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CLOSING ADDRESS TO THE JURY, 2nd STAR ROUTE TRIAL.
(1 of 3 parts)
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This file, its printout, or copies of either
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Bank of Wisdom, Box 926, Louisville, KY 40201
The Works of ROBERT G. INGERSOLL
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CLOSING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.
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 as 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
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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 circulares 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 circulares 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
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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 Post-Office drafts
and things of that character. All those necessary papers they then
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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:
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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 engraved, 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. [Indi-
cating 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 my part, were I upon the jury, I would pay no more
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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 cheeks; 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 cheek-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
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one. I did not know at that time that we had ever bad 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. Kieyser,
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.
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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
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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. Bosier 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
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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.
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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
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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:
Everyman 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 cheek 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
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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
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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.
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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
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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
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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 be 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 have been at one 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?
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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 circulares 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
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me. I am a 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
yon 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 yon,
gentlemen, is there an 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 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 throw upon the character of a man, sometimes for good, an
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; an 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
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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 sheetanchor 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:
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.
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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 be severed his
connection with all the routes prior to the 1st of April, or as of
the 1st of April, 1879, John W. Dorsey tolls 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.
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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
other than the contractor to draw the pay and to be filed 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 an 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 a 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 an 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 be 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
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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 be 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 be 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 an Vaile starting a charity conspiracy, and out of every
hundred dollars that they steal they offer ninety-eight dollars an
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; was willing
to steal for one hundred and fifty dollars a month if he couldn't
get any more, or he was willing steal for a part of the stealing.
If he could not get that he would take an ordinary salary. I should
think he was good man from what he says. You heard him they were
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 McBean 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
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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 11th of July, 1878. If his testimony is true, he stole that
on 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 on 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 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
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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 an 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:
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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 fix them up and changed the language a little in some, and
in some be 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 bad
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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 a 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
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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 comes 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; when. ever 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
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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 11th, 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 Darsey?
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.
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The. COURT. You do not know what he is going to say.
Mr. INGERSOLL. He may he 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
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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
Post master-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 murder in 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 no intend to
commit the murder; that if he had so intend 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
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and get them; that he was going to steal them; he says he went over
to get them, and afterwards admitted, I believe that he 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. Bass 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 be 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
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could give no excuse for their non-production. He must state it in
such a way that be 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. He 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 be 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
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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 Nettle 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
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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 on 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.
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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
seem 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.
Bank of Wisdom
Box 926, Louisville, KY 40201
36
CLOSING ADDRESS TO THE JURY, 2nd STAR ROUTE TRIAL.
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 Torrey'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 once. 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
t