Volume 10 — CLOSING ADDRESS TO THE JURY IN THE FIRST STAR ROUTE TRIAL. (continued 2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court. Thirty-nine dollars.

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

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

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

No matter whether the description was necessary or unnecessary:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

True.

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

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

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

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

That is good sense.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Ingersoll. Certainly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Ingersoll. Partially so.

Mr. Merrick. The opening by their counsel.

The Court. By their counsel.

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

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

The Court. Where did they say that?

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

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

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

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

The Court. I shall not interfere.

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

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

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

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

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

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

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

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

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

Good!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is quoted.

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

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

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

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

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

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

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

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

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

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

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

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

The Court. You offered to prove that.

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

The Court. You offered to prove the fact.

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

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

The Court. That he made a statement.

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

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

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

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

"The Witness. To what statement do you refer?

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

"A. It must have been after that.

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

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

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

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

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

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

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

The Court. Probably it would.

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

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

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

The Court. It is not evidence either way.

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

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

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

The Court. I do not see anything in that.

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

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

Mr. Ingersoll. [Interposing.] Very well.

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

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

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

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

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

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

1 Haggard, 105, opinion by Lord Stowell.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There are also other improbabilities connected with this testimony.

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

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

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

That the conspiracy has been established.

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