"The remaining question is, whether the declarations of Gale to Edmund Curtiss and William Ives were properly received. These declarations were not offered as in any way tending to prove the combination claimed. The motion shows that they were offered and received after the plaintiff's evidence on that subject had been introduced. Had they been admitted for that purpose, or if, under the circumstances, they could have had any influence with the jury on that point, we should feel bound to advise a new trial on this account."
All that I have said in respect to Walsh applies to what is known or what is called the confession of Rerdell. It was admitted by the prosecution that not one word said by him could bind any other defendant in the case. But, gentlemen, is there enough even to bind him? Did he confess that he was guilty of the conspiracy set forth in this indictment? And I want to make one other point. In this case there must be not only a conspiracy, but an overt act, and no man can confess himself into it without confessing that he was a conspirator, and that he knew that an overt act was to be done; because it takes that conspiracy and the overt act to 'make the offence. What overt act did Rerdell confess that he was guilty of--what overt act charged in this indictment? One. Filing a subcontract; and by no earthly method, by no earthly reasoning can you come to the conclusion that that could carry it into conspiracy. He must have confessed that he was guilty according to the scheme, according to the indictment set forth, and in no other way. That indictment says that the money was to be divided, that it was for the mutual benefit of certain persons. Unless that has been substantiated this case falls. According to the case of the King against Pomall the scheme of the indictment must be established, otherwise the case goes. In that case they charged it was one way, and they proved it was that way, and one of the defendants did not understand it that way and he was acquitted. Now, suppose they had not proved the scheme as they charged it, then all would have been acquitted, and unless the jury believe beyond a reasonable doubt, from the evidence that the scheme set forth in the indictment here was the scheme, then they must find everybody not guilty. There is no other way.
What is the next argument? The next argument is extravagance. What is extravagance? If I pay more for a thing than it is worth that is extravagance. If I buy a thing that I do not want, that is extravagance, and if I do this knowing it to be wrong, if I do this understanding that I am to have a part of the price, that is bribery, that is corruption, that is rascality. Nobody disputes that. How do you know that a thing is extravagant unless you know the price of it? For instance, an army officer is charged with extravagance in buying corn upon the plains at five dollars a bushel. How do you prove it is extravagance? You must prove that he could have obtained it for less or that there was a cheaper substitute that he should have obtained. How are you going to prove that too much was paid for carrying the mail upon these routes?
Only by showing that it could have been carried for less. What witness was before this jury fixing the price? How are we to establish the fact that it was extravagance? We must show that it could have been obtained for less money. What witness came here and swore that he would carry it for less? And would it be fair to have the entire case decided upon one route when it is in evidence that my clients had thirty per cent, of one hundred and twenty-six routes? Would it be fair to decide the question whether they had made or lost money on one route? Your experience tells you that upon one route they might make a large sum of money and upon several other routes lose largely. A man who has bid for one hundred routes takes into view the average and says "upon some I shall lose and upon others I shall make." How are you to find that this was extravagance unless you know what it could have been done for? They may say that they subcontracted some of the routes for much less. Yes; but what did they do with the rest of them? I might take a contract to build a dozen houses in this city, and on the first house make ten thousand dollars clear, and on the balance I might lose twenty-five thousand dollars. You have a right to take these things and to average them. When a man takes a contract he takes into consideration the chances that he must run in that new and wild country. It takes work to carry this mail.
You ought to be there sometimes in the winter when the wind comes down with an unbroken sweep of three or four thousand miles, and then tell me what you think it is worth to carry the mail. All these things must be taken into consideration. Another thing: You must remember that every one of these routes was established by Congress. Congress first said, "Here shall be a route; here the mail shall be carried." It was the business then, I believe, of the First Assistant Postmaster-General to name the offices, and the Second Assistant to put on the service. Take that into consideration. Every one of these routes was established by Congress. Take another thing into consideration: That the increase of service and expedition was asked for, petitioned for, begged for, and urged by the members of both houses of Congress, and according to that book, which I believe is in evidence, a majority of both houses of Congress asked, recommended, and urged increase of service and expedition upon some of the nineteen routes in this indictment.
The Court. What evidence do you refer to?
Mr. Ingersoll. I refer to the Star Route investigation in Congress.
The Court. That record is not in evidence.
Mr. Ingersoll. I thought that was in evidence.
The Court. No, sir.
Mr. Ingersoll. It was used as if it was in evidence. I saw people reading from it, and supposed it was in evidence.
The Court. It is not in evidence.
Mr. Ingersoll. Well, we will leave that out. Now, upon these nineteen routes--this is in evidence--increase and expedition of service were recommended by such Senators as Booth, Farley, Slater, Grover, Chaffee, Chilcott, Saunders, and by the present Secretary of the Interior, Henry M. Teller, and by such members of Congress as Whiteaker, Page, Luttrell, Pacheco, Berry, Belford, Bingham, chairman of the postoffice committee, by Stevens of Arizona, a delegate, and by Maginnis of Montana, and Kidder of Dakota, by Generals Sherman, Terry, Miles, Hatch and Wilcox In addition to these, recommendations were made and read by judges of courts, by district attorneys, by governors of Territories, by governors of States, and by members of State Legislatures, by colonels, by majors, by captains, and by hundreds and hundreds of good, reputable, honest citizens. They were the ones to decide as a matter of fact whether this increase was or was not necessary.
I believe in carrying the mails. I believe in the diffusion of intelligence. I believe the men in Colorado or Wyoming, or any other Territory, that are engaged in digging gold or silver from the earth, or any other pursuits, have just as much right, in the language of Henry M. Teller, to their mail as any gentleman has to his in the city of New York. We are a nation that believes in intelligence.
We believe in daily mail. That is about the only blessing we get from the General Government, excepting the privilege of paying taxes. Free mail, substantially free, is a blessing.
Now, there is another argument which has been used: Productiveness; but that has been so perfectly answered that I allude to it only for one purpose. How would the attorneys for the Government in this case like to have their fees settled upon that basis? Productiveness. Is it possible that this Government cannot afford to carry the mail? Is it possible that the pioneer can get beyond the Government? Is is possible that we are not willing to carry letters and papers to the men that make new Territories and new States and put new stars upon our flag? I have heard all I wish on the subject of productiveness.
Now, gentlemen, that is all the evidence there is in this case, that I have heard. What kind of evidence must we have in a conspiracy case? You have been told during this trial that it is very hard to get evidence in a conspiracy case, and therefore you must be economical enough to put up with a little. They tell you that this is a very peculiar offence, and people are very secret about it. Well, they are secret about most offences. Very few people steal in public. Very few commit offences who expect to be discovered. I know of no difference between this offence and any other. You have got to prove it. No matter how hard it is to prove you must prove it. It is harder to convict a man without testimony, or should be, than to produce testimony to prove it if he is guilty. All these crimes, of course, are committed in secret. That is always the way. But you must prove them. There is no pretence here that there is any direct evidence, any evidence of a meeting, any evidence of agreement, any evidence of an understanding. It is all circumstantial. I lay down these two propositions:
"The hypothesis of guilt must flow naturally from the facts proved, and be consistent, not with some of the facts, not with a majority of the facts, but with every fact."
Let me read that again:
"_The hypothesis of guilt must flow naturally from the facts proved, and must be consistent with them; not some of them, not the majority of them, but all of them_."
The second proposition is:
"The evidence must be such as to exclude every single reasonable hypothesis except that of the guilt of the defendant. In other words, all the facts proved must be consistent with and point to the guilt of the defendants not only, but every fact must be inconsistent with their innocence."
That is the law, and has been since man spoke Anglo-Saxon. Let me read you that last proposition again. I like to read it:
"The evidence must be such as to exclude every reasonable hypothesis except that of the guilt of the defendants. In other words, all the facts proved must be consistent with and point to the guilt of the defendants not only, but they must be inconsistent, and every fact must be inconsistent with their innocence."
Now, just apply that law to the case of John W. Dorsey. Apply that law to the case of Stephen W. Dorsey. Let me read further. I read now from 1 Bishop's Criminal Procedure, paragraph 1077.
"It matters not how clearly the circumstances point to guilt, still, if they are reasonably explainable on a theory which excludes guilt, they cannot satisfy the jury beyond reasonable doubt that the defendants are guilty, and hence they will be insufficient."
Just apply that to the case of Stephen W. Dorsey and John W. Dorsey.
I would be willing that this jury should render a verdict with that changed. Change it. You are to find guilty if you have the slightest doubt of innocence. Even under that rule you could not find a verdict of guilty against John W. or Stephen W. Dorsey. If the rule were that you are to find guilty if you have a doubt as to innocence you could not do it; how much less when the rule is that you must have no doubt as to their guilt. The proposition is preposterous and I will not insult your intelligence by arguing it any further.
Now, then, there is another thing I want to keep before you. When a man has a little suspicion in his mind he tortures everything; he tortures the most innocent actions into the evidence of crime. Suspicion is a kind of intellectual dye that colors every thought that comes in contact with it. I remember I once had a conversation with Surgeon-General Hammond, in which he went on to state that he thought many people were confined in asylums, charged with insanity, who were perfectly sane. I asked him how he accounted for it. Said he, "Physicians are sent for to examine the man, and they are told before they get to him that he is crazy; therefore, the moment they look upon him they are hunting for insane acts and not sane acts; they are looking not to see how naturally he acts, but how unnaturally he acts." They are poisoned with the suspicion that he is insane, and if he coughs twice, or if he gets up and walks about uneasily--his mind is a little unsettled; something wrong! If he suddenly gets angry--sure thing! When a man believes himself to be or knows himself to be sane, and is charged with insanity, the very warmth, the very heat of his denial will convince thousands of people that he is insane. He suddenly finds himself insecure, and the very insecurity that he feels makes him act strangely. He finds in a moment that explanation only complicates. He finds that his denial is worthless; that his friends are suspicious, and that under pretence of his own good he is to be seized and incarcerated. Many a man as sane as you or I has under such circumstances gone to madness. It is a hard thing to explain. The more you talk about it the more outsiders having a suspicion are convinced that you are insane. It is much the same way when a man is charged with crime. It is heralded through all the papers, "this man is a robber and a thief." Why do they put it in the papers?
Put anything good in a paper about Mr. Smith, and Mr. Smith is the only man who will buy it. Put in something bad about Mr. Smith and they will have to run the press nights to supply his neighbors with copies. The bad sells. The good does not. Then you must remember another thing: That these papers are large; some of them several hundred columns, for all I know--sixty or a hundred. Just imagine the pains it would take and the money it would cost to get facts enough to fill a paper like that.
Economy will not permit of it. They publish what they imagine they can sell. As a rule, people would rather heaf-something bad than something good. It is a splendid certificate to our race that rascality is still considered news. If they only put in honest actions as news it would be a certificate that honesty was rare; but as long as they publish the bad as news it is a certificate that the majority of mankind is still good.
Now, to be charged with a crime and to be suddenly deserted by your friends, and to know that you are absolutely innocent, is almost enough to drive the sanest man mad. I want you to think what these defendants have suffered in these long months. If the men who started this prosecution, if the men who originally poisoned the press of the country, feel that they have been rewarded simply because innocent men have suffered agony, let them so feel. I do not envy them their feelings.
There is another thing, gentlemen: The prosecution have endeavored to terrorize this jury. The effort has been deliberately made to terrorize you and every one of you. It was plainly intimated by Mr. Ker that this jury had been touched, and that if you failed to convict, you would be suspected of having been bribed. That was an effort to terrorize you, and the foundation of that argument was a belief in your moral cowardice. No man would have made it to you unless he believed at heart you were cowards. What does that argument mean? I cannot say whether you will be suspected or not; but, in my opinion, a juror in the discharge of his duty has no right to think of any consequence personal to himself. That is the beauty of doing right. You need not think of anything else. The future will take care of itself. I do not agree with the suggestion that it is better that you should be applauded for a crime than blamed for a virtue. Suppose you should gain the applause of the whole United States by giving a false verdict; how would the echo of that applause strike your heart? I do not believe that it is wiser to preserve the appearance of being honest than to be honest with the appearance against you. I would rather be absolutely honest, and have everybody in the world think I was dishonest, than to be dishonest and have the whole world believe in my honesty. You see you have got to stay with yourself all the time. You have to be your own company, and to be compelled to know that your company is dishonest, that your company is infamous, is not pleasant. I would rather know I was honest and have the whole world put upon the forehead of my reputation the brand of rascality.
You were also told that the people generally have anticipated your verdict.
That is simply an effort to terrorize you, so that you will say, "If the people think that way, of course we must think that way. No matter about the evidence. No matter if we have sworn to do justice. We will all try and be popular." You were told in effect that the people were expecting a conviction, and the only inference is that you ought not to disappoint the public, and that it is your duty to piece and patch the testimony and violate your oath, rather than to disappoint the general expectation. Mr. Merrick told you you were trying these defendants, but that the people of the whole country were trying you. What was the object of that statement? Simply to terrorize this jury. What was the basis of that statement? Why, that not one of you have got the pluck to do right. It was not a compliment, gentlemen. It was intended for one, no doubt, but when you see where it was born, it becomes an insult. I do not believe you are going to care what the people say, or whether the people expect a verdict of guilty, or not. You have been told that they do. I might with equal propriety tell you that they do not. I might with equal propriety say there is not a man in this court-house who expects a verdict of guilty. With equal propriety I might say, and will say, that there is not a man on this jury who expects there will be a verdict of guilty. But what has that to do with us?
Try this case according to the evidence; and if you know that every man, woman, and child in the United States want an acquittal, and you are satisfied of the guilt of the defendants, it is your duty to find them guilty.
If I were on the jury I would, in the language of the greatest man that ever trod this earth--
Strip myself to death, as to a bed That longing have been sick for, before I would give a false verdict.
Again, Mr. Merrick said, after having stated in effect that a majority of the people were convinced of the guilt of the defendants, that the majority of the men of the United States do not often think wrong. What was the object? To terrorize you. That is all. This verdict is to be carried by universal suffrage; you are to let the men who are not on oath decide for the men who are; to let the men who have not heard the testimony give the verdict of the men who have heard the testimony. What else? Again the same gentleman said:
"There is to be a verdict, a verdict of the people for or against us."
What is the object? To frighten you. Let the people have their verdict; you must have yours. If your verdict is founded on the evidence it will be upheld by every honest man in the world who knows the evidence. You need certainly to place very little value upon the opinion of those who do not know the evidence. Mr. Merrick also suggested--I will hardly put it that way--he was brave enough to hope that you have not been bribed.
Brave enough to hope that! All this, gentlemen, is done simply for the purpose of terrorizing you. I tell you to find a verdict according to the evidence, no matter whom it hits, no matter whom it destroys, no matter whom it kills. Save your own consciences alive. Your verdict must rest on the evidence that has been introduced, and all else must be thrown aside, disregarded, like forgotten dreams. All that you have read, all the press has printed, must find no lodgment in your brains.
You must regard them no more than you would the noises of animals made in sleep. You must stand by the testimony. You must stand by the law that the Court gives you. That is all we ask. These articles in the newspapers were not printed in the hope that justice might be done. They were printed in the hope that you may be influenced to disregard the evidence, in the hope that finally slander might be justified by your verdict. Gentlemen, you ought to remember that in this case you are absolutely supreme. You have nothing to do with the supposed desires of any men, or the supposed desires of any department, or the supposed desires of any Government, or the supposed desires of any President, or the supposed desires of the public. You have nothing to do with those things. You have to do only with the evidence. Here all power is powerless except your own. Position is naught. If the defendants are guilty, and the evidence convinces you that they are, your verdict must be in accordance with the evidence. You have no right to take into consideration the consequences. When you are asked to find a verdict contrary to the evidence, when you are asked to piece out the testimony with your suspicions, then you are bound to take into consideration all the consequences. When appeals are made to your prejudice and to your fears, then the consequences should rise like mountains before you. Then you should think of the lives you are asked to wreck, of the homes your verdict would darken, of the hearts it would desolate, of the cheeks it would wet with tears, and of the reputations it would blast and blacken, of the wives it would worse than widow, and of the children it would more than orphan. When you are asked to find a false verdict think of these consesequences. When you are asked to please the public think of these consequences. When you are asked to please the press think of these consequences. When you are asked to act from fear, hatred, prejudice, malice, or cowardice think then of these consequences. But whenever you do right, consequences are nothing to you, because you are not responsible for them. Whoever does right clothes himself in a suit of armor that the arrows of consequences can never penetrate. When you do wrong you are responsible for all the consequences, to the last sigh and the last tear. If you do right nature is responsible. If you do wrong you are responsible.
You were told, too, by Mr. Merrick that you should have no sympathy; that you should be like icicles; that you should be godlike. A cool conception of deity! In that connection this heartless language, as it appears to me, was used:
"Man when he undertakes to judge his brother-man undertakes to perform the highest duty given to humanity."
Good!
He should perform that duty without fear, without prejudice, without hatred, and without malice. He should perform that duty honestly, grandly, nobly.
I read on:
"Inclosed within the jury-box or on the bench he is separated from the great mass of mankind--"
Then you should not pay any attention to the opinion of the public. If you are separated you should not be dominated by the press. If you are separated you should not be disturbed by the desires of anybody. But he continues:
"and sentiments of brotherhood die away."
About that time you would be nice men:
"Standing above humanity and nearest God he looks down upon his fellow, and judges them without any reference to the sorrow his judgment may bring."
That is not my doctrine. The higher you get in the scale of being, the grander, the nobler, and the tenderer you will become. Kindness is always an evidence of greatness. Malice is the property of small souls.