Chapter VI: Front Matter (6)

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

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

The Court. What evidence do you refer to?

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

The Court. That record is not in evidence.

Mr. Ingersoll. I thought that was in evidence.

The Court. No, sir.

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

The Court. It is not in evidence.

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

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

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

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

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

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

Let me read that again:

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

The second proposition is:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good!

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

I read on:

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

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

"and sentiments of brotherhood die away."

About that time you would be nice men:

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

That is not my doctrine. The higher you get in the scale of being, the grander, the nobler, and the tenderer you will become. Kindness is always an evidence of greatness. Malice is the property of small souls. Whoever allows the feeling of brotherhood to die in his heart becomes a wild beast. You know it and so do I:

"Not the king's crown, nor the deputed sword,
The marshal's truncheon, nor the judge's robe,
Become them with one-half so good a grace as mercy does."

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

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

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

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

I have spoken now, gentlemen, the last words that will be spoken in public for my clients, the last words that will be spoken in public for any of these defendants, the last words that will be heard in their favor until I hear from the lips of this foreman two eloquent words--_Not Guilty_. And now thanking the Court for many acts of personal kindness, and you, gentlemen of the jury, for your almost infinite patience, I leave my clients with all they have and with all they love and with all who love them in your hands.

OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.

Washington, D. C., Dec. 21, 1882.

MAY it please the Court and gentlemen of the jury: We consider that the right to be tried by jury is the right preservative of all other rights. The right to be tried by our peers, by men taken from the body of the county, by men whose minds have not been saturated with prejudice, by men who have no hatred, no malice to gratify, no revenge to wreak, no debts to pay, we consider an inestimable right, regarding the jury as the bulwark of civil liberty. Take that right from the defendants in any case and they are left at the mercy of power, at the mercy of prejudice. The experience of thousands of years, the experience of the English-speaking people, of the Anglo-Saxon people, the only people now upon the globe with a genius for law, is that the jury is a breastwork behind which an honest man is safe from the attack of an entire nation. We esteem it, I say, a privilege, a great and invaluable right, that we have you twelve men to stand between us and the prejudice of the hour. We believe that you will hear this case without passion, without hatred, and that you will decide it absolutely in accordance with the law and with the evidence. This is the tribunal absolutely supreme. In a case of this character, gentlemen, you are the judges of what is the law; you are the judges of what are the facts; you are the absolute judges of the worth of testimony; and you have not only the right, but it is your duty to utterly disregard the testimony of any man that you do not believe to be true. You, I say, are the exclusive judges, and for that reason we ask, we beg you, to hear all this testimony, to pay heed to every word, and then decide, not as somebody else desires, but as your judgment dictates, and as your conscience demands. Here before this jury all letters of Attorneys-General, all desires of Presidents, all popular clamor, all prejudice, no matter from what source, is turned simply to dust and ashes, and you are to regard them all simply as though they never had been.

There is one other thing. Some people are naturally suspicious. It is an infinitely mean trait in human nature. Suspicion is only another form of cowardice. The man who suspects constantly suspects because he is afraid. Whenever you find a man with a free, frank, generous, brave nature, you will find that man without suspicion. Suspicion is the soil in which prejudice grows, and prejudice is the upas tree in whose shade reason fails and justice dies. And allow me to say that no amount of suspicion amounts to evidence. No case is to be tried upon suspicion. No case is to be tried upon suspicious facts. No case is to be tried on scraps, and patches, and shreds, and ravelings. There must be evidence; there must be absolute, solid testimony. A case is tried according to the rocks of fact and not according to the clouds and fogs of suspicion. No juror has a right to make a decision until he feels his feet firmly fixed upon the bed-rock of truth.

So I say, gentlemen, that we are glad of the opportunity to make a statement of this case to you, and to tell you exactly the manner in which my clients became interested in what is known as the star-route service. You have to be guided in this case by the indictment. That is the star and compass of this trial. You cannot go outside of it. The evidence must be confined to the charges contained in that instrument. If you find us guilty of a conspiracy, it must be such a conspiracy as is set forth in that indictment. That indictment is the charter of your authority, and you have no right to find us guilty of anything in the world except that which is therein charged.

Now, let me give you an exceedingly brief statement of what we are here for. It is charged in that indictment that all these defendants, including one who has been discharged by a jury, who has been found not guilty, Mr. Turner, including another who is dead, Mr. Peck, conspired together for the purpose of defrauding the United States, and we are met at the threshold with the statement that conspiracy is very hard to prove. It is like any other offence, gentlemen. They say conspirators generally meet in secret. My reply to that is that people generally steal in secret, and the fact that they stole in secret was never deemed an excuse for not proving the offence before they were found guilty. You can see that this is precisely like any other offence in the world. Men when they commit crimes endeavor to get away from the public eye. They are in love with darkness. They do not carry torches in front of them. And it is so in every crime. But whether conspiracy is difficult to prove or not, it must be established before you can find the defendants guilty. That is a difficulty that the Government must overcome by testimony. The jury must not endeavor to overcome it by a verdict. And I say here to-day that the same rule of evidence applies to this case as to any other, and you must be satisfied by the testimony the Government will offer that these men conspired together; that they entered into an arrangement wherein the part of each was marked out, and that that arrangement was contrary to law; and that the object of that arrangement was to defraud the Government of the United States.

This indictment is kind enough to tell us the means that were employed to carry out that conspiracy. How did they find these means, gentlemen? They must have had some evidence on which they relied. If they had evidence enough to convince them, they must introduce that evidence here, and if that evidence establishes beyond a reasonable doubt that these men conspired, then you will find them guilty; otherwise not. The difficulty of establishing it is something with which you have nothing to do. How did they conspire? What were the means they had agreed to use? Let us see. Thomas J. Brady was the Second Assistant Postmaster-General. The Postmaster-General was not included in the scheme, consequently they must deceive him. The Sixth Auditor was not included in this conspiracy, and as by virtue of his office it was his duty to go over all of these accounts and pass upon the legality of each item, it was necessary to deceive him. According to the indictment Mr. Turner was a clerk in the department, and his part of the rascality was, on the jackets inclosing petitions, to make false statements in regard to the contents of the petitions inclosed. The object of that being that when the Second Assistant Postmaster-General, Mr. Brady, exhibited these jackets to the Postmaster-General, it being considered that he would not have time to read the petition, he would be misled by the false statements on the cover touching the contents.

The next step was for the contractors to get up false petitions; that is, petitions to be signed by persons who did not live along the route upon which the mail was to be carried. These petitions also to be forged; that is to say, the names of persons put there by another, or the names of fictitious persons written, when in fact no such persons existed.

The next thing to do was to write false and fraudulent letters; to induce others to write such letters; the next thing, to make false affidavits; and the next thing, to make false orders--those to be made by Mr. Brady--and these false orders were to have, as a false foundation, false petitions, false letters, false communications, false affidavits, and fraudulently written representations.

That is the indictment. That is the scheme said to have been entered into by my clients with all of these defendants, and the object being to defraud the Government of the United States. Now, in order to establish that scheme, it would be necessary for the Government to prove it. Not to assert it. Neither have you the right to infer it. No man can be inferred out of his liberty. No man can be inferred into the penitentiary. That is not the way to deprive a man of his reputation and of liberty--by inference. They must prove it. They must prove that the petitions were false. They must prove that the letters were fraudulent. They must prove that the orders rested upon those false and fraudulent petitions, letters, and affidavits; and they must prove that Mr. Brady knew them to be false.

It is also stated in this indictment that service was to be paid for when it was not performed; that service was discontinued and a month's extra pay allowed; that fines were imposed and afterwards set aside because the contractors agreed to pay fifty per cent, of such fines to General Brady. I will speak of them when I come to them.

Now, there is a clear statement. What part, then, did my clients play in this scheme? I will tell you. It is charged in the indictment that John M. Peck was in this scheme, and, although he is dead, whatever he did, I imagine, can be established by the Government. A man can be found guilty, I understand, of having entered into a conspiracy with another, although the other be dead, and the living man can be convicted.

Now, it is stated in the outset that my clients never had been engaged in carrying the mail and that is regarded as an exceedingly suspicious circumstance. A man has got to commence some time, if he ever goes into the business, and if this doctrine be true, the first bid that a man ever makes is evidence that he has entered into a conspiracy. Suppose, on the other hand, my clients have long been engaged in this business. What would the Government counsel then have said? They would have said, gentlemen, that they had been engaged for years in the business. They knew all the tricks that were played, and consequently they were the very persons to form a conspiracy. And that is the wonderful thing about suspicion. It changes every fact. It colors every word it reads and every paper at which it looks; and no matter what are the facts, the moment they are regarded with a suspicious mind they prove what the man suspects.

So, then, the first charge is that we had never been in the business, and consequently our going into the business must have been the result of a conspiracy. Gentlemen, if the doctrine be laid down that it is dangerous for a man to make a bid the result of that doctrine will be to double the expenses of the Government in carrying the mails. All that will be necessary, then, is for the old bidders to combine. They will know that there is no danger of any new men interfering with them, because the new men will be immediately indicted for conspiracy and the old men will have the field to themselves. You can see that this is infinitely absurd. There is only one step beyond such absurdity, and that is annihilation. No man can possess his faculties and get beyond that absurdity, if it is evidence of conspiracy, because it is the first thing.

As a matter of fact, however, John M. Peck had been engaged in the mail business. He was engaged in the business before 1874. He had been interested with others before that time. He was interested in several important routes from 1874 to 1878. It was in the fall of 1877 that he made arrangements to bid at the next letting. He was a business man. He was not an adventurer. He was secretary at that time of the Arkansas Central Railroad. He had been, I believe, for two sessions a member of the Ar-kansas Legislature. He was in good standing, solvent, and regarded as an honest man. In 1874 he was interested in the bids and, as I said, was engaged in carrying the mails at the time these contracts were entered into. He became acquainted with John W. Dorsey, I believe, in 1874. When he made up his mind to put in more bids for the letting of 1878 he went after John W. Dorsey, and they met together in the city of New York, I believe, in the month of September, and agreed that they would put in some bids for the letting of 1878. Peck was acquainted with John R. Miner and had been acquainted with him for a considerable time. Mr. Miner wanted to go into some other business than that in which he was then engaged, and those three men made up their minds to bid. Was there anything criminal in that? Nothing. Any men anywhere have the right to combine; the right to form a partnership; the right to come together for the purpose of making proposals for carrying the United States mails. Of course you will all admit that. Now, that is what they did. There was nothing criminal, nothing secret, nothing underhanded. Everything was above board, open, and in the daylight. There is no conspiracy yet, and we will show that.

John M. Peck had been troubled with a lung disease. He had gotten much better in September, and thought that he was almost well. Later in the fall he took a severe cold and got much worse, and from that difficulty, I believe, he never wholly recovered. He went, however, to Colorado and New Mexico, and finally died.

Now, let us see about John W. Dorsey. I believe that great pains have been taken to say that he was a tinsmith, which is a suspicious circumstance. Why? Is there any law against a tinsmith bidding to carry the mails? Is there any such provision in the statute? And yet that has been lugged forward as one of the evidences of a conspiracy in this case, and it has been lugged forward in a way to cast some disgrace upon this man--simply because he was a tinsmith. Well, do you know I have as much respect for a good tinsmith as for a good anything. What is the difference? Sometimes I have thought I had more respect for a good tinsmith than a poor professional man--sometimes. In this country of all others labor is held to be absolutely honorable, and I think a thousand times more of a man who works in the street and takes care of his wife and children than I do of somebody else who dresses well and lives on the labor of others, and then is impudent enough to endeavor to disgrace the source of his own bread. I think the man who eats the bread of idleness is under a certain obligation to speak well of labor. And yet we have the spectacle in this very court of the Attorney General of the United States endeavoring to cast a little stain upon this man. As a matter of fact, and I am almost sorry to say it, John W. Dorsey is not a tinsmith. I am almost sorry to make the admission. He happened to be a merchant, which is no more honorable but somewhat easier. He dealt in stoves and tinware. That, gentlemen, is his crime, and upon that rests the terrible suspicion that he is a conspirator. And I want to say more, that his reputation for honesty, his reputation for fair dealing, is as good as that of any other man in the State in which he resides. He made up his mind to cast his fortunes with John M. Peck and with John R. Miner and make some bids for carrying the mails of the United States. That is all there is about it.

There is, however, another suspicious circumstance, and that is that John W. Dorsey was the brother of Stephen W. Dorsey, and Stephen W. Dorsey at that time was a Senator of the United States. That is another suspicious circumstance. Whenever you find a man with a Senator for a brother, put him down as a conspirator. Another suspicious circumstance, John M. Peck was the brother-in law of S. W. Dorsey, absolutely married a sister of Mrs. Dorsey, and that was the beginning of this hellish conspiracy. It was suspicious. He intended to rob the Government when he was courting that girl.

Now, we come to another man, Mr. John R. Miner, and the suspicious thing about Miner is that he lives in Sandusky. But that of itself would be nothing. Dorsey lived there once, too. Now, do you not see how they moved to that town with the diabolical purpose of swindling this great Government? Miner was not in very good health--do you not see--pretended to be sick so that he could leave Sandusky; and in some way Miner and Dorsey were excellent friends--another suspicious circumstance; and for several years whenever John R. Miner visited Washington he laid the foundations of this conspiracy by always stopping at the house of Senator Dorsey--another suspicious thing. And do you not recollect the delight, the abandon with which Mr. Bliss emphasized the word house, when he said that they met at Dorsey's house? I had a great notion to get up and plead guilty on that emphasis.. Miner came here. He and Peck were acquainted; and wherever you find four men acquainted, gentlemen, look out, there is trouble. When Miner came here he went directly to the house of Senator Dorsey. I admit it with all the damning consequences that flow from that admission. He did not even go to a hotel. He went directly to Dorsey's house. I want that in all your minds, because the prosecution regards that as one of the foundation facts in this conspiracy, and while admitting it, do you not see how much I save them in the way of evidence.

And there is another damning fact connected with this case. Dorsey in the top of his house had set apart one room for an office. It was up two or three pair of stairs. I think he established his office there to shield himself a little from the people who usually call on a Senator in the city of Washington. But he found that he put himself to more trouble than he did them, so he moved his office to the lower part of the building, and when John Miner got to that house he occupied a room right next to that office upstairs, and sometimes he went in there and wrote. Now, you see, gentlemen, how that conspiracy was planted; how the branches sprang out of the windows of that room and covered all the territory of the United States. I might as well admit that frightful fact. I do not know that they know that, but I might as well admit it, because we want the worst to come first. Before Miner came here he wrote a letter. There is another place to put a pin of suspicion. He wrote a letter to S. W. Dorsey; that is, it was Miner or Peck, I have forgotten which, and may be that very forgetfulness of mine is another evidence of conspiracy. A letter was written either by Miner or Peck to Stephen W. Dorsey, saying that they were going to bid; that Peck was not well enough to be here at that particular time, and would he be kind enough to hand that letter to some man in whom he had confidence and let that man get such information as he could with regard to the routes upon which they expected to bid--all these Western star routes.

Now, what did S. W. Dorsey do? There was a man in town by the name of Boone. He sent for Mr. Boone, and I believe that Mr. Boone went to Mr. Dorsey's house, and that Dorsey handed him that letter in his house. And what was the object of the letter? For Boone to get information regarding these routes. Well, now, what did Boone do? Boone made up a circular which he sent to all the postmasters, or most of them, through Oregon, Washington Territory, Colorado, New Mexico, Nevada, California, Kansas, Nebraska; that is to say, the Western States and Territories; and in this circular a certain number of questions were propounded to each postmaster. First, the distance from that post-office to the next, and from the next to the next, and so through the route. Second, the condition of the roads, whether hilly or level. Third, about the snows in winter and the floods in spring. Fourth, the cost of hay and corn and oats. Fifth, the wages that would have to be paid to the man or men; and it may be some other questions in addition. Now, these circulars were sent by Boone to all the postmasters in consequence of a letter that he received in Dorsey's house. What for? So that by the time that Miner and Peck and John W. Dorsey came they could sit down and bid intelligently upon these routes; so that they would have some information that would guide them; in other words, that they would not be compelled to bid at random.

Now, we will show, gentlemen, that that was done, and if at that time there had been a conspiracy, certainly such information was of no particular value. Now, that is what Mr. Boone did, and I believe that is about all he did at that time. There is no conspiracy yet, no fraud yet. It is utterly impossible to defraud the Government by getting information from postmasters as to the condition of the roads, and as to the distance from one post-office to another. There is no fraud yet, no conspiracy up to this point. In a little while Mr. Miner and Mr. John W. Dorsey appeared. Ah, but they say Stephen W. Dorsey was at that time a Senator of the United States Yes, he was, and I believe he remained Senator until the 4th of March, 1879. When his brother came we will show to you that Stephen W. Dorsey said to his brother, "I would rather you would not bid; I would much rather that you would keep out of this business, because I am a Senator and somebody may find fault. Somebody may suspect, and consequently I would much rather you would get out of the business." John W. Dorsey did not agree with him. He said he did not see how that could interfere with him, and that he believed he could do well in that business, and the consequence was he went on. There is nothing suspicious so far as I can see in that. That is what we will show.

This man being a member of the United States Senate did what he did out of pure friendship; did what he did for his brother, what he did for Mr. Peck, and what he did for Mr.

Miner from pure friendship. I know it is very difficult for some people to imagine that any man does anything for friendship. They put behind every decent action the crawling snake of a mean and selfish motive. My opinion of human nature is somewhat different. I have known thousands and thousands of men capable of disinterested actions, thousands of men that would help a brother, a brother-in-law, or a friend, and help them to the extent of their fortune. I have known such men and I never supposed such acts could be tortured into evidence of meanness.