Whoever allows the feeling of brotherhood to die in his heart becomes a wild beast. You know it and so do I:
"Not the king's crown, nor the deputed sword, The marshal's truncheon, nor the judge's robe, Become them with one-half so good a grace as mercy does."
And yet the only mercy we ask in this case, gentlemen, is the mercy of an honest verdict. That is all.
I appeal to you for my clients, because the evidence shows that they are honest men. I appeal to you for my client, Stephen W. Dorsey, because the evidence shows that he is a man, a man with an intellectual horizon and a mental sky, a man of genius, generous, and honest. And yet this prosecution, this Government, these attorneys representing the majesty of the Republic, representing the only real Republic that ever existed, have asked you, gentlemen of the jury, not only to violate the law of the land, they have asked you to violate the law of nature. They have maligned mercy. They have laughed at mercy. They have trampled upon the holiest human ties, and they have even made light of the fact that a wife in this trial has sat by her husband's side. Think of it.
There is a painting in the Louvre, a painting of desolation, of despair and love. It represents the night of the crucifixion. The world is represented in shadow. The stars are dead, and yet in the darkness is seen a kneeling form. It is Mary Magdalene with loving lips and hands pressed against the bleeding feet of Christ. The skies were never dark enough nor starless enough; the storm was never fierce enough nor wild enough, the quick bolts of heaven were never lurid enough, and arrows of slander never flew thick enough to drive a noble woman from her husband's side. And so it is in all of human speech, the _holiest word is wife_.
And now, gentlemen, I have examined this testimony, I have examined every charge in the indictment against my clients not only, but every charge made outside of the indictment. I have shown you that the indictment is one thing and the evidence another. I have shown you that not one single charge has been substantiated against John W. Dorsey.
I have demonstrated to you that not one solitary charge has been established against Stephen W. Dorsey--not one. I believe that I have shown to you that there is no foundation for a verdict of guilty against any defendant in this case.
I have spoken now, gentlemen, the last words that will be spoken in public for my clients, the last words that will be spoken in public for any of these defendants, the last words that will be heard in their favor until I hear from the lips of this foreman two eloquent words--_Not Guilty_. And now thanking the Court for many acts of personal kindness, and you, gentlemen of the jury, for your almost infinite patience, I leave my clients with all they have and with all they love and with all who love them in your hands.
OPENING ADDRESS TO THE JURY IN THE SECOND STAR ROUTE TRIAL.
Washington, D. C., Dec. 21, 1882.
MAY it please the Court and gentlemen of the jury: We consider that the right to be tried by jury is the right preservative of all other rights.
The right to be tried by our peers, by men taken from the body of the county, by men whose minds have not been saturated with prejudice, by men who have no hatred, no malice to gratify, no revenge to wreak, no debts to pay, we consider an inestimable right, regarding the jury as the bulwark of civil liberty. Take that right from the defendants in any case and they are left at the mercy of power, at the mercy of prejudice. The experience of thousands of years, the experience of the English-speaking people, of the Anglo-Saxon people, the only people now upon the globe with a genius for law, is that the jury is a breastwork behind which an honest man is safe from the attack of an entire nation.
We esteem it, I say, a privilege, a great and invaluable right, that we have you twelve men to stand between us and the prejudice of the hour.
We believe that you will hear this case without passion, without hatred, and that you will decide it absolutely in accordance with the law and with the evidence. This is the tribunal absolutely supreme. In a case of this character, gentlemen, you are the judges of what is the law; you are the judges of what are the facts; you are the absolute judges of the worth of testimony; and you have not only the right, but it is your duty to utterly disregard the testimony of any man that you do not believe to be true. You, I say, are the exclusive judges, and for that reason we ask, we beg you, to hear all this testimony, to pay heed to every word, and then decide, not as somebody else desires, but as your judgment dictates, and as your conscience demands. Here before this jury all letters of Attorneys-General, all desires of Presidents, all popular clamor, all prejudice, no matter from what source, is turned simply to dust and ashes, and you are to regard them all simply as though they never had been.
There is one other thing. Some people are naturally suspicious. It is an infinitely mean trait in human nature. Suspicion is only another form of cowardice. The man who suspects constantly suspects because he is afraid. Whenever you find a man with a free, frank, generous, brave nature, you will find that man without suspicion. Suspicion is the soil in which prejudice grows, and prejudice is the upas tree in whose shade reason fails and justice dies. And allow me to say that no amount of suspicion amounts to evidence. No case is to be tried upon suspicion.
No case is to be tried upon suspicious facts. No case is to be tried on scraps, and patches, and shreds, and ravelings. There must be evidence; there must be absolute, solid testimony. A case is tried according to the rocks of fact and not according to the clouds and fogs of suspicion.
No juror has a right to make a decision until he feels his feet firmly fixed upon the bed-rock of truth.
So I say, gentlemen, that we are glad of the opportunity to make a statement of this case to you, and to tell you exactly the manner in which my clients became interested in what is known as the star-route service. You have to be guided in this case by the indictment. That is the star and compass of this trial. You cannot go outside of it. The evidence must be confined to the charges contained in that instrument.
If you find us guilty of a conspiracy, it must be such a conspiracy as is set forth in that indictment. That indictment is the charter of your authority, and you have no right to find us guilty of anything in the world except that which is therein charged.
Now, let me give you an exceedingly brief statement of what we are here for. It is charged in that indictment that all these defendants, including one who has been discharged by a jury, who has been found not guilty, Mr. Turner, including another who is dead, Mr. Peck, conspired together for the purpose of defrauding the United States, and we are met at the threshold with the statement that conspiracy is very hard to prove. It is like any other offence, gentlemen. They say conspirators generally meet in secret. My reply to that is that people generally steal in secret, and the fact that they stole in secret was never deemed an excuse for not proving the offence before they were found guilty. You can see that this is precisely like any other offence in the world. Men when they commit crimes endeavor to get away from the public eye. They are in love with darkness. They do not carry torches in front of them.
And it is so in every crime. But whether conspiracy is difficult to prove or not, it must be established before you can find the defendants guilty. That is a difficulty that the Government must overcome by testimony. The jury must not endeavor to overcome it by a verdict. And I say here to-day that the same rule of evidence applies to this case as to any other, and you must be satisfied by the testimony the Government will offer that these men conspired together; that they entered into an arrangement wherein the part of each was marked out, and that that arrangement was contrary to law; and that the object of that arrangement was to defraud the Government of the United States.
This indictment is kind enough to tell us the means that were employed to carry out that conspiracy. How did they find these means, gentlemen?
They must have had some evidence on which they relied. If they had evidence enough to convince them, they must introduce that evidence here, and if that evidence establishes beyond a reasonable doubt that these men conspired, then you will find them guilty; otherwise not. The difficulty of establishing it is something with which you have nothing to do. How did they conspire? What were the means they had agreed to use? Let us see. Thomas J. Brady was the Second Assistant Postmaster-General. The Postmaster-General was not included in the scheme, consequently they must deceive him. The Sixth Auditor was not included in this conspiracy, and as by virtue of his office it was his duty to go over all of these accounts and pass upon the legality of each item, it was necessary to deceive him. According to the indictment Mr.
Turner was a clerk in the department, and his part of the rascality was, on the jackets inclosing petitions, to make false statements in regard to the contents of the petitions inclosed. The object of that being that when the Second Assistant Postmaster-General, Mr. Brady, exhibited these jackets to the Postmaster-General, it being considered that he would not have time to read the petition, he would be misled by the false statements on the cover touching the contents.
The next step was for the contractors to get up false petitions; that is, petitions to be signed by persons who did not live along the route upon which the mail was to be carried. These petitions also to be forged; that is to say, the names of persons put there by another, or the names of fictitious persons written, when in fact no such persons existed.
The next thing to do was to write false and fraudulent letters; to induce others to write such letters; the next thing, to make false affidavits; and the next thing, to make false orders--those to be made by Mr. Brady--and these false orders were to have, as a false foundation, false petitions, false letters, false communications, false affidavits, and fraudulently written representations.
That is the indictment. That is the scheme said to have been entered into by my clients with all of these defendants, and the object being to defraud the Government of the United States. Now, in order to establish that scheme, it would be necessary for the Government to prove it. Not to assert it. Neither have you the right to infer it. No man can be inferred out of his liberty. No man can be inferred into the penitentiary. That is not the way to deprive a man of his reputation and of liberty--by inference. They must prove it. They must prove that the petitions were false. They must prove that the letters were fraudulent.
They must prove that the orders rested upon those false and fraudulent petitions, letters, and affidavits; and they must prove that Mr. Brady knew them to be false.
It is also stated in this indictment that service was to be paid for when it was not performed; that service was discontinued and a month's extra pay allowed; that fines were imposed and afterwards set aside because the contractors agreed to pay fifty per cent, of such fines to General Brady. I will speak of them when I come to them.
Now, there is a clear statement. What part, then, did my clients play in this scheme? I will tell you. It is charged in the indictment that John M. Peck was in this scheme, and, although he is dead, whatever he did, I imagine, can be established by the Government. A man can be found guilty, I understand, of having entered into a conspiracy with another, although the other be dead, and the living man can be convicted.
Now, it is stated in the outset that my clients never had been engaged in carrying the mail and that is regarded as an exceedingly suspicious circumstance. A man has got to commence some time, if he ever goes into the business, and if this doctrine be true, the first bid that a man ever makes is evidence that he has entered into a conspiracy. Suppose, on the other hand, my clients have long been engaged in this business.
What would the Government counsel then have said? They would have said, gentlemen, that they had been engaged for years in the business. They knew all the tricks that were played, and consequently they were the very persons to form a conspiracy. And that is the wonderful thing about suspicion. It changes every fact. It colors every word it reads and every paper at which it looks; and no matter what are the facts, the moment they are regarded with a suspicious mind they prove what the man suspects.
So, then, the first charge is that we had never been in the business, and consequently our going into the business must have been the result of a conspiracy. Gentlemen, if the doctrine be laid down that it is dangerous for a man to make a bid the result of that doctrine will be to double the expenses of the Government in carrying the mails. All that will be necessary, then, is for the old bidders to combine. They will know that there is no danger of any new men interfering with them, because the new men will be immediately indicted for conspiracy and the old men will have the field to themselves. You can see that this is infinitely absurd. There is only one step beyond such absurdity, and that is annihilation. No man can possess his faculties and get beyond that absurdity, if it is evidence of conspiracy, because it is the first thing.
As a matter of fact, however, John M. Peck had been engaged in the mail business. He was engaged in the business before 1874. He had been interested with others before that time. He was interested in several important routes from 1874 to 1878. It was in the fall of 1877 that he made arrangements to bid at the next letting. He was a business man.
He was not an adventurer. He was secretary at that time of the Arkansas Central Railroad. He had been, I believe, for two sessions a member of the Ar-kansas Legislature. He was in good standing, solvent, and regarded as an honest man. In 1874 he was interested in the bids and, as I said, was engaged in carrying the mails at the time these contracts were entered into. He became acquainted with John W. Dorsey, I believe, in 1874. When he made up his mind to put in more bids for the letting of 1878 he went after John W. Dorsey, and they met together in the city of New York, I believe, in the month of September, and agreed that they would put in some bids for the letting of 1878. Peck was acquainted with John R. Miner and had been acquainted with him for a considerable time.
Mr. Miner wanted to go into some other business than that in which he was then engaged, and those three men made up their minds to bid. Was there anything criminal in that? Nothing. Any men anywhere have the right to combine; the right to form a partnership; the right to come together for the purpose of making proposals for carrying the United States mails. Of course you will all admit that. Now, that is what they did. There was nothing criminal, nothing secret, nothing underhanded.
Everything was above board, open, and in the daylight. There is no conspiracy yet, and we will show that.
John M. Peck had been troubled with a lung disease. He had gotten much better in September, and thought that he was almost well. Later in the fall he took a severe cold and got much worse, and from that difficulty, I believe, he never wholly recovered. He went, however, to Colorado and New Mexico, and finally died.
Now, let us see about John W. Dorsey. I believe that great pains have been taken to say that he was a tinsmith, which is a suspicious circumstance. Why? Is there any law against a tinsmith bidding to carry the mails? Is there any such provision in the statute? And yet that has been lugged forward as one of the evidences of a conspiracy in this case, and it has been lugged forward in a way to cast some disgrace upon this man--simply because he was a tinsmith. Well, do you know I have as much respect for a good tinsmith as for a good anything. What is the difference? Sometimes I have thought I had more respect for a good tinsmith than a poor professional man--sometimes. In this country of all others labor is held to be absolutely honorable, and I think a thousand times more of a man who works in the street and takes care of his wife and children than I do of somebody else who dresses well and lives on the labor of others, and then is impudent enough to endeavor to disgrace the source of his own bread. I think the man who eats the bread of idleness is under a certain obligation to speak well of labor. And yet we have the spectacle in this very court of the Attorney General of the United States endeavoring to cast a little stain upon this man. As a matter of fact, and I am almost sorry to say it, John W. Dorsey is not a tinsmith. I am almost sorry to make the admission. He happened to be a merchant, which is no more honorable but somewhat easier. He dealt in stoves and tinware. That, gentlemen, is his crime, and upon that rests the terrible suspicion that he is a conspirator. And I want to say more, that his reputation for honesty, his reputation for fair dealing, is as good as that of any other man in the State in which he resides. He made up his mind to cast his fortunes with John M. Peck and with John R.
Miner and make some bids for carrying the mails of the United States.
That is all there is about it.
There is, however, another suspicious circumstance, and that is that John W. Dorsey was the brother of Stephen W. Dorsey, and Stephen W.
Dorsey at that time was a Senator of the United States. That is another suspicious circumstance. Whenever you find a man with a Senator for a brother, put him down as a conspirator. Another suspicious circumstance, John M. Peck was the brother-in law of S. W. Dorsey, absolutely married a sister of Mrs. Dorsey, and that was the beginning of this hellish conspiracy. It was suspicious. He intended to rob the Government when he was courting that girl.
Now, we come to another man, Mr. John R. Miner, and the suspicious thing about Miner is that he lives in Sandusky. But that of itself would be nothing. Dorsey lived there once, too. Now, do you not see how they moved to that town with the diabolical purpose of swindling this great Government? Miner was not in very good health--do you not see--pretended to be sick so that he could leave Sandusky; and in some way Miner and Dorsey were excellent friends--another suspicious circumstance; and for several years whenever John R. Miner visited Washington he laid the foundations of this conspiracy by always stopping at the house of Senator Dorsey--another suspicious thing. And do you not recollect the delight, the abandon with which Mr. Bliss emphasized the word house, when he said that they met at Dorsey's house? I had a great notion to get up and plead guilty on that emphasis.. Miner came here. He and Peck were acquainted; and wherever you find four men acquainted, gentlemen, look out, there is trouble. When Miner came here he went directly to the house of Senator Dorsey. I admit it with all the damning consequences that flow from that admission. He did not even go to a hotel. He went directly to Dorsey's house. I want that in all your minds, because the prosecution regards that as one of the foundation facts in this conspiracy, and while admitting it, do you not see how much I save them in the way of evidence.
And there is another damning fact connected with this case. Dorsey in the top of his house had set apart one room for an office. It was up two or three pair of stairs. I think he established his office there to shield himself a little from the people who usually call on a Senator in the city of Washington. But he found that he put himself to more trouble than he did them, so he moved his office to the lower part of the building, and when John Miner got to that house he occupied a room right next to that office upstairs, and sometimes he went in there and wrote.
Now, you see, gentlemen, how that conspiracy was planted; how the branches sprang out of the windows of that room and covered all the territory of the United States. I might as well admit that frightful fact. I do not know that they know that, but I might as well admit it, because we want the worst to come first. Before Miner came here he wrote a letter. There is another place to put a pin of suspicion. He wrote a letter to S. W. Dorsey; that is, it was Miner or Peck, I have forgotten which, and may be that very forgetfulness of mine is another evidence of conspiracy. A letter was written either by Miner or Peck to Stephen W. Dorsey, saying that they were going to bid; that Peck was not well enough to be here at that particular time, and would he be kind enough to hand that letter to some man in whom he had confidence and let that man get such information as he could with regard to the routes upon which they expected to bid--all these Western star routes.
Now, what did S. W. Dorsey do? There was a man in town by the name of Boone. He sent for Mr. Boone, and I believe that Mr. Boone went to Mr.
Dorsey's house, and that Dorsey handed him that letter in his house.
And what was the object of the letter? For Boone to get information regarding these routes. Well, now, what did Boone do? Boone made up a circular which he sent to all the postmasters, or most of them, through Oregon, Washington Territory, Colorado, New Mexico, Nevada, California, Kansas, Nebraska; that is to say, the Western States and Territories; and in this circular a certain number of questions were propounded to each postmaster. First, the distance from that post-office to the next, and from the next to the next, and so through the route. Second, the condition of the roads, whether hilly or level. Third, about the snows in winter and the floods in spring. Fourth, the cost of hay and corn and oats. Fifth, the wages that would have to be paid to the man or men; and it may be some other questions in addition. Now, these circulars were sent by Boone to all the postmasters in consequence of a letter that he received in Dorsey's house. What for? So that by the time that Miner and Peck and John W. Dorsey came they could sit down and bid intelligently upon these routes; so that they would have some information that would guide them; in other words, that they would not be compelled to bid at random.
Now, we will show, gentlemen, that that was done, and if at that time there had been a conspiracy, certainly such information was of no particular value. Now, that is what Mr. Boone did, and I believe that is about all he did at that time. There is no conspiracy yet, no fraud yet. It is utterly impossible to defraud the Government by getting information from postmasters as to the condition of the roads, and as to the distance from one post-office to another. There is no fraud yet, no conspiracy up to this point. In a little while Mr. Miner and Mr. John W.
Dorsey appeared. Ah, but they say Stephen W. Dorsey was at that time a Senator of the United States Yes, he was, and I believe he remained Senator until the 4th of March, 1879. When his brother came we will show to you that Stephen W. Dorsey said to his brother, "I would rather you would not bid; I would much rather that you would keep out of this business, because I am a Senator and somebody may find fault. Somebody may suspect, and consequently I would much rather you would get out of the business." John W. Dorsey did not agree with him. He said he did not see how that could interfere with him, and that he believed he could do well in that business, and the consequence was he went on. There is nothing suspicious so far as I can see in that. That is what we will show.
This man being a member of the United States Senate did what he did out of pure friendship; did what he did for his brother, what he did for Mr.
Peck, and what he did for Mr.
Miner from pure friendship. I know it is very difficult for some people to imagine that any man does anything for friendship. They put behind every decent action the crawling snake of a mean and selfish motive. My opinion of human nature is somewhat different. I have known thousands and thousands of men capable of disinterested actions, thousands of men that would help a brother, a brother-in-law, or a friend, and help them to the extent of their fortune. I have known such men and I never supposed such acts could be tortured into evidence of meanness.
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.