It is also claimed that the persons who sold out--that is to say, John M. Peck and John W. Dorsey--agreed to make the necessary papers that the other parties required. That being so, why should not affidavits have been made in blank? Now, I ask you if the other parties were willing to swear to anything that these men would write, why were they made that way? Why not avoid the suspicious circumstance of blanks and put the amount in at first, knowing that the men would not hesitate to swear? Of what use was it, gentlemen, to have an affidavit suspiciously made, to have blanks suspiciously left, when the men were willing to swear to any numbers they would put in? Why did not the parties who made the affidavits write in the amounts? Does not that very fact, that blanks were left, show that they were to take the judgment of the men who were to do the swearing? Why would they leave blanks? Why did they not fill them up at the time and have them sworn to?
Why were they not continuously written? That is another point, if this was a conspiracy. Guilt is always conscious that it is guilty. Guilt is always suspecting detection. Guilt is infinitely suspicious. Guilt would make all the papers as nearly right as possible. Guilt would look out for erasures. Guilt would abhor blots. Guilt would have avoided having blanks filled in with different colored inks. Guilt would want everything fitting everything else, nothing to excite suspicion.
Innocence is negligent. The man with honest intentions is the one that does not care. But the guilty man does not travel in the snow. He wants no tracks left.
Now, another thing: The fact that no effort was made to have the affidavits in the same handwriting, no effort to have the blanks apparently filled at the same time, that they were interlined, that there were erasures--all those things tend to show that the parties were honest in what they did. It was just as easy to have one without an erasure as with it; ii was just as easy to have one continuously written as to have the blanks filled up; just as easy to have one without any interlineations as with it. And yet these parties, knowing that they were conspirators (according to these gentlemen), Mr. Brady occupying a high and responsible position, were so careless of their reputations, that they did not even endeavor to make the papers passable upon their face.
Another thing: These very routes were investigated by Congress in 1878--this very business. If the parties at that time had been conscious of guilt, why were any suspicious papers left on file? Why were not others substituted that had no suspicious interlineations, no suspicious erasures, no suspicious blanks that had been filed? Why were these very affidavits at that time reported to Congress?
The first investigation was in 1878, and on account of that investigation the contractors for about a month and a half were left.
Then there was another investigation in 1880.
Mr. Merrick. Is there any evidence that they were all reported to Congress?
Mr. Ingersoll. I think so; I think that is here in the record. I understand the evidence to be that it was all reported to Congress.
Mr. Merrick. The investigation of 1880 was general, and not as to these particular routes.
Mr. Ingersoll. In 1878 there was a special investigation growing out of these Clendenning bonds and out of the Peck bids, and out of the connection that they said Stephen W. Dorsey had with this business. That is what it grew out of. Now, in the light of that investigation, let us take it for granted for one moment that according to their statement the parties had conspired. If anything on earth would make them afraid about papers I think it would have been that investigation; and yet no effort was made to conceal one, not the slightest.
Then we will go another step. General Brady was Second Assistant Postmaster-General. All these papers were absolutely in his power. He could have called for them at any time. Every suspicious paper could have been destroyed or an unsuspicious one substituted for it.
Now, I want to know if it is conceivable that General Brady, under these charges, when the new administration came in, under the threat of the Government, would voluntarily leave those papers upon the files if they had been dishonest and he knew it?
Take another step. So far as we have learned from the prosecution I believe there is one paper claimed by them to have been lost. They do claim that there was a second affidavit on the Bismarck and Tongue River route. One is gone and one remains. Which remains? The affidavit for one hundred and fifty men and one hundred and fifty horses. It seems to me absolutely capable of demonstration that we did not take the one that is gone. Had we been going to take anything we would have taken the one for one hundred and fifty men and one hundred and fifty horses, and left the other. But the other, about which nobody ever did complain, was taken, and the one upon which they build their great argument of fraud upon that route was left. And then it turned out that General Brady only allowed forty per cent, of that affidavit.
Now, this prosecution was not begun in a moment. It was talked about for weeks and months, I might almost say for years. Talk, talk, talk in the papers everywhere. These men were not suddenly charged with this offence. They understood it; they knew it. I think I have been engaged in this suit, or suits growing out of this business, for two years. It was a matter of slow growth. Mr. Brady retired, I believe, some time in April, 1881, knowing at that time that these charges had been made and that the charges were being pressed. Mr. Dorsey knew it at the same time. All these defendants knew it. Now they say that at that time we were in conspiracy with Mr. Brady, and they say that at that time we were in conspiracy with Mr. Turner. We had the papers in our power.
Now, if Mr. Dorsey was wicked enough to conspire, if Mr. Brady was villainous enough to conspire, I ask you whether they would have left behind the evidence of their conspiracy? Why were the papers left?
Because General Brady never dreamed that one of them was dishonest.
Why did not Vaile and Miner, John W. Dorsey and Peck and Stephen W.
Dorsey ask for the papers? Because they believed every one to be honest, and they had no use for them. They were willing that the Government should make out of them what it could. I ask again, is it conceivable that John R. Miner, if he knew there was on the files of the department a petition that he had changed, that he had erased, that he had interlined or forged, is it conceivable, if he had been wicked enough to enter into the conspiracy, that he would have been foolish enough to leave the paper there? Would he not have gone to Brady and said to him, "I conspired; you know it; I changed the petition, and I want it; I erased a word in a petition, I want it; I signed a name to a petition, I want it"? And Brady would have said, "Yes, and you ought to have called for it long ago; you can have it." If S. W. Dorsey had interlined an affidavit or had filled a blank, if S. W. Dorsey had made an erasure or an interlineation, he, of course, must have known it, and if he conspired with Brady he must have known it, and he must have gone to General Brady and said, "I want that affidavit on such a route; we can write another, and I want that; I want that petition;" and it would have been given. You cannot conceive of such infinite stupidity as to say that those people knew that those papers were dishonest, and that they still left them on file as weapons for their enemies. You cannot do it.
So much, gentlemen, for the affidavits, and so much for the papers.
Now, there is another question, and I have no doubt that you have asked it yourselves. It has been asked a great many times by the prosecution.
That question is this: Why did Dorsey retain Rerdell in his employ after the 20th of June, 1881? These gentleman tell you that it is evidence of guilt that he did it. I will tell you why he did it. At that time the public mind was almost infinitely excited on this question. At that time the public was ready to believe anything. It had its mouth wide open, like a young robin, ready for worms or shingle-nails--it made no difference--anything that dropped in. Every newspaper was charging that these defendants were guilty, that Stephen W. Dorsey was a conspirator, that millions had been taken from the Treasury, and there were nearly as many mistakes in the press then as in the speech of Mr. Bliss now. But I can excuse that, because it was before the evidence. Now, what was Mr.
Dorsey to do in the then state of the public mind? That man, no matter how bad he was, how base he was, had the power to have him indicted.
That man could have gone before the grand jury and had Mr. Dorsey or any other public man indicted in the then state of excitement and feeling of the public. What was the result of his going even to James and MacVeagh?
I believe Mr. Turner says that on account of the statement of this man Rerdell, he (Turner) was turned out of his office. That is the effect.
What became of McGrew? What became of Lilley? What became of Lake? What became of twenty or thirty other officials upon whose reputation this man had breathed the poison of slander? Stephen W. Dorsey at that time knew that that man in the then state of public excitement was powerful for mischief. That man made the affidavit of June, 1881, at the request of James W. Bosler, as he himself says, and swore that he went to the Government simply to find out the Government's secrets; swore that he was still upon the side of Stephen W. Dorsey; took back what he had said, and swore that it was a lie. The question then was what to do with him? Stephen W. Dorsey made up his mind not to do anything more, just to let him alone, just let him stay as he was. That was the wise course.
It was the course that any wise man, in my judgment, would have pursued under the circumstances. What else could he do? Let him alone. Let him alone. He did not at that time expect that he would ever be indicted. He shrank from an indictment, as every sensitive man does, because when you have indicted a man you have put a stain upon him that even the verdict of not guilty does not altogether remove. He did not want that stain.
He was a man of power; he was a man of position, a man of social and political standing, a man wielding as much influence as any other one man in the United States. He did not wish to be indicted. He did not wish his reputation to be soiled and stained. And so he allowed that man to stay where he was. He may have made a mistake, but whether mistake or not, that is what he did.
There is another question. Why did we fail to produce our books and papers? I will tell you. The notice to produce them was given to us on the 13th day of February. We had noticed curious motions. Two days afterwards, Mr. Rerdell went on the stand. What did they want the books and papers for? For Mr. Rerdell to look at. Why did he want to look at the books and papers? To stake out his testimony. He hated to depend upon his memory. We took the responsibility of letting the witness swear to the contents of the books and papers, and let them call that secondary evidence. We took that responsibility rather than to furnish the books and papers to be looked at by that man in order that he might make no mistakes in his testimony. What happened afterwards justified our course. If we had shown to him the books and papers, and checks, and stubs, do you think he would have made any mistake about that seven thousand five hundred dollar check? Would he have said that he went with Dorsey, and that Dorsey drew the money, and that he looked over his shoulder, and that then he and Dorsey walked down to the Post-Office Department, if he had known that that check was drawn to his order? If he had known before he swore, that he indorsed that check, he would have said he went down and got the money himself; he would not have said that Dorsey did. He would have made no mistakes there. He would not have been driven into the corner of saying "stub" or "stubs," "checkbook"
or "check-books," "amount" or "amounts." No, sir. And that one thing justified absolutely the wisdom of our course.
Then the Court decided that, having failed to produce our books on notice and allowed the other side to introduce secondary evidence of their contents, we would not be allowed then to produce them. I insisted that we had the right then to produce them, and the Court decided that we had not. We took the responsibility of refusing, and we took that responsibility because we made up our minds that we would not allow that man to look over the books, checks, and stubs for the purpose of manufacturing his testimony.
The Court. Where did you offer to produce the books?
Mr. Merrick. Where did you offer the production of the books? That is just what I was about to ask.
Mr. Carpenter. The Court said we could not.
Mr. Merrick. Where did you make the offer?
The Court. I want to know.
Mr. Carpenter. Mr. Ingersoll did not say he made the offer.
Mr. Merrick. I think he did.
The Court. I think he did.
Mr. Carpenter. Just read it, Mr. Stenographer. He says nothing of the kind.
The Stenographer, (reading)
I insisted that we had the right then to produce them, and the Court decided that we had not.
Mr. Ingersoll. That is exactly what I say.
The Court. The Court did not give any intimation at that time, but after that point in the trial had passed, several days, several weeks, I think, the attention of the Court was called to this question, and the Court remarked, in the course of the opinion, that it understood the law to be that after a party, upon whom notice had been given to produce books, had failed to produce the books, and the other side had given secondary evidence, then the Court would not allow the party having the books to produce them for the purpose of contradicting the secondary evidence.
Mr. Ingersoll. That is all I claim.
The Court. But there was no such offer made, so far as I recollect.
Mr. Ingersoll. Why should we make the offer after your Honor had decided that we could not do it?
Mr. Merrick. I will answer the question. Because whether it would have been accepted or not was a question for the counsel for the Government when the offer was made. And again, the learned counsel will recollect that after the notice was given, when S. W. Dorsey was on the stand on cross-examination, I demanded those books and those stubs, and he asked leave to consult his counsel. The Court denied that request, and then there was a peremptory refusal to produce any book or any paper.
The Court. Oh, yes. Mr. Ingersoll and Mr. Davidge repeatedly announced to the Court that they were not going to produce books to assist the prosecution.
Mr. Ingersoll. Yes; I said that twenty times, and the Court, as I understood it, held that after we had refused to produce the books and driven the other party to secondary evidence, we could not then produce the books.
The Court. You made no offer to produce the books.
Mr. Ingersoll. I resisted the opinion of the Court and made the best argument I could, but the Court said that was not the law.
The Court. The remark of the Court arose upon an argument on the part of Mr. Ingersoll, and if I am not mistaken, upon the effect of the refusal to produce the books and papers, Mr. Ingersoll contending that there was no presumption against his client on account of the refusal to produce the books and papers, and that the jury ought to be instructed that the only effect of refusing to produce the books and papers was to leave the case upon the secondary evidence.
Mr. Ingersoll. I am not referring to that discussion, nor to that decision of your Honor; I am referring to the decision you made during the trial.
The Court. That was the only occasion since this trial began, in which the Court referred to that rule of law which denied the right to introduce primary evidence for the purpose of contradicting the secondary evidence, after the primary evidence had been withheld in the first instance.
Mr. Ingersoll. Of course, I am not absolutely certain, I never am; but I will endeavor to find in the record exactly what you said on that subject.