Chapter IX: Front Matter (9)

Now, it is in that provided that if they call on him for double service he is entitled to double pay. That is the law, and it has been the practice, gentlemen, since we have had a Post-Office Department. And why? Let me show you. Here is a man who carries a mail from A to Y. There are supposed to be some commercial transactions between those two places. It is supposed that now and then a human being goes from one of those places to the other, and the man who carries the mail, as a rule carries passengers and does the local business. Now, do you suppose that he would agree with the Government that he would carry the mail once a week for a thousand dollars a year, and that they might hire another man to carry it once a week for a thousand dollars a year, and maybe that other man take all his passengers and all his business. The understanding is that when I bid a thousand dollars a year for once a week, if you put it to three times a week I am to have three thousand dollars; four times a week, four thousand dollars; seven times a week, seven thousand dollars, and that has been the unbroken practice of this Government from the establishment of the Post-Office Department until to-day. You can see the absolute propriety of it, and you can see that any man would be almost crazy to take a contract on any other terms, and that contract is this: "I will carry for you so much a trip, and if you want more trips you can have them at the same price as that fixed." That is fair. That is what we did.

So much for that badge of fraud. What is the next one? It is that the pay was increased twice as much by the increase, and, as I said, that is the law.

Now let us see what is the next great badge of fraud. That we received the pay when the mail was not carried. I deny it, and we will show in this case, gentlemen, that we never received pay except when the mail was carried. And how do I know? Because General Brady established a system of way-bills, so that a way-bill would accompany every pouch in which letters were, and they would put on that way-bill the time that it got to the post-office, and when that way-bill got to the terminal point it was sent here to Washington and filed away, and at the end of every quarter a report was made, and if a mail was behind at any post-office you would find it on that way-bill, and if they had not made the trip then they were fined. That way-bill system was inaugurated by General Brady, and under that way-bill system we carried the mail, and we could not get pay unless we had carried the mail. I call them way-bills. They are mail-bills that go with the pouch and give a history of each mail that is carried. That is all.

Now another great badge of fraud. The first was that he was to impose no fines when the mail was not carried. The next was that he was to impose fines and then take the fines off for half--fifty per cent. Now, would not that be an intelligent contract? I carry the mails. You are the Second Assistant Postmaster-General. I agree with you that if you fine me and then will take the fine off I will give you half of it. About how long would it take you to break me up? And yet that is honestly and solemnly put forward here as a fact in the case. They tell a story of a man who was bitten by a dog. Another man said to him, "I'll tell you what to do. You just sop some bread in that blood and give it to the dog; it will cure you." "Oh, my God!" says he, "if the other dogs hear of it they will eat me up." And here it is, without a smile, urged before this jury that we made a bargain that a fellow might fine us for the halves. Well, there may be twelve men in this world who believe that. They are unfortunate.

The next charge is that a subcontract was made for less than the original contract. Well, that is where most of the money in this world is made. Thousands and millions of men have made fortunes by buying corn at sixty cents a bushel to be delivered next February, and selling the same corn for seventy cents. There is where fortunes live. The difference between a contract and a subcontract is the territory of profit in which every American loves to settle. You make a contract with the Government to furnish, say, a thousand horses of a certain kind for one hundred and fifty dollars apiece. You go and make a subcontract with some one to furnish you those same horses for one hundred and twenty-five dollars apiece. Is that a fraud? You have taken upon yourself the responsibility and if your subcontractor fails you must make it good. There is no harm in that.

Suppose I agree with you to-morrow that if you will furnish me one thousand bushels of wheat on the first day of January, I will give you one thousand five hundred dollars, and I find out that you made a bargain with another fellow to do it for a thousand dollars. If I am an honest man I suppose I will jump the contract, won't I? Not much. If I am an honest man I will say, "Well, you made five hundred dollars; I am glad of it; good for you." But the idea of the prosecution is that the moment Brady saw a subcontract for less than the original contract he should have had a moral spasm, and said, "I won't carry out the contract; I will swindle you, I will rob you, and I will do it in the name of virtue." And that is the meanest way a man ever did rob--in the name of virtue, reform. So much for that. But if you ever make a contract with this Government and can make a subcontract at the same price you do it as quick as you can.

The next is, that whenever he discontinued a route or any part of a route, rather, he gave us a month's extra pay; you heard that, did you not? He was on that subject about a half a day. How did he come to do that? I will tell you. There is nothing like looking:

And in case of decrease, curtailment, or discontinuance of service, as a full indemnity to said contractor one month's extra pay on the amount of service dispensed with.

That is first the law, secondly the contract, and thirdly it was made in the interest of the United States. And why? Suppose the United States made a contract with a man to carry a mail from New York to Liverpool, and in consequence of that contract the man bought steamships to perform the service, and then the United States made up its mind not to carry the mail. That man might get damages to the amount of hundreds and thousands of dollars. Therefore the United States endeavored to protect itself and say the limit of damage shall be one month's pay, and that has been the law for years, and that law has been passed upon by the Supreme Court of the United States. It was passed upon in the case of Garfielde against the United States, where he claimed greater damages because he had all the steamships to carry the mail from San Francisco to Portland, and the Supreme Court said it made no difference what his expense had been. He was bound by the letter of the law and the contract, and could have only one month's extra pay as his entire damage.

Now, these gentlemen bring forward a law to protect the United States Government, and they bring that forward as an evidence of conspiracy, as evidence of a fraud. Nothing could be more unfair, nothing on earth could show a greater want of character. Now, let us see what else.

The next great charge is false affidavits. They tell you that we made lots of them; that we just had them for sale. False affidavits! And that Mr. John W. Dorsey made two false affidavits in two cases. The evidence will show that he did not. The evidence will show that he made only one in each case, when we come to it. But I want to call your attention to this fact, that in one case one affidavit was made where it said the number of men and horses then necessary was eight, that on the expedited schedule it would be twenty-four. Three times eight are twenty-four. The second affidavit said the number of men and horses then was fifteen, and the number on expedition and increase would be forty-five. Three times fifteen are forty-five. So that the amount taken from the Government would be exactly the same on both affidavits. You understand that. For instance, if it took five horses and men to do the then business, and would require fifteen to do the expedited and increased business, then you would be entitled to three times the amount of pay. So in this case one affidavit said it took eight and would take twenty-four, the other affidavit said it took fifteen and would take forty-five. Three times eight are twenty-four. Three times fifteen are forty-five. So that the amount of money taken from the Government would be exactly the same under each affidavit. Now, that is all there is of that.

In the next case, where he made two affidavits, I find that by the second affidavit it took, I think, thirteen thousand dollars less from the Government, and yet they call the second affidavit a piece of perjury. And here is one thing that I want to impress upon all your minds. Where you not only carry the mail but carry passengers, it is an exceedingly difficult problem to say just how many horses and men it requires to carry the mail, and then how many men and horses it requires to carry the passengers. It is hard to make the divide you understand--very hard. You can tell, for instance, the cost of mounting a railroad for a hundred miles, but it is very difficult to tell the cost of the bridges or what the spikes cost or what the deep cuts cost. You can take the whole together and say it cost so much a year. So in this case we can say it requires so many men and horses doing the business that we are doing, but it is almost impossible for the brain to separate exactly the passengers, the package business, from simply carrying the mail. As I said before, men will differ in opinion. Some men will say it will take ten horses, others twenty, others twenty-five, and then the next question arises, and I want to call particular attention to that question, and that is, whether the law means only the horses absolutely carrying the mail; whether the law means by carriers only the men who ride the horses or drive the wagons. Now, I will tell you what I mean. I undertake to carry the mail, we will say from Omaha to San Francisco. How many men will it take? Now, I will count all the men who are driving the stages, all the men who are gathering forage, all the men who are attending to that business in any way, and if on the way I have blacksmiths' shops where my horses are shod I will count those men. If I have men engaged in drawing wood a hundred miles, I will count those men. In other words, I will count all the men I pay, no matter whether they are keeping books in New York or carrying the mail across the desert. I will count all the men I pay; so will you. What horses will you count? All the horses engaged in the business; those that are drawing corn for the others, as well as the rest, will you not? There is an old fable that a trumpeter was captured in the war and he said to his captor, "I am not a soldier, I never shot anybody." "Ah," they said, "but you incited others to shoot, and you are as much a soldier as anybody; we want you."

Now, I say that we are entitled to count every man who carries the mail, and every man necessary to perform that service. So do you. Now, there we divide. The Government says we shall count simply the men carrying the mail, nobody else, and we shall count simply the horses in actual service. That is nonsense. For instance, you have got to have thirty horses. They are going all the time. Do you depend on just that thirty? No, sir. If one gets lame you cannot carry the mail. You have got to have twenty or thirty horses in your corral, in the stables, so that if one of the others gives out you will have enough. That is one great question in this case, gentlemen. What I say to you now is that on every one of these routes in which my clients are interested, or, I may say, in which anybody is interested, the evidence will be that the affidavits were substantially correct. In many cases there was a far greater difference between the men and horses then used and the men and horses that were afterwards necessary.

You must take another thing into consideration. In a country where there are Indian depredations one man will not stay at a station by himself. He wants somebody with him; he wants two or three with him, and the more frightened he is the more men he will want. On that route from Bismarck to Tongue River, as to which it was sworn it would take a hundred and fifty men, the statement was made at a time when the men would not stay separately; that they wanted five or six together at one station; that they wanted men out on guard and watch. You will find before we get through, gentlemen, that the affidavits do not overstate the number. You will find in addition that these petitions were signed by the best men; that that service was asked for by the best men, not simply in the Territories, but by some of the best men in the United States; by members of Congress, by Senators, by generals, by great and splendid men, men of national reputation. So when we come to that we will show to you that the affidavits made were substantially true. There is another charge that has been made, and that is that the affidavits in Mr. Peck's name were not made by him; that he never signed these affidavits.

Yet, gentlemen, we will prove to you as the Government once proved by Mr. Taylor, a notary public in New Mexico, that Mr. Peck appeared personally before him; that he was personally acquainted with Mr. Peck, and that he signed and swore to those affidavits in his presence. That we will substantiate in this trial as the Government substantiated it in the other. These gentlemen, are among the charges that have been made against us. I say to you to-day they will not be able to show that we ever put upon the files of the Post-Office Department a solitary letter, a solitary petition, a solitary communication that was not genuine and true. Not one. They cannot do it. They never will do it. You will be astonished when you hear these petitions to find the Government admitting that they are true. If they do not read them we will read them. That is all.

Now, I have stated to you a few of the charges made against my clients up to this point. I want to keep it in your mind. I want each man on this jury to understand exactly what I say. Let us go over this ground a little. I want to be sure you remember it. In the first place, S. W. Dorsey was not interested in these routes. All the bids were made by John W. Dorsey, John M. Peck, John R. Miner, and a man by the name of Boone. All the information was gathered by Mr. Boone by sending circulars to every postmaster on the routes. Upon that information John W. Dorsey, John M. Peck, and John R. Miner made their calculations and made their bids, numbering in all about twelve hundred. Of that number they had awarded to them a hundred and thirty-four contracts. Recollect that. After those contracts were awarded to them they were without the money to put the stock on all the routes, because more contracts were awarded than they expected. Thereupon John R. Miner borrowed some money from Stephen W. Dorsey and kept up that borrowing until the amount reached some sixteen or eighteen thousand dollars. Don't forget it. After it got to that point Mr. Dorsey started for New Mexico. At Saint Louis he met John R. Miner, then coming from Montana, and John R. Miner said to him, "We have got to have some more money of you;" and Dorsey replied, "I have no more money to give you." Miner then said, "You give your note or indorse mine for nine or ten thousand dollars." Dorsey replied, "If you will give me post-office orders and drafts, not only to secure the note I am about to indorse or make for you, but also to the amount of the money I have advanced for you, I will give the note." That was agreed upon. Thereupon he gave the note. It was discounted in the German-American National Bank, and Mr. Miner deposited with the note the orders on the Post-Office Department, not only to secure the note, but the sixteen thousand dollars that Dorsey had before that time advanced. Dorsey went on to New Mexico, and in May or July of that year another law was passed, allowing a subcontractor to put his subcontract on file. After he had advanced that money and indorsed or signed the note, they made the contract with Mr. Vaile, turning these routes over to him and giving him subcontracts on all these routes. When Stephen W. Dorsey came back from New Mexico in December of that year he found that the note at the German-American National Bank had been protested, and that his collateral security was at that time worthless, because the subcontracts had been filed and these subcontracts cut out the post-office orders or drafts. Thereupon he wanted a settlement. Matters drifted along until April, 1879, and a settlement was made. I have told you that from the time the routes were given to Mr. Vaile until that time nobody had the slightest thing to do with them except Mr. Vaile; that in April, 1879, the division was made; that Mr. Vaile paid the note at the German-American National Bank; that the division was made, as I told you, by Mr. Vaile drawing one route, Mr. Dorsey one, and Mr. Miner one, and keeping that up until they were all drawn. I forgot to tell you before that Mr. S. W. Dorsey had sixteen thousand dollars, to which, if you add the interest, it would be about eighteen thousand dollars; that John W. Dorsey had ten thousand dollars and John M. Peck had ten thousand dollars, and when that division was made Stephen W. Dorsey agreed to pay John W. Dorsey ten thousand dollars, and to pay John M. Peck ten thousand dollars for his interest. Gentlemen, he did pay John W. Dorsey ten thousand dollars, and he did pay the same amount to Peck, and from that day to this John W. Dorsey has never had the interest of one solitary cent in any one of these routes. He was simply paid back the money that he expended. Not another cent. John M. Peck never made by this business one solitary dollar. He simply received back the money he had expended. After he had paid back that money to both of these men, Stephen W. Dorsey took these routes with a debt to him of between sixteen and eighteen thousand dollars. Now, as to Mr. Rerdell. They say he was the private secretary of Stephen W. Dorsey. He never was; not for a moment, not for a single moment He attended to some of this business. I have no doubt that the Government imagine they can debauch somebody in order to get information. I give them notice now--GO on. There is no living man whose testimony we fear. There is no living lawyer who has the genius to make perjury do us harm. I want you to understand it. And I want them to understand that I know precisely what they are endeavoring to do. There is only one way for them to surprise me, and that is for them to do a kind thing.

Now, gentlemen, at that time--I want you to remember it; I do not want you to forget it--when these routes came to Mr. Dorsey, he, not understanding the business, turned it over to Mr. James W. Bosler. Mr. Bosler, as I told you before, is a man of wealth. But, say these gentlemen, "While these routes were in your possession, and while Stephen W. Dorsey had an interest in them he asked men to sign petitions in favor of an increase of trips and decrease of time." What if he did? Suppose you have a house out here somewhere; you can petition to have a street opened, even if you have the contract for paving the street. You have a right to petition to have a schoolhouse located in your neighborhood even if you have children. There is no harm about that. You certainly can petition to have cows prevented from running at large even if there is no fence around your yard. I think you could do so without being indicted for conspiracy. I think a man might start a subscription for a church, even if he owned a brick-yard and expected to sell bricks to build it. Now, suppose I had a contract to carry the mail through the State of California from one end to the other once a week, is there any harm in my asking the people of that country to petition to have it carried twice a week? Do you not remember what I told you? All the members of Congress out there, when they go home want to say to the people when they meet at the convention with all the delegates on hand. "Why, gentlemen, you did not used to get the New York Herald or New York Times, or The Sun, until it was two weeks old, and now it is only a week old. Where you only had one mail I have given you three. I have got fifty thousand dollars to improve your harbor, and one hundred thousand dollars for a new custom-house. Look at me, gentlemen, I am a candidate for re-election." That is natural. This Court will instruct you that any man who is carrying a mail anywhere in the United States has the right to use his influence in getting up petitions for the increase of that service or the expedition of that time. They say Dorsey did this. What of it? They say Dorsey tried to manufacture public opinion. That is what these gentlemen of the prosecution have been doing for eighteen months, and now they object to the manufacture of public opinion. Public opinion is their stock in trade.

Leaving that charge, every man who has a contract for carrying the mail has the right to call the attention of every editor in that country to the fact that they need more mail service. He has the right to send his agents there and if the people want to petition for more service, and if Congress is willing to give them more service, no human being has a right to complain in this manner and in a criminal court. If any offence has been committed it is of a political nature. If a member of Congress gets too much service his people can keep him at home. If he does too much for his locality they need not elect him the next time. It is a political offence for which there is a political punishment and a political remedy. So much for the right of petition. I am perfectly willing to tell all he did in regard to the increase of service and the expedition.

While I am on that point I want you to distinctly understand what increase is and what expedition is. Increase of service means more of the same kind. Suppose I am to carry the mail from one place to another. We will call it from Si-Wash to Oo-Ray. If I am to carry that mail once a week for five hundred dollars and they want it twice a week, I have one thousand dollars, but do not carry it any faster. That is an increase. Suppose I am carrying it in say two hundred hours and they want it carried in half that time. That is what they call expedition. Now, the question is as to the difference in cost of carrying the mail at six miles an hour, or at two and a half, or two, or one and a half. If I carry it slowly, I can go at a reasonable rate in the day and can lie by at night. I want you to understand distinctly the difference between increase of service, which is more of the same kind, and expedition, which means the same kind at a faster rate. Now, I can carry the mail twenty miles and back in a day and do that a great deal easier than if I were to make the distance in four or five hours. The difference is just about the same with a locomotive as with a horse. If a train runs twenty miles an hour and you want to increase its speed to thirty, it will cost altogether more than twice as much as it does to run it at twenty. If you want to increase it still further to forty or sixty, it will cost at sixty more than three times as much as at twenty. The cost increases in an increased proportion. I want you to understand that. Now, we are charged with having done some frightful things on several of these routes, and for three days and a half your ears were filled with charges of the rascality we have perpetrated. We had some ten or eleven routes, and we are charged with having defrauded the Government on those particular routes. Let us see what my clients did. Do not understand me as saying that because my clients have done nothing the other defendants have. I do not take that position. I take the position that according to the evidence in this case there is nothing against any of these defendants. Leave out passion, prejudice, falsehood, and hatred and there is absolutely nothing left. If you will take from Mr. Bliss's speech all the mistakes he made in law and fact, there will be nothing left to answer; not a word. But I think it due to my client, gentlemen, my client who is not able to be in this court, my client who sits at home wrapped in darkness, that I should answer every allegation touching every route in which he was interested. I think it due to him. [Resuming]

I will call your attention to a few of the routes, possibly to all, in which my clients were interested. It will take but a short time. I want you to know whether or not these routes were important, whether it was proper to carry the mails as they were carried, whether it was proper that they should be carried from once to seven times a week, and whether it was proper that the speed should be expedited. Now, you may think after hearing the evidence that there were some routes that never should have been established; but that does not establish a conspiracy. That simply establishes the fact that Congress created routes where they were not absolutely necessary. You may come to the conclusion that General Brady ordered more trips on some of these routes than he should have ordered. That does not establish a conspiracy. The most that it could establish would be extravagance, and extravagance is not a crime. If it were, the penitentiaries of the day would not be large enough--or rather would be large enough, and too large, to hold the honest men. You may say after you have heard the evidence that the time was faster than it need be; but you must take into consideration all the connecting routes, and even if you should so feel, it is for you to say whether that establishes any conspiracy. All these things must be taken into consideration.

We will take first the route from Garland to Parrott City. ***

Now, I have gone over just a few of these charges. I have shown you that they are false; that they are without the slightest shadow of foundation in fact. Now, gentlemen, after you hear all this evidence, it is for you to determine. It is for you to say whether these men entered into a conspiracy to defraud this Government. It is for you to say whether our testimony is to be believed, or whether you are to decide this case upon the suspicions of the Government. It is for you to say whether you will believe the contracts and the witnesses, or whether you will take the prejudice of the public press; whether you will take the opinion of the Attorney-General; whether you will take the letter of some counselor at law, or whether you will be governed by the testimony in this case. It is for you to say, gentlemen, whether a man shall be found guilty on inference; whether a man shall be deprived of his liberty by prejudice. It is for you to say whether reputation shall be destroyed by malice and by ignorance. It is for you to say whether a man who fought to sustain this Government shall not have the protection of the laws. It is for you [indicating a juror] and it is for you [indicating another juror] and you [indicating another juror] and you [indicating another juror] to say whether a man who fought to take the chains off your body shall have chains put upon his by your prejudice and by your ignorance. It is for you to say whether you will be guided by law, by evidence, by justice, and by reason, or whether you will be controlled by fear, by prejudice, and by official power. That, gentlemen, is all I wish to say in this opening.

CLOSING ADDRESS IN SECOND STAR ROUTE TRIAL

Closing Address to the Jury in the Second Star Route Trial.

MAY it please the Court and gentlemen of the jury: Perhaps some of you, may be all of you, will remember that I made one of the opening speeches of this case, and that in that opening speech I endeavored to give you the scheme or plan of the indictment. I told you, I believe, at that time, that all these defendants were indicted for having conspired together to defraud the United States. In that indictment they were kind enough to tell us how we agreed to accomplish that object; that we went into partnership with the Second Assistant Postmaster-General, he being one of these defendants, and that we then and there agreed to get up false petitions, to have them signed by persons who were not interested in the mail service, to sign fictitious names to these petitions, those names representing no actual, real, living persons; that we also agreed to have false and fraudulent letters written to the department urging this service; that in addition to all that we were to make and file false and fraudulent affidavits, in which we were to swear falsely as to the number of men and horses to be employed, and the number of men and horses then necessary; that in addition to that we were to file fraudulent subcontracts; that the Second Assistant Postmaster-General was to make false and corrupt orders, and that all these things were to be done to deceive, mislead, and blindfold the Postmaster-General. They also set out that these orders so corruptly made were to be corruptly certified to the Auditor of the Treasury for the Post-Office Department in order that we might draw our pay. That is what is known as the general scheme or plan of this indictment. You have heard the testimony, and remember some of it. Of course you do not remember it all. Probably no man ever lived who could do such a thing. You have heard the testimony discussed, I believe, for about twenty days, so that I take it for granted you know something about it, or at least have an idea that you do. The story that we told you in the first place, and that we now tell you, is about this:

In 1877 Mr. Peck, Mr. Miner, and John W. Dorsey made up their minds to make bids and to go into the mail business. I want you to remember that there is not one word in this indictment about any false bid ever having been made. Remember that. There is nothing in this indictment about a false bond having been given; not a thing. There is nothing in this indictment charging that any of the original contracts were false. I want you to remember that. There is no evidence that any person signing any one of those contracts as security was not perfectly solvent. There is no evidence, not one syllable, that any proposal was fraudulent, or that any bid was fraudulent. How is it possible for a bid to be fraudulent? I will tell you. If you make a bid, and make a contract or enter into an agreement at the same time with some of the Post-Office officials so that your bid will be accepted when it is not the lowest, there is a fraud, and there is a fraudulent bid. There is one other way, and that is to put in a bid to carry the mail at so many thousand dollars, and then have below that straw bidders, men not responsible, and when the time comes to accept the bid of those gentlemen they refuse to carry it out, and then the law is that it shall be given to the next highest, and he refuses, and the next, and he refuses, and the next highest, and he refuses, and so on until it comes to the highest bidder. There are such combinations and have been, I have no doubt, for many years in the Post-Office Department. That is called straw bidding, and it is fraudulent bidding. There is no such charge as that in this case. Every bid that was made was made in good faith, and every bid that was accepted was followed by a good and sufficient contract entered into by the party making the bid, and so that is the end of that.

Now, in 1877, I say these men entered into an agreement among themselves that they would bid on certain routes, and Mr. Peck, or Mr. Miner, or John W. Dorsey--they may have it as they choose--somebody, wrote a letter to Stephen W. Dorsey and in that letter told what they were going to do and requested him to get some man to obtain information in regard to these routes. You know that testimony. Stephen W. Dorsey was then in the United States Senate. He sent for Mr. Boone and he showed him that letter. In consequence of that Mr. Boone sent out his circulars to the postmasters all over the country, or all over the portion as to which they were to bid, and asked them about the roads, about the price of oats and corn, about the price of labor, and about the winters; in other words, all the questions necessary for an intelligent man, after having received intelligent answers, to make up his mind as to the amount for which he could carry that mail. Mr. Boone, you remember, says that he was to have at that time a certain share. There is a conflict of testimony there. Mr. Dorsey says that he told Boone that when John W. Dorsey came here they could arrange that, and he had no doubt that they would be willing to give him a share; but that he did not give it to him. The circulars were sent out and the information in some instances, and I do not know but all, came back. Then they agreed upon the amounts they were to bid. I believe Mr. Miner came here in December, and John W. Dorsey, I think, in January, and in February the bids were made. All the amounts were put in the bidding-book issued by the Government, by Mr. Miner and Mr. Boone; all with two exceptions, and those amounts had been placed there by them, but under the advice of Stephen W. Dorsey those amounts were lowered. I remember one was upon the Tongue River route, the other route I have forgotten. Mr. Miner, Mr. Peck, and John W. Dorsey were together. Afterwards a partnership was formed between John W. Dorsey and A. E. Boone. Stephen W. Dorsey advanced some money. There is nothing criminal about that. It is often foolish to advance money, but it is not a crime. It is often foolish to indorse for another, and many a man has been convinced of that, but it is not a crime. He advanced until, I believe, he was responsible for some fourteen or fifteen thousand dollars, and thereupon he declined to advance any more. He saw Mr. Miner in Saint Louis, and said to Mr. Miner, "This is the last I am going to advance." I think he gave him some notes that he hypothecated or discounted at the German-American National Bank. He wanted security, and thereupon they gave him Post-Office drafts for the purpose of securing his debt. He would advance no more money and went away to New Mexico. Mr. Miner had a power of attorney from John W. Dorsey who was absent, and a power of attorney from John M. Peck who was absent. I believe on the 7th of August, or about that time, Mr. Boone went out. Why? They had not the money at the time to put on the service. Why? A great many more bids had been accepted than they had anticipated, and instead of getting twenty or thirty routes they got, I believe, one hundred and thirty-four routes. The consequence was they did not have the money to stock the routes. There was another difficulty.

There was an investigation by Congress, and that delayed them a month or two, and the consequence was that when the 1st of July came, the day upon which the service should have been put on, it was not only not put on, but they had not the means to do it. Then what happened? Then it was that Mr. Miner took in Mr. Vaile, and an agreement was made which bears date the 16th day of August, 1878. It was not finally signed by all the parties, I believe, until some time in September or October. Under that contract, which you have all heard read, Mr. Vaile was given an interest in this business. More than that; subcontracts were given to Mr. Vaile, and under the subcontract law which was passed on the 17th day of May, 1878, I believe, Vaile could file his subcontract in the Post-Office Department, and that rendered all Post-Office drafts or orders that had been given absolutely worthless. That was done. The subcontracts were given to Vaile under the powers of attorney that Miner held from Peck and John W. Dorsey, and of course he could act for himself. That was the situation. Stephen W. Dorsey was not here. When he returned he found that everything had been disposed of except his liability, and that he would have to pay the notes. His security was gone, and the subcontracts were filed. At that time he and Mr. Vaile had a quarrel. That is our story. In the meantime John W. Dorsey was on the Tongue River route. I believe he visited Washington in November and left word that he would like to sell out all his interests in these routes, and I believe fixed the price. Some time in November or December Mr. Vaile made up his mind to take the routes, and afterwards changed his mind. Stephen W. Dorsey was then in the Senate. On the 4th of March, 1879, his term expired. I believe on that very day, or about that day, he wrote a letter to Brady calling his attention to these subcontracts that had been filed for the protection of Vaile and denouncing them. That was the first thing he did. Then a few days afterwards the parties met. In a little while afterwards they made a division of this entire business. You know how the division was made. Stephen W. Dorsey fell heir to about thirty of these routes, I think. In addition he had to pay ten thousand dollars to his brother and ten thousand dollars to Peck. Mr. Vaile, I think, took forty per cent, and Mr. Miner thirty per cent. Mr. Vaile and Mr. Miner went into partnership and Stephen W. Dorsey took his routes, and that ended it. Mr. Peck was out and John W. Dorsey was out. That is our story. When they divided those routes, in order to vest the property of those routes in the persons to whom they fell, it was necessary to execute subcontracts and give PostOffice drafts and things of that character. All those necessary papers they then and there agreed to make. Up to this point there is not one act established by the evidence not entirely consistent with perfect innocence; not an act. That is our story. After these routes fell to us we did what we had the right to do and what we could to make the routes of value. As business men we had the right to do it, and we did only what we had the right to do.

The next question that arises, and which of course is at the very threshold of this case, is, did these parties conspire? That is the great question. In my judgment you should settle that the first thing when you go to the jury-room. After having heard the case as it will be presented by the Government, and after having heard the charge of the Court, the first thing for you to decide is, was there a conspiracy? How is a conspiracy proved? Precisely as everything else is proved. You prove that men conspire precisely as you prove them guilty of larceny or murder or any other crime or misdemeanor. It has been suggested to you that as conspiracy is very hard to prove you should not require much evidence; that you should take into consideration the hardships of the Government in proving a crime which in its nature is secret. Nearly all crimes are secret. Very few men steal publicly, with a band of music and with a torch in each hand. They generally need their hands for other purposes, if they are in that business. All crime loves darkness. We all know that. One of the troubles about proving that a man has committed a crime is that he tries to keep it as secret as possible. He does not carry a placard on his breast or on his back stating what he is about to do. The consequence is that it is nearly always difficult to prove men guilty as stated in the indictment. But that does not relieve the prosecution. That burden is taken by the Government, and they must prove men guilty of conspiracy precisely as they prove anything else. Is circumstantial evidence sufficient? Certainly, certainly. Circumstantial evidence will prove anything, provided the circumstances are right, and provided further that all the circumstances are right. A chain of circumstances is no stronger than the weakest circumstance, as a chain of iron is no stronger than the weakest link. Where you establish or attempt to establish a fact by circumstances, each circumstance must be proved not only beyond a reasonable doubt, but each circumstance must be wholly inconsistent with the innocence of the defendants. Now, let me call your attention to what I claim to be the law upon the subject, and I will call the attention of the Court to it at the same time. I will take this as a kind of test:

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

In other words if they establish one hundred circumstances and ninety-nine point to guilt and one circumstance thoroughly established is inconsistent with guilt or perfectly consistent with innocence, that is the end of the case.

It is as if you were building an arch. Every stone that you put into the arch must fit with every other and must make that segment of the circle. If one stone does not fit, the arch is not complete. So with circumstantial evidence. Every circumstance must fit every other. Every solitary circumstance must be of the exact shape to fit its neighbor, and when they are all together the arch must be absolutely complete. Otherwise you must find the defendants not guilty. The next sentence is:

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

Now, what does that mean? It means that every fact that is absolutely established in this case, must point to the guilt of the defendants. It means that if there is one established fact that is inconsistent with their guilt, that fact becomes instantly an impenetrable shield that no honest verdict can pierce. That is what it means. That being so--and the Court in my judgment will instruct you that that is the law--let us talk a little about what has been established.

In the first place, nearly all that has been established, or I will not say established, but nearly all that has been said, for the purpose of showing that our motives were corrupt, and that we actually conspired, rests upon evidence of what we call conversations. Some witness had a conversation with somebody, three years ago, four years ago, or five years ago. The unsafest and the most unsatisfactory evidence in this world is evidence of conversation. Words leave no trace. They leave no scar in the air, no footsteps. Memory writes upon the secret tablet of the brain words that no human eye can see. No man can look into the brain of another and tell whether he is giving a true transcript of what is there. It is absolutely impossible for you to tell whether it is memory or imagination. No one can do it. Another thing: Probably there is not a man in the world whose memory makes an absolutely perfect record. The moment it is written it begins to fade, and as the days pass it grows dim, and as the years go by, no matter how deeply it may have been engraven, it is covered by the moss of forgetfulness. And yet you are asked to take from men their liberty, to take from citizens their reputation, to tear down roof-trees, on testimony about conversation that happened years and years ago, as to which the party testifying had not the slightest interest. As a rule, memory is the child of attention--memory is the child of interest. Take the avaricious man. He sets down a debt in his brain, and he graves it as deep as graving upon stone. A man must have interest. His attention must be aroused. Tell me that a man can remember a conversation of four or five years ago in which he had no interest. We have been in this trial I don't know how many years. I have seen you, gentlemen, gradually growing gray. You have, during this trial, heard argument after argument as to what some witness said, as to some line embodied in this library. [Indicating record.] You have heard the counsel for the prosecution say one thing, the counsel for the defence another, and often his Honor, holding the impartial scales of memory, differs from us both, and then we have turned to the record and found that all were mistaken. That has happened again and again, and yet when that witness was testifying every attorney for the defence was watching him, and every attorney for the prosecution was looking at him. How hard it would be for you, Mr. Juror, or for any one of you to tell what a witness has said in this case. Yet men are brought here who had a casual conversation with one of the defendants five years ago about a matter in which no one of the witnesses was interested to the extent of one cent, and pretend to give that conversation entire. For ray part, were I upon the jury, I would pay no more attention to such evidence than I would to the idle wind. Such men are not giving a true transcript of their brains. It is the result of imagination. They wish to say something. They recollect they had a conversation upon a certain subject, and then they fill it out to suit the prosecution.

Now, I am told another thing; that after getting through with conversations they then gave us notice that we must produce our books, our papers, our letters, our stubs, and our checks; that we must produce everything in which we have any interest, and hand them all over to this prosecution. They say they only want what pertains to the mail business, but who is to judge of that? They want to look at them to see if they do pertain to the mail business. They won't take our word. We must produce them all. It may be that with such a net they might bring in something that would be calculated to get somebody in trouble about something, no matter whether this business or not. They might find out something that would annoy somebody. They gave us a notice wide enough and broad enough to cover everything we had or were likely to have. What did they want with those things? May be one of their witnesses wanted to see them. May be he wanted to stake out his testimony. May be he did not entirely rely upon his memory and wanted to find whether he should swear as to check-books or a check-book, and whether he should swear as to one stub or as to many. May be he wanted to look them all over so that he could fortify the story he was going to tell. We did not give them the books. We would not do it. We took the consequences. But what did we offer? That is the only way to find out our motive. I believe that on page 3776 there is something upon that subject. I will read what I said:

Now, gentlemen, with regard to the books. As there has been a good deal said on that subject I make this proposition: Mr. Dorsey has books extending over a period of twenty years, or somewhere in that neighborhood. He has had accounts with a great many people on a great many subjects. He does not wish to bring those books into court, or to have those accounts gone over by this prosecution, not for reasons in this case, but for reasons entirely outside of the case. If the gentlemen on the other side will agree, or if the Court will appoint any two men or any three men, we will present to those men all our books, every one that we ever had in the world, and allow them to go over every solitary item and report to this court every item pertaining to John W. Dorsey & Co., Miner, Peck & Co., or Vaile, Miner & Co., with regard to every dollar connected, directly or indirectly, with this entire business from November or December, 1877, to the present moment, and report to this Court exactly every item just as it is. I make that proposition.