Chapter VII: Front Matter (7)

The first charge against Stephen W. Dorsey is that he sent some bonds and proposals for bids to a postmaster by the name of Clendenning, in the State of Arkansas. The trouble with these bonds, as I understand it, was that the amount of the bid was not put in the blank in the printed proposal. It is claimed by the prosecution that according to the law the postmaster has no right to certify to the solvency of the security until that blank is filled. I want to explain this so that you will understand it. I think I have one of the bonds and proposals here. I would like to have the Court see exactly the scope of it. [Exhibiting blank form of proposal and bond.] The proposal is that the undersigned,-------- whose post-office address is--------, of the county of--------, and State of--------, proposes to carry the mails of the United States from July 1, such a date, to June 30 of such a date, being four years, between such and such a place, under the advertisement of the Postmaster-General, for the sum of--------dollars per annum. Now, if I understand the matter of the Clendenning bonds, they were filled up with the exception of the blank in which the amount of the bid was to be written. That is the charge, as I understand it. Whenever a man makes a proposal to carry the mail for four years on a certain route, that proposal must be accompanied with a bond in a certain amount, and certain men must sign that bond as sureties, and then a certain postmaster must certify to the solvency of the sureties, the sureties having made oath as to the value of their property. Now, understand that perfectly. It is not the bond that a man gives after his bid has been accepted. It is a bond that he gives to show that his bid is in good faith. That bond is conditioned that if the contract is awarded to him he will give another and sufficient bond not only, but I believe it is also conditioned that he will carry the mail. The charge is--and let us get at it just exactly--that some bonds were sent to a man by the name of Clendenning, who was a postmaster, and this blank was not filled. Let me tell you why. It was the custom--and I want your Honor to understand that perfectly, because so much was made of it before in talk--to leave that blank unfilled. It is the blank for the amount of the bid. In the advertisement of the Government the penalty of the bond is stated, so that the amount of the bid has nothing to do with the penalty in the bond. Understand me now. If the bond was for ten thousand dollars, it was because that amount had been put in the advertisement by the Government. It did not depend upon the amount of the bid. It had nothing to do with it. The amount of the bid threw no light upon the amount of the bond. The penalty of the bond was fixed by the Government before the bid was made and inserted in the advertisement published by the Government. Why then did they not wish to fill up this blank? This blank, gentlemen, told the amount of the bid. Where there are many bidders, and an important route, if you let the postmaster who has to certify to the sureties know the amount of the bid he might sell you. He could go and tell somebody else "I have certified to all the sureties on this route, and the lowest bid up to this time is fifteen thousand dollars," and the person whom he told might go and bid fourteen thousand nine, hundred and ninety-nine dollars and take the route. Ah, but they say the postmaster is not allowed to tell the amount of the bid. No. What was the penalty if he did? He would lose his office. Now, here is a postmaster holding an office worth, perhaps, a hundred dollars a century, or, perhaps, fifty dollars a year, and by selling information as to one bid he might make ten thousand dollars. I do not know what he could have made. Certainly the bidders did not feel like trusting the secret of their bids to the postmaster who certified to the sureties. As a consequence the bond was filled up with the penalty according to the advertisement, but the blank in which the amount of the bid was to be written was not filled, because they wanted the postmaster's mind left a blank upon that subject. In other words, that blank was left unfilled, not to defraud the Government, but to prevent other people from defrauding the bidder. That is all there is about it. That is everything about the Cleudenning bonds. But it may be well enough to state, gentlemen, that those Clendenning bonds were never used on a solitary route in this indictment, and I believe never anywhere; that no contract was ever awarded upon any one of those proposals. The only rascality in the transaction, gentlemen, was the failure to fill a blank; and the reason they failed to fill that blank was because they did not want the postmaster to know the amount of the bid. Let us come right down to practical matters and things. For instance, suppose one of this jury is in the stone-cutting business, and the Government should issue an advertisement calling for proposals to furnish dressed granite, and specify that every man who bid must file a bond in a penalty of five thousand dollars to carry out his contract, and that that bond must be approved by the postmaster here. Suppose it was a contract of great proportions. Would the man who bid be willing that the amount of the bid should be inserted in the blank to be passed upon by the postmaster? No. Why? He would not want the postmaster to know it. Who else would he not want to know it? He would not want his sureties to know it. A man might be standing by while the bond was being approved and read the amount of the bid. The bidder would be afraid somebody would get at those figures and go and underbid him. Every man of common, ordinary sense knows that. If you made a bid you would not let your sureties know the amount and you would not give the amount to the keeping of a postmaster, neither would you leave it to chance or accident. You would say, "I will leave the amount a blank. I will keep it in my mind, and when the paper comes into my hands for the last time I will write, it in there and fold it and seal it and give it to the Government." That is what every sensible and prudent man would do, and what has been done for years. And yet that act is brought forward as something to stain the reputation of an honest man; something to strike down as with a sword the character of an ex-Senator. They even say he wrote upon paper that had the mark of the United States Senate Chamber upon it. That is only another evidence that there was nothing wrong in it. It was stated, too, in the opening of this case, that an affidavit was made upon paper that bore the mark of the National Hotel of this city. Think of such a damning circumstance as that! Well, gentlemen, so much for the Clendenning bonds. We will prove that the blank was left unfilled on purpose, not to defraud the Government, but to prevent other people from defrauding us. Let me say in that connection that there was an investigation in 1878 upon this very question. The Clendenning bonds were brought up. Testimony was heard, and we will be able to show you the facts that I have stated. Then, if I am right, gentlemen, there is nothing in it; and when the opening statement was made the Government knew, just as well as I know, that there was nothing in it; at least they ought to have known it. Probably it is not proper for me to say they knew it, because men get so prejudiced, so warped, so twisted that it is hard to tell what they know or what they do not know. But that has nothing to do with this case and, in my judgment, will never be admitted by the Court. If it is admitted by the Court we will establish exactly what I have told you. So much for the Clendenning bonds. Do not forget that the penalty of the bond was put in by the Government.

Do not forget that the amount of the bid was left blank simply to protect ourselves. Do not forget another thing: That leaving that blank unfilled could not by any possible peradventure injure the Government. The bond was just as good with that proposal unfilled at the time the sureties signed it as though it had been filled. It had to be filled before it was finally given to the Government or else there would be no bid. If there was no bid, then no obligation rested upon the sureties. Certainly they could not be harmed, and if there was no bid certainly the Government could not be harmed; unless the bid should have happened to be lower than any received; and yet out of that nothing, out of that one bramble, a forest of rascality has been manufactured. Gentlemen, that is the result of suspicion when it is hoed by malice and watered by hatred.

The next suspicious circumstance, gentlemen, is that we bid. That is a suspicious circumstance. Miner bid, Peck bid, and John W. Dorsey bid. And the suspicious circumstance is that they did not bid against each other. Why should they? I was at an auction the other day and unconsciously bid against myself, but I did not think it any evidence of rascality on my part; I thought it tended to show that I was not attending strictly to business, and yet it is brought forward as a suspicious circumstance that these gentlemen did not bid against themselves. Another suspicious circumstance is that they bid in their individual names. That is the way all the bidding is done, I believe. I believe every bond has to be signed by the individuals and not by any partnership. That I believe to be one of the regulations of the department. Well, there is no rascality yet, as far as I can see. Now, when the contract is accepted--I will come to the bidding question again--the contractor has to give a bond. One of those bonds will be put in evidence in this case. You will see what the contractor is bound to do. Then it can be subcontracted. You will find that the contract given by the subcontractor to the department is not a hundredth part as severe as the bond the contractor gives to the Government. In the contract that we give to the Government certain things are provided. You will find that a copy of it will be intro duced. The contractor is left to the mercy of discretion-I believe that is the word--of the Postmaster-General You will find that if he fails to carry the mail one trip, no matter by what he may be prevented, by flood or storm or fire, he is not to be paid for it. Although he is there ready with his men and horses, if he is prevented by the elements he has no pay. If the Postmaster-General thinks he ought to have carried it when he did not, he can take from his pay three times the value of the trip. He can take from him one quarter's pay. He reserves in his own breast the power to declare that contract null and void, because in his judgment the contractor has not done his duty. Everything is left to him. The man who signs that contract gives a mortgage on his life, liberty, and pursuit of happiness. He has no redress. I simply call your attention to this to show you the obligation that a contractor takes upon himself. We will show you that he is under obligation to discharge any carrier that the Government does not like; that he has no right to carry any package or any letter that can go by mail; that he is to forfeit a trip when it is not run, or not to exceed three times the pay of a trip; that he is to forfeit one-quarter of a trip if the running time is so far behind that he fails to make connection with the next mail; that if he violates any of these provisions he forfeits a penalty equal to a quarter's pay, or if he violates any other provision touching the carriage of the mail and the time and manner thereof, without a satisfactory explanation in due time to the Postmaster-General, he can visit a penalty in his discretion, and the forfeitures may be increased in the penalty to a higher amount, in the discretion of the Postmaster-General, according to the nature or frequency of the failure and the importance of the mail. Provided that, except as specified, and except as provided by law, no penalty shall exceed three times the pay of a trip in each case.

It is also agreed by the said contractor and his sureties that the Postmaster-General may annul the contract for repeated failures; for violating the postal laws; for disobeying the instructions of the Post-Office Department; for refusing to discharge a carrier when required by the department; for transmitting commercial intelligence or matter which should go by mail; for transporting persons so engaged as aforesaid; whenever the contractor shall become a postmaster, &c.

It is further stipulated and agreed that such annulment shall not impair the right to claim damages from said contractor and his sureties under this contract; but such damages may, for the purpose of set-off or counter-claim in the settlement of any claim of said contractor or his sureties against the United States, whether arising under this contract or otherwise, be assessed and liquidated by the Auditor of the Treasury for the Post-Office Department.

And it is further stipulated and agreed by the said contractor and his sureties that the contract may, in the discretion of the Postmaster-General, be continued in force beyond its express terms for a period not exceeding six months. You will see, gentlemen, how perfectly, how absolutely, the contractor is in the power of the department. The Government enforces its contracts. No matter how many years may elapse they are still after the sureties and are still after the principal. Nothing relieves a man but, death. Only a little while ago a case was decided in the Supreme Court of which I will speak to you. An importer of sugar gave the importers' bond to pay the duty upon that sugar. By the custom of trade, sugar is sold in bond.

The importer sold to a third person and the third person went to get the sugar. By law he could only take it after paying the tax; and yet one of the officers of the Government, contrary to law, allowed him to take the sugar without paying the tax. The Supreme Court has just held that the original importer and his sureties are liable to pay that tax--the man who took the sugar out having become bankrupt--although the sugar was given to the second party simply by a violation of law, and that law was violated by one of the officers of the custom-house without the knowledge or consent of the original importer. I tell you, gentlemen, whenever a man gives a bond to this Government the Government stays with him. The Government does not die; the Government does not get tired; the Government does not get weary. The Government can afford to wait, and the poor man with the bond hanging over him cannot go into business, cannot get credit, but just lingers out a life of expectation, of hope, and of disappointment. I trust none of you will ever sign a bond to the Government. There is another thing, gentlemen. If you bid on a hundred routes and they are given to you and you put the service on ninety-nine of the routes and carry it in accordance with the contract, and yet fail on the hundredth route, the Postmaster-General has a right to declare you a failing contractor. A failing contractor on the hundredth route? Yes. On any more? Yes; on every one. And whoever is declared a failing contractor on one route is by virtue of that declaration a failing contractor on all. They are all taken from him. So that when a man bids for more than one route, for instance, a hundred or a thousand, and gets them and carries them all absolutely according to his contract but one, he can be declared a failing contractor on all. What does that mean? It means not simply ruin to him, but ruin to every one of his sureties, unless they are in a condition to go on and carry the mail. I want you to understand something of the obligation of a contractor with the Government of the United States.

Now, I come to the bidding. These bids were made with a full understanding of the obligation of a bidder. Messrs. Miner, Peck, and John W. Dorsey bid, I believe, on about twelve hundred routes. You see you are in great luck in bidding if you get one route in fifty that you bid upon. In the first place, there are about ten thousand star routes. I do not know that it is too much to say that the number of bids runs up into the hundreds of thousands; somewhere in that neighborhood. Hundreds of men often bid on one route. Consequently, nobody who bids expects to get more than a few of the routes for which they bid. Now, is there the slightest evidence in the statement of the Government as to the frauds in this bidding? Let me tell you how some frauds have been committed. Suppose, for instance, this was a fraudulent business, and Miner, Peck, and Dorsey were bidding. Let me explain it to you. I want you to know it. All there is in this case is simply to have you understand it. That is all there is. And if you do not agree with me when we get through the case I shall simply think that you have not comprehended it. Say that four men bid on the same route, one man four thousand dol-ars, another man three thousand dollars, another man two thousand dollars, and another man one thousand dollars.

Now, the man who bids one thousand dollars is of no account, has not a dollar in the world, and so when the bid is given to him he does not want it. He is what they call a straw man. The law provides then that the next man may have it. The law does not provide that he must take it. He may have it if he wants to, but you cannot force him to take it, because he is not the lowest bidder. He is the two thousand dollar man. He is another straw gentleman. He does not want it. Then the Government offers it to the next man at three thousand dollars. He is another chap made of hay. He says he doesn't want it. Understand the Government cannot force these straw and hay men to take it. Then they go to the fourth fellow, who bid four thousand dollars. It is a good thing at four thousand, and he says, "Yes; I will take it." That is what they call fraudulent bidding. If you had found Dorsey and Miner and Peck bidding on the same route and one of them failing and another one taking it, you would not only have suspected fraud, but you would have known it. Now, if it is a badge of fraud for them to bid upon the same route and apparently against each other, I will ask you if it is not a badge of fair dealing that they were not found bidding against each other. They bid on about twelve hundred routes, and much to their astonishment they got one hundred and thirty-four contracts.

You have heard here a great deal of talk about the number of men and horses. We will show you all about it. Men differ upon this subject. If men did not differ upon it at all these bids would be alike. Instead of being a dozen bids, all different, and differing sometimes as much as ten, twenty, thirty, forty, or a hundred dollars or more, they would bid the same. If they all agreed on the number of horses and men it would take, and about what it would cost, they would bid about alike, wouldn't they? But when they are bidding they honestly differ. One man says it would take twenty horses, and another says "no, it will take forty." Do you not know that the number of horses depends a great deal upon the kind of man who makes the estimate. Here is a man who is hard and brutal, and he says a horse can do so much work. He says it is cheaper to buy him and wear him out than it is to feed him decently. You have known men who were perfectly willing to make fortunes out of a horse's agony, and out of animal pain. There are hundreds of them in the world. Now, take it on horse railroads, and with freighters, and teamsters. Whenever you find a mean, infamous man, if he cannot whip his wife, he will take his spite out on his horse. If a man is a good, broad, generous, free fellow he will say, "I don't want to work that horse to death; I think it will take four horses. I am going to keep my horses fat, and I am going to treat them as a gentleman should." Another man, a wretch, will come up and swear it would not take more than fifteen horses. When his horses are through the service you will simply see a pile of bones wrapped in a lamentable hide. You understand that.

Well, these men made twelve hundred bids and got one hundred and thirty-four contracts. Ah, but they say, here is another badge of fraud, another badge. Ah, they bid on small routes, on cheap routes, on routes where the mail was carried infrequently and on slow time. If it is a badge of fraud to bid on such routes the Government can never let out any more. Most of these routes were cheap routes. Now, I owe it to you to give you the reason for this. We will prove in the first place that these men were not rich men. If they had been very rich they probably would not have gone into the business at all. They would have gone into that perfectly respectable business of buying Government bonds. They would have bought Government bonds and made other fellows pay the interest, and twice a year they would have formed a partnership with a pair of shears, and thus in the sweat of their faces they would clip their coupons. They bid on poor routes. Why? They were poor, comparatively speaking.

They had not the money to stock the expensive routes where four horse coaches were run. They preferred to take the cheaper lines. Why? Because they could stock them. They would have been able to have stocked the routes if they had only obtained the number they expected. But as I told you, they got many more routes than they expected. Was that for the benefit of the Government? How did these men come to bid so cheaply on some of these routes? I will tell you. Because they had the information, because they had received the facts from all the postmasters on the routes, and consequently they made a good close calculation, and the result was that their bids were below others, and the fact that their bids were accepted saved the Government hundreds of thousands of dollars. When they found themselves with all these contracts, the first hard work they did was to give away all they could. That was the first hard work. They had contracts, not for sale, but just to give, and they succeeded in giving away several of them. I believe they sold two of these children of conspiracy for the enormous sum of one hundred dollars each. That was the highest sale they made at that time. Afterwards another route was sold which I will explain when I come to it. Now there is no rascality yet. No fraud yet. No conspiracy yet. Well, they then went to work to get their bonds. But first let me say that there was another reason for bidding on cheap routes. Whenever the bid is above five thousand dollars, then the man who bids must, at the time he bids, put up a check for five per cent, of the amount.

A check certified by a national bank. For instance, if it all comes to a hundred thousand dollars he has got to put in a certified check for five thousand dollars. Even in the little bids we made we had to deposit with the Government some twenty-six or twenty-eight thousand dollars, and I do not know but more, in cash, or what is the same as cash, for the bank certifies that the money is there. That is another reason they bid on smaller routes. What is the next? The Government asks such frightful bonds, such terrible amounts, that a man must be almost a millionaire, or else there must be a confidence in him that is universal, before he can give these bonds.

There was one route at this very bidding where they had to give bonds for six hundred and forty thousand dollars, and the sureties upon these bonds under oath had to testify that they had real estate to the value of six hundred and forty thousand dollars, exclusive of all debts, dues, and demands. So there was another reason for bidding upon small routes. Where the amount was under five thousand dollars no certified check had to be deposited, and the smaller the route of course the smaller the bond.

Now, I have endeavored to show you the reasons that we bid upon these routes instead of upon the larger ones. The reasons as stated by the Government are that we took these routes where the service was once a week, so that we could have the service increased; that we took those routes where the time was long so that we could have it shortened, that is to say, expedited. But I tell you that when a perfectly good reason lies at the very threshold of the question you have no right to go further. The reasons I have given to you it seems to me are perfect and you need no more.

Now, then, we got, I say, about one hundred and thirty-four routes. Of these, one hundred and fifteen are without complaint. There is not a word about the other one hundred and fifteen. Recollect it. We got one hundred and thirty-four routes. In this indictment are nineteen; one hundred and fifteen appear to be perfectly satisfactory to this great Government. There is not a word as to those routes, not one word, I say, as to one hundred and fifteen routes, and they want you to believe that these defendants deliberately selected nineteen routes out of one hundred and thirty-four about which to make a conspiracy, and that they left one hundred and fifteen to go honestly along, but picked out nineteen for the purpose of defrauding the Government.

Now, then, when these gentlemen found themselves with these routes, the next thing was to put the stock and the carriers upon them. As I told you, a good many more had been awarded to them than they anticipated. They had not the money. So, in putting the stock upon several of the routes, they found it necessary to borrow some money, and here comes another suspicious circumstance. Mr. Miner borrowed some money of Stephen W. Dorsey, and everybody is astonished that any man would be mean enough to loan money to another; that any man could so far forget the dignity of the office that he held as to help a friend. Their idea of a Senator is of such a lofty and dignified character that he ceases to take interest in anything except national affairs; that after he has been sworn in he forgets all the relationships and friendships of the world, and the idea of asking him to loan money seems, to the prosecution, to be the height of unconstitutionality. But as a matter of fact he did loan some money, and we will show you how that loan was treated, showing you that at that time he had not the slightest interest in it. He loaned some money, and kept loaning money until, I believe, he had given them about sixteen thousand dollars to get these routes on. Then he, being on his way to New Mexico, met in the city of Saint Louis John R. Miner, who at that time was coming back, I think, from Montana or Dakota, where he had been putting stock on a route. Miner saw Dorsey in Saint Louis, and said to him, "We have got to have a little more money, and I want you to indorse my note or to loan me your note and I can get it discounted in the German-American Bank in Washington." Finally, Dorsey said to him, "You have already obtained from me about sixteen thousand dollars: I will give you the note you ask, or indorse your note upon one condition, and that is that you shall give me orders"--what are called Post-Office drafts--"not only for the amount of this note, but for the amount of the sixteen thousand dollars." We shall insist, gentlemen, that that evidence shows exactly our position, and that you are entitled not only to draw from it, but that you must draw from it the inference, the fact, that we had no interest in those routes. Finally that was agreed to.

Now, understand it, at that time a contractor with the Government who had agreed to carry the mail for a certain time could give what are called post-office drafts or orders--you know, orders on his quarterly pay--and they would be taken to the proper officer in the Post-Office Department and they would be accepted, not for the full amount, understand, but for any amount that might be due that contractor. For instance, he might fail to carry the mail, he might be fined, and consequently the amount of that draft might not be there, so that the only thing the Post-Office Department agreed to do was to pay upon that order or draft anything that was due to the contractor. That was done at that time, and why? Because there was no way other than that to secure these advances. So he gave these drafts. He came on to Washington. The note was put into the German-American Bank. The orders on the Post-Office Department were filed with it, and the money advanced by the bank and charged to Stephen W. Dorsey. That made, then, at that time about twenty-five thousand dollars that Dorsey had advanced. That being done he went on about his business.

Now, I will show you what happened after that. I think the note in the German-American Bank was nine thousand dollars or ten thousand dollars, I have forgotten which. Dorsey then went on to New Mexico from Saint Louis, and remained there, I believe, until December, 1878. Now, I want you to understand this, because here turns a very important question, and a very important point. Now, you recollect the information about these bids was collected in the autumn and winter of 1877. The last bid was to be put in, I think, February 28, 1878. Now, this was in the August of that year, 1878. Still being pressed for money, Miner, Peck, and J. W. Dorsey were in danger of being declared failing contractors. Now, recollect it. We will show that at that time Brady, who, according to the Government, was a co-conspirator, threatened to declare Dorsey, Peck, and Miner failing contractors, and if he had declared them failing contractors even on one route that was the end of all. At that time Miner and John W. Dorsey sought out Mr. Harvey M. Vaile, and let me say that is the first appearance of Mr. Vaile in these contracts. He knew nothing about the bidding, was not in Dorsey's house, knew nothing about the letting. That is his first appearance in these contracts, August, 1878. Now let us see what he did. He was a man of means. He had some money; had been, I believe, for a long time engaged in carrying the mails; understood the business. They will tell you that is a suspicious circumstance as to him, and that the fact that that was John Dorsey's first experience is a suspicious circumstance as to him. Really to avoid suspicion you would have to have a man that had been in it a long time but never had anything to do with it. They got him, and offered what? To give him a third interest in this entire business. I think that was it. They were to give him a third interest in this entire business, a business that had been born of conspiracy, a business that had as a silent partner the man who fixed the amount of money to be paid. Think of that. According to the statement of the Government, here was a conspiracy full-fledged, perfect in its every part, flanked by the Second Assistant Postmaster-General, buttressed by all the clerks they desired, and yet that conspiracy got so hard up that in August, 1878, nine or ten months after its creation, it was willing to give a third to anybody who would advance a little money to carry the thing on.

So Mr. Vaile came in. Now, then, they had to secure Vaile against any loss, and it seems that on July 1, I believe, of that year, the law allowed the subcontract to be filed. It was a little while before that that a law had been passed for the protection of subcontractors. That was all explained to you yesterday. You know it is something like a mechanic's lien; that if the subcontractor would only file his subcontract in the Post-Office Department and let that department know the terms of it they would not pay the original contractor until this subcontractor was paid. Now, that law had gone into effect a little while before August, 1878, and the effect of that law, if anybody filed a subcontract on these routes, was to cut out all those post-office orders that Miner had given to secure Dorsey. You understand me now, do you not? It was when he met him in Saint Louis that it was agreed that these post-office orders were to be given and filed with the German-American Bank in this city. Now, then, the law passed for the protection of subcontractors, and subsequently the filing of subcontracts on those very routes, would render those post-office orders absolutely worthless. Very well. When they made the contract with Mr. Vaile they agreed to file the subcontracts with the department to protect Vaile and that rendered S. W. Dorsey's security absolutely nothing. That cut out all other claims, drafts, and everything else, and at that time Mr. Miner was fully authorized by power of attorney from J. W. Dorsey and from John M. Peck, who was at that time in New Mexico, to make this transfer to Vaile.

Now, see where we are on August 16, 1878. On Dorsey's return in December, 1878--he had not been here from that time, and do you not see he had nothing to do with it--he found that these subcontracts had been filed. He found that the note in the German-American Bank had been protested, and he found that his collateral security was not worth a dollar, that it was all gone. Thereupon he demanded a settlement. The matter drifted along for a little while, and a settlement was made with the bank; and Mr. Vaile, holding the subcontract, undertook to pay that Dorsey note, and he did pay it. He took it up, and gave, I believe, his own instead, and that was finally paid. But the money due Dorsey, the sixteen thousand dollars that at that time amounted to something more by virtue of interest, was not provided for. The money that had been expended by John W. Dorsey was not provided for. The money expended by Peck was not provided for. Now, I want you to see exactly how that matter stood at that time. We have got it up to that time and here it stands, and the chief conspirator out sixteen thousand dollars and without any interest in one of the routes. There is where he was at that time, and that is what we will show. The brother of the chief conspirator ten thousand dollars out, and not the interest of one cent in any route. The brother-in-law of the conspirator about ten thousand dollars out, and not a cent in. That was the condition of this conspiracy at this time, and when Vaile took these routes Brady telegraphed him and asked him, "What routes of Miner, Dorsey, and Peck, are you going to put the stock on? This thing can be continued no longer. The stock must go on." We will show it. Now, having got to that point, we will take another step. There is nothing like understanding things as we go along.

Now, from the time Mr. Vaile took the route, to the settlement in 1879, to which I will call your attention in a little while, Mr. Vaile had the absolute control. Neither Peck nor S. W. Dorsey had the slightest thing to do with one of those routes until the final settlement, and I say to these gentlemen of the prosecution now, that in that time they can find no line, no word from Stephen W. Dorsey upon the subject. They cannot find that he wrote a word to any official, that he sent a petition to anybody, that he wrote a letter to any human being upon the subject, or that he took any more interest in it than in the ashes of Sodom and Gomorrah. It went right along.

Now, then, up to this time, Stephen W. Dorsey had made nothing. He was only out about sixteen thousand dollars or eighteen thousand dollars. John W. Dorsey was in the same healthy financial condition. John M. Peck had reaped the same rich harvest of ten thousand dollars lost, and all the things had been turned over to Mr. Vaile; John W. Dorsey put out--left out--with nothing to show. That is the first chapter in this conspiracy. [Resuming.]

I believe when I stopped, the principal conspirators were substantially "broke." The head and front was out sixteen or eighteen thousand dollars, and the other two ten thousand dollars each. Now, a contract was made, and I propose to prove that contract in the course of this trial. When that contract comes to be shown, it will be about this: That, on the 16th day of August, 1878, H. M. Vaile, John R. Miner, John M. Peck, and John W. Dorsey made an agreement That agreement made a partnership, and we will show that a partnership was formed by and between Miner, Vaile, Peck, and Dorsey on the 16th day of August, 1878. We will show by the articles of that partnership that H. M. Vaile was made treasurer, and that all the other partners agreed, by suitable powers of attorney, to put the collection of all the money from the Government absolutely in his hands. When he got the money he agreed, first, to pay all the subcontractors; second, the expenses necessary and incident to the proper conduct of the business; third, to divide the profits remain-, ing among the parties as provided in that contract. The profits were to 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 Territory, Oregon, Nevada, and California, to H. M. Vaile, one-third; to John R. Miner, one-third, and to John M. Peck, one-third. Before any division of profits was to be made, the sums which before that time had been advanced were to be paid to the parties so advancing such sums; and if the profits were not sufficient to repay the entire sums so advanced, they were to be paid from time to time during the existence of the life of these contracts. Now, you will find that such contract was made on the 16th day of August, 1878, and that Mr. H. M. Vaile then took absolute and complete control of every one of these routes, and the only thing they asked of him was to repay the money that had been advanced, which, as you know, and as I have told you, was the sixteen or eighteen thousand dollars by S. W. Dorsey, the ten thousand dollars by Peck, and about the same amount by John W. Dorsey. Now that is understood. At that time certain papers were executed by all the parties. I told you that a law had been passed by virtue of which a man could make a subcontract and have that subcontract put on file, and thereupon he could be protected by the Government. Now, when H. M. Vaile took these routes, and they were to be managed by him, subcontracts were made by the other parties to Mr. Vaile, and Mr. Vaile put those subcontracts on record. Now you can see that they gave him the absolute and entire control of every route. That was the condition. I have explained to you the the liability of a contractor. He cannot put it off on a subcontractor. He is the man primarily responsible to the Government during the life of that contract, and for six months thereafter. Whenever a contract is awarded to any person, he is regarded as the original contractor, and his name is kept upon the books of the department during the life of that contract. No matter how many subcontracts may be made, he is looked to primarily if there is a failure of a a trip, or if there is a failure of the service, and he is responsible for its complete performance. If there comes some great storm and the road is obstructed by snow, or if the bridges are all carried away by flood, and the subcontractor throws down the contract, the original contractor must be ready to take it up; and if he fail to do so, he can be fined three times what he has received for each trip. There is one case in one of these nineteen routes, gentlemen, where the fines exceeded the entire pay simply because they did not carry the mail according to the contract. Now, then, these parties finally made a settlement and they divided these routes. They divided them. They ceased to have any interest in common. Recollect, that was in April, 1879. I want you to know it because this entire case depends on your knowing it. This entire case, gentlemen of the jury, depends on your understanding it. In April, 1879, Mr. Vaile having had possession of these routes for several months, a division was made of them, and all interest in common was at that moment severed. At this time, I say, these routes were divided, and all partnership and all partnership interest was absolutely destroyed. I want to tell you why. When Dorsey returned from New Mexico and found that his orders on the Post-Office Department had been superseded by subcontracts and that his collateral security was worthless he was indignant, and at that time he and Mr. Vaile had a quarrel. He did not think he had been properly treated, and for that reason the moment he got the note at the German-American Bank provided for, the moment he induced Mr. Vaile to assume the payment of that note, he gave evidence that he wanted a settlement. Not that he wanted the routes divided at that time, because he did not dream of such a thing. He wanted the settlement. He wanted his money. The arrangement that had been made with Mr. Vaile was unknown to Mr. Dorsey, who at that time was in New Mexico; and, as I told you before, when he returned and found that the note that had been given to the German-American National Bank was protested, and found, as I told you twice, his collateral security was worthless, he wanted a settlement. He wanted his money refunded to him. They said to him, "We haven't the money. We have just got the stock really upon these routes. We have just got under way, and we cannot pay out the money." "Very well," said he, "what will you give me?" I want you all to see that this was a simple, natural, ordinary proceeding. Said he, "I want my money." Said Vaile to him, "We haven't the money, but I will tell you what we will do. We will divide the routes with you." Now, recollect at that time that they had a hundred and thirty-four routes, and had given some of them away. At that time they agreed upon a division, and they agreed how that division should be made. We will prove the agreement to you. The agreement was that Mr. Vaile should choose first, taking the route he wanted--he and Miner being together at that time--that Mr. Dorsey should choose the next, and Mr. Miner should choose the third route; and then that Mr. Vaile should choose the fourth, Stephen W. Dorsey the fifth route, Mr. Miner the sixth route, Mr. Vaile the seventh route, and so on. They finally concluded it would be fair for Mr. Vaile to take the best route, Dorsey the next best, and Miner the next best, and then again Vaile the best, Dorsey the next best, and Miner the next best, and that that would be an average that would do justice to each. In that way, gentlemen, they divided these routes. There was no conspiracy; nothing secret. This division was made on the 6th day of April, 1879, not only after Dorsey had gone out of the Senate, but after he had advanced this money, after they had failed to repay him, after he had failed to collect it, and when he finally had said, "I must have some settlement that recognizes my claim." Gentlemen, I want you to know that. In this case that fact will be one of the great central facts. On the 6th day of April, 1879, these routes were absolutely divided, and after that they had nothing in common. But you recollect that these routes were divided by chance. Mr. Vaile chose the first route. He might choose a route that had been bid off by Peck, or he might choose a route that had been bid off by John W. Dorsey. Stephen W. Dorsey took the next route, and that might have been a route that had originally been awarded to his brother, or to Peck, or to Miner. You can see how that is. The division was here complete. Mr. Miner did not have the routes he had bid off and that had been given to him by the Government. Mr. Vaile came in, and as Mr. Vaile was not an original bidder he took routes that had been awarded to Miner and to Peck and to John W. Dorsey. By the division Stephen W. Dorsey came into possession of routes that he never had bid off, because he never bid for one. Consequently as he went along with those routes, he needed and he had oftentimes the affidavit or the certificate of the original contractor. That was a necessity. Otherwise the division could not have been carried out. Anything that arises from the necessity of the case does not tend to show any conspiracy or any illegal partnership. I hope you understand perfectly that on the 6th day of April, 1879, these routes were divided and Stephen W. Dorsey took his share because they at that time owed him between sixteen and eighteen thousand dollars.