Chapter M: C. Rerdell (4)

We are not begging of you. We are not upon our knees before you. But we do want to be tried according to the evidence and according to the law. We do not want your mind, nor yours, nor yours [addressing different jurors] poisoned with a misstatement. We want to be tried, and we want the verdict rendered by you when every fact is as luminous in your mind as the sun at mid-day. We want every fact to stand out like stars in a perfect night, without a cloud of doubt between you and the fact. That is the kind of a verdict we want. We want a verdict that comes from a clear head and a brave heart. We do not want a verdict simply from sympathy. We want a verdict according to the evidence and according to the law. And when the verdict is given we want every one of you to say, "That is my verdict; I found it upon the evidence and upon the law; dig beneath it and you will not find used as the corner-stone a misstatement, or a mistake, or a falsehood; it stands upon the rock of fact, upon the foundation of absolute truth."

Do you know that if I were prosecuting a man, trying to take from him his liberty, trying to take from him his home, trying to rob his fireside and make it desolate, and if I should succeed and afterwards know that I had made a misstatement of the evidence to the jury, I could not sleep until I had done what was in my power to release that man; and after he was released, or even if he were not released, I would go to him when he was wearing the prison garb, and I would get down on my knees and beg him to forgive me. I would rather be sent to the penitentiary myself, I would rather wear the stripes of eternal degradation, than to send another man there by a misstatement or a mistake that I had made. That is my feeling. I may be wrong.

It may be that I am guilty, according to Colonel Bliss, of sneering at everything that people hold sacred. But I do not sneer at justice. I believe that over all, justice sits the eternal queen, holding in her hand the scales in which are weighed the deeds of men. I believe that it is my duty to make the world a little better, because I have lived in it. I believe in helping my fellow-men. I do no not sneer at charity; I do not sneer at justice, and I do not sneer at liberty. And why did he make that remark to you, gentlemen? Is it possible that for a moment he dreamed that he might prejudice your minds against the case of my client, because, I, his attorney, am not what is called a believer? Is it possible that he has so mean an opinion of a Christian that a Christian would violate his oath when upon the jury, simply to get even with a lawyer who happened to be an infidel? Is that his idea of Christianity? It is not mine; it is not mine. I stand before you to-day, gentlemen, as a man having the rights you have, and no more; and I am willing to work and toil and suffer to give you every right that I enjoy. And I know that not one of you will allow himself to be prejudiced against my client because you and I happen to disagree upon subjects about which none of us know anything for certain. I do not believe you will. And yet, that remark was made, gentlemen--I will not say that it was made, but may be it was--hoping that it would lodge the seed of prejudice in your minds, hoping that it might bring to life that little adder of hatred that sleeps unknown to us in nearly all of our bosoms. I have too much confidence in you, too much confidence in human nature to believe that can affect my client.

Now, gentlemen, there is no pretence, there is no evidence that every subcontractor did not get the per cent, mentioned in his subcontract, except one, and that was Mr. French, on the route from Kearney to Kent; and the evidence there is that Miner settled with him, I believe, and gave him a certain amount of money in lieu of expedition. That is the solitary exception.

Now, gentlemen, I come to a most interesting part of this discussion, and I hope we will live through it. In the first place, what is a conspiracy? Well, in this case, they must establish that it was an agreement entered into between the persons mentioned in this indictment, or two of them, to defraud the Government. How? By the means pointed out and described in the indictment. While it may not be absolutely necessary to describe the means, I hold that if they do describe them, tell how the conspiracy was to be accomplished, they are bound by their description; they must prove such a conspiracy as they describe. If a man is indicted for stealing a horse and the color of the horse is given, it will not do to prove a horse of another color. If they describe the offence they are bound by the description.

Now, this is a conspiracy entered into, as they claim, by the persons mentioned in the indictment, to do a certain thing. What is the object of the conspiracy? To defraud the Government. And, gentlemen, I believe the Court will instruct you that the conspiring is the crime. The object of the conspiracy is to defraud the United States. What are the means? According to this indictment false petitions, false oaths, false letters, false orders. What I insist on is that the means cannot take the place of the object; that the means cannot take the place of the conspiracy described. When you describe a conspiracy by certain means to defraud the Government, and set out the means so that the Second Assistant Postmaster-General is a necessity, then you cannot turn and shift your ground, and say that it was not the conspiracy set out in the indictment, but that it was a conspiracy to do some of the things recited as means in the indictment; you cannot say that it was not a conspiracy entered into with the Second Assistant Postmaster-General, but was a conspiracy entered into with some others to make a false petition or a false affidavit. The ostrich of this prosecution will not be allowed to hide its head under the leaf of an affidavit. They must prove, in my judgment, the conspiracy that they describe in the indictment, and none other.

Now, what else? You must be prepared, gentlemen, when you make up a verdict, if you say that there was a conspiracy, to say when it was entered into and who entered into it. And I suppose when you retire, the first question for you to decide will be: Was there a conspiracy? Has any conspiracy been established beyond a reasonable doubt? If you say yes, then the next question for you to decide is, who conspired? Who were the members of that conspiracy?

After you do that there is one other thing you have to do: You have to find that one of the conspirators, for the purpose of carrying the conspiracy into effect, did something; that is called an overt act. You have to find, that at least one of them did something to effect the object of that conspiracy. You must remember, gentlemen, that the overt act must come after the conspiracy. In other words, you cannot commit an overt act and make a conspiracy to fit it; you must have the conspiracy first, and then do an overt act for the purpose of accomplishing the object of that conspiracy. The conspiracy must come first, and the overt act afterwards. You all understand that now.

Now, this indictment is so framed that the earliest time within the life of the statute of limitations for an overt act is the 23d day of May, 1879. Why? The indictment charges that as the day, the conspiracy was entered into. Any overt act in consequence of that conspiracy must have been done after the 23d of May, 1879. Now, get that in your heads, level and square. The conspiracy, according to this, is not back of the 23d of May, 1879, and any overt act done, in order to be considered an overt act, must be done after the date of that conspiracy. If they prove any act done before that time, it shows that it was not an overt act belonging to the conspiracy mentioned in the indictment. If it is an overt act at all, it is an overt act of another conspiracy entered into before the date mentioned in this indictment, and consequently will not do for an overt act in this case. Now, I want you all to understand that.

I forget how many overt acts are charged in this indictment; some sixty or seventy, I think. And understand me, now, gentlemen, no matter what date they fix to an overt act in the indictment, no matter whether there is any date to it or not in the indictment, if it turns out to have been done before the time fixed for the conspiracy it is dead as an overt act: it is good for nothing. The overt act is the fruit of the conspiracy; the conspiracy is not the result of the overt act. Now let me make a statement to you, so that you will understand it.

Every petition, every letter, every affidavit, upon which orders for expedition were based, was filed before the 23d of May, 1879, except on two routes--Toquerville to Adair-ville and Eugene City to Bridge Creek. If that is true, then not a solitary petition filed in this case can be considered as an overt act; and a conspiracy without an overt act is nothing; it simply exists in the imagination; it is an agreement made of words and air, and never was vitalized with an act done by one of the conspirators for the purpose of giving it effect. Recollect that every petition, every affidavit, every letter filed, was filed before the 23d day of May, with the two exceptions I have mentioned. That is the date when the conspiracy came into being. And consequently an overt act must be after that time.

Now,'when they came to write this indictment, why did they not tell the truth in it? I do not mean that in an offensive sense, because a man has the right to write in that indictment what he wants to. That is a matter of pleading. But why did they not tell the facts? Why did they put in the indictment that a certain petition was filed on the 26th day of June, when they had the petition before them and knew that it was filed in April, 1879? Why did they put in that indictment that a certain affidavit was filed on the 26th or 27th of May, I think it was, when they knew that it was filed in April or March? Why? Because if they had put that in the indictment the indictment would have been quashed, so far as their overt acts were concerned. The Court would have said, "I cannot allow you to put on paper that a man entered into a conspiracy on the 23d of May, and then did an act to carry that conspiracy into effect in April before that time. I cannot allow you to do that, because that is infinitely absurd, and pleadings have to be reasonable on their face." But you see they stated that this was done after the conspiracy. They had to do it or they would be gone. I believe there is no dispute about this law that if they describe the overt act--and they must describe it, because it is a part of the offence--that is, the offence is not complete without it--they must prove it exactly as they describe it.

If they describe it with infinite minuteness, they must prove it with infinite minuteness. If they set out that an affidavit was written on bark, they must produce a bark affidavit. If they were foolish enough to say it was written in red ink they must produce it in red ink. If they allege that an oath was sworn to twice before two notaries public they must produce an oath sworn to twice. They are bound to prove exactly what they charge, and if they were too particular about it that is their fault, not ours.

I say that all these, with the exception of the two routes I have named, were filed too early to play any important part in this case. Now, I will come to those routes. Remember, that every overt act must be after the conspiracy. There are two exceptions, and those two exceptions include petitions and affidavits. And there is a splendid kind of justice in the way this thing is coming out, so far as that is concerned.

The petitions filed on the Toquerville route and on Bridge Creek route, I believe, are genuine; I believe the Government admits that they are honest; and they were not attacked except upon one point, and that was that a daily mail did not mean seven times a week. The point made by the Government was that a daily mail meant six trips a week--that is, where you have them every day. We took the ground that daily mail meant a mail every day, and that in the Western country, as here, they have seven days in a week.

We contended that you cannot have a daily mail without having seven trips a week. I think that was the only point made against these petitions--that they were for a daily mail, and that somebody put in a figure 7.

No petition for increase of service alone was ever attacked by the Government in this case, except 25 L, on The Dalles route, and 20 H and 29 H, on the Canyon City route. 25 L was filed April 23, 1879. That was one month before the conspiracy had life. Consequently that is mustered out of this case as an overt act.

23 L was filed June 27, 1879, and is in time, provided it had been a dishonest petition. And it is the only petition filed on the date alleged in the indictment, and it was not attacked. It was signed by the business men of Baker City, and is set out, I believe, on page 1617.

20 H was filed May 7th. That is not in time. That is gone.

29 H has no file mark, and never was proved. So that goes.

All the allegations as to false petitions for increase of service--and by that I mean additional trips--are shown to have been genuine, honest, true petitions.

There are but two affidavits, one correctly described. Both were made by Peck. Mr. Bliss admits that Peck had nothing to do with any of these routes after April 1, 1879, and both of them were made by Peck, and were sworn to before that date.

The affidavit on the Toquerville route was filed by M. C. Rerdell, who swears that he was not in any conspiracy to defraud the United States; that he was not in a conspiracy with Vaile and Miner and John W. Dorsey, nor with anybody else. It was filed by the subcontractor of record, M. C. Rerdell, and it is the same route on which Mr. Rerdell, by virtue of his subcontract, appropriated about five thousand dollars of money belonging to other people.

The other exception is on the Bridge Creek route, and, strange as it may appear, that was also filed by Mr. Rerdell.

And, strange as it may appear, it has not been successfully impeached as to the men and horses necessary under the existing and proposed schedule. The overt act is not proved, because the oath is not proved to be false, and because Peck and Rerdell, according to Mr. Bliss's admission and according to Rerdell's oath, were not in the conspiracy, and the overt act has to be done by one of the conspirators, of course.

The Court. I understood--I do not know whether I have been under a delusion all this time or not--that the indictment charged that these affidavits and false petitions were the means by which the conspiracy was to be carried into execution; that they were not the overt acts. If they had been set out as overt acts in the indictment, the Court would have seen that they antedated the time, and if an objection had been made to them the Court would not have received them as overt acts. The reason why they have been admitted and regarded as in the case all along, to my mind, was that they were acts tending to prove, so far as they tended to prove anything, the nature of the combination between these parties anterior to the 23d of May.

Mr. Ingersoll. Before the conspiracy.

The Court. Before the conspiracy. So that whatever character belonged to that association anterior to that time, if it was continued on after that time, carried out with overt acts done subsequently to that time, they were properly received as evidence going to establish the conspiracy--not as overt acts, but as means to show the character of the combination amongst the parties anterior to that date.

Mr. Ingersoll. That saves me a great deal of argument. Now, I understand, gentlemen, that the Court will instruct you that you cannot take any petition, any letter, any oath, any paper of any kind that was filed or written or used prior to the 23d of May, 1879, as an overt act; that all that that evidence is for is to show you the relation sustained by the parties before that time.

The Court. Yes; you are right.

Mr. Ingersoll. Now, that saves a great deal of trouble.

There are on the Toquerville and Adairville route, and on the Eugene City and Bridge Creek route, petitions filed after the 23d of May, 1879, set out in indictment as overt acts. I shall insist, if the Court will allow me, that if there is no evidence that those petitions were dishonest, no evidence going to show that they were not genuine, those petitions cannot be used as overt acts for the reason that they are charged in the indictment as false and fraudulent petitions. So, gentlemen, I take that ground, that as to the petitions filed after the 23d day of May on the only two routes left for these gentlemen to find overt acts upon (Eugene City to Bridge Creek, and Toquerville to Adairville), if those petitions have not been proved to be false they cannot be regarded as overt acts for the reason that they were described in the indictment itself as false and fraudulent petitions. It is perfectly clear, is it not?

What else have we left? A couple of affidavits. Who made them? Mr. Peck. When? Before the 1st day of April, 1879, and Mr. Bliss admits that from that time on he never had anything to do with this business. Mr. Rerdell filed them, and Mr. Rerdell swears that he was never in any conspiracy; and Mr. Bliss admits that Peck, after the 1st of April, had nothing to do with this business. That substantially knocks the bottom out of that dish.

Now, they attacked the affidavit on the Bridge Creek route, but they did not succeed in showing that it was not an honest affidavit.

Now, gentlemen, after what the Court has decided I want to call your attention to another thing.

Do not forget what the Court has decided--that all these things are not overt acts, but that they simply show the relations of the parties.

Now, if you go and find Vaile and Miner getting up petitions on their routes, and you also find Dorsey getting up petitions on his routes, then they claim that that is the result of an agreement between them. That is not the law. Neither is there in that the scintilla of common sense. If I find you plowing in your field and your neighbor plowing in his field, I have no right to draw the conclusion that you have conspired to plow or to help each other. But if I find your neighbor and you plowing in your field, and I afterwards find you and your neighbor plowing in his field, I have the right to conclude that you have swapped work and that you have something in common. If I find you plowing in your field and your neighbor walking behind you sowing grain or dropping corn, and then I find you in the fall shucking out the corn together, and I find your neighbor taking half of it to his barn and you taking half of it to your barn, I make up my mind that you have had some dealings on the corn question.

Now, we find that on May 5, 1879, these parties absolutely divided, and after that, when Vaile and Miner got up a petition on their route, Dorsey did not help them; and when Dorsey got up one on his, Vaile and Miner did not help him. That shows what the relations of the parties were. Does that show that they were then in a conspiracy? Does it show that they had any conspiracy before that time? They had separated their interest; they had ceased to act together; one did nothing for the other. If there had been a conspiracy before that time that conspiracy died on the 5th of May, 1879; and if it did, then there is no possibility of any conviction in this case, no matter what the evidence is--not the slightest.

Now, I want you to understand that ground exactly. I am not begging the question. I am not afraid to meet every point, every paper, every scratch, in this case. But I want you to understand it. All those things were allowed for the purpose of showing the relations of the parties, the relations that the defendants sustained to each other; and the evidence is that they sustained no relations to each other after 1879; that each went his own road to attend to his own business in his own way. That is the evidence.

Now comes the next point. What are the overt acts in the indictment? Really they are the orders made by Mr. Brady, unless you take this poor little affidavit made by Peck and filed by Rerdell.

Then comes the next point. You cannot treat anything as an overt act unless it was made by one of the conspirators. Is there any evidence in this case that Mr. Brady ever conspired with anybody? Not the slightest. And unless he conspired with us, any other made by him cannot be regarded as an overt act in this case. I think everybody will admit that. Unless Brady conspired with us, and we with him, any order of his cannot be regarded as an overt act.

I ask you, gentlemen, what evidence is there in this case that Mr. Brady ever conspired with any of these defendants? I will answer that question before I get through, and I think I will answer it to your entire satisfaction.

I will go a step further in this case, and I may go a little further than the Court will go. I say that when they state in that indictment that an order is made for the benefit of Miner, Vaile, and Dorsey, and the evidence is that it was made for the benefit only of Vaile and Miner, that is a fatal variance, and it cannot be treated as an overt act for any conspiracy. And when the indictment charges that an order was made for the benefit of S. W. Dorsey, and Vaile, and Miner, and it turns out that it was made for the sole benefit of S. W. Dorsey, I claim that that is a fatal variance.

Gentlemen, I was going through all these overt acts and all these terrible false claims. But the decision of the Court has utterly and entirely relieved me from that duty. So I will turn my attention to another person.

The next defendant to whom I may call your attention is Mr. John W. Dorsey. It is claimed that John W. Dorsey was one of the original conspirators; that he helped to hatch and plot this terrible design. Let us see what interest John W. Dorsey had. You have heard me read the agreement he made, have you not, with Miner? Now, let me read to you the agreement that he made on the 16th day of August, 1878. Now, we will find out what interest John W. Dorsey had in all this conspiracy. On the 16th of August, 1878, there was no reason for telling any lie about it. They could not get on the routes in August, 1878; they had not the money, and so they took in Vaile. At that time, gentlemen, there was no reason for their writing anything in this paper that was not true, not the slightest. And I take it for granted that most people tell the truth when there is no possible object in telling anything else, if their memory is good:

4th. The profits accruing from the business shall be divided as follows: From routes in Indian Territory, Kansas, Nebraska, and Dakota, to H. M. Vaile, one-third.

To John R. Miner, one-sixth; to John M. Peck, one-sixth; and to John W. Dorsey, one-third.

From routes in Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Idaho, Washington, Oregon, Nevada, and California, to H. M. Vaile, one-third; to John R. Miner, one-third; to John M. Peck, one-third. [Page 4014.]

And to John W. Dorsey nothing. The entire interest of John W. Dorsey in the whole business was one-third of the profits on routes in the Indian Territory, Kansas, Nebraska, and Dakota. This was signed by H. M. Vaile, John R. Miner, John M. Peck, and John W. Dorsey, and I believe these are all admitted to be the genuine signatures of the parties.

The only routes mentioned in this indictment in which John W. Dorsey on the 16th day of August, 1878, had any interest whatever were: Kearney to Kent in Nebraska, Vermillion to Sioux Falls in Dakota, and Bismarck to Tongue River in Dakota. Remember that, gentlemen. That is very important. The evidence is that he sold out his interest in the following December, made a bargain for ten thousand dollars, and the evidence is that he received the money, and the evidence is that after that he never had any interest in the profits, no matter how much was made. And yet these gentlemen say that he was part and parcel of a conspiracy formed on the 23d of May, 1879. Long before that time he had sold out every dollar's interest he had, and had no more interest in it than though he had never existed. He got his ten thousand dollars; that was all. Now let us see what he did when the routes were divided.

Mr. Merrick. When did you say he sold out and got the money?

Mr. Ingersoll. The bargain was made in December, and his brother wrote to him at first that Vaile would not give it to him, and then that he would. Don't you recollect the two letters you asked Dorsey so much about?

It had been agreed to once, and then after S. W. Dorsey came out of the Senate John W. Dorsey was paid ten thousand dollars, and Miner swears that the division was absolute, perfect, and complete; and that nothing was signed by one for the other after the 5th of May, 1879.

Mr. Bliss. Miner does not say when. He swore that he, signed no papers after the 5th of May, 1879.

Mr. Ingersoll. He says that he signed no papers for the other side, and that the other side signed none for Vaile and Miner.

Mr. Davidge. You are talking of two different things.

Mr. Ingersoll. I will show you after awhile that you are wrong, as I always do. I never made a mistake on you yet.

The only routes mentioned in this indictment in which John W. Dorsey on the 16th day of August, 1878, had any interest whatever were from Kearney to Kent, in Nebraska; Vermillion to Sioux Falls, in Dakota; and Bismarck to Tongue River, in Dakota. And I will say right here that if at any time I do injustice to Mr. Bliss or anybody else, if it is pointed out I will take it back cheerfully, and if it is not pointed out, and they show that I did it, I will get up and admit it and say that I was mistaken.

Mr. Bliss. You will have a great deal to admit.

Mr. Ingersoll. Very well, I will do it, for I have the courage of conviction, and I have the courage to say that I am mistaken when I am.

Now, the evidence is that John W. Dorsey sold out his interest for ten thousand dollars, and that he received the money, and that after that he had no interest in the profits when the three routes were divided, and the only three were the ones I have mentioned.

On the first route, from Vermillion to Sioux Falls, John W. Dorsey was the subcontractor and he gave Mr. Vaile the entire pay for all increases and all expeditions. John W. Dorsey had the right to subcontract, and Mr. Vaile had the right to make the contract. The statement on page 726 shows simply that John W. Dorsey never drew a dollar upon that route. That is one route fairly and squarely disposed of. Understand, I cast no imputation upon Mr. Vaile for having the contract and for getting the money. When I come to it I will show you that he had a right to.

The next route is from Kearney to Kent. John W. Dorsey had an interest in that route, according to the agreement of August 16th, of one-third. You will see from page 726 of the record that the first quarter John M. Peck got the money, two hundred and forty-five dollars and six cents. John W. Dorsey was entitled to one-third of that, if it was profit. The next quarter was paid on the 22d of January, 1879--that is, for the fourth quarter of 1878, and that was paid to H. M. Vaile. And never another solitary cent was paid to anybody in such a way that John W. Dorsey was entitled to any part or portion of it. That gets that route out of trouble, so far as John W. Dorsey was concerned, no matter what the increase may have been after that, no matter what the expedition was, no matter whether French carried it for nothing, no matter what happened to Cedarville or that city of Fitzalon; it was no interest to John W. Dorsey, no matter whether the road ran direct from Fitzalon to Cedarville or not. He was entitled to one-third of the profits on one payment to Peck, and that payment was two hundred and forty-five dollars and six cents; whether he ever got it I do not know.

Let us see how he came out on the next route, from Bismarck to Tongue River. He went out there to build stations. I will come to that in a little while. Now, I call attention to page 727. The third quarter from July 1 to September 30, 1878, was paid November 8, 1878, to H. M. Vaile. Never a solitary dollar on the route was paid to John W. Dorsey, according to this record, if you can rely on these books.

That is the state of the case on these three routes. And yet it is solemnly averred in the indictment that all the orders on these routes were made for the joint benefit of John W. Dorsey and others. Now, before another payment was made the division of the routes had been completed, and John W. Dorsey sold out his interest in these routes and all others for ten thousand dollars. So that he never received a dollar upon the Bismarck route and the Vermillion route except as it is included in the gross sum of ten thousand dollars which he received for his entire interest, and that entire interest is described perfectly in the contract of August 16, 1878. Now, it John W. Dorsey had no interest in any route except as stated in the contract, of course nothing was done upon any other route for his benefit; nothing was done in which he, by any possibility, had the slightest pecuniary interest. How were the petitions filed for his benefit? How were the affidavits made for his benefit? How were the orders made for his benefit? He had no interest; he had parted with it, and had nothing more to do with it than the attorneys for the prosecution in this case.

It is claimed by Mr. Bliss that when John W. Dorsey sold out he agreed to make the necessary papers for the routes, and he tried to impress upon your minds the idea that the bargain was that John W. Dorsey knew that for ten thousand dollars he had to commit perjury and forgery and several other cheerful crimes, from time to time, as he might be called upon by the gentlemen who had been his co-conspirators.

J. W. Dorsey frankly and cheerfully swore that he agreed to make the necessary papers. He did not swear that he agreed to commit any frauds, perjuries, or forgeries. Nothing of the kind. He agreed to execute, of course, the necessary legal papers--the papers that, as contractor, were necessary for him to make to vest title of the route in the person to whom he had sold--just the necessary papers that would allow the man who had paid him for the route to draw the money from the Government if he performed the service.

Now, what were the papers? I say right here, gentlemen, that under the law as it was then, under the law as it is now, it is impossible for a contractor to assign his contract so as to be relieved from responsibility to the Government; the Government will not permit it. The Government will permit him to make a subcontract, and that is what John W. Dorsey did; that is one of the things he agreed to do. In order to make that subcontract absolutely certain; in order to put it beyond his power to do anything with it, that subcontract was made for the entire pay, for the entire increase and expedition. And what more? In order to make that absolutely perfect, so they would not have a loop-hole anywhere, he signed blank drafts upon the Post-Office Department for the entire pay of every quarter during the contract term. And then, if they were fined--and nobody knew how much they would be fined--they had the right to fill up that order for the amount due them from the Post-Office Department after deducting fines.

He sold out in March, 1879. The regulation or order making it necessary for the contractor to make an oath as to additional stock and men was not in existence, was not a binding law or regulation, until the 1st day of July, 1879. When he sold out in March, unless he were gifted with prophecy, he would not know what the regulation of the 1st of July following would be.

Now, there were two affidavits made by John W. Dorsey on route 38134, Pueblo to Rosita. Around those affidavits Mr. Bliss hovered and Mr. Ker remained. John W. Dorsey testifies that he received one of those affidavits in the morning and swore to it, and that it was filled up when he swore to it. Mr. Bliss and Mr. Ker, I believe, both say that it was not filled up.

Mr. Bliss. Where does Mr. Dorsey say that it was filled up when he swore to it?

Mr. Ingersoll. I have not the page here, but I will give it to you. He swore that a dozen times, that he never swore to any blank affidavits.

Mr. Bliss. I undertake to say that it cannot be found in his evidence.

The Court. He testified that he received them both by mail, and that the second one was contained in a letter which said that there was an error in the first, and the second was sent for the purpose of correcting that error.

Mr. Ingersoll. There could not have been any error in the first unless it had been filled up. You cannot make an error in blank. On page 4838, Mr. Rerdell swore that he left this city on the 17th or 18th of April for the West, and then he adds, "I think on the 18th." Then the Government brought the hotel-keepers from Sydney, Nebraska, and from Denver, and from some other place, nearly as many witnesses as you had about the paper pulp. And they proved that Rerdell was beyond the Missouri River on the 21 st of April.

Now see what Mr. Bliss says on page 4914:

And yet, gentlemen, it is beyond dispute that as early as the 15th of April, 1879, Mr. Rerdell had left this city and gone West.

Why did he have it stated on the 15th, gentlemen? I will tell you. Oh, I tell you the human mind is a queer thing when it gets to working. John W. Dorsey was in Middlebury, Vermont; if a letter had been sent from here on the 15th, it certainly would have got up there before the 21st. So they wanted Rerdell out of this town as early as possible, so that it would make it highly improbable that it would take a letter from that time to the 21st to get to Middlebury. Now, the evidence is that he left here, he thinks, on the 18th. When did the letter get up there? I think the 20th or 21st.

Mr. Davidge. There was a Sunday intervened.

Mr. Ingersoll. They say, gentlemen, that there is no evidence that the blanks were filled, and yet John W. Dorsey swears that he received a letter stating that the first affidavit was erroneous, and the second one was sent to him to correct it. How would you correct one affidavit in blank by another affidavit in blank? How did he ever get those affidavits? I will tell you. We will have that little matter settled. Here is what Rerdell swears on page 2232:

Q. When did you return from that visit?--A. I returned about the 5th of May.

Q. State whether or not after you returned, you found blank affidavits among the papers connected with the business?--A. Yes, sir.

Q. How many did you find?--A. Well, there were several blank affidavits of John W. Dorsey's and several of John M. Peck's. I don't know how many there were.

Q. Were they blank affidavits?--A. Well, sir, they were blank affidavits similar to that one I sent, leaving out the number of men and animals in each case.

Q. Did they purport to have been sworn to?--A. Yes, sir.

Q. Were those affidavits among the papers when you left here to go West?--A. Some of them were. I think those of Peck's were here, probably four or five, or half a dozen, and I had made out, before I left here, a lot of them and sent them to John W. Dorsey. In the mean time, when I returned here, John W. Dorsey was here.

Mr. Rerdell swears that just before he went away he sent the affidavits to John W. Dorsey, and the only question between them is, were they in blank, or were they filled. John W. Dorsey swears that they were filled, because when he received the second he received a letter stating that there was an error in the first, and that error had been corrected in the second. The last nail in the coffin of that doctrine.

Mr. Ingersoll. [Resuming.] May it please the Court and gentlemen of the jury, before finishing what I am about to say in regard to the two affidavits of John W. Dorsey I will now call your attention to a statement made by Mr. Bliss, on page 304, in his opening speech to you:

Mr. Dorsey, while Senator, was, I think, chairman of the Committee on Post-Offices, and chairman of the subcommittee in charge of all the appropriations. That brought him, of course, directly in connection with the Post-Office Department and its officials, and gave him, as we all understand, necessarily, from the nature of the case, the possession of some exceptional power over officials of the department--greater power than a Senator would have when occupying som'-other position.

That statement was made to you, gentlemen, for the purpose of making you believe that while Senator Dorsey was a member of the Senate he was also chairman of the PostOffice Committee, and of the subcommittee having power over the appropriations, and that he not only took advantage of being a Senator, but by virtue of being chairman of that committee had exceptional power over the officials of the Post-Office Department. He was trying to convince you that, finding himself chairman of that committee, finding himself with this power, he thereupon entered into a conspiracy.

What evidence did the Government offer upon that point? Nothing. Did Mr. Bliss at that time suppose that Mr. Dorsey was chairman of that committee? The records were all here. The Government had plenty of agents to ascertain what the fact was; and yet, without knowing the facts, Mr. Bliss stated to this jury that he believed that; that Dorsey was chairman of the Post-Office Committee and of the sub-committee; wanting to poison your minds with the idea that Mr. Dorsey had taken advantage of having held that position. Now, the only evidence upon that point I find on page 3992, and that is the evidence of Mr. Dorsey himself. He is asked, Were you a member of the Post-Office Committee in 1877? No. In 1878? No. Or chairman of the subcommittee? Here is what he says, that he had not been on that Post-Office Committee "for nearly two years" prior to July 1, 1878. And yet an attorney representing the United States, representing the greatness and honor, the grandeur and the glory of fifty millions of people, for the purpose of poisoning your minds, there made that statement without knowing anything about it or without caring anything about it. I thought I would clear that point up the first thing this morning.

Now we will go on with the affidavits. You know these terrible affidavits that were sworn to in Vermont. It was stated that the first affidavit was wrong and that the second affidavit was substituted for the first. Now, if the second affidavit took more money out of the Treasury than the first affidavit you might say that there was a sinister motive, a dishonest motive in withdrawing the first and substituting the second, unless it appeared clearly that the second was true. But suppose it turns out that the substitution did not take an extra dollar from the United States? Then what motive do you say they had in doing it? Was it a motive to steal something, or was it a motive simply to be correct? What other motive could there have been?

Now, let us see. The first affidavit said three men and twelve animals; for the expedition, seven men and thirty-eight animals; and the proportion was exactly three hundred per cent--that is, three times as much. Now, then, they put in another affidavit. The second affidavit says two men and six animals. That makes eight. And on the expedited schedule six men and eighteen animals, which makes twenty-four; and three times eight are twenty-four; exactly the same. Three times fifteen are forty-five, and three times eight are twenty-four, and the amount of money drawn under the second affidavit is precisely the same that would have been drawn under the first affidavit.

Now, do you pretend to tell me that they took the trouble to withdraw the first affidavit and put in the second affidavit because they were trying to defraud somebody? On the contrary, they took that trouble because there was a mistake made in the first affidavit and they wanted to correct it, not for the purpose of getting more money, but for the purpose of getting a correct affidavit.

Mr. Crane (foreman of the jury). Was not that first affidavit interlined?

Mr. Ingersoll. No, sir.

If there had been any fraud about it, would they not have withdrawn the paper? They had a right to withdraw it. Yet they left the paper there; they left it there as a witness. Why? Because it did not prove anything against them; it only proved they desired to be correct.

My recollection is there were erasures in both affidavits. Let us find them. Before I get through I will endeavor to show you that every erasure and interlineation is an evidence of honesty instead of dishonesty. What are the numbers of these affidavits? [Examining the papers.] They are number 4 C and 5 C. Route 38134. I will read them.

Hon. Thomas J. Brady,

Second Assistant Postmaster-General:

Sir: The number of men and animals necessary to carry the mail on route 38134 on the present schedule is three men and twelve animals. The number necessary on a schedule of ten hours, seven times a week, is seven men and thirty-eight animals.

Respectfully,

JOHN W. DORSEY,

Subcontractor.

There does not appear to be any erasure or interlineation or anything else in that affidavit. Now, here is the other one:

Hon. Thomas J. Brady,

Second Assistant Postmaster-General:

Sir: The number of men and animals necessary to carry the mails on route 38134 on the present schedule, seven times a week, is two men and six animals. The number necessary on the schedule of ten hours, seven times a week, is six men and eighteen animals.

Respectfully,

JOHN W. DORSEY,

Subcontractor.

That is the second affidavit. The first was withdrawn. That is, they had permission to withdraw it, and in the second affidavit is the interlineation "seven times a week," isn't it? That is simply an interlineation, because there had been an omission to state the service that was then being performed or that was to be performed.

Mr. Crane (foreman of the jury). That has puzzled me a good deal, to understand the motive of those two affidavits.

Mr. Ingersoll. There certainly could not be any motive for putting in seven or three times a week, for this is simply to make it agree with the truth. If I give a note to a man for five hundred dollars and should happen to write in the word "hundred" and not the word "five," and then should take it back and write in the word "five" above it, that is not a sign of fraud.

Will somebody give me number 18 K; I just happened to see something there which may be worth something, or may not.

Now, gentlemen, here is a petition marked 2 A, that Rerdell swears that the words "schedule thirteen hours" were written in by Miner. In one of these papers I happened to see the word "schedule." Just notice the word "schedule" on this paper [exhibiting to the jury,] and then have the kindness to look at the word "schedule" in this other one [exhibiting to the jury,] and see whether you think one man wrote them both. Rerdell says he wrote the word "schedule" in that one [indicating,] and that Miner wrote the word "schedule" in this other one [indicating.]

Now, gentlemen, there is another charge against John W. Dorsey, on route 38145, and upon that route he made two affidavits. In the first affidavit he swore it would require three men and seven animals on the schedule as it then was, and that makes ten; that with the proposed schedule it would take eleven men and twenty-six animals, making thirty-seven. Now, if it took ten on the schedule as it then was, and thirty-seven on the proposed schedule, then the Government, which accepted that affidavit, would have to pay him three times and seven-tenths as much, which is the relation between ten and thirty-seven. The proportion then is three and seven-tenths. On the first affidavit his pay would have been twelve thousand nine hundred and thirty-five dollars and fifty-two cents a year.

Now I come to the second affidavit, which said that for the schedule as it then stood ijt would take twenty men and animals. On the proposed schedule he said it would take twelve men and forty-two animals, making fifty-four. Now, the ratio of the second affidavit was as twenty is to fifty-four. The ratio in the first affidavit was as ten is to thirty-seven, so that under the second affidavit, which they say was willful and corrupt perjury, he got eight thousand four hundred and fifty-seven dollars a year instead of twelve thousand nine hundred and thirty-five dollars and fifty-two cents. There were three years for the contract to run, and a little over. Under the first affidavit he would have received thirteen thousand nine hundred and ninety-two dollars and seventy-five cents during the contract term more than he took under the second. An affidavit was put in there that he thought was erroneous. He withdrew that affidavit and put in a second one. If he had allowed the first to remain and they had calculated the amount on the first he would have received thirteen thousand nine hundred and ninety-two dollars and seventy-five cents more than he did under the second affidavit. But he withdrew the first and put in the second, and took from the Treasury thirteen thousand nine hundred and ninety-two dollars and seventy-five cents less, and they charge that as a fraud, as an evidence of conspiracy and perjury. Now, that is all there is against John W. Dorsey.

On page 4090 John W. Dorsey swears that General Miles wanted to know how far apart he (Dorsey) was building the stations on the Tongue River and Bismarck route. Let us turn to page 4090. You know they were trying to prove that when John W. Dorsey went out there and built the ranches that he was going to build them about fifteen or seventeen miles apart, because it was claimed that they knew there was to be increase and expedition. You remember that. Now, when John W. Dorsey came upon the stand he swore that when they went out there they started to build those stations, I believe, somewhere in the neighborhood of thirty or thirty-five miles apart, as they could get water. Then he swore that when he went himself over, I think, to Miles City, where General Miles was, that General Miles asked him how far he was building his stations apart. John W. Dorsey told him. Then General Miles gave him his advice. Now, I want to read this to you. I asked him this question:

Q. When you got to Fort Keogh did you go to see General Miles?--A. Yes, sir.

Q. Did you have any conversation with him in regard to this route, with regard to the needs of the country for mail service; and, if so, what was it? A. I told him all about the business generally. He seemed to understand it pretty well. He wanted to know how far apart we were building stations. I told him. He wanted to know how often the mails would run, and I told him it would be weekly service, I thought. "We have been pent up here two or three years," he says, "with mails from eighteen to twenty days apart, reaching us by the way of Ogden and Bozeman." And he says, "We can get it in seven or eight days over this line." And now I would like to say that he did not say that he knew there would be an increase, but he said he should like to have it increased to three trips a week, or daily, and fifty hours' time. I told him there was no use to try to get it at all; that it could not be done at present; that nobody knew the distance through that country; that we expected to have it measured; that it was claimed by everybody that it was a good deal more than two hundred and fifty and probably over three hundred miles, and nobody would undertake to carry it. Said I, "If you extend it the contractor can throw up his contract and you will be without any mail." He said, "We are going to ask for what we want, but we will take what they will give us."