of preparation in this case.

Now, Rerdell swears as to the parts of the affidavit that Dorsey wrote
and the parts that he wrote. His object in swearing was to entirely
relieve Messrs. James and MacVeagh from having made any bargain with
him to steal Mr. Dorsey's books, and to entirely relieve them from any
suspicion, as well as to relieve every other official of the Government
from any suspicion of having promised him any pay in any shape or manner
for the making of this affidavit. He swears in the first place, that
Dorsey wrote this:

My story captured them completely, and I took occasion to refer to the
steamboat route and the Jennings' claim. Mr. James remarked that he knew
all about the Jennings' matter, that Jennings had been badly treated,
and he ought to get the money, and should; that he would investigate
the steamboat route and see if anything could be done; that that was
the worst part, and his special agents had reported it; nevertheless he
would see if something could not be done.

On page 2506, in his cross-examination, Mr. Rerdell swears that the
words—Mr. James remarked—were not written by Dorsey, but were written
by himself. On the same page he swears that the words—That Jennings had
been badly treated—were not written by Mr. Dorsey, but were written by
himself.

On his examination-in-chief he swore that these words were written by
Dorsey.

On his examination-in-chief he swore that Dorsey wrote this:

And to further deceive them and learn their plans, carried the
letter-book containing—And then he wrote—the much-talked of Oregon
correspondence.

Afterward, when cross-examined, he swears, I think upon the same page,
2506, that he himself wrote the words:

Carried the letter-book containing.

That Dorsey did not write them. He also swears in his
examination-in-chief that Dorsey wrote these words:

Making only one mistake, or rather slip, by which Mr. MacVeagh could, as
a good lawyer, have detected me, and that was by stating that I had kept
a set of books.

On his examination-in-chief he swears that Mr. Dorsey wrote those words.
On cross-examination he admits that Dorsey did not write them and that
he wrote them.

On his examination-in-chief he swears that he wrote this himself:

He said, "Well, Mr. Rerdell, I am in a position where I cannot make
promises, but if you will place yourself in full accord with the
Government, you shall not lose by it, and I would advise you not to
receive any salary from Dorsey this month. It will be all right."

On cross-examination he takes it back, and swears, on page 2503, that
Dorsey wrote the words:

It will be all right.

He was afraid those words might be given too wide a significance and
might in some way touch the Attorney-General, and consequently he swore
that he swore wrong when he swore that he wrote them, and that as a
matter of fact Dorsey wrote them. Then, on his examination-in-chief with
the marked paper before him, and having plenty of time to manufacture
his testimony, he swore that he wrote the words:

He asked me—In his own handwriting, and that Dorsey wrote these
words—when I was going to New York to get those books. I replied,
"On Sunday night." He said, "Don't put it off too long, as they are
all-important."

On his examination-in-chief he swore that Dorsey wrote those words, and
on cross-examination he admitted that he wrote every one of those words
himself. When he was cross-examined he had not the paper before him.
His memory was not refreshed by the blue pencil mark. So on his
examination-in-chief he swore that he wrote these words:

As I was about leaving he—Meaning the Attorney-General—said, "Mr.
Rerdell, you have put yourself in full accord with us, and I have
this to say, you shall be well taken care of and your matters shall be
attended to."

On cross-examination, on page 2500, he swears that Dorsey wrote the
words:

Your matters shall be attended to.

But he still admitted that he, Rerdell, wrote the words and put them in
the mouth of the Attorney-General:

You shall be well taken care of.

He says in his letter of July 5, 1882:

If I had remained with the Government I have every reason to believe I
would have a good position.

What next? Mr. Rerdell, in his examination-in-chief, swears that he
himself wrote these words:

The next evening I called on Mr. Woodward to see if he had anything more
to say, and he told me a place had been found for my father-in-law, and
to give the application to Senator Clayton; to make the application
for the Interior Department, as it was best not to put him into the
Post-Office Department for fear of criticism; that the appointment
should be made at once. It was all arranged. The next day I saw Clayton,
who said the same thing.

On cross-examination, at page 2505, he swears that Dorsey wrote a part
of this; that Dorsey wrote the following words:

As it was best not to put him into the Post-Office Department for fear
of criticism.

When he testified on direct examination he had this marked paper before
him; in the absence of the paper, on the cross-examination, he takes his
solemn oath that he did not write it, but that Senator Dorsey did. What
confidence can you put in that kind of testimony? I would like to have
you, gentlemen, some time, or I would like to have anybody who has the
slightest interest in the thing, read this affidavit and see whether
it is the work of two or the work of one. You let two men write, one
writing one paragraph and the other another paragraph, and then you read
it; there is no man in the world accustomed to read books that cannot
instantly detect the difference in style, the different mode of
expression, the different use of language. Nobody can see any difference
in the writing; nobody can see the slightest difference in the mode of
expression; the sharpest verbal mechanic that ever lived cannot see a
joint between these paragraphs. They emanated from the same brain; they
were written by the same hand; and if any man, who has ever read one
book clear through, will read that, he will see that one person wrote
it all. But Mr. Bliss tells you that here is a passage that shows the
handiwork of S. W. Dorsey, because Dorsey was a politician:

He also said that you, Mr. President, had told Mr. Dorsey you could not
interfere in this investigation and prosecution; that if you did,
the public would say that the President and a Secretary, who shall
be nameless, but whose name I could guess, had taken the money of the
star-route ring while they were in Congress, or the Postmaster-General
and Attorney-General had taken it since, and therefore he (Dorsey) must
look to the courts for vindication.

That is the passage upon which Mr. Bliss relies, among others, to show
that this was formed in the brain of S. W. Dorsey; and yet Rerdell
swears that that passage he wrote himself. It will not do, gentlemen.

Now, in order that you may know just about how much force to give to
that, let me read you a little from page 2379; and I read this for the
purpose of letting you know the ideas that this man Rerdell entertains
of right and wrong.

I want you to get at the moral nature of this man; I want you to
thoroughly understand him. When you examine these affidavits, when you
think of his testimony, I want you to know exactly the kind of nature
he has, and I want you to remember that he came here upon this stand
and swore in this case that he did not consider that it was wrong to
interline petitions; that he did not think it was wrong to fill up
affidavits; and that is the reason he made the affidavit of July 13,
1882. Although he then knew that these things had been done, still he
did not regard them as wrong. You see it is worth something to get at a
man, to get at his philosophy of right and wrong; it is worth something
to know how he thinks; why he acts; and when you have found that out
about a man, then you know whether to believe him or not.

I believe the jury did look at this paper and saw all the parts that had
been marked by blue pencil, and those parts, I believe, he said Dorsey
wrote. That is the paper he had before him at the time he testified in
chief. But when he came to be cross-examined, not having the paper then
before his eyes, he swore in very many important things exactly
the other way. We were all astonished at the facility with which he
remembered, he pretending to know what parts he wrote and what parts
Mr. Dorsey wrote. I want you to understand this man, and before I get
through with him, you will. I want you to know him.

Now we come to an exceedingly important thing in this case, in the eyes
of the prosecution. It is the principal pillar supporting the testimony
of Mr. Rerdell. Without that pillar absolutely nothing is left,
everything falls into perjured ruin.

The first question that arises with regard to the pencil memorandum (31
X) is who wrote it, and in order to ascertain who wrote it we must
take into consideration all the facts and circumstances that have been
established in this case. It is already in evidence, as you remember it,
that Rerdell kept a route-book. You will also remember that Mr. Dorsey
had books of his own; that he had a bookkeeper of his own, Mr. Kellogg;
that Mr. Kellogg swears that he kept those books and that nobody else
ever made a scratch of the pen in them; that he kept them up till the
fall of 1879; they were then sent to New York; that Mr. Torrey took
possession of those books on the 27th of January, 1880, and kept them
continuously to the last of April, 1882, and that nobody else ever put a
mark in them. That is the evidence. The evidence also is that there was
in those books a complete mail account. The evidence is also that in
those books kept by Mr. Kellogg were the charges and credits growing out
of the purchase of John W. Dorsey's interest and Peck's interest in the
mail routes.

Mr. Merrick. Pardon me; point me to that evidence.

Mr. Ingersoll. I will refer to it hereafter. I do not wonder, gentlemen,
that they dislike this pencil memorandum.

Mr. Merrick. No, sir; I only want to keep you within correct limits.

Mr. Ingersoll. I understand that. I do not blame anybody for disliking
that pencil memorandum.

Mr. Merrick. You can convict Rerdell as much as you like.

Mr. Ingersoll. When you come to show that he is guilty his countenance
will light up with the transfiguration of joy. There will be no more
delighted auditor than Mr. Rerdell when his crimes are painted blackest.
It shows you the moral nature of the man.

Now, as I say, the evidence is that there was a route-book kept; that
that route book contained all the information that Mr. Dorsey or any one
else would want about the routes themselves; consequently, that there
was no propriety in keeping any other set of books. Mr. Rerdell could
keep books for himself, but not for S. W. Dorsey. Dorsey had a set
of books, and had another book-keeper. Why should he have another set
opened by Rerdell? Rerdell kept a route-book that gave him all the
information that he could possibly desire.

Mr. Wilson. Rerdell did not handle the money.

Mr. Ingersoll. Of course not; there was no money at that time to handle;
they had not got as far as the handle.

Now, there is another little point: Why should Dorsey voluntarily put
himself in the power of Rerdell by saying, "I have paid money to Brady"?
What was the necessity of it? What was the sense of it? Rerdell was his
clerk. Why should he take pains to put himself, the employer, absolutely
in the power of his clerk? Why should he take pains to make himself the
slave of the man he was hiring by the month? Why did he wish not only to
make Mr. Rerdell acquainted with his crime, but to put in the hands of
Rerdell evidence written by himself? See, gentlemen, you have got to
look at everything from a natural standpoint. Of what use was it to Mr.
Dorsey to keep that account? Dorsey at that time had no partner. Dorsey
at that time did not have to respond to anybody. Of what use was it to
him to put down in a book, "I paid Brady eighteen thousand dollars"? Was
he afraid Brady would forget it? Was he afraid he would forget it?
Did he want his clerk to help him keep the secret, knowing that if the
secret got wings it would render him infamous? Let us have some sense.
The Government introduced it. They also introduced a witness to prove
that it was in Dorsey's writing. Rerdell swore that it was. Their next
witness, Boone, thought part of it might be and part might not be; it
did not look right to him; he rather intimated that Mr. Rerdell wrote
part of it. And right there the Government dropped. No expert was
brought. There were plenty of experts right over here at the Bureau of
Engraving and Printing, plenty of experts in Philadelphia and New York,
plenty of judges of handwriting. Right up here in Congress were twenty
or thirty Senators who sat for six years in the Senate with Stephen W.
Dorsey, served on the same committees with him and had seen him write
every day; clerks of those committees who had copied page after page of
his writing. Not one of them was called. The Government, with its almost
infinite power, with everything at its command, brought no expert.
That was the most important piece of paper in their case. And yet they
allowed their own witness to discredit it; their own witness swore, in
fact, that Rerdell had manufactured the incriminating part of it. And
yet they sent for no expert to swear to this writing. Don't you believe
that they talked with somebody? Has not each one of you in his mind a
reason why they did not bring the ones that they talked with? They left
it right there without another word. Now, why? Simply because they could
get no man to swear, except Rerdell, that this is in the handwriting of
S. W. Dorsey. That is the reason.

You know that Rerdell "kept this as a voucher." What for? Was any money
paid out on it? No. Was it a receipt for any money? No. But he "kept it
as a voucher." You see he was in a difficulty. How did he come to keep
it all this time? It would hardly do for him to say that he did not try
to keep it, that it had just been in the waste-basket of forgetfulness,
and had suddenly come to life by a conspiracy of chance and awkwardness.
It would not do for him to say that he made it. So that he had to say
that he kept it, and then he had to give a reason for keeping it.
What was the reason? He said he "kept it for a voucher." I suppose you
[addressing Mr. Greene., a juror] have kept books. Is that what you
would call a voucher? Yet that is the reason the poor man had to give.
I pitied the man when he got to the point. I am of such a nature that I
cannot entirely, absolutely, and perfectly hate anybody, and when I
see the worst man in trouble I do not enjoy it much; at least I am soon
satisfied, and would like to see him out of it. Here he was swearing
that he had this for a voucher.

Now, there are some little things about this to which I will call your
attention. Here is the name of J. H. Mitchell. An account was opened
with Mitchell, but he does not tell him to charge Mitchell with
anything; there is nothing opposite Mitchell's name. How would he open
an account with Mitchell without anything to be charged against him or
to be credited? He put in the index of the book, "J. H. Mitchell, page
21." You turn over to page 21, and you find Mitchell debtor to nothing,
creditor the same—silence. Not a cent opposite the name on either side.
Mitchell was not an employee. Mitchell was not a fellow that they were
to have an account with by the day. Then John Smith is rubbed out and
Samuel Jones written under it. Rerdell says he wrote Samuel Jones. I
say he did not. I want you to look at it after awhile and see whether he
wrote it or not.

Now, gentlemen, it so happened that when this pencil memorandum was
introduced it struck me that the M. C. R. looked a great deal like
Rerdell's handwriting, and you will remember that I suggested it
instantly, and said to the jury, "Look at the M. C. R." Now, gentlemen
of the jury, I want you to look at that M. C. R.; I want you to see how
the first line of the M. is brought around to the middle of the letter,
and then I want you to see exactly how the C. and the R. are made. Take
it, Mr. Foreman, and look at it carefully. And, in connection with
that pencil memorandum (31 X), I will ask the jury also to look at this
settlement with John W. Dorsey, made in 1879 (87 X), and compare the
initials M. C. R. where they occur on both papers. M. C. R. occurs
twice, I believe, on this (87 X.) Now look at the formation of the M. C.
R. on both papers, Mr. Lowery, and do a good job of looking, too.

Now, gentlemen, this is one of the most valuable pieces of paper I have
ever had in this case, and it is as good luck as ever happened. I want
you to look at the J. W. D. on that paper, and then compare it with the
J. W. D. on this paper; you cannot spend your time better.

I did not suppose I would ever find one paper that would have everything
on it. But, as if there had been a conspiracy as to this paper, there is
an S. W. D. on this paper which is substantially the same as the S. W.
D. on the other. The M. C. R., the S. W. D., and the J. W. D. on both
these papers are all substantially the same, and I think when the jury
have looked at it they will say they were written by the same hand.

Now, gentlemen, there was the testimony of Mr. Boone that he thinks
the upper portion of this pencil memorandum (31 X) was written by S. W.
Dorsey; that it looks like his handwriting down to and including "profit
and loss," I believe; I may be mistaken; it may be down to "cash;" and
then after "profit and loss" come the names of J. H. Mitchell and J. W.
D., exactly the same J. W. D. that appears on 87 X.

Now, what paper is that 87 X? That is an account of John W. Dorsey
against S. W. Dorsey in 1879. He had been out West to take care of some
of the routes, and when he came back he settled, and Mr. Rerdell wrote
up the account. That is 87 X, and I proved that it was made in 1879. I
believe the prosecution thought at first that it was 1878.

That paper shows that it was manufactured by the one who wrote this
paper, and by nobody else.

Now, as I said before, there is no account against J. H. Mitchell.
Opposite William Smith there are the figures eighteen thousand. And
Rerdell says that he wrote Samuel Jones himself at the suggestion of
Mr. Dorsey. Again I ask you, gentlemen, why would Mr. Dorsey give such
a paper to Rerdell? Why would he give him this false name? Why would
he put himself in his power? It is very natural that he should give the
amounts ten thousand five hundred dollars, ten thousand dollars for John
W. Dorsey and ten thousand dollars for Peck, because the evidence shows
that those transactions actually occurred. The evidence shows, not only
in one place but in many, that the ten thousand dollars was paid to John
W. Dorsey, the ten thousand dollars was paid to Peck, and that the ten
thousand five hundred dollars was advanced at that time by S. W. Dorsey.
Consequently that is natural; it is proper. But my opinion is that he
never wrote one word, one line of the pencil memorandum. It was all
made, every mark upon it, by Mr. Rerdell. He is the man that made it.
Did he have it when he went to MacVeagh? No. Did he have it when he went
to the Postmaster-General? No. Did he have it when he went to Woodward?
No. Did he have it when he made his affidavit in July, 1882? No; or he
would not have made it. Did he have it when he went to Mr. Woodward in
September? No; or else Mr. Woodward would have taken the stand and sworn
to it. Did he have it when he made his affidavit in November? I say no.
Who made it? Rerdell manufactured it for this purpose: That he might
have something to dispose of to this Government; that he might have
something to swap for immunity. He "kept it as a voucher."

Why did not these gentlemen bring Senator Mitchell to show that he
had some account with Senator Dorsey in May, 1879? Why did not the
Government bring Mr. Mitchell? They knew that their witness had to be
corroborated. They knew that the law distinctly says that such a witness
cannot be believed unless he is corroborated. They also know that the
law is that unless such a witness is wholly corroborated he cannot be
believed; that you are not allowed to pick the raisins of truth out of
the pudding of his perjury. You must believe him all or not at all. He
must be received entire by the jury, or with the foot of indignation he
must be kicked from the threshold of belief. They know it. Why did they
not bring Senator Mitchell to show that he had some account with S. W.
Dorsey in 1879? But we heard not a word from them.

What more? Rerdell says that was either in April, before he went
West, or in May, after his return; and at that time, according to his
testimony—that is, according to this memorandum—eighteen thousand
dollars had been paid to Mr. Brady for expedition. And then following,
in the month of June, before the quarter ended, eighteen thousand
dollars more. That makes thirty-six thousand dollars paid to Brady. What
else? Ten thousand dollars to John W. Dorsey; forty-six thousand dollars
that makes. Ten thousand dollars paid to Peck; fifty-six thousand
dollars that makes. He had also advanced himself ten thousand five
hundred dollars; that makes sixty-six thousand five hundred dollars
advanced, and not a dollar yet received from the Government. And that
by a man who gave away seventy per cent, of a magnificent conspiracy
because he had not the money to go on. All you have to do is to think
about this. Just think of the situation of the parties at the time. I
tell you I am going to stick to this subject until you understand it.

Mr. Gibbs swears that the name of Mitchell was not in the books when he
saw them, and yet those books were opened from this memorandum. Gibbs
is the man who has such a control over his mind that he can "try not to
remember." When I was a boy I used to hear a story of a man going around
saying that nobody could control his mind for a minute; that nobody
could think of one thing for a minute without thinking of something
else. But there was one fellow who said, "I can; I can think of a thing
a minute and not think of anything else." He was told, "If you do it, I
will give you my horse, and he is the best riding-horse in the country;
if you can say the first verse of 'Mary had a little lamb,' and not
think of anything else, I will give you my horse, and he is the best
riding-horse in the country." The fellow says, "How will you tell?" "Oh,
I will take your word for it." So the fellow shut up his eyes and said:
    Mary had a little lamb,
    Its fleece was white as snow,
    And everywhere that—

"I suppose you will throw in the saddle and bridle?"

Mr. Gibbs is the man who had such control of his mind, and he tells you
that the name of J. H. Mitchell was not in the book.

Mr. Donnelly says he does not remember any such name as J. H. Mitchell,
and yet he holds an office. He has the poorest memory for any one under
the present Administration, I ever saw. He does not remember the name of
J. H. Mitchell. Who does remember it? Mr. Rerdell. But Mr. Rerdell does
not say what he had charged to J. H. Mitchell; he does not say what was
in the book as against J. H. Mitchell; he fights clear of that charge.
And why? He was afraid that John H. Mitchell might testify. According,
I think, to Mr. Rerdell, there was a charge against Belford on
those books. I do not know why Belford's name did not appear on the
memorandum, but I will come to Belford afterwards.

Mr. Bliss. Mr. Ingersoll, Mr. Donnelly does not mention in any way and
is not asked on the subject of Mr. Mitchell.

Mr. Ingersoll. I think he is. I will find it after awhile if I can, and
if I cannot I will admit that you are right. I do not know where it is.
I do not wish to be interrupted.

Mr. Bliss. I claim the right.

Mr. Ingersoll. Well, go on; the poor man only had seven days in which to
make his speech.

Mr. Bliss. I have before me Mr. Donnelly's evidence, and he does not
mention the name of Mitchell in any manner, and is not asked about it,
so far as I can see. I think when the statement is persisted in there
should be some reference given to the page.

Mr. Ingersoll. It is on page 2637.

Mr. Davidge. And at page 2639, about two inches from the top.

Mr. Ingersoll.—It is sufficient for my purpose, which is this: That he
gave the names of all the accounts he could remember, and in that list
of names he did not give the name of J. H. Mitchell. So I think I can
fairly say to you that that man did not remember any account against J.
H. Mitchell. Mr. Gibbs was asked directly whether there was any account
against J. H. Mitchell, and he did not remember any such. Now, the only
person that swears to it at all is Mr. Rerdell. Then you come across
this contradiction: Why should the name of J. H. Mitchell be there with
nothing opposite to it? I do not know. The prosecution, of course, will
be able to find writing of S. W. Dorsey that will resemble some of the
writing on this pencil memorandum. There is no doubt about that. If
it was written by Rerdell in imitation of Dorsey's writing, it is not
surprising that writing really written by Dorsey can be found that looks
like it. Why? Because it was written in imitation of his writing, and
therefore you can find writing of Dorsey's that looks like it; otherwise
it would not be an imitation. The next question arises, Can you find
writing of Rerdell's that looks like it? Yes; 87 X. The M. C. R., the
S. W. D., and the J. W. D. are all exactly like it. Now, is it not
infinitely surprising that Dorsey should imitate Rerdell without
trying and without an object? Is it not perfectly wonderful that this
memorandum should be in imitation of Rerdell's writing, when it was
written by Dorsey? But if it was forged by Rerdell, it is not wonderful
that it looks like Dorsey's writing. If Dorsey wrote it without thinking
of Rerdell, I say the accident is infinitely wonderful that he imitated
Rerdell. Which is the more probable—that Dorsey imitated Rerdell
without design and without trying, or that Rerdell imitated Dorsey
with a design, and when trying to do so? That is the way to put this
argument, and I hope the gentlemen will answer it. The ingenuity that
would be displayed in the answer would a thousand times pay me for the
loss of the point. I want them to account for this, how Dorsey's natural
handwriting comes to look like Rerdell's, and how it is that this looks
precisely like Rerdell's in many instances. Why is it, gentlemen? I will
tell you. Mr. Rerdell had written the initials J. W. D., S. W. D., and
M. C. R. so often that when he came to put them upon this memorandum he
forgot to disguise his hand. That is the reason. You find on 87 X the J.
W. D. precisely as it is on the pencil memorandum. You find the M. C.
R. precisely as it is on the pencil memorandum. You see if you have done
the same thing many times with your hand, the hand gets a mind of its
own. It is in that way that you learn to play upon the piano. The hand
becomes educated and follows the keys through all the mazes of melody
without asking one question of the mind. You can write a name so often,
you can make initials so often, that when you come to write them, no
matter what your object is, the hand, educated with a mind of its own,
pursues the old accustomed motions and paths. That is the reason that
J. W. D. and S. W. D. and M. C. R. are exactly in the handwriting of
Rerdell in this pencil memorandum. According to that, Dorsey had paid
out in all, I think, about $65,000, or something like that There is no
truth in it, gentlemen.

Now, in order to prepare your mind for the next point I am going to
make, and in order that you may know something about this man Rerdell, I
will give you some further information about him. I do not think you are
sufficiently acquainted with his character, and any little points that
I have I want to give to you. I want to paint his portrait in every
lineament, every mark. I want to give you every hair in his head.
Remember that this witness is to be corroborated. He is to be propped
and indorsed. Everybody admits that he is the pewter of perjury and
has to be plated with the silver of respectability gotten from somebody
else. They all admit that. He is an empty bag. Somebody has to fill him
up before he can stand upright. They admit that. I want to call your
attention to a few things as to which he lacked corroboration.

On page 2215, Rerdell swears that Miner told him that the amounts in the
bids were filled in by S. W. Dorsey. On page 4177 Miner denies this, and
says that he filled in the bids with only two exceptions.

On page 2216 Rerdell swears that the mail matter for J. W. Dorsey, Peck,
and Miner was handed him by S. W. Dorsey, and that Dorsey said that
he was going to take the business out of Boone's hands. On page 3766,
Dorsey swears that he had no such conversation with Rerdell.

On page 2217, Rerdell swears that S. W. Dorsey applied to him to go
West. On page 3768 Dorsey swears that he did not employ him to go West.

On page 2218, Rerdell swears that he received instructions from S.
W. Dorsey as to what to do on the Bismarck route. On page 3769, S. W.
Dorsey swears that that is utterly untrue.

On page 2219, Rerdell says that he was instructed to establish a
paper post-office sixty miles north of the route. What was that for?
According to his testimony there was a mistake in the advertisement, and
the route was too long, and this was a device to shorten it by adding
sixty miles to it to make a post-office thirty miles off the route, or
sixty altogether, so as to get pay for the increase of distance. If it
was to be a fraud, why put the post-office off the route? Why not have
it on the route? Where would the fraud be if they traveled the sixty
miles except in having a postoffice where none was needed? They
certainly would make nothing from the Government by traveling the sixty
miles. If they traveled the sixty miles they would be paid for that
sixty miles, but if they wanted pay for the sixty miles without
traveling that sixty miles, they would not have put the post-office so
far off the route. They would have put it on the route, or very near to
it, and pretended that it was off the route.

Gentlemen, it is infinitely absurd to suppose that Stephen W. Dorsey
would have instructed that man to go out in that country and get up a
false post-office. How long would a fraud like that last and live? How
long could the money be drawn for that service in that country? They say
no human being lived there. Who was to be postmaster? Who was to
make the reports? How long, in your judgment, would it be before
the department would find out that there was no such post-office, no
postmaster, and no mail? No one could think of a more shallow device
than that Stephen W. Dorsey, a man who is blest with as much brain as
any man it is my pleasure to know, would never dream of such an idiotic
device. And yet, that is the testimony of Mr. Rerdell.

It may be that Mr. Rerdell when he got out there thought he could start
a town and make money in some other way. But it will not do to say that
Stephen W. Dorsey told him to get up a false and fraudulent post-office
when Mr. Dorsey must have known that the mail could not have been
carried to it but a few days before it would have become known that
there was no such office. They would have to appoint a postmaster and
he would have to live there in his loneliness a hermit of the plain, and
would have to make a report like that from Agate that gave such delight
to Mr. Bliss to read. There was not a letter sent to that place; not
one, nor would there be. Mr. Dorsey knew if there was a postmaster
appointed he would have to report, and in three months from that time he
would have to report, first, that there was no post-office; second, that
there had never been any mail; and third, that he did not expect any.
You see it is utterly absurd to lay such a charge at the door of Stephen
W. Dorsey.

On page 3769 Dorsey swears that the statement is a falsehood—that he
never did any such thing. He also denies it on page 3924.

On page 2220 Rerdell swears that he gave Pennell a petition for a
post-office. On page 2156 Joseph Pennell swears that he never saw the
petition; and on page 2171 that he never signed it, and that none was
sent.

On page 2221 Rerdell swears that he was instructed by S. W. Dorsey
to build stations fifteen or sixteen miles apart, and use every third
station. On page 3769 S. W. Dorsey swears that no such instructions were
given. On page 4092 J. W. Dorsey swears that they started to build the
stations about thirty miles apart, and that after he saw General Miles
and was told by that officer that there would be, and must be a daily
mail, then he concluded to build stations between the stations that he
had built going over.

That is a sensible, straight story. When he went out they built the
stations some thirty-odd miles apart, and when he talked with General
Miles, General Miles told him that there must be a daily service, and
then he determined to build intermediate stations as he went back.
What was that testimony sworn to by Rerdell for? To make you believe,
gentlemen, that Stephen W. Dorsey when he sent Rerdell out knew that
there was to be expedition, and knew it because he was in conspiracy
with the Second Assistant Postmaster-General. The testimony of John W.
Dorsey lets the light in upon that story. The sun rises, and the mist
goes. What is his story? "I went there and built the stations about
thirty miles apart, and when I talked with General Miles he assured
me that there must be expedition and a daily mail, and then I built
stations at the intermediate points as we went back." That is the story.
It is consistent with itself.

Is it not wonderful that the Government did not also prove by Pennell
that Rerdell gave him instructions to build the ranches, and told him
that he had been so instructed by S. W. Dorsey?

On page 2233 Rerdell swears that Miner told him that Vaile was close to
Brady. On page 4177, Miner swears that it is not true; that he never
had any such conversation. Why did they want a man close to Brady? As I
explained to you before, gentlemen, they had already, according to their
testimony, as they claim, proved that Miner had conspired with Brady,
and yet he was going around trying to find a man close to Brady. Being
a co-conspirator was not close enough. So Mr. Rerdell is corroborated
there again by Mr. Miner who swears that what Rerdell swears is a lie.

On page 2224 Rerdell swears that in November, 1878, Miner asked him to
write certain words in a line on petition 40104. On page 4178, Miner
swears that he never asked him to interline any petition.

On page 2225 Rerdell swears he had a conversation with Vaile and
Miner on the 20th of December, 1878, at the National Hotel, about his
employment, and that he had a great many conversations there. On page
4020, Vaile swears that there never was any such conversation. On
page 4021, Vaile also swears that he has no recollection of such a
conversation then or at anytime. On page 4178, Miner swears that the
talk was between Rerdell and himself, and that Vaile was not there.

On page 2225 Rerdell swears that Vaile told him that the mail service
they had ought to reach six hundred thousand or seven hundred thousand
dollars. On page 4021, Vaile swears that he does not think he ever said
any such thing—does not think it was possible that he ever said any
such thing. On page 4179 Miner swears that Vaile never made any such
statement in his presence.

On page 2226 Rerdell swears that at the instance of Vaile and Miner he
went West, January 4, 1879, to put service on the Rawlins route. On 4022
Vaile swears that Rerdell did not go West at his instance; that Miner
gave him, Rerdell, a subcontract for the entire pay, for the whole term,
and that Rerdell undertook it on his own behalf. On 4179 Miner swears
that he made the arrangements with Rerdell himself.

On page 2227 Rerdell says that Vaile and Miner both told him that the
service would be increased right away, and to make subcontracts with
that in view. On page 4180 Miner swears that he gave him no such
directions, and that Rerdell did all he did on his own responsibility,
and that Vaile did not give him any such authority. It is for you to
say., gentlemen, which of these men you will believe.

On page 2228 Rerdell swears that in March, 1879, had a conversation with
Vaile about an affidavit, and received instructions from Vaile or Miner.
On page 4024 Vaile swears that he recollects no such conversation and
does not think he ever had it.

On page 2228 Rerdell swears that Vaile said in the presence of Miner
that he could get Brady to accept an affidavit from a subcontractor. On
page 4024 Vaile swears that he is very sure that he did not say so, and
that he never asked Brady any such question. On page 4182 Miner swears
that he never made any such statement in Vaile's presence.

On page 2228 Rerdell swears that a day or two after Vaile says he had
seen Brady, and that Brady had agreed to accept an affidavit from a
subcontractor. On page 4024 Vaile denies this.

On the same page, 2228, Rerdell swears that he was instructed by Vaile
and Miner to write to Perkins and get him to send his affidavit. On
page 4024 Vaile swears, "Never!"—that he did not know Perkins was a
subcontractor. On page 4182 Miner swears that he has no recollection of
it, and that he never instructed Rerdell to send any form of affidavit
to Mr. Perkins.

On page 2230 Rerdell swears that Miner wrote a form of affidavit. On
page 4182 Miner swears that he has no recollection of it, and that he
never instructed Rerdell to send any form to Perkins. As a matter of
fact the Perkins affidavit is in the handwriting of Rerdell. Yet he
tells you that Miner wrote the form. It will not do.

On page 2231 Rerdell swears that he filled in blanks under the direction
of S. W. Dorsey—that is, of the Perkins affidavit—and filed it under
the direction of S. W. Dorsey. On page 3793 Dorsey swears that he
never knew there was such an affidavit, and that he never gave such
instructions; and more than that, that he never at any time or place
gave Rerdell authority to change any affidavit or any petition that was
to be filed.

On page 2233 Rerdell swears he was instructed to make the subcontract
without any reference to expedition; and that he, Dorsey, would
guarantee the payments if they were not filed. On page 3771 S. IV.
Dorsey swears that he gave him no such instructions.

On page 2234 Rerdell swears that affidavits of Peck and Dorsey were
acknowledged in blank. On page 4189 Miner swears that so far as he
remembers they were filled in before they were signed.

Again, it may be proper for me to say here: Why did not the Government
call J. S. Taylor, the notary of New Mexico, to prove that the
affidavits were in blank when they were sworn to by John M. Peck? Why
did they not? The law presumes that every officer has done his duty,
and when we find at the foot of an affidavit the certificate of a notary
public the law presumes that the paper above it was in the precise
condition at the time the certificate was placed there in which it
is then. That is the presumption of law, and there is only one way to
overcome that presumption. You must prove to the contrary. One of the
easiest ways on earth to do that is to bring the officer. They did
not bring J. S. Taylor here from New Mexico, the man before whom Peck
acknowledged the affidavit in this case. It would have been easy to have
him come, and to have asked him whether Peck did not swear to all these
affidavits in blank. They did not call him. They had him here once and
that was enough. They did not call him this time. They did not call
Rufus Wainwright, of Middlebury, Vermont. He is the officer before
whom John W. Dorsey swore to these affidavits. The gentlemen of the
prosecution say the affidavits were in blank, and yet they dare not put
upon the stand the notary before whom they were sworn to. It was not
because they did not think of it. It was not because they had not
the money. The Government had money by the million and agents by the
thousand. You recollect how they tried to prove the destruction of those
dispatches in the Western Union office. You recollect how they brought
here the superintendent, how they brought here agent after agent, how
they brought here the man that went around and collected the dispatches,
and the man that drove the wagon, and the man that owned the wagon, and
the boys that received the dispatches on the street, and the man in the
cellar that received them after they got there, and the man that bought
them, and the book-keeper that made out the check to pay for them.
They brought the man that receipted for them at the railroad, and they
followed them from the railroad to Holyoke, Massachusetts, and brought
the superintendent of the factory and the books of the railroad to show
they had arrived. They followed those dispatches from paper to pulp
and yet it never occurred to them to send to Middlebury and get Rufus
Wainwright. They never thought to have J. S. Taylor subpoenaed from New
Mexico. They had all the conveniences of modern civilization at their
command and yet they never thought of getting Wainwright or Taylor.

On page 3771 S. W. Dorsey swears that he never instructed Rerdell to get
any affidavits in blank. On pages 4126, and 4107, J. W. Dorsey swears
that he made none in blank; that he has no recollection of any such
thing. On page 2240, Rerdell swears that he had a conversation with
S. W. Dorsey about getting blank affidavits. On page 3771 S. W. Dorsey
denies it. On page 2241 Rerdell swears that S. W. Dorsey instructed him
to make up the affidavit on route 41119 and gave him the per cent, of
the increase of pay. What does he say there? From one hundred and fifty
to two hundred per cent.

Mr. Merrick. That was afterwards corrected.

Mr. Ingersoll. I thank you for the suggestion. That happened on Friday.
We adjourned until the next Monday morning. He came in the next Monday
morning, and he said that he had made a mistake, and that it ought to
be from one hundred and fifty to two hundred and fifty per cent. I
immediately went and got the affidavits on the Toquerville route,
because I said the percentage must be over two hundred per cent, in that
affidavit or he would not have changed. I found in the affidavit that
it was two hundred and fifty-five per cent., and I found that was why he
changed. I followed that out, and I found that was the same route upon
which Mr. Rerdell stole nearly five thousand dollars, according to the
testimony of S. W. Dorsey, and Rerdell did not deny it. So much for
Toquerville and Adairville. We will come to it again perhaps.

Let me give the pages where all these matters are found. On page 3772
Dorsey denies the conversation about the affidavits, and also on page
3773. Rerdell's, change of his evidence will be found on page 2277.

On page 2243 Rerdell swears that while he was in jail S. W. Dorsey had a
key to what he called his, Rerdell's, office. On page 3735 S. W. Dorsey
swears that he never had a key to Rerdell's office, and that he never
was in the office but twice, both times with Rerdell, and that he never
took a paper out of the office except what Rerdell gave him. It
will also be remembered that when Rerdell was asked in his
examination-in-chief whether anybody had a key to his office he replied
that S. W. Dorsey had a key to his office. He did not at that time state
that his wife had a key. Why? Because he wanted it understood that S. W.
Dorsey was the only person that had a key, and that S. W. Dorsey, while
Rerdell was in jail, went to that office and opened it and robbed it.
On cross-examination I made him swear that his wife had a key, and we
afterwards found that his wife went there. He knew she had a key.
Still, in his cross-examination, when asked who had a key, he said S. W.
Dorsey. What was that for, gentlemen?

So that you would Infer that S. W. Dorsey was the only person who had a
key, and that he went there and robbed that office, as I said before.
On pages 2634 and 2635 Mrs. Cushman swears that she went to Rerdell's
office with Mrs. Rerdell. When? About six o'clock in the morning. And
that they found the office open? No. They found the office locked, but
found papers in a confused condition, and took away some papers. They
were there about fifteen minutes. Recollect this was the third morning
that Rerdell was in jail. Rerdell went to jail Monday evening. That made
the visit of Mrs. Cushman and Mrs. Rerdell on Thursday morning, and they
went there at six o'clock. Keep that in mind. Rerdell got out of jail on
Friday. George A. Calvert, the janitor, visited every room frequently.
His testimony is on page 2672. He swears he found the door of Rerdell's
room unlocked. When? The day before Rerdell got out of jail. What time
of day? In the morning. What morning was that? Thursday morning. When
did Rerdell get out of jail? Friday morning. When did Mrs. Rerdell and
Mrs. Cushman visit the room? Thursday morning. What time in the morning?
Six o'clock. When did Calvert find the room open? That same morning.
The women swear that when they went there the room was locked. Now the
question arises, who opened it? The women. That is all there is to that.

Mrs. Rerdell, on page 2635, swears she got the key on the second day
after Rerdell's incarceration, in the evening. That would be Wednesday
evening. She used it the next morning, Thursday.

On page 2247 Rerdell swears that on the 20th of December, 1878, Vaile
promised him a good salary. On page 4021 Vaile swears that he has no
recollection of any such promise. That is what they call corroboration.
On page 2348 Rerdell swears that in May, 1879, S. W. Dorsey said, "You
know that John is a man of very little judgment. He does not know how to
talk to these contractors." On page 3773 S. W. Dorsey swears that there
never was any such conversation.

On page 2249 Rerdell swears, "As secretary and manager, I kept the books
for a short time." On page 3636 W. F. Kellogg swears that he, Kellogg
had entire charge of Dorsey's books from the summer of 1872 to the fall
of 1879, and that nobody else ever made a scratch of a pen in those
books. On page 2270 Rerdell swears that Dorsey and Bosler were having
a settlement in New York and sent for the books, and that he took the
original books over and left them there, and that he went over to New
York in June, 1881, and saw both books there and brought the journal
over and left the ledger. On page 3955 Dorsey swears that the first
settlement he had with Bosler was in December, 1879, or January, 1880.
Rerdell swears that the time he got the copy made of his journal by the
Gibbses, was between Christmas, 1879, and 1880. Dorsey swears there was
not another settlement until November, 1882. The first settlement
being in 1879, and Rerdell swearing that he took the books over for a
settlement, shows that he did not have them here in Washington to be
copied at the time he says and at the time other people swear that they
copied them.

On page 3788 S. W. Dorsey swears that he never sent for any transcript,
and that he, Dorsey, referred to the route-book, and that Rerdell never
sent any such book or books as he claimed. On page 2271 Rerdell swears
that he gave copies of the journal to Dorsey in June, 1881. That was
the time that he made the affidavit. His language by any natural
interpretation means that lie handed those copies over to Dorsey at
the time he made the affidavit on the 20th of June, 1881. On page 3988
Dorsey swears that he did not, and on page 3785 he again swears that he
never had them. On page 3784 he again swears that Rerdell never brought
any book to him except the route-book. On page 2271 Rerdell swears that
Dorsey, on the 13th of May, 1879, him to make up a statement of the
routes showing the profits, and that he thinks he gave it to Bosler. On
page 3875 Dorsey swears that he never made up any such statement by his
direction, and that he never gave Rerdell such an order. Why should he?
According to Rerdell's own statement, in which there is not a particle
of truth, Dorsey, on the 13th of May, 1879, that very day, had written a
letter to Bosler, in which he told him about the profits, about how much
it had cost him, and about how much it would cost him, and about how
much the profits would be, and how much he paid to Brady. After writing
such a letter to Bosler, containing all the facts, why would he want
Rerdell to make up a statement that was already in the letter itself?
Nobody can answer. There is not genius enough in this world to make the
answer.

On page 2272 Rerdell swears that he saw 7 B, which is a petition, in
1879, and that there were three words in his own handwriting that were
not there when he first saw it, the three words being "and faster time."
He also swears that he was instructed to put them in by S. W. Dorsey. I
now say that Mr. Rerdell never wrote those three words. On page 783 it
appears that 7 B was filed April 18, 1879. On page 3786 S. W. Dorsey
swears that Rerdell's statement is false. I will now turn to the
testimony of George Sears about the petition, 7 B, which Mr. Rerdell
swears was altered by interlineation or the addition of three words,
"and faster time." The page is 829.

Here comes a witness of the Government, apparently a good and honest
man, and he swears that the words "and faster time" were in that
petition when he signed it. I will take his word for it. I will take his
guess as against the other man's oath.

On page 2273 Rerdell swears that he altered 11 B and 12 B by
instructions of S. W. Dorsey. Now, gentlemen, Stephen W. Dorsey got such
a momentum of crime on him and got running at such a rate that he could
not stop, and whenever a petition came in he had it altered without
reading it. It did not make a bit of difference what the petition asked
for. He just said to his clerk, "Look and see if there is not any line
you can add something to. I want something put in it, and I want it put
in now." Mr. Rerdell says he did these things without any thought. He
just made the changes as he was told, without considering whether it was
right or wrong. He told you here on the stand that at one time he was
requested to get a petition, and he had a lot of names on hand, and so
he just wrote a petition and stuck the names to it. He could not even
remember the route it was on. It was a matter of so little importance
that he did not charge his memory with it. He was told to get a petition
in the regular way, and instead of doing that he said he took some names
that he had and just wrote a petition and stuck the names on, because
that was easier; and it was a matter of so little importance he really
did not remember. He was like the gentleman in Texas who was tried for
murder, but did not remember the name of the man he killed; he did not
charge his mind with it.

Now for 11 B:

Hon. D. M. Key, Postmaster-General:

We, the undersigned, citizens of the State of Colorado, residing near
and getting our mail at Muddy Creek post-office, on route 38135, from
Pueblo to Greenhorn, respectfully represent—I never noticed before that
the "p" is interlined in the word "represent." I have no doubt that was
done by order of Dorsey—that it is necessary that the service on said
route should be increased from two trips per week to six trips per week,
and a faster schedule. This section of the country is being rapidly
settled by people of intelelgence, and we ask the increased service for
the benefit of us who have already made our homes here, and also as an
inducement to others to settle. We also request that the schedule time
be reduced so as to run from Pueblo to Greenhorn in eight hours, so that
citizens along the route may get their mail at a seasonable hour.

I have read the petition as it was in the first place. The Government
tells you that after that petition came here, and after it had been
submitted to Stephen W. Dorsey, he told his clerk to add in the first
part of the words "on quicker time;" and yet if he had read the last
paragraph he would have seen quicker time was there called for. Rerdell
says Dorsey told him to insert the words "on quicker time," and when I
read this last paragraph to him he was stuck. Then what did he say? When
he got into that little corner and was looking for a mouse-hole, he said
he didn't read it and didn't know it was there. Do you believe that a
man like Stephen W. Dorsey would deliberately have a petition changed,
would deliberately forge a petition, without knowing what was in it and
without knowing whether the necessity existed for changing it or not?
That falsehood has not even a fig-leaf to cover its absurdity.

Here is 12 B. It would not have taken long to have read that. Rerdell
said Dorsey had him put in the words "and a faster schedule." I will
read the last paragraph to that:

We also respectfully request and urge that the running time be reduced
so as to run from Pueblo to Greenhorn in eight hours, so that citizens
along the line may get their mails in a seasonable hour.

He says Stephen W. Dorsey, a man of sense, got that petition, read it
all over, and then told this fellow to put in "and a faster schedule"
when right in the next paragraph it asked for eight hours. A man who
will swear that way had rather tell a lie on ninety days' credit than
tell the truth for cash. Just look at it. That is what they call a
corroboration. The more you look at this testimony the more absurdities
you find. Every truth has an infinite number of signs. Every truth
has to fit an infinite number of things. Infinite wisdom could not
manufacture a falsehood that would stand the test of investigation.

On page 2272 Rerdell says, speaking of the three petitions, 7 B, 11 B,
and 12 B, "We," meaning S. W. Dorsey and himself, "had examined these
petitions together, and he," meaning S. W. Dorsey, "told me to put in
the clause for expedition." Now, 7 B was filed April 18. That is the day
he left for the West, and 12 B were filed on the 8th of May. If they
had them all at one time together, and if he and Dorsey had talked about
them, why were they not filed at the same time? Why was one filed April
18th and the other two on the 8th of May? That testimony of Rerdell's
will not do.

On page 2279 Rerdell says that he found among Dorsey's papers the
tabular statement, about the middle of April, 1879. the first column
was the number of the route; in the second the termini; in the third the
pay; in the fourth the anticipated pay by percentages, and in the fifth
the percentage to T. J. B., thirty-three and one-third, with the figures
carried out at the end of the column. He tells you that he had that
tabular statement when he first went to MacVeagh. That tabular statement
was in the handwriting of S. W. Dorsey. Yet the Attorney-General was not
satisfied. He wanted that backed up by a book not in the handwriting of
S. W. Dorsey. That will not do. Rerdell also tells you that at the time
he went to the Attorney-General he not only had that tabular statement,
but he had a letter-press copy of the original letter that Dorsey wrote
to Bosler on the 13th day of May, 1879. He had that letter, the original
of which was in Dorsey's handwriting, in which he admitted he had paid
Brady twenty thousand dollars. He had the tabular statement in Dorsey's
own handwriting in which he was to pay thirty-three and one-third
per cent, to Brady. Yet the Attorney-General did not think there was
sufficient evidence, and said, "You had better go to New York and steal
a book that Dorsey never wrote a word in." Oh, no; that will not do.

On page 2280 Rerdell swears that he lost that memorandum. I guess
he did. On page 3785 S. W. Dorsey swears that he never made any such
memorandum. On page 2280 Rerdell swears that he employed Gibbs and wife
to make a true and correct copy of the books in March, 1880; that he was
directed by S. W. Dorsey to send him a true transcript of the books in
order to settle with Bosler, and that Gibbs and wife copied the journal
and ledger, and that he sent the copy to New York. On page 3788 Dorsey
swears that he never heard of the employment of Gibbs and wife, and
that he never received any such books or transcripts. On page 2644
Gibbs swears that his wife copied only the journal, not the ledger. Yet
Rerdell swears that he copied the journal and the ledger. On page 2644
Gibbs again swears that Rerdell brought him one book. What color was
it, red, brown, or black? Rerdell says he took him two red books. Gibbs
swears he got one brown book or one black book. That is what they call
corroboration. On page 2320 Rerdell swears with regard to the paper 2
A, that the words, "schedule thirteen hours" were written by Miner. If
those words, "schedule thirteen hours," were not written by Rerdell,
then—they were written by somebody else. [2 A handed to Mr. Ingersoll.]
I guess this is the petition that was fixed up. It looks as if it
had been to a hospital. Rerdell says Miner wrote the words "schedule
thirteen hours." Just look at that word "thirteen," gentlemen.

You have no idea how it affects your imagination and brain to be
indicted seven times. On page 2209 Boone swears with regard to this same
paper and the same words, that there is nothing in the handwriting to
indicate that it was written by Miner; that it is a back-hand; a changed
handwriting. On page 4186 Miner swears that it is absolutely not true;
that the words "schedule thirteen hours" are absolutely and positively
not in his handwriting, and further that he never filed the petition.
Gentlemen, evidence of handwriting is very unsatisfactory necessarily.
Men do not always write the same. The same man does not always write the
same hand. There is the difference of pen, the difference of ink, the
difference of paper, the difference of position, and the difference,
too, of the man's feelings. At one time he feels in splendid health and
at another time he may be tired and worn out. The paper may not be in
the same position. The slope of the desk may be different. Countless
reasons change the handwriting of a person, and when a man swears that
certain handwriting is or is not another's handwriting he must swear on
the general appearance; he must swear on the impression that it first
makes upon him.

I know Mr. Smith and I know Mr. Jones, but it may be that I could not
describe the differences in the faces of the two men so that a stranger
could afterwards tell them. Yet I know them. It is the effect of all the
features upon me. I cannot say it is because of the ear of one, or his
nose, or his mouth. I know the combination. I remember the grouping of
the features and the form, and that is all I remember. If I am shown a
paper and asked, "Is that Mr. Smith's handwriting?" I say it is, or I
say no. Why? Because it looks like it or it does not look like it. I
cannot recognize it because an "e" is made in a certain way or because a
"d" is turned in a certain way, because the next day he may turn it the
other way. You have got to go upon the general impression. On page 2336
Rerdell swears that the oath on route 38140, marked 5 E, was filled in
by S. W. Dorsey; that the word "twelve" was written by him, Rerdell,
after it was filed, and was written because Turner told him that the
schedule must be twelve hours; that Turner handed him the oath and he
thereupon changed the "fifteen" to "twelve." On page 3355 Turner swears
that he has no knowledge of any alteration in any affidavit. On page
3793 S. W. Dorsey swears that he did not know there was any such
affidavit; and he also frequently swears that he never asked Rerdell
to change any affidavit that had been filed, and that he never gave any
such orders. These gentlemen find one affidavit about which we did not
ask Mr. Dorsey particularly and they say, "You have not contradicted
that." When a man swears that he never gave an order about any
affidavit, that covers every affidavit.

On page 2337 Rerdell swears that the oath marked 20 F, on route 38145,
was filled in by him after it was signed, under the direction of S. W.
Dorsey. On page 3793 Dorsey denies giving any such directions.

On page 2338 Rerdell swears that blanks in the oath 22 F, the second
oath, were filled in by S. W. Dorsey, but will not say whether before or
after execution. On page 3771 Dorsey says he does not remember doing
any such thing; but certainly there is no evidence that Dorsey did this
after the affidavit had been made.

On page 2339 Rerdell swears that the words "ninety-six" in the petition
14 H, were written by Miner. Boone, on page 2709, declines to say that
Miner wrote them. On page 4273 Miner swears that the words are not in
his handwriting, that he never wrote them. On page 2298 Rerdell swears
that he signed a check "S. W. Dorsey by M. C. Rerdell," and that he had
that check at home. It may be that is one of the checks for June drawn
upon Middleton's bank that we could not find.

On page 2340 Rerdell says that the oath marked 8 I, on route 44140, was
filled in by him in Washington after it was signed and sworn to, under
the direction of S. W. Dorsey. On page 3792 S. W. Dorsey denies that he
gave any such directions.

On page 2342 Rerdell swears that S. W. Dorsey signed the name of J. M.
Peck to the warrant 55 G. I have forgotten the day that the draft was
given, but I think it was the 2d day of August. It was paid on August
25, 1880. All I have to say is that there was an abundance of time for
that draft to go to New Mexico and to be signed by John M. Peck; there
was thousands of time. It makes not the slightest difference who signed
the name of John M. Peck to that warrant. The question is, was that
money coming to John M. Peck? No. John M. Peck had sold out his
interest. He was not entitled to one dollar, and it made no difference
who signed his name to the check. Does it show that there was a
conspiracy if Dorsey signed his name after Peck had sold out his
interest in the routes? Any draft coming to him came to him simply as
the trustee and the draft was for the benefit of the person who bought
him out. Suppose Mr. Dorsey had signed his name. Would that prove that
there was any conspiracy? It would simply be in accordance with his
right as the matter then stood. He was entitled to that draft and Peck
was not entitled to that draft. Why? Because he had bought him out and
paid him ten thousand dollars for his interest. That was all. Yet they
would claim if that draft happened to be indorsed by Mr. Dorsey that it
would be evidence of a conspiracy entered into in the fall of 1879.

On pages 2348 and 2361 Rerdell says that figures were inserted in all
affidavits given him by S. W. Dorsey, except on route 41119, and that
Dorsey told him, Rerdell, to put them in the blanks. On page 3793 S. W.
Dorsey denies that.

On page 2223 Rerdell says that in August, 1878, he had a talk with
Miner, who said that they could do nothing while Boone was in the
combination; that Brady was hostile to Boone, and that Boone's place was
to be taken by Vaile; and that Miner asked his opinion about Vaile,
and asked what Rerdell thought about Dorsey's approving it, adding that
Vaile was very close to Brady. On page 4177 Miner swears that he has
no recollection of the conversation, and does not believe any such
conversation ever occurred.

Ah, but they say that when a paper was handed to Mr. Miner, an
affidavit, for instance, he could not give you the history of it; he
could not tell you where he was when he wrote it; he could not tell you
where he was when he filled it. I would not have believed his testimony
if he could. He had to take care of some ninety-six routes. Upon those
routes there were numberless papers, notices from the department,
notices of fines and deductions, of remissions, and everything of that
kind. On each route there were probably a hundred papers, and may be
more—petitions, affidavits, and papers of all descriptions. If a man
should stand up here five years afterwards and pretend that he knew the
history of each paper, I would know he had not the slightest regard for
truth.

Mr. Miner said when he was shown a paper, "I don't remember ever having
seen that paper before; I don't remember when it was written." That was
the truth. If he had wished to stain his heart with perjury he could
have said, "Yes, I remember it. I know absolutely the time I wrote it.
I know I sent it to New Mexico. I know it was filled up before it was
sworn to"; but he was honest enough and he was brave enough to face the
truth and say, "I don't remember," and I respected him for it when he
did it. Whenever you hear the truth, as a rule the first thought is,
"May be it won't do." But if it is the truth, the longer you think about
it the better it seems, while if it is a lie, the longer you think about
it the worse it gets. It would have been, apparently, to Mr. Miner's
interest to say, "I remember it perfectly," but the man had honor enough
to tell the truth. And when you come to investigate his evidence it
sounds much better than though he had pretended to remember time and
place.

I call your attention to page 2446; that is about the affidavit.

On page 2384 Rerdell speaks of the charges made to Samuel Jones and
James B. Belford for two thousand dollars. Then Mr. Bliss in his speech,
which I will come to after a while, says that Mr. Rerdell spoke about
a charge to J. B. B. He never did, never. He said James B. Belford. I
started the J. B. B. business. I was the first one who ever said it, and
Mr. Rerdell never swore J. B. B. Then they sent out to Denver to get a
fellow who had the same initials. I will come to this man after a while.

On pages 2429 and 2430 Rerdell swears that he had two balance-sheets
of the books, made by Donnelly; that he showed them to MacVeagh and
Woodward. How does it happen that Woodward was not sworn about it?
Nothing would have been of more importance, if they wished to prove
the existence of the two red books, than to prove by Woodward that Mr.
Rerdell, in June, 1881, showed him copies of those balance-sheets or the
balance-sheets themselves. They did not bring Mr. Woodward on the stand.
Why? Mr. Woodward, in my judgment, had he come upon the stand, would
have sworn to the truth. Rerdell says, "I do not know where they are."
Then he paused. Then I saw the working of his mind just as plainly as
though his skull had been opened. He got himself together and swore
that he gave them to Dorsey in July, 1882. He had to get them out of his
hands some way.

On page 3736 S. W. Dorsey swears that he, Rerdell, did not give him any
balance sheets.

On page 2434 Rerdell swears as to the papers he gave to Dorsey—the
original journal, and copy of the Oregon correspondence made by Miss
Nettie L. White. Miss White was not called. He gave these, he says, to
Dorsey, July 13, 1882. On page 2793 Dorsey swears that he did not give
them to him, nor did he give a paper of any kind.

On page 2461 Rerdell is asked if he did not admit to Judge

Carpenter, in January, 1882, that he had a memorandum written by
himself, which he showed to James and MacVeagh, and that he made it so
much like Dorsey's handwriting that he did not think anybody could tell
it. What was his answer? "I may have done so." Honest man!

On page 2462, in answer to the question, "Did you not tell Carpenter
that you brought no book from New York?" the honest man answered:

Very likely I said I brought no book over from New York.

On the same page, in answer to the question, "Did you not tell French
that you were trying to entrap James?" he admits that it is likely he
was.

On page 2463 he admits that he may have told French that he had learned
to imitate the handwriting of Dorsey so well that Dorsey himself could
not tell the imitation; and that he wrote that memorandum in pencil
because he could the more easily deceive. Honest man!

Mr. Bliss holds S. W. Dorsey up to scorn because he endeavored to turn
two men out of the Cabinet on the testimony of Rerdell; and yet he is
trying to put four men in the penitentiary on the same oath. Do you
not think that it is better to get a man out of the Cabinet than to put
another into the penitentiary? And do you not think it is better that a
man be put out of office than that he be put into the penitentiary, his
family destroyed, and his home left to ruin, upon the oath of a man who
swears that the oath was a lie? Dorsey was an awfully wicked man to try
to get Mr. MacVeagh out of office on Rerdell's testimony. But now
they turn around and want to put Mr. Vaile and Mr. Miner into the
penitentiary on the same testimony. The other testimony was the best,
because we did not promise him immunity. I will come to it after a
while.

On page 2465 Rerdell swears that he did not have any pencil memorandum
that he showed to MacVeagh, claiming that it was in the handwriting of
Dorsey, and was asked, "Did you not tell Bosler that you had?" What does
he say? "Possibly I did." "Did you not tell Bosler that you wrote it?"
"Possibly I did."

S. W. Dorsey swears on page 3810 that Rerdell told Bosler that it was in
the waste-basket, and Bosler took the pieces out and put them together.
Rerdell says he had written it, and in pencil, so that it would look
more like Dorsey's handwriting. Why did you not ask Bosler about it,
gentlemen, when you had him on the stand to prove your letter? Even Mr.
Bliss, in his speech, asked, "Why didn't they call Bosler?" Why didn't
you have the fairness to tell all the circumstances? I will tell them
all when I get to that part of it. Why did you not tell them that you
had looked all through Mr. Bosler's books?

On page 2466 Rerdell swears that he did not get that memorandum out of
the waste-basket, but got a note from Mac-Veagh, and that Dorsey was
present.

On page 3810 Dorsey swears that it was a pencil memorandum imitating his
(Dorsey's) hand closely.

On page 2466 Rerdell admits that he very likely told Bosler in June,
1881, that he had no book on the train and brought none from New York.
In answer to my question, he says, "Possibly I did," or "Probably I
did," tell Bosler. I cannot bring other witnesses to contradict him when
he admits that he did. That is enough for me.

On page 2467 he admits that he very likely told Judge Wilson about the
affidavit; that if he told him anything, he told him that no such book
existed, and that there was no necessity for any book except an expense
book.

On page 2469 Rerdell swears that he had a copy of the day-book and
ledger in June, 1881, in Dorsey's office; that Dorsey took them that
day, and that they had been there ever since they were made, to be
carried to Congress. Then he began to gather his ideas, and he says:

Hold on. I am mistaken. These books were all sent over to New York
before that, in the summer of 1880, when I carried the originals over
for the last settlement I was present at, between Dorsey and Bosler.

There was no settlement in 1880, the time he speaks of. Mr. Merrick then
says:

Q. There were two sets of those copies?

That would be four copies and two originals.

A. No, sir.

On page 3955, S. W. Dorsey swears that he had the first settlement
with Bosler in December, 1879, or January, 1880, and had no subsequent
adjustment until November or December, 1882; no settlement between those
dates. Yet Rerdell says that he took those books over in the summer of
1880 for a settlement, when there was no settlement, and at the same
time carried the originals. A moment before he had sworn that the
originals were there in the office in June, 1881.

On page 2470 Rerdell swears that he did not give the books to Dorsey in
1881.

On page 2447 he swears that he did not have the balance-sheet in New
York; that he had it in the office in June, 1881.

On page 2479, Rerdell, in speaking of the pencil memorandum, was
cornered, caught. He said, "I have kept it as a voucher." Then finally
he admits that it was not his property, but was the property of Dorsey;
and the last admission he made upon that subject was, "I stole it."
He says that while he was in jail somebody got into the office and
destroyed his papers. And yet, on page 2480, he tells that the first
time it ever occurred to him to use that pencil memorandum was after the
first trial was over. Can you believe that? He was trying to steal it on
the 13th of July, 1882; was trying to go over to the Government on
the 5th day of July, 1882, and did not think that he had that pencil
memorandum! Writing a letter on that day to Dorsey; giving him notice
that he was going to desert him; saying in that very letter that he had
been persuaded by Bosler to make the first affidavit; saying that he was
making preparations to go to the Government, was going to set himself
right, and yet did not remember the pencil memorandum! Why? Because he
manufactured it afterwards. He says that within a day or two after he
was out of jail he found this paper a second time. He found it before,
and laid it carefully away as a voucher. Then he lost sight of it. Then
he was trying to sell it to the Government, and he forgot it; trying to
blackmail Bosler and Dorsey, and forgot it. When he got out of jail he
found it. That will not do. How does he say it got to his house? His
wife carried it from the office while he was in jail. And yet he would
have us believe that Dorsey broke into that office and stole all the
papers. And yet he says that was in the office, and Dorsey did not take
it. It will not do. He manufactured that paper after that time.

On page 2481 Rerdell swears that he did not know that he had that paper
at that time, at the time he says his wife got the papers. I say he did
not; I say he made it afterwards.

On page 2490 Rerdell swears that he had those red books in the office
at 1121 I street; that he never made any effort to conceal them. And
yet Kellogg never saw one of those books; never saw Rerdell working upon
them, and never saw them in the office.

On page 2491 Rerdell swears that he thinks Kellogg did some work on
those red books; that Kellogg helped him (Rerdell) make the first
entries. On page 3636 Kellogg swears not only that he did not help him
to make those entries, but positively swears that he never even saw any
such books.

On page 3635 Kellogg swears positively that Rerdell did not keep
any books, but a private expense-book and a route-book; and that he
(Kellogg) never saw any other books; that he never saw a ledger or
journal in red leather, kept by Rerdell. He swears that he himself kept
the three books (the journal, ledger, and cash-book,) and that Rerdell
never made an entry in them.

On page 2512 Rerdell swears that he never imitated Dorsey's handwriting,
or tried to, in Kellogg's presence. On page 3636 Kellogg swears that he
saw him do it.

On the same page (2512) Rerdell swears that he never signed Dorsey's
name to show Kellogg that he could imitate it. On page 3636 Kellogg
swears that he did do it.

I have just given you a few, gentlemen, of the corroborations of
this man Rerdell. Recollect that you cannot believe him unless he is
corroborated. If you believe him at all you have got to believe all,
unless you believe he is mistaken. Where a man comes on the stand as an
informer—and I do not call him an informer—even in that capacity he
has to be taken altogether or not at all.

Now, with all these contradictions upon his head, I will now come to the
affidavit of July 13, 1882. You will remember that I read you the letter
of July 5, in which he says that Bosler got him to make the affidavit
of 1881. At page 2374 Rerdell gives an account of this affidavit. Dorsey
got him in Willard's Hotel, locked the door, and had him. Now, he said
to him, "Mr. Rerdell, I will tell you what I am going to do with you:
I am going to have you prosecuted for perjury." Let us imagine that
conversation. Rerdell replies, "What are you going to have me prosecuted
for?" "For making the affidavit of June, 1881." "Why," says Rerdell, "in
that affidavit I swore you were innocent." Says Dorsey, "Don't you know
you swore to a lie? Do you think I would stand a lie of that kind,
sir? Do you think I will allow any man willfully, maliciously, and with
malice aforethought, to swear that I am an innocent man? I will have you
arrested to-night, sir." "Well," says Rerdell, "my good God, ain't there
any way I can get out of this?" "Yes; make another affidavit just like
it. Now, sir, you have perjured yourself and I will arrest you for
perjury unless you do it again." "Well," says Rerdell, "when I get that
done you will have two cases against me." "I can't help it," Dorsey
says. "Is that the way you treat a friend? I swore to that lie from pure
friendship. Don't you remember you took me by both hands and begged me,
for God's sake, and for your wife's sake and your children's sake, to
make that affidavit? And now are you going to be such a perfect devil as
to have me arrested for perjury for making that same affidavit?" Dorsey
says, "Yes, sir; that is the kind of man I am." "Well, but," says
Rerdell, "don't you know the trial is going on now? They are trying to
prove, now, that you are guilty, and in that affidavit of mine I swore
you are innocent, and how are you going to prove a man guilty when
you swear that he is innocent?" Dorsey says, "That is my business, not
yours. I am going to have you arrested." "But," says Rerdell, "you had
better hold on, I tell you." "Why?" "I have got the red book that I got
in New York." Dorsey says, "I don't care." Rerdell says, "I have got
the pencil memorandum that you made for me to open the books upon, and
charge William Smith with eighteen thousand dollars. And you wrote John
Smith first, and I changed it to Sam Jones, don't you recollect, as
otherwise there would be two Smiths? And there is the account against J.
H. Mitchell, and J. W. D., and cash, and profit and loss." Dorsey
says, "I don't care about that. I am not going to allow a man to commit
perjury. I am going to have you arrested." Rerdell says, "You had better
not have me arrested." Dorsey says, "Why? What else have you got?" "I
have got a copy of the letter that you wrote to Bosler on the 13th of
May, 1879, which you say that you paid twenty thousand dollars to Thomas
J. Brady. That copy was made by Miss Nettie L. White." "Do you believe
I care anything about that? You have perjured yourself, and it is no
difference to me whether it was in my favor or not. Justice must be
done, and I am going to have you arrested." Rerdell says, "You had
better not. I have got a tabular statement in your handwriting, Dorsey,
where you had a column for the amount due and the amount received, and
another column for thirty-three and one-third per cent, given to Brady,
and then at the top, in your handwriting, 'T. J. B., thirty-three and
one-third.'" Dorsey says, "I don't care what you have got." Rerdell
says, "That ain't all I have got, Dorsey. I tore out of your copy-book a
copy of the letter I wrote to Bosler on the 21st or 22d of May, 1880, in
which I told him that I had gone to Brady, and that Brady said you were
a damn fool for keeping a set of books, and suggested to me to have some
copies made, and I had the copies made, and I can prove the copies by
Gibbs if he does not try not to remember that he made them. Now, go on
with your rat-killing; go on with your perjury suit." Dorsey had him
already locked up there, don't you see? But Dorsey was bent on having
that man arrested for perjury because he had sworn that he (Dorsey) was
innocent. Dorsey was implacable.

What else did he do? He put his hand in his pocket and said, "Do you see
those letters to that woman?" Then, sir, when he saw the handwriting he
was like that other gentlemen that saw the handwriting on the wall, and
he began to get weak in the knees, and says, "Dorsey, I hope you are not
going to have me arrested for perjury. I am willing to do it again right
now, on the same subject."

Now, it turns out that at that time Dorsey did not have those letters.
Dorsey swears that he never got those letters until after Rerdell was
put upon the stand. And after he swore that, the Government had the
woman to whom the letters were written subpoenaed. Why did they not
place her on the stand? That is for you to answer, gentlemen. That is
the affidavit of July 13. Recollect, there was a trial going on at that
time in which Dorsey was insisting that he was innocent, and although
Rerdell had sworn that he was, he was going to have him arrested right
off.

What else did he have against Dorsey at that time? Now, says Rerdell,
"Dorsey, don't you have me arrested for perjury. I have got a memorandum
of that mining stock that was to be given to McGrew and Tyner and Turner
and Lilley for corrupt purposes."

What else did he have? After he had agreed to make the affidavit, Dorsey
wrote out what he wanted him to swear to, in pencil, and gave it to
him. And when he got his liberty, when he walked out of that room a free
citizen, he had all the papers I have spoken of not only, but he had in
his possession a draft, in Dorsey's handwriting, of the affidavit Dorsey
wanted him to make. He made the first affidavit from friendship; the
second from fright. You know he never took a dollar for an affidavit.
He was not that kind of a man. You might get around him by talking
friendship or you might scare him, but you could not bribe him;
he wasn't that kind of a man. Armed with all these papers he was
frightened; so he made the affidavit of July 13—

Now, let us see. He admits that—I will not say every word, but the
principal things in the affidavit of June, 1881, are false. He swore to
them knowing them to be false. But he tried to get out by saying he did
not write them all. Writing is not the crime. The crime is swearing that
they are true when they are not true. It does not make any difference
who wrote it. For instance, you swear to an affidavit, and you
afterwards say, "I did not write it." "Did you know the contents?"
"Yes." "Did you swear to it?" "Yes." What difference does it make who
wrote it? And yet he endeavors to get behind that breastwork and say, "I
did not write all that affidavit; I only wrote part of it. What I wrote
was true, but what I swore to was not." That will not do.

So the affidavit of July, 1882, he now swears was a lie. But he gives a
reason for writing that, that you know is utterly, perfectly, completely
false. You know that Dorsey never threatened to have him arrested for
perjury because he had sworn in favor of Dorsey. You know it, and all
the eloquence and all the genius of the world could not convince you
that at that time Rerdell was afraid that Dorsey would have him arrested
for perjury. No, sir.

Now, let us take the next step. Mr. Rerdell testified, on page 2275,
that this letter (32 X) was received by him in due course of mail in
1878. Upon being asked whether he did not know that S. W. Dorsey was
here in Washington at that time, he replied that he knew he was not. I
will read it to you, gentlemen:

Chico Springs, P. O.

Mountain Spring Ranch, Colfax County, New Mexico,

"April 3, 1878.

"M. C. Rerdell, 1121 I Street:

"Dear Rerdell: I wish you would get fullest information in regard to all
the new post-office lettings and keep posted as to the schemes going
on in the department. There are certain routes we want advertised and
others we do not. I shall be in Washington as soon as the 12th unless
something unexpectedly happens,

"Faithfully,

"DORSEY."

Q. What Dorsey was that?—A. That is S. W. Dorsey's handwriting.

Q. And signature?—A. Yes, sir.

There is where he first speaks of it. At the time that letter was
introduced, or in a little time, gentlemen, they also introduced the
envelope. I do not know that I should have suspected the letter if they
had not introduced the envelope. Whenever there is an effort to make a
thing too certain I always suspect it. When that Morey letter was gotten
up, what made me suspect it was that they had the envelope, and I said
to myself, "Why did they want the envelope if it was clearly in the
handwriting of Garfield? What difference did it make whether it was sent
to Morey or to somebody else? What difference did it make when it came
from Washington?" The only question was, "Did Garfield write it?" And
upon that subject the envelope threw no light. When a man feels weak and
thinks that other people will know what he does not want them to know,
then it is that he wants to barricade and strengthen before the attack.
So they got up this envelope, and when I looked at that it did not
look to me as if that stamp had been through the mail. I noticed the
handwriting of "Chico Springs, N. M.," and then I noticed the 3 or the
B on the postage stamp, and then I knew that the man who wrote "Chico
Springs" never made the letter or figure on that stamp. It is utterly
impossible for the man who wrote that "Chico Springs" to make that mark
on the stamp. This stamp looked awfully clean, and I said, "Well, I
wouldn't wonder if that was an envelope used here in the city which has
been got through the mail in some way." They had it stamped on the back
and I said, "Perhaps that was written in 1879." No. You see, if it was
not written in 1879 it did not do any harm, because in 1879 Dorsey was
not a member of the Senate. Having gone out on the 4th of March, 1879,
that letter was dated in April, 1879, why then there was no harm in his
writing to Mr. Rerdell and telling him to look after the mail business.
But if it was written on the 3d of April, 1878, it went far to show that
Dorsey was personally interested at that time in mail routes. You will
notice the printed date, April 3, 1878. They introduced that letter.
I noticed that that envelope was a funny looking thing, and that the
writing on it did not correspond with the mark on the stamp. I noticed
also that upon the back they had the stamp. I do not know how they got
it. When the Post-Office Department has possession of a paper they can
put almost anything on it.

When I said to Mr. Rerdell on cross-examination, not knowing anything
about the letter, "Was that not written in 1879?" he said, '"No, sir."
Said I, "Don't you know, as a matter of fact, that Dorsey was not here
on the 3d of April, 1879?" He said, "As a matter of fact I know that
he was here on the 3d of April, 1879." "Don't you know, as a matter of
fact, that he was here on the 3d of April, 1878?" He says, "I know as a
matter of fact that he was not here on the 3d of April, 1878; he was at
Chico Springs." He knew as a matter of fact that he was here in 1879,
and he swore that so as to preclude the possibility of his having
written the letter in 1879. And he swore to the positive fact that he
was not here on the 3d of April, 1878, so as to show that he wrote him
that letter from Chico Springs. They wanted some letter from Dorsey in
1878, to show that he was personally interested in these routes while
in the Senate. They submitted that letter to Mr. Boone, who was their
witness. He looks at it and he tells you that Dorsey did not write that
letter. A clear forgery. Whom else do they bring now? They leave it
right there, and by that admit that Rerdell forged that letter. Mr.
Boone, their witness, swears it. Nobody swears to the contrary except
Rerdell. Boone threw the letter from him contemptuously, and said, "That
is not Dorsey's handwriting," and they dare not bring another
witness. The country is filled with experts, gentlemen, who know about
handwriting; the United States had plenty of men and plenty of money,
and they never brought a solitary man.

Now, gentlemen, do you want to know how this fellow got caught? I will
tell you. There is the letter, and they dare not put a man on the stand
to swear that it is in Dorsey's handwriting. Look it all over. But I
want to tell you how Rerdell got caught about Dorsey being present on
the 3d of April, 1878, and I might as well tell you how I found it out.
I do not want to pretend to be any more ingenious than I am. I found
it out because I made the same mistake myself. I stumbled on that same
root. I hit my toe of heedlessness on the same obstruction. I went up
to look at the Senate journal. I opened a book to see whether Dorsey was
here on the 3d of April, 1878. You see at the bottom there of the title
page, Mr. Foreman—Washington: Government Printing Office. 1877.

You know I was not looking for the book of 1877, so I shut that book up.
I then took the next book and opened it, and it said at just the same
place:

Washington: Government Printing Office. 1878.

I thought it was the book. So I looked over here, and I found that there
was no session of the Senate in April, and I said to myself, "Is that
possible that there was no session in April, 1878? Why, there must have
been." But the book said "no." I looked back here, and it still said
1878. Then I happened to look back to this book that said 1877, and
it said that the session commenced December 3d, 1877, and consequently
April 3d, would be found in the book marked 1877 on the title page. So I
turned right over here and looked up at the top and saw the date, April
3d, 1878. He was looking for the 1878 book, and that included April,
1879, and when he got to April, 1879, there was no session of the
Senate. So he came right in here and swore that Dorsey was not here in
1878, but that he was here in April, 1879. I looked in that book and
found that Mr. Dorsey, on the 3d of April, 1878, was appointed by the
Vice-President on a committee of conferees, on the part of the Senate,
together with Senators Windoin and Beck, and I saw exactly how Mr.
Rerdell made his mistake. He opened the book, and at the bottom-of the
title page it said 1877. That was not what he was looking for. He was
looking for 1878. And the book that said 1878 showed that in April the
Senate was not in session. The book that said 1877 showed that in April
the Senate was in session on April 3d, 1878. That man thought he was
backed by the records of the Senate, and thereupon he manufactured
that letter. And that is the letter sworn by Boone not to be in the
handwriting of S. W. Dorsey. Now, gentlemen, there is nothing in this
world that a man would be prevented from doing, for its baseness, who
would do that.

There is more evidence than this. I asked Mr. Rerdell, "When you got
that letter did you understand it?" He said, "No." "Did you do anything
on account of it?" "No." "Did you know what it meant?" "No." And yet
he has the temerity to swear that he received that on the 3d of April,
1878.

How did he come to spell the name Reddell? I will tell you. On page 2275
he had a letter to go by. That is the very page on which the Government
puts in that letter. This letter is a letter of introduction. When
Rerdell manufactured that letter he had this letter of introduction to
go by:

Hon. J. L. Routt, Denver:

My Dear Governor: I wish to introduce my friend, Mr. M. C. Reddell.

It was written Reddell in that letter, and when this man wanted to
manufacture one he had one in his possession that Dorsey wrote about
that time (April 14, 1879), and he noticed that in that he spelled the
name Reddell. So when he wanted to get up a fraud he spelled the name
Reddell. That is the way. There is no pretence that Dorsey wrote that
letter, and they dare not bring an expert or another man on earth
acquainted with the handwriting of Dorsey and submit it to him and
expect him to say that that is the handwriting of S. W. Dorsey. So much
for that.

Now, it is claimed that while Torrey was writing up Dorsey's books,
having in his possession the check stubs, he was uncertain as to whether
a charge was twenty-five dollars or twenty-five cents, and he thereupon
sent to Rerdell to ascertain the true state of the account, so that
he might open his books. Thereupon Rerdell made the calculation in the
evidence marked (94 X,) and Donnelly wrote under it that it was right.
Donnelly made that little certificate at the bottom. Here is
the important paper [submitting 94 X to the jury], another piece
manufactured out of whole cloth, not whole paper. Now, I ask a few
questions about this. In the first place, they knew that unless this was
corroborated it was good for nothing, and we find on it:

Lewis Johnson & Co., note due 28th October, three thousand dollars.

Was that note at Lewis Johnson & Co.'s? Why did they not bring some of
the officers of that bank, if there was such a note for three thousand
dollars there? But no one was brought. And yet they knew that everything
coming from Rerdell must be corroborated.

If Rerdell had come to Donnelly to find what the account was, how did
it happen to be in Rerdell's handwriting before it got to Donnelly?
Donnelly wrote this certificate at the bottom. Rerdell had written
all the facts before. If he went to Donnelly to get the facts, how did
Rerdell happen to write this before it got to Donnelly? It is like me
wanting to get some information from a man, and writing the information
before going to him.

Now, if Donnelly wrote that after Rerdell had written, where did Rerdell
get the information? If Donnelly had the books, Donnelly should have
given the information. If Rerdell had the books, why did he want to
go to Donnelly for information? And if Donnelly had the books, how did
Rerdell write the information before he went to Donnelly? Then if he
wanted that information for Torrey, why did he not send it to him? How
does it happen that Rerdell wrote out the information for Donnelly, then
got Donnelly to certify it, because Torrey had asked it? And then how
does it happen that Rerdell kept it? It seems to me that that ought
to have been sent to Torrey. Torrey wrote to Rerdell for information;
Rerdell wrote it all down, and then got Mr. Donnelly to say it was so.
If Donnelly had the books, Donnelly should have given the information.
If Rerdell had the books, he did not have to go to Donnelly for
information. That is another manufactured paper. As I say, how does it
happen to be in the possession of Rerdell? They claim that it was for
Torrey's benefit. I believe when Torrey was on the stand they asked him
if there was not some dispute about thirty-five cents. Now they bring
that here to show that there was a dispute about twenty-five cents. Was
there any reason for supposing that it was twenty-five cents? No,
except that it was in the dollar column, that is all. Of what use was
Donnelly's statement after Rerdell had made the calculation? Nobody on
earth can tell why that was given. Why did they not bring some of the
books or clerks from Lewis Johnson & Co.'s Bank to show that there was a
note there in October for three thousand dollars.

There is another little matter, a conversation between Rerdell and
Brady. Rerdell said he had a conversation with Brady in which he told
him about the Congressional committee; that he was summoned to bring his
books. Brady was astonished that Dorsey would be "Damn fool enough to
keep books," and suggested to have them copied. If this is true, Brady
at that time made a confident of Rerdell. If it is true, Brady at that
time admitted to Rerdell that he (Brady) was a conspirator; that he had
conspired with Dorsey. And yet Brady says that he never had but three or
four conversations, I believe, with this man, and Rerdell himself
admits that he never had but four or five, and when he is pinned down
on cross-examination he accounts for enough of these interviews, without
any interviews on the subject of the books, to exceed all that he ever
had. Do you believe that he ever had any such conversation? Do you
believe that Brady would make a confident of him? Do you believe that
Brady would substantially admit in his presence that he had been bribed
by Dorsey? I do not.

Now, in order that you may know what this man is, I want you to have an
idea of his character. So we will come to the next point. Mr. Rerdell
admits that he sat with the defendants during the early part of this
trial; that he was willing to make a bargain with the Government; that
he proposed to the Government that he would sit with his co-defendants,
and would challenge from the jury the friends of the defendants. Did
any man wearing the human form ever propose a more corrupt and infamous
bargain? That proposition ought to have been written on the tanned hide
of a Tewksbury pauper. He went to the Government and deliberately said,
"Gentlemen, I am willing to make a bargain with you. I am willing to
sit with my co-defendants, pretending to be their friend, and while
so pretending I will challenge their friends from the jury. I will so
arrange it that their enemies may be upon the panel." "And why do you
say that, Mr. Rerdell?" "In order to show my good faith towards the
Government." He made the first affidavit for friendship, the second for
fear, and he made this proposition to show his good faith. There never
was a meaner proposition made by a human being, under the circumstances,
than that. He proposed to do it. Mr. Blackmar says that the proposition
was rejected; but that does not affect Mr. Rerdell. He was willing to
carry it out.

What more does he swear? He swears that he tried to carry it out. In
other words, that although it had been rejected, that made no difference
to him. Mr. Blackmar says they would not do it. Rerdell swears that he
tried to: went right along and did his level best; and if the Court had
allowed him four challenges he would have challenged four friends of the
defendants from the jury.

What more does he admit? That when the Court decided that all of us
together only had four, he endeavored to challenge one. Why? Because he
believed he was a friend of the defendants; because he believed he would
be against the prosecution; and he wanted to get the friends of the
defendants away. Why? To the end that the defendants might be tried by
an enemy. That is what he was trying to accomplish.

Let us take another step. That proposition reveals the entire man; that
takes his hide off; that takes his flesh all off; that leaves his heart
bare, naked; you can see what he is made of, and it shows the workings
of his spirit, the motions of his mind; and you see in there a den of
vipers; you see entangled, knotted adders. And yet that man is put upon
the stand stamped by the seal of the Department of Justice, and that
department says to twelve men, "Here is a gentleman that you can
believe; that gentleman proposes to sell out his co-defendants to us,
but we would not buy; he is an honorable kind of gentleman, but we would
not buy."

Mr. Merrick. It should be interpolated there—if you will pardon me a
moment—that the Government refused to accept Rerdell until he himself
had pleaded guilty.

Mr. Ingersoll. I understand that. I say now, Mr. Merrick, that I
would not for anything in the world, on a subject of that kind, go the
millionth part of an inch beyond the testimony. Although you and I have
not been very cordial friends during this trial, and neither have I and
Mr. Bliss, yet if I know myself I would not for anything in this world
put a stain upon your reputation, or upon the reputation of either of
you, by misstating a word of this testimony. I would not do it. I am
incapable of it. I admit that the evidence is that the proposition was
rejected, but I also insist that the Government knew the proposition had
been made, otherwise it could not have been rejected. And so I say that
after this man had made that proposition, infamous enough to put a blush
upon the cheek of total depravity, the Government put that witness upon
the stand, sealed with the seal of the Department of Justice.

Now, we will go another step. He sat with us from day to day, gentlemen,
as you know, went in and out with us, as one of the co-defendants. In
the meantime—and there is a laughable side even to this infamy—he
borrowed money from Vaile. He went to him as a co-defendant, as a
friend, and said, "I want a hundred and forty dollars; I want to buy
bread and meat to give me strength to swear you into the penitentiary."
And Vaile gave him the money. Would you believe a man like that? You
cannot think of a man low enough, you cannot think of a defendant vile
enough to be convicted on such testimony.

Now, we will go another step. He wanted to make that bargain with Mr.
Blackmar. Mr. Blackmar swears that he told Mr. Merrick of it, and that
Mr. Merrick rejected it; would have nothing to do with it.

At that time Mr. Woodward had two affidavits of Rerdell in his
possession—an affidavit of Rerdell, made in September, supplemented by
another affidavit, I believe, of November, that he made in the city
of Hartford, covering seventy pages. When Mr. Woodward saw Mr. Rerdell
sitting with the defendants, pretending to go with them, he (Woodward)
had those two affidavits of Rerdell in his pocket. Did the prosecution
know that Rerdell had made the two affidavits? I do not say they did,
gentlemen. I only go right to the line of the evidence; there I stop.

Another thing: Mr. Blackmar swears that they had a signal to look at the
clock, and that night Rerdell would meet him at six or seven o'clock, I
have forgotten the hour; but Mr. Blackmar could not sit in his room all
the time waiting for him, and so he gave him a certain signal, so that
he would know he was to wait that night. Then what happened? Then Mr.
Rerdell came to Mr. Blackmar and gave to him written reports. Of what? I
do not know. He sat with the defendants; he gave to Mr. Blackmar written
reports. What were they? I do not know. What did Mr. Blackmar do with
them? He handed them to Colonel Bliss. What did he do with them? I do
not know. Did he read them? I do not know. Did he know that they were in
the handwriting of Mr. Rerdell? I do not know. That is for you.

Still another point:

Mr. Bliss, after this jury had been impaneled, stood before them while
Rerdell was sitting with us as a defendant, and said:

The ranks of the defendants are closed up, and he—Rerdell—stands
before you now as one of the defendants, whose testimony—Meaning the
confessions made to MacVeagh and to Postmaster-General James—will be
accepted by the Court and by you, &c.

The question arises, Did Mr. Bliss know at that time that Mr. Woodward
had in his pockets two affidavits made by Rerdell, one made in September
and the other in November? Did he know at that time that Rerdell had
given his papers over to Mr. Woodward? Did he know at that time that he
had offered to challenge the friends of the defendants from the panel?
And so knowing, did he give us to understand that Rerdell had passed
from the influence of the Government and was now acting as one of the
co-defendants? Is it possible that Mr. Bliss would furnish Rerdell with
a mask behind which he could gather information from the defendants and
sell it to the Government for immunity? Is it possible? Those were the
circumstances. I do not say that he knew. I do not know.

Gentlemen, I do not believe that it is the duty of a Government to
prosecute its citizens. I do not believe that it is the duty of a
Government to spread a net for one of the people whom it should protect.
I do not believe in the spy and informer system. I believe that every
Government should exist for the purpose of doing justice as between
man and man. The mission of a Government is to protect and preserve its
citizens from violence and fraud. The real object of a Government is to
enforce honest contracts, to protect the weak from the strong; not to
combine against the one, not to offer rewards for treachery, not to show
cold avarice in order that some citizen may have his liberty sworn
away. The objects of a good Government are the sublimest of which the
imagination can conceive. The means employed should be as pure as the
ends are noble and sacred. The Government should represent the opinions,
desires, and ideals of its greatest, its best, and its noblest citizens.
Every act of the Government should be a flower springing from the
very heart of honor. A Government should be incapable of deceit. The
Department of Justice should blow from the scales even the dust of
prejudice. Representing a supreme power, it should have the serenity and
frankness of omnipotence. Subterfuge is a confession of weakness. Behind
every pretence lurks cowardice. Our Government should be the incarnation
of candor, of courage, and of conscience. That is my idea of a great and
noble Government.

The next point to which I call your attention is the withdrawal of the
plea of not guilty by Mr. Rerdell. You probably remember the occurrence.
I will read to you what he said upon that occasion. I find it on page
2202:

After mature reflection and a full consideration of the whole subject,
I have determined to abandon any further defence of myself in this case,
and put myself at the mercy of the Court and the Government; and if
desired to do so by the counsel for the Government, to testify to all
my knowledge of any facts with reference to any of the defendants either
against or for them, myself included. Therefore, I now in person ask
leave to withdraw my plea of not guilty, heretofore interposed, and
enter my plea of guilty, and in so doing put myself upon the mercy of
the Court I feel this to be a duty I owe to myself, my family, and
to truth. I have arrived at this fixed determination upon my own
reflections and responsibilities, and without any previous consultation
with my counsel, who, I believe, would not have advised me to this
course, and whom I now relieve from all and any responsibility for the
course I have adopted.

Now, gentlemen, is it not wonderful that if Mr. Rerdell was about to
tell the truth as a witness in this case, he could not even withdraw
his plea of not guilty without misstating the facts? Is it not wonderful
that he felt called upon at that time to tell several falsehoods? He
says that he took this step upon his own responsibility. He says that he
did it without the advice of his counsel. He tells you that he believes
if he had asked his counsel, his counsel would have been opposed to
it. He says he is willing to be a witness for the Government if the
Government desires it, leaving you to infer that at that time no
arrangement had been made for him to be a witness; that it was all in
the regions of uncertainty; that he had withdrawn into the recesses of
his own mind, and consulting with himself and nobody else had made
up his mind to throw himself upon the mercy of the Government and the
Court, and took that step without even allowing his counsel to know what
he was about to do.

But he speaks further on the subject. I read from page 2523. I was then
examining him:

Q. How did you come to do it?—A. I finally made up my mind to what I
would do. I talked it over the evening before with my counsel.

He so states under oath; and yet when he stood up before this Court and
withdrew his plea of not guilty, he said he acted without the knowledge
of his counsel—I read this to show you that the statement he made to
the Court at the time he withdrew his plea was absolutely false. What
next? I will go on a little further. The same man Rerdell, after he had
made up his mind to go over to the Government; after he had made up his
mind to swear away, if it was within his power, the liberty of S. W.
Dorsey, admits, on page 2525, that he endeavored to get five thousand
dollars from Mr. Dorsey.

On page 2589 Mr. Rerdell swears positively that he did not know that he
was to be used as a witness for the Government until he was called in
court to take the stand. Let us look at the evidence of Mr. Bliss on
page 2590. I will read you what he said:

Mr. Bliss. Your Honor, we propose to show, in substance, that this
witness, for reasons with which we have nothing to do, connected with
his own views of his own safety, from an early period was desirous of
being accepted by the Government as a witness; that the counsel in the
case refused to communicate with him or to have anything to do with
him until, in the presence of his own counsel, he was brought to Mr.
Merrick's office, and there the whole thing was explained; and that
then for the first time the Government accepted his willingness to be
a witness; and they did it under circumstances which held out to him
no inducement and which involved no training or anything of the kind by
anybody representing the prosecution.

Now, let us go to the next step. I want to be perfectly fair. On page
2591 Mr. Merrick asked Mr. Rerdell this question:

Q. When did you first learn that you would be put upon the stand after
pleading guilty?—A. It was the day before my plea was made in court.

Yet when he rose to withdraw the plea he expressed his willingness to
go upon the stand for the Government, leaving you to infer that no
arrangement had been made, and he afterwards finally swore that he did
not know that he was to be called until he was called.

These things, gentlemen, you must remember.

On page 2515 Rerdell swears that on the Sunday after he got out of jail
he proposed to Mr. Lilley to have Lilley act for him, and authorized
Lilley to say to the Government that if the Government would accept him
he would go on the stand and rebut Vaile. He told him that he had in
his possession a letter or two of Mr. Vaile's. Rerdell tells you that he
made this proposition on the 16th or 17th of September, 1882, which was
after he made the affidavit of June, 1881. On the same page he said it
was just after Vaile went off the stand. That is my recollection. In
the last trial Vaile testified on the 4th of August, 1882. So about
that time Rerdell, according to his testimony, went to Lilley and made
a proposition to sell out then. When he made the affidavit of July 13,
1882, the trial was then in progress. The very next month, August, while
the trial was still going on, that same man, having made the affidavit
of July 13, 1882, went to his attorney, Mr. Lilley, and authorized him
to say to the Government that Mr. Rerdell would take the stand to swear
against Mr. Vaile. Remember another thing, gentlemen. The only thing he
offered to do then to insure his own safety was to swear against Vaile.
He did not offer to swear against Dorsey. He did not authorize Mr.
Lilley to tell the Government about the pencil memorandum and the
tabular statement and his letter to Bosler and Doisey's letter to Bosler
and the Chico letter. Not a word. He simply went and wanted to sell
some letters he had that had been written by Vaile. Why did he make that
offer? Because that was all he had.

On page 2517 he says that nothing was said about pardon, but he says
that Lilley told him that he thought he could get him off. What does
that mean? That means pardon. On page 2518 he swears that he saw
Woodward in November in Hartford, and Woodward and he wrote out the
statement, covering, I believe, about seventy pages of legal cap. Then
Mr. Rerdell, on page 2519, swears that he never made an affidavit after
that. Then he admits, on the same page, that the day before he came
into court he met Mr. Woodward and made another affidavit. That was
supplementary to the first. In the meantime he found some new papers. So
we find, according to his testimony, these affidavits:

On page 2521 we find that he made an affidavit in June, 1881. Remember,
gentlemen, that he swore to that affidavit three or four times.

He made another affidavit in July, 1882, and another in September and
November of the same year, and another in February, 1883. And yet he
swears that he was not to have immunity.

Now, gentlemen, one point more about his plea of guilty. After having
withdrawn his plea of not guilty, after rising in court and solemnly
saying that he was guilty, and that he was guilty as charged in the
indictment, which says that Rerdell conspired with Brady and Vaile and
Miner and John W. Dorsey and S. W. Dorsey and Turner, that they all
conspired, and that all the false affidavits and false petitions and
false everything else mentioned in the indictment were made for the
common benefit of all, then on page 2570 he solemnly swears that he
never entered into any conspiracy or agreement with the defendants
mentioned in the indictment or any of them for the purpose of defrauding
the Government. When I asked him, With whom did you conspire, when did
you conspire, and what was the conspiracy? he could not tell; and yet he
had stood up in court and admitted that he was guilty, and then on oath
denied it. Did he not swear himself that after the division was made in
the routes Stephen W. Dorsey had not the interest of a cent in any route
that went to Vaile or Miner? Did he not also swear that Vaile and Miner
had not the interest of one cent in any route that went to Stephen W.
Dorsey? Did he not swear that they were not mutually interested, and yet
did he not stand up in court, and by a plea of guilty say that they were
not only mutually interested, but he was one of the interested parties
himself? It seems impossible for that man to tell the truth on any
subject whatever. On page 2571 he swears he never made any agreement
with Vaile to defraud the United States. He stood up in court and
admitted, that he had. He swore that he never made any agreement with
John W. Dorsey. He admitted that he had. He swore that he never made any
agreement with S. W. Dorsey, and yet stood up in court and admitted that
he had.

Now let us see whether he expected immunity. He swears that he was
taken to Mr. Merrick's office by Mr. Woodward and his counsel. What Mr.
Merrick told him we find on page 2590:

Q. And did I not say that, under the circumstances, the Government would
have nothing to do with you unless you pleaded guilty?—A. You did.

Q. And that if you pleaded guilty you had nothing to trust to but the
mercy of the Government and the Court?—A. That is what you did, sir,
exactly.

Now, on page 2523:

Q. Was it not arranged that Mr. Woodward was to come to your house
and then take you to one of the attorneys for the prosecution, for the
purpose of arranging the terms and conditions upon which you were to
take the stand?—A. It was not.

In another place he swears that it was, and that the arrangement was
carried out.

The next point I wish to make, if the Court please, is that whenever
what is called an accomplice or an informer turns what is called State's
evidence, and whenever he is permitted by the court to be sworn as a
witness in a case, there is then upon the part of the Government an
implied promise that if he tells the truth he shall not be punished.
I read from the Whiskey cases, 9 Otto, page 595. Mr. Justice Clifford
delivers the opinion of the court.

Courts of justice everywhere agree that the established usage is that an
accomplice duly admitted as a witness in a criminal prosecution against
his associates in guilt, if he testifies fully and fairly, will not
be prosecuted for the same offence, and some of the decided cases and
standard text-writers give very satisfactory explanations of the origin
and scope of the usage in its ordinary application in actual practice.

The Court. What point are you now making to the Court?

Mr. Ingersoll. I am making this point: It appears from the evidence that
Mr. Wilshire, the attorney of Mr. Rerdell told him at the time he was
making up his mind whether he would go to the Government or not, about
the whiskey cases.

I make the point that when an accomplice turns State's evidence the
State cannot prosecute him after that if he testifies fully and fairly;
that the usage is immemorial, and that there is not an exception in
the records of all the cases in the books; consequently that when Mr.
Merrick told him, "You must look simply to the Government and to the
Court and you will have just exactly what the law gives you and no
more," his remarks meant that the law gave him perfect immunity,
provided he went upon the stand and swore truthfully.

The Court. You have demonstrated, as far as you have been able to, that
he has not sworn truthfully.

Mr. Ingersoll. He has not; he has not; and if the Government will act
fairly with him he will get no immunity.

When he went to the Government he understood the law to be that if he
swore fully and fairly, or if he swore in such a way that they could not
prove that he did not swear fully and fairly, he was to have immunity.
He understood that the more he swore against the defendants the better
was his chance for immunity. He knew that the Government would never
complain of any lie he swore against the defendants.

Now, the next question is what is the law of accomplices, of informers?
There was a remark made by Mr. Bliss in his speech, that they had plenty
of evidence in this case without the testimony of Mr. Walsh or Mr. Moore
or Mr. Rerdell; plenty of evidence without the testimony of Mr. Rerdell.
If that had been so then the Government had no right to put Mr. Rerdell
on the stand. There is but one excuse for using the testimony of a man
who pleads guilty, and that is that without his testimony a conviction
cannot, in all probability, be obtained. And upon that point I refer to
10 Pickering, 478, and to 9 Cowen, 711; and not only upon that point,
but upon the point I made at first, that whenever you put such a man
upon the stand that of itself amounts to a promise of absolute immunity:

The object of admitting the evidence of accomplices is in order to
effect the discovery and punishment of crimes which cannot be proved
against the offenders without the aid of an accomplice's testimony. In
order to prevent this entire failure of justice recourse is had to the
evidence of accomplices.—I Phillips on Evidence, 107.

If, therefore, there be sufficient evidence to convict without his
testimony, the court will refuse to admit him as a witness.—Roscoe's
Criminal Evidence, 127.

Neither do I believe that Mr. Rerdell had a right to go upon the stand
until his case was finally disposed of. Precisely the same language is
used by Wharton on Criminal Evidence, 439:

An accomplice is used by the Government because his evidence is
necessary to a conviction.

That is the opinion of Mr. Justice MacLean, in 4 MacLean's Circuit Court
Reports, 103.

Mr. Merrick. If not improper I may remark that all those cases refer to
a condition of things prior to the trial in which the party appears as
the witness.

Mr. Ingersoll. The usual question is—and the court determines that
question—whether a man shall be a witness or not.

The Court. How can the court determine that without passing upon the
evidence in the case? That is not the duty of the court; it belongs to
the jury.

Mr. Ingersoll. The prosecuting attorney has to pass upon that himself
when he makes up his mind to put him upon the stand; and he only has the
right to do that when he believes that no conviction can be had without
that testimony.

The Court. Then it belongs to the prosecuting attorney.

Mr. Ingersoll. I go further than that, and say that the prosecuting
attorney cannot do that without consultation with the court, and without
saying to the court that he believes no conviction can be had without
that testimony.

Mr. Merrick. May I be allowed to suggest a point which probably you
would like to comment upon—that all these cases refer to accomplices
prior to the trial. My own opinion in reference to the case was that I
would not put Rerdell upon the stand until he had pleaded guilty.

The Court. I do not see the ground for the distinction between the
cases. Undoubtedly, when an accomplice goes over to the Government
and offers his testimony, he does it always in the hope of pardon or
immunity from prosecution.

Mr. Ingersoll. That is all I want at present. I want it understood, if
the Court please, that I shall argue to the jury that at the time he
made up his mind to go to the Government, he understood that that meant
immunity.

The Court. Oh, well, of course it did.

Mr. Ingersoll. The next point is that the Court has to take all his
story or none; and I read from the second volume of Starkie on Evidence,
side-page 24:

In judging of the credit due to the testimony of an accomplice, it seems
to be a necessary principle that his testimony must be wholly received
as that of a credible witness or wholly rejected. His evidence on points
where he is confirmed by unimpeachable evidence is useless. The question
is whether he is to be believed upon points where he received no
confirmation. And of this the jury are to form their opinion from
the nature of the testimony, his manner of delivering it, and the
confirmation which it receives derived from other evidence which is
unsuspected. If his character be established as a witness of truth, he
is credible in matters where he is not corroborated. If, on the other
hand, nothwithstanding the corroboration upon particular points, doubts
and suspicions still remain as to his credit, his whole testimony
becomes useless.

That is the point I want to make. If they are only to take his evidence
where it is corroborated, they might as well have had the corroboration
in the first place without him.

Now, gentlemen, the evidence, in my judgment, shows, and shows beyond
a doubt—and I believe it is now admitted—that at the time Mr. Rerdell
made up his mind to go to the Government he expected that he was to have
absolute immunity. You must judge of his evidence in the light of that
fact, in the light of that knowledge, in the light of what had been told
him by his counsel. Now, it is for you to say. You know something of
this man. You have seen him from day to day. You saw his manner upon the
stand. Why, they tell you that at one time he was overcome with emotion,
and that that is evidence that he was telling the truth. It may be that
there is left in that man some little spark of goodness still. When he
was swearing, or endeavoring to swear, away the liberty of the man who
had been his friend, may be at that time the memory of the past did
for a moment rush upon him. He may have remembered the thousand acts of
kindness; he may have remembered the years of liberality; he may have
remembered the days that he had spent beneath that hospitable roof; he
may have remembered the wife and children; he may have remembered all
these things, and for just that moment he may have realized what a
wretch he was. In no other way can you account for his having emotion.

But I am about through with that gentleman. I shall not take up your
time in the remainder of my speech by commenting upon Mr. Rerdell. Let
us finish his testimony now; let us put him out of sight; let us put him
in his coffin, close the lid, nail it down:

First nail—affidavit of June 20, 1881; drive it in.

Second nail—the letter of July 5, 1882, when he says that affidavit of
1881 was made by the persuasion of Bosler; drive it in.

Third nail—affidavit of July 13, 1882, where he swears that they were
all perfectly innocent.

Fourth nail—the pencil memorandum; drive that in.

Fifth nail—the tabular statement that gave thirty-three and one-third
per cent, to Brady; drive it in.

Sixth nail—his pretended letter to Bosler telling about the advice of
Brady; drive that in.

Seventh nail—the letter he pretends that Dorsey, on the 13th of May,
1879, wrote to Bosler, the copies being made by Miss White; drive that
in.

Wind his corpse up in the balance-sheets from the red books made by
Donnelly.

Then you want a plate for his coffin. Let us paste right on there the
Chico letter, April 3, 1878.

Now, we want grave-stones. Let us take the red books, put one at his
head and one at his feet.

And let his epitaph, written upon the red book placed at his head,
be—Up to this moment I have been faithful to every trust.

My prayer to Gabriel is, "When you pass over that grave don't blow."
Let him sleep. There are, there never were, there never will be twelve
honest men who will deprive any citizen of his liberty upon the evidence
of a man like Mr. Rerdell. It never happened; it never will.

And now, gentlemen, it becomes my duty to answer a few points made by
the gentlemen who have addressed you on behalf of the Government. The
first gentleman who addressed you was Mr. Ker, and he had something to
say—considerable to say—about what are known as the Clendenning bonds.

They claim, gentlemen, first, that an immense fraud was in view when
these proposals—I think they are proposals—with accompanying bonds and
oaths of sureties were sent to Mr. Clendenning. I wish to give you, in
the first place, my explanation of this paper. See if I understand it.
If you sent this paper to that officer or to that gentleman as a form to
guide him in making up the bonds, you would only fill up that portion of
the bond in giving him a sample which you wanted him to fill up, and you
would fill it up in order to show him exactly how he was to fill it up;
and you would leave out that part which was already filled up in the
bond. That is exactly what was done in this case. There was not one of
those bonds that had an oath of the surety or the names of the sureties,
because they were unknown. The names were unknown, and the amounts that
the postmaster would certify to, and so all that was left in blank in
the bond sent. But this being only a sample, it was sent to him so that
he might know how to fill up the bonds that were sent. Consequently that
portion which was absolutely blank in the bond sent would be filled up
as a guide to him, and that portion which was filled up in the bonds
sent would be left blank in the guide, because he had nothing to do with
that part. Now, that is all there is to it.

What was left out, as they claim? Why they claim that the name of the
bidder was left out and the amount of the bid. It makes no difference.
That is not the slightest evidence of fraud, is it?

What was the next thing? They were never used, never. No bond included
in that bundle was ever accepted by the Government. No bonds were ever
made, no contract ever based upon them, not a solitary cent taken from
the Government by those papers. Why, then, this secrecy? Because when a
man is in this business he does not want anybody else to know that he is
bidding, in the first place; and, in the second place, he does not want
anybody to know the amount of the bid. If the amount of the bid is put
in, then the persons going security will know it, and they may tell. The
postmaster who approves the security will know it, and he may tell. The
object of the secrecy is not to defraud the Government, but to prevent
other people finding the amount of the bid and then underbidding. That
is the object, and it is the only object. And yet this little, poor,
dried-up bond, soaked in the water of suspicion, swells almost to
bursting in the minds of the counsel for the prosecution. There is
nothing of it. It was never worthy of mention, in the first place. You
will never think of it when you retire. It will never enter your minds;
but if it does, remember that the object of the secrecy was simply as
a precaution against other bidders, and had nothing whatever to do with
the Government.

There is one other point. I believe Mr. Dorsey did say, in his
examination-in-chief, that he did not talk to anybody about it, and it
afterwards occurred that he did go and ask Mr. Edmunds whether what
he had asked Clendenning to do was illegal or improper. To that
contradiction you are welcome.

Mr. Ker gives the date of Boone's circular to postmasters asking for
information, and says it was dated December 1, 1879. Thereupon Mr.
Merrick corrects him, and says it was in 1878. The Court does the
same. As a matter of fact, these circulars were dated December, 1877.
Gentlemen, I just simply speak of this to show how easy it is for
people to be mistaken. Those circulars were gotten up for the purpose
of getting information before bidding. All the bids were put in in
February, 1878. The circulars were sent out, I believe, in November
and December, 1877. And yet upon that one point Mr. Ker is mistaken two
years.

On page 4512 Mr. Ker states that Miner, in April, 1878, said to Moore
that it all depended upon affidavits of the contractors, and that "they
were all good affidavit men." The object of this, if it had an object,
was to show that this conspiracy was entered into with Moore, and that
S. W. Dorsey was a part of it in April, 1878. The evidence of Moore is
that the conversation took place, not in April, but in July, 1878, at
the city of Denver. And yet Mr. Ker tells you that it was in April.
1878. It is not, perhaps, a very material point, but it simply serves
to show you the manner in which this evidence is repeated to you by the
counsel for the prosecution.

At page 4537 Mr. Ker says that before J. W. Dorsey went West he made an
arrangement with his brother to sell out his interest for ten thousand
dollars; that he did this before he started West; that he did it before
there was any service put on; and that these contracts were taken at
such low figures; yet John W. Dorsey had raised his interest up to ten
thousand dollars. Mr. Ker tells you that the evidence shows that before
any service was put on and before John W. Dorsey went West he tried to
sell out his interest for ten thousand dollars. Now, what was the object
in making this statement, unless it was pure forgetfulness? Why it was
to connect Vaile with this business some time in April, 1878.

On pages 4100 and 4102 J. W. Dorsey swears that he was here in
Washington in November, 1878; before that time he had gone to the Tongue
River route; he had come back from Bismarck; and it was then, not in
April; it was then, not before he went West; it was then, not before any
service was put on, that he talked with Vaile about selling out to
him for ten thousand dollars; and it was in November that he left the
instructions for his brother to sell to Vaile. It was not in April; it
was not before he went West; it was not before any service was put on.

At page 4540 Mr. Ker states that—Dorsey held thirty-three routes, and
there was not one of them, I suppose, that was not expedited to the
fullest extent.

What evidence is there of that? Is there any evidence that any route of
Dorsey's was expedited not mentioned in this indictment?

Did not Mr. Ker know whether the routes had been expedited or not? Did
not I offer in this court to prove what was done with every solitary
route we had? I say to the gentleman that the other routes were not
expedited. I say to the gentleman that only two other routes were,
and we were not interested in them. And I say also that they know the
record, and they knew the record when this statement was made; but they
may have forgotten it. But is it fair, gentlemen, for a prosecuting
officer to state to you that he supposed all the routes of Dorsey were
expedited? One of those in the indictment was not expedited; and not a
route outside of the indictment belonging to Dorsey, in which he had an
interest, was expedited. So much for that statement.

At page 4546 you are told by Mr. Ker that—Nobody ever heard of
expedition on a route before.

We proved what form of contracts had been in the PostOffice Department
for twenty years, and proved that in every one of them there was a
clause for expedition. So much for that evidence, gentlemen.

At page 4546 Mr. Ker tells us that J. W. Dorsey testified—That the
routes were taken so low as to cut out other people, but that they knew
they were to be expedited, and they knew they were to be increased.

J. W. Dorsey testified upon that subject, and his testimony will be
found at page 4085:

Q. Did you have an arrangement by which you should bid an extremely
small amount on the routes, with the further understanding that the
service was to be increased and expedited?—A. No, sir; I never thought
of such a thing.

And in his entire testimony in chief and cross, I believe there is not
another question on that subject.

On page 4549, referring to the letter of John M. Peck, which was in fact
written by Miner, Mr. Ker says:

Cedarville ought to have had as many mails as the other points between,
according to the order, but they were going to supply it only once a
week. .

As a matter of fact, gentlemen, this letter was written on the 22d
of October, 1878, and at the time the letter was written the mail,
according to the contract, was carried only once a week on that route,
and consequently Cedarville would have had exactly the same mail as any
other point; that is to say, once a week.

Page 556 of the record shows that three trips a week were put upon this
route to Loup City with a schedule of thirteen hours, but not until the
10th of July, 1879, nine months after this letter was written.

On page 4609 Mr. Ker, in commenting upon an affidavit on the Toquerville
and Adairville route, reads from the evidence of John W. Dorsey, citing
page 3945, and ends at this question and answer:

Q. It was done so entirely, was it not?—A. It ought to have been so.

Now, let me read you the balance:

Q. Was it not so done?—A. No, sir.

Q It was not?—A. No, sir.

Q For whose benefit was it done?.—A. He—Meaning Rerdell—stole five
thousand dollars on that route, or very nearly that—four thousand nine
hundred dollars on that very route.

Q. When did he steal that five thousand dollars?—A. About a year ago or
a year and a half; I do not remember the time.

Q. From whom?—A. From Mr. Bosler and myself.

Q. At what time?—A. I should think in February, 1882.

The question now arises, did Mr. Rerdell take this money as charged?
Read now from the record, at pages 734 and 735, and you will find in the
last line of the tabular statement introduced in this case that on this
very route four thousand eight hundred and twenty-seven dollars and
eighty-three cents was paid to M. C. Rerdell as subcontractor on that
route. We also find that it was paid on the 4th of February, 1882. This
is the money that Dorsey swears Rerdell stole, and that gentleman never
took the stand to deny it.

At page 4616, Mr. Ker, after going over all the evidence with regard to
the affidavits as to the impossibility of the number of men and horses
doing the service rendered necessary by the affidavit, comes to the
following conclusion: That under the oath the proportion was, as nine to
twenty-three; that under the oath of Johnson the real proportion should
have been, and was, eight to twenty-two.

In other words, the real proportion, according to Mr. Ker's own
statement, would have taken more money from the Treasury than the wrong
proportion made under the fraudulent affidavit, and that was nine to
twenty-three. Nine into twenty-three goes twice and five-ninths; that
is, two hundred and fifty-five per cent, and a fraction. That is the
fraudulent proportion. Mr. Ker says that the real proportion was not
as nine into twenty-three, but as eight to twenty two. Eight into
twenty-two goes twice and six-eighths; that is to say, two and
three-quarters; that is to say, two hundred and seventy-five per cent.
The fraudulent proportion, according to his claim, only gave us two
hundred and fifty-five per cent. The real proportion, which Mr. Ker
admits was right, according to the evidence of Johnson, would have given
us two hundred and seventy-five per cent. In other words, we got twenty
per cent, less under the fraud than we would under the evidence of
Johnson that Mr. Ker admits to be correct. Finding that it is twenty per
cent, less under the fraudulent affidavit than under Johnson's estimate,
he shouts fraud.

On page 4617 Mr. Ker tells us that Sanderson "had no more to do with the
route than you or I had." On page 731 I find that Mr. Sanderson drew all
the money on the route from Saguache to Lake City, I believe, with one
exception—the third quarter of one year—1878, it may be. He drew every
dollar upon that route, anyhow, up to February 17, 1882, except for one
quarter. And yet Mr. Ker stood up before you and said that Sanderson
"had no more to do with the route than you or I had."

Let us see if we have any more evidence. I find on page 3271 a
subcontract executed on route 38150, from Saguache to Lake City, by
Miner, Peck & Company to Sanderson for the whole time until June 30,
1882. I find that subcontract is signed by John R. Miner and J. L.
Sanderson. This contract was to be from the 1st of July, 1878, and was
made the 15th of May, 1878, and here it is in evidence. The evidence is
that the contract was made between Miner, Peck & Company and Sanderson;
the evidence also is that Sanderson drew the pay. And yet Mr. Ker stands
up before you and says that Sanderson "had no more to do with the route
than you or I had."

The subcontract, gentlemen, states that Sanderson is to have the entire
pay, and it was before the contract term began. So much for that.

Mr. Ker. When was it filed?

Mr. Wilson. That does not make any difference.

Mr. Ingersoll. "When was it filed?" There was a trial in my town of a
suit against the city, I believe, for allowing a culvert to get filled
up and flood a man's cellar. They brought in evidence to prove, don't
you see, that the culvert was not filled up, and one witness swore that
the day before the rain he saw a dog go through there. One of the jurors
got up and said that he would like to ask a question; he said, "What was
the color of that dog?"

On page 4631 Mr. Ker states that during the investigation by
Congress—Contractors got out printed letters and sent them to every
subcontractor upon every star route in the country, asking them to write
to their members of Congress urging their members of Congress to vote
for this appropriation.

On page 1346 is Rerdell's letter upon this very route, in which not one
word is said about the contractor doing anything one way or the other.
There is no evidence that any other letter was written on that route.
I call your attention to it to show how the prosecution strained every
possible point, and how they endeavored to patch and piece and putty
and veneer this evidence. Mr. Miner wrote a letter (page 669). I do not
remember any other evidence upon this subject. And certainly it would be
impossible to write a milder letter than Mr. Miner wrote. He did not
ask the people to get up petitions against reduction, or ask for more
service. Here is what he says, and I will read you Mr. Miner's letter:

It will be well for the people of your section to send to the member
of Congress from your district such petitions as will express their
opinions on the subject of this reduction.

Truly, yours,

JNO. R. MINER, Ag't.

Could you write a milder letter than that, to save your life, and refer
to the subject? Could you write a fairer letter than that, to save your
life?

He does not say, "Get up petitions against it." He does not say, "Send
those petitions to your member of Congress and tell him to do what he
can to prevent it." Not one word of that kind.

Yet that is considered as evidence of fraud; that is considered as
evidence of conspiracy.

The next point made is that Mr. Ker states, at page 4632, that
Brady endeavored to bribe the members of Congress into making this
appropriation by doubling every star route in the Southern and Middle
States, and did so during the Congressional investigation. What are
the facts? The deficiency bill passed April 7, 1880.. That appropriated
money only for the purpose of carrying the mails up to June 30, 1880.
The regular appropriation bill was passed at the same session, and
appropriated money to carry the mails from the 1st of July, 1880. Now
let us see if Brady doubled the trips in these Southern and Middle
States during that investigation. On page 3393 Brady says:

Practically on July 1, 1880, we doubled up the entire service for all
the Southern and Middle States.

This was after the deficiency bill had passed; it was after the money
appropriated by that bill had been expended; and it was paid for out of
the regular appropriation for the Post-Office Department.

Yet that was a bribe. It just shows that Congress by the regular
appropriation indorsed the policy of Mr. Key to have a daily mail to
every place where there was a county-seat.

At page 4652, on the route from Mineral Park to Pioche, there were
two petitions, marked 17 K and 18 K. It is somewhat singular that the
Government brought no persons whose names are on these petitions to show
that they had not authorized their names to be signed thereto, but they
brought persons to show that the signatures were not genuine.

On page 1621 the witness Wright swears that the names are the same on
both petitions. He is then asked if he knows the signatures of any
other people, and he says "Yes." He then says that the signature of John
Deland is not genuine. He swears that he knows nearly every one of the
people. He is then asked whether these signatures are in the handwriting
of the people, and he replies that he thinks not. Then he is asked as to
the signature of Cornell, and he says; That is not in his handwriting.

Here is his cross-examination, gentlemen:   *

I asked him, "Do you know these people;" made him swear that he knew Mr.
Street; that he knew the signatures of many; that he knew these people.
I proved where they were living; that they are living in the country
now, good, respectable, honest people. And yet the Government did not
bring one man whose name had been written here to prove that he had not
authorized it. Why? Because they could not. They knew by the testimony
here that the petitions were absolutely and perfectly honest. And it is
in that way that they seek to deprive men of their liberty. They did
not call a man whose name appeared on those petitions to say that his
signature was not genuine or not authorized. I proved that many of them
are still living and first-rate men.

Now, gentlemen, you remember besides that, that Mr. H. S. Stevens, the
delegate from that Territory, recommended the same thing asked for by
those petitions (pages 1635, 1636), where it was admitted by counsel for
the Government that the letters of Stevens were genuine. It is upon that
same route that General Fremont also wrote a letter (page 1636). And I
will show you that the names are exactly or substantially the same on 18
K as those found at pages 1638 and 1639.

Mr. Ker and Mr. Bliss both endeavored to show that there were no
petitions on this route, and that it was simply done on a letter. If you
will look at page 1603 you will find the evidence of Mr. Krider, who was
postmaster at Mineral Park, in which he says there were petitions.

In order to show that there was a conspiracy between these parties, or
between Dorsey and Vaile, or Dorsey, Rerdell, and Vaile, Mr. Ker called
the attention of the jury to two letters, one written by Rerdell to the
Sixth Auditor, and one written by Vaile. Here is a letter dated the 21st
of August, 1880. It is introduced, of course, to show that there was a
conspiracy at that time between Mr. Vaile and Mr. Dorsey. It was written
by Mr. Rerdell to the Sixth Auditor:

To the Sixth Auditor:

Sir: H. M. Vaile was subcontractor on route 40104 during the first
quarter of 1879. In the first settlement for that quarter Vaile was paid
for certain expedited service—it was subsequently discovered that the
expedition thus paid for was never performed—the department therefore,
and very properly, too, charged back to the route the amount thus paid
for expedition never performed, viz, some two thousand eight hundred
dollars.

Meanwhile Vaile, who alone was in fault, had ceased to have any
connection with the route—the charging back, therefore, fell on the
wrong man, the man who was in no way responsible for the non-performance
of the expedition, except so far as he stood between the department and
the subcontractor.

It is true that this payment was made by the regular contractor to
the subcontractor, but it is equally true that it was, in a measure,
a compulsory payment. By the rules of the Post-Office Department it
is made obligatory on the regular contractor to pay the subcontractor
before the department will settle with him—it is not, therefore,
a payment as between two individuals. The receipt is on the form
prescribed by the Post-Office Department, and is witnessed by (the
then) Postmaster Edmunds, as the rules prescribe. It is on file in the
Post-Office Department, and I maintain that our covenants were fulfilled
when we put the receipt on file. If Vaile had performed the service as
he agreed he would do, and for doing which he received this money,
we should have been reimbursed by a certificate of service from the
contract office. Now, will you permit Vaile to take advantage of his own
wrong, and thus enable him to defraud another man out of his money?

I refrain from discussing the question as to what would be the duty
of the department if Vaile, who had received the money wrongfully, had
ceased to have any connection with the department, because it is
not pertinent to this issue; if it were, I could cite you to many
authorities and precedents to the effect that even then it would be your
duty to refund the money to me. But this is not necessary, because Vaile
is still doing business with the department.

He is subcontractor on route 44156 for the full contract pay, which is
twenty-two thousand dollars per annum, hence the department will have
no difficulty in reimbursing itself for what was, in simple truth, an
overpayment.

I think you will agree with me when I ask that this money be refunded to
the subcontractor on route 40104 and charged to route 44156, because it
is simply correcting an error. You have the same authority to charge
it to one as you have to charge it to the other, and you have already
charged it to me.

The law-merchant would experience no difficulty in adjusting a matter
of this sort. The merchant who would refuse to correct an error of this
character would be justly called a lame duck, and would be scouted from
"'Change" Vaile was erroneously paid for the performance of a service
which he never did perform. Therefore I ask that he be compelled to
render unto Caesar the things that he ceasers.

Respectfully,

M. C. Rerdell

Acting for himself and for the regular contractor on route 40104.

That is to show also, gentlemen, that there was a conspiracy between
Vaile and Rerdell. Now, Mr. Vaile wrote a letter also to the same man. I
will read it:

Washington, D. C., July 9, 1880.

Hon. J. McGrew:

Sir: In reply to yours of July 8th, relating to the Jennings case,
I would state that I did not receive the money in manner and form as
stated by one M. C. Rerdell, nor was the draft of J. W. Dorsey, on
said route 40104, for the quarter named, to get an advance of money for
myself or for my own use.

At the time I receipted for my pay as subcontractor on said route I did
not, in fact, receive any money, but did so receipt that J. W. Dorsey
might negotiate his draft on said route, and for no other purpose.

Although I was subcontractor of record on said route at the time named,
I was not a subcontractor in my own behalf, but as trustee for J. W.
Dorsey, S. W. Dorsey, Isaac Jennings, and others, to collect said money
and pay it over as said parties should direct. I further state that all
money that ever came into my hands from said route I did pay over to the
parties named as trustee, as by them directed.

Acting as trustee of said Jennings, and believing that he had performed
the mail service on said route as by him agreed, and in accordance with
the laws and regulations of the Post-Office Department, I did pay said
Jennings, on the 1st day of April, 1879, the sum of $1,257.73, a sum of
money he was entitled to provided he had carried the mail three days per
week on the schedule required, which I fully believed at that time he
had done, and for a long time after.

I further state that I am informed that said Jennings is not
responsible; that it would be utterly impossible for me to receive back
the $2,800, or any part thereof; that in fact this sum of money sought
to be collected of me, if collected for said Jennings's benefit, or
go into his hands in addition to the sum he now has unlawfully, doubly
remunerating him for his neglect of duty.

I further state that all the money collected on said route not paid to
said Jennings was paid to liquidate the debts of J. W. Dorsey, S.
W. Dorsey, and others previously contracted, and not one dollar ever
remained in my hands.

I further state I believe both J. W. Dorsey and S. W. Dorsey are
irresponsible, and it would be impossible for me to collect any part of
said money from them. As above stated, said money came into my hand only
as their agent or trustee, and at once paid out as they directed; that
my subcontract was put on file simply to enable J W. Dorsey to negotiate
his draft on said route, when in fact said Jennings was the real
subcontractor. Said Jennings agreed to perform the service on said route
strictly in accordance with the laws and regulations of the department,
for the annual sum of $12,600.00, the duplicate of which contract was
delivered over to S. W. Dorsey by myself, and which I believe is now in
the hands of M. C. Rerdell, and which, or a copy thereof, I demand shall
be filed with you in this case, that you may see what said Jennings
agreed to do.

This is certainly a strange claim. Jennings agreed to perform mail
service on said route. I believed he had done it, and paid him
accordingly. It turns out long after he did not properly perform the
service, but was attempting a swindle, and a deduction is ordered for
not performing the service properly. Then this man, the guilty party,
having got money from me, as trustee, wrongfully, as well as from the
Government, and asks that the Auditor compel me to pay him the sum
of $2,800.00, when, as I am informed, he is seeking to get this same
deduction remitted.

Surely if he succeeded in all this he will make a good thing out of his
rascality and I a good victim without remedy. I state again I did
not hypothecate said draft for myself, did not receive one cent as
subcontractor, but became the payee of said draft that said J. W.
Dorsey might negotiate it, and I to dispose of the proceeds as he should
direct, all of which I did. Therefore I request you not to compel me to
pay the sum of money asked, but if I am liable at all let the parties
seek their redress at law, where all the facts can be obtained and
justice rendered me. And it is also well known that I am a man of means,
and any judgment rendered against me could and would be collected,
dollar for dollar.

I am, very respectfully,

H. M. Vaile

That was introduced to show that at the time Vaile was in a conspiracy
with S. W. Dorsey. Why did they introduce it? Simply for one line in it
in which he says he was acting as the trustee of S. W. Dorsey. He was.
How? Dorsey had advanced money. The routes were liable, and the persons
who held the routes had agreed to refund it. The subcontracts were made
to Vaile, and Vaile agreed out of the proceeds of the route to pay the
debt to S. W, Dorsey. To that extent he was the trustee of S. W. Dorsey.
Dorsey swears it. Vaile admits it, and we all claim it to be true. And
yet they introduced that letter simply because that line was there. Now,
gentlemen, I have read both of those letters, and I want you to remember
them if you can, and tell me whether at that time Vaile and Dorsey
were in a conspiracy together to defraud this Government. And yet the
Government introduced this letter just to prove that one thing, and no
more.

On the Julian and Colton route there is this peculiarity: The Government
failed to prove the number of men and horses necessary on the original
schedule for three-times-a-week service, and consequently we are left
without any standard by which to judge; without any standard by which to
measure.

On page 4685 Mr. Ker calls attention to the fact that the proposal
marked 6 P, originally contained an offer to carry the mail at
thirty-six hours for seven thousand seven hundred and twenty-two
dollars additional, but he states that the thirty-six was rubbed out and
twenty-six was put in its place.

That is, they offered to carry it in thirty-six hours for seven thousand
and odd dollars, and then afterwards fraudulently, of course, rubbed out
the thirty-six and inserted twenty-six. But they did not change the
sum for which they offered to carry it. They offered to carry it
in thirty-six hours for seven thousand seven hundred and twenty-two
dollars, and afterwards they rubbed out the thirty-six and put in
twenty-six, and then offered to carry it in twenty-six hours for seven
thousand seven hundred and twenty-two dollars. The question arises, how
did that hurt the Government? The question arises, was that a fraud? If
it had been originally twenty-six hours and they had rubbed out those
figures and put in thirty-six hours, then you might say the intention
was to defraud the Government. But the proposition had to be accepted
after that was done, and consequently in no event could the Government
be defrauded by the change of the proposal before the Government
accepted the proposal. I might say to a man, "I will let you have
a house and lot for ten thousand dollars." He does not accept the
proposal. Have I not the right on the next day to charge him twelve
thousand dollars for it? Is that a fraud? If I tell him, "You may have
it for ten thousand dollars," and he accepts, then, as an honorable
man, I cannot change the proposal. But if I tell him he may have it for
twelve thousand dollars and then afterwards tell him he may have it
for ten thousand dollars, Mr. Ker calls that a fraud of two thousand
dollars. If one of the jury should give me a contract to deliver one
hundred horses for ten thousand dollars, and I should scratch out the
one hundred and put in seventy-five, certainly you would not consider
yourself defrauded. Or if I agreed to carry the mail in thirty hours for
the Government for seven thousand seven hundred and twenty-two dollars,
and then afterwards changed and said I would carry it in ten hours less
time for the same price, can that be tortured into a fraud—unless I
might be indicted for defrauding myself?

On page 4569 Mr. Ker says that Mr. Farrish, who was the subcontractor
says:

I always carried the mail in from six to ten hours before expedition.
I carried the mail from Greenhorn to Pueblo. I did not stop at Saint
Charles.

On page 835 Mr. Farrish says he carried the mail for three months in
1881. That is the only time Farrish carried the mail. This route was
expedited on the 26th day of June, 1879, and yet Mr. Ker says that
Farrish carried the mail before it was expedited and carried it in from
six to ten hours. Mr. Farrish did not carry the mail until about two
years after it had been expedited.

On page 4768 Mr. Ker, speaking of the two affidavits on the route from
Pueblo to Rosita, laughs at the idea that the proportion was the same in
both.

Now, what is the proportion in both? One affidavit says that on the then
schedule it would take eight men and horses; that is, the horses and men
added together make eight, and that on the proposed schedule it would
take twenty-four. Then they would be entitled to just three times the
money they were receiving on the original schedule, because three times
eight are twenty-four. Let me explain here what I mean by proportion.
If I am carrying the mail with, say, four horses and two men, making
a total of six, and if then that service is increased so that it
takes twelve men and horses, I get twice the original pay; if it
takes eighteen men and horses, I get three times the original pay.
You understand that there is always a relation between the pay and the
number of men and horses used. If I am using one man and one horse and
am getting a thousand dollars for the service, and if it is expedited
so that I have to use two men and two horses, I would get two thousand
dollars. In the first affidavit they had eight men and horses. If
they put up the service to what they were going to, it would take
twenty-four. Three times eight are twenty-four. Then they would get
three times the original amount of money. In the second affidavit he
swears that it takes fifteen men and animals on the present schedule,
and on the proposed schedule it would take forty-five men and animals.
Three times fifteen are forty-five. Three times eight are twenty-four.
You see that on both affidavits you get the same amount of money to a
cent, because the proportion is absolutely and exactly the same. Yet Mr.
Ker laughs at the idea of the proportion being the same. It took eight
men and horses in the first affidavit on the present schedule, and
twenty-four on the proposed schedule. There the contractor would be
entitled to three times the original sum. In the next affidavit it took
fifteen men and horses on the original schedule and forty-five men and
horses on the proposed schedule. Again, he would be entitled to three
times the original sum.

On page 4579 Mr. Ker says the oath was put in for three trips. By
looking at page 867 we find that it was for seven trips and not three.
There is nothing like accuracy.

On page 4580 Ker says that Brady had on the jacket before him the
evidence that Hansom was a subcontractor at three thousand one hundred
dollars a year, and the contract gave the contractor a clear profit of
five thousand and forty-eight dollars. The fact is, that Brady's
order was made on July 8, 1879. That order is on page 866. Hansom's
subcontract was filed October 22, 1879, about three month's after
Brady's order was made. And yet Mr. Ker tells you that on that jacket
when Brady made the order he had notice of Hansom's subcontract. Unless
he had the gift of seeing into the future he knew nothing about it. He
would have had to see into the future three months in order to have had
it before him at that time.

On page 4703 Mr. Ker says that the letter of J. W. Dorsey, written April
26, 1879, referred to the Perkin's affidavit as not putting the number
of men and animals high enough. Let us see. Another case of arithmetic.
The letter refers to Dorsey's statement transmitted with the letter. It
could not be the way stated by Mr. Ker for the following reasons: The
affidavit of Perkins said three men and six animals one trip a week on
the then time. That makes nine. On one trip a week with the reduction to
eighty-four hours, eight men and twenty-four animals would be required.
That makes thirty-two. The proportion then gives three and five-ninths
or three hundred and fifty-five per cent, increase of pay. That is the
affidavit, he says, that Dorsey wrote out and said was not high enough,
and then fixed up one that was. The affidavit that John W. Dorsey sent
in the letter says that it will require for three trips a week on the
then time four men and twelve animals, making sixteen; on the proposed
schedule for the same number of trips eleven men and thirty-two animals,
making forty-three. As sixteen is to forty-three—that is, two hundred
and sixty-nine per cent, increase of pay. Now, that letter, he says,
claims that the Perkins affidavit did not put it high enough. I say that
he did not refer to the Perkins affidavit. He could not say that did not
put it high enough, because that put it at three hundred and fifty-five
per cent., and the affidavit he inclosed in the letter, put it at two
hundred and sixty-nine per cent.—nearly one hundred per cent. less.
According to Mr. Ker he was complaining that that affidavit was too low,
and so he inclosed one, one hundred per cent, lower. That will not
do. Besides all that the affidavit of John W. Dorsey is for forty-five
hours, while the first affidavit, I believe, is for eighty-four hours.
John W. Dorsey offers to carry it in forty-five hours for two hundred
and sixty-nine per cent., and the other affidavit on the basis of
eighty-five hours calls for three hundred and fifty-five per cent. Do
you not see, gentlemen, it is utterly impossible to believe that?

On page 4738 Mr. Ker again falls into mathematics. He says that Mr.
Brady allowed on the Bismarck route for three hundred men and three
hundred horses.

I tell you this prosecution ought to go into the stock business. One
hundred and fifty men and one hundred and fifty horses were called for
by the affidavit. Now, Mr. Ker says when Brady doubled the trips he
doubled the horses, and when he doubled the trips he doubled the men.
That would make three hundred men and three hundred horses. If he
had doubled the trips again he would have had six hundred men and six
hundred horses, enough cavalry to have protected that entire frontier.
Yet after all the Bismarck and Tongue River business, Mr. Vaile comes in
and swears, on page 4062, that the loss on that route to Vaile and Miner
was at least fifty thousand dollars; and Mr. Miner swears that the loss
on the route was between forty and fifty thousand dollars. Vaile says
if he had known at that time of the clause in the contract by which he
could have gotten out of it he would have abandoned the route, but that
he had not read a contract for ten or twelve years. Now, as a matter
of fact, gentlemen, and it seems to me the prosecution ought to be
perfectly fair, Brady allowed only forty per cent, of the affidavit made
in regard to the one hundred and fifty men and the one hundred and fifty
horses, and yet according to Mr. Ker he allowed for three hundred men
and three hundred horses; instead of allowing for forty per cent, of one
hundred and fifty men and one hundred and fifty horses, he allowed for
one hundred per cent. more. That would have run the pay up, I should
think, to about a million dollars. Mr. Ker also says that Mr. Vaile
swears that he induced Brady to give an extension to August 15th, and
thereupon Mr. Ker makes the remarkable statement that Vaile did not do
it; that Boone did it; I am very thankful for the admission. From that
it appears that Boone was more potent with Brady than Vaile was.

If he was, why did they have to get somebody close to Brady? Afterwards
we are told by Mr. Ker that Mr. Boone was kicked out to make a place for
Vaile, so as to get a man close to Brady.

Mr. Ker. Will you tell me what page it was I spoke about Boone?

Mr. Ingersoll. It was Mr. Bliss. It is Mr. Bliss's turn to explain
now. The notes that I have were handed to me by another, and I supposed
referred to Mr. Ker. Mr. Bliss said:

This, I think, can leave no doubt in the minds of any one that the
extension was obtained by Mr. Boone.

Mr. Bliss says that on page 4899, and so I will relieve Mr. Ker of that
charge.

Mr. Ker. I am glad to be relieved of something.

Mr. Ingersoll. I do not want to do any injustice to Mr. Ker; between Mr.
Bliss and Mr. Ker I am perfectly impartial.

Mr. Ker attacks the affidavit made by Vaile on the Vermillion and Sioux
Falls route. Let us get at the facts. The route was let as fifty miles
long. That is the distance that was given in the advertisement by the
Government. They wanted expedition on that route. The Government asked
for it. Mr. Vaile asked if he could make the affidavit, and he made it,
supposing the route was fifty miles long. He never had been over it. It
turned out that it was about seventy-three miles long, and consequently
the affidavit provided for too fast time. The affidavit called for ten
hours. That made over seven miles an hour; or, including the stoppages,
I presume about ten miles an hour. The difficulty arose out of the
mistake in the distance. Vaile so swears, on page 4030. He also swears
that he went to the department and there saw Mr. Brewer, who was in
charge of that bureau, or at least of that business, and it was Brewer
who suggested to him to make the affidavit. Mr. Vaile did not ask for
any expedition on that route. Mr. Brewer spoke to him about it. Mr.
Vaile swears that Brewer spoke to him first. Mr. Vaile swears that he
made the affidavit at the instigation of Mr. Brewer. Mr. Bliss says
Brewer is an honest man, and calls him honest Brewer. Why did he not
call honest Brewer to the stand and let him deny that he asked Mr. Vaile
to make that affidavit?

The Court. Yes.

Mr. Ingersoll. [Resuming]. If the Court please, and gentlemen of the
jury, on page 4645 there is the letter from Miner to Carey.

John Carey, Esq.,

Fort McDermitt, Nev.

Dear Sir: One S. H. Abbott, who was postmaster at Alvord, I find, by
accident, is writing to the department that you do not pay your bills,
and that there is no need of anything more than a weekly mail.

I wish you would see this man at once and satisfy him; pay him whatever
is reasonable and report to R. C. Williamson, at The Dalles.

I suppose that is what he is after. He knows nothing of the through
mail, and probably a weekly is all he needs; but more likely he wants
some money. He complained once before to the department that he had to
make a special trip to Camp McDermitt to make his returns, and I sent
him thirty dollars, and it was all right. Now, I suppose, he wants a
little more money. Yours, &c.,

John R. Miner

That letter was introduced to show that there was a conspiracy between
Miner and Brady; and yet when that man complained that the service was
not put on at the time it should have been, and that he was postmaster,
was forced to carry his returns to the nearest post-office, and
consequently spent about thirty dollars, Miner sent him the money.
Why? Because he and Brady were not confederates; because they were not
conspirators. For that reason he sent the man thirty dollars. The letter
says, "The man that was postmaster." When this letter was written Mr.
Abbott was not postmaster; he had ceased to be postmaster. Yet they
have endeavored to impress upon you the idea that when this letter
was written to Abbott he was then postmaster. He had written a letter,
stating that a weekly mail was all that was wanted, and that Mr. Carey
did not pay his bills. Mr. Miner wrote to Carey on that account, "The
man is trying to make trouble. He tried to make trouble once before, and
we sent him thirty dollars. He is not postmaster now. He has no official
position. Go and see him. Give him what is reasonable, and tell him to
mind his own business." Why? If he had been in a conspiracy with Brady
he would not care what Mr. Abbott wrote to the department. If he was
absolutely certain there he would not care anything about it. But having
no arrangement with the Second Assistant, having no arrangement of the
kind set forth in the indictment, he did not want Mr. Abbott to write
letters; he did not want Mr. Abbott to make trouble. That letter,
instead of showing that there was a conspiracy, shows absolutely that
there was not, and the letter was not written to him while he was an
official. The man was not then postmaster. He simply had been.

The next point made by Mr. Ker is a very powerful point, that Mr. Vaile
came from Independence, where the James boys came from, and where they
steal horses. Suppose I should say that Mr. Ker comes from Philadelphia,
the town that Mr. Phipps lives in, the man who stole the roof off of the
poorhouse. Would there be any argument in that?

Mr. Ker says that J. W. Dorsey wrote in his letter that the profits
would be one hundred thousand dollars a year. That was a mistake. I turn
to the letter and I find that it says one hundred thousand dollars in
the life of the contract, and not one hundred thousand dollars a year.

Mr. Bliss. Your Honor, I claim the right to call attention to the
fact that Mr. Ker read the letter in full referring to the one hundred
thousand dollars clear of expenses. He read it and then followed it
by the statement of one hundred thousand dollars a year, which was
obviously a mistake.

Mr. Ingersoll. That only makes it worse. After he had read the letter
to the jury, and while the echoes of the letter were still in the
court-room, he then said one hundred thousand dollars a year, while
the letter said one hundred thousand dollars within the life of the
contract. Upon such statements, gentlemen, they expect to strip a
citizen of his liberty. [To counsel for the Government.] You will have
some work to do in a little while. It may be that Mr. Ker forgets these
things. I do not say how it happened.

Mr. Ker also tells you that Miner wanted to cut out S. W. Dorsey and
J. W. Dorsey and Mr. Peck. Was that because he was a co-conspirator? He
also tells you that Miner deserted his friend S. W. Dorsey. Was he at
that time a conspirator? Mr. Ker tells you that S. W. Dorsey wanted to
gratify his spite against Vaile and that the first thing he did after he
got out of the Senate was to write that letter to the Second Assistant
Postmaster-General against the subcontracts. Does that show they were
co-conspirators? Did he want to gratify his spite because he had made a
bargain with them by which they were to realize hundreds of thousands of
dollars?

Mr. Ker also says that Miner's letter to Tuttle shows the conspiracy.

It is perfectly wonderful, gentlemen, how suspicion changes and poisons
everything.

Let me read you the letter from which Mr. Ker draws the inference that
there was a conspiracy. It is on page 885:

Washington, D. C., August 19, 1878. Frank A. Tuttle, Box 44, Pueblo,
Colo.,

Dear Sir: Yours 14th received. We accept your proposition, provided (so
that there shall be no conflict) that a friend of ours, who has recently
gone to Colorado, has not made different arrangements before we can get
him word.

The petition for expedition should be separate from the petition for
increase of number of trips. We make no boast of being solid with
anybody, but can get what is reasonable. Yours, truly,

Miner, Peck & Co

You are told that is evidence of a conspiracy. Suppose the letter had
been this way: "We boast of being solid. We can get anything, whether
reasonable or not." That probably would have been evidence of perfect
innocence. He writes a letter and says:

We make no boast of being solid with anybody, but can get what is
reasonable.

They say that is evidence of conspiracy. Suppose he had written the
opposite, "We do boast of being solid and we can get anything, whether
it is reasonable or not." According to their logic that would have been
evidence of absolute innocence. Whenever you are suspicious you extract
poison from the fairest and sweetest flowers. Prejudice and suspicion
turn every fact against a defendant.

On page 4557 Mr. Ker tells us that Vaile never saw Peck, and yet had the
impudence to write that his subcontract was signed by Peck in person.
The subcontract is in evidence here. Nobody pretends that it was
not signed by Peck, and yet that is brought forward as a suspicious
circumstance against Mr. Vaile, because there is no evidence that Mr.
Vaile ever saw Mr. Peck. Is there anything in a point like that? "My
contract was signed by Mr. Peck in person." He does not mean by that
that he saw him sign it. The evidence here is that it was signed by
Peck, and yet the fact that he says Peck did sign it, and the fact that
he had never seen Peck, Mr. Ker endeavors to torture so that you will
think he wrote what he knew to be untrue.

On page 3251 Mr. Ker says that Miner does not deny writing the letter
marked 63 E. This letter was dated the 10th day of May, 1879, and was on
one of the Dorsey routes.

Miner swears that he never signed a paper, never touched pen to paper on
any of the Dorsey routes after the 5th day of May, 1879.

Now, gentlemen, after having made all these statements to you, and I
have only taken up a few of them, these misstatements, these mistakes,
Mr. Ker winds up by telling you it is the safer plan to find a verdict
of guilty, because if you find them guilty wrongfully the Court will
upset your verdict.

Gentlemen, you have sworn to try this case according to the law and the
evidence. You are the supreme arbiters of this case. It is for you to
decide upon this evidence, and for you alone. Yet you are told by Mr.
Ker to shirk that responsibility. You are told by him to violate your
oaths and find against these defendants, for the sake of certainty,
and then turn them over to the mercy of the Court. That is not the law.
These defendants are being tried before you. They have the right to your
honest judgment. If you have any doubt as to their guilt you must find
them not guilty or violate your oaths. You are told it is the safer way
to find them guilty and then let them appeal to the Court for mercy!
That doctrine is monstrous. It is deformed. Such a verdict would be the
spawn of prejudice, and cowardice, and perjury. You cannot give such a
verdict and retain your self-respect. You cannot give such a verdict
and retain your manhood! If you have any doubt as to the guilt of these
defendants you must say they are not guilty. You have no right to turn
them over to the Court, no matter whether the Court is merciful or
unmerciful. You must pass upon their guilt, and you must do it honestly.

I never heard so preposterous, so cruel a sentiment uttered in a court
of justice. It amounts to this, gentlemen: If you have any doubt of
guilt resolve the doubt against the defendant. If the evidence is not
quite sufficient, find against the defendants and turn them over to the
mercy of the Court. Why should we have a jury at all? Why should you sit
here at all? Why should you hear this evidence, if after all you are to
shirk the responsibility and turn the defendants over to the Court? You
never will do it, gentlemen.

Now, gentlemen, I wish to call your attention to a few points made by
Colonel Bliss. You must remember that Colonel Bliss has been very highly
complimented by his associates as a kind of peripatetic index of this
case, an encyclopedia of all the papers; that he never makes a mistake;
that he recollects amounts with absolute certainty, and that he is
infallible. Keeping all these things in your mind, I wish to call your
attention to some statements that he has made. First of all, I will
refer to a little of his philosophy, or law, and that is, that in
every affidavit you should state not the number necessary on the then
schedule, but the actual number, and that there could be no doubt about
the number of men and horses used at the time when an affidavit was
made, and that consequently anybody making an affidavit should put in
the number then actually used.

Let us see how that will work. He says the oaths are false because they
do not state the actual number of men and horses employed in carrying
the mail at the time they were made. He says that the person making the
affidavit swore to the number actually employed, and that where that
number was not employed that fact of itself shows the affidavits to
be false. I say that is not the law. The law calls for the number
necessary, not the number actually employed. Let me show how easy it
would be to cheat the Government on the principle laid down by the
gentleman. I will show you how infinitely silly that is. Let me
illustrate. Here is a route one hundred and fifty miles long, once a
week. You know it is possible for one man and one horse for a little
while to carry that mail and to go one hundred and fifty miles one way
and one hundred and fifty miles the other, making three hundred miles in
a week. You can take a magnificent horse and a good, stout, tough man,
and you can do it.

The Court. Or a boy.

Mr. Ingersoll. Or a stout, tough boy.

The Court. A boy would be best.

Mr. Ingersoll. You do not need any boy. Just one man and one horse will
answer. The man can ride the horse one hundred and fifty miles in three
days, and then ride one hundred and fifty miles back in the next three
days. All you have to swear to, according to Mr. Bliss, is the number
actually used, and so you would come in and swear to two on this route.
Now, when you are making an affidavit as to the number to be used on
a schedule to be made, you cannot swear to the number actually in
use, because they are not then in use. You have to swear to the number
necessary. You have to swear to the number required.

Now, see. On a mail route one hundred and fifty miles long I would only
want a good smart horse, and one good active man or boy. I would not
need to carry it more than one week, because I could make the affidavit
for that week, and then the question would be how many men and horses
would be required for a daily mail on the same route. I would put in a
reasonable number, and the difference between the number then actually
used and the reasonable number to use would be the standard by which to
fix my pay.

If you take the man and horse actually used, and then take the number
that would reasonably be used, you would make a difference of a thousand
per cent. And yet that is the doctrine laid down here to guide us as to
these affidavits.

Let me tell you what the law is. It does not make any difference what
you are really using at the time. You must swear to the number that
would be reasonably necessary to carry the mail on the then schedule.
You must swear to the number that would be reasonably necessary to carry
the mail on the proposed schedule. In the first place, if you put a
great deal of work on a man and horse, you must put the same proportion
on man and horse in the second schedule. If you are easy on man and
horse in the first schedule, you must be easy on man and horse in the
second. The only object, gentlemen, is to keep the proportion, because
you are to be paid according to the number of men and horses used.

Now, they say it would be necessary to go out there in order to tell how
many men and horses would be necessary, and that the men who made these
affidavits had never been on the routes. There was no need of being
on the routes. I could give you the number required on any route two
hundred or five hundred miles long. I could give you the number of men
and horses reasonably required to carry the mail once, twice, three
times, or seven times a week; and I could give you the number reasonably
required to carry it at the rate of three miles an hour or five miles an
hour or six miles an hour without going there. I need not go there for
the purpose of the affidavit. I can take it for granted that the road
is good and level, and I can keep exactly the same proportion and nobody
can be defrauded. If you take the rule of Colonel Bliss it would be
the easiest thing on earth to defraud the Government. That would be by
taking the actual number in use and then taking the number necessary.

Oil page 4761 Mr. Bliss makes the point that according to law the Second
Assistant Postmaster-General was not bound to allow according to the
affidavits. He is right as to that. That is what Mr. Bliss says, and
that is what John W. Dorsey swore he thought, and that is what Mr.
Thomas J. Brady swore he did. He did not take the affidavit as a
finality. Mr. Thomas J. Brady said that he took it for granted that the
man, when he made the affidavit, thought it was true, and that the
man, when he made the affidavit, swore to the best of his knowledge and
belief. But Thomas J. Brady never swore that he considered himself bound
by the affidavit. On the contrary, he swore that he had a standard in
his own mind, and that expedition was to cost thirty dollars a mile,
or something of that kind. He went by that standard, and he gauged the
affidavits by it.

On page 4762 Mr. Bliss says that Brady admitted that he made no inquiry
as to the truth of affidavits, and that he accepted them as absolutely
conclusive. On page 3434 Mr. Brady swears:

I accepted their statement as conclusive so far as they knew.

Brady also swears that he had his standard in his own mind, as I said
before, and that he had an opinion of his own, and that by that standard
and opinion he was governed.

On page 4765 Mr. Bliss charges that Brady took the oath of Perkins on
route 38113 as the basis for the expedition. Mr. Turner's calculation on
file shows that that affidavit was not the basis of the calculation.

Mr. Bliss. Your Honor, allow me to say that subsequently I stated to
the Court and to the jury distinctly that while the indorsement on
the jacket recited the Perkins affidavit as being the one used, or
the affidavit of the subcontractor, and while Mr. Brady transmitted to
Congress that Perkins affidavit as the one upon which he acted, I still
believed that the calculation showed that he used the other affidavit.

Mr. Wilson. He never made that statement until he made it during the
progress of my argument when I was discussing that very point.

Mr. Bliss. You are mistaken.

Mr. Merrick. He made it while I was here and I was not here during Mr.
Wilson's argument.

Mr. Ingersoll. If he has taken it back three times, that is enough.
On page 4766 Mr. Bliss charges Brady with having two affidavits on the
Pueblo and Greenhorn route, from John W. Dorsey, on the same day.

Mr. Bliss. Mr. Henkle called my attention to the fact that it was not
the Greenhorn route, but the Pueblo and Rosita route, and I corrected
it.

Mr. Ingersoll. Good enough. I did not know about his taking it back. I
was not here at the time. The fact was, however, that only one affidavit
was ever filed, and that was an affidavit, not by J. W. Dorsey, but by
John R. Miner.

Mr. Bliss. There were two on the Pueblo and Rosita route by John W.
Dorsey.

Mr. Ingersoll. We will come to them. You will get tired of them before
we get through with them.

On page 4767 Mr. Bliss refers to two affidavits. The first affidavit,
the one not used, calls for three men and seven animals on the then
schedule. That makes ten. On the proposed schedule of eighty hours it
called for nine men and twenty-seven animals. That makes thirty-six. The
proportion then in this affidavit is 3.6, that is, the pay would be 3.6
times the original pay. In the second affidavit five men and fifteen
animals, twenty in all, are called for on the then schedule, and on the
proposed schedule twelve men and forty-two animals. The proportion there
is 2.7. So that the affidavits, leaving out the fractions, which are
substantially the same, stand in this way: By the first the contract
price would have been multiplied by three and the contractor would have
had three times the original pay, and by the second he would have had
twice the original pay. Substituting an affidavit at only double the
pay is called a fraud, because they withdrew an affidavit for treble the
pay. That is what Mr. Bliss calls a fraud. He says still that it is a
fraud.

Now, then, there were two affidavits, and these two affidavits,
gentlemen, Mr. Bliss well knew were filed on different schedules. The
first affidavit was filed on a proposed schedule of eighty hours. The
second affidavit was filed on a proposed schedule of fifty hours. The
affidavit agreeing to carry the mail in fifty hours offered to do it
at double the pay. The affidavit on eighty hours wanted three times
the pay, or substantially that. One was 3.7 and the other was 2.6. Just
think of trying to make that a fraud on the Government. Suppose they had
filed a third affidavit and offered to carry it for nothing. That would
have been carrying a fraud to the extreme.

Mr. Bliss. Your Honor, with reference to that, I said, expressly
referring to these two affidavits: It is not a question of proportion.
The question is whether the mere existence of those double affidavits
did not give Brady conclusive notice that the man who could make those
affidavits was not a reliable man, because no matter what the time was
to which it was to be increased, he stated the number necessary on the
then schedule, as so and so in one affidavit and in the other he stated
the number differently. I referred to it solely in that connection, as
the language shows on the page referred to.

Mr. Ingersoll. For instance, a man writes, "You owe me five hundred
dollars according to my books," and writes the next day, "I have made a
mistake. You don't owe me anything." Mr. Bliss insists that the second
letter would show that the man was not to be relied upon. That is his
idea of honesty. If in the first letter he had written that I did
not owe him anything, and in the second letter I did, that might be
suspicious. But when in the first he writes that I owe him and in the
second that I do not, there can be no suspicion as to his honesty. In
the first affidavit this man stated so much, and in the second affidavit
he put it one-third less. That simply shows the man was paying attention
to it and wanted to make an honest offer. And yet everything in this
case is poisoned with prejudice and suspicion.

Another point: Mr. Bliss, on page 4770, says that on the Pueblo and
Rosita route the number of trips was seven and that there was no
increase. Upon that statement he bases an argument of fraud. The
argument is that there was no increase of trips. Now, on page 866, the
order shows that in the first place there was one trip a week and there
were six trips added. That makes seven. The original pay was three
hundred and eighty-eight dollars. Six trips were added, and the value
of the six trips, which gave two thousand three hundred and twenty-eight
dollars of additional pay. Yet Mr. Bliss tells you that there was no
increase of trips. As a matter of fact, six trips were added, and that
was all that could be added.

Mr. Bliss. Were they added coincidently with the affidavit for
expedition?

Mr. Ingersoll. You say they were not added; I say they were.

Mr. Bliss. No, sir; I said at the time of the expedition there was no
increase of trips and the affidavit was based upon the seven trips.

Mr. Ingersoll. I say that at that time there was an increase.

Mr. Bliss. Your Honor, the point is this: I think I am right in saying
that the increase of trips took place after the expedition. That is
my recollection about it. I have not referred to the record. I think
Colonel Ingersoll will find that is so.

Mr. Ingersoll. We will see whether you are right. At the time the
affidavit was made there were just three trips, and afterward there were
four trips added. Let us get it exactly right. I read from page 866:

Date, July 8, 1879. State, Colorado.

Number of route, 38134.

Termini of route, Pueblo and Rosita.

Length of route, fifty miles.

Number of trips per week, one.

Mr. Bliss. I see you are right. The trips were increased.

Mr. Ingersoll. When anybody gives it up I will stop. That is fair and
that is honorable.

Now, the next point. On page 4771 Mr. Bliss says that the oath on the
Toquerville and Adairville route was made for seven trips, although the
order only gave them six trips, of course the inference being that they
got as much pay for six trips as they were entitled to for seven trips.
On page 3290 the original order was for one trip. Two trips were added.
Look on page 949 and you will find that more trips were added. The
second order increased four trips, and that made seven in all; and yet
Mr. Bliss makes the statement that there were only six. That is another
mistake.

Another point. On page 4772 Mr. Bliss states that Mr. Rerdell spoke in
his testimony about J. B. B. I have referred to that. I have referred
before to the claim that Rerdell was sustained by the testimony of Mr.
Bissell. As a matter of fact, I do not remember that Mr. Rerdell ever
said one word in his testimony as to charging anything to J. B. B.

Ninth point. At page 4778 Mr. Bliss states that Dorsey admitted in his
letter to Anthony Joseph that the average rate for mail service on star
routes was only five dollars a mile. Mr. Dorsey says in his letter no
such thing. He says the "average cost of horseback service"; he does
not use the language employed by Mr. Bliss, "The average rate for mail
service on star routes," but he says, "The average cost of horseback
service." That is a small point, but it shows how anxious the gentlemen
are to get the thing fully as big as it is.

Tenth point. At page 4783 Mr. Bliss says that Brady cut off forty-nine
thousand dollars of increase on the Mineral Park and Pioche route on the
22d of January, 1879, because the mail bills showed so little business.
That is another mistake. The order cutting off the forty-nine thousand
dollars was made on the 22d of January, 1880, not 1879. I mention this
simply for the sake of accuracy.

Eleventh point. At page 4785 Mr. Bliss says that the mail bills on the
Silverton and Parrott City route showed that Brady ran the service up
from seven hundred and forty-five dollars to fourteen thousand nine
hundred dollars, and that the fourteen thousand nine hundred dollars
was afterwards increased to thirty-one thousand three hundred and
forty-three dollars and seventy-six cents. The record shows nothing
of the kind (see pages 1894-5). The original pay was one thousand four
hundred and eighty-eight dollars (page 1854). The pay under the order
of June 12, 1879, was six thousand five hundred and twelve dollars and
twenty-eight cents (page 1855). No other increase was ever made. On
page 1855 is the increase and expedition, being in all fourteen thousand
eight hundred and eight dollars and sixty three cents. The original pay
was one thousand four hundred and eighty-eight dollars. A little change
was made in the route that brought it up to one thousand seven hundred
and three dollars and sixty-five cents. That, together with the
expedition, makes a total of sixteen thousand five hundred and twelve
dollars and twenty-eight cents. And yet Mr. Bliss told you that it
was thirty-one thousand three hundred and forty-three dollars and
seventy-six cents. So that this encyclopaedia of the papers made a
mistake, in one year, of fourteen thousand eight hundred and thirty-one
dollars and forty-eight cents. For the whole contract time it would be
a mistake of forty-five thousand dollars. And yet, strange as it may
appear, that mistake was made against the defendants. Well, let us go
on.

Twelfth point. On page 4800, bottom line, Mr. Bliss says:

They got so much in the way of offering petitions that Mr. Rerdell being
told by Stephen W. Dorsey, upon this route from Pueblo to Greenhorn,
to go to work and alter the petitions, inserted the words "and faster
time."

As to this petition, 7 B, in which are the words "and faster time,"
George Sears swears, at pages 829 and 830, that it is in the same
condition now as when it was signed by him, he thinks. Thereupon Mr.
Bliss told you that he was mistaken in the paper. You must recollect
these things.

Mr. Bliss. Are there not two petitions there altered?

Mr. Ingersoll. That is on another route. There were 7 B, 11 B, and 12
B. 7 B was the written paper, and you introduced 11 B and 12 B. One said
"quicker time," and one said "on faster schedule," and yet in the very
next paragraph they asked to have it run in eight hours. Mr. Rerdell
had to admit that he put in the words without knowing what the petition
called for, and that Dorsey instructed him to put them in.

Mr. Bliss. Your Honor, in the very same paragraph, the very line, where
I said "faster schedule," I called attention to the fact that the words
were unnecessary.

Mr. Ingersoll. That is not the only point. The point is, who wrote
"faster time"?

Mr. Bliss. That is not what I said. You have not given the whole
sentence.

Mr. Ingersoll. You cannot expect me to read your whole seven days'
speech. That would be too much. This is what you said:

They got so much in the way of altering petitions that Mr. Rerdell being
told by Stephen W. Dorsey, upon this route from Pueblo to Greenhorn,
to go to work and alter the petitions, inserted the words "and faster
time."

That is it exactly.

Mr. Bliss. Then follows this:

He inserted "and faster schedule," "on quicker time," though there was
not any necessity for doing that, because if they had gone further down,
after some argument in the petition, to the request for expedition, they
would have seen that there was no necessity for that little forgery up
there.

Mr. Ingersoll. That is a magnificent admission. "There was no necessity
for" putting that in. I am glad he admits that. He would ask you to
believe that S. W. Dorsey, a man of intelligence and brains, would ask
to have a petition forged, altered, interlined, without knowing what was
in that petition. It will not do, gentlemen.

Thirteenth point. At page 4810, Mr. Bliss says that McBean told Moore,
in reference to route No. 44140, Eugene City to Bridge Creek, "that he
could carry all the mail in his pocket."

Now, as a matter of fact, Mr. McBean does not state any conversation
with Moore covering this route. That was another mistake. No matter.

Fourteenth point. At page 4814, Mr. Bliss, in speaking of the Ojo
Caliente route, says the service in fact never was performed in fifty
hours; that the evidence of that is conclusive. Now, let us see. Here is
a jacket on page 3008, and that jacket shows that out of seventy-eight
half trips, expedition was lost on twenty-three and made on fifty-five.
Yet Mr. Bliss tells you it never was made. The jacket on page 3040 shows
that expedition was lost on twelve half trips and made on sixty-six. And
yet Mr. Bliss says it was never made. The jacket on page 3056 shows that
at the time they were carrying seven trips a week, nineteen expeditions
were lost out of one hundred and ninety-two half trips. And yet Mr.
Bliss says the fifty-hour schedule never was made. Another mistake.

Mr. Bliss. That is long after the time I was referring to. As to the
other point, I simply repeat it.

Mr. Ingersoll. It will not help it to repeat it. For every expedition
lost on this route or any other the Government did not pay. When the
expedition was lost, the pay was deducted; when the expedition was made
the pay was given, and not otherwise. You see, gentlemen, how they have
endeavored to get the facts before you; what a struggle it has been over
all these obstacles—lack of memory, the immensity of this record—how
they have climbed the Himalayas of difficulty; how they have gone over
the Andes and Rocky Mountains of trouble to get at the facts!

Fifteenth point. On page 4820 Mr. Bliss states that there could not have
been legally allowed, on the evidence on The Dalles route, on expedition
over $4,144. As a matter of fact, the evidence does not cover the whole
route as to the number of men and horses used. The Government never
proved the number of men and horses necessary to carry the mail over
the whole route, but only a part. Mr. Ker admits that the evidence is
defective in that regard. When you have no standard, gentlemen, you
cannot measure.

Sixteenth point. On page 4820 Mr. Bliss, in speaking of the route from
Eugene City to Bridge Creek, says that, taking the undisputed facts as
they were, before and after the expedition, Brady could not legally have
allowed more than $2,991.23. The evidence is (page 1343) that Wyckoff
was the subcontractor from July, 1878, to 1880. Powers first carried the
mail in 1880. The route was increased and expedited in June, 1879. Mr.
Powers never carried it from the expedition. Mr. Wyckoff was the only
man who did that, and Mr. Wyckoff was not called. Consequently there was
no evidence as to the number of men and horses used on either schedule.
That left the gentleman without a standard and without a measure.

Seventeenth point. On page 4820 Mr. Bliss says that on the Silverton
and Parrott City route the oath was made for seven trips a week on
the present schedule, when it ought to have been two trips on the old
schedule and seven trips for the new schedule. As there is no evidence
as to the number of men and horses used on the old schedule, of course
there is no evidence in this record to impeach that oath; you cannot
find it.

Eighteenth point. On page 4822 Mr. Bliss states that after the passage
of the act of April 7, 1880, there were two increases upon the White
River route. The fact is there was just one after the passage of that
law. Of course a little mistake like that does not make much difference
in a case of this magnitude.

Nineteenth point. On page 4824 Mr. Bliss states that Raton was put on
the Trinidad route April 24, 1879 (Page 1031 ). The office was embraced
on the routes July 1, 1878. The first order in reference to it was made
June 6, 1878. It was put on the route from July 1, 1878, increasing the
distance twenty-three miles. Yet Mr. Bliss tells you that it was put on
the route April 24, 1879.

Mr. Bliss. Is not that the date of the order?

Mr. Ingersoll. It may have been the date of your order.

Mr. Bliss. Is not that the date of the order in the case?

Mr. Ingersoll. I do not know anything about that. I give you the exact
facts.

Twentieth point. On page 4825, Mr. Bliss, in speaking of the Ojo
Caliente route, charges that by the order increasing the trips on this
route in February, 1881, there was paid from the Treasury illegally two
thousand and eleven dollars and forty-six cents. As a matter of fact
had we been paid for that entire quarter it would have amounted to seven
thousand one hundred and thirty-nine dollars and forty-one cents. The
pay was not adjusted until April 22< 1881 (page 731). The amount that
was then paid was not seven thousand one hundred and thirty-nine
dollars and forty-one cents, but it was three thousand seven hundred
and twenty-seven dollars and twenty-two cents. It was not for the entire
quarter, but simply for the actual service rendered. The quarterly pay
for the preceding quarter, before the expedition, was three thousand
three hundred and fifty-eight dollars and twenty-six cents; showing that
we received only for that quarter an excess, on account of expedition,
of three hundred and sixty-eight dollars and ninety-six cents. But
he told you that we got illegally two thousand and eleven dollars and
forty-six cents. That is a small matter.

Twenty-first point. On page 4897, Mr. Bliss says in effect that Dorsey
undertook to state that he kept no books; that he was doing a business
amounting, I think he says, to six million dollars a year, and yet he
kept no books. On the contrary, Dorsey swore that he did keep books; on
the contrary, he swore that Kellogg was his book-keeper. Kellogg swore
that he did keep the books. Torrey swore that he was his book-keeper,
and kept the books. And yet Mr. Bliss stood up before this jury and said
to you that Mr. Dorsey wanted you to believe, or stated that he kept
no hooks of that immense business. It will not do. No books but the red
books, I suppose, were kept.

Twenty-second point. At page 4883, Mr. Bliss says that in regard to one
of Vaile and Miner's routes (Canyon City to Fort McDermitt) there were
large profits, amounting to twenty thousand dollars a year. Then he says
eighty thousand dollars during the four years. And yet Mr. Bliss knew at
that time that that expedition lasted only eleven months. Trying to fool
the jury about sixty-two thousand dollars.

Twenty-third point. On page 4815 Mr. Bliss states that the fines on the
Bismarck and Tongue River route, during Brady's administration, were
only thirteen thousand dollars. If you will look at page 727 of this
record, where the table is put in evidence as to the fines, you will
find that he deducted from the pay twenty-nine thousand two hundred and
twenty-four dollars. Mr. Bliss made a mistake of sixteen thousand two
hundred and twenty-four dollars. But in a case like this that is not
important. Gentlemen, you know you cannot always be accurate.

Mr. Bliss is an accurate man, as a rule. He has been called the index of
this business for the Government. Twenty-fourth point. On page 4987 Mr.
Bliss says:

The one fact of the evidence of the payment of money by Dorsey to Brady
remains the same whether the books were put out of the way by Dorsey or
by Rerdell. That is the great central point, so far as the books were
concerned; and as to that the testimony is absolutely uncontradicted.

Mr. Brady swears that Dorsey never gave him a dollar. Dorsey swears that
he never had a money transaction with Brady amounting to one cent. Mr.
Rerdell does not pretend to swear that he knows of Mr. Dorsey having
paid a dollar to Mr. Brady. He does not pretend to swear that he knows
of any one of these defendants having paid one dollar to Mr. Brady. And
yet Mr. Bliss will tell you that the fact that Dorsey paid Brady money
is uncontradicted.

Mr. Bliss. I did not intend that, Colonel Ingersoll. I do not think it
is capable of that interpretation.

Mr. Ingersoll. What did you mean?

Mr. Bliss. As to the statement being in the books it is uncontradicted.

Mr. Ingersoll. Let me see. He now turns and says he did not mean the
money, he meant the books. The evidence is overwhelming on our side that
the books did not exist. When you deny the existence of the book I take
it you deny the existence of any item in it. It is a question whether
any such books ever existed, gentlemen. Rerdell swore in the
affidavit of June 20, 1881, and he swore to that affidavit three times
hand-running, that no such books existed. He swore substantially the
same thing on the 13th of July, 1882. He told Mr. French that no such
books ever existed. He told Judge Carpenter that no such books ever
existed. He stated to Bosler that no such books ever existed. And
now this gentleman says the evidence is uncontradicted that Brady was
charged in those books. That is a good deal worse than the other. Let us
go on.

Twenty-fifth point. At page 4962 Mr Bliss says that Mr. Dorsey,
according to his own statement—Had brought Rerdell up and led him to
infamy.

Did Dorsey make any such statement? Did Mr. Dorsey, gentlemen, in
your presence, swear that he had brought Rerdell up? Did he, in your
presence, swear that he had led him to infamy? Did he, in your presence,
swear that he had done anything of the kind? I have got the exact words.

Who, according to his own statement, he, Dorsey, had brought up, had
led to infamy, and who, according to his own statement, had stated that
MacVeagh had told a lie.

A curious use of the English language. I believe it is in that
connection, though, that he speaks about Mr. Dorsey having the impudence
to go to the President of the United States. That is not a very impudent
proceeding. In this country a President is not so far above the citizen.
In this country we have not gotten to the sublimity of snobbery that a
citizen cannot give his opinion to the President; especially a citizen
who did all he could to make him President; especially a citizen in
whom he had confidence. Not much impudence in that. I do not think that
during the campaign General Garfield would have regarded it impudent on
the part of Mr. Dorsey to speak to him. I do not believe in a man, the
moment he is elected President, feeding upon meat that makes him so
great that the man who helped put him there cannot approach him, and
every man who voted for him helped to put him there. I am a believer in
the doctrine that the President is a servant of the people. I have not
yet reached that other refinement of snobbery.

Mr. Bliss. In point of fact, Colonel Ingersoll, I made no such
statement. Now let me read the passage on the very page you refer to.

Patched up the affidavit of Mr. Rerdell, addressed it to the President,
admittedly went to the President with it, and then had the impudence to
come here and malign the character of General Garfield by saying that
upon that affidavit of an accused man, instead of seeking a trial, he
would have removed two members of his Cabinet.

I meant nothing about the impudence of going to the President.

Mr. Ingersoll. He had the impudence then to come here and malign
Garfield by saying that upon that statement he would have turned out two
members of his Cabinet. That is Mr. Bliss's idea of impudence; and yet,
upon the testimony of the same man, he wants to put five men in the
penitentiary.

Mr. Bliss. Not upon the sole testimony, I suppose.

Mr. Ingersoll. Not upon the soulless testimony. Now, I think that Mr.
Dorsey had a right to go and see Mr. Garfield. I think he had a right
to take that affidavit with him. General Garfield was told what this man
had said concerning Mr. Dorsey. He had the right to take that
affidavit of that man with him so that General Garfield, or the then
Attorney-General rather, might know how much confidence to put in the
statement of that man. He had a right to do that. If he found in this
way that his Attorney-General and his Postmaster-General were seeking
to have a man convicted by means not entirely honorable, then it was
not only his privilege, but it was his duty to discharge them from his
Cabinet. But I am not saying anything in regard to them now, because
they are not here to defend themselves.

Mr. Bliss. I want to correct myself. Further down on that page I see I
did refer to the impudence of this man going to Garfield.

Mr. Ingersoll. Well, as Mr. Bliss has been fair enough to state it, I
will not follow up my advantage. On another page Mr. Bliss says that
the idea that Mr. Vaile did what he did for Miner out of any sympathy is
"too thin." Mr. Bliss cannot believe that Vaile became Miner's friend
so suddenly, but he thinks it highly probable that they conspired
instantly. That is his view of human nature. Friendship is of slow
growth; conspiracy is a hot-house plant. Gentlemen, is that your view of
human nature, that a man cannot become the friend of another suddenly?
Whenever he does become his friend the friendship has to be formed
suddenly, does it not? There is a first time to everything. A moment
before it did not exist; a moment afterwards it is dead very suddenly.

There was a boy came to town one morning and met an old friend. The old
friend asked the boy, "How is your father?" He says, "Pretty well, for
him." "How is your mother?" "Pretty well, for her." "Well, how is your
grandmother?" "She is dead." "Well," says the old man, "she must have
died suddenly." "Well," said the boy, "pretty sudden, for her."

Whenever one man becomes the friend of another's, a moment before that he
was not, and a moment after he was. It must be sudden. But I imagine that
there was a friendship sprang up between Vaile and Miner, and I will
tell you why. They have been partners ever since. You, gentlemen,
have had the same experience a thousand times. It is not necessary to
conspire with a man in order to like him. Neither is it necessary to
like him to conspire with him. Men have conspired without friendship a
thousand times more, probably, than they have formed friendships without
conspiracy.

Mr. Bliss says that because Miner failed to produce the power of
attorney that Moore swore was given to him when he went West, the jury
have a right to infer that instructions to get up false petitions were
in writing and were included in that power of attorney. Mr. Moore did
not swear to the contents of that power of attorney. Do you think that
it is within the realm of probability that a man ever gave a power of
attorney to another and inserted in it: "You are hereby authorized
to get up false petitions; you are further authorized to have them so
written that you can tear them off and paste others on?

"N. B. You will make such contracts with all contractors.

"P. S. Don't tell anybody."

There was another witness in this case, Mr. Grimes (page 808). Not
the one that wore the coat—All buttoned down before—but Mr. Grimes,
postmaster at Kearney. He came all the way here to swear that he stopped
using mail bills on the route from Kearney to Kent because he was
so ordered by a letter from the Post-Office Department. Then it was
discovered that he did not have the letter with him; he went home to get
the letter, but he never came back any more.

We introduced Spangler (page 341) from the inspection division of the
Post-Office Department; I think he was in charge of that division. He
swore, as a matter of fact, that there never were any mail bills on that
route at all.

Mr. Carpenter. He was in charge of the mail bills on that route.

Mr. Ingersoll. The mail bills on that particular route. That man Grimes
was brought clear here to prove that he stopped using mail bills, and
then we proved that there never were any mail bills used on that route
for him to stop using. I do not suppose that that man was dishonest.
These people just got around him and talked to him until he "remembered
it." They just planted the seed in his mind, and then came the dew
and the rain and the lightning until it began to sprout and in time
blossomed and bore fruit—mail bills. When we come to find out that
there never were any mail bills used, away went Mr. Grimes.

On page 4969 Mr. Bliss says:

They have not, up to this moment, dared to state under oath, I think,
that those books are not in their possession.

On page 3784 Dorsey swears that he never received any such books. Never
saw any such books. He swore again and again that he never heard of any
such books.

Mr. Bliss. I stated distinctly that the defendants had not stated that
in the form required to excuse them from the production. I stated that
distinctly.

Mr. Ingersoll. All right; away goes that.

On page 4983 Mr. Bliss says:

Is it not an absurdity to suppose that Dorsey would leave Rerdell in
charge of his business from July, 1879, to August, 1880, and then on
from that time until the close of the contract term in August, 1882;
leave all the business in that way, and then through Bosler settle the
accounts with Mr. Rerdell and have no knowledge in any way, not only
of the entries contained in the books which Rerdell kept, but have no
knowledge that he kept any books whatever? Is it not absurd to suppose
any such thing? These ten routes represented an income of two hundred
and fifty-odd thousand dollars a year, or a total business, including
income and outgo, of five hundred thousand dollars a year, for three
years, going no further than that. These ten routes alone represented
transactions amounting to half a million dollars a year. There were one
hundred and thirty routes and Mr. Dorsey took one-third in value if
not in number. If the value was the same, Mr. Dorsey took not less than
forty routes. As ten routes involved a business of one million five
hundred thousand dollars in that period, the forty routes involved in
that proportion transactions amounting to six million dollars.

You made a calculation on the supposition that all the routes were
expedited the same as those in the indictment, and when you made that
calculation you knew they were not expedited.

Mr. Bliss. I object, your Honor, to his making any such statement as
that. In the first place, it is not evidence; and in the second place,
which is of more importance, it is not true. I did not know any such
thing, and I do not know any such thing.

Mr. Ingersoll. Do you say now that the other routes of his, to the
number you talked of, were expedited?

Mr. Bliss. I am not on the stand to be cross-examined now. But I do say
to your Honor that there is no evidence of that in this case. And then
I go beyond that, and say that I did not know those things then and I do
not know them now.

Mr. Ingersoll. Very well; he made the argument on the supposition that
all the routes were expedited. I say that not one of them was expedited
in which Mr. Dorsey had an interest.

Mr. Bliss. There is no evidence on that subject.

Mr. Ingersoll. Is there any evidence of what you say?

Mr. Bliss. I put a supposititious case; you have stated a fact.

Mr. Ingersoll. I will put another supposititious case, and mine is that
the other routes were not expedited.

The Court. That is the right way to meet it. Counsel ought not to turn
to counsel on the other side and make an appeal to his knowledge in
regard to matters not in evidence.

Mr. Ingersoll. I know, but he said he did not know it. Then I asked him,
as a matter of fact, if he did not know—

The Court. [Interposing.] He stated his supposition, and you met that
supposition—

Mr. Ingersoll. [Interposing.] I am always glad to get information.
Now, then, I will go to another point, and that is the $7,500 check. Mr.
Bliss speaks of that check at page 4997, and he says:

There is a question raised as to whether it was drawn in Mr. Rerdell's
presence.

I do not think there was. How could such a question be raised,
gentlemen? The check was made payable to M. C. Rerdell, or his order. On
the back of the check is Mr. Rerdell's name, put there by himself. He is
the only indorser. And yet Mr. Bliss tells you that there is a question
raised as to whether the money was drawn in Mr. Rerdell's presence or
not. The check shows, and the evidence is absolutely perfect, that the
money was paid to Rerdell in person. The question is this: Whether it
was drawn in Mr. Rerdell's presence. If it was paid to him in person,
I imagine that he was in that neighborhood at that time. The check was
written by him, everything except the signature of Dorsey. It was drawn
to Mr. Rerdell, or order, and indorsed by Rerdell himself. There was no
other indorser. So that it is absolutely certain that he drew the money
in question. And yet Mr. Bliss says the question is whether it was drawn
in Rerdell's presence or not.

Mr. Bliss continues and states that the money went to S. W. Dorsey. Did
it? Mr. Dorsey, on page 3965, states the circumstances. He was packing
to go away. He had not the time to go to the bank himself. He had
the check written payable to Mr. Rerdell, or order, and he signed it.
Rerdell went to the bank, got the money, brought it back and put it in
his carpet-sack. That is the testimony.

Now, Mr. Bliss says:

No evidence was given as to what Stephen W. Dorsey was wanting just at
that time with seven thousand five hundred dollars in bills.

According to Mr. Rerdell, he wanted that money to give to Mr. Brady.
That is what Mr. Rerdell intended to swear. But when he found that that
check was made payable to him, and indorsed by him, then they had to
take another tack. They dare not say then, "That is the check." They
dare not say then, "That is the money." Rerdell had forgotten at the
time he swore that that check was payable to his order. When he told his
seven thousand dollar story to MacVeagh he forgot about that check.
When he told it to the Postmaster-General, if he did—I have forgotten
whether he did or not—he forgot about that.

Now, gentlemen, I will call your attention to the part to which I really
wish to direct your attention. It is an admission by the Government, an
admission by Colonel Bliss; it is in these words, on page 4997, speaking
of this very thing:

However that may be, they themselves put in a check here for seven
thousand five hundred dollars, drawn about the time Mr. Rerdell spoke
of, the money upon which admittedly went to Stephen W. Dorsey, though
there is a question raised as to whether it was drawn in Mr. Rerdell's
presence or whether it was not drawn by him. But the money went to
Stephen W. Dorsey, and there was a promise made to show you what was
done with that seven thousand five hundred dollars. But, like many
another promise in this case, it remains unfulfilled to-day. No evidence
was given as to what Stephen W. Dorsey was wanting just at that time
with seven thousand five hundred dollars in bills.

Mr. Dorsey offered to tell you what he did with it, and you said you
did not want it; you did not want to know when he was on the stand. He
offered to tell you what he did with the money, and you would not take
his statement. Hear what he says:

Mr. Dorsey was not taking seven thousand five hundred dollars in bills
to the West.

How do you know? Who ever told Mr. Bliss that he was not taking seven
thousand five hundred dollars to the West? He must have got that from
Mr. Rerdell. May be that is the reason they would not allow Dorsey to
tell, because before that time they had been informed that he would
swear that he took the seven thousand five hundred dollars to the West.
How else did Mr. Bliss find this out?

It is not in the evidence, not a line. Somebody must have told him.
Who could have told him? Nobody, I think, except Mr. Rerdell. Is it
possible, then, that Mr. Bliss was afraid that Mr. Dorsey would swear
that he took it West? And was he afraid also that you would believe it?
I do not know. He did not want him to state. Now here is what I want to
call your attention to:

After all the talk about that evidence, all the talk about the seven
thousand dollars, all the talk about the seven thousand five hundred
dollar check, Mr. Bliss at least, admits to this jury:

Of course all that transaction might have occurred precisely as Mr.
Rerdell testified, and there might have involved no corruption on Mr.
Brady's part.

If, then, it may have occurred exactly as Rerdell swore, and involved no
corruption, certainly it might have occurred as Mr. S. W. Dorsey swore
and involved no corruption. I will go on now with a little more from Mr.
Bliss:

The drawing of the money and going to Mr. Brady's room might have been a
mere accident, as a call there to attend to some other business.

Of course, that is reasonable. I might go the bank and draw five
thousand dollars, and then I might stop in the Treasury Department, but
that is no evidence that I am bribing the Secretary of the Treasury. I
might step over to see the President; that would be no reason to believe
that I bribed the Executive.

Of course that is not conclusive. It is only a little straw in this
case, as showing a transaction of that kind involved in connection with
all the evidence you have in this case—A little straw evidence of Mr.
Brady's acts, and particularly as at the time when that occurs evidence
in connection with the large increases which Mr. Brady was then
ordering; evidence in connection with the books, and the evidence
they bear; evidence in connection with the declarations of Brady to
Walsh—evidence all consistent.

And then he adds this piece of gratuitous information:

Mr. Dorsey was not taking seven thousand five hundred dollars in bills
to the West.

How does he know? How did he find that out? And has it come to, this?
Has all the testimony upon that point—has the confession of Rerdell
to MacVeagh and James shrunk to this little measure—that it is "only
a straw"? Has it shrunk to this measure that Mr. Bliss admits that the
whole thing might have been exactly as Rerdell swears, and yet have been
perfectly innocent? Has it shrunk to this little measure? The Government
would not tell us—I presume the Government will not tell us, what check
it was, the proceeds of which were taken by Mr. Dorsey to Mr. Brady.
Neither will they say whether that sum was made up in one check or by
adding together a number of checks; and, if so, what number?

At page 295 Mr. Bliss told you, in his opening speech, that Rerdell had
on one occasion gone with Mr. Stephen W. Dorsey to the bank, and that
seven thousand dollars had been drawn; that he had gone with Dorsey
to the door of the Post-Office Department, or to Brady's room, at the
time—he would not undertake to say which—Mr. Dorsey stating to him
that he intended to pay that money to Mr. Brady, and that he (Mr.
Dorsey) then went in. But when they come to put this man on the stand
he will not swear that Dorsey ever told him that he intended to pay the
money to Brady. Probably that part of the statement, that Dorsey told
him that he was going to pay that money to Brady, can be found in the
affidavit made before Mr. Woodward, in September, and repeated in the
affidavit made at Hartford in November. But it is not in evidence here.

Now, we brought all the checks that we had given on Middleton's bank,
with the exception of two, I believe, that amounted to some hundred and
odd dollars. We gave the Government counsel notice that there were two
others.

Among those checks was this one for seven thousand five hundred dollars.
There were many others. I asked the gentlemen to pick out their check;
they would not do it. I asked the gentlemen to pick out the checks;
they did not do it. And now if we had failed to produce checks that were
important in this case, the Government could have produced the books and
clerks of Middleton & Company, and shown exactly the checks we drew upon
that bank that month. They did not do it. As a matter of fact, I offered
all the checks on all the banks I could think of that we had any
business with in any way, except one, and that turned out to be the
German-American Savings Bank, and it turned out that that went into
bankruptcy eight months before this business; so there is no trouble
about that. Why did they not pick out the checks upon which they claimed
that the money was drawn that was paid to Brady?

Mr. Rerdell, on page 2254, in speaking of the money, swore that money
was charged to Brady on the stub. He says that Dorsey told him, "You
will find the amount on the stub of the check-book." The jury will
notice that he speaks of the "amount," the "stub," and the "book," all
in the singular. That was followed, I believe, by about six pages of
discussion, and everybody who took part in that discussion, the Court
included, spoke of the sum of money as an "amount," upon a "stub," in a
"checkbook."

I call attention to 2254-'55-'56-'57-'58-'59. On all those pages it
is spoken of as a stub of a check-book, or amount on a stub in a
check-book. After the discussion was closed, then the witness began
to talk about "books," "checks," "stubs," and "amounts." Why did he do
that?

His object was to get the evidence broad enough—checks and check-books
enough—to fit their notice, to the end that they might get possession
of all the check-books, and of all the amounts on all the stubs.

What more? The discussion convinced Mr. Rerdell that it would be far
safer to say "stubs" than "stub"; that it would be far better to say
"check-books" than "checkbook," and far better to say "amounts" than
"amount"; because he would have a better chance in adding these up so as
to make six thousand five hundred dollars, or seven thousand dollars, or
six thousand dollars, than to be brought down to one check, one amount,
and one stub-book. So he went off into the region of safety, into the
domain of the plural.

Now, the last point—at least for this evening—so far as Mr. Bliss is
concerned, I believe, is about the red books. Mr. Bliss tells you that
Mrs. Cushman was telegraphed to from the far West. There was a little
anxiety, I believe, on the part of Rerdell about the book, and he
telegraphed her. She found it there in the wood-shed, you know, hanging
up, I think, in the old family carpet-sack—I have forgotten where she
found it—and she put it away. Now, there is a question I want to ask
here, and I know that Mr. Merrick when he closes will answer it to his
entire satisfaction; I do not know whether he will to yours or to mine:
How does it happen that Mrs. Rerdell never saw that red book? How
does it happen that Mrs. Rerdell, when she was put on the stand, never
mentioned that red book? How does it happen that she never heard of it
when her husband went to New York to get it; when everything he had in
the world, according to his idea, was depending upon it; when it was his
sheet-anchor; when it was the corner-stone of his safety? And yet
his wife never heard of it, never saw it, did not know it was in the
wood-shed, slept in that house night after night and did not even dream
that her husband's safety depended on any book in a carpet-sack hanging
in the wood-shed. She never said a word about it on the stand, not a
word. Gentlemen, nobody can answer that question except by admitting
that the book was not there and did not exist.

But perhaps I have said enough about the speeches of Mr. Ker and Mr.
Bliss. Of course, their business is to do what they can to convict. I do
not know that I ought to take up much more time with them. I feel a good
deal as that man did in Pennsylvania who was offered one-quarter of a
field of wheat if he would harvest it. He went out and looked at it.
"Well," he says, "I don't believe I will do it." The owner says, "Why?"
"Well," he says, "there is a good deal of straw, and I don't think there
is wheat enough to make a quarter."

So now, gentlemen, if the Court will permit, I would like to adjourn
till to-morrow morning.

Now, gentlemen, the next witness to whose testimony I will invite your
attention is Mr. Boone. Mr. Boone was relied upon by the Government
to show that this conspiracy was born in the brain of Mr. Dorsey; that
these other men were simply tools and instrumentalities directed by him;
that he was the man who devised this scheme to defraud the Government,
and that it was Dorsey who suggested the fraudulent subcontracts. They
brought Mr. Boone upon the stand for that purpose, and I do not think
it is improper for me to say that Mr. Boone was swearing under great
pressure. It is disclosed by his own testimony that he had eleven
hundred routes, and that he had been declared a failing contractor
by the department; and it also appeared in evidence that he had been
indicted some seven or eight times. Gentlemen, that man was swearing
under great pressure. I told you once before that the hand of the
Government had him clutched by the throat, and the Government relied
upon his testimony to show how this conspiracy originated. Now I propose
to call your attention to the evidence of Mr. Boone upon this subject.

On page 1352 Mr. Boone swears substantially that on his first meeting
with Stephen W. Dorsey—that is, after they met at the house—he said
to Dorsey that he (Boone) would be satisfied with a one-third interest.
Now, the testimony of Boone is that Mr. Dorsey then and there agreed
that he might have the one-third interest.

Mr. Dorsey says it is not that way; that he told him that when the
others came they would probably give him that interest, or something to
that effect.

Mr. Boone further swears that when J. W. Dorsey did come there was a
contract—or articles of agreement you may call them—handed to him by
J. R. Miner, purporting to be articles of partnership between John W.
Dorsey and himself, and that he signed these articles; that that, I
believe, was on the 15th of January, 1878, and that it was by virtue of
that agreement that he had one-third. It was not by virtue of any talk
he had with S. W. Dorsey that he got an interest, and you will see how
perfectly that harmonizes with the statement of Stephen W. Dorsey.

Mr. Dorsey's statement is: "I cannot make the bargain with you, but when
John W. Dorsey comes I think he will, or they will." It turned out that
when John W. Dorsey did come in January he did enter into articles of
partnership with A. E. Boone, and did give him the one-third interest.
So the fact stands out that he got the one-third interest from John W.
Dorsey and not from Stephen W. Dorsey. If the paper had been written and
signed by Stephen W. Dorsey that would uphold the testimony of Boone.
If Boone had said, "I made the bargain with Stephen W. Dorsey," and the
articles of co-partnership were signed by him, I submit that that would
have been a perfect corroboration of Boone. Stephen W. Dorsey swears
that the bargain was made with John W. Dorsey, and you find that the
agreement was signed by John W. Dorsey, and not by Stephen W. Dorsey. I
submit, therefore, that that is a perfect corroboration of the testimony
of Stephen W. Dorsey.

At page 1544 Mr. Boone says that, as a matter of fact, all contractors
endeavored to keep what they were doing secret from all other
contractors. Think of the talk we have heard about secrecy. If the
bidders upon any of these routes did not want the whole world to know
the amount they had bid, that secrecy was tortured into evidence of a
criminal conspiracy. If John W. Dorsey did not want the world to know
what he was doing, if Mr. Boone wanted to keep a secret, these gentlemen
say it is because they were engaged in a conspiracy to defraud the
Government, and crime loves the darkness. What does Mr. Boone say? As a
matter of fact, that all contractors endeavored to keep what they were
doing secret from all other contractors where they feared rivalry. Of
course that is human nature.

Mr. Boone further says that he never knew of one contractor admitting
even that he was going to bid. He always pretended, don't you see, that
he was not going to bid. He wanted to throw the other contractors off
their guard. He did not want them to imagine that he was figuring upon
that same route, because if they thought he was, they might put in a
much lower bid. He wanted them to feel secure, so that they would put in
a good high bid, and then if he put in a tolerably low bid he would get
the route. That is simply human nature.

Boone further says that always when a letting came on he had his bids
in; that contractors keep their bids secret from rival contractors, not
for the purpose of defrauding the Government, but for the purpose of
taking care of their business. Now, gentlemen, when men make these
proposals and keep their business secret—as it turns out that in these
cases they were keeping their business secret—the fact that they are so
doing is not evidence going to show that they are keeping that business
secret because they have conspired. Have you not the right to draw the
inference, and is it not the law that you must draw the inference, that
they kept their business secret for the same reason that all honest men
keep their business secret?

At page 1545, Mr. Boone, swearing again about his talk with Mr.
Dorsey that night after the arrangement was concluded, says that
he—Dorsey—told me to be careful of Elkins, because Elkins was
representing Roots & Kerens, large contractors,   * the largest in the
department, at that time, in the Southwest.

And yet that evidence has been alluded to as having in it the touch and
taint of crime, because S. W. Dorsey said to Boone to say nothing to
Elkins. Who was Elkins? He, at that time, as appears from the evidence,
was the attorney of Roots & Kerens; and who were they? Among the
largest, if not the largest contractors in the department; that is, the
largest in the Southwest.

Mr. Boone stated that the letter of Peck to S. W. Dorsey requested
him to get some man who knew the business to look after the bids or
proposals. Now, I want to ask you, gentlemen, and I want you to answer
it like sensible men, if Stephen W. Dorsey got up a conspiracy himself,
why was it that Peck wrote to him asking him to get some competent man
to collect the information about the bids—that is, about the country,
about the routes, about the cost of living, about wages, the condition
of the roads, and the topography of the country?

If it was hatched in the brain of Stephen W. Dorsey, how is it possible,
gentlemen, that a letter was written to him by Peck asking him to get a
competent man to gather that information? Mr. Boone swears that he had
such a letter. Mr. Boone swears that Dorsey showed the letter to him.
Mr. Boone swears that, in consequence of that letter, he went to work
to gather this information. Did Mr. Dorsey do anything about gathering
information? Nothing. Did he give any advice? None. Did he ask any
questions? Not one. Did he interfere with Mr. Boone in the business?
Never.

You know that was a very suspicious circumstance. I believe there was
a direction given that letters be sent to James H. Kepuer. That was
another suspicious circumstance. Mr. Boone swears that he was also in
the mail business; that he did not want the letters to go some place;
that he had to give at the department an address; that thereupon he
chose the name of James H. Kepner, his step-son, so that all the mail
in regard to this particular business would go in one box, and not be
mingled with the mail in reference to his individual business or the
business represented by the firm to which he belonged. What more does
he swear? That neither Dorsey nor any one of these defendants ever
suggested that name, or ever suggested that any such change be made;
that it was made only as a matter of convenience; that it was not
intended to and could not in any way defraud the Government.

Now, Mr. Boone has cleared up a little of this. He has cleared up the
letter; he has cleared up the charge of secrecy; he has cleared up the
charge that we had the letters addressed to James H. Kepner & Co.; he
has shown that everything done so far was perfectly natural, perfectly
innocent, and in accordance with the habits of men engaged in that
business.

Now I come to the next thing (page 1550). The next great circumstance in
this case, the great suspicious circumstance, was that the amount of the
bid was left blank in the proposals. The moment they saw those blanks
in the bids they knew then that the Government was to be defrauded, and
they brought Mr. Boone here for the purpose of showing that that was
done to lay the foundation for a fraud. What does Boone swear? He swears
that he always left that part of the proposal blank; always had done so;
had been engaged in the mail business for years, and never filled that
blank up in his life, in which the amount of the bid should be inserted.
It was not left blank to defraud the Government, but to prevent the
postmasters and sureties, or any other persons, finding out the amount
of the bid. Away goes that suspicious circumstance.

After the bids had been properly executed and came back into the hands
of the contractors, from the time the figures were put into those
routes, what does he say they did?

We slept with them until we could get them to the department.

He says they never allowed anybody to see them after the amount of the
bid had been inserted; that they would not allow anybody to see
the amount of the bids; that it was left out, however, only for
self-protection, and for no other reason. That is the Government's own
witness. He is the man they brought to show that this blank in the bid
was a suspicious circumstance. He is the man they brought here to show
that because Stephen W. Dorsey had told him to say nothing to Elkins,
that injunction of secrecy was evidence of a conspiracy.

At page 1552, Mr. Boone, in speaking of these same things, says that
however they were made, whether the name of the bidder or the route was
put in, or whatever he did—that is, Boone—he did not do it for the
purpose of defrauding the Government. They say to him, "Don't you know
that you left out not only the amount of the bid, but the name of the
bidder?" He says, "Whatever I did, whether I left out the amount of
the bid or the name of the bidder, I did not do it for the purpose of
defrauding the Government; I had no such idea, no idea of defrauding the
Government by leaving any blank or any blanks." He did the work. Stephen
W. Dorsey left no blank; A. E. Boone left every blank; and yet they
brought him forward to prove that that was the result of a conspiracy;
and after he comes upon the stand he swears, "I left those blanks
myself; I always left them in proposals exactly in that way; and whether
I left out the amount of the bid or the name of the bidder, I did not
do it to defraud the Government; I did it simply to protect myself, as I
had the right to do." So much for that. That is gone.

So, speaking of these other proposals (the Clendenning proposals) what
does Mr. Boone say—the witness for the Government, the very man who got
up those proposals, the man who wrote them, the man who wrapped them up,
and sealed them? What does he say? "Those proposals were not gotten up
for the purpose of defrauding the Government; I did not send them to
Clendenning for that purpose." That is the end of that. No conspiracy
there.

The object, don't you see, gentlemen, was to show by Boone that he
acted under the direction of Dorsey; that Dorsey was responsible for
everything that Boone did; and that although Boone was guilty of no
crime in leaving the bid blank, still if he did it by authority of
Dorsey, Dorsey had an ulterior motive of which Boone was ignorant. Let
us see.

At page 1554, Mr. Boone swears that Dorsey never told him at any time or
any place that he wanted any blanks left. And yet they were endeavoring
by that witness to saddle that upon S. W. Dorsey. But that witness
swears that Dorsey never even told him that he wanted any blanks left in
any paper, proposal, bid, or bond. He says that Dorsey never at any time
or place told him (Boone) that he (Dorsey) wanted any blanks left, or
any proposals of any particular form printed, to the end that a fraud
might be perpetrated upon the Government—not a word.

And, gentlemen, I am now in that space of time where they say this
conspiracy was born. At page 1567, before Miner got here, Mr. Boone
swears that Dorsey told him that he would advance money for the other
defendants, and Mr. Boone swears that after he got here he never asked
Dorsey for a dollar except through Miner; that Dorsey never gave a
dollar except through Miner.

What more? This is the witness that is going to establish the guilt of
Stephen W. Dorsey. Stephen W. Dorsey never told Boone at any time that
he had any interest whatever in those mail routes. Boone never heard of
it. Dorsey never told him to print a proposal with a blank; never told
him to leave a blank after it was printed; never told him to do anything
for the purpose of defrauding the Government in any way at any
time. This is extremely good reading, gentlemen, when you take into
consideration that this is the witness of the Government, their main
prop until the paragon of virtue made his appearance upon the stand.

Page 1558. Another great point: That in preparing the subcontracts,
Dorsey having it in his mind to conspire against the Government, or
really having conspired, according to their story, wanted a provision in
a subcontract for increase and expedition.

Why, it strikes me, gentlemen, that that is evidence of honesty rather
than dishonesty. If these subcontracts were to hold good during the
contract term, and if in the contract given to the contractor by the
Government there was a clause for increase and expedition, why should
not the subcontract provide for the same contingencies that the contract
provided for with the Government? That looks honest, doesn't it?

It was advertising the subcontractor that the moment he signed his
subcontract the trips were liable to be increased and the time was
liable to be shortened, and that if the time was shortened or the trips
increased the pay was to be correspondingly increased. But I will go on
with the testimony.

Page 1558: In preparing the subcontract Mr. Dorsey instructed Boone to
provide for an expedition clause. That was a suspicious circumstance.
What for? To conform to the expedition clause in the contract with the
Government. If making it like the Government contract is evidence of
conspiracy, the fact that the Government contracts have that clause is
evidence that the Government conspired with somebody. It is just as
good one way as the other. The Government made a contract with the
contractor, the contractor made one with the subcontractor, and
the contractor so far forgot his duties, so far forgot his moral
obligations, that he made it just the same as his contract with the
Government. Gentlemen, is there any depth of depravity below that?
Absolutely copying the contract that the Government was going to make
with him, and treating the subcontractor, so far as the contract was
concerned, as the Government had treated him, he (Boone) prepared a
clause which he thought filled the bill, and which he still thinks, I
believe, would have been better to use than the other. When he showed
that to Stephen W. Dorsey, Dorsey suggested another form. It was the
same thing exactly, but in different words. There was the testimony I
have read to you, and now here is what Mr. Bliss states about it at page
4865:

But Stephen W. Dorsey, away back there, knew sufficient about expedition
to appreciate the importance of keeping for the contractors thirty-five
per cent, and giving to the men who were performing the service only
sixty-five per cent.

Why not? Is that a crime? Suppose I agreed to carry the mail four years
for $10,000 a year and I subcontract with another man. Have I not the
right to get it carried as cheaply as I can? I just ask you that as
a business proposition. Or has every mail to treat this Government as
though it was in its dotage? Must you do business with the Government as
though you were contracting with an infant or an idiot? Must you look
at both sides of the contract? That is the question. The Government, for
instance, advertises for so much granite, and I put in a bid which is
accepted; at the same time I know that I could furnish that granite for
twenty-five per cent. less. Is it my duty under such circumstances to go
and notify the Government that I have cheated it, and that I would like
to have it put the contract down? There may be heights of morality that
would see the propriety of such action, but it is not for every-day wear
and tear. Very few people have it; it scarcely ever comes into play in
trading horses. Must we treat the Government as though it were imbecile?
I say it was a simple business transaction. The Government advertises
for proposals to carry the mail; I make my bid for $10,000, and we will
say that my bid is accepted. Now, I admit that I could carry it for
$5,000 and make money.

Am I criminal if I go on and perform the contract as I agreed and
draw the money? Or suppose the people along the route do not want it
expedited and increased, and so I talk to them about it; I go to Mr.
Brown and say, "Mr. Brown, you are living in this smart, thriving town,
and you need a daily mail." I go to the next village and I say, "Why,
gentlemen, you will never have a town here until you have a daily mail;
I am the fellow now carrying the mail." And I keep talking about it,
you know, and finally get a fellow to get up a petition, or I write one
myself, and send it around, and say to them, "Gentlemen, what you want
is more mail, faster mail; the mail is the pioneer of civilization,
gentlemen; have a daily mail, and along the line at once towns and
villages and cities will spring up, and all the hillsides will be
covered with farms, and school-houses will be here, and wealth will be
universal." Any crime about that. Every railroad has been built just
that way. Every park has been laid out in every city by just such means.
Nearly every street that has been improved has been improved in that
way, by men who had some interest in the property, by men who were to
be benefited by it themselves, and who ought to be benefited. Should the
men that get the public attention in that direction be benefited, or
the men who do nothing? I say that the men who give attention to the
business have a right to be benefited by it. And yet here is the crime,
gentlemen. And then we only gave these fellows sixty-five per cent, and
took thirty-five ourselves, because we were bound to the Government
to fulfill the contract, as was explained to you so admirably, so
perfectly, by Judge Wilson. The contract was to run for four years, and
I believe in a certain contingency for six months thereafter. We had
to carry out the contract, whether the subcontractor carried out his
contract with us or not.

Now, this is what Mr. Bliss says:

So, after a large mass of subcontracts had been struck from the press,
which gave to the subcontractors all the increase—There never was a
subcontract that gave to the subcontractors all the increase; there is
no evidence that there ever was such a subcontract, he—That is, Stephen
W. Dorsey—directed them to be put back on the press.

I should think he would. If he found any subcontracts were printed that
gave to the subcontractor all the increase, I do not wonder that he had
them destroyed.

Here you get, we will say, a contract for ten thousand dollars for one
trip, with the agreement that if there are two trips the compensation
shall be twenty thousand dollars. Thereupon you make a contract with a
subcontractor, and you agree in that subcontract that he shall have all
the increase. Of course, you want that made over again; of course, you
would not make that kind of a subcontract.

He directed them to be put back on the press, and this provision giving
the subcontractor his money struck out and this other clause put in.

Gentlemen, that is an entire and absolute mistake. There is no such
evidence, there never was in this case, and I take it there never will
be. The evidence was—and you remember it; and you remember it; and
you remember it; and you [addressing different jurors]—that Stephen
W. Dorsey allowed to the subcontractor sixty-five per cent, of the
expedition, and that same subcontractor provided what he should have for
one trip, and what he should have for two trips; that is to say, what
he should have for increase; and it provided at the same time for
sixty-five per cent, on expedition. Mr. Boone swears it; others swear
it. Not only that, but it is printed in the record again and again and
again. Why did Stephen W. Dorsey do that? I can tell you why: He did
not. Why did Stephen W. Dorsey do that, if it was not because his
fertile imagination had already conceived the plan of defrauding the
United States, and he was making an arrangement by which that fraud
could be consummated? How would that help him consummate a fraud?
Suppose he struck out all the per cent, to the subcontractors; suppose
he had not had any subcontract printed; suppose the subcontract
was printed, and printed on purpose to deceive and defraud the
subcontractors; how does that show that he was trying to defraud the
United States? Why, if it proves anything it proves the other, that he
had not entered into a conspiracy by which he could get the money from
the United States, but had endeavored to get it from the subcontractors.
If it proves anything it proves that. But the reason it does not prove
anything is because the statement is not correct.

Now, just see how a conspiracy can be built of that material. A man that
can do that can make a cover for Barnum's Circus with one postage-stamp;
he can make a suit of clothes out of a rabbit-skin; he can make a grain
of mustard seed cover the whole air without growing.

That is given as an evidence that Dorsey had conspired. There is not
a thing on the earth that he could have done that would not prove
conspiracy just as well as that—just exactly—no other act. Humph! That
is the way they build a conspiracy.

Why not take another step? Why not have a little bit of ordinary good
hard sense? On the 17th day of May, I believe, 1878, the act was passed
allowing the subcontractor to put his subcontract on file. Now, that
contract ought to provide for all the contingencies of the service, so
that if the trips were increased the Government would know how much to
pay that subcontractor; so that if the time was expedited the Government
would know how much to pay the subcontractor. The subcontract ought to
have been made in that way, and it would be perfectly proper to make it
in that way.

I once went to see a friend of mine who had the erysipelas and who was a
little crazy. I sat down by his bedside, and he said, "Ingersoll, I have
made a discovery; I just tell you I am going to be a millionaire." Said
I, "What is it?" He says, "I have found out that if four persons take
hold of hands after they have had a hole made in the ground and put a
piece of stove-pipe in it, and then run around it as hard as they can
from left to right, a ball of butter will come out of the pipe." Now,
I think that is about as reasonable as the way conspiracies are made,
according to Mr. Bliss.

Now, we come to Mr. Boone (page 1560). He says that the action he had
taken was upon his own responsibility, and that at no time had any
papers been gotten up with any view of defrauding the Government. That
was good.

I am like the Democrat who said, after hearing the returns from Berks
County, "That sounds good." Then, here is a question asked him:

Q. I understood you to say that the contract was made between you and
somebody, fixing your interest in all this business?—A. Yes, sir.

Q. Do you recollect about the date of that?—A. I think it is on the day
John W. Dorsey got here in Washington.

On page 1561 he swears that at the time Boone made that contract with
John W. Dorsey he and Dorsey had not conspired to defraud the Government
in any way, nor did they ever do so after that contract was made. When
was that contract made? It was made on the 15th day of January, 1878.
Who made it? John W. Dorsey of the one part, and Albert E. Boone of the
other. And they tell exactly what that contract was for. Here is the
contract, on page 1561, and this shows that the statement of Stephen W.
Dorsey, that the matter was deferred until John W Dorsey should come, is
absolutely correct:

That the parties to this agreement shall share in all the profits,
gains, and losses as follows: John W. Dorsey shall have two-thirds and
Albert E. Boone, share one-third.

Now, gentlemen, there was the original partnership agreement. Let us see
if that was ever dissolved.

The next contract was made on the 12th of September, 1878.

Now, therefore, in consideration of one dollar in hand paid, the receipt
whereof is hereby acknowledged, I hereby, sell, assign, and transfer
to Albert E. Boone all my said two-thirds interest in the routes in the
name of said Boone in the States of Texas, Louisiana Arkansas, Kansas,
and Nebraska, and in the name of said Dorsey in the States of Texas,
Louisiana, and Arkansas.

The reason he did that was because Mr. Miner had made a contract with
Boone to that effect; and probably I had better read that now so that
you will have it exactly and know what we are doing. I read from page
1569;

Washington, D. C, August 7, 1878.

Whereas A. E. Boone has this day, for the purpose of saving a failure
in the routes in the name of John R. Miner, John M. Peck, and John
W. Dorsey—"For the purpose of saving a failure," recollect. Although
Stephen W. Dorsey, according to the prosecution, was a conspirator, and
although John W. Dorsey was another, and Peck was another, yet on the
7th day of August, 1878, "for the purpose of saving a failure," they
made this: assigned to John R. Miner his one-third interest in the
routes in their names, now, therefore, I, John R. Miner, agree that John
W. Dorsey shall assign his interest in routes in the name of A. E. Boone
in Kansas and Nebraska, Texas and Louisiana, and Arkansas; in the name
of John W. Dorsey, in Texas, Louisiana, and Kansas. The latter clause
not guaranteed.

John R. Miner

Now, he said to Mr. Boone, "I have got to have another man come in; we
haven't got the money to run these routes; I have got to get somebody
with us; if you will go out, I will agree that John W. Dorsey will
assign to you his two-thirds interest in all the routes in Kansas,
Nebraska, Texas, Louisiana, and Arkansas. I will agree that John W.
Dorsey, although he has a two-thirds interest in all these routes, shall
assign them to you, A. E. Boone, and they shall thereupon become your
property." That agreement was made on the 7th of August, 1878; and then,
as I read you before, on the 12th day of September, Miner made that
promise good, and John W. Dorsey did assign to Boone his two-thirds
interest in all the routes that Miner said he would. Then Boone was out
of it. He had no more to do with Miner, Peck & Co., and no more to do
with John W. Dorsey; he went his road and they went theirs. He went out
in consideration that John W. Dorsey would give him (Boone) two-thirds
of all the routes that he before that time had one-third in. Then Miner
took in Mr. Vaile, because he had the money to go on with the business.

Page 1562, still talking about Mr. Boone. There is another very
suspicious circumstance that was brought up by the prosecution. These
bids were put in in different names, and that was looked at as a very
suspicious circumstance. What does Boone say about that? He says
that the object in bidding in separate names was not to defraud the
Government, but was to have the service divided up and not to bid
against each other. That was reasonable. The arrangement was simply
to keep from injuring themselves; it was not made to defraud the
Government, but it was made so that they might not by accident injure
each other. It was a common thing for members of a firm to bid in that
way, and it is a common thing for persons to organize themselves for the
purpose of bidding and running contracts, and when they thus bid they
always bid in their individual names. The fact that we bid in our
individual names was taken as a circumstance going to show that we had
conspired to defraud the Government, and a witness they bring forward to
prove that fact swears that it has been the custom for all firms to bid
in their individual names. Away goes that suspicion. The coat-tail of
that point horizontalizes in the dim distance.

Page 1563. The point was made, gentlemen, that we bid on long routes
with slow time, knowing—understand, knowing—that the service would be
increased and that the time would be shortened. The only word I object
to there is the word "knowing." That we bid on long routes with slow
time thinking that the service would be increased and the time shortened
was undoubtedly true. That we bid expecting that the service might be
increased and the time shortened is undoubtedly true. That when we
bid we took into consideration the probability of the service being
increased and the time shortened is undoubtedly true. The only
difference is the difference between thinking and knowing; between
taking into account probabilities and making the bid because we had
made a bargain with the Second Assistant Postmaster-General. That is the
difference. Let us see what Boone says about it. I read from page 1563:

On all service of three times a week and under there is a chance for
improvement in getting it up to six or seven times a week.

Everybody who has ordinary common sense knows that! If I bid on service
for once a week there is a great deal better chance for getting an
increase of trips than if there were seven when I started. Everybody
knows that. There is about six times as good a chance.

All contractors consider that—That chance—in their bids, and bid
lower on one, two, and three times a week service than on a daily
service—Why?—because the chances are the route will be increased.

Boone swears on the same page that he always did that himself; that
he always had done it. Yet that is lugged in here as evidence of a
conspiracy.

There is a great deal better chance for expedition when a route is let
at two or three miles an hour, than when it is let at six or seven.

Of course there is. The slower it is let the better chance of getting it
expedited. The faster it is let the less chance of getting it expedited.
There is no need of bringing a man here to show that. You know that. If
you thought there was more money in expedition and increase than on the
original schedule, you would, as I insist, bid on such routes as the
advertisement showed the time was to be slow and the service infrequent
upon. Now, gentlemen, to take advantage of such a perfectly apparent
thing as that will not do. You have heard a good deal about star routes,
gentlemen. Every one of you by this time ought to make a pretty good
guess.

Postmaster-General; every one of you. If you do not know all about this
subject, you never will.

The Foreman (Mr. Crane). We ought to be good lawyers, too.

Mr. Ingersoll. You also ought to be good lawyers, at least on this
subject! I do not know that you have all the testimony in your minds, as
there have been so many misstatements made, but if you ever are to
know anything on this subject you know something now; and if you, Mr.
Foreman, or you Mr Renshaw, were to-morrow to go to work to bid on some
star routes you would bid on the longest routes, on the slowest time,
and with the most infrequent trips. You would do that. Then would you
say, "That is evidence that we have conspired"? Has a man got to be so
stupid that he will not take advantage of a perfectly plain thing in
order to escape the charge of conspiracy? If you were to put your money
in land in the Western country you would not go where the country was
settled up, and give one hundred dollars an acre for land. You would go
where you could get laud for two, or three, or four, or five dollars
an acre, and say, "There is a chance for land to rise." That is not
conspiracy. So if you were going to bid on mail service you would bid
where the time is slow, or the route long, and the service once a week.
Then you would say that the country might grow, that railroads might be
built and that they might get the service up to seven trips a week; and
that instead of going on two miles an hour may be they would want to
make it seven miles an hour. That is the service to make money on. Is
it a crime to make money? Is it a crime to make a good bargain with the
Government? I suppose these gentlemen of the prosecution made the best
bargain they could with the Government themselves. Is it a crime? I
say no. Is a man to be regarded as a conspirator because some outsider
thinks he got too good a bargain? That will not do. Boone says he always
did that. Of course he did. He says another thing. These gentlemen say
that we did not go above three trips, and that is another evidence of
fraud. They say we did not bid on any route with more than three trips
a week. Mr. Boone tells you, on page 1565, that the department never
advertised for four trips a week. That is the reason I think they did
not bid on any of these. He also swears that they never advertised for
five trips. That is a good reason for our not taking any routes with
five trips, is it not? There were not any advertised. The Government did
not offer to let us have any. That is a good reason for not taking any
of them. The Government had not any of that kind. After you get beyond
three trips Boone swears that the next number is six or seven; never
four, never five. Don't you see? And yet it is a very suspicious
circumstance that we did not bid on any four-trip routes, or any
five-trip routes; that we stopped at three. Why did we stop at three?
Because if we had not stopped at three we would have had to go to six.
Why did we not go to six? Because at six trips a week we would have
been obliged to put up too much money, and to put up too many certified
checks. It required too many men to go on the bonds. That is the reason.
Gentlemen, if there had been a conspiracy it would have been just about
as well for us to bid on six or seven trips to get the expedition of
time. If there had been a conspiracy to make money, and it had been
understood by the Second Assistant Postmaster-General, he could have
just as well given us routes with seven trips a week, and put the
service up to seven, eight, nine, or ten miles an hour, and he could
have done that in the thickly-populated parts of the country; if it had
been the result of a conspiracy.

Let me read more from what Mr. Boone says on page 1565:

The proposals that I destroyed were upon routes of at least six times
per week.

How did he come to destroy them? Another suspicious circumstance against
Dorsey! Boone said when he went into the business he just took the
bidding-book and commenced at A, and was going right straight through to
X, Y, and Z, and make a bid, I believe, on every route that was in the
book. I think that is his testimony. Boone says:

I was going on without instructions. I was going on without authority
from anybody, working on the bids.

He thinks it was the same day that Miner got here, or the day
afterwards, and he—I suppose meaning Dorsey—came up to the room and
saw what the witness was doing. He was making up bids for every route
in the advertisement, going right along with big and little, when Dorsey
said there was a mistake. No proposals were to be made for over three
times a week or for routes under fifty miles. When Miner came into the
room witness asked what was the reason of that. I say upon this point
that Stephen W. Dorsey never said a word about it, and that Boone is
mistaken. But he says he asked Miner the reason. What did Miner say?
Did he say to him, "It is because we have got a conspiracy? We have
got it fixed with the Second Assistant Postmaster-General"? No. He said
this, he said for fear of failure in getting bonds; that they could not
get the bonds for all the service and could not get certified checks for
all the service. Boone was going clear through the book from preface to
finis. They could not get bonds for all the service and could not get
certified checks for all the service. You remember that for all the
service over five thousand dollars they had to put up five per cent., I
think, in certified checks. Now, there was an immense volume, of three
or four thousand routes and he was going to put in a bid on every one
of them. That is what Boone was going to do. He did not understand the
conspiracy at that time. Miner explained to him, "We cannot get the
certified checks. We cannot get the bondsmen." He did not tell him,
"Good Lord, my friend, you don't understand the terms of the conspiracy.
We are taking no such service as that. We are taking none over three
times a week, because, don't you see, we want the chance for increase.
We want the lowest. If we can find any service where the horses agree to
stand still, that is the service to take. You must look over the terms
of the conspiracy and have some sense about it."

Boone says he was starting in, taking the advertisements, going right
through the territory, all over that country, and bidding on every
route, not missing one. He never saw Stephen W. Dorsey do any work
on the bids. The proposals sent down to the postmasters in Arkansas,
including those to Clendenning, he (Boone) fixed himself and sealed
them. Gentlemen, there is no evidence that Mr. Dorsey, as I understand
it, ever saw one of those papers, but simply the form that was written
out by Boone that was sent to Clendenning with instructions what to do
with the proposals. That I understand to be the evidence. They proved by
Boone that Dorsey never saw them; never wrote them; never ordered them
to be written; never ordered a blank to be left unfilled. And
yet, gentlemen, he was the man whom they say had brooded over this
conspiracy; the man that gave to it life and form. He is the man that
used Boone and John W. Dorsey and Peck and Miner as instrumentalities
and tools.

What more? Did Boone take those bonds up to Dorsey and show them to him?
He says that he did not open them; that he did not show them to Dorsey.
That is what Mr. Boone swears. Surely Mr. Boone is an honorable man,
stamped with the seal of the Department of Justice. He did not even show
them to Dorsey. Dorsey never saw anything except the form after Boone
had made it out. I showed you that form on yesterday, I think, marked 16
X. That is the only thing that Dorsey saw. He did not know what blanks
were left in the bonds, or whether any were left. He never gave any
orders about them, and never saw them. Yet the prosecution want you to
hold him responsible as a conspirator for those bonds.

What more, gentlemen? Those bonds were never used. Nobody was ever
defrauded. Not a proposal was put in the Post-Office Department. They
never came to life. Dead! No contract, says Mr. Boone, was ever awarded
on those proposals, even the proposals sent back, unless it was a
contract to him, Boone. That is what he swears. And yet Dorsey is to be
held responsible.

Let us hurry along, gentlemen. See how Dorsey came to do this. How did
that arch-conspirator, as they claim him to be, happen to write that
letter to Clendenning? On page 1567 Boone says that he suggested to
Dorsey that he had better send a note with the proposals to Clendenning.
Boone suggested it. He was not a conspirator, but he suggested it.
Dorsey was the conspirator, but never dreamed of it. How fortunate for a
conspirator to have an innocent man think of the means of carrying out
a conspiracy; never thinking of crime, but having it all suggested by
perfect innocence and then crime taking advantage of it. That is the
position! He suggested that Dorsey would better send a note with the
proposals to Clendenning. I will read from page 1568:

Q. Was there not danger that he would be declared a failing contractor?
Was it at that time the practice of the department if a man, for
instance, had fifty contracts and failed on one to declare him a failing
contractor on all?—A. No, sir; but they would declare him a failing
contractor on that one route and suspend his pay until he paid up the
loss to the Government—just my case now, exactly.

Q. That was one of the reasons that you had. Now, you were informed at
that time that they had not the money to carry this on.

When, as a matter of fact, did you go out of the concern?—A. The 8th
day of August, 1878.

Q. Was S. W. Dorsey then in Washington?—A. No, sir; he was not. He had
been gone ten or twelve days.

Now, then, we come to August 7, 1878, the time that Mr. Boone went out.
He did it for the purpose of saving a failure on the routes in the names
of Miner, Peck, Dorsey, and himself. That is what he went out for, and
that is his only reason. On page 1570 Mr. Boone swears that so far as he
knows neither John W. Dorsey, John R. Miner, John M. Peck, nor
Stephen W. Dorsey had any arrangement with the Second Assistant
Postmaster-General to increase the service; none whatever.

Boone went out on the 7th day of August, 1878. S. W. Dorsey was in New
Mexico. He did not return here until about the time Congress assembled
in December. Boone swears that he then learned from S. W. Dorsey that
he, Dorsey, did not know that Boone was out of the concern; did not
know that he had left on the 7th day of August, 1878. Now, gentlemen, if
Stephen W. Dorsey was the main conspirator, if he was doing this entire
business, is it possible that A. E. Boone went out on the 7th day of
August, that John W. Dorsey assigned his interest in all the routes
mentioned in the agreement, and John R. Miner took in Vaile, and the
service was put on those routes by the money furnished by Vaile, that
all that was done and yet Stephen W. Dorsey never heard of it and did
not even know that Boone was out, did not even know that Vaile was in?
Besides that, gentlemen, as I told you, Dorsey was not here. He was in
New Mexico. He was in utter ignorance of this entire business, and yet
they claim that he was the directing spirit.

Mr. Boone further testifies, on page 1571, that Brady showed him a
telegram from the postmistress at The Dalles, saying that the service
was down. When I read that I thought may be that was where Moore got his
hint to swear that he telegraphed to find out what was done with that
service. Boone further swears that Brady said that it must be put on;
that he said it could not be put on at the contract price, and that
Brady told him, "I advise you to telegraph and put it on at any price,"
and that unless all the service was on by the 15th day of August he
would declare the contractor a failing contractor on every route the
service was down upon. That is what Brady told him. Stephen W. Dorsey
was not here. According to the testimony of Moore he knew when he went
away that the service in Oregon was not put on, but he abandoned it, and
paid no attention to it. He happened to meet Miner at Saint Louis, and
told him, I believe, "There are my notes for eight thousand five hundred
dollars. That is all I will do. I am through! I have already advanced
thirteen or fourteen thousand dollars. I will not advance another
dollar." Why did not Miner tell him, "If you are not going on with this
conspiracy I am going home"? Why didn't Miner tell him then, "What did
you get up a conspiracy like this for, just to abandon it"? Why did
not Miner say to him, "This is your child. I became a criminal at your
suggestion. I entered into this conspiracy because you urged me to, and
now after we have got the routes, you are going to abandon it"? Why did
he not say to him, "Dorsey, if you are not going on with this conspiracy
I am going back to Sandusky"? Did Dorsey at Saint Louis treat it as his
bantling? or did he say to Miner, "This is all I will do"? Did he mean
for himself? No. "All I will do for you."

Certainly he would not have made the threat to Miner that he would not
do anything more for himself. He then said to Miner, "I am through!"
Miner knew at that time that Stephen W. Dorsey had not the interest of
one solitary dollar except the money he had advanced. Stephen W. Dorsey,
according to the testimony of this prosecution, knew when he left this
city that the routes were not in operation in Eastern Oregon. He went
away knowing that J. W. Dorsey and John R. Miner and John M. Peck were
in danger of being declared failing contractors. Yet he never even
called on Brady to see about it. He never asked to have the time
extended a minute. He never took the least interest in the business. He
started for New Mexico, and went by way of Oberlin, Ohio. He happened
to meet Miner in Saint Louis, and for Miner's sake, for Peck's sake, for
John W. Dorsey's sake, and not for his own sake, he gave them some notes
to the extent of eight thousand five hundred dollars that they could
have discounted, and said to Miner then and there. "That is the last
dollar. That is the last cent." What more did he do? He abandoned the
whole business. He went to New Mexico. He never wrote about it; he never
spoke about it; he never received a dispatch concerning it until the
following December, when he came back to Washington, and then for the
first time found that Boone had gone out and that Vaile had come in.
What more? Although he was interested to the extent of thirteen or
fourteen thousand dollars, he did not know until he came back in
December that his security had been rendered worthless. He found that
out then for the first time. That is a fine model of a conspirator.
Reading again from Boone's testimony, on page 1371:

Fully a month and a half of the time had been taken up by the
Congressional investigation, and we—That is to say, Miner, Peck, Boone,
and the rest—did not know what to do with the service. We dared not to
move. We expected that the contracts would be taken from us.

Do you tell me that under such circumstances, if Stephen W. Dorsey had
conceived this thing, he would have gone off and left it? Do you tell
me, with the entire business trembling in the balance, without the money
to put the service on, at the mercy of Thomas J. Brady, that if Stephen
W. Dorsey had gotten up that conspiracy, and also put in thirteen or
fourteen thousand dollars, he would have gone away and left it, and told
Miner and the others, "I will have no more to do with it," and leave it
so effectually and so perfectly that he did not even know that Boone
had gone out and Vaile had come in until the following December, when he
came here to take his seat in the Senate?

On page 1580, again quoting from Mr. Boone:

The fact—Here is something that rises like the Rock of Gibraltar. It
is one of those indications of truth that rascality never had ingenuity
enough to invent:

The fact that Dorsey refused to advance any more money on account of
this business was taken into consideration by me when I made up my mind
to go out.

Do you want any better testimony than that, that Dorsey did refuse to
advance any more money?

Don't you see how everything fits together when you get at the facts?
How naturally they all blend and harmonize when you get at the facts.
Now, here is some more from Mr. Boone:

If I had not gone out the service would have undoubtedly failed, unless
they got the money to put it on. When Mr. Dorsey declined to furnish any
more money or to indorse any more notes, there was nothing else to do
but for me to go out and let somebody else come in who had the money.

That is a witness for the Government, and yet at the time that happened
they say there was a great conspiracy; that the Second Assistant
Postmaster-General was in it; that a Senator of the United States was
in it; and that these other men were simply tools. It will not do,
gentlemen. If that had been the case Stephen W. Dorsey would have
remained here. He would have gone to Mr. Brady and said, "I must have
time," and Mr. Brady would have given him all the time he desired,
because, according to this prosecution, it was their partnership
business. Brady had ten times as great an interest as Stephen W. Dorsey.
According to the testimony of Mr. Rerdell, Brady had an interest of
thirty-three and one-third per cent., and according to the testimony of
Rerdell and Boone, Dorsey only had an interest of seven-eighths of one
per cent.

That means, as I understand it, according to their testimony,
thirty-three and one-third per cent, of the gross expedition; not
profits, but of the gross expedition. That is what they swear. When
he gave on a route an expedition of, say, six thousand dollars,
two thousand dollars would go to Brady each year. In other words,
thirty-three and one-third per cent, of the money paid for expedition
went to Brady.

Mr. Walsh testified and gave the exact figures, and called the amount,
if the Court will recollect, sixty thousand dollars, and twenty per
cent, he said of that is twelve thousand dollars. That had to run, he
says, for three years, and that made thirty-six thousand dollars. That
is the testimony in this case, gentlemen. If you should have a row of
men as long as the row of kings that Banquo saw, stretching out "to
the crack of doom," and they should swear to it, I should still die an
unbeliever; but that is their testimony. Dorsey ran away and left his
conspiracy and Brady would not attend to his own business. Now, I read
again from Boone:

With regard to the preparation of circulars, the sending of them to
postmasters, the printing of proposals, the printing of bonds and
subcontracts, there was nothing done differently from what I had always
done before.

Recollect that. He is a Government witness. Dorsey in a conspiracy got
Boone to help him, and in helping him Boone did nothing different from
what he had always done before. There is not much left of this case,
gentlemen, but I will keep going on just the same. Mr. Boone swears that
he followed the regular custom and practice of doing business.

Then, there is another suspicious circumstance. At the bottom of the
contracts published by the Government, for the purpose of informing
contractors as to how the bonds or contracts are to be signed,
and exactly what is to be done by each person, there are a lot of
instructions.

Mr. Carpenter. On the proposals.

Mr. Ingersoll. On the proposals. When they got up the proposals of their
own, they, understanding the business, left off all those directions
that the Government put upon its forms. Why? Those directions were put
there for the benefit of men who did not understand the business. These
men did understand the business, and consequently it was nonsense for
them if they had to have the printing done, to put on the bottom of
the contracts two or three paragraphs of directions to themselves. They
understood exactly how to do it without the directions.

Who left them off? Stephen W. Dorsey? No. John W. Dorsey? No. He had
nothing to do with it. Miner? No. He had nothing to do with it. Who left
them off? Boone says he did. Was he instructed to do it? No. Did it take
a conspiracy to leave them off? No. He left them off for two reasons,
and good ones, too. One was to save the expense of printing. That was
a good reason. There was no conspiracy needed for that. The other was,
that knowing how to perfect the proposals, and understanding all
those instructions, there was no need of having them printed for their
benefit.

Next, on page 1582. What instructions as a matter of fact did Mr. Boone
receive from Mr. Dorsey, if he received any? The question arises, upon
what subject? In reference to what particular point? Boone says on this
page that he received no instructions from Dorsey in reference to the
business except in regard to the subcontract blanks.

That is the one subject on which he received any instructions from S. W.
Dorsey. I have shown you that those instructions were in the interests
of honesty and fair dealing. Those were the only instructions he
received. On every other subject there is not a word. Why? Here Boone
gives the reason. "I did not require any." Why? Because he understood
the business himself. What else? "I was to go ahead and do whatever was
necessary to be done." He did it without consulting anybody. He did it
in his own way. He did it as he thought best for all concerned. Now,
gentlemen, there will be an effort made to convince you that Stephen W.
Dorsey did everything during all that period. If you are told that, when
you are told it remember what I tell you now: that Mr. Boone swears that
he did it himself; that he attended to the entire business, and that he
was instructed by Dorsey in no particular except as to that one blank,
and that I have clearly demonstrated was in the interests of honesty
and in the interests of the subcontractor, so that the subcontract might
agree with or be similar to the contract made with the Government. That
is all.

Now we come to another point. You must recollect that Mr. Boone got out
the circulars. Mr. Boone sent to all the postmasters to know about the
roads and the price of grain and the price of labor, about the snow in
winter and the rain in the spring. He got all that up. He went through
the bidding-book originally and made the bids. He it was who prepared
most of these proposals. He did all the work until Miner came. S.
W. Dorsey did not do any of it. Boone never saw him working upon or
touching the proposals. What S. W. Dorsey did he did at Boone's request.
What he did he did at Miner's request. What he did he did simply because
he was a friend. Boone attended to it all. Now, what does Boone say
on page 1584? He swears that so far as he knew there never was any
conspiracy on the part of these defendants with him, with each other,
or anybody else, in reference to these routes, or any route bid for and
awarded to them during that time. There was no conspiracy to defraud the
Government in any way. That is what the Government witness swears to—a
man brought here to stain the reputation of Stephen W. Dorsey. That
is what a Government witness swears; swearing, too, under pressure;
swearing, too, under circumstances where the Post-Office Department
could strip him of everything he had on earth; swearing under
circumstances where if he did not please the Government they could
pursue him as they have pursued us. Perhaps I had better read what he
says. I read from page 1583 of my examination:

Now, then, so far as you know, Mr. Boone, was there any conspiracy on
the part of any of these defendants with you, or with anybody else, to
your knowledge, in respect of these routes mentioned in the indictment
or of any routes bid for and awarded to them during that time—any
conspiracy to defraud the Government in any way?

And he answered:

No, sir.

That was a Government witness, acquainted with all the transactions
during that time. He was swearing under the shadow of power, with the
sword hanging over his head, and yet he swears he never knew or heard of
any such thing.

Let us go on. On page 1589 he swears that Mr. Dorsey told him to fix the
blanks and make them up and to write what he wanted done in Arkansas,
and that while he, Boone, was engaged in so doing he said to Dorsey,
"Had you not better write a note so that I can attach it to the
blanks?" And Dorsey did so. Dorsey told him to fill up what he wanted in
Arkansas, and what was necessary to be executed there, and he did so.

Boone indicated exactly what he wanted put in. I showed you the
Clendenning bonds yesterday and showed you just what Boone did. He
filled up the blanks that he wanted to have filled down there.
Of course, the blanks that were already filled in he did not want
interfered with. That is what he says. There is another part of his
testimony. I want to call the attention of the gentlemen to it. "I hand
you," said they, "32 X." Mr. Bliss did the handing. What was that? That
was the Chico letter. What did they want to introduce that for? To show
that S. W. Dorsey was interested personally in these routes in 1878.
That was a magnificent piece of testimony for them to show that Dorsey
in 1878 was writing to Rerdell to watch the advertisement of these
routes. So they introduced that letter. Mr. Boone looked at it. He was
a Government witness. The noose was around his neck and the other end
of the rope was in the hands of Mr. Bliss. What did Mr. Boone say? "Mr.
Dorsey never wrote that letter." Then said Mr. Bliss to him, "That is
not Mr. Dorsey's writing?" And Mr. Boone said "No, sir." And at the same
time threw the forged scrap away contemptuously. What else? On April 3,
1878, Mr. Dorsey was here.

Mr. Merrick. Was Mr Dorsey here at that time?

Witness. He was here, sir; and I was in communication with him on that
very day.

That is the evidence of a Government witness; a man who was depended
upon to show that not only my client, but that Mr. Miner entered into a
conspiracy in the fall of 1877 to defraud this Government. I want you
to remember one thing which I was about to forget. Mr. Ker, I believe,
spoke six or seven days and I do not remember of his having mentioned
the Chico letter. He acted as if it had a contagious disease. He was
followed by Mr. Bliss in another week, but he did not mention the Chico
letter; at least I have never happened to read it in his speech. Both
of them are as dumb as oysters after a clap of thunder. Not a word. They
did not, either of them, have the courage to refer to it. They did
not have the nerve to ask you to believe it. I tell you one thing,
gentlemen, I would either admit that it was a forgery, or I would swear
that it was genuine. I would do something with it. I would not allow
that paper, blown by the wind, to scare me from the highway of the
argument! I would do one thing or the other. I would either admit that
Mr. Rerdell forged it, or I would insist that it was the handwriting of
Stephen W. Dorsey. Why was it left where it was, gentlemen? They could
not get anybody to swear that it was Dorsey's handwriting. That is all.

Now we will take the next step. They had so much confidence in that
witness that they concluded they would prove the pencil memorandum
by him. They had such a clutch on him. So they stuck that up to
him. Recollecting the position he was in, recollecting the danger,
recollecting all that might probably follow speaking the truth, here is
what he says:

Everything above "profit and loss" in that memorandum favors the
handwriting of S. W. Dorsey.

What else?

And everything below favors the handwriting of M. C. Rerdell.

Fit conclusion for a Government witness, brought here to show that
Stephen W. Dorsey was the arch-conspirator. And they ended the witness;
dismissed him from the stand, after he had shown that Dorsey did not
conspire; after he had shown that he himself fixed the subcontracts,
with the exception of only one; after he had shown that he himself
filled out the blanks to send to Clendenning; after he had shown that he
did everything without being advised by S. W. Dorsey, and then he swore
that their principal witness was a forger. Then they dismissed him.
That was the end of the Government witness who was to brand the word
"conspirator" upon the forehead of Stephen W. Dorsey's reputation. But
instead of putting "conspirator" there, he put the word "forger" upon
the principal witness for the Government. Magnificent exchange! Now,
gentlemen, you know as well as I do that Mr. Boone knew all that was
happening during that entire time. You know as well as I do that he did
not swear anything for the defence that he could help swearing.

What else? Mr. Bliss, on page 303, says that:

Parties conspiring make an informal verbal agreement.

When did we make that agreement? When does the testimony show that we
made an informal verbal agreement? Who were present at the time? Where
were we? Do you recollect the number of the house? Do you recollect the
day of the month? Has any one of you ever had in his mind which side of
the street that was on? What town was it in? Could you locate it if you
had a good map? I do not care whether it is informal or formal. Did
we make one? In order to make a verbal agreement you have to use some
words. Is there any evidence as to the words we used? Not a word that I
have heard, not a word.

What else? He says that this is necessarily secret and intended to be
secret. The first thing done was that Dorsey told it to Moore. Then,
for fear it would get out, J. W. Dorsey told it to Pennell and to thirty
fellows around the camp-fire out in Dakota. And there was a suspicion in
Brady's mind that somebody might hear of it, and so he told Rerdell. He
says, "Get the books copied; this is a secret thing." Then Dorsey wrote
it to Bosler, and he was so awfully afraid that it would get out that
he kept a copy of the letter. You see, Mr. Bliss says the object was
to keep it secret. Then Miner and Vaile told it to Rerdell for fear
he would not believe it when Brady told him. They were bound the thing
should not get out. Yes, sir. And then Rerdell, just bursting with the
importance of keeping that secret, told it to Perkins and Taylor; went
away out there for that purpose. And then Moore, he gave it away to
Major and McBean for the purpose of keeping it secret. Then Miner told
Moore. From whom did they keep it secret? Nobody in God's world but
Boone. He is the only fellow that nobody told. Boone went through it
all, saw all the plan and heard all the whispering, and he is the only
man in the country, I think, that did not suspect it. And on the 7th day
of August he left the concern because there was not a conspiracy, and
admits to you that if he had had even a suspicion of it he would have
staid—staid or died.

Now, was there ever a conspiracy published so widely, that one end of
the country kept so secret from the other? Was there ever a conspiracy
like that, the news of which ran through the West like wild-fire, while
the fellows at the East never heard of it? Everybody knew it out on the
plains. All you had to do was to subpoena a fellow that wanted to come
to Washington, and he would remember it. And yet that is the evidence
that the prosecution desires you to believe. I do not believe it. I do
not think I ever shall. But then they promised so much at the beginning,
and they have done so little in many respects.

Something had to be said, and so Mr. Bliss, on page 265, in a little
burst of confidence to the jury, says:

At least one United States Senator was the paid agent of these
defendants.

Who was the Senator?

Mr. Bliss. Did I say that, sir?

Mr. Ingersoll. Look at page 265 and see whether you did.

Mr. Bliss. Read all that I said there.

Mr. Ingersoll. I will do that.

But we shall show to you that at least one United States Senator, urging
such increase, was the paid agent of these defendants.

Mr. Bliss. I then went on and said we should show it if you put him on
the stand.

Mr. Ingersoll. Yes, if we furnished you the evidence.

Mr. Bliss. No, sir; that is not what I said.

Mr. Ingersoll. Why didn't you produce the Senator?

Mr. Bliss. Why didn't you put him on the stand?

Mr. Ingersoll. How did I know what Senator you meant?

Mr. Bliss. Did you have two?

Mr. Ingersoll. No, sir; and we did not have the one. If you could have
proved it, it was your duty, as the attorney of the United States, to do
it, and if you did not do it, you did not do your duty in this case.

Mr. Bliss. Whose name is expressed in the memorandum?

Mr. Ingersoll. Why did you not say that to the jury? You dared not do
it. That is like what was said here the other day before this jury, and
taken out of the record. We will come to it. These are the gentlemen who
did not wish to stain the names of citizens. These are the gentlemen who
did not wish to bring anybody into this case that had not been indicted.
And yet Mr. Bliss, in his opening, said that he would show you at least
one Senator who was the paid agent of these defendants; and now, having
failed to do it, he stands here before you and asks whose name was on
the pencil memorandum, meaning that J. H. Mitchell was the paid agent of
these defendants.

Ah, gentlemen, I would not, for the sake of convicting any man on this
earth, stain the reputation of another in a place and in a way where
that other could not defend himself. I would not do it. I do not think
there is any crime beyond that. It is as bad to stab the reputation as
it is to stab the flesh; it is as bad to kill the honor of the man as to
put a dagger into his heart.

There are so many things in these papers that I would never get through,
if I commented upon them all, if I talked forty years. I now refer to
page 4509. I have to change from one of these lawyers to the other. Now,
on this subject of subcontracts, showing how we are endeavoring to cheat
and defraud the Government, Mr. Ker says, at page 4509:

Acting upon Stephen W. Dorsey's advice he put in this clause giving
the subcontractors sixty-five per cent, of the increase. I want you
to remember the sixty-five per cent., because I will show you some
subcontracts with that amount in, but I do not want you to think for one
moment that the subcontractors ever got a dollar out of it.

Gentlemen, the evidence is that the subcontractors were paid the amount
mentioned in their subcontracts. I believe all of them are on file in
this case, and on all that were filed in the department the money was
paid directly to the subcontractor. And yet Mr. Ker tells you that he
does not want you to think for a moment that the subcontractors ever
got one dollar out of it. Is it possible, gentlemen, that there is any
necessity for resorting to such statements? Can you conceive of any
reason for doing it, except that they are actually mistaken, except
for the fact that they know they have not the evidence to convict these
defendants?

We are not begging of you. We are not upon our knees before you. But we
do want to be tried according to the evidence and according to the law.
We do not want your mind, nor yours, nor yours [addressing different
jurors] poisoned with a misstatement. We want to be tried, and we want
the verdict rendered by you when every fact is as luminous in your mind
as the sun at mid-day. We want every fact to stand out like stars in a
perfect night, without a cloud of doubt between you and the fact. That
is the kind of a verdict we want. We want a verdict that comes from
a clear head and a brave heart. We do not want a verdict simply from
sympathy. We want a verdict according to the evidence and according to
the law. And when the verdict is given we want every one of you to say,
"That is my verdict; I found it upon the evidence and upon the law;
dig beneath it and you will not find used as the corner-stone a
misstatement, or a mistake, or a falsehood; it stands upon the rock of
fact, upon the foundation of absolute truth."

Do you know that if I were prosecuting a man, trying to take from
him his liberty, trying to take from him his home, trying to rob his
fireside and make it desolate, and if I should succeed and afterwards
know that I had made a misstatement of the evidence to the jury, I could
not sleep until I had done what was in my power to release that man; and
after he was released, or even if he were not released, I would go to
him when he was wearing the prison garb, and I would get down on
my knees and beg him to forgive me. I would rather be sent to the
penitentiary myself, I would rather wear the stripes of eternal
degradation, than to send another man there by a misstatement or a
mistake that I had made. That is my feeling. I may be wrong.

It may be that I am guilty, according to Colonel Bliss, of sneering at
everything that people hold sacred. But I do not sneer at justice. I
believe that over all, justice sits the eternal queen, holding in her
hand the scales in which are weighed the deeds of men. I believe that
it is my duty to make the world a little better, because I have lived in
it. I believe in helping my fellow-men. I do no not sneer at charity; I
do not sneer at justice, and I do not sneer at liberty. And why did he
make that remark to you, gentlemen? Is it possible that for a moment
he dreamed that he might prejudice your minds against the case of my
client, because, I, his attorney, am not what is called a believer?
Is it possible that he has so mean an opinion of a Christian that a
Christian would violate his oath when upon the jury, simply to get
even with a lawyer who happened to be an infidel? Is that his idea of
Christianity? It is not mine; it is not mine. I stand before you to-day,
gentlemen, as a man having the rights you have, and no more; and I
am willing to work and toil and suffer to give you every right that
I enjoy. And I know that not one of you will allow himself to be
prejudiced against my client because you and I happen to disagree upon
subjects about which none of us know anything for certain. I do not
believe you will. And yet, that remark was made, gentlemen—I will not
say that it was made, but may be it was—hoping that it would lodge the
seed of prejudice in your minds, hoping that it might bring to life that
little adder of hatred that sleeps unknown to us in nearly all of our
bosoms. I have too much confidence in you, too much confidence in human
nature to believe that can affect my client.

Now, gentlemen, there is no pretence, there is no evidence that every
subcontractor did not get the per cent, mentioned in his subcontract,
except one, and that was Mr. French, on the route from Kearney to Kent;
and the evidence there is that Miner settled with him, I believe, and
gave him a certain amount of money in lieu of expedition. That is the
solitary exception.

Now, gentlemen, I come to a most interesting part of this discussion,
and I hope we will live through it. In the first place, what is a
conspiracy? Well, in this case, they must establish that it was an
agreement entered into between the persons mentioned in this indictment,
or two of them, to defraud the Government. How? By the means pointed
out and described in the indictment. While it may not be absolutely
necessary to describe the means, I hold that if they do describe them,
tell how the conspiracy was to be accomplished, they are bound by their
description; they must prove such a conspiracy as they describe. If
a man is indicted for stealing a horse and the color of the horse
is given, it will not do to prove a horse of another color. If they
describe the offence they are bound by the description.

Now, this is a conspiracy entered into, as they claim, by the persons
mentioned in the indictment, to do a certain thing. What is the object
of the conspiracy? To defraud the Government. And, gentlemen, I believe
the Court will instruct you that the conspiring is the crime. The object
of the conspiracy is to defraud the United States. What are the means?
According to this indictment false petitions, false oaths, false
letters, false orders. What I insist on is that the means cannot take
the place of the object; that the means cannot take the place of the
conspiracy described. When you describe a conspiracy by certain means
to defraud the Government, and set out the means so that the Second
Assistant Postmaster-General is a necessity, then you cannot turn and
shift your ground, and say that it was not the conspiracy set out in
the indictment, but that it was a conspiracy to do some of the things
recited as means in the indictment; you cannot say that it was not a
conspiracy entered into with the Second Assistant Postmaster-General,
but was a conspiracy entered into with some others to make a false
petition or a false affidavit. The ostrich of this prosecution will not
be allowed to hide its head under the leaf of an affidavit. They
must prove, in my judgment, the conspiracy that they describe in the
indictment, and none other.

Now, what else? You must be prepared, gentlemen, when you make up a
verdict, if you say that there was a conspiracy, to say when it was
entered into and who entered into it. And I suppose when you retire, the
first question for you to decide will be: Was there a conspiracy? Has
any conspiracy been established beyond a reasonable doubt? If you say
yes, then the next question for you to decide is, who conspired? Who
were the members of that conspiracy?

After you do that there is one other thing you have to do: You have
to find that one of the conspirators, for the purpose of carrying the
conspiracy into effect, did something; that is called an overt act.
You have to find, that at least one of them did something to effect the
object of that conspiracy. You must remember, gentlemen, that the overt
act must come after the conspiracy. In other words, you cannot commit an
overt act and make a conspiracy to fit it; you must have the conspiracy
first, and then do an overt act for the purpose of accomplishing the
object of that conspiracy. The conspiracy must come first, and the overt
act afterwards. You all understand that now.

Now, this indictment is so framed that the earliest time within the life
of the statute of limitations for an overt act is the 23d day of May,
1879. Why? The indictment charges that as the day, the conspiracy was
entered into. Any overt act in consequence of that conspiracy must have
been done after the 23d of May, 1879. Now, get that in your heads, level
and square. The conspiracy, according to this, is not back of the 23d
of May, 1879, and any overt act done, in order to be considered an overt
act, must be done after the date of that conspiracy. If they prove
any act done before that time, it shows that it was not an overt act
belonging to the conspiracy mentioned in the indictment. If it is an
overt act at all, it is an overt act of another conspiracy entered into
before the date mentioned in this indictment, and consequently will
not do for an overt act in this case. Now, I want you all to understand
that.

I forget how many overt acts are charged in this indictment; some sixty
or seventy, I think. And understand me, now, gentlemen, no matter what
date they fix to an overt act in the indictment, no matter whether there
is any date to it or not in the indictment, if it turns out to have been
done before the time fixed for the conspiracy it is dead as an
overt act: it is good for nothing. The overt act is the fruit of the
conspiracy; the conspiracy is not the result of the overt act. Now let
me make a statement to you, so that you will understand it.

Every petition, every letter, every affidavit, upon which orders for
expedition were based, was filed before the 23d of May, 1879, except on
two routes—Toquerville to Adair-ville and Eugene City to Bridge Creek.
If that is true, then not a solitary petition filed in this case can
be considered as an overt act; and a conspiracy without an overt act is
nothing; it simply exists in the imagination; it is an agreement made
of words and air, and never was vitalized with an act done by one of the
conspirators for the purpose of giving it effect. Recollect that every
petition, every affidavit, every letter filed, was filed before the 23d
day of May, with the two exceptions I have mentioned. That is the date
when the conspiracy came into being. And consequently an overt act must
be after that time.

Now,'when they came to write this indictment, why did they not tell the
truth in it? I do not mean that in an offensive sense, because a man has
the right to write in that indictment what he wants to. That is a matter
of pleading. But why did they not tell the facts? Why did they put in
the indictment that a certain petition was filed on the 26th day of
June, when they had the petition before them and knew that it was filed
in April, 1879? Why did they put in that indictment that a certain
affidavit was filed on the 26th or 27th of May, I think it was, when
they knew that it was filed in April or March? Why? Because if they had
put that in the indictment the indictment would have been quashed, so
far as their overt acts were concerned. The Court would have said, "I
cannot allow you to put on paper that a man entered into a conspiracy on
the 23d of May, and then did an act to carry that conspiracy into effect
in April before that time. I cannot allow you to do that, because that
is infinitely absurd, and pleadings have to be reasonable on their
face." But you see they stated that this was done after the conspiracy.
They had to do it or they would be gone. I believe there is no dispute
about this law that if they describe the overt act—and they must
describe it, because it is a part of the offence—that is, the offence
is not complete without it—they must prove it exactly as they describe
it.

If they describe it with infinite minuteness, they must prove it with
infinite minuteness. If they set out that an affidavit was written on
bark, they must produce a bark affidavit. If they were foolish enough to
say it was written in red ink they must produce it in red ink. If they
allege that an oath was sworn to twice before two notaries public they
must produce an oath sworn to twice. They are bound to prove exactly
what they charge, and if they were too particular about it that is their
fault, not ours.

I say that all these, with the exception of the two routes I have named,
were filed too early to play any important part in this case. Now, I
will come to those routes. Remember, that every overt act must be after
the conspiracy. There are two exceptions, and those two exceptions
include petitions and affidavits. And there is a splendid kind
of justice in the way this thing is coming out, so far as that is
concerned.

The petitions filed on the Toquerville route and on Bridge Creek route,
I believe, are genuine; I believe the Government admits that they are
honest; and they were not attacked except upon one point, and that was
that a daily mail did not mean seven times a week. The point made by the
Government was that a daily mail meant six trips a week—that is, where
you have them every day. We took the ground that daily mail meant a mail
every day, and that in the Western country, as here, they have seven
days in a week.

We contended that you cannot have a daily mail without having seven
trips a week. I think that was the only point made against these
petitions—that they were for a daily mail, and that somebody put in a
figure 7.

No petition for increase of service alone was ever attacked by the
Government in this case, except 25 L, on The Dalles route, and 20 H and
29 H, on the Canyon City route. 25 L was filed April 23, 1879. That was
one month before the conspiracy had life. Consequently that is mustered
out of this case as an overt act.

23 L was filed June 27, 1879, and is in time, provided it had been
a dishonest petition. And it is the only petition filed on the date
alleged in the indictment, and it was not attacked. It was signed by the
business men of Baker City, and is set out, I believe, on page 1617.

20 H was filed May 7th. That is not in time. That is gone.

29 H has no file mark, and never was proved. So that goes.

All the allegations as to false petitions for increase of service—and
by that I mean additional trips—are shown to have been genuine, honest,
true petitions.

There are but two affidavits, one correctly described. Both were made
by Peck. Mr. Bliss admits that Peck had nothing to do with any of these
routes after April 1, 1879, and both of them were made by Peck, and were
sworn to before that date.

The affidavit on the Toquerville route was filed by M. C. Rerdell, who
swears that he was not in any conspiracy to defraud the United States;
that he was not in a conspiracy with Vaile and Miner and John W. Dorsey,
nor with anybody else. It was filed by the subcontractor of record, M.
C. Rerdell, and it is the same route on which Mr. Rerdell, by virtue
of his subcontract, appropriated about five thousand dollars of money
belonging to other people.

The other exception is on the Bridge Creek route, and, strange as it may
appear, that was also filed by Mr. Rerdell.

And, strange as it may appear, it has not been successfully impeached
as to the men and horses necessary under the existing and proposed
schedule. The overt act is not proved, because the oath is not proved
to be false, and because Peck and Rerdell, according to Mr. Bliss's
admission and according to Rerdell's oath, were not in the conspiracy,
and the overt act has to be done by one of the conspirators, of course.

The Court. I understood—I do not know whether I have been under a
delusion all this time or not—that the indictment charged that these
affidavits and false petitions were the means by which the conspiracy
was to be carried into execution; that they were not the overt acts. If
they had been set out as overt acts in the indictment, the Court would
have seen that they antedated the time, and if an objection had been
made to them the Court would not have received them as overt acts.
The reason why they have been admitted and regarded as in the case all
along, to my mind, was that they were acts tending to prove, so far as
they tended to prove anything, the nature of the combination between
these parties anterior to the 23d of May.

Mr. Ingersoll. Before the conspiracy.

The Court. Before the conspiracy. So that whatever character belonged
to that association anterior to that time, if it was continued on after
that time, carried out with overt acts done subsequently to that
time, they were properly received as evidence going to establish the
conspiracy—not as overt acts, but as means to show the character of the
combination amongst the parties anterior to that date.

Mr. Ingersoll. That saves me a great deal of argument. Now, I
understand, gentlemen, that the Court will instruct you that you cannot
take any petition, any letter, any oath, any paper of any kind that was
filed or written or used prior to the 23d of May, 1879, as an overt act;
that all that that evidence is for is to show you the relation sustained
by the parties before that time.

The Court. Yes; you are right.

Mr. Ingersoll. Now, that saves a great deal of trouble.

There are on the Toquerville and Adairville route, and on the Eugene
City and Bridge Creek route, petitions filed after the 23d of May, 1879,
set out in indictment as overt acts. I shall insist, if the Court
will allow me, that if there is no evidence that those petitions were
dishonest, no evidence going to show that they were not genuine, those
petitions cannot be used as overt acts for the reason that they are
charged in the indictment as false and fraudulent petitions. So,
gentlemen, I take that ground, that as to the petitions filed after the
23d day of May on the only two routes left for these gentlemen to
find overt acts upon (Eugene City to Bridge Creek, and Toquerville to
Adairville), if those petitions have not been proved to be false they
cannot be regarded as overt acts for the reason that they were described
in the indictment itself as false and fraudulent petitions. It is
perfectly clear, is it not?

What else have we left? A couple of affidavits. Who made them? Mr. Peck.
When? Before the 1st day of April, 1879, and Mr. Bliss admits that from
that time on he never had anything to do with this business. Mr. Rerdell
filed them, and Mr. Rerdell swears that he was never in any conspiracy;
and Mr. Bliss admits that Peck, after the 1st of April, had nothing to
do with this business. That substantially knocks the bottom out of that
dish.

Now, they attacked the affidavit on the Bridge Creek route, but they did
not succeed in showing that it was not an honest affidavit.

Now, gentlemen, after what the Court has decided I want to call your
attention to another thing.

Do not forget what the Court has decided—that all these things are not
overt acts, but that they simply show the relations of the parties.

Now, if you go and find Vaile and Miner getting up petitions on their
routes, and you also find Dorsey getting up petitions on his routes,
then they claim that that is the result of an agreement between them.
That is not the law. Neither is there in that the scintilla of common
sense. If I find you plowing in your field and your neighbor plowing
in his field, I have no right to draw the conclusion that you have
conspired to plow or to help each other. But if I find your neighbor and
you plowing in your field, and I afterwards find you and your neighbor
plowing in his field, I have the right to conclude that you have swapped
work and that you have something in common. If I find you plowing in
your field and your neighbor walking behind you sowing grain or dropping
corn, and then I find you in the fall shucking out the corn together,
and I find your neighbor taking half of it to his barn and you taking
half of it to your barn, I make up my mind that you have had some
dealings on the corn question.

Now, we find that on May 5, 1879, these parties absolutely divided,
and after that, when Vaile and Miner got up a petition on their route,
Dorsey did not help them; and when Dorsey got up one on his, Vaile and
Miner did not help him. That shows what the relations of the parties
were. Does that show that they were then in a conspiracy? Does it show
that they had any conspiracy before that time? They had separated their
interest; they had ceased to act together; one did nothing for the
other. If there had been a conspiracy before that time that conspiracy
died on the 5th of May, 1879; and if it did, then there is no
possibility of any conviction in this case, no matter what the evidence
is—not the slightest.

Now, I want you to understand that ground exactly. I am not begging
the question. I am not afraid to meet every point, every paper, every
scratch, in this case. But I want you to understand it. All those things
were allowed for the purpose of showing the relations of the parties,
the relations that the defendants sustained to each other; and the
evidence is that they sustained no relations to each other after 1879;
that each went his own road to attend to his own business in his own
way. That is the evidence.

Now comes the next point. What are the overt acts in the indictment?
Really they are the orders made by Mr. Brady, unless you take this poor
little affidavit made by Peck and filed by Rerdell.

Then comes the next point. You cannot treat anything as an overt act
unless it was made by one of the conspirators. Is there any evidence in
this case that Mr. Brady ever conspired with anybody? Not the slightest.
And unless he conspired with us, any other made by him cannot be regarded
as an overt act in this case. I think everybody will admit that. Unless
Brady conspired with us, and we with him, any order of his cannot be
regarded as an overt act.

I ask you, gentlemen, what evidence is there in this case that Mr. Brady
ever conspired with any of these defendants? I will answer that question
before I get through, and I think I will answer it to your entire
satisfaction.

I will go a step further in this case, and I may go a little further
than the Court will go. I say that when they state in that indictment
that an order is made for the benefit of Miner, Vaile, and Dorsey,
and the evidence is that it was made for the benefit only of Vaile and
Miner, that is a fatal variance, and it cannot be treated as an overt
act for any conspiracy. And when the indictment charges that an order
was made for the benefit of S. W. Dorsey, and Vaile, and Miner, and it
turns out that it was made for the sole benefit of S. W. Dorsey, I claim
that that is a fatal variance.

Gentlemen, I was going through all these overt acts and all these
terrible false claims. But the decision of the Court has utterly and
entirely relieved me from that duty. So I will turn my attention to
another person.

The next defendant to whom I may call your attention is Mr. John W.
Dorsey. It is claimed that John W. Dorsey was one of the original
conspirators; that he helped to hatch and plot this terrible design.
Let us see what interest John W. Dorsey had. You have heard me read the
agreement he made, have you not, with Miner? Now, let me read to you
the agreement that he made on the 16th day of August, 1878. Now, we will
find out what interest John W. Dorsey had in all this conspiracy. On the
16th of August, 1878, there was no reason for telling any lie about
it. They could not get on the routes in August, 1878; they had not the
money, and so they took in Vaile. At that time, gentlemen, there was no
reason for their writing anything in this paper that was not true, not
the slightest. And I take it for granted that most people tell the truth
when there is no possible object in telling anything else, if their
memory is good:

4th. The profits accruing from the business shall be divided as follows:
From routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M.
Vaile, one-third.

To John R. Miner, one-sixth; to John M. Peck, one-sixth; and to John W.
Dorsey, one-third.

From routes in Montana, Wyoming, Colorado, New Mexico, Arizona, Utah,
Idaho, Washington, Oregon, Nevada, and California, to H. M. Vaile,
one-third; to John R. Miner, one-third; to John M. Peck, one-third.
[Page 4014.]

And to John W. Dorsey nothing. The entire interest of John W. Dorsey in
the whole business was one-third of the profits on routes in the Indian
Territory, Kansas, Nebraska, and Dakota. This was signed by H. M. Vaile,
John R. Miner, John M. Peck, and John W. Dorsey, and I believe these are
all admitted to be the genuine signatures of the parties.

The only routes mentioned in this indictment in which John W. Dorsey on
the 16th day of August, 1878, had any interest whatever were: Kearney to
Kent in Nebraska, Vermillion to Sioux Falls in Dakota, and Bismarck
to Tongue River in Dakota. Remember that, gentlemen. That is very
important. The evidence is that he sold out his interest in the
following December, made a bargain for ten thousand dollars, and the
evidence is that he received the money, and the evidence is that after
that he never had any interest in the profits, no matter how much was
made. And yet these gentlemen say that he was part and parcel of a
conspiracy formed on the 23d of May, 1879. Long before that time he had
sold out every dollar's interest he had, and had no more interest in it
than though he had never existed. He got his ten thousand dollars; that
was all. Now let us see what he did when the routes were divided.

Mr. Merrick. When did you say he sold out and got the money?

Mr. Ingersoll. The bargain was made in December, and his brother wrote
to him at first that Vaile would not give it to him, and then that he
would. Don't you recollect the two letters you asked Dorsey so much
about?

It had been agreed to once, and then after S. W. Dorsey came out of the
Senate John W. Dorsey was paid ten thousand dollars, and Miner swears
that the division was absolute, perfect, and complete; and that nothing
was signed by one for the other after the 5th of May, 1879.

Mr. Bliss. Miner does not say when. He swore that he, signed no papers
after the 5th of May, 1879.

Mr. Ingersoll. He says that he signed no papers for the other side, and
that the other side signed none for Vaile and Miner.

Mr. Davidge. You are talking of two different things.

Mr. Ingersoll. I will show you after awhile that you are wrong, as I
always do. I never made a mistake on you yet.

The only routes mentioned in this indictment in which John W. Dorsey
on the 16th day of August, 1878, had any interest whatever were from
Kearney to Kent, in Nebraska; Vermillion to Sioux Falls, in Dakota; and
Bismarck to Tongue River, in Dakota. And I will say right here that
if at any time I do injustice to Mr. Bliss or anybody else, if it is
pointed out I will take it back cheerfully, and if it is not pointed
out, and they show that I did it, I will get up and admit it and say
that I was mistaken.

Mr. Bliss. You will have a great deal to admit.

Mr. Ingersoll. Very well, I will do it, for I have the courage of
conviction, and I have the courage to say that I am mistaken when I am.

Now, the evidence is that John W. Dorsey sold out his interest for ten
thousand dollars, and that he received the money, and that after that he
had no interest in the profits when the three routes were divided, and
the only three were the ones I have mentioned.

On the first route, from Vermillion to Sioux Falls, John W. Dorsey was
the subcontractor and he gave Mr. Vaile the entire pay for all increases
and all expeditions. John W. Dorsey had the right to subcontract, and
Mr. Vaile had the right to make the contract. The statement on page 726
shows simply that John W. Dorsey never drew a dollar upon that route.
That is one route fairly and squarely disposed of. Understand, I cast
no imputation upon Mr. Vaile for having the contract and for getting the
money. When I come to it I will show you that he had a right to.

The next route is from Kearney to Kent. John W. Dorsey had an interest
in that route, according to the agreement of August 16th, of one-third.
You will see from page 726 of the record that the first quarter John M.
Peck got the money, two hundred and forty-five dollars and six cents.
John W. Dorsey was entitled to one-third of that, if it was profit.
The next quarter was paid on the 22d of January, 1879—that is, for
the fourth quarter of 1878, and that was paid to H. M. Vaile. And never
another solitary cent was paid to anybody in such a way that John W.
Dorsey was entitled to any part or portion of it. That gets that route
out of trouble, so far as John W. Dorsey was concerned, no matter what
the increase may have been after that, no matter what the expedition
was, no matter whether French carried it for nothing, no matter what
happened to Cedarville or that city of Fitzalon; it was no interest to
John W. Dorsey, no matter whether the road ran direct from Fitzalon to
Cedarville or not. He was entitled to one-third of the profits on one
payment to Peck, and that payment was two hundred and forty-five dollars
and six cents; whether he ever got it I do not know.

Let us see how he came out on the next route, from Bismarck to Tongue
River. He went out there to build stations. I will come to that in a
little while. Now, I call attention to page 727. The third quarter from
July 1 to September 30, 1878, was paid November 8, 1878, to H. M.
Vaile. Never a solitary dollar on the route was paid to John W. Dorsey,
according to this record, if you can rely on these books.

That is the state of the case on these three routes. And yet it is
solemnly averred in the indictment that all the orders on these routes
were made for the joint benefit of John W. Dorsey and others. Now,
before another payment was made the division of the routes had been
completed, and John W. Dorsey sold out his interest in these routes and
all others for ten thousand dollars. So that he never received a
dollar upon the Bismarck route and the Vermillion route except as it is
included in the gross sum of ten thousand dollars which he received for
his entire interest, and that entire interest is described perfectly in
the contract of August 16, 1878. Now, it John W. Dorsey had no interest
in any route except as stated in the contract, of course nothing was
done upon any other route for his benefit; nothing was done in which he,
by any possibility, had the slightest pecuniary interest. How were the
petitions filed for his benefit? How were the affidavits made for his
benefit? How were the orders made for his benefit? He had no interest;
he had parted with it, and had nothing more to do with it than the
attorneys for the prosecution in this case.

It is claimed by Mr. Bliss that when John W. Dorsey sold out he agreed
to make the necessary papers for the routes, and he tried to impress
upon your minds the idea that the bargain was that John W. Dorsey knew
that for ten thousand dollars he had to commit perjury and forgery and
several other cheerful crimes, from time to time, as he might be called
upon by the gentlemen who had been his co-conspirators.

J. W. Dorsey frankly and cheerfully swore that he agreed to make the
necessary papers. He did not swear that he agreed to commit any frauds,
perjuries, or forgeries. Nothing of the kind. He agreed to execute, of
course, the necessary legal papers—the papers that, as contractor, were
necessary for him to make to vest title of the route in the person to
whom he had sold—just the necessary papers that would allow the man who
had paid him for the route to draw the money from the Government if he
performed the service.

Now, what were the papers? I say right here, gentlemen, that under the
law as it was then, under the law as it is now, it is impossible for
a contractor to assign his contract so as to be relieved from
responsibility to the Government; the Government will not permit it. The
Government will permit him to make a subcontract, and that is what John
W. Dorsey did; that is one of the things he agreed to do. In order to
make that subcontract absolutely certain; in order to put it beyond his
power to do anything with it, that subcontract was made for the entire
pay, for the entire increase and expedition. And what more? In order
to make that absolutely perfect, so they would not have a loop-hole
anywhere, he signed blank drafts upon the Post-Office Department for the
entire pay of every quarter during the contract term. And then, if they
were fined—and nobody knew how much they would be fined—they had the
right to fill up that order for the amount due them from the Post-Office
Department after deducting fines.

He sold out in March, 1879. The regulation or order making it necessary
for the contractor to make an oath as to additional stock and men was
not in existence, was not a binding law or regulation, until the 1st
day of July, 1879. When he sold out in March, unless he were gifted
with prophecy, he would not know what the regulation of the 1st of July
following would be.

Now, there were two affidavits made by John W. Dorsey on route 38134,
Pueblo to Rosita. Around those affidavits Mr. Bliss hovered and Mr.
Ker remained. John W. Dorsey testifies that he received one of those
affidavits in the morning and swore to it, and that it was filled up
when he swore to it. Mr. Bliss and Mr. Ker, I believe, both say that it
was not filled up.

Mr. Bliss. Where does Mr. Dorsey say that it was filled up when he swore
to it?

Mr. Ingersoll. I have not the page here, but I will give it to you. He
swore that a dozen times, that he never swore to any blank affidavits.

Mr. Bliss. I undertake to say that it cannot be found in his evidence.

The Court. He testified that he received them both by mail, and that the
second one was contained in a letter which said that there was an error
in the first, and the second was sent for the purpose of correcting that
error.

Mr. Ingersoll. There could not have been any error in the first unless
it had been filled up. You cannot make an error in blank. On page 4838,
Mr. Rerdell swore that he left this city on the 17th or 18th of
April for the West, and then he adds, "I think on the 18th." Then the
Government brought the hotel-keepers from Sydney, Nebraska, and from
Denver, and from some other place, nearly as many witnesses as you
had about the paper pulp. And they proved that Rerdell was beyond the
Missouri River on the 21 st of April.

Now see what Mr. Bliss says on page 4914:

And yet, gentlemen, it is beyond dispute that as early as the 15th of
April, 1879, Mr. Rerdell had left this city and gone West.

Why did he have it stated on the 15th, gentlemen? I will tell you. Oh,
I tell you the human mind is a queer thing when it gets to working. John
W. Dorsey was in Middlebury, Vermont; if a letter had been sent from
here on the 15th, it certainly would have got up there before the
21st. So they wanted Rerdell out of this town as early as possible, so
that it would make it highly improbable that it would take a letter from
that time to the 21st to get to Middlebury. Now, the evidence is that he
left here, he thinks, on the 18th. When did the letter get up there? I
think the 20th or 21st.

Mr. Davidge. There was a Sunday intervened.

Mr. Ingersoll. They say, gentlemen, that there is no evidence that the
blanks were filled, and yet John W. Dorsey swears that he received a
letter stating that the first affidavit was erroneous, and the second
one was sent to him to correct it. How would you correct one affidavit
in blank by another affidavit in blank? How did he ever get those
affidavits? I will tell you. We will have that little matter settled.
Here is what Rerdell swears on page 2232:

Q. When did you return from that visit?—A. I returned about the 5th of
May.

Q. State whether or not after you returned, you found blank affidavits
among the papers connected with the business?—A. Yes, sir.

Q. How many did you find?—A. Well, there were several blank affidavits
of John W. Dorsey's and several of John M. Peck's. I don't know how many
there were.

Q. Were they blank affidavits?—A. Well, sir, they were blank affidavits
similar to that one I sent, leaving out the number of men and animals in
each case.

Q. Did they purport to have been sworn to?—A. Yes, sir.

Q. Were those affidavits among the papers when you left here to go
West?—A. Some of them were. I think those of Peck's were here, probably
four or five, or half a dozen, and I had made out, before I left here,
a lot of them and sent them to John W. Dorsey. In the mean time, when I
returned here, John W. Dorsey was here.

Mr. Rerdell swears that just before he went away he sent the affidavits
to John W. Dorsey, and the only question between them is, were they in
blank, or were they filled. John W. Dorsey swears that they were filled,
because when he received the second he received a letter stating that
there was an error in the first, and that error had been corrected in
the second. The last nail in the coffin of that doctrine.

Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of
the jury, before finishing what I am about to say in regard to the
two affidavits of John W. Dorsey I will now call your attention to a
statement made by Mr. Bliss, on page 304, in his opening speech to you:

Mr. Dorsey, while Senator, was, I think, chairman of the Committee on
Post-Offices, and chairman of the subcommittee in charge of all the
appropriations. That brought him, of course, directly in connection with
the Post-Office Department and its officials, and gave him, as we all
understand, necessarily, from the nature of the case, the possession of
some exceptional power over officials of the department—greater power
than a Senator would have when occupying som'-other position.

That statement was made to you, gentlemen, for the purpose of making you
believe that while Senator Dorsey was a member of the Senate he was also
chairman of the PostOffice Committee, and of the subcommittee having
power over the appropriations, and that he not only took advantage of
being a Senator, but by virtue of being chairman of that committee had
exceptional power over the officials of the Post-Office Department.
He was trying to convince you that, finding himself chairman of that
committee, finding himself with this power, he thereupon entered into a
conspiracy.

What evidence did the Government offer upon that point? Nothing. Did
Mr. Bliss at that time suppose that Mr. Dorsey was chairman of that
committee? The records were all here. The Government had plenty of
agents to ascertain what the fact was; and yet, without knowing the
facts, Mr. Bliss stated to this jury that he believed that; that Dorsey
was chairman of the Post-Office Committee and of the sub-committee;
wanting to poison your minds with the idea that Mr. Dorsey had taken
advantage of having held that position. Now, the only evidence upon
that point I find on page 3992, and that is the evidence of Mr. Dorsey
himself. He is asked, Were you a member of the Post-Office Committee in
1877? No. In 1878? No. Or chairman of the subcommittee? Here is what he
says, that he had not been on that Post-Office Committee "for nearly
two years" prior to July 1, 1878. And yet an attorney representing the
United States, representing the greatness and honor, the grandeur and
the glory of fifty millions of people, for the purpose of poisoning your
minds, there made that statement without knowing anything about it or
without caring anything about it. I thought I would clear that point up
the first thing this morning.

Now we will go on with the affidavits. You know these terrible
affidavits that were sworn to in Vermont. It was stated that the first
affidavit was wrong and that the second affidavit was substituted for
the first. Now, if the second affidavit took more money out of the
Treasury than the first affidavit you might say that there was a
sinister motive, a dishonest motive in withdrawing the first and
substituting the second, unless it appeared clearly that the second was
true. But suppose it turns out that the substitution did not take an
extra dollar from the United States? Then what motive do you say they
had in doing it? Was it a motive to steal something, or was it a motive
simply to be correct? What other motive could there have been?

Now, let us see. The first affidavit said three men and twelve animals;
for the expedition, seven men and thirty-eight animals; and the
proportion was exactly three hundred per cent—that is, three times as
much. Now, then, they put in another affidavit. The second affidavit
says two men and six animals. That makes eight. And on the expedited
schedule six men and eighteen animals, which makes twenty-four; and
three times eight are twenty-four; exactly the same. Three times fifteen
are forty-five, and three times eight are twenty-four, and the amount of
money drawn under the second affidavit is precisely the same that would
have been drawn under the first affidavit.

Now, do you pretend to tell me that they took the trouble to withdraw
the first affidavit and put in the second affidavit because they were
trying to defraud somebody? On the contrary, they took that trouble
because there was a mistake made in the first affidavit and they wanted
to correct it, not for the purpose of getting more money, but for the
purpose of getting a correct affidavit.

Mr. Crane (foreman of the jury). Was not that first affidavit
interlined?

Mr. Ingersoll. No, sir.

If there had been any fraud about it, would they not have withdrawn the
paper? They had a right to withdraw it. Yet they left the paper there;
they left it there as a witness. Why? Because it did not prove anything
against them; it only proved they desired to be correct.

My recollection is there were erasures in both affidavits. Let us
find them. Before I get through I will endeavor to show you that
every erasure and interlineation is an evidence of honesty instead
of dishonesty. What are the numbers of these affidavits? [Examining the
papers.] They are number 4 C and 5 C. Route 38134. I will read them.

Hon. Thomas J. Brady,

Second Assistant Postmaster-General:

Sir: The number of men and animals necessary to carry the mail on route
38134 on the present schedule is three men and twelve animals. The
number necessary on a schedule of ten hours, seven times a week, is
seven men and thirty-eight animals.

Respectfully,

John W. Dorsey

Subcontractor.

There does not appear to be any erasure or interlineation or anything
else in that affidavit. Now, here is the other one:

Hon. Thomas J. Brady,

Second Assistant Postmaster-General:

Sir: The number of men and animals necessary to carry the mails on route
38134 on the present schedule, seven times a week, is two men and six
animals. The number necessary on the schedule of ten hours, seven times
a week, is six men and eighteen animals.

Respectfully,

John W. Dorsey

Subcontractor.

That is the second affidavit. The first was withdrawn. That is, they
had permission to withdraw it, and in the second affidavit is the
interlineation "seven times a week," isn't it? That is simply an
interlineation, because there had been an omission to state the service
that was then being performed or that was to be performed.

Mr. Crane (foreman of the jury). That has puzzled me a good deal, to
understand the motive of those two affidavits.

Mr. Ingersoll. There certainly could not be any motive for putting in
seven or three times a week, for this is simply to make it agree with
the truth. If I give a note to a man for five hundred dollars and should
happen to write in the word "hundred" and not the word "five," and then
should take it back and write in the word "five" above it, that is not a
sign of fraud.

Will somebody give me number 18 K; I just happened to see something
there which may be worth something, or may not.

Now, gentlemen, here is a petition marked 2 A, that Rerdell swears that
the words "schedule thirteen hours" were written in by Miner. In one of
these papers I happened to see the word "schedule." Just notice the word
"schedule" on this paper [exhibiting to the jury,] and then have the
kindness to look at the word "schedule" in this other one [exhibiting
to the jury,] and see whether you think one man wrote them both. Rerdell
says he wrote the word "schedule" in that one [indicating,] and that
Miner wrote the word "schedule" in this other one [indicating.]

Now, gentlemen, there is another charge against John W. Dorsey, on
route 38145, and upon that route he made two affidavits. In the first
affidavit he swore it would require three men and seven animals on the
schedule as it then was, and that makes ten; that with the proposed
schedule it would take eleven men and twenty-six animals, making
thirty-seven. Now, if it took ten on the schedule as it then was,
and thirty-seven on the proposed schedule, then the Government, which
accepted that affidavit, would have to pay him three times and
seven-tenths as much, which is the relation between ten and
thirty-seven. The proportion then is three and seven-tenths. On the
first affidavit his pay would have been twelve thousand nine hundred and
thirty-five dollars and fifty-two cents a year.

Now I come to the second affidavit, which said that for the schedule
as it then stood ijt would take twenty men and animals. On the proposed
schedule he said it would take twelve men and forty-two animals, making
fifty-four. Now, the ratio of the second affidavit was as twenty is
to fifty-four. The ratio in the first affidavit was as ten is to
thirty-seven, so that under the second affidavit, which they say was
willful and corrupt perjury, he got eight thousand four hundred and
fifty-seven dollars a year instead of twelve thousand nine hundred and
thirty-five dollars and fifty-two cents. There were three years for the
contract to run, and a little over. Under the first affidavit he would
have received thirteen thousand nine hundred and ninety-two dollars and
seventy-five cents during the contract term more than he took under the
second. An affidavit was put in there that he thought was erroneous. He
withdrew that affidavit and put in a second one. If he had allowed the
first to remain and they had calculated the amount on the first he would
have received thirteen thousand nine hundred and ninety-two dollars and
seventy-five cents more than he did under the second affidavit. But he
withdrew the first and put in the second, and took from the Treasury
thirteen thousand nine hundred and ninety-two dollars and seventy-five
cents less, and they charge that as a fraud, as an evidence of
conspiracy and perjury. Now, that is all there is against John W.
Dorsey.

On page 4090 John W. Dorsey swears that General Miles wanted to know how
far apart he (Dorsey) was building the stations on the Tongue River and
Bismarck route. Let us turn to page 4090. You know they were trying to
prove that when John W. Dorsey went out there and built the ranches
that he was going to build them about fifteen or seventeen miles apart,
because it was claimed that they knew there was to be increase and
expedition. You remember that. Now, when John W. Dorsey came upon the
stand he swore that when they went out there they started to build
those stations, I believe, somewhere in the neighborhood of thirty or
thirty-five miles apart, as they could get water. Then he swore that
when he went himself over, I think, to Miles City, where General Miles
was, that General Miles asked him how far he was building his stations
apart. John W. Dorsey told him. Then General Miles gave him his advice.
Now, I want to read this to you. I asked him this question:

Q. When you got to Fort Keogh did you go to see General Miles?—A. Yes,
sir.

Q. Did you have any conversation with him in regard to this route, with
regard to the needs of the country for mail service; and, if so, what
was it? A. I told him all about the business generally. He seemed to
understand it pretty well. He wanted to know how far apart we were
building stations. I told him. He wanted to know how often the mails
would run, and I told him it would be weekly service, I thought. "We
have been pent up here two or three years," he says, "with mails from
eighteen to twenty days apart, reaching us by the way of Ogden and
Bozeman." And he says, "We can get it in seven or eight days over this
line." And now I would like to say that he did not say that he knew
there would be an increase, but he said he should like to have it
increased to three trips a week, or daily, and fifty hours' time. I told
him there was no use to try to get it at all; that it could not be done
at present; that nobody knew the distance through that country; that we
expected to have it measured; that it was claimed by everybody that it
was a good deal more than two hundred and fifty and probably over three
hundred miles, and nobody would undertake to carry it. Said I, "If
you extend it the contractor can throw up his contract and you will be
without any mail." He said, "We are going to ask for what we want, but
we will take what they will give us."

"Your stations are too far apart; you can't run any fast time with your
stations so far apart; you want more stations, and nearer together." The
result was that when I went back I met Mr. Pennell, who had built the
stations thirty to thirty-five miles apart, and going back we put in
intermediate stations. We only carried out lumber enough from Bismarck
to build eight or nine stations, for the windows, &c.; we did not think
of building any more at that time. Mr. Pennell says the order was to
build the stations seventeen to twenty miles apart in going out. That
is no such thing. There was not a station built going out closer than
thirty to thirty-five miles.

Q. What, if anything, did General Miles say that convinced you that you
ought to build stations nearer together?

Then he testifies that on account of what he said he did this, and that
he had no instructions from Washington.

That is the testimony. Mr. Bliss endeavored to frighten the witness by
stating in his presence that he (Bliss) did not believe General Miles
would swear to any such thing, judging, of course, from the conversation
that he (Mr. Bliss) had had with General Miles. Notwithstanding that
threat, John W. Dorsey, confident that he was telling the truth, knowing
that he was telling the truth, told his story, and the Government never
brought General Miles to contradict him.

Now, the next thing about John W. Dorsey is the conversation that he had
with some men in July or August out on the road, that I have spoken to
you about before. Nothing could be more perfectly improbable. It may be
that he did tell some man that he was a brother of Senator Dorsey, and,
perhaps, he did say that if he got into a tight place or hard up for
money he could borrow money from his brother. I do not know what he may
have said on that subject. But, gentlemen, there is not a man on this
jury, not one of you, who has the slightest suspicion that John W.
Dorsey at that time told those men substantially that his brother was in
a conspiracy with the Second Assistant Postmaster-General, and that
he, John W. Dorsey, was also a conspirator. There is not one of you who
believes that, not one, and you never will. Why not? Because it is
so utterly and infinitely unreasonable and absurd. Now, that is the
evidence against John W. Dorsey. My attention is called to one other
point in his case, and so I will call your attention to it.

Mr. Bliss, gentlemen, on page 243, in speaking of the two affidavits on
the Pueblo and Rosita route, says:

We find this extraordinary condition of things. On route 38134, from
Pueblo to Rosita, which, I think, is the same route upon which the
obliging Mr. John W. Dorsey, as I have just stated to you, was allowed
to make the affidavit instead of Mr. Miner.

Now, he goes on to describe these two affidavits, and then he says:

Those two affidavits were before Mr. Brady, made by John W. Dorsey on
the same day, and yet Mr. Brady chose to pick out one or the other of
them and say, "I believe that as the absolutely conclusive statement of
the number of men and animals that are now in use upon that route,
and upon that affidavit I will make my order taking from the Treasury
thousands of dollars of money." You will see that the first affidavit
made the number two men and six animals, making eight as the number of
stock and carriers then in use; but the other one called for three
men and twelve animals, making fifteen as the number then in use, and,
therefore, according as he accepted one or the other, by the rule of
three, to which I called your attention just now, there would be twice
the amount of money allowed from the Treasury under the one affidavit
that there would be under the other.

Just think of that, gentlemen. The number of men and animals then in use
has nothing to do with the number of men and animals stated in the other
affidavit; those amounts bear no relation to each other. The number of
men and animals in use in the first affidavit, and the number that would
be necessary on the next schedule, do bear a relation to each other. The
number of men and animals on the second affidavit on the then schedule
bears relation to the proposed number on the proposed schedule, and
not to the number on the other affidavit. And yet Mr. Bliss stood right
before you, with those two affidavits that would take the same amount
of money out of the Treasury, to a fraction, precisely the same—not the
difference of the billionth part of a farthing—and stated to you that
one would take twice as much money from the Treasury as the other. You
will think that he is as defective in mathematics as in law. I say to
you now that the amount that would be taken out of the Treasury on those
two affidavits is precisely the same.

I did not think that anybody could excel Mr. Ker in mathematics, but Mr.
Bliss bears off the palm. He bean, off the palm even in misstatement,
and bears off the palm in mistake. The two affidavits would call for the
same amount of money precisely, and yet Mr. Bliss stands up before you
and says there is twice as much on one as the other. Now, what is that
for? That is to prejudice you: that is all.

Gentlemen, you saw John W. Dorsey; you heard his testimony; you know
whether he is a man to be believed. It is for you to judge whether he is
honest or dishonest, and I leave his testimony with you. It was direct;
it was to the point; and his manner on the stand was absolutely and
perfectly honest.

Now, there is another point made. You know you have to think of these
things as you can, and step on them and then go on. Another point is
made, and it was urged by Mr. Bliss day after day. And what is that?
That Mr. Brady took the affidavits of all these men as absolutely true;
that he allowed them to fix the limit of the money they would take out
of the Treasury; that he allowed interested men to make the affidavits,
and then he took the affidavits as absolutely true; that he allowed the
contractors themselves to fix the sum they would seize. Now let us see
what that is. Mr. Brady swears that he regarded the affidavit as the
honest opinion of the man who made it, but not as necessarily true;
that he had a standard of his own. Your views upon all such
questions, gentlemen, will depend upon which side of human nature you
stand—whether you are a believer in total depravity, or whether you
think there is a little virtue left in human nature. If you stand on
the side of suspicion, if you allow the snake of prejudice to forever
whisper in your ear, why, your idea will be that every man is a rascal;
and whenever he does a decent action you will say, "This action is a
little velvet in the paw for the purpose of covering the claw of some
devilment that he has in store." If you judge from that side you can
torture any act, no matter what it is, into evidence of guilt. But you
may judge from the other side and say that men, as a rule, are decent;
that they would rather do a kind act than a mean thing; that they would
rather tell the truth than tell a lie. I tell you to-day that there is
an immensity of good in human nature. There are hundreds and thousands
and millions of men to-day who are honest, who would not for anything
stain the whiteness of their souls with a lie. They are laboring-men, it
may be, working by the day for a dollar or a dollar and a half, and only
taking enough of it to keep life and strength in their bodies and giving
the rest to wife and child. And there are battles as grand as were ever
won by a celebrated general, and just as bravely fought, with poverty
day after day; and the man who fights the battles gains the victory and
goes down to the grave with his manhood untarnished. You know it, and so
do I. And yet you are all the time told to suspect everything, no matter
what it is. There is a flower there; ah, but there is a snake under it!
Always making that remark; accounting for every decent looking action by
a base motive. That is not my view of human nature.

Now, Mr. Brady says that he had a standard of his own; that he let these
men make their statements, and he took their statements as being what
they believed to be the truth. And why not? Suppose I say to a man,
"What will you take for that horse?" And the man says, "That horse is
worth a hundred dollars." Suppose he goes and swears to it; that would
not make any difference in the price I would give for the horse, not a
bit. You see I am not buying an affidavit, I am buying a horse. So, when
Brady says to the contractor, "What will you carry the mail at six miles
an hour for?" and the man says "Twenty-five thousand dollars," and he
swears to it, Brady is not buying the affidavit; it is the service. If
he does not believe the service is worth that much, he says, "I can't do
it," and that is all. But they say "No; that is not what Brady did."

Now, as a matter of fact, there are nineteen routes in this indictment,
and I believe eighteen of them were expedited. I have made a calculation
for the purpose of showing that the amount to be paid was a matter of
bargain; that it was a matter talked over between the parties; that
it was the result of agreement, and that Mr. Brady did not take the
affidavit as the actual amount, and that they were not bound to take the
amount that he actually said. Now, I have deducted what was allowed
from what could have been allowed on the affidavits, and I find that
the price did not depend upon the affidavits. I find that there was
a difference between the amount called for by the affidavits and the
amount granted of over three hundred thousand dollars. And yet these
gentlemen say to you that Brady allowed the men who made the affidavits
absolutely to fix the amount. Gentlemen, that will not do. It was
a matter of agreement, a matter of bargain, the same as any other
agreement or any other bargain.

Now, gentlemen, suppose they had had a conspiracy and said, "We want to
get all the money we can out of the Treasury." They would have agreed
upon a per cent.; they would have had all those affidavits showing
substantially the same per cent., wouldn't they? Because they would have
wanted harmony in it. They would have said, "It won't do for you to make
an affidavit on that route with one thousand two hundred per cent., on
this route with five hundred, on that route with two hundred and twenty
per cent., and on the other route with three hundred and forty per cent.
That won't do; that is nonsense; we are in a conspiracy and we want all
these things to agree and harmonize." And the result would have
been that they would have had about the same per cent, in all those
affidavits. And yet those affidavits vary in per cent, all the way from
two hundred and twenty to one thousand two hundred. They say, "Result of
conspiracy." I do not look at it in that way.

It is also claimed that the persons who sold out—that is to say, John
M. Peck and John W. Dorsey—agreed to make the necessary papers that the
other parties required. That being so, why should not affidavits have
been made in blank? Now, I ask you if the other parties were willing to
swear to anything that these men would write, why were they made that
way? Why not avoid the suspicious circumstance of blanks and put the
amount in at first, knowing that the men would not hesitate to swear? Of
what use was it, gentlemen, to have an affidavit suspiciously made, to
have blanks suspiciously left, when the men were willing to swear to
any numbers they would put in? Why did not the parties who made the
affidavits write in the amounts? Does not that very fact, that blanks
were left, show that they were to take the judgment of the men who were
to do the swearing? Why would they leave blanks? Why did they not fill
them up at the time and have them sworn to?

Why were they not continuously written? That is another point, if this
was a conspiracy. Guilt is always conscious that it is guilty. Guilt is
always suspecting detection. Guilt is infinitely suspicious. Guilt would
make all the papers as nearly right as possible. Guilt would look out
for erasures. Guilt would abhor blots. Guilt would have avoided
having blanks filled in with different colored inks. Guilt would
want everything fitting everything else, nothing to excite suspicion.
Innocence is negligent. The man with honest intentions is the one that
does not care. But the guilty man does not travel in the snow. He wants
no tracks left.

Now, another thing: The fact that no effort was made to have the
affidavits in the same handwriting, no effort to have the blanks
apparently filled at the same time, that they were interlined, that
there were erasures—all those things tend to show that the parties
were honest in what they did. It was just as easy to have one without an
erasure as with it; ii was just as easy to have one continuously written
as to have the blanks filled up; just as easy to have one without any
interlineations as with it. And yet these parties, knowing that they
were conspirators (according to these gentlemen), Mr. Brady occupying
a high and responsible position, were so careless of their reputations,
that they did not even endeavor to make the papers passable upon their
face.

Another thing: These very routes were investigated by Congress in
1878—this very business. If the parties at that time had been conscious
of guilt, why were any suspicious papers left on file? Why were not
others substituted that had no suspicious interlineations, no suspicious
erasures, no suspicious blanks that had been filed? Why were these very
affidavits at that time reported to Congress?

The first investigation was in 1878, and on account of that
investigation the contractors for about a month and a half were left.
Then there was another investigation in 1880.

Mr. Merrick. Is there any evidence that they were all reported to
Congress?

Mr. Ingersoll. I think so; I think that is here in the record. I
understand the evidence to be that it was all reported to Congress.

Mr. Merrick. The investigation of 1880 was general, and not as to these
particular routes.

Mr. Ingersoll. In 1878 there was a special investigation growing out
of these Clendenning bonds and out of the Peck bids, and out of the
connection that they said Stephen W. Dorsey had with this business. That
is what it grew out of. Now, in the light of that investigation, let us
take it for granted for one moment that according to their statement the
parties had conspired. If anything on earth would make them afraid about
papers I think it would have been that investigation; and yet no effort
was made to conceal one, not the slightest.

Then we will go another step. General Brady was Second Assistant
Postmaster-General. All these papers were absolutely in his power. He
could have called for them at any time. Every suspicious paper could
have been destroyed or an unsuspicious one substituted for it.

Now, I want to know if it is conceivable that General Brady, under these
charges, when the new administration came in, under the threat of the
Government, would voluntarily leave those papers upon the files if they
had been dishonest and he knew it?

Take another step. So far as we have learned from the prosecution I
believe there is one paper claimed by them to have been lost. They do
claim that there was a second affidavit on the Bismarck and Tongue River
route. One is gone and one remains. Which remains? The affidavit for
one hundred and fifty men and one hundred and fifty horses. It seems to
me absolutely capable of demonstration that we did not take the one that
is gone. Had we been going to take anything we would have taken the one
for one hundred and fifty men and one hundred and fifty horses, and
left the other. But the other, about which nobody ever did complain, was
taken, and the one upon which they build their great argument of fraud
upon that route was left. And then it turned out that General Brady only
allowed forty per cent, of that affidavit.

Now, this prosecution was not begun in a moment. It was talked about for
weeks and months, I might almost say for years. Talk, talk, talk in
the papers everywhere. These men were not suddenly charged with this
offence. They understood it; they knew it. I think I have been engaged
in this suit, or suits growing out of this business, for two years. It
was a matter of slow growth. Mr. Brady retired, I believe, some time in
April, 1881, knowing at that time that these charges had been made and
that the charges were being pressed. Mr. Dorsey knew it at the same
time. All these defendants knew it. Now they say that at that time we
were in conspiracy with Mr. Brady, and they say that at that time we
were in conspiracy with Mr. Turner. We had the papers in our power.

Now, if Mr. Dorsey was wicked enough to conspire, if Mr. Brady was
villainous enough to conspire, I ask you whether they would have left
behind the evidence of their conspiracy? Why were the papers left?
Because General Brady never dreamed that one of them was dishonest.

Why did not Vaile and Miner, John W. Dorsey and Peck and Stephen W.
Dorsey ask for the papers? Because they believed every one to be honest,
and they had no use for them. They were willing that the Government
should make out of them what it could. I ask again, is it conceivable
that John R. Miner, if he knew there was on the files of the department
a petition that he had changed, that he had erased, that he had
interlined or forged, is it conceivable, if he had been wicked enough
to enter into the conspiracy, that he would have been foolish enough to
leave the paper there? Would he not have gone to Brady and said to him,
"I conspired; you know it; I changed the petition, and I want it; I
erased a word in a petition, I want it; I signed a name to a petition, I
want it"? And Brady would have said, "Yes, and you ought to have called
for it long ago; you can have it." If S. W. Dorsey had interlined an
affidavit or had filled a blank, if S. W. Dorsey had made an erasure
or an interlineation, he, of course, must have known it, and if he
conspired with Brady he must have known it, and he must have gone to
General Brady and said, "I want that affidavit on such a route; we can
write another, and I want that; I want that petition;" and it would have
been given. You cannot conceive of such infinite stupidity as to say
that those people knew that those papers were dishonest, and that they
still left them on file as weapons for their enemies. You cannot do it.

So much, gentlemen, for the affidavits, and so much for the papers.

Now, there is another question, and I have no doubt that you have asked
it yourselves. It has been asked a great many times by the prosecution.
That question is this: Why did Dorsey retain Rerdell in his employ after
the 20th of June, 1881? These gentleman tell you that it is evidence of
guilt that he did it. I will tell you why he did it. At that time the
public mind was almost infinitely excited on this question. At that time
the public was ready to believe anything. It had its mouth wide open,
like a young robin, ready for worms or shingle-nails—it made no
difference—anything that dropped in. Every newspaper was charging that
these defendants were guilty, that Stephen W. Dorsey was a conspirator,
that millions had been taken from the Treasury, and there were nearly as
many mistakes in the press then as in the speech of Mr. Bliss now. But
I can excuse that, because it was before the evidence. Now, what was Mr.
Dorsey to do in the then state of the public mind? That man, no matter
how bad he was, how base he was, had the power to have him indicted.
That man could have gone before the grand jury and had Mr. Dorsey or any
other public man indicted in the then state of excitement and feeling of
the public. What was the result of his going even to James and MacVeagh?
I believe Mr. Turner says that on account of the statement of this man
Rerdell, he (Turner) was turned out of his office. That is the effect.
What became of McGrew? What became of Lilley? What became of Lake? What
became of twenty or thirty other officials upon whose reputation this
man had breathed the poison of slander? Stephen W. Dorsey at that time
knew that that man in the then state of public excitement was powerful
for mischief. That man made the affidavit of June, 1881, at the request
of James W. Bosler, as he himself says, and swore that he went to the
Government simply to find out the Government's secrets; swore that he
was still upon the side of Stephen W. Dorsey; took back what he had
said, and swore that it was a lie. The question then was what to do with
him? Stephen W. Dorsey made up his mind not to do anything more, just to
let him alone, just let him stay as he was. That was the wise course.
It was the course that any wise man, in my judgment, would have pursued
under the circumstances. What else could he do? Let him alone. Let him
alone. He did not at that time expect that he would ever be indicted. He
shrank from an indictment, as every sensitive man does, because when you
have indicted a man you have put a stain upon him that even the verdict
of not guilty does not altogether remove. He did not want that stain.
He was a man of power; he was a man of position, a man of social and
political standing, a man wielding as much influence as any other one
man in the United States. He did not wish to be indicted. He did not
wish his reputation to be soiled and stained. And so he allowed that man
to stay where he was. He may have made a mistake, but whether mistake or
not, that is what he did.

There is another question. Why did we fail to produce our books and
papers? I will tell you. The notice to produce them was given to us
on the 13th day of February. We had noticed curious motions. Two days
afterwards, Mr. Rerdell went on the stand. What did they want the books
and papers for? For Mr. Rerdell to look at. Why did he want to look at
the books and papers? To stake out his testimony. He hated to depend
upon his memory. We took the responsibility of letting the witness
swear to the contents of the books and papers, and let them call that
secondary evidence. We took that responsibility rather than to furnish
the books and papers to be looked at by that man in order that he might
make no mistakes in his testimony. What happened afterwards justified
our course. If we had shown to him the books and papers, and checks,
and stubs, do you think he would have made any mistake about that seven
thousand five hundred dollar check? Would he have said that he went
with Dorsey, and that Dorsey drew the money, and that he looked over
his shoulder, and that then he and Dorsey walked down to the Post-Office
Department, if he had known that that check was drawn to his order? If
he had known before he swore, that he indorsed that check, he would have
said he went down and got the money himself; he would not have said that
Dorsey did. He would have made no mistakes there. He would not have
been driven into the corner of saying "stub" or "stubs," "checkbook"
or "check-books," "amount" or "amounts." No, sir. And that one thing
justified absolutely the wisdom of our course.

Then the Court decided that, having failed to produce our books on
notice and allowed the other side to introduce secondary evidence of
their contents, we would not be allowed then to produce them. I insisted
that we had the right then to produce them, and the Court decided that
we had not. We took the responsibility of refusing, and we took that
responsibility because we made up our minds that we would not allow
that man to look over the books, checks, and stubs for the purpose of
manufacturing his testimony.

The Court. Where did you offer to produce the books?

Mr. Merrick. Where did you offer the production of the books? That is
just what I was about to ask.

Mr. Carpenter. The Court said we could not.

Mr. Merrick. Where did you make the offer?

The Court. I want to know.

Mr. Carpenter. Mr. Ingersoll did not say he made the offer.

Mr. Merrick. I think he did.

The Court. I think he did.

Mr. Carpenter. Just read it, Mr. Stenographer. He says nothing of the
kind.

The Stenographer, (reading)

I insisted that we had the right then to produce them, and the Court
decided that we had not.

Mr. Ingersoll. That is exactly what I say.

The Court. The Court did not give any intimation at that time, but
after that point in the trial had passed, several days, several weeks,
I think, the attention of the Court was called to this question, and the
Court remarked, in the course of the opinion, that it understood the
law to be that after a party, upon whom notice had been given to produce
books, had failed to produce the books, and the other side had given
secondary evidence, then the Court would not allow the party having the
books to produce them for the purpose of contradicting the secondary
evidence.

Mr. Ingersoll. That is all I claim.

The Court. But there was no such offer made, so far as I recollect.

Mr. Ingersoll. Why should we make the offer after your Honor had decided
that we could not do it?

Mr. Merrick. I will answer the question. Because whether it would have
been accepted or not was a question for the counsel for the Government
when the offer was made. And again, the learned counsel will recollect
that after the notice was given, when S. W. Dorsey was on the stand on
cross-examination, I demanded those books and those stubs, and he asked
leave to consult his counsel. The Court denied that request, and then
there was a peremptory refusal to produce any book or any paper.

The Court. Oh, yes. Mr. Ingersoll and Mr. Davidge repeatedly announced
to the Court that they were not going to produce books to assist the
prosecution.

Mr. Ingersoll. Yes; I said that twenty times, and the Court, as I
understood it, held that after we had refused to produce the books and
driven the other party to secondary evidence, we could not then produce
the books.

The Court. You made no offer to produce the books.

Mr. Ingersoll. I resisted the opinion of the Court and made the best
argument I could, but the Court said that was not the law.

The Court. The remark of the Court arose upon an argument on the part of
Mr. Ingersoll, and if I am not mistaken, upon the effect of the refusal
to produce the books and papers, Mr. Ingersoll contending that there was
no presumption against his client on account of the refusal to produce
the books and papers, and that the jury ought to be instructed that the
only effect of refusing to produce the books and papers was to leave the
case upon the secondary evidence.

Mr. Ingersoll. I am not referring to that discussion, nor to that
decision of your Honor; I am referring to the decision you made during
the trial.

The Court. That was the only occasion since this trial began, in
which the Court referred to that rule of law which denied the right
to introduce primary evidence for the purpose of contradicting the
secondary evidence, after the primary evidence had been withheld in the
first instance.

Mr. Ingersoll. Of course, I am not absolutely certain, I never am; but
I will endeavor to find in the record exactly what you said on that
subject.

And now, in order that we may be perfectly correct, and in order to
show, too, how easy it is to be mistaken, Mr. Merrick just said upon
that very subject of the books and papers, that while Mr. Dorsey was
upon the stand, he asked leave to consult his counsel. If Mr. Merrick
will read the testimony he will find that Mr. Dorsey made that remark
when he was asked about the affidavit of June 20, 1881.

Mr. Merrick. You are right.

Mr. Ingersoll. That just shows how easy it is to make a mistake when it
comes to a matter of recollection.

Mr. Merrick. I think it was upon a question of the insertion of the
change in the character of the affidavit—its being addressed to the
President; and when I asked him if he had not made that change he asked
leave to consult his counsel. For the moment I thought it was upon the
books. But the substance still remains, that, on the question of the
books, I asked him on his cross-examination—and the counsel will state
his recollection to be the same—about the stubs and the books, and
called upon him to produce them, and the counsel replied, "We will not."

Mr. Ingersoll. I presume I did. I made that reply a good many times.

Mr. Merrick. Will the counsel be frank enough to state when that
decision was made?

Mr. Ingersoll. Which decision?

Mr. Merrick. When he was on the stand on cross-examination.

Mr. Ingersoll. And I said we would not produce them?

Mr. Merrick. After the testimony in chief and Rerdell was gone.

Mr. Ingersoll. Then I said we would not produce them. And now I will say
that the decision of the Court was made before that time that we could
not produce them, and if I do not show it then I will publicly take it
back.

The Court. I do not think you can show it.

Mr. Ingersoll. If I do not, then I will beg your Honor's pardon, and if
I do—if I do—Now, I think what happened afterwards in this case with
that very witness justifies the course that we pursued. He also stated
at the time that we had, I believe, some twenty thousand pages of
letters on all possible subjects to a great number of people. We
knew that there was a spirit abroad—and some of it in a part of the
prosecution—to find something against somebody else somewhere. We made
up our minds that our private books and correspondence never should be
ransacked by this Department of Justice. We took the consequences, and
we are willing to take them. We say that the inference from our refusal
is an inference of fact, and must be decided by the jury, and is not an
inference of law.

We have been asked a good many times why we did not put James W. Bosler
on the stand. The prosecution subpoenaed Mr. Bosler. They appeared
to have an affection for him. They subpoenaed him, and he came here.
Afterwards they issued an attachment for him. They had him, arrested at
midnight and brought here. He gave some testimony, and you will find it
on page 2611.

Mr. Merrick. I do not know that there was an attachment.

Mr. Ingersoll. You know you have a right to prove things by
circumstances. Now, it is said that he put the marshal out of the house;
I think that is evidence tending to show that an attachment was issued.

Mr. Ker. And kept him out with a club.

The Court. I understood also that Mr. Dorsey kicked somebody else out of
his house about the same time.

Mr. Ingersoll. Oh, yes; it has been a very lively term of court.

There were two very important things that they were to prove by Mr.
Bosler, and they were patting him on the back here for weeks. Friendship
sprang up between them. It was a very young plant at first, but the
Bosler ivy grew upon the oak of the prosecution. I saw him sitting here,
everything delightful. The prosecution, I hoped, began to flatter itself
that Mr. Bosler was on their side; I hoped that was so. Finally they put
Mr. Bosler on the stand. What did they want to prove by him? That Dorsey
wrote a letter to him on the 13th of May, 1879, telling how much money
he had given to Brady; that is one thing they wanted to prove by him.
The second thing was that Rerdell had written a letter to Bosler,
I believe, on the 20th of May or 22d of May, 1880, stating that he
(Rerdell) had been subpoenaed to go before the Congressional committee
and take his books and papers; that he got very much frightened; that
he had taken the advice of Brady and got a very valuable suggestion from
Brady, which he was going to follow. They wanted to prove that by Mr.
Bosler.

Rerdell had already sworn that Dorsey sent a letter to Bosler on the
13th of May, 1879. Rerdell had sworn to the contents of that letter;
that the contents were that he had paid Brady so much money, &c., which
you remember, and then that he, in 1880, had written a letter to Mr.
Bosler, and I believe he pretended to have a copy of it. Now, here comes
Bosler's testimony, on page 2611.

Q. Have you made a search among your papers to find a letter alleged to
have been written to you by Stephen W. Dorsey, and dated on or about the
13th of May, 1879?—Yes, sir.

That is the letter that Rerdell swore about.

Q. Have you searched?—A. I have.

Q. Did you find it?-A. No, sir.

Q. Have you made search for a letter purporting to have been written by
him to you, and dated on or about the 22d of May, 1880?—A. Yes, sir.

Q. Did you find that letter?—A. I did not.

The Court: Was there ever such a letter?

Bosler replied: "There never was such a letter received by me."

There is the testimony of Mr. Bosler, and on that testimony the two
letters of May 13, 1879, and May 22, 1880, turn to dust and ashes.

Now, they say, "Why didn't you put Bosler on?" Not much necessity of
Mr. Bosler after that. And besides, gentlemen, I believe I will take you
into my confidence just a little bit. The evidence of Rerdell as to
the affidavit of June 20, 1881, and the affidavit of July 13, 1882 (an
affidavit in which he swore that there was nothing against Mr. Bosler,
an affidavit that was made apparently for the benefit of Bosler),
all that evidence, the evidence of Mr. Stephen W. Dorsey upon those
questions, advertised the prosecution that Mr. Bosler knew of many
circumstances; that he was present a portion of the time, and I did not
know but finally the prosecution would get so much confidence in Mr.
Bosler that they would call him. I was hoping they would. They did not.
It did not work quite as I expected. That is all there is about that.

Now, there is one further point to which I wish to call your attention.
I want you to remember that a partnership is not a conspiracy, although
all the facts about a partnership are consistent with the idea of a
conspiracy up to a certain point; and all the facts about a conspiracy
are consistent with a partnership up to a certain point. The fact that
men act together does not show that they have conspired; does not show
that they have a wicked design. The fact that they are engaged in the
same business does not show that they have a wicked design or that they
are there by conspiracy. In other words, I want your minds so that you
will distinguish between a fact that may be innocent, and generally
is innocent, and a fact that must be evidence of guilt. I want you to
distinguish between the facts common to all partnerships, common to all
agreements, and those facts that necessarily imply a criminal intent. If
you wil do that gentlemen, you will have but little trouble.

[At this point a volume of the report of the trial was handed up to the
Court by Mr. Ingersoll with a reference to a certain page].

The Court. Without looking at the book I take risk of saying that
the Court never announced its opinion on that question until the case
referred to a few moments ago.

Mr. Ingersoll. I just gave my memory on the subject. It does not make
any great difference in this case, of course.

Mr. Carpenter. This is during the cross-examination of Rerdell.

The Court. Yes, the Court did state on that occasion:

That is not the point here. If they are allowed to go on and
cross-examine this way without the production of the books, they cannot
contradict the witness afterwards by producing the books.

I had forgotten that I had announced it twice.

Mr. Ingersoll. If the Court please, I did not want to bring this up,
because I knew you had, and so I thought I would slip you the book and
let you off easy.

The Court. I do not think it weakens the position at all that the same
announcement has been made twice instead of once.

Mr. Carpenter. We thought it made it stronger.

The Court. Still, the books were not produced.

Mr. Ingersoll. Now, if the Court please, I am not arguing—

The Court. [Interposing.] I will leave you to the jury.

Mr. Ingersoll. Your Honor knows that I have always shown great modesty
about trying to do anything against any decision.

The Court. I do not dispute that.

Mr. Ingersoll. Now, the next question, gentlemen, is what is meant by
corroboration? If you tell a man that he is not a great painter, he does
not get angry. He says he does not pretend to paint, or is not a great
sculptor. But if you tell him he has no logic, he loses his temper.
Yet logic is perhaps the rarest quality of the human mind. There are
thousands of painters and sculptors where there is one logician. A man
swears, for instance, that he went down to a man's house in the morning
at six o'clock, and that Mr. Thomas was standing just in front of the
house, and when he went in the dog tried to bite him, and that after he
got in he had such and such conversation. Now, there are thousands of
people who have brains of that quality that they think the fact that
he did go there at six o'clock in the morning, and did see Mr. Thomas
standing out in front of the house, and especially the fact that the dog
did try to bite him, is a corroboration of the conversation that took
place in the house. There are just such people. In this case, for
instance, in Mr. Brady's matter, they say that the fact of Walsh being
in his house is important. Suppose that he was, what of it? Is that
corroboration? Corroboration must be on the very point in dispute. It
must be the very hinge of the question. Then it is corroboration, if the
question is what did the man say. It is not corroboration to prove that
the man was there unless the man swears that he was not there. Then the
inference is drawn that if he would lie about being there he might lie
about what he said.

Now, understand me. They will say, for instance, "Here is an affidavit,
and these blanks have been filled up. Rerdell says they were filled up,
and he says they were filled up after they were sworn to." Now, the fact
that the affidavit is there and that the blanks are filled up is not
corroboration, because the point to be corroborated is that it was done
after it was sworn to. And so the existence of the affidavit, while it
is necessary, is no corroboration; the filling up of the blank is no
corroboration; its being on file is no corroboration. Why? The point to
be corroborated is not that the blanks were filled, but that they were
filled after the paper had been sworn to! That is the point. And when
they begin to talk to you about corroboration I want you to have it
in your minds all the time that to be corroborated about an immaterial
matter is nothing; it has nothing to do with the question; but there
must be corroboration on the very heart of the point at issue!

There is another thing, gentlemen. It does not make any difference what
I say about this man, or that man, or the other man, unless there is
reason in what I say. If I tell you that the evidence of a witness is
not worthy of belief, I must tell you why. I must give you the reason.
If I simply say the witness is a perjurer, that shows that I either
underrate your sense, or have none of my own, because that is not
calculated to convince any human mind one way or the other. You are not
to take my statement; you are to take the evidence, and such reasons as
I give, and only such as appeal to your good sense. If I say, "You must
not believe that man," I must give you the reason why. If the reason I
give is a good one, you will act upon it. If it is a bad one I cannot
make it better by piling epithet upon epithet. There is no logic in
abuse; there is no argument in an epithet.

And there is another thing. An attorney has a certain privilege; he is
protected by the court. He is given almost absolute liberty of speech,
and it is a privilege that he never should abuse. He should remember
if he attacks a defendant, that the defendant cannot open his mouth. He
should remember that it does not take as much courage to attack, as
it does not to attack. He should remember, too, that by the use of
epithets, by abuse, that he is appealing to the lowest and basest part
of every juror's head and heart. It is on a low level. It is a fight
with the club of a barbarian instead of with an intellectual cimeter.
There is no logic in abuse. There is no argument in epithet. Remember
that. The weight and worth of an argument is the effect it has upon an
unprejudiced mind, and that is all it is worth. Therefore I do not want
you, gentlemen, to be carried away by any assault that may be made—I
do not say that any will be made—but any that may be made, that is not
absolutely justified by the evidence.

There has been one little thing said during this trial; that is, about
the testimony of defendants. I believe Mr. Bliss takes the ground that
you cannot believe a defendant; that defendants cannot be believed
unless they are corroborated. Mr. Bliss has the kindness to put the
defendants in this case on an equality with his witness Rerdell.
Gentlemen, you cannot believe any witness unless his evidence is
reasonable. Every witness has to be corroborated by the naturalness of
his story. Every witness is to be corroborated by his manner upon the
stand and by the thousand little indications that catch the eye of
a juror or of a judge or of an attorney. Congress has passed a law
allowing defendants to swear when they are put upon trial. Will you tell
me that that law is a net, a snare, and a delusion, and the moment a
defendant takes the stand the prosecution is to say, "Of course he will
lie"? Why do they say that? Because he is a defendant, and you cannot
believe a word that he says; he is swearing in his own behalf. There is
that same low, slimy view of human nature again, that a defendant who
swears in his own behalf must swear falsely. I do not take that view.
The defendant has the same right upon the stand that anybody else has,
and if his character is not good his character can be attacked; it
can be impeached by the prosecution precisely as you would impeach the
reputation of any other witness. If he tells a story which is reasonable
you will believe it, and you will believe it notwithstanding he is a
defendant and notwithstanding he has an interest in the verdict. In old
times they would not allow a man to swear at all if he had the interest
of a cent in any civil suit. They would not allow him to testify when he
was on trial for his own liberty and his own life. That was barbarism.
The enemy—the man who hated him—he could tell his story, but the man
attacked, the man defending his own liberty and his own life, his mouth
was closed and sealed. We have gotten over that barbarism in nearly all
the States of this Union, and now we say, "Let every man tell his story;
don't allow any avenue to truth to be closed; let us hear all sides, and
whatever is reasonable take as the truth, and what is unreasonable throw
away." And, gentlemen, let me say here that it is not your business to
go to work picking a witness's testimony all apart and saying, "Well, I
guess there is a little scrap now that there is some truth in," or "here
is a line, and I guess that is so, but the next eleven lines I do not
believe; the next sentence, I think, will do." That is not the way to
do. If a witness is of that character you must throw his entire evidence
to the winds, for it is tainted and the fountains of justice should not
be tainted with such evidence, and a verdict should not be touched
and corrupted with such testimony. You will take the evidence of these
defendants as you would take that of any other man, and it is for you to
say whether that evidence is true. It is for you to say that.

If corroboration was so necessary why were not their witnesses
corroborated? Why didn't they call Mr. Bosler to corroborate their
witness?

Now, one of the defendants in this case is Mr. John R. Miner, and I want
you to think of the terrible things they have against him. One of the
charges made against him is that he wrote a petition and wrote in six
names attached to it. His explanation is, that if he did anything of
that kind it was because he received a petition which was so worn that
it could not be presented, and he copied it, and that the six names were
found on that petition. There was no other way on earth for him to get
those names, and we find them on the same route in, I believe, seven
other petitions which were filed; we find that those very names are
on the other petitions, and I think Mr. Hall's name—the one the most
trouble was made about—was on three or four petitions of the other
kind.

Mr. Carpenter. He admitted that he wrote them.

Mr. Ingersoll. Yes; Hall admitted that he wrote them. But I believe this
petition was never filed in the department.

I think Mr. Woodward said he found it among the papers at some other
place.

There is a petition called the Utah petition that has some names in
Utah. I think Mr. Woodward swore that he tound it in room No. 22 or 23.

Mr. Merrick. In the case itself, in the department.

Mr. Ingersoll. Yes; but it has no file mark. Mr. Woodward says he does
not now remember how it got in there. As I was about to remark, there
was a petition called the Utah petition with some names of persons
living off the route, I believe—two or three sheets. The petition
itself was genuine, and was indorsed, I believe, by Senators Slater and
Grover and by Congressman Whiteaker. Now, then, how did these names come
in there? The petition is ample without those names; large enough.
I will tell you what I think. I think that it is a part of another
petition, and that it was the result of an accident. I think it was done
in the Post-Office Department, not intentionally, but as an accident.
The evidence is that they kept three routes in one pigeonhole, and that
the papers sometimes got mixed; that is Mr. Brewer's testimony. A very
strange thing happened to that petition. While it was before this jury
it came apart again. And if some clerk not absolutely familiar with the
papers had taken it up, he would have been just as liable to put it
on the wrong petition as on the right one. My plan is to account for a
thing in some way consistent with evidence, if I naturally can. I do
not go out of my way hunting for evidence of crime. And when there was
a petition, large enough, with a plenty of genuine names on it, I cannot
imagine anybody would go and get names from any other petition and paste
them on to that. But being in this same country, and the testimony being
that they had three of these routes in one pigeon-hole, my idea is that
the papers got mixed and mingled sometimes, and I say the probability
is that it was an accident. That is the best way to account for it. If
Miner had known that that petition was there that he had made, would he
have allowed it to stay there? Why would he want to do such a thing
if he was in a conspiracy with Brady? Why would he have to resort to
perjury and interlineation in order to get Brady to make orders that he,
Brady, had conspired to make? Absurdity cannot go beyond that. Here
is the doctrine: "I have conspired with the Second Assistant
Postmaster-General. He will do anything for me that I want. Now, I will
go and forge some petitions." That seems to me perfectly idiotic. This
petition was indorsed by Senators Grover and Slater and Congressman
Whiteaker.

Then, there is another petition; that one I showed you this morning,
with the words "schedule thirteen hours," and the evidence was (that
is, if you call what Rerdell stated evidence) that Miner wrote the words
"schedule thirteen hours." I have shown you, this morning, those words,
and without any other particle of argument I want to leave it to you who
wrote those words—whether Rerdell wrote them or Miner.

Then, there is another wonderful thing about that petition. It is not on
any of the routes in this indictment, and has no business here—I mean
the Ehrenberg petition. The one I spoke of was the Kearney and Kent.

The next petition is the Ehrenberg and Mineral Park. They say that there
has been some word erased and another written in. Nobody pretends that
it is not a genuine petition. Nobody pretends that it was not signed by
every one of the persons by whom it purports to be signed. Then, another
peculiarity; it is not on any route in this indictment, and has no more
to do with this case than the last leaf of the Mormon Bible; not the
least.

Let us see if they have any more of these terrible things. Here is
petition 2 A, on the Kearney and Kent route. That is the petition that
has the words "schedule thirteen hours."

That is the one indorsed by Senator Saunders. Petition 18 K, on the
route from Ehrenberg to Mineral Park, is not a route in this case. It
turned out that the names on it are genuine, and the genuineness of the
petition has not been challenged. The only point made is that the word
"Ehrenberg" has been written by somebody else. There is no evidence
to show that the petition was not properly signed; that the persons on
there did not sign their names or authorize somebody else to do it. The
probability is there may have been some mistake in the name, or it
may have been misspelled. There was some mistake made, and the word
"Ehrenberg" was written in. On page 4186 Mr. Miner swears positively
that in regard to the petition 2 A he never wrote the words "schedule
thirteen hours."

Then, there is another petition, I think it is on page 1247, the Camp
McDermitt petition. There are the words "ninety-six hours." And they get
that down there to a fine point. Mr. Boone swore that he did not know
who wrote the word "ninety," but that Miner wrote the word "six.." Well,
that is too fine a point, gentlemen, to put on handwriting. It seems
there is an interlineation there of the words "ninety-six," and they say
they do not know who wrote the word "ninety" and that Miner wrote the
word "six." But Miner swears that he did not write it at all.

Now, then, you take away the evidence of Mr. Rerdell as to Miner, and
what is left? The evidence left is that of A. W. Moore. And what is
that? It is that Miner instructed him to get up false petitions. This
was the first time he ever went out. But Moore swore that he made
arrangements to do what Miner instructed him to do; that he made such
arrangements with Major; but Major swears he did not. Moore swore that
he made some arrangement with McBean, and the Government did not ask
McBean whether he did or not, but I will show that he did not. The
testimony shows that on the first trip, at the time he saw Major, he
did not see McBean. Now, just see. He swore, in the first place, that he
made that arrangement with Major and McBean. I find afterwards that his
evidence shows that he did not see McBean on the first trip, but he did
see him on the second.

On page 1408 we find that when Moore went West the second time—when he
left here and had made a bargain with Dorsey for one-quarter interest in
his route, and Miner told him to go West and let Dorsey's routes go to
the devil, and he said he would, and never notified Dorsey that he
was going to do it—that man comes here now and swears that he made a
contract with Dorsey for one-quarter interest, and then started West and
made a contract with Miner, letting Dorsey's routes go. He did not have
the decency to even notify Dorsey that he was going to do so. That
is the man. On the first trip he did not agree with anybody about
petitions. Now, understand my point, because it kills Mr. Moore again.
We have to keep killing these people—keep killing them. It is something
like the boy who was found pounding a woodchuck. He was pounding him
away in the road with all his might, and a man came along and said to
him, "What are you pounding that woodchuck for?" He said, "Oh, I am just
pounding him." "But," the man said, "he is dead." "Yes, I know it," said
the boy, "but I am pounding him to show him that there is punishment
after death."

Now, on page 1408, we find that this man Moore went to the West a second
time. I have shown you that the first time, he swears that he did not
see McBean at all. He saw Major and made the arrangement with him, he
says. Major swears that he did not. They do not put McBean on the stand.
Now, he goes a second time.

On the second trip, he says he had nothing to do with the petition
business at all, and did not explain the petition business to anybody
because he had not the time, and on the first trip did not see McBean
at all. And yet he swears that he made an arrangement with McBean about
these very petitions. The proof that he did not see Mc-Bean on his first
trip is found on page 1398.

There is one other point about which we have heard an immensity of talk
and upon which a great deal of air has been wasted, and that is, that
there was a bargain that Brady was to have fifty per cent, of all the
fines that he remitted. In other words, that he made a bargain with
his co-conspirators that if he fined them a thousand dollars and then
remitted it, that he was to have five hundred dollars or one-half of
that fine. That is a nice bargain; for me to put myself in the power of
a man and say, "Now, you fine me what you want to, and then if you will
take it off, I will give you half of it." It seems to me that that would
be quite an inducement for him to fine me. Yet, here is a man who makes
a bargain that Brady may impose a fine upon them and that he may have
half of it back—that is, upon their doctrine, although they have never
proved it, but they state it just the same as though they had. But here
are the facts. Here are the fines and deductions on twelve routes.
The fines amount to eighty-nine thousand six hundred and thirty-eight
dollars and twenty-two cents and the remissions amount to seven thousand
four hundred and twenty-eight dollars and fifty-four cents; that is
all. And yet they pretend that we had a bargain. Now, come to the mail
routes, and we find that the fines amounted to sixty-one thousand two
hundred and thirty-two dollars and twenty cents and all that they could
get their co-conspirators to take off of that (although according to
the doctrine of the prosecution they were to have fifty per cent.) was
thirteen thousand eight hundred and fifty dollars and sixteen cents.
That was all they could get off. There are the figures. There has been
talk enough on that subject, but all the air that wraps the earth could
not answer those facts. Words enough to wear out all human lips could
not change those facts. Fines eighty-nine thousand dollars, remissions
seven thousand dollars; fines sixty-one thousand dollars, remissions
thirteen thousand dollars. And yet they pretend that he had a bargain
by which he had fifty per cent, of all he remitted. I need not make any
more argument on that point.

There have been one or two things in this trial that I have regretted,
and one I find in Mr. Ker's speech. And I find frequent reference to it
in other places, and that is the blindness of S. W. Dorsey. Affidavits
were made by Drs. Marmion, Bliss, and Sowers that Mr. Dorsey had lost
at least eleven-twelfths of his vision. And yet it has been constantly
thrown out to you that it was a ruse, a device, and I believe Mr. Ker
said in his speech that Mr. Dorsey saw a paper in Mr. Merrick's hand,
Mr. Merrick, I believe, holding a balance-sheet from the German-American
Savings Bank—a paper several feet wide or long—and because Mr. Dorsey
said to him, "I believe you have it in your hand," why they said this
man is pretending to be blind. His testimony was that he had been in a
dark room for three months; that his eyes had not been visited by one
ray of light for three months, and that for six months he had not read
a solitary word. And yet the prosecution sneeringly pretended that there
was nothing the matter with his eyes. They subpoenaed Dr. Marmion, but
they dare not put him on the stand. They threw out hints and innuendoes
that these doctors had sworn falsely, but they dare not put it to the
test. It seems that nothing in the world can satisfy them about Stephen
W. Dorsey except to see him convicted, except to have them put their
feet upon his neck. Gentlemen, you never will enjoy that pleasure. You
never will while the world swings in its orbit find twelve honest men
to convict Stephen W. Dorsey—never. This Government may put forth its
utmost power; it may spend every dollar in its Treasury; it may hire all
the ingenuity and brain of the country, and it can never find twelve men
who will put Stephen W. Dorsey in the penitentiary—never, and you might
as well give it up one time as another. Try it year after year; poison
the mind of the entire public with the newspapers; get all the informers
you can; bring all the witnesses you can find; put all of those whom you
call accomplices on the stand, and I give you notice that it never can
be done, and I want you to know it. Spend your millions, and you will
end where you start. As long as the average man runs there will always
be one or two honest men in a dozen; so you cannot convict one of these
defendants. Go on, but it will never be accomplished.

There is one other thing which perhaps may be worth noticing. I believe
that they proved by Mr. Dorsey that he wrote an account of his relation
to this business, and published it in the New York Herald. The only
point with which Mr. Merrick quarreled in that entire paper was the
statement that Peck was a large contractor, and when Dorsey was put on
the stand he explained that while Peck had not many routes in his own
name, that he was the partner of a man named Chidester. That is the only
thing of which he complained, and yet that communication pretended to
tell the relation that Dorsey sustained to this entire business, and
if that had not accorded precisely with Dorsey's testimony on the stand
every word of it would have been read to you again and again. And Mr.
Ker says that letter was written for the purpose of poisoning public
opinion. Was the letter of the Attorney-General of the United States,
written just before this trial began, written to bias public opinion
also?

Mr. Merrick. Is there any evidence of that letter in this trial? If not
I object to any reference to it.

The Court, You cannot refer to that, because it is not in the case.

Mr. Ingersoll. I take it back. Was Dickson indicted to bias public
opinion?

Mr. Merrick. I object to that also. He was indicted by the grand jury on
competent testimony.

The Court. There is no evidence in this case that he was indicted.

Mr. Ingersoll. I will take it back then. I would ask the Court, however,
after the attorney for the Government has said that Dorsey wrote that
letter to bias public opinion, if I have not the right to say that he
wrote that letter because letters had been written by others.

Mr. Merrick. Not unless those letters are in proof.

The Court. The fact that he wrote the letter is in evidence in the case.
That of course makes it the proper subject of comment on either side.
Anything else not in evidence is not a subject of controversy.

Mr. Ingersoll. I will take it for granted, however, that the jury
understand what is going on in this case.

Mr. Merrick. Yes, they understand the evidence.

Mr. Ingersoll. I understand that the jury, as members of this community,
as citizens of the United States, have at least a vague idea of what the
Department of Justice has done.

It is also claimed, and has been claimed, and I have answered it again
and again and again, that S. W. Dorsey is the chief conspirator. Why? Is
it possible that it is because he was the chief man politically? Is it
possible that any politician was envious of his place and power? Is it
possible that any politician was envious of the influence he had with
President Garfield? Is it possible that he had interfered with the
career of some piece of mediocrity? Why is it that he is made the chief
figure? These are questions that are asked and questions that you can
answer. How does it happen that his name never figures in any division?
That his name never figures in any paper made in regard to this
business? How does it happen that when he was contending with the
German-American National Bank that he must be paid, how is it that it
never occurred to Miner or Vaile to tell him, "Why, this is a conspiracy
of your own hatching. You advanced this money to give life to your own
bantling, and you have got to wait until the conspiracy bears fruit, and
if you are not willing to wait you can do the next worse thing, have it
made public"? If at that time, when he was opposing and fighting Vaile
because he had cut out his security, Vaile had known that Dorsey was in
the conspiracy, one word from him and Stephen W. Dorsey's mouth would
have remained shut forever. But it did not occur to Miner, it did not
occur to Vaile. That won't do. Why didn't Vaile say to him, "Mr. Dorsey,
you are making a great deal of fuss about a few thousand dollars. You
are in the Senate; you are interested in these routes, and I want to
hear no more from you"? Why didn't he say it? Because it was not true;
that is why.

Now, gentlemen, if what the prosecution claims is true, not only Stephen
W. Dorsey, not only Thomas J. Brady, not only John R. Miner, not only H.
M. Vaile, and John W. Dorsey are guilty of conspiracy, but hundreds and
hundreds of other people. Do you believe it is possible that all the
persons who petitioned for an increase of service, who petitioned for
expedition—do you believe they were in a conspiracy? Do you believe
they were dishonest men, and do you believe they asked for what they
did not want? Do you believe that these defendants had at their beck and
call the representatives of the entire great Northwest? Do you believe
that members of Congress of the Lower House and of the Senate were
their agents and tools? Was Senator Hill a conspirator? Was the present
Secretary of the Interior a conspirator? Were Senator Grover and Senator
Slater also conspirators? Were generals, judges, district attorneys,
members of State and Territorial Legislatures—were they all
conspirators? Did they indorse false petitions for the purpose of
putting money in the pockets of these defendants? Let us be honest.
Do you believe that General Miles was a conspirator, or that General
Sherman, whose title is next to that of the President, and whose name
is one synonymous of victory, entered into a conspiracy? Do you believe
that he knows as much about the mail business as Colonel Bliss? Do you
believe that he knows as much about the wants of the great Northwest as
the gentlemen who are prosecuting this case? Was he a conspirator with
their Representative in Congress from Oregon? Was Horace F. Page a
conspirator? These are questions, gentlemen, that you must answer.
Were all these men, these officers of the Army, State officers, Federal
officers, and men of national reputation—were they all engaged in
a conspiracy; were they endeavoring to assist these defendants in
plundering the Treasury of these United States? These are questions for
you to ask and questions for you to answer. Is it not wonderful that
such a conspiracy should have existed in all the Western States at one
time?

Gentlemen, is it wonderful that all the people of the West want mails?
Do you not know, and do I not know, that the mail is the substantial
benefit we get from the General Government? Don't you know that the mail
is the pioneer of civilization? Do you not know that there ought to be a
mail wherever the flag floats? Do you not know that the only way to keep
a great country like this together, a vast territory of three million
square miles—three million five hundred thousand square miles—is by
the free distribution of the mail? If you are going to keep the people
who populate that territory together, if you are going to keep them of
one heart and one mind, if you are going to make them keep step to
this Union and to the progress of this nation, you must have frequent
intercourse with them all. The telegraph must reach to the remotest
hamlet; the little electric spark, freighted with intelligence and
patriotism, must visit every home; and the newspaper and the letter,
bearing words of love from home and news from abroad, must visit every
house, so that every man, whether digging in the mine or working on the
farm, may feel the throb and thrill of the great world, and be a citizen
of a mighty nation instead of an ignorant provincial.

I am in favor of frequent mails everywhere, all over the plains, all
through the mountains, everywhere, wherever the flag flies, I want the
man who sits under it to feel that the Government has not forgotten him;
that is what I want. I take pride in this country. I am one of the men
who believe that there is only air enough in this entire continent to
float one flag. I am one of the men who believe that it is the destiny
of the United States to control every inch of soil from the Arctic
to the Antarctic, and that when a nation loses its ambition to grow,
increase, and expand it begins to die. And what right has a man who
is carrying the mail to interfere with the policy of the Post-Office
Department? These are large questions, gentlemen of the jury, and I want
you to deal with them in a large and splendid American spirit. I want
you to feel that we are citizens of the greatest Government on this
globe. I want you to feel that here, to every man, no matter from what
clime he may come, no matter of what people, no matter of what religion,
the soil will give emolument, the sun will give its light and heat, the
Government will give its protection. I like to feel that way about
the Government. And yet, because the department adopted a splendid and
generous policy, it is tortured into evidence of conspiracy.

Now let me speak just a moment about these people—the defendants in
this case. First, there is Stephen W. Dorsey. I take a great interest in
this case; I admit it. I would rather lose my right hand than have you
convict Stephen W. Dorsey. I admit it. I admit that if he were convicted
I would lose confidence in trial by jury; I would believe that there
were no twelve men in the world that had the honor and the manhood to
stand by what they believed to be the evidence and the law. I would feel
as though trial by jury was a failure. I admit I have that interest in
it—all that anybody can have in any case. You can only convict that
man by the testimony of A. W. Moore and M. C. Rerdell. That testimony
withdrawn from the record and there is not one word against him. I want
you to know and I want you to remember what kind of a man he is. You
have seen him; you know him; and you know something of him. It is for
you to decide whether you will take the testimony of Rerdell as against
that man. It is for you to decide whether you will take the testimony of
A. W. Moore as against that man. These men who are prosecuting him seem
to forget who he is and what he has been. Yet men disgrace the position
that Stephen W. Dorsey helped to give them, by attacking him.

John W. Dorsey can be convicted by the testimony of nobody. There is no
testimony against him, except that of one man. He is an honest man. He
told exactly what he did, and he told it like an honest man. He told
why he did not put his money in the bank at Middlebury, Vermont, because
they thought that he owed a debt which he did not think he owed. He need
not have told it, but he is an honest man, and that is the reason he
told it. The prosecution does not appreciate that kind of man, that is,
they say they do not.

The only witnesses against Miner are Rerdell and Moore, and they being
dead, that is the end of it.

What evidence is there against Harvey M. Vaile? One witness, Mr.
Rerdell. What did Harvey M. Vaile do? At the solicitation of Mr. Miner
he advanced money to prevent his having a failing contract. What else
did he do? He wrote a letter saying that he was trustee for S. W.
Dorsey, and he was, because the concern owed S. W. Dorsey a few thousand
dollars, and agreed out of the profits to repay Stephen W. Dorsey. That
is all. That is all. You have seen Mr. Vaile here from day to day. You
know that he is a man of mind. I think he is an honest man. I think he
testified to the exact truth. He did what any other man had the right to
do, he helped a man, not entirely from charity, but believing after all
that it might be a good investment, as you have done if you have
ever had the opportunity. And there is not the slightest scintilla of
evidence against him, not the slightest. I believe every word that he
testified, and so do you.

And then they come to Thomas J. Brady, and they tell you that that man
is to be convicted upon the testimony of whom? Mr. Walsh. And who else?
Mr. Rerdell. You have some idea of human nature. You have a little and I
have a little. Here is Mr. Walsh, an athlete; a man who, had he lived in
Rome in ancient times, might have been a gladiator. He loans Mr. Brady
twenty-five thousand or thirty thousand dollars. For some of this money
he has notes, for other portions he has not. He sends word to Brady that
he would like to fix the interest. He goes there and Brady takes these
notes and puts them in his pocket and they part as philosophers. If we
believe that, we must believe it as idiots. You do not believe it. You
do not believe any man ever allowed another to take twenty-five thousand
dollars in notes belonging to him and put them in his pocket and walk
off, he taking off his hat at the door and you bowing and wishing him
a happy voyage. My mind is so constructed that I cannot believe that; I
cannot help it. I imagine your minds are built a little after the same
model. I do not believe the story; you do not.

Who is the next witness against Mr. Brady? Mr. Rerdell.

It is sufficient for me to speak the name. I need argue no further. That
is enough. You saw Mr. Brady on the stand and you heard him give his
testimony. No man could listen to it without knowing it to be true. I
say now to each one of you that when you heard it you believed it, and
every one of you believed it was the truth. Take from this record the
testimony of Rerdell, Walsh, and Moore, and what is left? Some papers,
petitions, orders, affidavits, all made, signed and filed in the
cloudless light of day. That is all that is left. Where is your
conspiracy? Faded into thin air, nothing left.

I presume it will be said by the prosecution that I spent about three
days on Mr. Rerdell. I admit it. Why? Because I regarded Rerdell as your
case. Because I made up my mind that when I killed Rerdell the case
had breathed its last. That is the reason. And had it been necessary to
spend a few weeks more I should have done so. But it is not necessary.
Probably I wasted a great deal of time upon the subject, but if he is
not dead I do not want it in the power of any human being to say that it
was my fault. I went at him with intent to kill, and I kept at him after
I knew that he was dead. I admit it.

Now, gentlemen, let us see what I have proved. Let us see what up to
this time I have substantiated in my judgment.

First, I think I have shown that John W. Dorsey, John M. Peck, and John
R. Miner agreed in 1877, to go into the mail business. That Peck wrote
a letter to Stephen W. Dorsey, who was then a United States Senator,
asking him to get some competent man to get reliable information as to
the cost of service on routes in the Western States and Territories then
advertised by the General Government. That S. W. Dorsey gave that
letter to A. E. Boone. That he told him to say nothing about it to other
contractors. That Boone sent out circulars for the purpose of getting
the requisite information; that is, the cost of corn and oats and the
wages of men.

That John R. Miner came to Washington on the 1st of December, 1877. That
he went to the house of Stephen W. Dorsey, as had been the custom for
several years. That he occupied a room in that house, and that he and
Mr. Boone went on with the business of making proposals and getting up
forms of contracts.

That John W. Dorsey came here in the early part of January, 1878. That
after his arrival the partnership was formed between him and A. E.
Boone, and that the partnership was dated the 15th day of January, 1878.

That S. W. Dorsey, at the request of his brother and brother-in-law,
advanced the amount of money necessary to pay incidental expenses. That
he gave his advice whenever it was asked. That he assisted the parties
all that he conveniently could.

That the last bids or proposals were put in by these parties on the 2d
of February, 1878. That the awards were made on the 15th day of March of
the same year. That Miner, Peck, Dorsey, and Boone received about
five times as many awards as they had anticipated. Thereupon another
partnership was formed with the style of Miner, Peck & Co., and that
the partners in this firm were John R. Miner, John M. Peck, and John W.
Dorsey. That thereupon John W. Dorsey and John R. Miner went West for
the purpose of subcontracting the routes. That John R. Miner on his
return from the West met Stephen W. Dorsey at Saint Louis about the 16th
of July, 1878. That Stephen W. Dorsey up to that time had advanced eight
thousand or nine thousand dollars. That he then gave to Mr. Miner notes
amounting to about eight thousand five hundred dollars to be by him
discounted at the German-American National Bank of Washington. That
Stephen W. Dorsey then told Miner that he would advance no more and
would indorse no more. That Stephen W. Dorsey went from Saint Louis to
New Mexico; that John R. Miner came to the city of Washington, arriving
here about the 20th of July. That John R. Miner then found that
service in eastern Oregon was not in operation, although it had been
subcontracted; but he then applied to Thomas J. Brady for an extension
of time. That Brady refused to give it. That Miner, Peck & Co. had not
the money to stock the routes not then in operation, and that Stephen
W. Dorsey had refused to advance further means. That John W. Dorsey
was then in the West and that John M. Peck was then in New Mexico. That
thereupon Mr. Miner applied to Harvey M. Vaile, and that Mr. Vaile went
to Mr. Brady and asked whether an extension of time could be given,
provided he undertook to put the service on those routes. That Brady
then gave him until the 16th day of August, 1878. That thereupon Miner,
under the authority of powers of attorney from John M. Peck and John W.
Dorsey, agreed upon the terms on which H. M. Vaile should advance the
money necessary to put the service in operation.

That the contract bears date the 16th day of August, 1878, and was duly
executed by all the parties on the last of September or first of October
of that year.

That the service was not in operation by the 16th of August, and that
in August, Brady telegraphed to H. M. Vaile to know what routes he was
going to put service on.

That thereupon Vaile replied that he would see that all the service
of Miner, Peck, and Dorsey was put in operation. That through the
assistance of Mr. Vaile the service was put in operation.

That before that time Stephen W. Dorsey had been secured by Miner, Peck,
and John W. Dorsey executing PostOffice drafts upon the routes that had
been awarded to them.

That on the 17th day of May, 1878, an act was passed by the Congress of
the United States allowing subcontractors to place their subcontracts on
file.

That after Vaile came in and agreed to furnish the money necessary to
put the service in operation, John R. Miner having powers of attorney
from Peck and John W. Dorsey, executed to H. M. Vaile subcontracts for
the purpose of securing him for the money he had advanced.

That H. M. Vaile put these subcontracts on file, thus cutting out and
rendering worthless as security the PostOffice drafts that had been
given to S. W. Dorsey for the purpose of securing him.

That John W. Dorsey returned from the Bismarck and Tongue River route in
November, 1878, and that he then offered to sell out his entire interest
in the business to Vaile for ten thousand dollars, and left instructions
authorizing his brother, S. W. Dorsey, to make such sale for such
amount. That John W. Dorsey then returned to the Tongue River route.

That Stephen W. Dorsey returned to Washington in December, 1878, and for
the first time found that the subcontracts had been given to Vaile. That
he and Mr. Vaile had a quarrel with the German-American National Bank on
that question.

That afterwards Dorsey was to give ten thousand dollars to John W.
Dorsey, and ten thousand dollars to John M. Peck. That he then concluded
not to do so.

That on the 4th day of March, when S. W. Dorsey's Senatorial term
expired, he immediately wrote a letter to Brady insisting that the
subcontracts that had been filed by Vaile were in fraud of his rights.
That thereupon the parties in interest came together. That S. W. Dorsey
acting for Peck, his brother, and himself agreed with Vaile and Miner to
a division of the routes.

That S. W. Dorsey paid Peck ten thousand dollars for his interest,
paid John W. Dorsey ten thousand dollars for his interest, and took
substantially thirty per cent, of the routes and paid himself the money
that was owing to him by Miner, Peck & Co.

That the parties at the time executed to each other subcontracts and
such other papers as were necessary to vest, as far as they then under
the law could vest, the routes so divided in the parties to whom they
fell.

That on the 5th of May, 1879, the division was completed, and that from
that time forward Vaile and Miner had no interest in the routes that
fell to Stephen W. Dorsey, and that from that time forward Stephen W.
Dorsey had no interest in the routes that fell to Vaile and Miner, and
that John W. Dorsey and John M. Peck had no interest in any route from
that date forward until the present moment. That S. W. Dorsey took
entire and absolute control of his routes, and that Miner and Vaile took
entire control of their routes. That from that time until the present
neither party interfered with the routes of the other.

That Vaile and Miner made no paper of any sort, character, or kind for
Stephen W. Dorsey after the 5th of May, 1879, and that neither John W.
Dorsey, nor John M. Peck, made any papers of any kind, sort or character
for Miner or Vaile after that date, no matter what date papers bear that
were made before that time. That S. W. Dorsey made no papers for Miner
or Vaile after that date. And that Miner and Vaile made no papers for S.
W. Dorsey after that date, May 5, 1879. That all the papers bearing date
after the 5th of May, were in fact signed by the parties at or before
that time. That they were so signed for the purpose of making the
division complete.

That Vaile and Miner on their routes got up petitions that they had a
right to do. That S. W. Dorsey upon his routes got up petitions, as he
had a right to do.

That the routes were increased and expedited by the Second Assistant
Postmaster-General in accordance with the policy of the department and
in accordance with the petitions filed and the affidavits made, as he
had a right to do.

That it was not for the contractors to settle the policy of the
Post-Office Department.

That the evidence of A. W. Moore is unworthy of belief, and that his
statement that he settled with S. W. Dorsey is demonstrated to be false
by the receipts that he afterwards gave in final settlement to John R.
Miner, as admitted by himself. That his testimony as to the existence of
a conspiracy is rendered worthless and absurd by the fact that he sold
out not only his interest, but his services up to that time, for six
hundred and eighty-two dollars. That his conversations with Miner
could not have taken place. That he never made or offered to make such
contracts with Major as he pretended he was instructed to make, and as
he swore that he did make. That his conversation with S. W. Dorsey never
occurred.

That the testimony of Rerdell is utterly and infinitely unworthy of
credit. That he is not only contradicted by all the evidence, but by
himself, and how can you corroborate a man who tells no truth? There
must be something to be corroborated.

That the red books never existed.

That the pencil memorandum was forged by himself.

That the Chico letter was written by him.

And that the letter from Dorsey to Bosler, said to have been dated May
13, 1879, was born of the imagination of Mr. Rerdell.

That Rerdell's letter to Bosler of the 22d of May, 1880, was never sent,
was never received, and was never written until after this man made
up his mind to become a witness for the Government. That Bosler never
received that letter, or the letter pretended to have been written by
Dorsey on the 13th of May, 1879.

That the tabular statement in which thirty-three and one-third per cent,
was allowed to Brady never existed. That Rerdell did not visit Dorsey's
office in New York in June, 1881, and that he had no conversation
with Torrey. That Rerdell was not there. That he did not have the
conversation detailed by him with Dorsey at the Albermarle Hotel. That
Dorsey did not write the letter of the 13th of June, 1881.

That Rerdell swore in June, 1881, that Dorsey was entirely innocent.
That he swore to three affidavits of the same kind. That he again swore
to the same thing on the 13th of July, 1882. That he admitted by his
letter of July 5, 1882, that S. W. Dorsey did not even ask him to make
the affidavit of June, 1881, but that he was persuaded to do it by James
W. Bosler. That he was not locked up at Willard's Hotel. That he was
not threatened with a prosecution for perjury. That he was not shown the
letters he had written to a woman. That the whole story with regard to
the making of that affidavit was utterly and unqualifiedly false. That
he never had the conversation with Thomas J. Brady that he claimed. That
Brady never suggested to to him to have any books copied. That there
were no books of Dorsey's that needed to be copied. That he did not see
S. W. Dorsey draw any money at Middleton's bank at the time he states.
That he, Rerdell, drew the money himself. And that his entire testimony
is absurd, contradictory, and utterly unworthy of credit.

Let me say another thing to you, gentlemen, right here. It would be
better a thousand times that all the defendants tried in the next
hundred years should escape punishment than that one man should be
convicted upon the evidence of a man like this—a man who offered to the
Government to make a bargain while the trial was in progress, that he
would challenge from the jury all the friends of the defendants, and
help the Government to get the enemies of the defendants upon the jury.
You never can afford to take the evidence of such a man. It turns a
court-house into a den of wild beasts. You cannot do it.

I have shown that the story of Walsh is improbable, and that all that
Boone swears against these defendants cannot be believed. That Walsh
never loaned the money to Brady that he claimed, and that Brady never
took from him the notes as he says. That Brady never made in his
presence the admissions that he swears to. Think of it; Brady robbing
Walsh, and at the same time saying to Walsh, "I am a thief and public
robber."

I have shown to you, gentlemen, it seems to me, that no reasonable human
being, taking all this evidence into consideration, can base upon it a
verdict of guilty. It cannot be done.

Now, gentlemen, the responsibility is upon you, and what is that
responsibility? You are to decide a question involving all that these
defendants are. You are to decide a question involving all that these
defendants hope to be. Their fate is in your hands. Everything they
love, everything they hold dear, is in your power. With this fearful
responsibility upon you, you have no right to listen to the whispers of
suspicion. You have no right to be guided or influenced by prejudice.
You have no right to act from fear. You must act with absolute and
perfect honesty. You must beware of prejudice. You must beware of taking
anything into consideration except the sworn testimony in this case. You
must not be controlled by the last word instead of by the last argument!
You must not be controlled by the last epithet instead of by the last
fact. You must give to every argument, whether made by defendant or
prosecution, its full and honest weight. You must put the evidence in
the scales of your judgment, and your manhood must stand at the scales,
and then you must have the courage to tell which side goes down and
which side rises.

That is all we ask. We ask the mercy of an honest verdict, and of your
honest opinion. We ask the mercy of a verdict born of your courage, a
verdict born of your sense of justice, a verdict born of your manhood,
remembering that you are the peers of any in the world. And it is for
you to say, gentlemen, whether these defendants are worthy to live among
their fellow-citizens; whether they shall be taken from the sunshine and
from the free air, and whether they are worthy to be men among men.

It is for you to say whether they are to be taken from their homes,
from their pursuits, from their wives, from their children. That
responsibility rests upon you.

It is for you to say whether they shall be clothed in dishonor, whether
they shall be clad in shame, whether their day of life shall set without
a star in all the future's sky; that is for you.

It is for you to say whether Stephen W. Dorsey, John W. Dorsey, John R.
Miner, Thomas J. Brady, and H. M. Vaile shall be branded as criminals.

It is for you to say, after they have suffered what they have, after
they have been pursued by this Government as no defendants were ever
pursued before, whether they shall be branded as criminals.

It is for you to say whether their homes shall be blasted and blackened
by the lightning of a false verdict.

It is for you to say whether there shall be left to these defendants
and to those they love, a future of agony, of grief and tears. Nothing
beneath the stars of heaven is so profoundly sad as the wreck of a human
being. Nothing is so profoundly mournful as a home that has been covered
with shame—a wife that is worse than widowed—children worse than
orphaned. Nothing in this world is so infinitely sad as a verdict that
will cast a stain upon children yet unborn.

It is for you to say, gentlemen, whether there shall be such a verdict,
or whether there shall be a verdict in accordance with the evidence and
in accordance with law.

And let me say right here that I believe the attorneys for the
prosecution, eager as they are in the chase, excited with the hunt,
after the sober second thought, would be a thousand times better pleased
with a verdict of not guilty. Of course they want victory. They want
to put in their cap the little feather of success, and they want you to
give in the scales of your judgment greater weight to that feather than
to the homes and wives and children of these defendants. Do not do it.
Do not do it.

I want a verdict in accordance with the evidence. I want a verdict in
accordance with the law. I want a verdict that will relieve my clients
from the agony of two years. I want a verdict that will drive the
darkness from the heart of the wife. I want a verdict that will take the
cloud of agony from the roof and the home. I want a verdict that will
fill the coming days and nights with joy. I want a verdict that, like
a splendid flower, will fill the future of their lives with a sense of
thankfulness and gratitude to you, gentlemen, one and all.

The Court. Let me inquire of the counsel for the defence if there are to
be any other arguments upon their side?

Mr. Henkle. May it please your Honor, inasmuch as I alone represent
two of the defendants, it is perhaps due to this jury and to myself to
explain why I do not propose to argue the case. I had prepared myself,
with a good deal of labor and painstaking, to submit an argument to the
jury.

But after the exhaustive and able argument of my Brother Wilson, I and
my colleagues were of the opinion that there was room but for one
more argument on the part of the defence, and with entire unanimity we
selected our colleague, Brother Ingersoll, to make that argument. And
how grandly he has justified the choice, the jury, your Honor, and the
spectators will determine.

I saw some time ago a little paragraph in a paper in this city, which
represents the interest of the Government, in which it was said that the
defendants' counsel were afraid to argue this case because they would
come in collision with each other; that each would try to throw the
conspiracy at the door of the others and exonerate himself, and that
therefore they were afraid to argue the case. I want to say to your
Honor that so far from being afraid to argue the case, I should have
been very happy to pursue the argument, so far as I am concerned. But
out of tender consideration to the jury, who have been kept for six
long months from their business and their interests, which I know
are suffering, we have unanimously concluded that we would close the
argument with that which your Honor has just heard. And I simply want
to say further, that I not only do not antagonize with anything that has
been said by my Brother Wilson, or by my eloquent friend who has just
concluded, but I indorse most fully and cordially every word that has
been uttered. And so far as my clients are concerned, gentlemen of the
jury, the case is with you.

Mr. Davidge. May it please your Honor, perhaps I ought to add a single
word. It was understood among counsel when Colonel Ingersoll, as stated
by General Henkle, was unanimously selected to represent the defendants,
that both Colonel Ingersoll and myself should have the privilege
of addressing the jury if, in the judgment of either, it should be
necessary. I have felt such a deep interest in the present case that I
have almost hoped he might leave unoccupied some portion of the field of
argument. I have listened to every word that has fallen from his lips.
He has filled the whole area of the case with such matchless ability and
eloquence that I have no ground upon which I could stand in making any
further argument. He has so fully uncovered the origin of this so-called
prosecution, its methods, and the character and weight of the evidence
upon which a conviction is sought, that I can add nothing whatever to
what he has said. I need not add that every syllable he has uttered
receives my grateful indorsement, as well as that of all the defendants
and their counsel in this case.*
  • Twelve jury men decided this morning that the Government
    had not legally established a case of conspiracy against the
    Star Route defendants. This verdict of absolute acquittal
    coming so unexpectedly has created a very marked sensation.
    The announcement in the court room of the verdict was
    followed by an uproarious scene of applause, tears,
    hysterics and cheers. Every one expected the jury to
    disagree. Judge Wylie himself, a week or ten days ago,
    called up the counsel for the prosecution and said to them,
    "I do not think you are going to get a verdict out of that
    jury. I have watched it carefully, and I am certain that
    four of the best men on it are in doubt." Last night an
    employee of the Department of Justice reported that the jury
    stood eleven to one for acquittal. This came from one of the
    bailiffs, who claimed to have overheard a vote.
    At any rate the prosecution had intended, if a disagreement
    was reported, to ask to have the jury dismissed, on the
    ground of the condition of Juror Vernon. Had this been
    attempted, Dr. Sowers, who attended Vernon yesterday would
    have testified that Vernon was all right mentally, after he
    had braced him up with two drinks of brandy.
    The court room was crowded when the jurors took their
    places. Every one of the defendants was there. Dorsey sat by
    his wife, flushed and expectant. Upon the left of Mrs.
    Dorsey was her sister Mrs. Peck. Brady was just back of his
    special counsel. Judge Wilson, looking as hard and grim as
    ever. All of the counsel for the Star Route defendants were
    in their seats. Colonel Ingersoll's face showed great self-
    control, although he was evidently laboring under strong
    nervous excitement. He was flanked by his entire family.
    Mr. Farrell, Mr. Baker (Colonel Ingersoll's secretary), and
    the white-haired and white-bearded Mr. Bush, the hard
    working associate of Colonel Ingersoll, were also present.
    When the jurors took their places in the court room
    precisely at ten o'clock, Judge Wylie looked at them, and
    said In his slow hesitating way: "Gentlemen, I have sent
    for you to learn—ahem—to learn if you have agreed—ahem—
    upon a verdict." Mr. Crane the foreman said: "We have
    agreed."
    Judge Wylie gave a start of surprise and looked towards the
    seats for the counsel of the Government. Not one of them was
    present. This looked very ominous for the Government's case,
    and indicated besides that the bailiffs must have betrayed
    the secrets of the jury room to the prosecution, as neither
    Bliss nor Merrick came to the court room at all. Mr. Ker,
    one of the counsel for the prosecution, came in and stood In
    the door as the Judge said to the Clerk, "Receive this
    verdict." There was the usual silence as every one turned
    toward the foreman. Mr. Crane said very deliberately. "We
    find the defendants not guilty."
    Then there followed a scene of great confusion and uproar,
    which the Judge could not restrain. Indeed he did not try.
    The triumph of such an unexpected success after two years of
    fighting in the face of the entire power of the Government,
    made the humblest person connected in the most remote degree
    with the defence crazy with joy. When Colonel Ingersoll came
    out of the Court House a crowd gathered in front of him, and
    then one stout-lunged, broad shouldered man cried out "Three
    cheers for Colonel Ingersoll." There was a wild scene of
    tiger-like cheering from the excited crowd. This
    demonstration was a personal compliment to the Colonel, for
    when the defendants passed out there was not the slightest
    sign of approval or disapproval beyond the congratulations
    of personal friends. Colonel Ingersoll stood on the broad
    steps of the Court House and smiled with the benevolent air
    of a popular orator in front of a congenial crowd, and
    laughed outright when some over-euthusiastic admirer called,
    "Speech, speech."
    The morning was clear and bright. Colonel Ingersoll watched
    the crowd a moment, himself a picture of radiant good
    nature, as he stood with his white straw hut encircled with
    a blue band, pushed back from his face. His short thin black
    coat was partially buttoned over a white duck waistcoat. He
    rested his hands in the pockets of his gray trousers. The
    request for "Speech, speech" so amused him that he chuckled
    over It all the way to his open carriage, which came up a
    moment after. He was driven through Pennsylvania Avenue with
    his family. People called out to him from the sidewalk, and
    he was obliged to lift his hat so much that he finally sat
    bareheaded, like a conquering hero, waving his hands to the
    right and to the left. His house was thronged all day. Mrs.
    Blaine and her daughter Margaret were among the first who
    called. There was a profession of people all day long who
    had no sympathy at all with the defendants, and who were
    perfectly indifferent whether they went to the penitentiary
    or not, but who were most heartily glad that their friend
    Colonel Ingersoll had accomplished such a great personal
    victory.
    Now that the case is over, it is time to tell some facts
    about the prosecution which have been withheld until the
    case was closed. In the first place, the management of the
    prosecution has been equally scandalous with the crimes
    charged against the defendants. The District Attorney here
    has always been allowed a five dollar fee for the
    prosecution of cases. Attorney-Generals who preceded Mr.
    Brewster ruled that this should be the official fee of
    special counsel. This was made up by allowing the payment of
    lump sums as retainers. When Bliss and Merrick were put upon
    the extravagant pay of one hundred and fifty dollars per day
    it was inevitable that they would prolong the case to the
    uttermost. Bliss has, on top of all this pay, put in an
    extraordinary list of personal expenses, which have been
    allowed up to a very recent date. The amount of extra matter
    run into this case only to prolong it has resulted in so
    confusing the case as to materially aid the defence.
    Then the reporting of the case has been turned into a huge
    job. The stenographers will clear between thirty and forty
    thousand dollars on their work.
    The other day I estimated from official sources, the cost of
    the Star Route trials at one million dollars. It will go
    above that. It will foot up near one million two hundred
    thousand dollars. This evening Col. Ingersoll was serenaded.
    There was a large gathering of friends of the Star Route
    defendants at Colonel Ingersoll's house to-night. Indoors
    the acquitted men, their counsel, and a large number of
    their more intimate friends, many of them women, met to
    exchange mutual congratulations. And in the street a crowd
    had gathered, partly out of curiosity—and partly to express
    their sympathy with the defendants. They cheered Ingersoll
    and the other counsel as well as the defendants and the
    jury, and called for speeches. Colonel Ingersoll and Judges
    Wilson and Carpenter spoke briefly.
    Col. Ingersoll's speech was short and vigorous. He hailed
    the verdict of the jury as a victory for truth and justice,
    and as a notice to the administration that it could not
    terrorize a jury by indicting jurymen, and a warning to the
    President that he could not force a verdict by turning
    honest servants out of office.
    The Sun, New York, June 15,1883.
