I want you to think of these things, gentlemen, all of you, and see how they will strike your mind. What did they want of Boone? S. W. Dorsey they say was the prime mover. He hatched this conspiracy. Miner, his own brother, Peck, and everybody else were simply his instruments, his tools. What did he want Boone for? He had a magnificent conspiracy from which millions were to come. He told Boone, "I will give you a third of it." What for? He told Moore, "I will give you one-quarter."
Seven-twelfths gone already. T. J. B. thirty-three and one-third per cent. That is about all. Then sixty-five per cent, more to the subcontractors. I want you to think about these things, gentlemen. If they had such a conspiracy what did they want of Mr. Moore?
Mr. Ingersoll. [Resuming.] Gentlemen, was it natural for S. W. Dorsey to get the money back that he had advanced, or some security for it?
Was that natural? When a man seeks to have a debt secured is that a suspicious circumstance? That is all he did. He was out several thousand dollars. He wanted to secure that debt and he took another debt of twenty thousand dollars upon him as a burden. If this had been a conspiracy he could have furnished this money that he had to pay to others to put the service on the route. I leave it to each one of you if that action to secure that debt was not perfectly natural. I will ask you another question. If he was the originator of the conspiracy would he have taken thirty per cent, burdened with a debt of twenty thousand dollars? The way to find out whether there is sense in anything or not is to ask yourself questions. Put yourself in that place; you, the master of the situation; you, the author of the entire scheme. Would you take one-third of what you yourself had produced, and that third burdened with twenty thousand dollars worth of debt, and then make your debt out of the proceeds? I want every one of you to ask yourself the question, because you have got to decide this case with your brains and with your intelligence; not somebody else, but you, yourself. We want your verdict; we want your individual opinion; not somebody else's.
There is the safety of the jury trial. We are to have the opinions of twelve men, and those opinions agreeing. Where twelve honest men agree, if they are also independent men, the rule is that the verdict is right.
The opinion of an honest man is always valuable, if he is only honest, and if it is his opinion, it is valuable. It is valuable if he does not go to some mental second-hand store and buy cheap opinions from somebody else, or take cheap opinions. In this case I ask the individual opinion of each one of you. I want each one of you to pass upon this evidence; I want each one of you to say whether if Dorsey had been the author and finisher of this conspiracy he would have taken thirty per cent., burdened with twenty thousand dollars of debt to others and fifteen thousand dollars of debt to himself? If you can answer that question in the affirmative you can do anything. After that nothing can be impossible to you, except a reasonable verdict. You cannot answer it that way. Why should he have cared so much about fifteen or sixteen thousand dollars with a conspiracy worth hundreds of thousands of dollars? Why run the risk of making the whole conspiracy public? Why run the risk of his detection and its destruction? You cannot answer it.
Perhaps the prosecution can answer it. I hope they will try.
Mr. Ker, on page 4493, makes a very important admission.
After they (meaning the defendants) had these contracts, there was a combination, an agreement between all these people, that they were to do certain things in order to get at the public Treasury and get more money.
What does that mean? That means that this conspiracy was entered into after the defendants obtained the contracts, so that Mr. Ker fixes the birth of this conspiracy after these contracts had been awarded to the defendants. That being so, all the bids, proposals, Clendenning letter, Haycock letter, proposals in blank, and bidders' names left out fade away.
The Chico letter I will come to after awhile. I will not be as afraid of it as were the counsel for the prosecution. I will not, like the Levite, pass on by the other side of the Chico letter. I will not treat it as if it were a leper, as if it had a contagious disease. When I get to it I will speak about it. All these things, then, under that admission, go for naught, and have nothing to do with the case, and consequently nobody need argue with regard to them any more, although incidentally I may allude to them again. There is no doubt, recollect, after this admission. There is no clause in the indictment saying that we endeavored to defraud this Government by bids, by proposals, by bonds, or by contracts. Not a word. That is all out; in my judgment it never should have been in the case at all. What is the next thing we did?
It is alleged that the moment Dorsey got these contracts he laid the foundation to defraud the Government by a new form of subcontract. Let me answer that fully, and let that put an end to it from this time on. Until May 17, 1878, the Post-Office Department did not recognize subcontractors. After these contracts came into the possession of these defendants Congress passed a law recognizing subcontractors.
Consequently the contracts of the subcontractors that were to be recognized by the Government had to be somewhere near the same form as the contracts with the original contractors. The moment the contract of the subcontractor was to be recognized by the Government then it was necessary and proper to put a clause in that subcontract for expedition and a clause in that subcontract for increase of service. Why? So that the Government should know, if the route was expedited, what percentage the subcontractor was entitled to. Instead of that clause in the subcontract being evidence that Mr. Dorsey was endeavoring to swindle the Government, the evidence is exactly the other way. It was put there for the purpose of protecting the subcontractor, so that if expedition was put upon the route the Government would know what per cent, of the expedition to pay the subcontractor. If that clause had not been in that subcontract the Government could not have told how much money to pay the subcontractor, and as a consequence the subcontract would have been worthless as security for the subcontractor. And yet a clause put in for the protection of the subcontractor is referred to in your presence as evidence that the man who suggested it was a thief and a robber. What more? They say to these witnesses, "Did you ever see such a clause as that in a subcontract before?" No. Why? The Government never recognized a subcontractor before that time, and consequently there was no necessity for such a clause. Think how they have endeavored to torture every circumstance, no matter how honest, no matter how innocent, no matter how sensible; how they have endeavored to twist it and turn it against these defendants. Gentlemen, whenever you start out on the ground that a man is guilty, everything looks like it. If you hate a neighbor and anything happens to your lot you say he did it. If your horse is poisoned he is the man who did it. If your fence is torn down he is the fellow. You will go to work and get all the little circumstances that have nothing to do with the matter braided and woven into one string. Everything will be accounted for as coming from that enemy, and as something he has done.
They say another thing: That we defrauded the Government by filing subcontracts. You cannot do it. When this case is being closed I want somebody to explain to the jury how it is possible for a man to defraud this Government by filing a subcontract. I do not claim to have much ingenuity. I claim that I have not enough to decide that question or to answer it. I can lay down the proposition that it is an absolute, infinite, eternal impossibility to fraudulently file a subcontract as against the Government. It cannot he done. Oh, but they say, the subcontractor did not take the oath. There is no law that he should take an oath and there never was. There may be at some time, but there is not now. The law that everybody engaged in carrying the mail and every salaried officer of the department shall take an oath was passed before the law of the 17th of May, 1879, allowing a subcontractor to file his subcontract. Before that time the Government had nothing to do with the subcontractor. If he actually carried the mail; if he actually took possession of the mail, he had to take the oath of the carrier. But I defy these gentlemen to find in the law any oath for a subcontractor.
There never was such an oath. If there is one, find it. The law that every salaried officer and every carrier of the mail shall take the oath was passed years and years and years before the law was passed allowing subcontracts to be filed. What of it? Suppose a man who is a subcontractor carries the mail and does not take any oath. That is as good as to take the oath and not carry the mail. What possible evidence is it of fraud? Suppose it should turn out that the carrier did not take the oath, but carried the mail honestly. What of it? Is it any evidence of fraud? If a man tells the truth without being sworn, is that evidence that he is a dishonest man? If a man carries the mail properly and in accordance with law without being sworn to do so, it seems to me that is evidence that he is an honest fellow, and you don't need to swear him. So when a subcontractor takes a subcontract and carries the mail according to law it does not make any difference whether he swears to do so or not. Is there any evidence in this case that the subcontractors stole any letters on account of not having taken the oath? When they answer, let them point to the law that the subcontractor is to take an oath. There is no such law and never was.
Now, according to this admission of Mr. Ker, the conspiracy commenced after they got the contract. Very well. I need not talk about anything back of that. I do not know whether the admission is binding upon the Government or not. I believe the Court holds that the Government is not bound by the admission of any agent, and that the Government only authorizes an agent to admit facts. May be he is mistaken. The Government only authorizes an agent to admit the law. At any rate Mr.
Ker did the very best he knew how, and he says this conspiracy commenced when they got the contracts, and so we need not go back of that unless the Government is now willing to say that Mr. Ker has made a mistake.
I lay down the proposition, gentlemen, that you need not go back of the division of these routes. Then you must go forward. What was done after that? Recollect the exact position of Senator Dorsey and the exact position of these other people.
The next claim is, although there was no conspiracy until after they got the contracts, that Senator Dorsey was interested in these contracts while he was a Senator of the United States. If they could establish that fact it would not tend to establish a conspiracy. There is nothing in this indictment about it. I admit that if he were a Senator, and at the same time interested in mail contracts, he might be tried and his robes of office stripped from him, and that he could be rendered infamous. But that is not what he is being tried for. They say he was in the Senate, and he was anxious to keep it secret. Mr. Ker says he was so anxious to keep it secret that he sent all these communications out West in Senate envelopes, so they would think a Senator had something to do with it. Then it turned out that all the envelopes were in blank; just plain white envelopes, with nothing on them, and away went that theory.
If he were in the Senate and engaged in these routes also, and wished to keep it a profound secret, because if known it would blast his reputation forever, do you think he would have had all these circulars sent out in Senate envelopes and on Senate paper? If he did allow that to be done, it is absolutely conclusive evidence that he was not interested. Suppose I was trying to keep it an absolute, profound, eternal, everlasting secret that I had anything to do with a certain matter, would I write letters about it? Would I use paper that had my name, the number of my office, and the character of my business printed upon it? Would I? To ask that question is to answer it. Another thing: They claim that he was in the Senate and infinitely anxious to keep it a secret, and yet he found Mr. Moore, a perfect stranger, and said to him in effect: "Yes, Mr. Moore; I don't know you, but I want you to know me. I ama rascal. I am a member of the Senate, but I am engaged in mail routes. I hope you will not tell anybody, because it would destroy me.
I have great confidence in you, because I don't know you." That is the only way he could have had confidence in Moore. He would have to have it the first time he saw him or it never would have come. To this perfect stranger he said, "Here, I am in the Senate, but I am interested in these routes. I am in a conspiracy. I want you to go out and attend to this business. I want you to do all these things, and the reason I tell you is because I am a Senator and I want it kept a profound secret. That is the reason I tell you." That is what these gentlemen call probable.
That is their idea of reasonableness and of what is natural. That may be true in a world where water always runs up hill. It can never be true in this world. It is not in accordance with your experience. Not a man here has any experience in accordance with that testimony or that doctrine; not one. You never will have unless you become insane. If this trial lasts much longer you may have that experience. It is a wonder to me it has not happened already.
There is another queer circumstance connected with this case. While Dorsey told it all to Moore he kept it a profound secret from Boone.
Boone, you know, was in at the first. Boone got up all this information.
Boone was interested in these bids, and yet he never told Boone. He had known Boone, you see, for several weeks. He told Moore the first day, the first minute. He wished to relieve his stuffed bosom of that secret.
Moore was the first empty thing he found, and he poured it into him.
It is astonishing to me that he succeeded in keeping that secret from Boone, but he did. He even kept it from Rerdell.
Rerdell never heard of it--a gentleman who picks up every scrap, who listens at the key-hole of an opportunity for the fragment of a sound.
He never heard it. John W. Dorsey did not even know anything about it.
Nobody but Moore. Now, I ask you, gentlemen, is there any sense in that story? I ask you. I ask you, also, if the testimony of Stephen W.
Dorsey with regard to that transaction is not absolutely consistent with itself? Did he not in every one of those transactions act like a reasonable, sensible, good man? Oh, but they say it is not natural for a man to help his brother; certainly it is not natural for a man to help his brother-in-law, and nobody but a hardened scoundrel would help a friend, and Dorsey is not that kind of a man. Occasionally in a case an accident will happen, and from an unexpected quarter a side-light will be thrown upon the character of a man, sometimes for good, and sometimes for evil. Sometimes a little circumstance will come out that will cover a man with infamy, something that nobody expected to prove, and that leaps out of the dark. Then, again, sometimes by a similar accident a man will be covered with glory. In this case there was a little fact that came to the surface about Stephen W. Dorsey that made me proud that I was defending him. Oh, he is not the man to help his brother; he is not the man to help his brother-in-law; he is not the man to help a friend; and yet, when Torrey was upon the stand, he was asked if he was working for Dorsey, and he said no, and was asked if Dorsey paid him at a certain time, or if he owed him, and he said no. He was asked why, and he replied, "Because only a little while before, when I was not working for him, and my boy was dead, he gave me a thousand dollars to put him beneath the sod." That is the kind of a man Stephen W. Dorsey is. I like such people. A man capable of doing that is capable of helping his brother, of helping his brother-in-law, and of helping his friend. A man capable of doing that is capable of any great and splendid action.
Is there any other man connected with this trial that ever did a more generous, nay, a more loving and lovely thing? How such a man can excite the hatred of the prosecution is more than I can understand.
Now, we have got to the division, and the question arises, was there a division? Let us see. On page 5009 Mr. Bliss admits that Vaile, immediately upon Dorsey's coming out of the Senate, came here for the purpose of settling up this business; that he made up his mind to have no more to do with Dorsey. Then Mr. Bliss makes this important admission, and I do not want any attorney for the Government to deny it.
He admits that in May there was a final division, and that that division was to take effect as from the 1st day of April, and that after that each party took the routes allotted to him, and they became the uncontrolled property of that person, no other person having the right to interfere. There is your admission, just as broad as it can be made.
Mr. Bliss, after having made that admission, which virtually gives up the Government's case, then threw a sheet-anchor to the windward and said, "But when they divided they made a bargain with each other that they would make the necessary papers." What for? To carry out the division. That is all. Now, the only corner-stone for this conspiracy, the only pebble left in the entire foundation is the agreement to make the necessary papers after the division. That is all that is left. The rest has been dissolved or dug up and carted away by this admission. Let us see what that agreement was. Mr. Bliss turned to the evidence of John W. Dorsey, on page 4105:
Q. At the time you sold out, was there any understanding about your making papers?--A. That was a part of the agreement. I was to sign all the necessary papers to carry on the business.
When he sold out he agreed to sign all the necessary papers. It is like this: Mr. Bliss says on such a day, for instance, they divided. Suppose, instead of being routes it was all land. They divided the land and then they agreed to make the deeds. That was the conspiracy; not in the land; not in the agreement about the land; not in the bargain, but in the execution of the papers in consequence of the bargain. That was the conspiracy. They agreed to make all the necessary papers. That was the agreement. Then the Court asked John W. Dorsey a question.
Q. You agreed to sign what?--A. All the necessary papers to carry on the business.
That is what he agreed to do. What else? What were those papers? First, they were to sign all the subcontracts that were necessary, all the Post-Office drafts necessary, and they were to sign letters like this:
The Post-Office Department, in regard to this route, will hereafter send all communications to the undersigned.
In other words, the object was to let the person who fell heir to a given route in the division control that route. That was all. The man who was the contractor agreed that he would sign all the necessary papers. For what purpose? To allow each man who got a route to be the owner of it and control it and draw the money. That is all. And yet it is considered rascality.
Let me call your attention to another piece of evidence on this subject.
On page 5016, Mr. Bliss is talking about all these papers and these letters that were written and apparently signed by Peck, but really signed by Miner, saying, "I want you to send all communications in reference to such a route to post-office box No. so and so, John M.
Peck," sometimes with an M. under it and sometimes without. He did that in consideration of the agreement at the time he got the routes that had been originally allotted to Peck. Mr. Bliss brought here a vast number of these papers, and then he continued, on page 5017:
All those, gentlemen, are orders, dated after the division, many of them coming away down into 1881, and all of them relating to routes with which Peck had no connection, because he severed his connection with all the routes prior to the 1st of April, or as of the 1st of April, 1879.
John W. Dorsey tells you that he signed papers right along--Of course he did. He agreed to--and I have here a series of them. Many of them are orders not in blank. There are among the papers, orders signed in blank, but these are dated, and they are witnessed not always by the same person as indicating that they got together and signed a lot of orders at the time of the division. There is every indication that the dates are correct. The witnesses are different at different times.
The Court. These same orders would have been made if the division had been perfectly honest.
That is what I say. That is what we all say, gentlemen.
If the transaction then had been perfectly honest the papers would have been precisely as they are. From the papers being precisely as they are, do they tend to show that the transaction was dishonest, when it is admitted by everybody and decided by the Court, that if the transaction had been perfectly honest the papers would have been just as they are?
Recollect my text. Every fact when you are proving a circumstantial case has to point to the guilt of the defendants, and their guilt has to be found from all the facts in the case beyond a reasonable doubt. If there is one fact inconsistent with their guilt, the case is gone.
There is another little admission to which I call your attention.
Nothing delights me so much as to have the prosecution in a moment of forgetfulness, or we will say on purpose, admit a fact. Mr. Bliss said, on page 5018:
You will bear in mind that the division took place some eight months previous to that.
That was January 1, 1880,
However that may be, these papers are all papers which on their faces might be innocent and fair and proper. They are papers which, under ordinary circumstances, might be executed to enable others than the contractor to draw the pay and to be tiled with the department, though it appears, I think, by the evidence in this case that no draft could be filed except shortly prior to the quarter as to which it applied. As to these papers all that we have to say is this: they are papers on their face apparently innocent, papers calculated to go through in the ordinary practice as though there was nothing wrong about them. At the same time the evidence shows that they were papers executed by these several parties at the time of or in pursuance of the agreement of the division.
I do not want anything better. That settles the papers. They were made at the time they agreed to make them. It was the only way in which they could give the party who got the route absolute control of the route.
Now, gentlemen, apart from these papers, I believe they have three witnesses, at least they are called witnesses, in this case. The first witness that I will call your attention to, and who figures about as early as anybody, is A. W. Moore. I want to ask you a few questions about his testimony. I want you to understand exactly what he swears to and the circumstances. Let us see.
He swears first that he had a conversation with Miner, in which he told Miner that he would work for him for one hundred and fifty dollars a month and expenses, with permission to put on some of his own service, I think, in Oregon and California, and that Mr. Miner accepted his terms, and employed him as the agent of Miner, Peck & Co. Recollect that, Miner, Peck & Co. Second, that Miner told him to report at Dorsey's house to get instructions. Miner at that time was staying at Dorsey's house. I do not know whether it was to get instructions from Dorsey or from the house, or from Miner. I take it, from Miner. No matter. Mr.
Moore then swears that he reported to Dorsey and Dorsey asked him his opinion about the service. Moore had never been there and did not know one of the routes, but Dorsey was anxious for his opinion. How did he know any more about the service than Dorsey? There is no evidence that Moore knew the price. There is no evidence that he knew the amount the Government was to pay on a single route. He was a stranger. Then he had another conversation with Dorsey in which Dorsey told him that they had bid on the long routes with slow time, because that was the way to make money. Not satisfied with that, Mr. Dorsey showed him the subcontracts with the blanks and with the changes, and then he explained to him the descending scale, and he explained to him the percentage of expedition.
He said Dorsey told him forty per cent, of the expedition. Boone swears it was sixty-five per cent. There is a little difference; not much.
Moore swears that he himself was to have twenty-five per cent, of the stealings. Let us see how that is. Boone swears that the subcontractor was to have sixty-five per cent. Rerdell swears that Brady was to have thirty-three and one-third per cent. That leaves one and two-third per cent, for the contractor. Do you see? The subcontractor got sixty-five dollars out of one hundred dollars, and then Brady got thirty-three dollars and thirty-three and one-third cents. That makes ninety-eight dollars and thirty-three and one-third cents, leaving the contractor one dollar and sixty-six and two-third cents. That was all he got. Did you ever know of anybody on earth doing business at a smaller per cent, and paying for the trouble? Now, Mr. Moore comes in with his statement.
He says the subcontractor got forty per cent, and then he himself got twenty-five per cent. That makes sixty-five. Then, according to Rerdell, Brady was to have thirty-three and one-third per cent. That makes ninety-eight and one-third. There is the most wonderful coincidence in this whole trial. Rerdell and Boone and Moore agree exactly that the contractor gave up ninety-eight and one-third per cent, to others and took one and two-thirds himself. Did you ever know as much humanity in a conspiracy as that? Did you ever know such a streak of benevolence to strike anybody? It reminds me of a case of disinterested benevolence that happened in Southern Illinois. A young man there went to a lawyer and said to him, "I want to get a divorce, I was married at a time when I was drunk, and when I sobered up I didn't like the marriage. I want a divorce." The lawyer asked, "What do you want of a divorce?" "Well,"
he said, "do you know the widow Thompson?" "Yes." "She has been a widow there for about forty years. Do you know her boy? He is the biggest thief in this county. He went over the Ohio River the other day and stole a set of harness and a mule." "What has that to do with this divorce case?" "Well," he said, "I want to get a divorce and I want to marry that widow." "What for?" "I want to get control of that boy and see if I can't break him from stealing. I have got some humanity in me."
Here are S. W. Dorsey, his brother, his brother-in-law, Miner and Vaile starting a charity conspiracy, and out of every hundred dollars that they steal they offer ninety-eight dollars and thirty-three cents upon the altar of disinterested friendship. You are asked to believe that.
You will not do it.
Mr. Moore also swears that he received some money by a check, but he does not know whether the check was payable to him or payable to Miner, and he got a power of attorney signed by Miner from John W. Dorsey and John M. Peck, and then he started, S. W. Dorsey assuring him in the meantime that he could tell the people out there that the service would be increased and expedited in a few days. Mr. Moore is a peculiar man.
He says that that suited him exactly. He was willing to steal what little he could; he was willing to steal for one hundred and fifty dollars a month if he couldn't get any more, or he was willing to steal for a part of the stealing. If he could not get that he would take an ordinary salary. I should think he was a good man from what he says. You heard him. They were wonderfully anxious to prove by Moore that Dorsey was the head and front of this whole business. That was the object, and so he swore as to the instructions. He said he was instructed to get up petitions so that they could be torn off and the names pasted on other petitions. He swore he carried out those instructions. He swore that Major agreed to do it, and I think a man by the name of McBeau was going to do it. Yet, gentlemen, there never was such a petition gotten up.
Major swore here that he never heard of it; that he never dreamed of it, and never agreed to it; that it was a lie; that it was never suggested to him. Moore went out West and came back as far as Denver, and at Denver met John R. Miner, and then came here and saw Dorsey. What did he do with Dorsey? He swears that he went to Stephen W. Dorsey and settled with him, and that Dorsey settled in a very generous and magnanimous way, and did not want to look at his account, and did not want to look at the book; had no anxiety or curiosity about the items. He just said, "How much is it?" It happened to be even dollars--two hundred and fifty dollars. When a man goes out West and has hotel bills and all that sort of thing, when he comes to render his expense account it is always even dollars. Moore said two hundred and fifty dollars. Dorsey gave it to him; never looked at the book at all. Moore swears that he made that settlement with Stephen W. Dorsey on the 11th day of July, 1878. Dorsey was then in the Senate.