The Court. I do not dispute that.
Mr. Ingersoll. Now, the next question, gentlemen, is what is meant by corroboration? If you tell a man that he is not a great painter, he does not get angry. He says he does not pretend to paint, or is not a great sculptor. But if you tell him he has no logic, he loses his temper.
Yet logic is perhaps the rarest quality of the human mind. There are thousands of painters and sculptors where there is one logician. A man swears, for instance, that he went down to a man's house in the morning at six o'clock, and that Mr. Thomas was standing just in front of the house, and when he went in the dog tried to bite him, and that after he got in he had such and such conversation. Now, there are thousands of people who have brains of that quality that they think the fact that he did go there at six o'clock in the morning, and did see Mr. Thomas standing out in front of the house, and especially the fact that the dog did try to bite him, is a corroboration of the conversation that took place in the house. There are just such people. In this case, for instance, in Mr. Brady's matter, they say that the fact of Walsh being in his house is important. Suppose that he was, what of it? Is that corroboration? Corroboration must be on the very point in dispute. It must be the very hinge of the question. Then it is corroboration, if the question is what did the man say. It is not corroboration to prove that the man was there unless the man swears that he was not there. Then the inference is drawn that if he would lie about being there he might lie about what he said.
Now, understand me. They will say, for instance, "Here is an affidavit, and these blanks have been filled up. Rerdell says they were filled up, and he says they were filled up after they were sworn to." Now, the fact that the affidavit is there and that the blanks are filled up is not corroboration, because the point to be corroborated is that it was done after it was sworn to. And so the existence of the affidavit, while it is necessary, is no corroboration; the filling up of the blank is no corroboration; its being on file is no corroboration. Why? The point to be corroborated is not that the blanks were filled, but that they were filled after the paper had been sworn to! That is the point. And when they begin to talk to you about corroboration I want you to have it in your minds all the time that to be corroborated about an immaterial matter is nothing; it has nothing to do with the question; but there must be corroboration on the very heart of the point at issue!
There is another thing, gentlemen. It does not make any difference what I say about this man, or that man, or the other man, unless there is reason in what I say. If I tell you that the evidence of a witness is not worthy of belief, I must tell you why. I must give you the reason.
If I simply say the witness is a perjurer, that shows that I either underrate your sense, or have none of my own, because that is not calculated to convince any human mind one way or the other. You are not to take my statement; you are to take the evidence, and such reasons as I give, and only such as appeal to your good sense. If I say, "You must not believe that man," I must give you the reason why. If the reason I give is a good one, you will act upon it. If it is a bad one I cannot make it better by piling epithet upon epithet. There is no logic in abuse; there is no argument in an epithet.
And there is another thing. An attorney has a certain privilege; he is protected by the court. He is given almost absolute liberty of speech, and it is a privilege that he never should abuse. He should remember if he attacks a defendant, that the defendant cannot open his mouth. He should remember that it does not take as much courage to attack, as it does not to attack. He should remember, too, that by the use of epithets, by abuse, that he is appealing to the lowest and basest part of every juror's head and heart. It is on a low level. It is a fight with the club of a barbarian instead of with an intellectual cimeter.
There is no logic in abuse. There is no argument in epithet. Remember that. The weight and worth of an argument is the effect it has upon an unprejudiced mind, and that is all it is worth. Therefore I do not want you, gentlemen, to be carried away by any assault that may be made--I do not say that any will be made--but any that may be made, that is not absolutely justified by the evidence.
There has been one little thing said during this trial; that is, about the testimony of defendants. I believe Mr. Bliss takes the ground that you cannot believe a defendant; that defendants cannot be believed unless they are corroborated. Mr. Bliss has the kindness to put the defendants in this case on an equality with his witness Rerdell.
Gentlemen, you cannot believe any witness unless his evidence is reasonable. Every witness has to be corroborated by the naturalness of his story. Every witness is to be corroborated by his manner upon the stand and by the thousand little indications that catch the eye of a juror or of a judge or of an attorney. Congress has passed a law allowing defendants to swear when they are put upon trial. Will you tell me that that law is a net, a snare, and a delusion, and the moment a defendant takes the stand the prosecution is to say, "Of course he will lie"? Why do they say that? Because he is a defendant, and you cannot believe a word that he says; he is swearing in his own behalf. There is that same low, slimy view of human nature again, that a defendant who swears in his own behalf must swear falsely. I do not take that view.
The defendant has the same right upon the stand that anybody else has, and if his character is not good his character can be attacked; it can be impeached by the prosecution precisely as you would impeach the reputation of any other witness. If he tells a story which is reasonable you will believe it, and you will believe it notwithstanding he is a defendant and notwithstanding he has an interest in the verdict. In old times they would not allow a man to swear at all if he had the interest of a cent in any civil suit. They would not allow him to testify when he was on trial for his own liberty and his own life. That was barbarism.
The enemy--the man who hated him--he could tell his story, but the man attacked, the man defending his own liberty and his own life, his mouth was closed and sealed. We have gotten over that barbarism in nearly all the States of this Union, and now we say, "Let every man tell his story; don't allow any avenue to truth to be closed; let us hear all sides, and whatever is reasonable take as the truth, and what is unreasonable throw away." And, gentlemen, let me say here that it is not your business to go to work picking a witness's testimony all apart and saying, "Well, I guess there is a little scrap now that there is some truth in," or "here is a line, and I guess that is so, but the next eleven lines I do not believe; the next sentence, I think, will do." That is not the way to do. If a witness is of that character you must throw his entire evidence to the winds, for it is tainted and the fountains of justice should not be tainted with such evidence, and a verdict should not be touched and corrupted with such testimony. You will take the evidence of these defendants as you would take that of any other man, and it is for you to say whether that evidence is true. It is for you to say that.
If corroboration was so necessary why were not their witnesses corroborated? Why didn't they call Mr. Bosler to corroborate their witness?
Now, one of the defendants in this case is Mr. John R. Miner, and I want you to think of the terrible things they have against him. One of the charges made against him is that he wrote a petition and wrote in six names attached to it. His explanation is, that if he did anything of that kind it was because he received a petition which was so worn that it could not be presented, and he copied it, and that the six names were found on that petition. There was no other way on earth for him to get those names, and we find them on the same route in, I believe, seven other petitions which were filed; we find that those very names are on the other petitions, and I think Mr. Hall's name--the one the most trouble was made about--was on three or four petitions of the other kind.
Mr. Carpenter. He admitted that he wrote them.
Mr. Ingersoll. Yes; Hall admitted that he wrote them. But I believe this petition was never filed in the department.
I think Mr. Woodward said he found it among the papers at some other place.
There is a petition called the Utah petition that has some names in Utah. I think Mr. Woodward swore that he tound it in room No. 22 or 23.
Mr. Merrick. In the case itself, in the department.
Mr. Ingersoll. Yes; but it has no file mark. Mr. Woodward says he does not now remember how it got in there. As I was about to remark, there was a petition called the Utah petition with some names of persons living off the route, I believe--two or three sheets. The petition itself was genuine, and was indorsed, I believe, by Senators Slater and Grover and by Congressman Whiteaker. Now, then, how did these names come in there? The petition is ample without those names; large enough.
I will tell you what I think. I think that it is a part of another petition, and that it was the result of an accident. I think it was done in the Post-Office Department, not intentionally, but as an accident.
The evidence is that they kept three routes in one pigeonhole, and that the papers sometimes got mixed; that is Mr. Brewer's testimony. A very strange thing happened to that petition. While it was before this jury it came apart again. And if some clerk not absolutely familiar with the papers had taken it up, he would have been just as liable to put it on the wrong petition as on the right one. My plan is to account for a thing in some way consistent with evidence, if I naturally can. I do not go out of my way hunting for evidence of crime. And when there was a petition, large enough, with a plenty of genuine names on it, I cannot imagine anybody would go and get names from any other petition and paste them on to that. But being in this same country, and the testimony being that they had three of these routes in one pigeon-hole, my idea is that the papers got mixed and mingled sometimes, and I say the probability is that it was an accident. That is the best way to account for it. If Miner had known that that petition was there that he had made, would he have allowed it to stay there? Why would he want to do such a thing if he was in a conspiracy with Brady? Why would he have to resort to perjury and interlineation in order to get Brady to make orders that he, Brady, had conspired to make? Absurdity cannot go beyond that. Here is the doctrine: "I have conspired with the Second Assistant Postmaster-General. He will do anything for me that I want. Now, I will go and forge some petitions." That seems to me perfectly idiotic. This petition was indorsed by Senators Grover and Slater and Congressman Whiteaker.
Then, there is another petition; that one I showed you this morning, with the words "schedule thirteen hours," and the evidence was (that is, if you call what Rerdell stated evidence) that Miner wrote the words "schedule thirteen hours." I have shown you, this morning, those words, and without any other particle of argument I want to leave it to you who wrote those words--whether Rerdell wrote them or Miner.
Then, there is another wonderful thing about that petition. It is not on any of the routes in this indictment, and has no business here--I mean the Ehrenberg petition. The one I spoke of was the Kearney and Kent.
The next petition is the Ehrenberg and Mineral Park. They say that there has been some word erased and another written in. Nobody pretends that it is not a genuine petition. Nobody pretends that it was not signed by every one of the persons by whom it purports to be signed. Then, another peculiarity; it is not on any route in this indictment, and has no more to do with this case than the last leaf of the Mormon Bible; not the least.
Let us see if they have any more of these terrible things. Here is petition 2 A, on the Kearney and Kent route. That is the petition that has the words "schedule thirteen hours."
That is the one indorsed by Senator Saunders. Petition 18 K, on the route from Ehrenberg to Mineral Park, is not a route in this case. It turned out that the names on it are genuine, and the genuineness of the petition has not been challenged. The only point made is that the word "Ehrenberg" has been written by somebody else. There is no evidence to show that the petition was not properly signed; that the persons on there did not sign their names or authorize somebody else to do it. The probability is there may have been some mistake in the name, or it may have been misspelled. There was some mistake made, and the word "Ehrenberg" was written in. On page 4186 Mr. Miner swears positively that in regard to the petition 2 A he never wrote the words "schedule thirteen hours."
Then, there is another petition, I think it is on page 1247, the Camp McDermitt petition. There are the words "ninety-six hours." And they get that down there to a fine point. Mr. Boone swore that he did not know who wrote the word "ninety," but that Miner wrote the word "six.." Well, that is too fine a point, gentlemen, to put on handwriting. It seems there is an interlineation there of the words "ninety-six," and they say they do not know who wrote the word "ninety" and that Miner wrote the word "six." But Miner swears that he did not write it at all.
Now, then, you take away the evidence of Mr. Rerdell as to Miner, and what is left? The evidence left is that of A. W. Moore. And what is that? It is that Miner instructed him to get up false petitions. This was the first time he ever went out. But Moore swore that he made arrangements to do what Miner instructed him to do; that he made such arrangements with Major; but Major swears he did not. Moore swore that he made some arrangement with McBean, and the Government did not ask McBean whether he did or not, but I will show that he did not. The testimony shows that on the first trip, at the time he saw Major, he did not see McBean. Now, just see. He swore, in the first place, that he made that arrangement with Major and McBean. I find afterwards that his evidence shows that he did not see McBean on the first trip, but he did see him on the second.
On page 1408 we find that when Moore went West the second time--when he left here and had made a bargain with Dorsey for one-quarter interest in his route, and Miner told him to go West and let Dorsey's routes go to the devil, and he said he would, and never notified Dorsey that he was going to do it--that man comes here now and swears that he made a contract with Dorsey for one-quarter interest, and then started West and made a contract with Miner, letting Dorsey's routes go. He did not have the decency to even notify Dorsey that he was going to do so. That is the man. On the first trip he did not agree with anybody about petitions. Now, understand my point, because it kills Mr. Moore again.
We have to keep killing these people--keep killing them. It is something like the boy who was found pounding a woodchuck. He was pounding him away in the road with all his might, and a man came along and said to him, "What are you pounding that woodchuck for?" He said, "Oh, I am just pounding him." "But," the man said, "he is dead." "Yes, I know it," said the boy, "but I am pounding him to show him that there is punishment after death."
Now, on page 1408, we find that this man Moore went to the West a second time. I have shown you that the first time, he swears that he did not see McBean at all. He saw Major and made the arrangement with him, he says. Major swears that he did not. They do not put McBean on the stand.
Now, he goes a second time.
On the second trip, he says he had nothing to do with the petition business at all, and did not explain the petition business to anybody because he had not the time, and on the first trip did not see McBean at all. And yet he swears that he made an arrangement with McBean about these very petitions. The proof that he did not see Mc-Bean on his first trip is found on page 1398.
There is one other point about which we have heard an immensity of talk and upon which a great deal of air has been wasted, and that is, that there was a bargain that Brady was to have fifty per cent, of all the fines that he remitted. In other words, that he made a bargain with his co-conspirators that if he fined them a thousand dollars and then remitted it, that he was to have five hundred dollars or one-half of that fine. That is a nice bargain; for me to put myself in the power of a man and say, "Now, you fine me what you want to, and then if you will take it off, I will give you half of it." It seems to me that that would be quite an inducement for him to fine me. Yet, here is a man who makes a bargain that Brady may impose a fine upon them and that he may have half of it back--that is, upon their doctrine, although they have never proved it, but they state it just the same as though they had. But here are the facts. Here are the fines and deductions on twelve routes.
The fines amount to eighty-nine thousand six hundred and thirty-eight dollars and twenty-two cents and the remissions amount to seven thousand four hundred and twenty-eight dollars and fifty-four cents; that is all. And yet they pretend that we had a bargain. Now, come to the mail routes, and we find that the fines amounted to sixty-one thousand two hundred and thirty-two dollars and twenty cents and all that they could get their co-conspirators to take off of that (although according to the doctrine of the prosecution they were to have fifty per cent.) was thirteen thousand eight hundred and fifty dollars and sixteen cents.
That was all they could get off. There are the figures. There has been talk enough on that subject, but all the air that wraps the earth could not answer those facts. Words enough to wear out all human lips could not change those facts. Fines eighty-nine thousand dollars, remissions seven thousand dollars; fines sixty-one thousand dollars, remissions thirteen thousand dollars. And yet they pretend that he had a bargain by which he had fifty per cent, of all he remitted. I need not make any more argument on that point.
There have been one or two things in this trial that I have regretted, and one I find in Mr. Ker's speech. And I find frequent reference to it in other places, and that is the blindness of S. W. Dorsey. Affidavits were made by Drs. Marmion, Bliss, and Sowers that Mr. Dorsey had lost at least eleven-twelfths of his vision. And yet it has been constantly thrown out to you that it was a ruse, a device, and I believe Mr. Ker said in his speech that Mr. Dorsey saw a paper in Mr. Merrick's hand, Mr. Merrick, I believe, holding a balance-sheet from the German-American Savings Bank--a paper several feet wide or long--and because Mr. Dorsey said to him, "I believe you have it in your hand," why they said this man is pretending to be blind. His testimony was that he had been in a dark room for three months; that his eyes had not been visited by one ray of light for three months, and that for six months he had not read a solitary word. And yet the prosecution sneeringly pretended that there was nothing the matter with his eyes. They subpoenaed Dr. Marmion, but they dare not put him on the stand. They threw out hints and innuendoes that these doctors had sworn falsely, but they dare not put it to the test. It seems that nothing in the world can satisfy them about Stephen W. Dorsey except to see him convicted, except to have them put their feet upon his neck. Gentlemen, you never will enjoy that pleasure. You never will while the world swings in its orbit find twelve honest men to convict Stephen W. Dorsey--never. This Government may put forth its utmost power; it may spend every dollar in its Treasury; it may hire all the ingenuity and brain of the country, and it can never find twelve men who will put Stephen W. Dorsey in the penitentiary--never, and you might as well give it up one time as another. Try it year after year; poison the mind of the entire public with the newspapers; get all the informers you can; bring all the witnesses you can find; put all of those whom you call accomplices on the stand, and I give you notice that it never can be done, and I want you to know it. Spend your millions, and you will end where you start. As long as the average man runs there will always be one or two honest men in a dozen; so you cannot convict one of these defendants. Go on, but it will never be accomplished.
There is one other thing which perhaps may be worth noticing. I believe that they proved by Mr. Dorsey that he wrote an account of his relation to this business, and published it in the _New York Herald_. The only point with which Mr. Merrick quarreled in that entire paper was the statement that Peck was a large contractor, and when Dorsey was put on the stand he explained that while Peck had not many routes in his own name, that he was the partner of a man named Chidester. That is the only thing of which he complained, and yet that communication pretended to tell the relation that Dorsey sustained to this entire business, and if that had not accorded precisely with Dorsey's testimony on the stand every word of it would have been read to you again and again. And Mr.
Ker says that letter was written for the purpose of poisoning public opinion. Was the letter of the Attorney-General of the United States, written just before this trial began, written to bias public opinion also?
Mr. Merrick. Is there any evidence of that letter in this trial? If not I object to any reference to it.
The Court, You cannot refer to that, because it is not in the case.
Mr. Ingersoll. I take it back. Was Dickson indicted to bias public opinion?
Mr. Merrick. I object to that also. He was indicted by the grand jury on competent testimony.
The Court. There is no evidence in this case that he was indicted.
Mr. Ingersoll. I will take it back then. I would ask the Court, however, after the attorney for the Government has said that Dorsey wrote that letter to bias public opinion, if I have not the right to say that he wrote that letter because letters had been written by others.
Mr. Merrick. Not unless those letters are in proof.
The Court. The fact that he wrote the letter is in evidence in the case.
That of course makes it the proper subject of comment on either side.
Anything else not in evidence is not a subject of controversy.
Mr. Ingersoll. I will take it for granted, however, that the jury understand what is going on in this case.
Mr. Merrick. Yes, they understand the evidence.
Mr. Ingersoll. I understand that the jury, as members of this community, as citizens of the United States, have at least a vague idea of what the Department of Justice has done.
It is also claimed, and has been claimed, and I have answered it again and again and again, that S. W. Dorsey is the chief conspirator. Why? Is it possible that it is because he was the chief man politically? Is it possible that any politician was envious of his place and power? Is it possible that any politician was envious of the influence he had with President Garfield? Is it possible that he had interfered with the career of some piece of mediocrity? Why is it that he is made the chief figure? These are questions that are asked and questions that you can answer. How does it happen that his name never figures in any division?
That his name never figures in any paper made in regard to this business? How does it happen that when he was contending with the German-American National Bank that he must be paid, how is it that it never occurred to Miner or Vaile to tell him, "Why, this is a conspiracy of your own hatching. You advanced this money to give life to your own bantling, and you have got to wait until the conspiracy bears fruit, and if you are not willing to wait you can do the next worse thing, have it made public"? If at that time, when he was opposing and fighting Vaile because he had cut out his security, Vaile had known that Dorsey was in the conspiracy, one word from him and Stephen W. Dorsey's mouth would have remained shut forever. But it did not occur to Miner, it did not occur to Vaile. That won't do. Why didn't Vaile say to him, "Mr. Dorsey, you are making a great deal of fuss about a few thousand dollars. You are in the Senate; you are interested in these routes, and I want to hear no more from you"? Why didn't he say it? Because it was not true; that is why.
Now, gentlemen, if what the prosecution claims is true, not only Stephen W. Dorsey, not only Thomas J. Brady, not only John R. Miner, not only H.
M. Vaile, and John W. Dorsey are guilty of conspiracy, but hundreds and hundreds of other people. Do you believe it is possible that all the persons who petitioned for an increase of service, who petitioned for expedition--do you believe they were in a conspiracy? Do you believe they were dishonest men, and do you believe they asked for what they did not want? Do you believe that these defendants had at their beck and call the representatives of the entire great Northwest? Do you believe that members of Congress of the Lower House and of the Senate were their agents and tools? Was Senator Hill a conspirator? Was the present Secretary of the Interior a conspirator? Were Senator Grover and Senator Slater also conspirators? Were generals, judges, district attorneys, members of State and Territorial Legislatures--were they all conspirators? Did they indorse false petitions for the purpose of putting money in the pockets of these defendants? Let us be honest.
Do you believe that General Miles was a conspirator, or that General Sherman, whose title is next to that of the President, and whose name is one synonymous of victory, entered into a conspiracy? Do you believe that he knows as much about the mail business as Colonel Bliss? Do you believe that he knows as much about the wants of the great Northwest as the gentlemen who are prosecuting this case? Was he a conspirator with their Representative in Congress from Oregon? Was Horace F. Page a conspirator? These are questions, gentlemen, that you must answer.
Were all these men, these officers of the Army, State officers, Federal officers, and men of national reputation--were they all engaged in a conspiracy; were they endeavoring to assist these defendants in plundering the Treasury of these United States? These are questions for you to ask and questions for you to answer. Is it not wonderful that such a conspiracy should have existed in all the Western States at one time?