That is the question: Have they made out a case according to the scheme of the indictment? Has the conspiracy as laid been proved by the evidence?
"I think that as to Watson it is not. He is charged with conspiring to procure this appointment through the medium of Mrs. Harvey, of whose existence for aught that appears he was utterly ignorant. When a conspiracy is charged it must be charged truly."
He did not know that Mrs. Harvey was to have a portion of the money, and yet she was a member of the conspiracy. The evidence showed that she was to have a portion of it, and Lord Ellenborough says that they did not prove the charge as laid, and that it cannot include Watson.
"Garrow submitted that it was unnecessary to prove that each of the defendants knew how the money was to be disposed of, and that it was enough to show that the destination of the money was as stated in the indictment. A fact of which all those engaged in the conspiracy must be taken to be cognizant. Watson by engaging with the other conspirators to gain the same end, had adopted the means by which the end was to be accomplished."
That is what the attorney for the Government says. Lord Ellenborough replies:
"You must prove that all the defendants were cognizant of the object of the conspiracy and the mode stated in the indictment by which it was to be carried into effect. A contrary doctrine would be extremely dangerous. The defendant Watson must be acquitted."
Now let us apply that case to this. In the first place, they must not only prove this indictment according to the scheme, but they must prove that every defendant understood that scheme, knew the scheme, how it was to be accomplished and what was done with the money.
The Court. In that case Watson was acquitted. What was done with the others?
Mr. Ingersoll. They, of course, were found guilty, because they were guilty, as the indictment charged. They knew the exact scheme set forth in the indictment. They were guilty exactly as the indictment said. They divided the money exactly as the indictment charged they divided the money, and they were cognizant of every fact set forth in the indictment. But Watson, although a co-conspirator, did not know what was to be done with the money, and consequently was to be discharged. Why?
Because they did not prove the conspiracy as to him as charged. They need not have set forth in the indictment what was to be done with the money, but they did set it forth, and then they had to prove it. They need not have said that every man knew what was done with the money, but they did say that every man knew, and they failed to prove it, and when they failed to prove it as to Watson he was discharged.
Now, gentlemen of the jury, what I insist upon and what I shall ask the Court to instruct you is that the Government, no matter how guilty the defendant may be, no matter if he has robbed this Government of hundreds of millions, is to be tried by this indictment, is to be guilty of this charge as written in this indictment and nowhere else; and he has got to understand it. They say he understood it, and they have got to prove that he understood it.
Now, upon that same subject they say that the money was to be divided between all these parties--between Rerdell, Turner and everybody. I think it was Mr. Bliss who said there was no evidence that Rerdell ever had any of the money. Certainly they do not think that Turner obtained any of the money. Is there any evidence of it? Not the slightest. Is there evidence that there ever was any division, any evidence that there was ever any money divided upon a solitary route mentioned in this indictment? Not one particle. If you say there is evidence, when was the division made?
The Court. The question is not what was done. The question is with what view the conspiracy was entered into.
Mr. Ingersoll. Certainly.
The Court. 'The object of the conspiracy may have failed, and this money might not have been divided as they intended, but still the conspiracy would be here.
Mr. Ingersoll. Good, perfectly. But if they set forth in this indictment that the money was divided, that statement is not worth a last year's dead leaf unless they prove it. That is all I insist upon. You cannot find anybody guilty of charges in an indictment unless you prove them.
Unless you prove them they amount to no more than charges written in water, than characters engraved on fog or written on clouds. You have got to prove them.
Now, upon this same point I say that if the scheme has not been established by the evidence, the case fails, no matter what the proof.
The offence must not only be proved as charged, but it must be charged as proved, doubling the statement for the sake of doubling the idea of accuracy. That is in Archibald's Criminal Pleadings, American edition, page 36. The same thing is held in First Chitty's Criminal Law, 213. I also refer to the case of King against Walker, 3d Campbell, 264; King vs. Robinson, 1st Hope's Nisi Prius Reports, 595. I have the books here, but I will not take up the time of this Court in reading them.
Now, if I am right, that is the language of that indictment. The overt acts with the leaves are gone; the scheme with the branch and trunk are gone. They prove no such scheme, they prove no such division.
I will now proceed to examine the alleged evidence against my clients, Stephen W. and John W. Dorsey, and I want to say right in the commencement that suspicion is not evidence. You charge that a couple of persons conspired. That they met about nine o'clock on the shadowy side of the street.
_A suspicious circumstance_. Why did they not get _under the lamp?_ They were seen together once more, and the moment a man came up they walked off. Guilty. They ran. And out of these idiotic suspicions that never would have entered the mind, except for the reason that the persons were charged, hundreds of people begin to say, "There is something in it.
They met four or five times. One of them wrote a letter to the other, and so help me God it was not dated." Another suspicious circumstance.
"There was a heading on the paper. It was not the number of his office." So they work it up, and ignorance begins to stare, and wonder to open its mouth, and finally prejudice finds a verdict.
Suspicion, gentlemen, is not evidence. You want to go at this with this idea. Whatever a man does, the presumption is it is an honest act until the contrary is shown. These men wrote letters. They had a right to do it. They met. They had a right to meet. They entered into contracts.
They had a right to do it, no matter whether they were dated or not dated. One of the greatest judges of England said if you let out of the greatest man's brains all the suspicions, all the rumors, all the mistakes, and all the nonsense, the amount of pure knowledge left would be extremely small. If you take out of this case all the suspicions, all the guesses, all the rumors, all the epithets, all the arrogant declarations, the amount of real evidence would be surprisingly small.
Now, I want to try this case that way. I do not want to try it by prejudice. Prejudice is born of ignorance and malice. One of the greatest men of this country said prejudice is the spider of the mind.
It weaves its web over every window and over every crevice where light can enter, and then disputes the existence of the light that it has excluded. That is prejudice. Prejudice will give the lie to all the other senses. It will swear the northern star out of the sky of truth.
You must avoid it. It is the womb of injustice, and a man who cannot rise above prejudice is not a civilized man; he is simply a barbarian.
I do not want this case tried on prejudice. Prejudice will shut its eyes against the light. I want you to try it without that.
And right here, although it is a subject about which most courts are a little tender, the question arises as to the jury being judges of the law and fact. One of the attorneys for the Government, Mr. Merrick, told us that at one time he insisted that the jury was the judge of the law, and made this remarkable declaration:
"But even at the time I spoke the words to the jury I did not believe them to be indicative of safe and true principles of law."
Was he candid then? Is he candid now? I do not know. But his doctrine appears to be this: "When I am afraid of the court I insist on the jury judging the law. When I am afraid of the jury I turn the law over to the court. But in this case, having confidence in both judge and jury, it is wholly immaterial to me how the question is decided."
Now, if it please the Court, I believe the law to be simply this: I believe the jury to be absolute judges of the facts, and yet if on the facts they find a man guilty whom the court thinks is not guilty, the court will grant a new trial. The court has the power to set aside a verdict because the jury find contrary to the evidence. The court cannot do it, however, when the jury finds a verdict of not guilty. I do not believe that the jury have a right to disregard the law from the court unless a juryman upon his oath can say that he believes, he knows, or is satisfied that is not the law; and he must be honest in that, and he must not be acting upon caprice. He must be absolutely honest. He must be in that condition of mind that to follow the law pointed out by the court would trample upon his conscience, and that he has not the right to do. That is all the distance I go.
The history of the world will show that some of the grandest advances made in law have been made by juries who would not allow their consciences to be trampled into the earth by tyrannical judges. I am not saying that for this case.
I am simply saying that as a fact. There was a time in this country when they used to try a man who helped another to gain his liberty, and there was now and then a man on the jury who had sense enough, and heart enough, and conscience enough to say, "I will die before I carry out that kind of law." They did not carry it out either, and finally the law became so contemptible, so execrable, that everybody despised it. All I ask this jury to do is just to be governed by the evidence and by the law as the Court will give it to them, honestly and fairly.
Now, I am coming to the evidence against John W. Dorsey. I am traveling through this case now we have started it. As you have heard very little about it, gentlemen, and there is nothing in the world like speaking on a fresh subject. I feel-an interest in John W. Dorsey. He is my client.
I believe him to be an absolutely honest man. He is willing to take the effect of all his acts. He is no sneak, no skulk. He will take it as it is. Let us see what he has done.
The first witness is Mr. Boone. Mr. Boone swears that John W. Dorsey was one of the original partners. Well, that is so. It is claimed that the conspiracy was entered into before there was any bidding. Well, Boone does not uphold that view. Now, if Boone and Miner and John W. Dorsey and Peck had an arrangement with Brady whereby they were to bid and then have expedition and increase, I want to ask you why did Boone write to all the postmasters to find out about the roads and the cost of provender, and the kind of weather they had in the winter in order to ascertain what bid to make? If he had had an arrangement with the Second Assistant Postmaster-General to expedite the route he would have simply made up his mind to bid lower than anybody else, and he would not have cared a cent what kind of roads they had there, or what kind of weather they had in the winter, or how much horse provender cost, and yet he sent out thousands of circulars to find out these facts. For what? To make bids. What for? According to the Government these were routes on which they had already conspired for expedition and increase without the slightest reference to the horses and men, and of course, if that theory is true, Boone is one of the conspirators. But I will come to that hereafter.
More routes, according to Boone's testimony, were awarded than they anticipated. They got, I think, one hundred and twenty-six. They had no money to stock the routes. They got more than they expected. Well, that was not a crime. Boone left in August, 1878, and Mr. Merrick takes the ground that Boone had done the work, manipulated all the machinery, and yet could not be trusted with the secret. Boone had gathered all the information, he had done the entire business, and yet the secret up to that time had been successfully kept from him. Do you believe that?
Now, Vaile came, and another partnership was formed, and the second partnership remained in force, I think, till the 1st of April, 1879, or the last day of March, and then the routes were divided. Now, then, John W. Dorsey is charged with conspiracy as to these routes, and these routes were afterwards assigned to S. W. Dorsey to secure advances and indorsements that were made.
Now, of the routes mentioned in the indictment, John W. Dorsey was interested in seven at the time of the division. From Vermillion to Sioux Falls, from White River to Rawlins, from Garland to Parrott City, from Ouray to Los Pinos, from Silverton to Parrott City, from Mineral Park to Pioche, and from Tres Alamos to Clifton. How much money did he get on all these routes? I have already shown you. He received two warrants for eighty-seven dollars and they recouped them both. He received another warrant for three hundred and ninety-two dollars and succeeded in keeping it. That is all the money he got in these seven routes. Now, the testimony of Mr. Vaile shows, if it shows anything, that after April, 1879, he took those routes and kept them and never paid a dollar to any official in the world, and he also swears that no matter how much he got, it made no difference as to the routes that had been given to John W. Dorsey and Peck. It could not in any way affect their amount, and that no person in the world except themselves had any interest in them.
Now, it is charged that false affidavits were made by John W. Dorsey, and that the making of these false affidavits was the result of conspiracy. Let us see. It has been shown by the evidence, and I have already shown it, and conclusively shown it, that the affidavit was substantially correct, so far as the proportion was concerned.
Now, let me explain what I mean by proportion. For instance, I am getting five thousand dollars a year on a route, and it takes five men and ten horses. That is an aggregate of fifteen. Now, suppose I simply expedite it a certain number of miles an hour, and say it will take fifteen men and thirty horses. That makes an aggregate of forty-five, does it not? Then the Government gives me three times as much for the expedited service as for the then service. Now, suppose I am getting a thousand dollars, and it only takes one man and one horse, and I make an affidavit that it takes one hundred men and one hundred horses, and if it is expedited it will take two hundred men and two hundred horses, how much more do I get? I get just double, and the result of the affidavit is exactly the same as though I said the one man and one horse that it then took, and it would require two men and two horses. If you keep the proportion you cannot by any possibility commit a fraud against the Government. Now we understand that. Now let us see. When you make an affidavit, what do you do? When you make an affidavit of how many horses it will take, you take into consideration the length of the term, three or four years. You take into consideration the life of a horse. You take into consideration the roads and the weather. You take into consideration every risk, and find it is only a matter of judgment, only a matter of opinion, and the fact that men differ as to their judgment upon those points accounts for the fact that they make different affidavits. If everybody made the same calculation as to food, as to weather, as to roads, as to disease, everybody would make substantially the same bid, but on the same route they differ thousands of dollars a year, because they differ in judgment as to the number of horses it will require and as to the number of men.
And then there is another thing. Some men will make a horse do twice as much as others. Some men are hard and fierce and merciless. Some men are like they ask you to be in this case--icicles. Some men resemble the gods so far that they will make a horse do five times the work they should, and other men are merciful to the dumb beast. So they differ in judgment. One man says he can go twenty-five miles every day, and another man says he can only go fifteen. One man says stations ought to be built twenty-five miles apart; another says they should be built ten miles apart. They differ, and for that reason, gentlemen, the bids differ, and for that reason the affidavits differ.
I shall not speak of all these affidavits, but I shall speak of the ones that have been attacked. Mr. Merrick called Mr Dorsey a perjurer because he made two affidavits on route 38145. Now, no such charge is made in the indictment, but I will answer it. Now, then, as to the two indictments--The Court. Two affidavits.
Mr. Ingersoll. Two affidavits. Well, there ought to have been two indictments to cover both cases. Now, this is on route 38145, Garland to Parrott City. Now, there were two affidavits made on 38145, as is set forth in the evidence, but it is not in the indictment. The first affidavit was sworn to March 11, 1879, in Vermont, and filed April 16, 1879. Neither could come in under this conspiracy anyway. The second was made in Washington, April 26, 1879, and filed the same day, which is a suspicious circumstance. The letter dated April 23, 1879, according to the prosecution, purports to transmit an affidavit made on the 26.
There is no evidence that the affidavit dated the 26 was inclosed in the letter dated the 23. The affidavit set forth the number of men and animals required to run the route on a schedule of fifty hours, three trips a week. There is no evidence as to the character of the paper transmitted, if any was transmitted, nor in fact, is there any evidence that any paper was transmitted with that letter.
Now, on page 804 of the record, Mr. Bliss submitted two papers to Mr.
McSweeney, a witness, saying, "I show you two papers pinned together."
Who pinned them? I do not know. "One dated April 26, 1879, and the other dated April 24, 1879." The paper dated April 26 is indorsed in the handwriting of William H. Turner. The indorsement on the paper dated April 24 is in the handwriting of Byron C. Coon. This fact shows that the papers that were read by Mr. Bliss as one paper and marked 17 E, were treated by the department as two separate papers received on separate dates, and so marked and so filed, and they were marked at the time they were identified as numbers 17 and 18. Now, the only question is whether the last affidavit was made for the purpose of committing a fraud upon the Government and whether the change in the figures in the last affidavit were intended to or could in any way defraud the Government of the United States.
Now, let us see what it is. Mr. Merrick charges that the second oath was willful perjury. In order to show that this was an honest transaction, and that Mr. Dorsey should be praised instead of blamed, I will call your intention now to the exact state of facts. Now, if I do not make out from this that it was a praiseworthy action instead of perjury, a good, honest action, I will abandon the case. In the first affidavit Dorsey swore that it would require three men and seven animals as the schedule then was, and that for the proposed schedule it would take eleven men and twenty-six animals. Now, three men and seven animals make ten, and eleven men and twenty-six animals make thirty-seven. So that by the first affidavit he swore that it would take three and seven-tenths more animals to carry the mail on the expedited schedule than on the schedule as it then was, did he not? Three men and seven animals as against eleven men and twenty-six animals it would take three and seven-tenths more animals, consequently you would get for that three and seven-tenths more pay. Now, let us understand that. That is an increase in the ratio of ten to thirty-seven, and if his pay had been calculated on that first affidavit it would have been thirteen thousand four hundred and thirty-three dollars and four cents. But it was not calculated on that. He made another affidavit. Now, the second affidavit said that it would take twenty men and animals instead of ten, as it then was, and for the expedition fifty-four men and animals. Now, the ratio between twenty and fifty-four was two and seven-tenths instead of three and seven-tenths, so that under that second affidavit, which they say was willful and corrupt perjury, he would only get eight thousand four hundred and fifty-seven dollars, and the change of that affidavit, if the amount had been calculated on the first instead of the second, would have cost him for the three years yet remaining of his term fourteen thousand nine hundred and twenty-five dollars and sixty cents, and that change saved, exactly as if they had made the calculation on the other affidavit, about fifteen thousand dollars, and yet they tell me that that was willful and corrupt perjury. There has nothing been shown in the case more perfectly honorable. Nothing shown calculated to put John W. Dorsey in a fairer, in a grander light, than this very affidavit that is charged to have been willful perjury. Do you see?
He made the first affidavit, and in it he made a mistake against the Government of fourteen thousand nine hundred and twenty-five dollars, and, then, like an honest man, he corrected it, and for that honest correction he is held up as a perjured scoundrel. It will not do, my friends.
But, as a matter of fact, not one of these affidavits is set out in the indictment, not one charged in the indictment. They are wandering tramps that were picked up as they went along with this case, and have no business here.
In route 38152 he made no affidavit. In route 38113 there is no charge in the indictment that he made any affidavit. In the route 38156 the affidavit was not false. It was charged and was not successfully impeached. In route 40104 the affidavit was never disputed and it was never attacked. In route 40113 the affidavit was not attacked, not a solitary witness was examined. In route 35105 no affidavit was made by Dorsey. In route 38134 there are two more affidavits.
Now let us see. Here is some more fraud. Put it down, 38134--two affidavits--a great fraud. The first affidavit said three men and twelve animals. That made fifteen; that for the expedition it would take seven men and thirty-eight animals. That made forty-five. In other words the proportion was fifteen to forty-five, just three times as much. Three times fifteen make forty-five. Then he made a second affidavit, filed with a purpose to defraud the Government. Let us see. In the second affidavit he said that it took two men and six animals. That makes eight. That on the expedition it would take six men and eighteen animals. That makes twenty-four. The proportion was eight to twenty-four. Three times eight make twenty-four; and three times fifteen make forty-five. So that the amount was raised exactly the same to a cent, under the second affidavit that it was under the first, and consequently could not have been made for the purpose of defrauding anybody. Impossible. The proportion of course is the material thing in every affidavit, and it is only by that proportion that you can tell whether they are trying to defraud this Government or not. Suppose that second affidavit had changed the proportion so that he was not to get just the amount of money, then you might say it was a fraud. But it did not change the proportion.
On route 38156 another affidavit is filed and not successfully impeached. I went over that. I have got through with that. That is all there is to it. That is all, that is everything--everything--everything.
There is no evidence tending to show that John W. Dorsey ever spoke to Thomas J. Brady. There is no evidence to show that he ever saw him.